Assessment Appeals Committee

Transcription

1 Assessment Appeals Committee DETERMINATION OF APPEALS UNDER Section 16 of The Municipal Board Act and Section 74 of The Conservation and Development Act Appeal Numbers: Date and Location: AAC et al November 16, 2016 Kipling, SK Request for Information (RFI): RFI Issued: December 9, 2016 Received: December 19, 2016 Various (see Schedule A attached) - and - Kingsley Conservation and Development Area Authority Appellants Respondent APPEARED FOR: The Appellants: The Respondent: Ken Burton Elroy Trithardt Gayle Knutson Other Self-Represented Appellants (see Schedule A attached) Holly Heikkila, Secretary Treasurer Jarred White, Chairman Joseph Widdup, Board Member Ron Zepick, Board Member HEARD BEFORE: John Eberl, Panel Chair Holly McFarlane, Member Lise Gareau, Director

2 APPEALS AAC et al Page 2 INTRODUCTION: [1] The Assessment Appeals Committee (Committee) received appeals for the year 2016 against decisions of the Court of Revision (Court) for the Kingsley Conservation and Development Area Authority (Kingsley C&D). Authority for the Court s decisions originates in section 61 of The Conservation and Development Act (SS 1979, c C-27) [the Act] from complaints against lands assessed or omitted from assessment, or the number of acres benefitted. A list of appellants to the Committee, legal description of the lands appealed and acres assessed is attached as Schedule A. [2] The Court heard the appeals on May 6, 2016, and issued its decisions in letter form on July 28, The decisions show where an appeal was successful and the Court reduced the number of acres subject to assessment within a parcel or parcels, a brief recap of the appellant s position, and a statement identifying the adjustment. [3] When the Court denied an appeal, the decision stated only that the appeal was denied. All the decision letters contained additional information showing levy charges for 2016, a summary of changes in accounting processes, and other general information. [4] The appellants ask the Committee to overturn the Court s decisions in all instances. The main solutions proposed by the appellants, which will be discussed in analysis of three of the four issues identified, are summarized as follows: a) the acres assessed as benefitting be removed from the roll because there is no benefit; and b) 2016 levies be declared illegal because of improper processes and procedures followed by Kingsley C&D. ISSUES: [5] Following the hearing, we found the positions and interests of all the parties fell under the umbrella of broader issues, which are identified below. We will deal with each issue separately. Our analysis will speak to the relevant positions of the parties, and identify applicable legal principles and legislative support that form the basis for our conclusions. [6] a) Did the Court provide sufficient reasons for its decisions? b) Was the 2016 assessment roll prepared, and notice of assessment given, according to the provisions of the Act? If no, what is the effect of any error or omission by Kingsley C&D on the 2016 assessment and levies?

3 APPEALS AAC et al Page 3 c) Do any actions or non-actions of the Kingsley C&D under the Act or other applicable legislation in 2016 or previous years affect the 2016 assessment and levies? If yes, what is the effect on the 2016 assessment and levies? d) Did the Court make a mistake denying appeals to exclude lands or acres from assessment because the lands receive no benefit under the Act? DECISIONS: [7] a) The Committee finds the Court did not provide sufficient reasons in its decisions. b) The Committee finds the 2016 assessment roll was prepared and notice of assessment given in accordance with the intent of the Act. Further, the Committee finds the errors and omissions alleged by the appellants to have been made by the Kingsley C&D do not invalidate the 2016 assessment and levies. c) The Committee finds no action or inaction of the Kingsley C&D in 2016 or previous years invalidates the 2016 assessment and levies. d) The Committee finds the Court did not make a mistake in denying the appeals to exclude lands or acres from assessment because the lands receive no benefit under the Act. PROCEDURAL MATTERS: Committee Hearing Process [8] The Municipal Board Act, SS , c M-23.2 and The Public Inquiries Act, 2013, c P , SS 2013 confer broad powers on the Saskatchewan Municipal Board (Board) and Committee, including the power to establish its own processes and procedures. The Committee sees the powers conferred in these acts coupled with the duty to be fair to the parties to an appeal. Keeping both in mind, the Committee and Board Director reviewed the appeals upon receipt. [9] Although the number of appeals was high, we found similarity in both the complaints to the Court and the reasons for the appeals to the Committee. We decided to hear the appeals at a single hearing. While argument and submissions were consolidated in most cases, all appellants were given the opportunity to address us if desired. Kingsley C&D as respondent to the appeals was given the opportunity to address matters raised individually or collectively after we heard from the appellants.

4 APPEALS AAC et al Page 4 [10] Further, we recognize neither the appellants nor Kingsley C&D had experience in formal appeal hearings, nor the processes and procedures followed in conducting hearings. Thus, despite being a review of the Court hearings and decisions (a hearing on the record ), the parties were given latitude in the presentations made, information discussed, and content of submissions. The Panel Chair made note of this in opening remarks. Maps [11] Prior to the hearing, we requested Kingsley C&D provide us with a map showing the lands included in the area. Kingsley C&D provided a map entitled KINGSLEY CONS. AREA NO. 37 bearing the date July as well as a land ownership map for the Rural Municipality of Kingsley No. 124 (RM). All of Kingsley C&D area is within the boundaries of the RM. We accepted the maps as evidence. Clarifications Prior to the Hearing [12] The Panel Chair addressed the following matters before the hearing began: Kingsley C&D acted as the Court and the secretary treasurer acted as the clerk of the Court in accordance with section 61 of the Act. There is no fault in Kingsley C&D and the secretary treasurer following the legislation. Our authority to act on appeals from decisions of the Court comes from the Act. We do not have the authority to alter the Act; rather, it is our duty to work within the framework of such legislation. We also take direction from case law; that is, provincial and federal court decisions. We circulated two Saskatchewan Court of Appeal opinions on stated cases (from 2000 and 2004) to all appellants and Kingsley C&D for information purposes. We also circulated a Committee decision issued under The Local Improvements Act, 1993, SS 1993, c L Our decision will apply only to the 2016 assessment and levies because there were no appeals in previous years. It will apply only to lands or acres under appeal from decisions of the Court. The manner in which our decisions may affect lands or acres assessed by Kingsley C&D, but not appealed, is not before us. We will review alleged actions and inactions of Kingsley C&D only pertaining to the 2016 assessment and levies. We are not empowered to review operations and decisions of Kingsley C&D for any other purpose.

5 APPEALS AAC et al Page 5 Determination of Issues [13] Prior to the hearing, we identified the main issue arising from the appeals as stated in paragraph [6]d). As the hearing progressed, and during deliberations following, it became apparent the issues outlined in [6]a) to c), inclusive, must also be addressed. PRELIMINARY MATTERS: Review of Appealed Properties NE W2 and SW W2 [14] Mr. Burton submitted appeals against the non-assessment of the following parcels of land to the Court: NE W2 and SW W2. Mr. Burton s grounds (complaints) for both parcels were, This land benefits from the works of the C&D and is not taxed. Kingsley C&D s July 28, 2016, letter to Mr. Burton denied his complaints. [15] Mr. Burton then appealed the Court s denial of his non-assessment complaints to us. He provided no further grounds or information to us on his appeal form. [16] Sections 3 to 5, inclusive, of the Act provide the framework within which the minister may establish conservation and development areas and include lands within such areas. Section 9 provides for the reduction or withdrawal of lands or acres from an area. [17] Sections 7 and 8 speak to processes for the extension (enlargement) of an area through the addition of parcels of land. Operative clauses 7(1) and 8(1) are shown below. The use of the word may in both clauses indicates the area authority may at its discretion approach the minister concerning the matter of adding lands to an area: 7(1) At any time after the establishment of an area the area authority may, upon resolution passed at a regular or special meeting, present a petition to the minister for the extension of the area. 8(1) Where lands outside an area are situated within the watershed of works constructed or proposed to be constructed by the area authority, the area authority may, at a regular or special meeting, pass a resolution requesting the minister to add those lands to the area. [18] According to the maps we considered, Mr. Burton is not the owner of the parcels. Nothing before us suggests Mr. Burton rents the lands for agricultural purposes or occupies the lands in any way. More importantly, the maps show both parcels of land are not presently included within the boundaries of the Kingsley C&D. We accept the parcels were never included in the area, nor added to the area via the processes established in sections 7 and 8 of the Act.

6 APPEALS AAC et al Page 6 [19] Subsection 34(2) of the Act states: The costs of the construction of works constructed or to be constructed by the area authority, the costs of operating, maintaining and repairing all works constructed or continued in the area pursuant to this Act and the costs of conducting the affairs and business of the area shall be raised through a levy upon the assessed benefitted lands in the area. [20] Further, subsection 58(1) provides that the secretary treasurer shall as soon as possible in each year prepare an assessment and tax roll for the area. [21] Where the confusion may lie in Mr. Burton s appeal of these parcels is in the wording provided for the form for complaints to the Court in subsection 62(2) of the Act, as follows: Sir, I hereby complain against the assessment (or non-assessment) of on the following grounds. (here state grounds of complaint) [22] When interpreting the meaning of legislative acts, we seek guidance in the Modern Method of Legislative Interpretation. In Rizzo & Rizzo Shoes Ltd. (Re) [1998] 1 SCR 27 [Rizzo], the Court of Appeal recognized statutory interpretation as Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. (Driedger on the Construction of Statutes. 2 nd ed., p. 87) [emphasis added]. [23] The Interpretation Act, 1995, SS 1995, c I-11.2 [the IA] also provides guidance: Every enactment shall be interpreted as being remedial and shall be given the fair, large and liberal construction and interpretation that best ensure[s] the attainment of its objects (s. 10). [24] Under the IA, headings are not part of an enactment, but are inserted for convenience of reference only (s. 12). In addition, statutes and regulations must be read together (Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, [2005] 1 S.C.R. 533, at para. 38). [25] The form in subsection 62(2) provides an option to file a complaint against the nonassessment of lands or acres. We interpret the phrase non-assessment, taken in the context of the Act and The Conservation and Development Regulations (Saskatchewan Regulations 238/65 [Regulations]), to mean lands or acres already included within a conservation and development area and not assessed in that particular year. Subsection 34(2) of the Act refers to raising funds to pay costs through a levy upon the

7 APPEALS AAC et al Page 7 assessed benefited lands in the area. Any complaint against the non-assessment of lands refers to the non-assessment of a levy for the purposes outlined in 34(2), not complaints against lands not included in an area. [26] There is no evidence to support Mr. Burton appealed the non-assessment of lands included in Kingsley C&D by the minister under section 3 of the Act. Further, there is no evidence to support the lands appealed were subsequently included under sections 7 or 8. In our view, Mr. Burton mistakenly interpreted the term non-assessment as written in subsection 62(2) to mean he can appeal the non-inclusion of lands in Kingsley C&D because, in his opinion, they benefit from its operations. [27] Where lands are proposed to be added to an area pursuant to section 8, the Act and Regulations provide the opportunity to appeal such proposed addition to the Committee following a review by the area authority concerned. That appeal is restricted to the terms and conditions set out in subsection 8(5) of the Act, and in sections 63 to 65, inclusive, of the Regulations to the owner or owners of lands proposed to be added to an area. We have established above there is no evidence before us showing Mr. Burton is the owner (or occupant) of these two parcels. [28] We find we have no jurisdiction to hear appeals by non-owners against lands not included in an area established or enlarged pursuant to the Act; therefore, we exclude from consideration Mr. Burton s appeals against the non-assessment of NE W2 and SW W2. NW W2 [29] Tony Balogh submitted a Notice of Appeal to the Committee for NW W2. In reviewing the Record provided by Kingsley C&D, we do not see that Mr. Balogh first complained against the 2016 assessment and levy for that parcel to the Court. There is evidence showing Mr. Balogh filed complaint forms with the Court for two other parcels (SW W2 and NW W2) but not for NW W2. [30] Section 74 of the Act is clear in its direction: an appeal lies to the Saskatchewan Municipal Board not only against a decision of the court of revision on a complaint but also against the omission, neglect or refusal of the court of revision to hear or decide a complaint. [31] We note there is no evidence to show Mr. Balogh filed a complaint for the parcel noted to the Court; nor that the Court considered or made a decision on such complaint. Section 74 provides the Committee only hear appeals against a decision of the court of revision on a complaint. There is also nothing before us suggesting the Court omitted, neglected or refused to hear an appeal against the land.

8 APPEALS AAC et al Page 8 [32] We find we have no jurisdiction to hear an appeal against lands upon which the Court has not first heard and decided a complaint; therefore, we exclude from consideration Mr. Balogh s appeal for NW W2. SE W2 [33] Margaret and Earl Kovach listed SE W2 as being appealed to the Court and Committee; however, the assessment and tax rolls, and the maps provided as part of the Court record, do not show the parcel as being included in Kingsley C&D so is not liable to assessment. We, therefore, exclude the parcel from consideration. New Evidence [34] At the hearing, Kingsley C&D asked us to consider a letter dated November 4, 2016, addressed to them from the Manager for Southeast Regional Services of the Saskatchewan Water Security Agency (WSA). According to Kingsley C&D, the letter spoke to supporting the actions of Kingsley C&D, outlined some historical context, and provided support for its operations being compliant with the Act. Because it appeared to Kingsley C&D their actions and operations were under review, they indicated the letter would be relevant to the proceedings. [35] We have policies that govern the conduct of our hearings under the heading Assessment Appeals Committee Procedure. This Committee hearing is on the record ; that is, it is a review of initial hearings of appeals and the resulting decisions. While the decision to accept evidence not present at initial Court hearings ultimately lies with the panel hearing the appeals, below is a (non-exhaustive) summary of criteria we consider. We also hear and consider the positions of parties to an appeal concerning our potential consideration of new evidence: Is the evidence relevant to the appeal or appeals? Did the party seeking to introduce the evidence exercise due diligence in finding or obtaining the evidence prior to the initial hearing? If the Committee decides to allow the evidence, will the other party be disadvantaged without an adjournment or delay of the hearing? [36] We recognize Kingsley C&D is required by the Act to be the Court for complaints; therefore, area authority members and the secretary treasurer may not have considered asking the WSA to submit such letter at the initial level. Given the appeals are against assessment, we question the relevance of speaking to Kingsley C&D s operating practices. That matter is not under review by us except as it pertains to the 2016 assessment and levy. Further, as none of the appellants was familiar with the

9 APPEALS AAC et al Page 9 contents of the letter, time for them to consider and respond to any issues arising would have to be considered; therefore, we choose not to accept it as evidence. Issue a): Did the Court of Revision provide sufficient reasons for its decisions? ANALYSIS: [37] Specifically, appellants Gayle Knutson and Gordon Thomas (AAC ) allege the Court failed to provide sufficient reasons for its decisions. [38] The Court issued its decisions on July 28, Three property owner/complainants received a reduction in the number of acres assessed as benefitting from the works of Kingsley C&D; the reductions affected several parcels of land. In these cases, a brief reason was given for the reduction in assessed benefitted acres along with the words [t]he board felt it was only fair to adjust your assessed acres as requested. In the remainder of complaints where the appeal was denied, the decision merely states The Kingsley C&D regrets to inform you that your appeal has been denied. No reasons are provided for the denial. [39] The Act is mostly silent on the matter of the Court providing reasons for its decisions; however, in 2008 in Dunsmuir v. New Brunswick, 2008 SCC 9 [Dunsmuir], the Supreme Court of Canada altered the historical tests for reviewing the decisions of administrative tribunals referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process (para 47). [40] Written reasons provide accountability, procedural fairness and promote transparency. Further, written reasons show people how decision makers made their decisions (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 (CanLII 699) (SCC) at paras and Northwestern Utilities Ltd. v City of Edmonton, [1979] 1 SCR 684 (CanLII 17) (SCC) at 706). [41] Even in appeals where assessed acres were reduced, more substance and reasoning should have been given by the Court. It is important for decisions to refer to evidence that influences the decision making process. We find the Court did not provide sufficient reasons in all its decisions.

10 APPEALS AAC et al Page 10 [42] We sometimes choose to re-hear appeals in the first instance in order to ensure a tribunal, in coming to its conclusions, considered all relevant evidence initially. In this case, it is our view the Court record is thorough and complete. Further, Board staff and the Panel provided a degree of latitude to both appellants and the respondent in accepting submissions and hearing the appeals. We find there is ample, relevant evidence and argument before us upon which to base our decisions. Issue b): Was the 2016 assessment roll prepared and notice of assessment given according to the provisions of the Act? If no, what is the effect of any error or omission by Kingsley C&D on the 2016 assessment and levies? ANALYSIS: [43] Mr. Trithardt s submission to us specifically alleges there were procedural errors related to the assessment and notices that are non-compliant with the Act. Mr. Trithardt s positions are summarized below: a) It appears proper notification has not taken place since 2012, although substantial assessment changes were made. There may have been complaints in years prior to 2016 had proper notification been provided. b) It is apparent the assessment for 2016 significantly changed from 2015; yet the roll posted for inspection in 2016 appeared unchanged from c) The 2016 roll provided to the Committee by Kingsley C&D is not the roll that was open to inspection locally. d) The entire Kingsley C&D levy for 2016 is not legal and should be repealed. This also applies to prior years. [44] Kingsley C&D s submissions to us did not directly address Mr. Trithardt s allegations. Kingsley C&D stated in general that changes in taxation rates are not related to the assessment of benefitting acres. At the hearing, Kingsley C&D maintained and reinforced verbally its intent to comply with the Act not only in assessment and tax roll matters, but also in general operations. [45] As stated previously in this decision and at the hearing, we are empowered only to deal with this matter as it relates to 2016, as that is the year for which complaints were lodged with the Court and appeals with the Committee. References to years prior to 2016 are only made relative to the 2016 levy.

11 APPEALS AAC et al Page 11 Information Considered [46] Kingsley C&D provided copies of its 2015 and 2016 combined assessment and tax rolls as part of information submitted to us along with the Court record. Both Mr. Trithardt and Mr. Burton suggested at the hearing these copies were not representative of information available when Kingsley C&D opened the assessment roll for inspection in Mr. Burton also stated he asked for a copy of the roll during the period it was open to inspection, but had been denied. Later in the hearing, Mr. Burton stated pictures of the roll had been taken and that these pictures could be made available to us. We stated we understood the issue as described and would request production of information later, if deemed necessary. [47] On December 9, 2016, we wrote to Kingsley C&D to request the following information: a copy of any resolution passed pursuant to subsection 59(4) of the Act Kingsley C&D believes is applicable to the 2016 year; a copy of the assessment roll that was available for inspection for 2016 referred to in the advertisement submitted; and any necessary explanation to accompany the information provided. [48] Kingsley C&D replied to the request for information on December 19, The reply included a certified copy of resolution passed at a meeting held January 25, 2016, and a copy of the 2016 assessment and tax roll requested, along with a letter of explanation. [49] As a matter of procedural fairness, we ensure any submissions we consider are shared with the parties to an appeal. Following receipt of the information supplied by Kingsley C&D, Mr. Trithardt and Mr. Burton responded to us with a series of 15 pictures showing the information referred to in paragraph [46]. Mr. Trithardt and Mr. Burton also submitted a letter responding to Kingsley C&D s submissions. Legislation [50] We are of the view the Act is not clear in defining or separating the assessment and tax rolls, and duties relating to each. The Court of Appeal examined some of the relevant sections of the Act in Haas v Langenburg East Conservation and Development Area Authority No. 171, 2000 SKCA 66 (CanLII) [Haas], while discussing the matter of assessed benefited lands generally. In reviewing relevant legislation and information, we looked primarily to the Act and Regulations, but also considered Haas, previous Committee decisions for C&D appeals, and other legislation related to property assessment.

12 APPEALS AAC et al Page 12 [51] Subsection 34(2) of the Act is shown in paragraph [19] of our decision. This section provides the authority for Kingsley C&D to raise funds to pay the variety of costs mentioned through a levy upon the assessed benefited lands in the (Kingsley C&D) area. The Court of Appeal in Haas (page 5) notes the contextual connection among all of subsections 34(2) to (7), inclusive, to other subsections including 34(1), 58(1) and (2), 59(1) and 61(1). These sections are reproduced in whole or in part below: 34(1) In this Part assessment roll and roll mean the assessment and tax roll mentioned in section (1) For the purpose of levying a rate to provide moneys required by the area authority in each year the secretary treasurer shall as soon as possible in each year prepare an assessment and tax roll for the area. (2) The roll shall be in such form as may be prescribed by the regulations showing: (a) the number of assessed benefitted acres; (b) the rate to be levied against the assessments as set by resolution of the area authority; and (c) the tax payable in respect of each parcel of land. 59(1) Immediately after the preparation of the assessment roll the secretary treasurer shall mail to each person whose name and address appear on the roll a notice setting forth the land in respect of which he is assessed and the number of acres shown upon the roll as acres to be benefitted, and every such notice shall contain a statement of the last date upon which complaints against the assessment may be lodged with the secretary treasurer. 61(1) The area authority shall form a court of revision for the trial of complaints of any person as to himself or any other person being wrongfully assessed on the roll or omitted therefrom or as to being assessed in respect of property of which he is not the owner or as to the number of acres stated on the roll to be contained in any parcel of land or as to the number of acres thereof to be benefitted. [52] Part of the resolution to this issue is differentiating between the assessment roll and the tax roll. We agree with the Court of Appeal in Haas that parts of the entire Act must be considered in context to explain Kingsley C&D s authority to assess and levy against lands and benefitted acres. First, subsection 34(1) provides little clarity in differentiating the assessment roll and the tax roll; in fact, it clouds the issue somewhat. [53] In subsection 58(1), assessment and tax roll are stated together; no differentiation is made; however, we find use of the phrase in each year, presented twice in the section, to be of relevance. The words indicate the process is annual and will be repeated again and again. In our view, this likens the process to property assessment and taxation as provided for in Saskatchewan s municipal acts. The process of property assessment forms the basis for taxation in those acts, but is clearly differentiated.

13 APPEALS AAC et al Page 13 [54] We note, with the exception of construction costs, the costs set out in subsection 34(2) are annual and ongoing, not one-time, capital costs. An area authority is empowered to set taxation rates to meet such costs each year in subsection 58(2)(b). [55] Subsection 58(2) begins the separation of the assessment and taxation functions. Part (a) speaks to the assessed benefited acres, which are to be shown on the roll. In our opinion, subsection (a) refers to the assessment roll. Parts (b) and (c) refer to rates and taxes, which are separate from the assessment function. [56] Subsection 59(1) supports the separation of the assessment and taxation functions. It speaks to the requirement for Kingsley C&D to provide to each person whose name appear(s) on the roll notice setting forth the land in respect of which he is assessed and the number of acres shown on the roll as acres to be benefited. The information to be shown on the notice of assessment or the assessment roll in any form is clearly set out. There is no mention of tax rates or tax levies. [57] Finally, subsection 61(1) solidifies complaints to a court of revision are to relate to wrongful assessment, inclusion of persons not rightfully placed on the roll, wrongful ownership, incorrect acres stated for a parcel of land or number of acres benefited. The lack of mention of rates and levies support what information should be placed in the assessment roll. [58] We find there is enough direction in the Act to conclude legislators intend the assessment roll for conservation and development areas for each year include: a legal description for parcels of lands with assessed benefited acres; and the number of acres in assessed lands deemed to be benefited. [59] It then follows that if lands receive benefit to a different degree as proposed in subsection 34(4), it is reasonable the roll would reflect that information. Subsection 58(2)(b) of the Act, when read in conjunction with subsection 58(1), provides the area authority with the power to set taxation rates in each year Assessment Roll [60] In considering the information presented from the pictures of the posted 2016 assessment roll provided by Mr. Trithardt and Mr. Burton, we see the following information provided: A heading on Page 1, which reads, Kingsley C&D Assessed Acres. A legal description of assessed, benefited parcels of land in Kingsley C&D.

14 APPEALS AAC et al Page 14 A breakdown of benefited acres assessed in each of the Admin, Catchment, Marsh Bottom and Outlet assessment groups. [61] We note the information does not include the name and address of the owners of parcels of land as suggested the assessment roll include in subsection 59(1); however, we equate the assessment function in the Act to the property assessment function in the municipal acts (see paragraph [53]). For example, section 205 of The Municipalities Act, SS 2005, c M-36.1 (the MA) sets out what the assessment roll is required to show for each assessed property in a municipality. [62] We will not comment on the applicability of the provisions of The Local Authority Freedom of Information and Protection of Privacy Act, c L-27.1, SS to other legislated standards. We will say that to our knowledge, the printed assessment roll prepared for inspection under section 205 of the MA most often does not include the name and address of the property owner regardless of the legislation. The provisions of the act governing the assessment function are the same. The absence of a name and address, which we believe are available or contained on the roll internally, may be deemed private information. That any copy of the 2016 assessment roll contains information regarding the 2015 tax levy is irrelevant. Moreover, the roll contains sufficient information related to the assessment function without property owners names and addresses. [63] Further, subsection 59(3) of the Act is stated as follows: No assessment shall be invalidated by reason of any error, omission or misdescription in any assessment notice or by reason of the non-receipt of the notice by the person assessed. [64] While this section refers to information provided in any assessment notice, the provision of notice by public posting and advertising in a local newspaper that the roll has been prepared and is open to inspection is set out in subsections 59(4) and (5). The intent of opening the roll is to provide affected persons the opportunity to review the roll and complain to the court of revision, if they desire. We see the intent of subsection 59(3) being to open the roll for inspection; that is, [No] assessment shall be invalidated by reason of any error, omission or misdescription. [65] We find the assessment roll as presented contained enough information to satisfy the intent of the Act. None of the errors alleged, whether they are errors or not, are fatal to Kingsley C&D s 2016 assessment of the parcels of land and acres benefited as shown on the roll. The landowners were aware of the parcels of land and number of acres benefitted for Further, we see no evidence before us that landowners were denied the right to complain to the Court and appeal to the Committee.

15 APPEALS AAC et al Page 15 Other Matters [66] We also requested Kingsley C&D provide a copy of any resolution passed pursuant to subsection 59(4) of the Act for This subsection provides that on or before the 31 st of January in any year, an area authority may pass a resolution dispensing with the mailing of assessment notices subject to certain conditions. Kingsley C&D provided a certified copy of resolution passed at a board meeting held January 25, 2016; the resolution lists the mover as K. Kish. Mr. Trithardt and Mr. Burton allege in their response to the information provided by Kingsley C&D that K. Kish was not and is not a member of Kingsley C&D. [67] Information available to us shows for 2016, the duly elected members of Kingsley C&D do not include a K. Kish, but rather Jarred White, Joseph Widdup and Ron Zepick. We agree the elected members should make resolutions of Kingsley C&D governing its affairs. We do not know if the resolution was passed at a regular or special meeting of Kingsley C&D provided for in section 27 of the Act. It is possible the meeting held on January 25, 2016, was an annual meeting (section 33, the Act) where owners or occupants of land within the C&D area may have been in attendance. If so, perhaps the chairperson accepted or the secretary treasurer recorded a landowner made the resolution. [68] Again, we find such error, if it is an error, is not fatal to the intent of Kingsley C&D to follow the direction of the Act in opening the roll for inspection. To summarize our conclusion for this issue, it is not entirely clear Kingsley C&D followed the Act exactly in preparing the 2016 assessment roll and providing notice of assessment; however, the Act is unclear in its wording. In any case, we find Kingsley C&D followed the intent of the legislation and further find the errors or omissions alleged do not affect the 2016 assessment and resulting levies. Issue c): Do any actions or non-actions of the Kingsley C&D under the Act in 2016 or previous years affect the 2016 assessment and levies? If yes, what is the effect on the 2016 assessment and levies? Issue d): Did the Court make a mistake in denying the appeals to exclude lands or acres from assessment because the lands receive no benefit pursuant to the Act? [69] Mrs. Knutson s submission specifically alleges past procedural errors by Kingsley C&D mean the 2016 assessment and levies are illegal. Mr. Burton also spent considerable time at our hearing presenting argument on the matter.

16 APPEALS AAC et al Page 16 [70] At the outset of analysis regarding Issue c), we believe there is uncertainty as to our authority to consider the matter as it was raised before the Court and now before us. We interpret subsection 61(1) of the Act (reproduced above) to impose limits on the matters any person as to himself or any other person may complain about to a court of revision to those noted below: Being wrongfully assessed on the roll, or Omitted from being assessed on the roll, or Being assessed in respect of property of which he is not the owner, or The number of acres stated on the roll to be contained in any parcel of land, or The number of acres stated on the roll to be benefitted. [71] Herein is the reason for uncertainty as to our authority to hear and decide Issue c). Part of section 74 of the Act states, an appeal lies to the (Committee) against a decision of the court of revision on a complaint. The remainder of section 74 speaks to the omission, neglect or refusal of a court or revision to hear or decide a complaint; there is no allegation of that before us. The point is, section 74 ties us to hearing appeals against decisions the Court made on complaints, while subsection 61(1) provides the limitations for complaints noted above. So regarding Issue c), is it Ms. Knutson, Mr. Burton and others are being wrongfully assessed on the roll or is there complaint against the number of acres stated on the roll to be benefitted? [72] The evidence and argument presented by Ms. Knutson and Mr. Burton, and supported by other appellants as their reason for complaining, stems from the idea past actions or inactions of Kingsley C&D render the 2016 assessment and levies illegal. [73] Because of the uncertainty, we will combine our analysis for the two issues. We recognize our analysis may not address every point raised, but rather will provide the reasons for our conclusion. [74] The crux of the argument relating to Issue c) stems from the appellants interpretation of subsection 34(5) of the Act. Many of the appellants provided a copy of a without prejudice letter from Alex Schamber dated May 31, 2013, and addressed to Kingsley C&D. Mr. Schamber is a former employee of the Saskatchewan Ministry of Agriculture and the Saskatchewan Water Corporation, according to the letter. His work appears to include a long-time association with Kingsley C&D in some capacity.

17 APPEALS AAC et al Page 17 [75] In our view, the appellants argument is best summarized in the following excerpts taken from Mr. Schamber s letter: Section 34(4) [and] (5) of the C&D Act provide the authority for ratio assessments. Legal advice and practice over the past many years, suggest that when an assessment is changed ratio or otherwise, new Assessment Notices are provided 59(1) [and] (4). The authority to set required levies is outlined by Section 34(7). Based on the last general Assessment (1973), the Kingsley C&D would continue to have 3 accounts (Administration-Outlet-Marsh). To change these substantial procedural matters, a complete re-assessment of all the C&D lands, along with notification to all ratepayers would be required. [76] To be clear, we will respond to the argument presented through these excerpts, as that is the argument the appellants presented to us. None of this is in any way a comment on the content of Mr. Schamber s letter. [77] We will also consider the positions of Kingsley C&D in our analysis. They state the topics of appropriation of funds and accounts, changes in taxation rates, and historical wrongdoings (among other topics) are not relevant to the matter of assessed benefited acres, and should not be considered by us. They further note the combining of accounts was undertaken on the advice of a SK water employee and not knowingly undertaken to do anything beyond uphold the intent of the Act. Lastly, Kingsley C&D suggests Mr. Schamber s May 2013 letter is irrelevant to these appeals. [78] Subsections 34(4) and 34(5) of the Act are reproduced below: 34(4) Subject to subsection (5), a rate shall be levied equally on each assessed benefitted acre; but where there are, or may be, variations in the benefits, the benefitted acres may be placed in groups on the basis of the benefits derived and in such case the rate shall be the same for each acre in the same assessment group. 34(5) The Lieutenant Governor in Council may, if he considers that the lands to be taxed are not or will not be benefitted equally, prescribe the basis on which the lands shall be taxed so that each parcel of land will be taxed equitably in relation to the assessment of each other parcel having regard to the varying degrees to which the respective parcels of land are benefitted or to be benefitted, and thereupon the land shall be taxed on the basis so prescribed. [79] Dealing with subsection 34(5) first, we note the Lieutenant Governor in Council (LGIC) is empowered and that empowerment is defined with the word may.

18 APPEALS AAC et al Page 18 [80] There is no definition provided in the Act for the LGIC; therefore, we turn to the IA for assistance. Subsection 27(1) of the IA states In an enactment: [LGIC] means the Lieutenant Governor acting by and with the advice of, or by and with the advice and consent of, or in conjunction with, the Executive Council. [81] Nothing in the IA or the Act suggests the authority granted in subsection 34(5) rests with Kingsley C&D. Yet the argument before us suggests future area authorities, being the members elected acting pursuant to the Act and Regulations, are bound by taxation ratios set by previous area authorities. The evidence presented is resolutions passed by Kingsley C&D in 1974 and 2012, which we believe are years of, or years following, substantive flooding. [82] The Court of Appeal in Haas also commented on the wording in subsection 34(5) saying, It empowers the (LGIC) to prescribe a basis for varying levies if the lands affected by a work are not benefitted equally thereby (page 8). No mention is made by the Court of Appeal that anyone else is empowered, just the LGIC. [83] We disagree with the appellants position regarding subsection 34(5). We do not believe the intent of 34(5) by itself, or in combined context with 34(4), is to be so restrictive as to bind future area authorities to an historical ratio. Further, though it is not clear why the authority in 34(5) is given to the LGIC, we believe it is clear such authority rests with the LGIC as defined in the IA. We have no evidence in 1974, in 2012 or any other date of the LGIC making such order; only resolutions of Kingsley C&D. [84] As to Issue c), we really need go no further; however, some of this ties in with Issue d). In past decisions, the Committee described an issue similar to Issue d) like this; Have the (2016) rates been levied in accordance with the Act? [85] First, we do not see subsection 34(7) as providing the authority to set the required levies; this is the position taken by the appellants. In AAC 0004/1997, Edward Russin v Langenburg East Conservation and Development Authority No. 171, the Committee wrote as follows: Although, it is true the term may be benefitted is being used, this section at the outset talks of providing a fund for the payment of costs that may be incurred, by reason of flooding or other unforeseen circumstances. We do not see any evidence that was before the Court of Revision to indicate that the levy was for the purpose of such a fund [page 3].

19 APPEALS AAC et al Page 19 [86] The assessment and levies under consideration in these appeals are similar. Subsection 34(7) speaks to restricted fund accounting and not to the power of assessing and levying against benefitted lands in the area. That power is clearly provided in subsection 34(2): 34(2) The costs of the construction of works constructed or to be constructed by the area authority, the costs of operating, maintaining and repairing all works constructed or continued in the area pursuant to this Act and the costs of conducting the affairs and business of the area shall be raised through a levy upon the assessed benefitted lands in the area. [87] The Court of Appeal in Haas stated the meaning of the phrase assessed benefitted lands is obscure as it appears in subsection 34(2). In the same paragraph, the Court of Appeal goes on to say The answer lies in the interpretation of the phrase in light of the whole context in which it is used, including all of the provisions of the Act bearing upon its intended meaning (Haas, page 3). [88] We agree. We stated earlier subsections 58(1) and (2) provide the authority for Kingsley C&D in each year to set by resolution the rate to be levied against the assessments. The actions of Kingsley C&D are further supported in subsection 34(4), which states in part where there are, or may be, variations in the benefits, the benefitted acres may be placed in groups on the basis of the benefits derived and in such case the rate shall be the same for each acre in the same assessment group. [89] We have referred to the Court of Appeal s Haas decision throughout our analysis. In Muzichuk v Buchanan Conservation and Development Area Authority, 2004 SKCA 158 (which decision follows Haas chronologically), the Court of Appeal states Haas stands for the proposition that, in order to attract a levy, lands must not merely be included in a conservation and development area but must actually be benefited by a work constructed or maintained by the relevant authority (paragraph [8]). [90] Kingsley C&D established four groups on the basis of benefits derived under subsection 34(4) as follows: Administration ; Catchment ; Marsh Bottom ; and Outlet. For the most part, the appellants have all stated their belief their lands so assessed receive no benefits from the operations of the C&D. Issue d) then boils down to Do the lands under appeal receive benefit as placed by Kingsley C&D in the groups established under section 34(4) of the Act?

20 APPEALS AAC et al Page 20 [91] All acres included in Kingsley C&D are included in the Administration group. Subsection 34(2) provides that the costs of conducting the affairs and business of the area shall be raised through a levy. We will not speak to the tax rates throughout this analysis that is a matter for Kingsley C&D to contemplate each year and set by resolution under the terms of the Act. However, we can say we believe it is equitable all acres within the Kingsley C&D area share in administration costs, as all property owners receive benefit. No further analysis is required regarding lands so assessed. [92] All acres included in Kingsley C&D are also included in the Catchment group. The Court of Appeal and the appellants suggest mere inclusion in the (Kingsley C&D) area does not necessarily mean a benefit is derived. Kingsley C&D states the grouping relates to funds required for maintenance of the outlet ditch. They further state in their submission to us that overall, landowners benefit greatly from both natural drainage and artificial drainage Kingsley C&D operates as they maintain a legal engineered outlet for water in the watershed. [93] We note none of the evidence and argument placed before the Court and Committee point to acres or lands draining into a different watershed area. In fact, there was argument as to water backing up onto appellants lands when the pumps were not working or drainage systems were blocked during flood years and other times. Further, Mr. Burton s appeal to the Court of lands outside Kingsley C&D receiving benefit, and so should be subject to assessment, could be taken as evidence that the benefit of operating the drainage works extends to all acres inside the area. [94] We also refer to sections 23 and 24(1) of the Act, as set out below: 23 In addition to the powers conferred upon it by this Act the area authority shall have such further powers for the conduct of the affairs and business of the area as may be prescribed by the minister. 24(1) Subject to The Saskatchewan Watershed Authority Act, 2005, an area authority shall construct all works authorized to be constructed and shall operate and maintain such works and all works continued pursuant to this Act. [95] The maintenance of works as extensive as those operated by Kingsley C&D is expensive; funds are required that are obtained by a levy upon the assessed benefited lands in the area. We agree with Kingsley C&D that all acres within the area, including those under appeal, receive benefit from the consistent operation of a legal engineered outlet for water. As such, we find the Catchment lands receive benefit under the Act.

21 APPEALS AAC et al Page 21 [96] What remains are the Marsh Bottom and Outlet groupings. These land groupings appear to be in an area immediately surrounding and west of the pumps operated by Kingsley C&D as part of drainage works. The acres assessed in both groupings together total 5,756 acres. [97] Again, we do not see any direct evidence tendered by appellants with acres in the Marsh Bottom and Outlet groupings that support their claim those acres do not benefit as being part of that grouping. There is no third party, expert testimony, or submission that supports the statements of non-benefit made. [98] Further, argument sometimes overlaps and is confusing to us, referring to increased tax levies, the requirement for re-assessment, and subsequently, new notice of assessment. Our analysis of Issue b) concludes in summary that regardless of the legitimacy of the allegation of new assessment requiring the issuance of an assessment notice, the 2016 assessment and levies are valid. The act of advertising the roll as open for inspection creates the opportunity for affected landowners to appeal. Further, we see no requirement in the Act for such reassessment as referred to by the appellants. [99] Kingsley C&D, in responding to the arguments of appellants with acres in the Marsh Bottom and Outlet groupings, stated generally that land in these areas benefit greatly from the operation of the works. Aerial photographs were submitted to assist us and referred to in Kingsley C&D s submissions to us. [100] We noted above some of the submissions to us suggest the operation of the pumps and main outlet provide distinct benefit to the acres within the Marsh Bottom and Outlet assessment groups. Moreover, we do not see evidence in the Court record, nor argument before us, which leads us to conclude there is not such distinct benefit. Kingsley C&D, by virtue of section 17 as well as other provisions of the Act and Regulations, is made up of owners or occupants of land within the area and is duly elected by other such members. These elected representatives, who by virtue of the Act are so empowered, are in the best position to make such decisions on assessment groupings and relative benefit. Therefore, in the absence of evidence to the contrary, we find the Marsh Bottom and Outlet assessment groups receive a benefit separate from the Administration and Catchment groups. Final Comments [101] We note overall, the majority of argument before us from all appellants is aimed at the operations of Kingsley C&D and is based opinion. This argument did not assist us in making our decisions on the issue of benefitted acres or any of the issues identified.