ASSESSOR OF AREA 12 TRICITIES/NORTHEAST FRASER VALLEY GREAT NORTHERN & PACIFIC HEALTH CARE ENTERPRISES INC.

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1 The following version is for informational purposes only, for the official version see: for Stated Cases see also: for Property Assessment Appeal Board Decisions SC 439B AA12 v Great Northern & Pacific Health Link to Property Assessment Appeal Board Decision ASSESSOR OF AREA 12 TRICITIES/NORTHEAST FRASER VALLEY v. GREAT NORTHERN & PACIFIC HEALTH CARE ENTERPRISES INC. Supreme Court of British Columbia (A993156) Vancouver Registry Before the HONOURABLE MADAM JUSTICE SINCLAIR PROWSE J.H. Shevchuk for the Appellant R.J. Argue for the Respondent Vancouver, June 15 & October 10, 2000 Classification Vacant Land Whether Zoned "Business" or "Commercial" Given the particular wording of the zoning bylaw considered by the Court, the absence of the words "business" or "commercial" in the permitted uses meant that the subject property was not specifically zoned for "business" or "commercial" purposes. HELD: The subject property was entitled to Class 1 Residential classification. Judicial Notice Municipal Bylaws The Court cannot take judicial notice of municipal bylaws and, in the circumstances of this case, there was no basis for allowing new evidence, even if new evidence is permissible on a Stated Case. Reasons for Judgment December 11, 2000 I. Nature of Proceeding and Relief Sought The Respondent/Landowner owns a 148,000 square foot piece of vacant land in Coquitlam British Columbia (the "Property"). The Appellant/Assessor classified the property for assessment purposes as "Class 6 Business and Other". On 22 October 1999, the Property Assessment Appeal Board (the "Board") ordered that the Assessor amend the 1999 Property Assessment Roll to change that to "Class 1 Residential". This is the appeal of that decision. page 1

2 During the course of this appeal, I concluded that the questions, as initially posed by the Board, were not questions of law. Leave was granted to amend the questions and the Stated Case was remitted back to the Board for that purpose. These Reasons for Judgment pertain to the amended questions. II. Preliminary Motion During the course of the hearing before the Board, the specific zoning bylaws pertaining to the Respondent/Landowner s property, namely, City of Coquitlam Zoning Bylaw No Part 1, Part 2, and Part 20, were submitted (Schedules A and B of the Agreed Statement of Facts). At the commencement of this appeal, the Respondent/Landowner applied for leave to tender, or alternatively, to refer to the remaining City of Coquitlam zoning bylaws. Because time was of the essence, and because there had been no opportunity to review the arguments or the law on this issue prior to the hearing of the appeal, after counsel had completed their submissions on this application I directed that the appeal proceed and counsel present alternative arguments one based on the inclusion of this material and the other based on the exclusion of the material. I further advised them that my decision on this motion would be given with my decision on the appeal. This is my decision on this motion. Pursuant to s. 65 of the Assessment Act, this appeal is limited to a question of law. It is to be presented in the form of a Stated Case. That is, the appeal is to be on a question of law based on the facts as set out by the Board in the Stated Case Caldwell v. St. Thomas Aquinas High School, [1984] 2 S.C.R. 603; Hennessy v. British Columbia (Assessor of Area No. 01 Capital), [1996] B.C. Stated Cases 367 (C.A.); and Tumbler Ridge (District) v. British Columbia (Assessor of Area No. 27 Peace River), [1985] B.C.J. No. 810 (QL) (S.C.). The procedure on this appeal is governed by the Assessment Act and Rule 49 of the Supreme Court Rules, in so far as that rule does not conflict with the provisions of the Assessment Act. See: Kuntz v. College of Physicians and Surgeons (British Columbia) (1996), 21 B.C.L.R. (3d) 219 (C.A.); and McKenzie v. Mason (1992), 72 B.C.L.R. (2d) 53 (C.A.). The first issue to be determined on this preliminary motion is whether, in the context of this appeal, these additional zoning bylaws constitute additional evidence or a legal reference. If they constitute a legal reference the Respondent/Landowner may refer to them as it would be permitted to refer to any legal reference. If, on the other hand, they constitute additional evidence the Respondent/Landowner must establish their admissibility. As was touched on at the beginning of these Reasons for Judgment, during the hearing before the Board, the specific zoning bylaws pertaining to the Respondent/Landowner s property were submitted as evidence being attached to the Agreed Statement of Fact as Schedules A and B. In the present hearing, the Respondent/Landowner proposes to use the contents of these additional zoning bylaws to support the Board s findings regarding the contents of the zoning bylaws already tendered. Used in this way, these additional zoning bylaws become part of the factual matrix on which the decision is based. That is, the Respondent/Landowner intends to use these additional zoning bylaws as additional evidence not as a legal reference. page 2

3 As was just set out, in this appeal the Court is limited to a consideration of the facts set out in the Stated Case. These facts are the facts on which the Board made its decision, drawn from the evidence presented at the hearing before it. As these additional zoning bylaws were not tendered as evidence considered by the Board in the earlier hearing, they are not included in the facts in this Stated Case. To consider this additional evidence on this appeal, the Respondent/Landowner must establish that this proposed evidence falls under some exception permitting evidence not tendered in the original hearing to be admitted as part of the Stated Case on this appeal. The Respondent/Landowner has failed to prove that admissibility. In the course of its argument, the Respondent/Landowner suggested that this additional evidence may be evidence to which this Court could take judicial notice. Assuming that evidence to which the Court can take judicial notice is admissible on a Stated Case, and I am not deciding that that is the law, this proposed evidence does not constitute such evidence. That is, these additional zoning bylaws are not facts to which the Court can take judicial notice. This Court cannot take judicial notice of a municipal bylaw unless a statute expressly permits it R. v. Priest (1955), 16 W.W.R. 556 (B.C.C.A.) and R. v. Lum, [1982] 3 W.W.R. 694 (B.C.Co.Ct.). There is no such statutory provision authorizing judicial notice to be taken of these municipal bylaws. In particular, the Municipal Act does not provide for the taking of judicial notice of municipal bylaws. Moreover, although s. 24 of the Evidence Act provides for the taking of judicial notice of federal and provincial statutes, it does not extend to municipal bylaws. With respect to other possible grounds of admissibility, the Respondent/Landowner suggested that this proposed evidence may constitute fresh evidence. Assuming that fresh evidence is admissible on an appeal presented as a Stated Case, and I am not deciding that this is the law, these additional zoning bylaws do not meet the requirements of the admissibility of such evidence. In particular, these additional zoning bylaws were discoverable by reasonable due diligence at the time of the earlier hearing R. v. C.(R.) (1989), 47 C.C.C. (3d) 84 (Ont. C.A.); Kapelus v. University of British Columbia, [1998] B.C.J. No (QL) (C.A.) and Pavlovic v. Pav s Complete Excavating Services, [1998] B.C.J. No (QL) (S.C.). As the proposed evidence is not admissible on any of the grounds raised by the Respondent/Landowner, and as I could not identify any other grounds on which it may be admissible, the application to admit these additional bylaws is dismissed. III. Question One: Did The Property Assessment Appeal Board Err In Its Interpretation Of Section 1(c) Of B.C. Regulation 438/81, And Thereby Err In Law, When It Held That The Subject Property Was Not Specifically Zoned For Business Or Commercial Purposes And Therefore Qualified For Class 1 Residential Classification Under B.C. Regulation 438/81? With respect to this question, it is not a proper question of law as required by s 65 of the Assessment Act. That is, this question is "so general in its scope as to amount simply to asking Was the decision right? No question of law emerges from such a question". Cominco Ltd. v. Assessor of Area 18 Trail (1982), B.C. Stated Cases 170 (S.C.). page 3

4 As my jurisdiction is limited to questions of law, I do not have the jurisdiction to decide this question. Given that this question has already been amended once, it is not appropriate to remit it to the Board a further time for further amendments. As I do not have jurisdiction to answer Question One, the appeal based on this question is dismissed. IV. Question Two: Did The Property Assessment Appeal Board Err In Its Interpretation Of Section 1(c) Of B.C. Regulation 438/81, And Thereby Err In Law, When It Held That To Be Specifically Zoned For Business Or Commercial Purposes Under Section 1(c) Of B.C. Regulation 438/81 Requires The Words "Business", "Commercial", "Business Purpose" Or "Commercial Purpose" Be Found In The Applicable Bylaw? To put this Question in context, the prescribed classes of property for assessment purposes are listed and described under Part 1 of B.C. Regulation 438/81 of the Assessment Act (the "Regulation"). Section 1 of Part 1 of the Regulation describes the type of land that fall within the Class 1 Residential classification. In this case, the Board concluded that the property fell within the Residential classification because it fell within s. 1(c) of the Regulation, that is, it was "land having no present use and which is neither "specifically zoned nor held for business, commercial, forestry or industrial purposes". The issue before the Board was whether the property was specifically zoned for business or commercial purposes. Both parties agreed that that the purpose for which the property was held was irrelevant. The particular zoning bylaw pertaining to the property was City of Coquitlam Zoning Bylaw No. 3000, 1996 Part 20 Institutional Zones 2002 p-2 Special Institutional. The Intent and the Permitted Uses of p-2 Special Institutional zoning are described in this bylaw as follows: (1) Intent This zone provides for facilities or structures which are utility related or provide health of community services. Provision is also made for recreational, cultural and religious uses. (2) Permitted Uses The following uses and no other uses are permitted in this zone: Community care Assembly which, in a school or social hall may also include casino gambling Public service Private hospital Accessory advertising page 4

5 Accessory off-street parking Accessory one-family residential Relying on the decision of the British Columbia Court of Appeal in Eccom Developments Ltd. v. British Columbia (Assessor of Area No. 9 Vancouver) (1989), B.C. Stated Cases 269, the Board held that "specifically" as used in s. 1(c) of the Regulations means "explicit" rather than "solely" or "exclusively". "... the lands potentially have a number of uses, all of which are permitted by the present zoning... The word "specific" tends to the meaning of definite as opposed to implied or indefinite and the possible land uses namely, business or industrial are specific items of zoning." In applying that definition to the zoning bylaw applicable to the property p-2 Special Institutional of City of Coquitlam Zoning Bylaw No. 3000, 1996 Part 20 Institutional Zones 2002, the Board concluded that "certain uses are permitted, notably community care and private hospital, that could, no doubt, be operated as businesses. However, nowhere does the regulation specifically, clearly, explicitly or definitely permit business or commercial uses. The most that can be said is that the land is impliedly zoned for business uses to the extent a permitted institutional use is operated as a business." It follows from this conclusion that the Board decided that with respect to land falling under the various zoning provisions of City of Coquitlam Zoning Bylaw No. 3000, 1996 to be "specifically zoned for business or commercial uses" requires the inclusion those terms in the particular zoning provision applicable to the land in question. The Appellant/Assessor contends that this conclusion is an error of law. Although in Eccom, the Court did find that the land in that case was "specifically zoned" for business even though the term business was not included in the relevant zoning bylaw, the court did not go so far as to conclude that the term business commercial need never be included in the relevant zoning bylaw to support such a finding (that is, a finding that the land was "specifically zoned" for business or commercial uses). Rather, the Court in Eccom found that whether land is specifically zoned for business or commercial uses will depend on the wording of the particular zoning bylaw in issue. See also: Bosa Development Corp. v. British Columbia (Assessor of Area No. 12 Coquitlam), [1996] B.C.J. No (QL) (C.A.). In the present case, Part 2 of the City of Coquitlam Zoning Bylaw No. 3000, 1996 (see Schedule A to the Admissions of Fact) provides a list of defined various terms used in this bylaw. Included in these defined terms are "Business" and "Commercial". Specifically, "Business" is defined as meaning "carrying on a commercial or industrial undertaking of any kind or nature or the providing of professional, personal or other services of the purpose of gain or profit." "Commercial", on the other hand, is defined as meaning "a use providing for the sale or rental of goods or services, for personal services, or for the servicing and repair of goods; and includes retail sales, wholesaling in conjunction with retail sales, commercial and government offices, personal services, recreation facilities, commercial schools, household services and household repairs, excludes service station use." Neither of these defined terms appear in the zoning provision applicable to the property, namely, p-2 Special Institutional zoning. page 5

6 However, by way of comparison the defined term "commercial" does appear in the p-1 Civic Institutional which is the section immediately preceding p-2 Special Institutional in this zoning bylaw (that is, in City of Coquitlam Zoning Bylaw No. 3000, 1996). (See: Admissions of Fact Schedule B). That is, under p-1 Civic Institutional Intent and Permitted Uses are described in the following manner: (1) Intent This zone provides for uses of an educational, governmental or institutional nature which provide services to the public. Commercial activities which are accessory to the principal use are also permitted. (Underlining was added by me for emphasis.) (2) Permitted Uses Civic Commercial, limited to: (a) the retail sales and services accessory to a civic use; (b) offices of a physiotherapist Community Care Animal Shelter Assembly which, in a school or social hall, may include casino gambling Public Service, which may include railroad spur lines where the spur lines are necessarily incidental to the provision of rail service to adjacent lands Off-street parking Accessory advertising Accessory off-street parking (Again the underlining was added by me for emphasis.) Given the fact that "business" and "commercial" are defined terms under City of Coquitlam Zoning Bylaw No. 3000, 1996 and that these terms are used to describe the intent and the permitted uses of a zoning designation as is demonstrated in the wording of p-1 Civic Institutional, the Board did not err in concluding that with respect to the particular zoning bylaw in issue in this case the terms "business", "commercial", "business purpose" or "commercial purpose" have to be included in the particular wording of the zoning bylaw for the land to be specifically zoned for those uses or purposes. As p-2 Special Institutional of the City of Coquitlam Zoning Bylaw No. 3000, 1996 did not include those terms, the property was not specifically zoned for those purposes. page 6

7 The answer to Question Two is no. The Board did not err in law. V. Question Three: Did The Property Assessment Appeal Board Err In Law By Regarding Certain Statements Of Mr. Justice Cummings In Eccom Developments Ltd. v. Assessor of Area 09 Vancouver (1989), B.C. Stated Case 269 (B.C.C.A.) As Obiter Dicta And Choosing Not To Be Bound By The Court s Direction That Property Zoned For Other Than Residential Purposes Does Not Qualify For Class 1 Residential Classification Under B.C. Regulation 438/81? In my view, this Question is not a proper question of law. That is, to constitute a question of law the question must pertain to a particular legal conclusion. The misinterpretation of the ratio of a case is a matter of argument to illustrate the error of law. Having reached that conclusion, this ground should be dismissed on the basis that it is not a proper question of law. However, in the event that I am wrong about that conclusion, I have addressed the question posed as I understood it. That is, did the Board err in concluding that Class 1 Residential classification is not restricted to land that is solely zoned and held for residential purposes? In their submissions before the Board, the Appellant/Assessor argued that Class 1 Residential classification could only be given to land that was zoned and held for residential purposes only. In support of this submission the Appellant/Assessor relied on a comment made by Mr. Justice Cumming in Eccom. Specifically, they relied on the following excerpt from Mr. Justice Cumming s reasons: It is a reasonable concession that land, currently vacant but held for residential purposes, should enjoy the same favourable treatment, but the obvious intent of the legislature is that that preferment should only be enjoyed by land which is not only genuinely held for that purpose, but also is land on which no other use is permissible." The Board concluded that this portion of Mr. Justice Cumming s reasons was obiter. The Board relied on the ratio of Eccom which was that whether land is "specifically zoned" for business or commercial uses will depend on the relevant zoning bylaw. In the Eccom case, the land was classified as Class 6 Business and Other. The owners sought to change the classification to Class 1 Residential. Although the land was vacant, the owners had held it for residential purposes and in fact a residential building was under construction at the time of the assessment appeal. The comments of Mr. Justice Cummings set out above were made in the context of the zoning bylaw in that case, that is, in Eccom. That comment may very well have been applicable to the zoning bylaw being considered in that case. The comment should not be interpreted as going any further than that. In so far as those comments are interpreted as going further, they are obiter. The answer to the Third Question is no. The Board did not err. VI. Question Four: Did The Property Assessment Appeal Board Err In Law By Failing To Follow The Court Of Appeal Decision In Bosa Development Corp. v. British Columbia (Assessor No. 12 Coquitlam), [1996] B.C.J. No (B.C.C.A.) (Q.L.) To The Effect That Property Zoned For page 7

8 Other Than Residential Purposes Does Not Qualify For Class-1 Residential Classification Under B.C. Regulation 438/81? For the reasons set out under Question Three, Question Four is not a proper question of law. Given that conclusion, this ground of appeal should be dismissed. However, in the event that I am wrong in that conclusion, I have addressed this question. In my view, the British Columbia Court of Appeal in Bosa Development Corp v. British Columbia (Assessor of Area No. 12 Coquitlam) (supra) did not conclude as the Appellant/Assessor has suggested that "property zoned for other than residential purposes does not qualify for Class 1 Residential classification under s. 1 of the Regulations." In Bosa, the relevant bylaw permitted business and commercial uses of land. The owners sought to have the land classified as residential because this land was subject to a restrictive covenant which only permitted it to be used for residential purposes. The court found that the assessment classifications are funded on the wording of the relevant zoning bylaw. The purpose for which land is held is irrelevant for assessment classification purposes. Consequently, in Bosa the Court held that property should be classified as Class 6 Business and Other because of the zoning. Although the property was being "held" for residential purposes, as undeveloped land its "use" was determined by its zoning. Under the relevant zoning bylaw, it was not being "used" for residential purposes. Although the Court in Bosa did refer to the comment made by Mr. Justice Cumming in Eccom that was addressed in relation to Question Three, it did not rely upon it in making its decision. Rather the Court in Bosa confirmed the decision in Eccom, that whether land is specifically zoned for commercial or business purposes will depend on the wording of the relevant bylaw. Given these circumstances, for all of the reasons set out under the previous question, the answer to Question Four is no. The Board did not err in law. VII. Costs As the successful party, the Respondent is awarded costs of this appeal. page 8