Administrative Law II. for Assessment Review Board Members and the Municipal Government Board Members

Transcription

1 Administrative Law II fr Assessment Review Bard Members and the Municipal Gvernment Bard Members

2 The materials are Cpyright by the Gvernment f Alberta. All rights reserved. N part f this publicatin may be reprduced r transmitted in any frm r by any means, electrnic r mechanical, including phtcpy, recrding, r any infrmatin strage and retrieval system, withut permissin in writing frm Alberta Municipal Affairs. Requests fr permissin t make cpies f any part f this dcument r attachments theret shuld be sent t: Alberta Municipal Affairs Lcal Gvernment Services Assessment Services Branch 15th Flr, Cmmerce Place Street Edmntn AB T5J 4L4 P: F: Department frms, publicatins & resurces can be fund at: (Under Prperty Assessment & Taxatin tab, Publicatins tab) ISBN Print ISBN Electrnic

3 Table f Cntents Cntents Cautin n the Use f the Materials... 6 LEARNING OBJECTIVES... 6 COURSE DESCRIPTION... 6 PREAMBLE... 9 MODULE CONDUCT AND COLLABORATION MAINTAINING INDEPENDENCE AND ACCOUNTABILITY THROUGH ETHICAL CONDUCT Municipal Gvernment Bard Missin Statement: Alberta Generic Cde f Cnduct fr a Public Agency: Tips fr Wrking Cllabratively With Other ARB Staff and Members EXERCISE # 1 GROUP DISCUSSION (15 MINUTES) MODULE ADMINISTRATIVE LAW & NATURAL JUSTICE What is Administrative Law? Rle f an Assessment Review Bard Natural Justice and Prcedural Fairness The Rules f Natural Justice Prcedural Fairness The Requirement f Fairness in the Assessment Cmplaint Prcess The Right t Be Heard EXERCISE # 2 FAIRNESS: RIGHT TO BE HEARD Bias Tw Types f Bias What Creates a Perceptin f Bias? The Test fr Perceptin f Bias Exceptins t Bias Tips arund Bias EXERCISE # 3 BIAS A Decisin frm the Persn(s) Wh Heard the Case Best practice tips: The Big Picture fr Assessment Review Bards Knw Yur Legislatin EXERCISE # 4 KNOW YOUR LEGISLATION THE CONCEPT OF JURISDICTION EXERCISE # 5 JURISDICTION THE CONCEPT OF HEARING STYLE Prsecutrial Style Inquisitrial Style Adversarial Style THE CONCEPT OF DECISIONS Challenges t Decisins Curt Review f Decisins Municipal Affairs Administrative Law II Page 3 f 99 Gvernment f Alberta September 2012

4 Table f Cntents MODULE 3 ASSESSMENT REVIEW BOARD HEARINGS OVERVIEW - A TYPICAL HEARING PROCESS Tips n hearings THE ARB HEARING Panel Member Preparatin Objectins t Jurisdictin r Prcedure Tips fr Dealing with Objectins Adjurnments and Pstpnements Fairness r Efficiency Access t Infrmatin and Disclsure Pre-Hearing Filing r Disclsure f Ptential Evidence Access t Infrmatin MGA sectins 294, 295, 299 and Evidence Evidence Is Nt Bund by Strict Rules f Evidence Admitting Evidence Hw t Mark an Exhibit: Relevance f Evidence Weight f Evidence One Cmmn Exceptin in ARB Hearings - Hearsay Evidence Affidavits The Rle f Witnesses Types f Witnesses Witnesses can expect questins abut: Expert Witnesses Tips fr panel members arund witnesses: Cmpelling Attendance f Witnesses r the Prductin f Dcuments Cmpelling Attendance f Witnesses Requiring Prductin f Dcuments Wrking with Translatrs SAMPLE SUBPOENA /NOTICE TO ATTEND / PRODUCTION OF DOCUMENTS Case Arguments Legal Cunsel Cunsel as Advcate Cunsel as Advisr t the Panel Nte Taking Tips fr the panel s ntes Cnfidential Infrmatin Panels and Staff Need t Representatives and Agents EXERCISE # 6 HEARING PROCESS TIPS AROUND HEARINGS Befre: During: After: MODULE 4 DECISION MAKING AND WRITING DECISION MAKING Identifying the issues in supprt f the matters fr the cmplaint Identifying the legislatin and framing the issues/questins and cnditins r legislative requirements f each issue Identifying the relevant evidence and making findings f fact n the evidence Applying the facts t the legislatin t reach cnclusins and expressing the decisin maker s ratinal fr the cnclusin Municipal Affairs Administrative Law II Page 4 f 99 Gvernment f Alberta September 2012

5 Table f Cntents 5. Reaching the decisins and frmulating the directins fr implementatin Weighing the Evidence and Making Findings f Fact Decisin Making Tips DECISION WRITING A Written Decisin Is Why ARB s Write Decisins? Wh d Panels Write Fr? What Defines a Well Written Decisin? Basic Pieces f a Written Decisin Sample Decisin Template fr Assessment Review Bards Tips fr the Authr Reviewing a Decisin in Draft Tips fr Cmmenting n a Decisin Written by Smene Else Csts and Penalties Tips When Dealing With Csts r Penalties EXERCISE #7 - DECISION MAKING & WRITING BACKGROUND/SUMMARY: PRELIMINARY ISSUES: REFERENCES AND RESOURCES A USER'S GUIDE TO LEGISLATION Statutes f Alberta: annual vlumes Statutes f Alberta: lse-leaf The Alberta Gazette Part II Other Frmats Hw t cite statutes (Acts) Hw t cite regulatins Interpretatin Act Reference Materials Prclamatin Tables - (printed n white paper) Table f Public Statutes - (printed n pink paper) Table f Private Statutes f the Prvince f Alberta - (annual vlume nly: printed n blue paper) RSA 2000 Schedules - (lse-leaf statutes) Organizatin f a Statute (Act) ATTACHED DOCUMENTS: Municipal Affairs Administrative Law II Page 5 f 99 Gvernment f Alberta September 2012

6 Objectives Cautin n the Use f the Materials These materials have been prepared fr infrmatinal and educatinal purpses and d nt cnstitute legal advice. They are intended as an educatinal aid fr persns in administrative tribunal wrk, nt a substitute fr any prfessinal advice. Befre acting n this infrmatin, readers shuld cnsult their wn statutes and plicies, r seek ut the relevant prfessinal assistance.. Learning Objectives Thrugh interactive exercises, case studies and a hands-n review f frms and prcedures, yu will learn abut: The imprtance f ethical cnduct related t assessment review bards, What is invlved in the hearing prcess, and The principles f gd decisin making and writing. In additin, the bjective f this wrkshp is t develp a basic understanding f the administrative bligatins when prcessing a cmplaint, the principles f fair prcess in an assessment hearing prcess, wrking with an assessment review bard panel and supprting decisin making and writing. After this wrkshp, participants will have: Examined bligatins when prcessing a cmplaint and preparing fr and participating in a hearing, Reslved ptential issues during the prcessing f a cmplaint, Applied the basic principles f fairness in a hearing scenari, Made a decisin using an integrated decisin making mdel, and Written a decisin using a decisin writing mdel and standards. Curse Descriptin Administrative Law II is a tw-day curse fr members f Assessment Review Bards (ARB) and the Municipal Gvernment Bard (MGB). This curse is designed t prvide participants with a basic understanding f administrative law principles and prvide the basic skills required in their rles and respnsibilities under Alberta s legislative framewrk. The curse is a cmpanin curse t Principles f Assessment I (fr ARB members) and Principles f Assessment II (fr MGB members) that fcus n the basic principles f prperty assessment in Alberta. Althugh the MGB and ARB s hear different types f cmplaints, the tenets f administrative law and the gverning legislatin are similar. In this manual, case studies and legislative references are generally directed twards ARB members. An MGB member may participate in a hearing as the prvincial member n a cmpsite assessment review bard, and/r as a member f a MGB panel. Therefre, the MGB member when taking the curse shuld als reference legislatin related t the Municipal Gvernment Bard in Part 12 f the Municipal Gvernment Act (MGA). Municipal Affairs Administrative Law II Page 6 f 99 Gvernment f Alberta September 2012

7 Objectives Curse Cntent The Administrative Law II curse cnsists f fur mdules. Mdule 1 Cnduct & Cllabratin In this mdule participants learn abut the imprtance f maintaining independence and accuntability. This mdule will als describe the cde f prfessinal and ethical respnsibilities fr members f an assessment review bard, cnflict f interest, and hearing cnduct. Participants als learn techniques that will enhance ways t wrk cllabratively with ARB administratin and ther ARB members. Mdule 2 Administrative Law & Natural Justice In this mdule participants are intrduced t administrative law, the principles f natural justice, and bias. Participants als learn abut their jurisdictin and authrity, as well as the related legislatin pertaining t assessment review bards. The different jurisdictins f assessment review bards, and hearing styles will be examined. Mdule 3 Assessment Review Bard Hearings This mdule prvides an verview f assessment cmplaint hearing prcess. Participants will learn abut the pre-hearing preparatin and prescribed frms. Preliminary matters, such as adjurnments and pstpnements, access t infrmatin, evidence and the rle f witnesses. Legal cunsel, nte taking, and cnfidential infrmatin are als discussed. Mdule 4 Decisin Making & Writing Decisin making and writing are prcesses that will be presented in this mdule. The cmpnents f a decisin are nt nly legislated, but the histry f administrative law has evlved t require specific infrmatin be cntained in them. A case study will be used t demnstrate the prcess mdels used. The applicatin f csts and penalties will als be discussed as part f the decisin making prcess. Learning is reinfrced thrugh exercises, case studies and take-away checklists that assist with bth the pre-hearing and hearing prcesses. Evaluatin An ARB r MGB member must cmplete this curse and the Principles f Assessment I (ARB) r the Principles f Assessment II (MGB) curse t be qualified t participate as a panel member in a hearing under their jurisdictin. Full participatin in the curse and exercises is required and a passing grade n the final examinatin, t be presented in class, must be btained. Municipal Affairs Administrative Law II Page 7 f 99 Gvernment f Alberta September 2012

8 Terminlgy Terminlgy Wrds and acrnyms used thrughut this dcument have the fllwing meanings, unless specifically nted therwise: Administratr the administratr f the Municipal Gvernment Bard r any delegated persn referred t in sectin 486(4) f the Municipal Gvernment Act. ARB assessment review bard CARB cmpsite assessment review bard Clerk the clerk f the assessment review bard, appinted pursuant t sectin 455 f the MGA. LARB lcal assessment review bard MGA r Act Municipal Gvernment Act, Revised Statutes f Alberta 2000 Chapter M-26 MRAC Matters Relating t Assessment Cmplaints Regulatin (AR 310/2009) MRAT Matters Relating t Assessment and Taxatin Regulatin (AR 220/2004) IA Interpretatin Act, Revised Statutes f Alberta 2000 Chapter I-8 Municipal Affairs Administrative Law II Page 8 f 99 Gvernment f Alberta September 2012

9 Preamble Preamble In rder t perfrm yur duties effectively, yu need t knw and be familiar with the structure f written legislatin. Hw Acts and regulatins are divided up Lking at the Table f Cntents at the frnt f an Act r regulatin, yu will see that it is divided int Parts which are further divided int Divisins. Under each Divisin, sectins are listed in numerical rder as they appear in the Act r regulatin. It des nt list the page numbers where these sectins are lcated. The index at the back f the Act lists the subject matter in alphabetical rder, but like the table f cntents, nly references the sectin f the Act r regulatin that deals with the subject matter. When searching fr a specific sectin f legislatin, that sectin will be referenced at the tp left hand crner f the page in the Act r regulatin. Sectins f legislatin are further brken dwn, and when referencing legislatin, a specific terminlgy is used. sectin subsectin 453(1) In this Part, (a) assessment ntice includes an amended assessment ntice and a supplementary assessment ntice; clause (b) assessment rll includes a supplementary assessment rll; (c) cmpsite assessment review bard means an assessment review bard cnsisting f (i) ne prvincial member and 2 ther members wh are nt prvincial members, r subclause (ii) subject t sectin 454.2(3), ne prvincial member; The hi-lighted sectin wuld be stated as sectin 453, subsectin 1, clause c, sub-clause i and written as 453(1)(c)(i). * See Users Guide t Legislatin in References and Resurces fr mre infrmatin Municipal Affairs Administrative Law II Page 9 f 99 Gvernment f Alberta September 2012

10 Mdule 1 Mdule 1 Cnduct & Cllabratin Maintaining Independence and Accuntability thrugh Ethical Cnduct Assessment review bard (ARB) clerks and bard members are appinted by a municipality under the legislatin t: administer the cmplaint prcess hear and decide cases apply the legislatin and prcedures f the ARB interpret the legislatin where required make cnsistent decisins, and prvide fair prcess t the parties. T carry ut its legislative rle, an assessment review bard must be independent f its appinting authrity. At the same time, the ARB and its members are accuntable fr: the decisins they make the hearings they cnduct cnfidentiality f the infrmatin received the prcedures it adpts and implements the budget under its authrity the cllegial supprt f its members and staff the reputatin f the prcess, ARB and panel members, and the cnduct f themselves and all parties at a hearing. Having a cde f cnduct in place can assist the ARB (its members and staff) t meet reasnable standards and gals in its accuntability. A cde f cnduct can be brad r general, detailed r simplified. ARB s may express the cde f cnduct in different ways, such as in a particular dcument named a cde r thrugh ther ARB publicatins like the missin and gals. A cde f cnduct shuld be cntinually reviewed, refined and refreshed t meet current standards and demands. It is imprtant fr an ARB t develp a cde f cnduct t ensure all Albertans have access t a fair and independent prcess with strict adherence t the principles f natural justice and in which all individuals are treated fairly and withut bias in an pen, rderly and impartial manner. This is imprtant because miscnduct r prcedures that affect the rights f the parties t a cmplaint can result in the decisin f a bard being verturned n appeal t the Curt f Queen s Bench. Remember that yur bard s prcedures shuld align with yur cde f cnduct, but mre imprtantly must meet all legislative requirements. An ARB must extend the accuntability and standards f their cde f cnduct t the participants in a hearing. The fllwing pages cntain an example f the Missin, Visin and Gals statement fr the Municipal Gvernment Bard, and a generic Cde f Cnduct that yu may use t help develp ne fr yur bard. Municipal Affairs Administrative Law II Page 10 f 99 Gvernment f Alberta September 2012

11 Mdule 1 Municipal Gvernment Bard Missin Statement: MISSION The Municipal Gvernment Bard shall prvide timely, independent, quasi-judicial appeal adjudicatin t all parties in the areas f assessment matters, planning, subdivisin appeals, inter-municipal disputes and annexatin recmmendatins, that yields fairness and equity cnsistent with the authrity f the Municipal Gvernment Act. VISION The Alberta Municipal Gvernment Bard will be a leader amng tribunals with a reputatin fr excellence in adjudicatin. All Albertans shall have access t a fair and independent prcess with strict adherence t the principles f natural justice and in which all individuals are treated fairly and withut bias in an pen, rderly and impartial This Visin will be attained by: 1. prviding benchmark decisins. 2. advcating excellence and prviding guidance in decisin making t stakehlders. 3. demnstrating efficiency, effectiveness and timeliness in the appeal prcess. 4. respecting rights f individuals, businesses, crpratins and municipalities. 5. ensuring that all prperty assessments are equitable, fair and crrect in accrdance with legislatin. 6. striving fr cnsistency and predictability based n evidence presented. V A L U E S In service t stakehlders the Municipal Gvernment Bard values: 1. ur strength thrugh the diversity f ur members and the quality f ur staff. 2. the right t natural justice and timeliness in the adjudicatin prcess. 3. respect fr and respnsiveness t ur stakehlders. 4. prvisin f quality service t stakehlders. 5. cnsistent interpretatin f legislatin. 6. cmmitment t the Cde f Ethics and Cnduct. 7. rganizatinal alignment and a team apprach t prblem-slving. 8. innvative use f autmated infrmatin services. 9. cntinuus rganizatinal develpment, self-imprvement and self-evaluatin. 10. enriched and rewarding wrk envirnment which recgnizes prductivity. G O A L S 1. Organizatinal Effectiveness: The Municipal Gvernment Bard will be an effective rganizatin, rles and accuntabilities will be clear and understd, and prcesses and relatinships will be purpsely aligned. 2. Prcesses: The Municipal Gvernment Bard will reflect accessibility, efficient scheduling, timely decisins and fair hearing prcedures cnsistent with the principles f natural justice. 3. Quality Decisins: Municipal Gvernment Bard decisins will be legislatively crrect, well reasned, cnsistent with evidence and relevant case law and will be issued n a timely basis. 4. Stakehlder Satisfactin: The Municipal Gvernment Bard will be practive and respnsive t stakehlder feedback and satisfactin. A stakehlder is defined as all peple wh have a vested interest in the utcmes f the Municipal Gvernment Bard. This wuld include Bard members, staff, and all external parties wh cme befre the MGB, the department and the Minister. 5. Budget Plan: The Municipal Gvernment Bard budget will reflect the business plan and will prvide fr effective and efficient use f financial resurces t supprt MGB pririties. Municipal Affairs Administrative Law II Page 11 f 99 Gvernment f Alberta September 2012

12 Mdule 1 Alberta Generic Cde f Cnduct fr a Public Agency: The Generic Cde f Cnduct fr a Public Agency (Generic Cde) is a sample Cde f Cnduct fr use by agencies. The Alberta Public Agencies Gvernance Act (APAGA) requires that each agency have a Cde f Cnduct (Cde) fr its members and emplyees and have a prcess fr administering it. The Generic Cde meets the requirements f the APAGA and may be used as a starting pint t assist agencies in develping a Cde that reflects their unique situatin and mandate. The dcument, Guidelines fr Develping a Cde f Cnduct fr a Public Agency, prvides suggestins and examples t cnsider when mdifying this Generic Cde r develping a new Cde. [NAME OF AGENCY] CODE OF CONDUCT I. Preamble The Cde f Cnduct (Cde) fr [name f agency] applies t all members and emplyees. The Cde reflects a cmmitment t the agency s values and prvides a framewrk t guide ethical cnduct in a way that uphlds the integrity and reputatin f the agency. Members and emplyees are expected t behave in a way that aligns with this Cde. They understand that this Cde des nt cver every specific scenari. Therefre, they use the spirit and intent behind this Cde t guide their cnduct, and exercise care and diligence in the curse f their wrk with the agency. T demnstrate cmmitment t transparency and accuntability, this Cde is available t the public n the agency s website. II. III. Cre Values a. Members and emplyees act with impartiality and integrity. b. Members and emplyees demnstrate respect and accuntability. c. [Other values]. Guiding Principles These principles guide the behaviur and decisins f members and emplyees: a. The actins and decisins f members and emplyees are made t prmte the public interest and t advance the mandate and lng-term interests f the agency. b. Members and emplyees are respnsible stewards f public resurces. c. T serve the public interest, members and emplyees have a respnsibility t uphld the agency s mandate. d. Members and emplyees have a respnsibility t act in gd faith and t place the interests f the agency abve their wn private interests. e. Members and emplyees behave in a way that demnstrates that their behaviur and actins are fair and reasnable in the circumstance. f. Members and emplyees enjy the same rights in their private dealings as any ther Albertan, unless it is demnstrated that a restrictin is necessary in the public interest. Municipal Affairs Administrative Law II Page 12 f 99 Gvernment f Alberta September 2012

13 Mdule 1 g. When a member r emplyee, as an individual, is subject t mre than ne cde f cnduct, the member r emplyee must cnsider the expectatins in all. Members and emplyees understand that this Cde is nt intended t cnflict with ther Cdes f Cnduct, and will discuss any ptential cnflicts with their supervisr r the Cde Administratr. h. The Cde applies t all members and emplyees unless a specific exemptin is granted by the Cde Administratr. i. Members and emplyees knw that when they becme aware f a real r apparent cnflict f interest, they must at the first pprtunity disclse this cnflict t their supervisr r the Cde Administratr. j. Members and emplyees understand that disclsure itself des nt remve a cnflict f interest. k. Members and emplyees encurage their clleagues t act fairly and ethically and knw that they are able t raise cncerns abut a suspected breach by anther t their supervisr r the Cde Administratr withut fear f reprisal. l. Members and emplyees knw that breaches f this Cde may result in disciplinary actin, up t and including remval f the member r terminatin f the emplyee. m. Members and emplyees knw that if they have any questins abut the Cde, r are nt sure hw t apply these principles, they shuld cnsult with their supervisr r the Cde Administratr. n. Each member and emplyee cnfirms [n an annual basis] their understanding f, and cmmitment t, the Cde s expectatins. IV. Behaviural Standards Behaviural standards help members and emplyees make apprpriate decisins when the issues they face invlve ethical cnsideratins. Behaviural standards cannt cver all scenaris but prvide guidance in supprt f day-t-day decisins. All members and emplyees must adhere t the fllwing standards: a. Members and emplyees must nt engage in any criminal activity and cmply with all relevant laws, regulatins, plicies and prcedures. b. Members and emplyees must nt use their status r psitin with the agency t influence r gain a benefit r advantage fr themselves r thers. c. Member and emplyee cnduct cntributes t a safe and healthy wrkplace that is free frm discriminatin, harassment r vilence. d. Members and emplyees must nt use drugs r alchl in a way that affects their perfrmance and safety r the perfrmance and safety f their clleagues, r that negatively impacts the reputatin r peratins f the agency. e. Members and emplyees must act in a way that is cnsistent with the agency s prtcls n public cmment. f. Members and emplyees must take reasnable steps t avid situatins where they may be placed in a real r apparent cnflict between their private interests and the interests f the agency. In ther wrds, actins r decisins that members and emplyees take n behalf f the agency must nt prvide them with an pprtunity t further the private interests f themselves, their families, their business assciates r thers with whm they have a significant persnal r business relatinship. 1. Cnfidential Infrmatin Municipal Affairs Administrative Law II Page 13 f 99 Gvernment f Alberta September 2012

14 Mdule 1 Members and emplyees must respect and prtect cnfidential infrmatin, use it nly fr the wrk f the agency and d nt use it fr persnal gain. Members and emplyees must cmply with prtcls that guide the cllectin, strage, use, transmissin and disclsure f infrmatin. 2. Gifts and Gratuities Members and emplyees must nt accept r receive gifts and gratuities ther than the nrmal exchange f gifts between friends r business clleagues, tkens exchanged as part f prtcl r the nrmal presentatin f gifts t peple participating in public functins. 3. Outside Activities Members and emplyees must avid participating in utside activities that cnflict with the interests and wrk f the agency. Fr example: i. Business Interests: Members and emplyees must nt hld interests in a business directly r indirectly thrugh a relative r friend that culd benefit frm, r influence, the decisins f the agency. ii. iii. iv. Emplyment: Members must nt take emplyment, and emplyees must nt take supplementary emplyment, that affects their perfrmance r impartiality with the agency. Plitical Activity: Members and emplyees may participate in plitical activities including membership in a plitical party, supprting a candidate fr elected ffice r seeking elected ffice. Hwever, they must nt participate directly in sliciting cntributins fr a plitical party. In additin, any plitical activity must be clearly separated frm activities related t the wrk fr the agency, must nt be dne while carrying ut the wrk f the agency and must nt make use f agency facilities, equipment r resurces in supprt f these activities. Vlunteer Activity: If members and emplyees are invlved in vlunteer wrk, the activity must nt influence r cnflict with decisins relating t the agency. 4. Pre-Separatin Members and emplyees cnsidering a new ffer f appintment r emplyment must be aware f and manage any ptential cnflicts f interest between their current psitin and their future circumstance, and must remve themselves frm any decisins affecting their new appintment r emplyment. 5. Pst-Separatin Once members and emplyees have left the agency, they must nt disclse cnfidential infrmatin that they became aware f during their time with the agency and must nt use their cntacts with their frmer clleagues t gain an unfair advantage fr their current circumstance. 6. Prperty Members and emplyees may have limited use f the agency s premises and equipment fr authrized incidental purpses prviding such use invlves minimal additinal expense t the agency, must nt be perfrmed n the member r emplyee s wrk time, must nt interfere with the missin f the agency and must nt supprt a persnal, private business. Municipal Affairs Administrative Law II Page 14 f 99 Gvernment f Alberta September 2012

15 Mdule 1 7. Related Persns r Parties Members and emplyees must avid dealing with thse in which the relatinship between them might bring int questin the impartiality f the member r emplyee. V. Administrative Prcesses Administrative prcesses help members and emplyees manage ethical dilemmas, including any real r apparent cnflict f interest cncerns. a. Administratin The Cde Administratr fr members and the Chief Executive Officer (CEO) is the [e.g., Chair; Gvernance Cmmittee]. The Cde Administratr fr emplyees ther than the CEO is the [e.g., CEO; Gvernance Cmmittee]. The Cde Administratr receives and ensures the cnfidentiality f all disclsures and ensures that any real r apparent cnflict f interest is avided r effectively managed. As well, the Cde Administratr is respnsible fr prviding advice and managing all cncerns and cmplaints cncerning ptential breaches f the Cde, including cnflicts f interest within the agency. Even thugh an agency may have a delegated prcess fr respnding t and managing cncerns, the Cde Administratr is respnsible fr ensuring prcedural fairness. b. Disclsure It is the respnsibility f each member and emplyee t declare in writing t the Cde Administratr thse private interests and relatinships that they think culd be seen t impact the decisins r actins they take n behalf f the agency. When there is a change in their respnsibilities within the agency r in their persnal circumstance, members and emplyees shall disclse in writing any relevant new r additinal infrmatin abut thse interests as sn as pssible. Where a real r apparent cnflict f interest cannt be avided, members and emplyees must take the apprpriate steps t manage the cnflict. Members and emplyees disclse these real r apparent cnflicts f interest s that the Cde Administratr is aware f situatins that culd be seen as influencing the decisins r actins they are making n behalf f the agency. This prvides members and emplyees, fllwing a review by the Cde Administratr, an pprtunity t take actin t minimize r remve the cnflict. T actively manage a cnflict f interest, ptins include: remving themselves frm matters in which the cnflict exists r is perceived t exist; giving up the particular private interest causing the cnflict; and, in rare circumstances, resigning their psitin with the agency. c. Reprting a Ptential Breach by Anther Members and emplyees are encuraged t reprt in writing a ptential breach f this Cde by anther t their supervisr fr emplyees r the Cde Administratr fr members and emplyees. When reprting a ptential breach in gd faith and with reasnable grunds, members and emplyees are prtected frm retaliatin fr such reprting. d. Respnding t Ptential Breach Once a ptential breach has been reprted, the agency s prcedures fr respnding t and managing a ptential breach will be prmptly initiated. The Cde Administratr will review the circumstance and details f the ptential breach and will ntify the alleged member r emplyee. The alleged member r emplyee has the right t cmplete infrmatin and the right t respnd fully t the ptential breach. The identity f the reprter will nt be disclsed unless required by law r in a legal prceeding. The Cde Administratr makes a Municipal Affairs Administrative Law II Page 15 f 99 Gvernment f Alberta September 2012

16 Mdule 1 decisin and cmpletes a reprt f the review in a timely manner. The decisin may range frm finding n ptential breach t ne that reveals suspected criminal cnduct. e. Cnsequences f a Breach Members and emplyees wh d nt cmply with the standards f behaviur identified in this Cde including taking part in a decisin r actin that furthers their private interests, may be subject t disciplinary actin up t and including remval f the member r terminatin f the emplyee. f. Review f a Decisin Members and emplyees can request in writing that the [e.g., Ethics Cmmissiner; external party] review a decisin that has been made by the Cde Administratr abut a real r apparent breach f the Cde, including a cnflict f interest invlving that member r emplyee. VI. VII. Other Resurces a. Where t Get Advice When members and emplyees require advice and guidance in determining whether miscnduct r a cnflict exists, r need clarificatin, they may discuss their issue with: A supervisr fr emplyees The Cde Administratr fr members and emplyees [Other - e.g. ethics fficer, ethics cmmittee, cmpliance fficer] b. Questins t Cnsider When members and emplyees are faced with a difficult situatin, the fllwing questins may help them decide the right curse f actin: Have I reflected n r cnsulted with my supervisr r the Cde Administratr abut whether I am cmprmising the Cde s values, principles r behaviural standards? Have I cnsidered the issue frm a legal perspective? Have I investigated whether my behaviur aligns with a plicy r prcedure f the agency? Culd my private interests r relatinships be viewed as impairing my bjectivity? Culd my decisin r actin be viewed as resulting in persnal gain, financial r therwise? Culd my decisins r actins be perceived as granting r receiving preferential treatment? Affirmatin The Cde f Cnduct fr [name f agency] was intrduced n [date] and is reaffirmed [annually] by the Bard t ensure it remains current and relevant. Municipal Affairs Administrative Law II Page 16 f 99 Gvernment f Alberta September 2012

17 Tips fr Wrking Cllabratively With Other ARB Staff and Members Mdule 1 It sunds like mtherhd and apple pie t say that everyne in an ARB has t wrk cllabratively t achieve satisfactry results. Sme tips fr wrking cllabratively include: wrk frm the same infrmatin different infrmatin generates differing viewings and reactins set clear prcesses and time lines identify clear rle descriptins and expectatins vcalize expectatins d nt encurage assumptins fcus n the bigger picture and gals, nt persnal agendas, persnal pririties r persnal pride when cases are expected t be difficult, wrk ut a plan fr dealing with the case practively and cnsult the parties as needed slicit infrmatin abut what did nt happen as expected be prepared t accept reasnable explanatins and give a little leeway fr different appraches r methds fcus n the prject and actins, respect the persnalities and feelings remember yu are dealing with peple be prepared t examine alternate ways f ding the wrk there may be mre than ne way t accmplish the task treat everyne else as yu wuld wish t be treated prtect the reputatin f the bard and the credibility f its prcesses stay invlved inactive persns lse tuch d yur part and d it well share the praise and the pain equally appreciate the equal rles f the three panel members; the presiding fficer may facilitate the discussin but needs t als express his/her wn views and shuld nt be acting as a cntrller r superir persn n the panel. Municipal Affairs Administrative Law II Page 17 f 99 Gvernment f Alberta September 2012

18 Mdule 1 Exercise # 1 Grup Discussin (15 Minutes) 1. Give tw examples f what might cnstitute miscnduct by bard members r staff. 2. What issues may arise frm nt cllabrating with ther bard members r staff? 3. The regular ARB clerk was absent n leave, and the acting clerk frgt t ntify the cmplainant f the disclsure dates. One f the panel members was very upset that they were required t attend a hearing that was nt ready t prceed. He vents his anger at the acting clerk. What can the ARB d t reslve the situatin? 4. Yu are arriving at the hearing and discver that yur pastr is ne f tw peple attending the hearing. The pastr tells yu that this is the first hearing he has attended and desn t knw what t expect. He asks if yu knw anything abut it and if yu culd help them. What d yu d r say? Why? 5. After the hearing yu return t yur regular business/jb. The next day, yu receive a call frm the Pastr, wh thanks yu fr being s pen minded in the hearing. He says he knws he will get a call and letter frm the ARB abut the decisin, but asks if yu can remind him when the decisin will be released, and culd yu give him a hint int what the decisin will say. Hw d yu react/what d yu d? Why? Municipal Affairs Administrative Law II Page 18 f 99 Gvernment f Alberta September 2012

19 Mdule 2 Mdule 2 Administrative Law & Natural Justice Participants learn abut the imprtance f maintaining independence and accuntability. This mdule will als describe the cde f prfessinal and ethical respnsibilities fr members f an assessment review bard, cnflict f interest, and hearing cnduct. Participants als learn techniques that will enhance ways t wrk cllabratively with ARB administratin and ther ARB members. In this mdule participants will be intrduced t administrative law, the principles f natural justice and abut the duty t act fairly. Participants will learn abut jurisdictin and authrity, as well as the related legislatin pertaining t assessment review bards. This mdule als cvers hw decisins are reviewed. What is Administrative Law? Generally speaking, administrative law deals with the rganizatin and pwers f the gvernment and the rle f law in cntrlling the exercise f thse pwers. Administrative law is created frm the legislatin and decisins f the curts. Rle f an Assessment Review Bard Gvernment authrizes a municipality t establish an ARB t carry ut certain wrk and make decisins n matters related t prperty assessment. The Lcal Assessment Review Bard (LARB), Cmpsite Assessment Review Bard (CARB), One Member LARB r CARB, and Municipal Gvernment Bard (MGB) are examples f ARB s that deal with and make decisins n assessment matters and matters n a tax ntice, ther than a prperty tax ntice. ARBs: are creatures f statute make decisins wrk in a legislative framewrk balance quantitative efficiency with qualitative justice. are generally prmted as - accessible frums where self representatin is pssible - nt bund by rules f evidence r curt rules f prcedure - less cncerned with legal frms and technicalities - mre fcused n merits - user friendly, cheaper and faster. Municipal Affairs Administrative Law II Page 19 f 99 Gvernment f Alberta September 2012

20 Mdule 2 Natural Justice and Prcedural Fairness The Rules f Natural Justice It is the task f an ARB t decide disputes by applying the law at the cnclusin f an adversarial dispute in accrdance with the principles and rules applying t the administratin f justice and in accrdance with a prcedure designed fr this purpse. This adversarial principle is enshrined in sectin 7 f the Canadian Charter f Rights and Freedms and als in sectin 2, as fllws: "n law f Canada shall be cnstrued r applied s as t: (e) deprive a persn f the right t a fair hearing in accrdance with the principles f fundamental justice fr the determinatin f his rights and bligatins;..." There are tw primary principles f natural justice: 1. Audi alteram partem - a Latin phrase that literally means "It shuld be heard [audiatur] als the ther party", "hear [audi] the ther side t", r "hear the alternative party t". ] Hear the ther side; hear bth sides. N man shuld be cndemned unheard. In general terms, this means that n persn shuld be judged withut a fair hearing in which each party is given the pprtunity t respnd t the evidence against them. 2. Nem iudex in causa sua - a Latin phrase that means, literally, "n-ne shuld be a judge in their wn cause." It is a principle f natural justice that n persn can judge a case in which they have an interest. The rule is very strictly applied t any appearance f a pssible bias, even if there is actually nne: "Justice must nt nly be dne, but must be seen t be dne" In prcedural terms, a decisin maker shuld nt nly act in gd faith and withut bias but als shuld grant a hearing t any persn whse interests will be affected by the exercise f that decisin befre the decisin is made. Prcedural Fairness Fremst rules f prcedural fairness required by the primary principles f natural justice in the reslutin f cmplaints are: 1. The respndent must be given full details f the accusatins. That is, the factual issues and allegatins t be examined and discussed shuld be specified in sufficient detail t enable adequate preparatin f a defence and a reasnable pprtunity f adequate refutatin. 2. Relevant dcuments used in judgment n a case must be disclsed t bth parties. 3. Decisins t admit r exclude evidence shuld be based n whether it is relevant, reliable and lgically valid, capable f being tested in sme frm. 4. There shuld nt be undue delay in hearing the matter. (If a cmplainant/respndent fails t appear n a number f ccasins the case might be determined n the evidence f the party appearing). 5. Ntice f a hearing r cnciliatin cnference shuld be served n the parties with reasnable time t enable them t prepare their case. The time and place must be clearly specified. 6. Unless there are exceptinal circumstances, d nt hear ne side in the absence f the ther. 7. Give each party the pprtunity t state their case adequately. 8. Give each party the pprtunity t crrect r cntradict any statement prejudicial t their case. 9. Witnesses, if any, shuld be examined r questined and allwed t be questined by the ther party. Adequate time shuld be allwed fr this crss-examinatin. Municipal Affairs Administrative Law II Page 20 f 99 Gvernment f Alberta September 2012

21 Mdule If there are different allegatins by different cmplainants against the same respndent in the same subject area, it may be a breach f prcedural fairness t hear the evidence r allegatins tgether rather than separately as ne may unreasnably influence the ther. It is imprtant t have a cmplete understanding f the legislatin that gverns the assessment cmplaints prcess. The legislatin and regulatins are very specific when it cmes t timelines and prcedures that the bard must fllw. There are hwever areas where the bard has discretin, and where natural justice and prcedural fairness must be cnsidered. The Requirement f Fairness in the Assessment Cmplaint Prcess Frm the previus definitins, yu can see the mst basic cncept f administrative law is that the prcesses used t reach decisins must be, and be seen t be, fair in rder t be valid. This requirement impses prcedural requirements n ARB members and staff t: 1. give persns affected by a decisin the right t be heard 2. nt be tainted by bias r the appearance f bias, and 3. have the persn(s) wh heard the case make the decisin. Whether a prcedure will be cnsidered "fair" will depend n all the circumstances f the case. Circumstances include the legislatin, the rules r prcedures and the unique situatins in the particular case. The MGA and MRAC include prcedural sectins t ensure everyne gets fair prcess during a cmplaint. The Right t Be Heard The first cncept f fairness, the right t be heard, really means that the parties t a cmplaint knw what the case t be heard is abut, have sufficient time t prepare, and a reasnable time t present their wn case and respnd t the case presented by thers in the same hearing. It is imprtant t recgnize that this cncept applies t bth the cmplainant and the respndent. In rder t ensure fairness in the cmplaint prcess, legislated timelines fr disclsure f evidence ensure sufficient time fr bth parties t be prepared fr the hearing. This requirement als prevents either party frm intrducing new matters fr the cmplaint r new evidence that places the ther at a disadvantage. A persn can be heard in a number f ways: face-t-face in persn, by telephne, by vide cnference, r in writing. There is n requirement fr a persn t attend a hearing in persn. If any persn wh is given ntice f the hearing des nt attend, the ARB must prceed t deal with the cmplaint if all persns required t be ntified were given ntice f the hearing, and n request fr a pstpnement r adjurnment was received by the bard r, if a request was received, n pstpnement r adjurnment was granted. Fairness als dictates that any party t a cmplaint has the right t cunsel r representatin. If a cmplainant is t be represented at a hearing by an agent fr a fee r ptential fee, the assessed persn r taxpayer must sign and prvide the ARB with an agent authrizatin frm. If the cmplainant is being represented by smene ther than an agent fr a fee r ptential fee, there is n requirement t prvide the agent authrizatin frm. Municipal Affairs Administrative Law II Page 21 f 99 Gvernment f Alberta September 2012

22 Mdule 2 Instructins: Exercise # 2 Fairness: Right t Be Heard i. Wrk with yur table members t answer the questins. ii. iii. iv. Representatin If applicable, use the Municipal Gvernment Act and Matters Relating t Assessment Cmplaints Regulatin t help yu answer the questins. If applicable, when yu prvide the answer, als give the Part, Divisin and sectin f the MGA r MRAC that gave yu the answer. Identify a spkespersn fr yur grup t participate in the class debrief. v. Yu have 20 minutes. A cmplainant appears at the hearing with smene t represent them at the hearing. a. Is the cmplainant entitled t have a representative (a persn t speak n their behalf) at the hearing? b. What requirements apply t having a representative at the hearing? Legislative reference: c. Wuld it be reasnable t delay a hearing s a cmplainant culd get a representative? Legislative reference: Disclsure f Evidence Prir t the Hearing Befre the hearing the cmplainant requested a cpy f the infrmatin used by the assessr t prepare the assessment but the assessr did nt prvide the infrmatin requested. a. Is the cmplainant entitled t see the infrmatin used by the assessr? Legislative reference: b. What must the ARB d if the assessr has nt prvided the infrmatin? Legislative reference: c. What must the ARB d if either party intrduces new evidence that has nt been disclsed t the ther party at the hearing? Legislative reference: Municipal Affairs Administrative Law II Page 22 f 99 Gvernment f Alberta September 2012

23 Bias Mdule 2 The secnd cncept f fairness says decisin makers need t cme t their wrk with an pen mind, willing t let the evidence and the arguments frm the parties present persuade them. They need t be unbiased. Bias is lack f neutrality n the part f the decisin maker regarding an issue t be decided. In ther wrds, the decisin maker has already made up his r her mind n the case. Naturally, parties want t knw that their presentatins and effrts have the pssibility f persuading the decisin maker and influencing the utcme f the case. An ARB shuld nt be judge in its wn case. ARB members shuld nt testify as witnesses in the prceeding ver which they preside. Reasnable parties may assume that when assessing credibility, the member will prefer his r her wn testimny ver that f ther witnesses. Tw Types f Bias The mst bvius type f bias is actual bias, such as a pecuniary interest in the decisin r a persnal assciatin with an interested party, but ARB s als must avid any appearance (perceptin) f bias. Actual and perceived biases are bth unacceptable in ARB members. Actual bias means the utcme is already predetermined. Perceptin f bias is the view f ne party befre a panel that ne r mre panel members hld a predetermined result r the high likelihd they hld a predetermined result. The curts limit this categry f bias t a reasnable apprehensin f bias, meaning ne that is bjectively and independently assessed, nt just the fear r view held by the party. A party may ask the curts t verturn a decisin made by ne r mre biased panel members. What Creates a Perceptin f Bias? Curts have identified fur cmmn situatins in which a decisin maker will be perceived t be biased: i. where the decisin maker has a material interest in the utcme f the case (e.g., the member r a persn related t the member may benefit r suffer financially because f the decisin ften called a cnflict f interest r pecuniary interest); ii. iii. iv. assciatin r prir invlvement with ne f the parties (e.g., the member is related t r clsely invlved with ne f the parties r witnesses r representatives appearing in the case); prir participatin in the prcess r a related prcess (e.g., the member previusly represented ne f the parties nw appearing befre the ARB n the same matter r made the decisin at an earlier step); attitude r cnduct that shws bias r hstility (e.g., a member wh makes statements at the hearing r in public that leave the impressin the member has made up his r her mind n the utcme befre having heard all f the parties). Municipal Affairs Administrative Law II Page 23 f 99 Gvernment f Alberta September 2012

24 Mdule 2 interest in the utcme - pecuniary r ther attitude, statements r actins tward the parties, tpic, witnesses, cunsel bias relatinship - with parties, cunsel r witnesses institutinal - previus rle in the same case Figure 1 - Categries Creating Bias The Test fr Perceptin f Bias The curts created a test t evaluate a cncern abut an appearance f bias. The test is the reasnable bystander test: Wuld a reasnable bystander infrmed f all the circumstances reasnably cnclude the decisin maker hlds a predispsed result fr the case? Regardless f whether a member is cnsciusly r uncnsciusly biased, r even unbiased, what matters is whether a reasnable, infrmed persn lking at all the facts wuld cnclude that the decisin maker culd nt act impartially. The bjectr need nt shw that the apprehended bias actually prejudiced ne f the parties r affected the result. It is sufficient fr disqualificatin if this might ccur. Even decisin makers wh are cnfident that they can act impartially, ntwithstanding the appearance f bias, must disqualify themselves frm the case. Municipal Affairs Administrative Law II Page 24 f 99 Gvernment f Alberta September 2012

25 Mdule 2 Exceptins t Bias Sme cmmn exceptins arund bias include: Tpic experts wh act as panel members. Panel members may be able t draw n their expertise (withut adding new infrmatin) t decide the case. Members f ARB s that deal with cmplex matters are ften drawn frm amng the experts in the field wh, befre their appintment, may have appeared befre the ARB n behalf f a party. The earlier prfessinal assciatin alne may nt give rise t a reasnable apprehensin f bias unless the member, befre being appinted t the ARB, had sme invlvement in the matter nw befre the ARB. Unbiased des nt mean uninfrmed. It means nly that the decisin maker shuld be pen t persuasin. Members f an ARB may read infrmatin abut the case befre the hearing and may hld tentative views n the matters at issue. If the decisin maker realizes he r she has crssed the line frm infrmed and tentative views t cnvinced, then the persn must disclse the bias and withdraw frm the case. Tips arund Bias ARB members shuld nt prejudge a case. They shuld nt make up their minds s strngly in advance that they cannt be influenced t decide anther way at the hearing. They shuld nt hld predetermined views f the issues n the matters that wuld be applied regardless f merits. Evidence f prejudgment is usually fund in statements made by ARB members. It is unwise fr ARB members t express pinins befre r during a prceeding. A statement that the utcme f a prceeding is a fregne cnclusin indicates the existence f impermissible bias. Imprper cnduct by ARB members during the hearing may indicate bias. ARB members shuld never make flippant remarks r dergatry statements abut parties r anyne else. Use f intemperate language r the display f feelings f antagnism and hstility tward a party may give rise t a reasnable apprehensin f bias against that party. An ARB member wh repeatedly interferes with crss-examinatin r takes part in the questining f witnesses t such an extent as t appear t descend int the arena may be suspected f having bias fr r against a party. A single imprpriety may nt give rise t a reasnable apprehensin f bias, but a series f incidents might d s. Bias can arise at any time during the ARB s prcessing f a case (frm the time the appeal is filed until the written decisin is sent ut). Many peple deal with the case and the parties during this prcess. Each persn dealing with the case has an bligatin t prevent an appearance f bias by the decisin makers. Bias can arise because f the decisin maker s actins utside the hearing. Panel members, whether full time r part time, frequently: interact in the cmmunity invite feedback and suggestins cnsult n changes t prcess build rapprt and relatinships Municipal Affairs Administrative Law II Page 25 f 99 Gvernment f Alberta September 2012

26 Mdule 2 What Happens When Allegatins f Bias are Made? A panel is nt t be paralyzed every time smene alleges bias. If the panel decides that a reasnable apprehensin f bias n the part f ne f its members exists, that member shuld be replaced befre the prceeding cmmences. If a panel member is replaced fr bias, then the hearing must begin again frm the start. Step 1. The panel member, befre accepting an appintment t a case panel and cntinually during the hearing, needs t determine if he r she has a bias r reasnable apprehensin f bias. The panel member must: cnsider the names f the parties, representative and witnesses fr relatinships and prir dealings. cnsider the appeal fr any financial interest in the utcme r any previus dealings in this case. cnsult the legislatin, previus cases n bias, the panel chair r legal cunsel. if an actual bias exists, step back frm the case. if a ptential bias exists, disclse the bias t the panel chair, clerk and if required the parties. The parties can waive any cncern f bias if they are infrmed. decide t either step back frm the case r infrm the parties and ask fr a waiver. If the parties say n waiver, then step back. if n bias exists, accept the appintment. Step 2. A party wh suspects bias n the part f a decisin maker must raise the cncern with the ARB in a timely way, usually in the frm f a preliminary bjectin t the hearing. If a party was aware f bias during the prceeding but failed t bject, it may nt cmplain later if the decisin ges against it. An bjectin must be stated when the bias first cmes t the party s attentin. Step 3. When an allegatin f bias is made, the panel must cnduct an inquiry and make a decisin. The member shuld examine Step 1 first. If Step 1 des nt reslve the cncern, then the panel as a grup (r a ne member panel) needs t hear frm all parties abut the bias allegatin and then make a decisin. The member alleged t have the bias can participate in the discussins and determinatin f the result, but cannt give evidence r add any infrmatin the parties d nt share. If the panel rules the member is nt biased, it may cntinue with the prceedings. An imprtant nte: The parties can waive any cncern abut bias if they are aware f the infrmatin creating the ptential bias. Once this waiver has been made, there is n right t appeal the decisin f an ARB n the same grund that was waived. It is imprtant t include this waiver as a matter discussed at the hearing in the written decisin f the bard. Municipal Affairs Administrative Law II Page 26 f 99 Gvernment f Alberta September 2012

27 Mdule 2 Exercise # 3 Bias Instructins: Questins: Bias i. Wrk in grups f tw t answer the questins. ii. iii. iv. If applicable, use the Municipal Gvernment Act and Matters Relating t Assessment Cmplaints Regulatin t help yu answer the questins. If applicable, when yu prvide the answer, als give the Part, Divisin and sectin f the MGA r MRAC that gave yu the answer. Identify a spkespersn fr yur grup t participate in the class debrief. v. Yu have 10 minutes. 1. At the beginning f the hearing, the chair intrduces each panel member and asks the parties if they have any bjectins t the panel members sitting. The cmplainant bjects t ne member f the panel. In which f these cases wuld the panel decide t cntinue with the current panel and why? a. the member ran fr municipal cuncil in the same city as the cmplainant s prperty, and the cmplainant ran against him in the recent electin but neither gt elected b. within the last 6 mnths the member has lived n the same blck as the cmplainant c. the member has recently dne cnsulting wrk fr the Respndent and has nt yet been paid Legislative reference: d. the member has made recent public statements in the lcal paper that there shuld be a strict applicatin f the wrds fair and equitable s as t reduce the ARB s wrklad. e. the panel f the ARB had decided the identical case in the previus tax year. 2. Is the fllwing statement biased? The bard s rle is t prtect the rights f taxpayers Y/N Why / Why Nt Municipal Affairs Administrative Law II Page 27 f 99 Gvernment f Alberta September 2012

28 A Decisin frm the Persn(s) Wh Heard the Case Mdule 2 The decisin f an ARB can nly be cnsidered fair when it is made by the persns wh heard the case. All panel members must agree n the cntent f the final draft f the decisin. Because there may be a dissenting vte, that vte must be included in the decisin. A decisin may be written by smene ther than the panel, but must reflect the panels reasns and ratinal fr the decisin. In this case it is imprtant t ensure that the writer des nt inject any f their pre-cnceived ntins, pinins r knwledge f the case that was nt in evidence, int the decisin. The draft f a decisin that has been written by smene ther than the panel must be apprved by all members f the panel prir t releasing the decisin. Decisin makers have t be cautius abut relying n: preset plicy that limits discretin r applies a frmula advice r feedback frm advisrs r utsiders previus decisins in ther cases (nly the decisin f the curts can be used as precedence a decisin frm anther yur r anther ARB des nt set precedence) input frm persns wh did nt hear the entire case decisin drafters r reviewers wh impse r substitute (by persuasin) their wn decisin. Best practice tips: The decisin maker(s) must have heard all the evidence and representatins frm the parties. The decisin maker(s) must cnsider all the relevant evidence and infrmatin and cannt cnsider any infrmatin nt disclsed t the parties. The decisin maker(s) must apply the legislative requirements and tests t the evidence. Legal cunsel and prfessinal staff can give advice but must leave the actual chices r decisins r cnclusins t the decisin maker(s). The decisin maker(s) must be able t explain the lgic fr the decisin. Anther persn may assist the decisin maker t write r edit a decisin dcument, after the decisin maker has made the decisin. Municipal Affairs Administrative Law II Page 28 f 99 Gvernment f Alberta September 2012

29 Mdule 2 The Big Picture fr Assessment Review Bards Legislature Municipal Gvernment Act (MGA) Matters Relating t Assessment Cmplaints Regulatins (MRAC) - establishes ARB s - identifies matters fr cmplaint - authrizes actins, prcesses and timelines - gives pwers / authrities / discretin Municipality r Municipal Affairs prepare and issue assessment ntices Assessed persns cmplain abut assessment Lcal Assessment Review Bard (LARB) Cmpsite Assessment Review Bard (CARB) Municipal Gvernment Bard (MGB) Each bard: - prcesses cmplaints - hlds hearings - makes decisins n the cmplaints - writes decisins Each bard must fllw: - the MGA and applicable regulatins - ther applicable laws (cnstitutin & charter) - natural justice/ fair prcess Municipal Affairs Administrative Law II Page 29 f 99 Gvernment f Alberta September 2012

30 Knw Yur Legislatin Mdule 2 As an ARB member, it is imprtant t knw the legislatin (the Act) and regulatins that prvide yu with the authrity r jurisdictin t perfrm yur duties. The legislatin and regulatins yu need t be familiar with are: Municipal Gvernment Act, Parts 9 thrugh 12 Matters Related t Assessment Cmplaints Regulatin, Matters Related t Assessment and Taxatin Regulatin, Ministers Guidelines, Interpretatin Act Why are there Acts and Regulatins? Legislatin reflects the plicy decisins f gvernment as a whle and tends t be brad and mre general in nature. Legislatin is difficult t change and requires gvernment scrutiny t ensure that any changes align with the plicies f the gvernment. Regulatins are usually tpic specific and detailed in nature. Regulatry changes are much easier t deal with because they may nly apply t the ministry that is respnsible fr a grup r interest that is affected by the change. Municipal Affairs Administrative Law II Page 30 f 99 Gvernment f Alberta September 2012

31 Mdule 2 Exercise # 4 Knw Yur Legislatin The first step is t becme familiar with yur wn legislatin and where t find infrmatin in that legislatin. The fllwing exercise tests yur ability t explre legislatin. Instructins: i. Wrk in grups t answer the questins. ii. iii. iv. If applicable, use the Municipal Gvernment Act and Matters Relating t Assessment Cmplaints Regulatin t help yu answer the questins. If applicable, when yu prvide the answer, als give the Part, Divisin and sectin f the MGA r MRAC that gave yu the answer. Identify a spkespersn fr yur grup t participate in the class debrief. v. Yu have 15 minutes. Questins: 1. A municipal cuncil may pass a bylaw t establish ne r mre LARBs and CARBs. T/F Legislative reference: 2. Lcal assessment review bards include bth three-member and ne-member panels. T/F Legislative reference: 3. Every bard member must be qualified t participate in a hearing. T/F Legislative reference: 4. assessed persn means? Legislative reference: 5. Taxpayer means? Legislative reference: 6. The date by which a cmplaint abut an assessment ntice can be made is? Legislative reference: Municipal Affairs Administrative Law II Page 31 f 99 Gvernment f Alberta September 2012

32 Mdule 2 The Cncept f Jurisdictin What is Jurisdictin? Jurisdictin is the right, pwer, r authrity t make legal decisins within the limits f the enabling legislatin. All acts and decisins f gvernment must be funded n legal authrity. An assessment review bard finds its legal authrity r jurisdictin within the MGA and MRAC. The MGA and MRAC prvide the legal authrity t create an assessment review bard and define each bard s jurisdictin. A bard s jurisdictin includes: wh it can make decisins abut an "assessed persn" and/r a "taxpayer" what matters it can decide what remedies it can prvide what prcedures it must fllw what timelines apply As mentined earlier, the MGA and MRAC are quite specific n sme f these jurisdictinal matters, but als allw discretin t the bard t determine ther matters. ARB s perate within: (1) statutry bundaries (2) natural justice (3) a standard f crrectness and reasnableness fr decisins ARBs that perate utside (1) - (3) are likely making an errr in law r jurisdictin. The Curts may let the ARB decisin stand (defer) if: Enabling statute cntains a privative clause (sectins f law, typically right in the statutes that creates an ARB, and that states all, r select decisins f that ARB are final and cnclusive and nt subject t judicial review.) Decisin meets the standard f crrectness and reasnableness. This will be discussed further in the Decisin Making cmpnent f the curse. Municipal Affairs Administrative Law II Page 32 f 99 Gvernment f Alberta September 2012

33 Mdule 2 When a cmplaint is filed, it is generally the ARB clerk that determines which bard has jurisdictin t hear the cmplaint. It is imprtant that the clerk has an understanding f the varius prperty types and which bard has jurisdictin t hear them. If the clerk is unable t decide which bard will hear a matter, the issue shuld be brught frward t a panel member t review and decide which bard has jurisdictin t hear the case. Linear prperty and equalized assessment s. 488(1) (a) & (b) 4 r mre dwelling units, nn-res (cmmercial and industrial), and machinery and equipment s (2) 3 r fewer dwelling units, farmland, and a tax ntice ther than a prperty tax ntice s (1) MGB CARB LARB CQB A chart fr dealing with ARB Cmplaints by Ntice Type is included in the Appendix f this manual. Figure 2 Jurisdictin f ARB s Imprtant nte: Generally the ARB has jurisdictin t hear the case unless smene brings smething t the panel s attentin r the panel ntices smething t questin its jurisdictin. Mst ften this means: a party raises an bjectin, r the clerk r the panel ntices the file cntains sme infrmatin that raises a cncern abut jurisdictin, r smene presents evidence in the hearing which raises a cncern abut jurisdictin. Municipal Affairs Administrative Law II Page 33 f 99 Gvernment f Alberta September 2012

34 Mdule 2 Exercise # 5 Jurisdictin The next step is t becme familiar with the jurisdictin f yur assessment review bard. Instructins: i. Wrk as a grup t answer the questins. ii. iii. iv. If applicable, use the Municipal Gvernment Act and Matters Relating t Assessment Cmplaints Regulatin t help yu answer the questins. If applicable, when yu prvide the answer, als give the sectin f the MGA r MRAC that gave yu the answer. Identify a spkespersn fr yur grup t participate in the class debrief. Questins: v. Yu have 30 minutes. 1. A cmplaint is invalid if it des nt cntain certain infrmatin set ut in the MGA and MRAC. T/F Legislative reference: 2. A cmplaint must be filed within a set time limit r the panel must dismiss it. T/F Legislative reference: 3. The cmplainant filed their residential cmplaint using a 15 page letter, with a large envelpe f dcuments and pictures t g with the letter. The cmplaint cntains all the infrmatin required n the cmplaint frm but is nt n the frm. a. Des the panel have jurisdictin t hear the case? Y/N Legislative reference: b. Is the cmplaint valid? Y/N Legislative reference: Why r why nt? _ 4. A cmplaint abut a business tax ntice is received by the clerk f the assessment review bard. a. Which bard wuld have jurisdictin t hear the cmplaint? Legislative reference: 5. A cmplaint is filed by a farmer wh perates a small greenhuse and cannery n his prperty. a. Which bard wuld have jurisdictin t hear the cmplaint? Legislative reference: Municipal Affairs Administrative Law II Page 34 f 99 Gvernment f Alberta September 2012

35 Mdule 2 6. Befre the LARB hearing begins, yu are reading the disclsure filed by bth parties and see that the cmplainant intends t bring six witnesses. Three witnesses are ther hme wners wh will testify abut their wn prperty assessments. The furth witness is the president f the Citizens Against Taxing Senirs (CATS) wh will testify that senirs are vertaxed. The fifth witness is an expert prperty appraiser wh has prepared a written reprt n the market value f the cmplainants prperty. The sixth witness is a prperty manager wh will testify abut the incme frm, and csts f maintaining his fur-plex prperty. a. Des the infrmatin abut cmplainant s witnesses raise any jurisdictinal cncerns fr yu? If s, what is the cncern? b. What shuld yu d? _ Y/N Municipal Affairs Administrative Law II Page 35 f 99 Gvernment f Alberta September 2012

36 Mdule 2 The Cncept f Hearing Style Earlier in the Rules f Natural Justice sectin, the term adversarial dispute was used. Hearing style refers t hw the ARB characterizes the type f prcess the ARB uses t deal with cases.. The ARB s hearing style is imprtant because it helps the panel members knw hw t act. Hw t act includes when and what type f questins the panel members can ask and includes whether the panel can ask fr evidence r g and get evidence that fills in gaps r makes it easier r mre cmfrtable fr the panel t decide the case. Understanding the hearing style f the ARB helps the parties knw hw t present their cases. There are three main types f hearing styles: Prsecutrial, Adversarial and Inquisitrial. Prsecutrial Style Like a criminal trial. Invlves an allegatin that smene has brken the law r cmmitted an act cntrary t the law r a cde f cnduct. Characterized by tw r mre parties - each representing an ppsing view f the case, interacting with the panel. One party acts as the investigating fficer/prsecutr fr the rganizatin. The prsecutr nrmally ges first t prve an alleged breach f cnduct r standards and the applicable penalty. If the prsecutr des nt bring the required infrmatin r sufficient infrmatin in a case, that prsecutr risks the panel nt uphlding the breach. The panel will act like a judge in a trial and let the parties make their wn cases as they see fit; the panel will nt act as an advcate fr any party. A panel member will ask clarificatin questins, but will nt ask questins r seek infrmatin that will fill in gaps in the case r prvide a fuller stry than the parties want t present. The panel makes its decisin using nly the infrmatin presented by the parties. Inquisitrial Style Like a public inquiry. Characterized by a single party r smetimes tw parties interacting with the panel. The panel has the bligatin t satisfy itself f all statutry requirements and will therefre take n the rle f questining the party/parties as much as necessary t btain infrmatin. The panel has the pwer t btain additinal infrmatin nt prduced in the hearing. The panel will satisfy itself f the statutry requirements by gathering as much infrmatin as it needs and will als apply the principles f fair prcess. Adversarial Style Like a civil trial. Characterized by tw r mre parties - each representing an ppsing view f the case, interacting with the panel. If the party des nt bring the required infrmatin r sufficient infrmatin in a case, that party risks the panel ruling against the party. The panel will act like a judge in a trial and let the parties make their wn cases as they see fit; the panel will nt act as an advcate fr any party. A panel member will ask clarificatin questins, but will nt ask questins r seek infrmatin that will fill in gaps in the case r prvide a fuller stry than the parties want t present. Such inquisitrial questins can lead t the intrductin f new evidence, which may put either party at a disadvantage, ges against the right t knw the case t be met prir t the hearing and lastly, the bard must nt hear any evidence that was nt disclsed prir t the hearing. The panel makes its decisin using nly the infrmatin presented by the parties. Assessment review bards use the adversarial hearing style. Their decisins are based slely n the evidence presented by the parties t the cmplaint. Municipal Affairs Administrative Law II Page 36 f 99 Gvernment f Alberta September 2012

37 Mdule 2 The Cncept f Decisins The parties cme t a tribunal t get a decisin. The decisin usually refers t the final decisin n the merits f the cmplaint, applicatin r appeal. Tribunals make decisins abut individual rights, benefits, entitlements, disputes between parties and many ther matters. Examples f decisins that a gvernment, r its tribunals, may take include decisins abut assessment and taxatin, the implementatin r cancellatin f prgrams, determinatin f entitlement t benefits, authrizatins fr indemnificatin r payment f cmpensatin, the issuance r revcatin f licenses r permits, etc. Fr assessment and sme tax related matters, the utcme f the lcal assessment review bard, cmpsite assessment review bard and Municipal Gvernment Bard prcesses are decisins. Tribunal decisins are usually categrized as plicy, legislative, administrative r quasi-judicial. Quasijudicial decisins are thse decisins made in a curt-like manner and usually cncern the rights f an individual. Generally, the curts impse a higher prcedural requirement n the making f administrative and quasi-judicial decisins than they d n plicy and legislative decisins. Within the prcess fr handling the case, the tribunal, r persns legitimately acting n its behalf, will make many ther determinatins that are ften als called decisins. These determinatins affect the prcess, when parties can r must take steps, wh must take actin, wh can appear at a hearing, jurisdictin, prcedural bjectins r applicatins, and evidentiary r prcedural questins during the hearing. Determinatins like these als affect the legitimacy and validity f the final decisin n the merits. Challenges t Decisins The acts r decisins f gvernment fficials may be challenged by means f an applicatin t the curt t verturn r quash a decisin (called judicial review r an appeal). Legislatin (here, the Municipal Gvernment Act) and previus curt decisins establish the criteria which the curts will use when they review the exercise f gvernment decisin-making authrity. Peple challenge tribunal decisins fr a variety f reasns including: nt agreeing with the result r the reasns feeling they did nt get a fair hearing feeling the panel was biased believing the panel did nt cnsider all the relevant evidence r relied n irrelevant evidence believing the panel did nt crrectly apply r interpret the legislatin. Curt Review f Decisins In 2008 the Supreme Curt f Canada altered the histrical tests fr reviewing the decisins f administrative tribunals. In a case called Dunsmuir v. New Brunswick, 2008 SCC 9, the Curt eliminated the histrical three tests f review and cnfirmed tw tests ging frward crrectness and reasnableness. With this decisin and several decisins which fllw, the curts began t give sme valuable insights int what the curts require and expect frm tribunal decisins t make the task f reviewing the decisin mre manageable. The curt in Dunsmuir fcussed n the reasns fr decisin as ne f the single mst imprtant aspect f the decisin, after the utcme. Reasns prvide the transparent, intelligent and lgical justificatin fr the findings, cnclusins and utcmes reached by the panel; reasns help the Municipal Affairs Administrative Law II Page 37 f 99 Gvernment f Alberta September 2012

38 Mdule 2 curt understand and bserve the decisin making prcess used by the panel. Reasns must be able t withstand sme scrutiny by the curt. Under the Municipal Gvernment Act, all appeals frm assessment review bard decisins g t the Curt f Queen s Bench. Sectin 470(1) f the MGA utlines: wh can appeal time lines fr appeal grunds fr appeal hw t get infrmatin n the appeal the requirement f the tribunal t keep an fficial recrd. what the curt will cnsider when dealing with an appeal what the curt can rder in an appeal. Sectin f the MGA, clarifies the curt s rle n assessment decisins. The curt will review the ARB decisin n the face f the recrd, meaning using the written dcuments frm the ARB hearing nly. The parties will nt receive a new hearing where they can call new evidence. Municipal Affairs Administrative Law II Page 38 f 99 Gvernment f Alberta September 2012

39 Mdule 3 Mdule 3 Assessment Review Bard Hearings In this mdule we will take a lk at hw administrative law cmes tgether with the legislatin that guides an ARB. This mdule prvides an verview f ARB prcedures, including the rder f prceedings and questins, rules f evidence, the rle f witnesses, and case arguments. Participants learn abut presiding skills, fact finding, legal cunsel, nte taking, and cnfidential infrmatin. Every ARB has its wn unique hearing prcedures. Hwever, parties (agent s r legal cunsel) wh appear befre multiple bards prefer t see cnsistency and predictability in these prceedings. Hearings need t be understandable, bjective and prcedurally fair t the party s. The assessment cmplaints prcess, if fllwed, prvides a fair ARB members must demnstrate that they are impartial, cmpetent and qualified t hear the matters befre them. In Mdule 1 yu learned abut cnduct, cllabratin and hw establishing a cde f cnduct and missin statement culd prvide a slid fundatin fr yur bard t guide itself. Likewise, established prcedures that cmplement yur cde f cnduct, will help ensure an rderly and smth running ARB. T help, a basic checklist fr the bard t fllw is recmmended. Overview - A Typical Hearing Prcess 1. Call t rder and welcme by the Chair 2. Intrductins f the panel, parties and ther persns in the rm i. name, rganizatin and rle in the hearing (agent, representative, witness, bserver etc) 3. Opening cmments by the Chair i. rle and cmpsitin f the panel ii. iii. iv. rle f the parties purpse f this hearing issues surrunding the matters in the hearing v. legislative sectin(s) that applies vi. vii. viii. ix. hw the hearing will prceed what happens when, wh ges in what rder, time, breaks, hearing being recrded r nt, whether the panel will interact with the parties in breaks, whether the panel will ask questins, hw the parties can get prcess assistance during the hearing, whether the panel will give a decisin tday frmality in the hearing rules f evidence d nt apply, witnesses may be swrn r affirmed, hw t address the panel and members, curtesy and respect in the hearing any challenges n bias? any bjectins t the panel s authrity time, prcess, subject matter? x. ready t prceed? 4. Evidence frm the parties and experts i. start with dcuments filed / disclsed befre the hearing (the evidence) ii. iii. review each dcument and give it a number r identify it fr the recrd. explain the MGA and MRAC sectins dealing with new evidence. (evidence nt disclsed prir t the hearing must nt be heard by the bard) Municipal Affairs Administrative Law II Page 39 f 99 Gvernment f Alberta September 2012

40 iv. Mdule 3 restate the matters t be decided, frm the cmplaint, which creates the relevant base fr the evidence and enables the panel t mre easily deal with applicatins r bjectins during the hearing abut new dcuments r dcuments nt prvided when requested r within time v. explain ne witness will testify at a time and hw each witness is participating in the hearing vi. vii. viii. ix. explain if witnesses will be swrn r affirmed t tell the truth by the chair r clerk (the witness has the chice f being swrn r affirmed) explain which party calls witnesses first explain what happens fr each witness direct examinatin, crss examinatin, redirect examinatin, clarificatin questins frm the panel tell the parties if questins t the witness are asked directly t the witness r thrugh the chair x. cnfirm with the parties if witnesses will be lcated utside the hearing rm until they testify (excluded until they testify) xi. xii. xiii. xiv. witnesses t be given cpies f all the marked dcuments (exhibits) by staff s they can refer t a dcument if asked questins abut it witnesses need t speak clearly and slw enugh fr the panel t take ntes and t help the recrding if required expert witnesses t be questined first n their qualificatins and a decisin made by the panel if the witness is an expert and in what field r tpic; experts then questined n the cntent f their evidence deal with each witness and then thank them fr attending 5. Arguments / Submissins by the parties i. Chair explains what the prcess invlves wh ges first, secnd etc; if the panel will ask questins; if the parties can debate between them; any time limits n the presentatin; whether parties shuld read frm their briefs r cases ii. iii. each party presents their argument panel asks questins t the parties 6. Clsing Cmments by the Chair i. thank everyne fr participating ii. iii. iv. 7. Adjurnment cnfirm the issues surrunding the matters the panel will be deciding using the evidence and arguments presented when and hw the decisin will be sent wh t cntact after the hearing staff, nt panel v. firmly clse the hearing. Municipal Affairs Administrative Law II Page 40 f 99 Gvernment f Alberta September 2012

41 Mdule 3 Tips n hearings Scripts can greatly assist the panel chair t handle pening and clsing cmments. Cards can prvide ready access t a typical ath r affirmatin. Checklists can help the chair and staff deal with bjectins, cncerns r applicatins that ccur during the hearing. Nte: Be sure that scripts, cards r checklists d nt restrict yur gd judgment! The ARB Hearing This sectin has been prepared fr infrmatinal and educatinal purpses. It is nt a substitute fr any prfessinal r legal advice. Befre acting n this infrmatin, readers shuld cnsult their wn statutes and plicies, r seek ut the relevant prfessinal assistance. 1. Panel Member Preparatin The panel will receive infrmatin frm the clerk that was submitted by the cmplainant and the respndent in their disclsure. This will include dcuments, appraisals, cmparables and argument. Often, nly sme f this infrmatin will be imprtant fr yur decisin. Yu will need t rganize this infrmatin int a lgical framewrk and filter ut the useful frm the irrelevant. It is helpful, befre the hearing, t d sme brief preparatin. Yu must guard against pre-judgment! D nt try t frm yur wn view f what the arguments shuld be. Review the available dcuments t get riented with the matters and issues that are likely t be raised. It is imprtant t understand the difference between the matters fr the cmplaint as specified in sectin 460(5) f the MGA and identified n the cmplaint frm, and the issues that arise frm thse matters that are presented as evidence. An issue is a pint in questin that is in dispute with respect t r relative t the identified matter. A bard cannt hear any evidence with respect t a matter that has nt been identified in Sectin 4 f the cmplaint frm. See; sectin 2(1)(a) f MRAC and sectin 460(7) f the MGA. This is an pprtunity t review the statutry legislatin invlved and any imprtant plicies related t the case. Yu can begin t cnstruct a mental utline f the matter(s) under cmplaint and the issues with respect t thse matter(s). This will help yu listen effectively and appreciate the significance f what is being said during the hearing. 2. Objectins t Jurisdictin r Prcedure Objectins r challenges t an ARB s jurisdictin r prcedures usually ccur befre a hearing starts but a mtin challenging the jurisdictin f the ARB r bjecting t a prcedure may be brught at any time. If a challenge t jurisdictin r prcedure is raised by either party prir t the merit hearing, prper ntice must be given t the ther parties, and a preliminary hearing may be required t deal with the matter. The challenge shuld carefully set ut the grunds n which the mving party intends t rely. Examples f challenges t jurisdictin r prcedure might include: insufficient r inadequate ntice f the hearing; failure t cmply with any applicable legislatin; failure t cmply with prcedural rder; alleged bias; the matter befre the ARB is beynd the pwers prvided in its enabling act; a party has applied t a curt t have the prceedings stpped; Municipal Affairs Administrative Law II Page 41 f 99 Gvernment f Alberta September 2012

42 Mdule 3 smene did nt d what they were t d r within the timelines specified; parties did nt get the infrmatin required t prepare; r smene needs an adjurnment. Tips fr Dealing with Objectins Try t have any prcedural r jurisdictinal bjectins dealt with befre the hearing s the merits f the hearing prceed mre smthly. Sme administrative matters may need t be dealt with prir t a merit hearing date being set. This is knwn as a preliminary hearing. All parties need t be able t prvide their cmments n the questin. Smetimes a party will need extra time t prepare its respnse. This might require a pstpnement f the hearing. The panel will need t decide if it has jurisdictin befre it can cntinue t decide the matters. Smetimes the panel can decide immediately and ther times it may need t pstpne r adjurn the hearing until the panel can get legal advice n the matter. This is particularly s when the mtin invlves cmplex questins f law. Staff can assist by attempting t reveal any jurisdictinal r prcedural questins well befre the hearing and assisting the parties t exchange all the infrmatin abut the questins. 3. Adjurnments and Pstpnements Realistically, hearings cannt always be expected t prceed and be cmpleted at the first sitting. Frm time t time hearings must be pstpned r adjurned. The term pstpnement refers t rescheduling a hearing which has nt yet started, but fr which a date fr cmmencement has been set. The term adjurnment refers t stpping a hearing that is in prgress and rescheduling a future date fr the cntinuatin f the hearing. Only in exceptinal circumstances as determined by an assessment review bard may an adjurnment r pstpnement be granted. Parties must request an adjurnment r pstpnement in writing and, whenever pssible, the request shuld be made in advance. The bard shuld canvass the views f the ther participants befre making a decisin with respect t granting a pstpnement r adjurnment. If an ARB grants an adjurnment r pstpnement, they are still subject t the timelines specified in sectin 468 f the MGA t cmplete the hearing and render their decisin. The CARB and the MGB have the statutry authrity under sectin 52 f MRAC t award csts against a participant when they request an adjurnment r pstpnement that culd reasnably have been anticipated, if it results in incnvenience r increased expense t any ther participant. When cnsidering whether r nt t grant a pstpnement r adjurnment, an ARB must cnsider its legislative authrity, the cmplexity f the matter at hand, the amunt f time already affrded the parties fr the preparatin f the case, the effrts f the parties t be present at the hearing, whether r nt there have been any previus pstpnements r adjurnments, and any ther relevant factrs. See: sectin 15 MRAC. Questin s fr Discussin: 1. Wuld the bard pstpne a hearing if ne f the parties failed t shw up? a. Why / Why nt? b. Is there legislatin t deal with this? 2. What wuld be cnsidered an exceptinal circumstance? Municipal Affairs Administrative Law II Page 42 f 99 Gvernment f Alberta September 2012

43 Mdule 3 4. Fairness r Efficiency All matters cncerning prcessing, scheduling, and hearing a case invlve a balancing f the demands f fairness and efficiency. Hard and fast guidelines are nt pssible, as each case and each request must be lked at n its wn merits. It is imprtant, hwever, t bear in mind that cmmn sense lies at the rt f any decisin in these matters. Ensuring that the parties are prvided with a fair hearing in accrdance with the principles f natural justice is, f curse, the paramunt cncern f any ARB, but efficiency is als essential t the prper cnduct f the ARB s affairs. If cases are allwed t drag n withut prper reasn, the verall quality f the ARB s wrk is diminished. 5. Access t Infrmatin and Disclsure Parties need access t infrmatin befre the hearing s they can cme prepared t make their presentatins at the hearing. Prper prehearing disclsure makes the hearing mre fcused, makes the hearing shrter and helps t prevent r avid r lessen bjectins and applicatins abut prcess, jurisdictin and evidence. The MGA and MRAC dictate disclsure bligatins and time limits. Panels may have t decide preliminary matters abut disclsure and give directins. In sme cases, panels may awards csts fr a party s failure t cmply r fr a party s actins that cntribute t an extended hearing r unnecessary hearing. See sectin 52 f MRAC. Pre-Hearing Filing r Disclsure f Ptential Evidence Once a cmplaint has been filed, a frmal prcess exists fr the exchange f infrmatin between the cmplainant and the respndent befre the hearing. This exchange f infrmatin, therwise knwn as disclsure, includes the fllwing: all relevant facts supprting the matters fr the cmplaint, all dcumentary evidence t be presented at the hearing, a list f witnesses wh will give evidence at the hearing, a summary f testimnial evidence, the legislative grunds and reasn fr the cmplaint, and relevant case law and any ther infrmatin the cmplainant cnsiders relevant. All parties have an bligatin and are accuntable fr prviding cmplete disclsure within the timeframes set ut in MRAC. The parties t a hearing must nt be ambushed by the intrductin f evidence f which they were nt aware. An assessment review bard must nt hear any evidence that has nt been prvided t the ther party in accrdance with the legislatin, r that has nt been disclsed within the timelines. See sectin s 5, 9, 22, 34, 40 and 46 f MRAC. Access t Infrmatin MGA sectins 294, 295, 299 and 300 Sectins 294 and 295 f the MGA refer t an assessr s right t enter n and inspect prperty, and request infrmatin frm the prperty wner in rder t prepare the assessment n that prperty. Sectins 299 and 300 f the MGA refers t the assessed persns right t see sufficient infrmatin frm the assessr t demnstrate hw the assessment was prepared, r btain summary infrmatin abut ther similar prperties (used fr cmparisn). Imprved access t infrmatin and cmplete data fr all parties prmtes penness and transparency, leads t greater cnfidence in assessment quality and will reduce the number f assessment cmplaints filed. Municipal Affairs Administrative Law II Page 43 f 99 Gvernment f Alberta September 2012

44 Mdule 3 It is imprtant t understand that access t infrmatin requests are available t either party at any time f the year and are nt part f the frmal cmplaint prcess. There are legislated bligatins fr a municipality t prvide infrmatin t assessed persns within specific timelines. If infrmatin requested under sectin 299 and/r 300 was nt prvided by the municipality, a request t the Minister fr a cmpliance review under sectin 27.6 f MRAT is required t deal with this matter. Althugh these infrmatin requests fall utside the cmplaint prcess, they may have an impact n the jurisdictin f an ARB. The Assessment Review Bard Cmplaint frm, sectin 4, cntains a statement where the cmplainant can indicate if they have requested infrmatin under sectin 299 r 300, and whether it was prvided t them. If an assessed persn has requested infrmatin under sectin 299 r 300 and it was nt prvided, it cannt be used as evidence by the assessr in a hearing and must nt be heard by the bard. This is cnsidered a failure t disclse and is cvered in MRAC under sectins 5 and 9, 22, 34, 40 and 46. If an assessr has requested infrmatin under sectin 295, and that infrmatin was nt prvided within the specified timeline, the assessed persn cannt file a cmplaint against that assessment. See sectin 295(4) f the MGA. Prir t the hearing, a party may make a request t the bard fr a pstpnement until infrmatin can be received r prvided depending n the cmplexity f the infrmatin. This is an administrative matter that the bard must decide n, keeping in mind the legislated requirements and natural justice. If the issue f failure t disclse arises at the hearing, the bard may, after hearing arguments, determine that: the prductin f a dcument r witness is required make a crrect decisin. See sectin 465(1) f the MGA a pstpnement r adjurnment is required t prvide time fr the prductin f dcuments (sectin 15(1) f MRAC), and fair disclsure timelines fr all parties (sectin 6, 10, 23, 3541, 47f MRAC). they will prceed with the hearing based nly n the evidence that has been disclsed (sectins 5 and 9, 22, 34, 40 and 46 f MRAC). Tips fr panel members when dealing with access t infrmatin requests and disclsure bligatins Questin s fr Discussin: determine all legislative requirements and timelines deal with all requests r applicatins in a timely way wh can make the decisins (ne member r three member panel) btain sufficient infrmatin t make prcedural decisins as required; ensure fair prcess t all parties when dealing with requests r bjectins befre the hearing, review all actins and times required and the actins taken t see what is utstanding this may prmpt a pstpnement r adjurnment f the hearing cnsider the relevance f the infrmatin that is missing cnsider and use, as apprpriate, the pwer t award csts 1. Under what circumstances wuld a bard pstpne a hearing? 2. Under what circumstances wuld a bard prceed with the hearing? 3. Under what circumstances culd award csts? Municipal Affairs Administrative Law II Page 44 f 99 Gvernment f Alberta September 2012

45 6. Evidence Mdule 3 Evidence is a cmplex subject and this sectin gives nly an intrductin t the cncepts f disclsure, admissibility, relevance, hearsay, and weight f evidence. Evidence Is Evidence includes all the means f prving r disprving any matter, fr example, ral testimny f witnesses and experts, written recrds, demnstratins, pictures, bjects, reprts, maps, vides, auditapes, letters, ntes, diaries, cmputer r data recrds, etc. The term evidence des nt include arguments n behalf f the parties (smetimes called submissins r representatins) which are made t persuade the decisin maker t take a certain view f the evidence. The parties bring the evidence t supprt their cases and t demnstrate t the panel that they meet the legislative requirements fr a decisin in their favur. The panel uses the evidence t determine whether the party has met the bligatin t prve its case. Has the party prven what it must prve t win the case r btain the result it seeks? The panel uses nly relevant evidence and in decisin making, weighs that evidence by determining the value f the evidence in the decisin making task. The dcuments, witness names, witness statements and ther items disclsed by a party befre the hearing are prpsed evidence nly. At the hearing the panel may refuse t accept r admit sme f the prpsed evidence and then it will nt be used t make the decisin. This cncept reinfrces the ntin that a panel can read infrmatin befre a hearing, but must keep n pen mind because the infrmatin may nt be used after the hearing. Nt Bund by Strict Rules f Evidence ARB s are nt bund by all the legal and technical rules f evidence that wuld apply in a curt f law. Sme statutes expressly prvide that the ARB has the discretin t accept any evidence and infrmatin that it sees fit, whether r nt the evidence is admissible in a curt f law. The imprtant factr is fr the ARB t fllw the legislative requirements and if pssible, t btain all f the infrmatin it needs t make a reasned, ratinal decisin. Hwever, it is helpful t have sme understanding f the standards that curts apply when cnsidering evidence, as they can serve as a useful guide in determining the weight r imprtance an ARB shuld give t a particular piece f evidence. Tw key cncepts that universally apply t evidence in ARB hearings are: 1. relevance, and 2. reliability. Relevance refers t whether the evidence, assuming it is true, can assist the panel in answering the matters befre it as listed n the cmplaint. This is the cmmn test fr admitting r allwing evidence int the hearing prcess. After the hearing, the panel decides the reliability f the evidence and gives it weight r pririty amng the evidence when making a decisin. The weight f the evidence refers t hw much reliance the panel shuld place n the evidence in cming t a cnclusin in the case. Municipal Affairs Administrative Law II Page 45 f 99 Gvernment f Alberta September 2012

46 Mdule 3 A panel ften finds it difficult t gauge the relevance and reliability f a particular piece f evidence until all the evidence has been heard. Whenever the panel makes decisins abut admissibility f evidence r weight f evidence, it must be prepared t prvide the reasns fr its determinatin. Admitting Evidence Evidence is admitted during the hearing. An ARB may accept all kinds f evidence during the hearing. Often it is easier and faster in the hearing t accept the evidence and then determine its relevancy and weight after the hearing. Generally, all evidence ffered t a panel by the parties may be admitted, that is, accepted fr cnsideratin. Evidence is admissible if it is relevant t the matters in the case and there is n law r custm preventing it frm being received. When the panel admits evidence, it r the staff shuld mark the evidence as part f the fficial recrd. Generally ARB s mark witnesses by recrding their names and administering the ath/affirmatin befre hearing the witness testimny. Other evidence (whatever it is) can be marked by giving it the next sequential number in the hearing (exhibit 1, 2, 3 etc). The clerk keeps the fficial list f exhibits/evidence and the names f all witnesses. Hw t Mark an Exhibit: File #: Exhibit N. Date: Entered by: (name f party r by agreement) Relevance f Evidence Generally we understand that evidence is relevant if it can assist the panel in sme way t answer the matters r issues befre it. Evidence assists the panel t reach lgical cnclusins n the issues. Relevance cannt be assessed in islatin. It is always necessary t cnsider the purpse fr which the evidence is t be intrduced. If a party cannt prvide a gd explanatin as t why the panel shuld accept a piece f evidence that n its face seems uncnnected with the matters t be reslved, the evidence shuld nt be accepted. Hwever, a piece f evidence may, at first, appear t be irrelevant. In the cntext f the entire hearing, it may turn ut t be relevant, althugh f lw prbative value. Care shuld therefre be taken befre rejecting any evidence. A party might be allwed t submit certain evidence at a hearing, but this des nt mean that the panel has cnclusively decided that the evidence is relevant. If, after hearing all the evidence, the panel decides that the evidence in questin is nt relevant, the reasn shuld be stated and the evidence ignred in decisin making. The tendency generally is t admit evidence and t decide later what weight, if any, shuld be assigned t the evidence. Weight f Evidence Weight f the evidence refers t hw strng the inferences r cnclusins are that can be drawn frm the evidence. The strnger the inferences, the higher the weight r value in decisin making. In ther wrds, hw valuable is ne piece f evidence t prve the facts cmpared t anther piece f evidence. Municipal Affairs Administrative Law II Page 46 f 99 Gvernment f Alberta September 2012

47 Mdule 3 Weight must be viewed in the cntext f the whle case. Decisins regarding weight can usually nly be made in decisin making, nce all the evidence has been heard. Mre f this is presented in decisin making where the panel makes findings f fact. One Cmmn Exceptin in ARB Hearings - Hearsay Evidence Hearsay evidence cnsists f written r ral statements made by persns wh are nt testifying at the hearing, which are presented as prf f the truth f thse statements, i.e., hearsay is a secnd-hand accunt f events. Fr example, suppse that Mr. X is testifying abut a mtr vehicle accident and states that he did nt see the accident, but he heard Ms. Y say that the traffic light was red at the time f the accident. The purpse fr which this evidence is ffered is vital t its classificatin as hearsay r nn-hearsay. Mr. X wuld be giving direct evidence (nn-hearsay) f the fact that Ms. Y made such a statement. He wuld be giving nly secnd-hand (hearsay) evidence as t the truth f whether the light was in fact red. One prblem with allwing the testimny f Mr. X t be admitted at a hearing is that Ms. Y was nt under ath when she made the statement, and testimny under ath, ne f the crnerstnes f ur judicial system, is usually cnsidered necessary in rder t ensure that statements are made hnestly. A greater prblem with Mr. X s testimny is that Ms. Y is nt available t be crss-examined n her statement. Under crss-examinatin, Ms. Y culd be questined n whether she was in a gd physical lcatin fr viewing the scene f the accident, whether she had gd eyesight, whether she was sber at the time, whether she had any particular self-interest in making the statement, r whether she might therwise be biased in her view f events. A thrugh crss-examinatin wuld help in determining the prbative value f the testimny. Additinal reasns fr scepticism r reluctance in accepting hearsay evidence are that: the farther remved a statement is frm its surce, the less reliable it becmes; fraud may be mre easily perpetrated; decisins based n secnd-hand evidence may nt be as gd as decisins based nly n the best evidence; and hearings may be unduly lengthened if every pssible piece f evidence is intrduced. ARB s generally refuse t accept hearsay evidence, althugh they make exceptins. An ARB may accept hearsay evidence, but in s ding it shuld remain aware f the limitatins f such evidence. Despite the prblems with hearsay evidence, the curts have nt abslutely excluded hearsay evidence at trial and have develped many exceptins t the general rule against accepting hearsay evidence. The exceptins have develped in a haphazard way as needed t slve particular prblems and have usually arisen when the persn making the statement is nt available t testify and the statement is the nly cgent evidence available. Affidavits are hearsay evidence. Sme f the exceptins recgnized by curts t the rule against admitting hearsay evidence include: declaratins against a persn s wn interest (n the basis that peple are nt likely t make untrue statements that harm themselves); declaratins made in the curse f a business duty (where the recrds were made at the time and there was n mtive fr fabricatins); and statements made in public dcuments (because rdinarily public fficials will be hnest and careful in preparing dcuments intended t be retained and kept as a public recrd, available at all times fr inspectin). Municipal Affairs Administrative Law II Page 47 f 99 Gvernment f Alberta September 2012

48 Mdule 3 These are nly a few examples f a very detailed and cmplex area f the law. In accepting hearsay evidence, curts recgnize that secnd-hand evidence can at times have sufficient inherent trustwrthiness t be f value. This is especially true in circumstances where it wuld nt rdinarily be in the speaker r writer s interest t make a false statement. The pint here is that hearsay evidence may be very reliable r very unreliable depending n the circumstances f a particular case. Therefre, evidence shuld nt autmatically be rejected as having n value simply because it is hearsay in nature. Affidavits An affidavit is a swrn written statement by a persn that can prvide infrmatin: Based n persnal knwledge and bservatin Based n belief that infrmatin prvided t the persn by anther is true Cntained in dcuments which are attached t the affidavit. Essentially, an affidavit is the direct examinatin prtin f a witness testimny, put n paper. It is the infrmatin which the witness chses, in his r her wn wrds, t tell. It des nt necessarily cntain all the infrmatin that the witness knws. The curts are generally reluctant t admit affidavit evidence t prve facts ther than frmal r nncntentius pints. Hwever, it may be allwed if there are sufficient reasns. 6. The Rle f Witnesses Witnesses participate in hearings t prvide infrmatin t the panel that can assist the panel in its decisin making. Parties determine which witnesses t call in supprt f their cases and determine the rder the witnesses appear. Generally a party calls the witnesses in a way that makes mst sense t hw they present their case. This rder may r may nt make sense t the panel at the utset. Types f Witnesses A factual witness, which is mst f the witnesses in mst hearings, can tell the panel abut what the witness knws r has seen r heard r f actins r events in the witness has participated. This witness shuld nt give pinins and cannt speak abut things beynd the witness s persnal knwledge r invlvement. An expert witness may give evidence frm persnal knwledge r invlvement, but frequently prvides the panel with an additinal level f expertise n a subject matter in the hearing. This witness can als give a prfessinal pinin, which the panel can assess and adpt as its wn. Witnesses can expect questins abut: their name, rle, rganizatin general backgrund may include educatin, experience, length f service general questins leading t the cntext f the specific infrmatin the witness has details f the specific infrmatin held by the witness cntrasting versins f events frm ther witnesses clarificatin f infrmatin given by them authring r receiving dcuments. Municipal Affairs Administrative Law II Page 48 f 99 Gvernment f Alberta September 2012

49 Expert Witnesses Opinins frm experts are mre reliable than ther pinins, and curts will allw experts t give pinins n technical matters that invlve the area f their special expertise. Mdule 3 ARB s may cnsider experts credentials, educatin, and experience in weighing the expert s pinins r in deciding whether t listen t the evidence at all. Prcess fr Qualifying an Expert The fllwing is a frequently-used methd fr qualifying an expert witness: Expert is swrn / affirmed Party calling the expert nrmally files the expert s curriculum vitae (C.V.) r resume in advance, enters it as an exhibit, and supplements the C.V. with a few questins at the utset f examinatin. The purpse is t establish the persn s expertise using their educatin and/r experience in a particular area. Other parties are given n pprtunity t crss examine the expert n his r her qualificatins t establish expertness and t lessen the impact f later testimny. Other parties may ask the ARB t refuse t hear pinin evidence frm the expert if the qualificatins are nt prven. Panel hears any arguments frm the parties abut whether t recgnize the witness as an expert. Panel makes a ruling n whether t accept the witness as an expert and in what area. If the panel accepts the witness as an expert, the chair says we recgnize as an expert in (area f expertise). If qualified as an expert, the party calling the expert witness cntinues with the rest f the questins in direct examinatin. The ARB may decide t waive the frmality f qualifying a witness under the fllwing circumstances: - if the ARB already knws the witness t be an expert in the area in which she r he prpses t testify, r - if the evidence will be limited t an area where the ARB has reasn t be cnfident f its wn expertise. Tips fr panel members arund witnesses: deal with the witness nly in the hearing btain prper spelling f names fr the decisin dcument in the hearing be prepared t prvide infrmatin t witnesses abut the hearing prcess swear r affirm witnesses if required ensure a separate chair and table fr the witness at the hearing in clear view and hearing f the panel and all parties Municipal Affairs Administrative Law II Page 49 f 99 Gvernment f Alberta September 2012

50 determine and understand the authrity f the ARB t rder witnesses t appear r prduce dcuments wh can exercise the authrity, when, in what frm Mdule 3 parties are respnsible t identify their witnesses, determine the rder t call the witnesses at the hearing, infrm their witnesses when t attend the hearing and where, pay their witnesses fees r expenses as arranged between them. Cmpelling Attendance f Witnesses r the Prductin f Dcuments An ARB has the legislative authrity t rder witnesses t attend the hearing and/r require the prductin f dcuments. Sectin 465 (ARB) and 497 (MGB) f the MGA gives this authrity. The exercise f this pwer is rare and cautin must be used when cnsidering its use. There are times hwever, when the bard may require the prductin f dcuments in rder make the crrect decisin in a case. A ne member panel may be able t deal with this type f applicatin if it is a pre-hearing administrative matter; hwever, nce the hearing has cmmenced a three member panel will deal with the matter. Cmpelling Attendance f Witnesses Sme general cnsideratins f a panel when dealing with requests t cmpel attendance f witnesses include: the statute may enable the parties t call any witnesses they deem fit (ARB s cannt hear any evidence that was nt cntained in the prehearing disclsure.) the ARB may have a practice f cmpelling the attendance f any witness requested by a party and dealing with any bjectins related t that witness at the hearing sme ARB s will deal with requests t cmpel attendance f witnesses as pre-hearing prcedural matters which may give rise t additinal questins abut sufficiency f time fr the hearing, relevance f evidence, r ther prcedural matters sme ARB s will deal with requests t cmpel attendance as ex-parte applicatins that are nt discussed with the ther parties befre the hearing in rder t prtect the witness frm pressure by the ther parties. If the ARB issues a Ntice t Attend r Subpena t a Witness and the witness des nt attend the hearing as required, the party seeking the witness must decide hw t prceed. Generally, the party seeking the witness evidence wuld, if the matter is serius enugh, ask the ARB t file the decisin t cmpel attendance in the curts (subject t statutry limitatins) and then the party wuld enfrce that rder as an rder f the curt. Requiring Prductin f Dcuments Sme cnsideratins t keep in mind when dealing with requests t cmpel prductin f dcuments include: statutry pwers f the ARB arund what can be cmpelled and when dcuments shuld be relevant t the matters befre the ARB and the nus rests with the party seeking the dcuments t cnvince the panel that the dcuments are relevant. prductin f dcuments can put a party t extensive csts in time and resurces t search ut and prduce dcuments. A balancing f interests may be necessary. persns r rganizatins wh are nt parties t the hearing shuld be given an pprtunity t speak t the request fr prductin f dcuments befre the panel makes its decisin Municipal Affairs Administrative Law II Page 50 f 99 Gvernment f Alberta September 2012

51 Mdule 3 generally, the party being asked t prduce the dcuments shuld be given the pprtunity t make cmments t the panel befre the panel makes its decisin. A party may vluntarily agree t prduce all r sme f the dcuments. the panel may have t give directins t prtect dcuments r preserve cnfidentiality r t set time lines fr prductin and cpies. The bard must be cautius that when cmpelling the attendance f a witness r the prductin f dcuments. An ARB must nt cmpel evidence that is nt relevant t the matters identified that are under cmplaint. Sample Subpena /Ntice t Attend / Prductin f Dcuments (Letterhead and Lg f the Tribunal) TO: (name and address f persn being sent the ntice) Yu are required t attend befre the n: Date, time and place and at such times and places as the hearing may cntinue until cncluded, t give evidence in a hearing between names f parties cncerning descriptin f the case. Yu are required t prduce the fllwing dcuments t: Name, Date, time and place Or In relatin t a hearing between names f parties cncerning descriptin f the case. (The tribunal may want t insert a cautin abut the failure t appear r adhere t the rder) Date and signature f a tribunal fficial 7. Wrking with Translatrs Translatrs assist witnesses wh testify in a language nt understd by the panel. The ARB wants t ensure the translatr will accurately translate what is said in either language. Interpreters r translatrs assist the ARB by translating the questins t a witness and translating the witness answer t the panel and cunsel. Translatrs must be swrn r affirmed befre the witness is swrn r affirmed. The purpse f the translatr ath r affirmatin is t ensure he r she is fairly and hnestly translating what is transpiring. Municipal Affairs Administrative Law II Page 51 f 99 Gvernment f Alberta September 2012

52 Mdule 3 A typical interpreter s ath is: D yu swear that yu will fairly and accurately translate the questins asked and the evidence given at this hearing s help yu Gd? A typical interpreter s affirmatin is: D yu slemnly affirm t fairly and accurately translate the questins asked and the evidence given at this hearing? 8. Case Arguments Parties will ften refer t previusly decided cases in supprt f their arguments t the panel. Thse cases may be publicly available n a website r in a library. Previus cases help the parties assess the merits f their wn case and determine if they shuld prceed t hearing and the likely utcme. Previus decisins help the panel by shwing hw ther panels interpret and apply the legislatin and prcedural principles. The clser the facts f the previus case t the case at hand, the mre persuasive the previus case can be t the panel. Previus decisins f anther panel are never binding n the panel, but the decisins f the Alberta curts r Supreme Curt f Canada are binding. Panel decisins shuld be cnsistent with earlier decisins frm the same panel r frm a similar panel t prvide the best benefit t the public, parties and future panels. Cnsistency refers t the way in which the panel deals with matters f principles, legislative terms, legislative interpretatin and legislative applicatin, nt with the facts f a case. Panel members need t read and be aware f decisins f ther panels. Staff can assist by being aware f new and leading decisins and bringing thse decisins t the attentin f the panel. 9. Legal Cunsel Legal cunsel participates in hearings in tw ways: as a representative f ne f the parties r as an advisr t the panel. Cunsel as Advcate When legal cunsel fr a party participates in the hearing, cunsel must adhere t all the requirements and standards f the prcess required f the party. In additin, in ARB hearings the cmplainant must cmplete the Agent Authrizatin frm befre cunsel can attend the hearing t represent the cmplainant (sectin 51 MRAC). Cunsel will frequently interact with staff befre the hearing t learn abut prcess, deal with disclsure and access t infrmatin, and identify and reslve prehearing r prcedural matters. Pst hearing, cunsel may challenge the decisin in curt, prmpting staff t prepare the recrd fr the curt applicatin. Cunsel as Advisr t the Panel Sectin 17 f MRAC states the ARB may nly seek legal advice frm a lawyer wh is independent f the parties t the hearing. The municipality is a party t the hearing, s the municipality s legal cunsel cannt be used by the ARB. Municipal Affairs Administrative Law II Page 52 f 99 Gvernment f Alberta September 2012

53 Mdule 3 Cunsel may meet with the panel privately r deal with requests frm the panel and may give the panel legal advice n cntent and prcess. Cunsel cannt direct the panel n any matter; all decisins, whether substantive r prcedural, remain the panels t make. Mst ften cunsel s advice is nt shared with the parties. In sme cases, ARB s have standard practices t disclse mst infrmatin frm its independent cunsel t the parties (sme infrmatin cunsel wuld advise against sharing). Where the cunsel s advice raises new infrmatin r a new legal case r principle, the parties shuld be infrmed and given the pprtunity t respnd befre the panel makes a decisin. 10. Nte Taking Parties take their wn ntes in the hearing. Panel members shuld take their wn ntes t assist them with the decisin making. The clerk shuld make ntes t assist with creating the fficial recrd under sectin 14 f MRAC. Tips fr the panel s ntes times f activities in the hearing witness names evidence numbers and identifiers names f panel members names f thse attending the hearing and rles dates f the hearing lcatin f the hearing any cmmitments by any party t the panel and when required (t fllw up) any cmmitments r cautins by the panel t the parties and timelines if the hearing recesses r adjurns, the pint the hearing reached and the reasn fr the adjurnment any bjectins r applicatins raised in the hearing and a summary f the panel s decisin and any reasns given during the hearing. 11. Cnfidential Infrmatin Cnfidential infrmatin may be presented r demanded befre r at a hearing. Assessment hearings are part f the prvincial and municipal prcess, s prvincial legislatin abut persnal r cnfidential infrmatin applies. Prvincial legislatin prvides exceptins t ARB prcesses frm the general rules which apply t persnal r cnfidential infrmatin. These exceptins ensure panels can d their wrk and make decisins based n slid infrmatin. Panels and Staff Need t knw the legislative prtectins fr persnal, business r cnfidential infrmatin knw the exceptins in the legislatin fr hearing prcesses understand that the hearing prcess and slid decisin making can be undermined by excluding infrmatin because f the cnfidentiality shield be sensitive t hw they handle cnfidential r persnal infrmatin Municipal Affairs Administrative Law II Page 53 f 99 Gvernment f Alberta September 2012

54 Mdule 3 deal with bjectins r applicatins in a way that enables cnsideratin f all the factrs balance the need fr infrmatin in the hearing with the cncept f cnfidentiality find ways t manage the infrmatin s that cncerns abut persnal and cnfidential infrmatin can be minimized r prtected during the hearing prcess 12. Representatives and Agents Sme parties will chse nt t present their wn case during the prcess r at the hearing. Sme parties will chse t have anther spkespersn r a lawyer r an agent represent them. Under sectin 51 f MRAC, a cmplainant wh wants t have an agent represent him r her during the cmplaint prcess r at the hearing must cmplete and sign the Agent Authrizatin Frm. Sectin 1(1)(b) f MRAC defines agent. Tip: Read the agent authrizatin frm t see what the assessed persn r taxpayer acknwledges t, and what the agent is authrized t d. 13. Recrd f the Hearing All ARB s must make and keep a recrd f each hearing in accrdance with sectin 14 f MRAC. It is imprtant t maintain an accurate recrd in case a decisin f the bard is appealed t the Curt f Queen s Bench. The parties t the cmplaint will rely n this recrd as evidence in their appeal. Municipal Affairs Administrative Law II Page 54 f 99 Gvernment f Alberta September 2012

55 Mdule 3 Exercise # 6 Hearing Prcess Instructins: i. Wrk in grups f tw t answer the questins. ii. iii. iv. Use the Municipal Gvernment Act, and the Matters Relating t Assessment Cmplaints Regulatin t help yu answer the questins. When yu prvide the answer, als give the Part, Divisin and sectin f the MGA r MRAC that gave yu the answer. Identify a spkespersn fr yur grup t participate in the class debrief. Questins: Jurisdictin v. Yu have 15 minutes. 1. At the start f a hearing befre yur lcal assessment review bard, the respndent states that the cmplaint was filed after the deadline stated n the assessment ntice, and questins the bard s jurisdictin t hear the case. The date n the assessment ntice was a Saturday, and the cmplaint was nt filed until the fllwing Mnday. a. Des the LARB have jurisdictin t hear the cmplaint? Y/N Why? Legislative reference: Pstpnements 1. The Cmplainant sends a letter t the CARB 8 days befre the hearing and requests the hearing be pstpned. They explain that the disclsure made by the respndent is highly technical in nature and they require further time t prepare their rebuttal evidence. a. When must the cmplainant submit their rebuttal evidence? Legislative reference: b. Des the CARB have jurisdictin t give the cmplainant mre time? Y/N Why? Legislative reference: Municipal Affairs Administrative Law II Page 55 f 99 Gvernment f Alberta September 2012

56 2. The day befre the hearing, the Cmplainant calls the LARB stating her gdmther in Arizna is dying and she must leave twn t be with her. Mdule 3 a. Shuld the LARB grant a pstpnement? Y/N Why? Legislative reference: 3. Three days befre the hearing the Agent fr the Cmplainant calls the CARB requesting a pstpnement as they need mre time t prepare fr the hearing. All disclsure f evidence has been made. a. Shuld the CARB grant a pstpnement? Y/N Why? Legislative reference: 4. Can an ARB pstpne a hearing indefinitely? Y/N Timelines Why? Legislative reference: 1. The Cmplainant has requested additinal time t file her rebuttal evidence stating that as English is nt her first language; she is having sme f the dcuments given t her by the Respndent translated. She states that the Respndent will agree t an extensin f the filing deadline. a. Can the timeline be expanded and if s, under what cnditins? Y/N Why? Legislative reference: Municipal Affairs Administrative Law II Page 56 f 99 Gvernment f Alberta September 2012

57 Mdule 3 2. On the day f the hearing, the Cmplainant shws up and states that they have received dcuments that were nt disclsed t her by the Respndent until the day befre the hearing. The clerk f the CARB cnfirms that these dcuments were just received. a. Can the bard hear this evidence? Y/N Why? Legislative reference: Recrds 1. After the hearing has been cmpleted and the decisin published, the cmplainant appeals t curt. The ARB must put tgether the Recrd f Hearing. a. What dcuments must be cntained in the recrd? Legislative reference: b. Hw lng must the bard keep these recrds? Legislative reference: Municipal Affairs Administrative Law II Page 57 f 99 Gvernment f Alberta September 2012

58 Mdule 3 Evidence 2. At the hearing, the panel is reviewing the dcuments filed by bth parties. The cmplainant infrms the bard that they frgt t include a key piece f evidence in their disclsure package and attempts t intrduce the evidence. a. What shuld the bard d in this case? Legislative reference: b. What must the bard cnsider shuld this ccur? 3. The clerk f yur bard has received a cmplaint and scheduled a hearing befre the LARB. The clerk infrms yu that the cmplainant indicated n the cmplaint frm that they made a request fr infrmatin under sectins 299 & 300 frm the municipality, but did nt received it. All disclsure has been made by bth parties and the hearing begins. The cmplainant begins t present evidence and remarks that the disclsure made by the respndent is inadmissible because it is represents infrmatin that was nt prvided t them. a. What must the bard d in this case? Legislative reference: 4. The cmplainant states that the respndent has brught frward evidence that was withheld frm them when they made a sectin 299 request t the municipality. The cmplainant further states that they were unaware that this infrmatin existed. The respndent states that the specific infrmatin the cmplainant requested was prvided and the evidence in questin was nt specifically requested. a. Is this a reasnable psitin fr the respndent t take? b. What des the legislatin state with respect t what infrmatin must be prvided? Legislative reference: Municipal Affairs Administrative Law II Page 58 f 99 Gvernment f Alberta September 2012

59 c. If the infrmatin that was withheld is nt relevant t hw the assessr prepared the assessment, shuld the bard cnsider it r dismiss it? Mdule 3 Why/Why Nt d. If the infrmatin that was withheld is relevant t hw the assessr prepared the assessment, what shuld the bard cnsider as a remedy? Legislative reference: 5. After the hearing cncludes but befre the panel sends ut its decisin, the cmplainant sends in a letter enclsing a swrn statement frm anther witness that culd nt be present at the hearing. The letter and statement have nt been cpied t the ther party. The clerk tells yu abut the letter and statement. a. What d yu d? Legislative reference: Witnesses 6. During the disclsure prcess, yu are infrmed that the cmplainant s neighbur will appear and give evidence abut certain critical parts f the cmplainant s case. On the day f the hearing, the neighbur is unable t attend but has sent a signed statement cntaining their evidence. All f the evidence in the statement was previusly tld t the cmplainant wh nw wants t tell yu what the neighbur said t them. In particular, the cmplainant wants t tell yu: What an appraiser said t them abut the effect that the lcatin f their huses had n their value, and Hw many square feet f space was added t the cmplainant s huse and what renvatins had been dne. a. Shuld yu accept the signed statement? Y/N Why? b. Shuld yu hear the evidence regarding what Ms Smith said? Y/N Why? Municipal Affairs Administrative Law II Page 59 f 99 Gvernment f Alberta September 2012

60 Mdule 3 c. If yu d hear the evidence, what weight shuld be given t a. and b.? Representatives and Agents 7. A cmplaint has been filed with n indicatin that an agent wuld be representing the assessed persn. On the day f the hearing, the cmplainant shws up with an individual whm they state is their agent wh will representative them at the hearing. a. What wuld the bard d in this case? Legislative reference: Municipal Affairs Administrative Law II Page 60 f 99 Gvernment f Alberta September 2012

61 Mdule 3 Tips Arund Hearings These tips are fr bth the panel and the clerk. Each persn needs t be aware f what everyne else is r shuld be ding t make the hearing prcess fair. Befre: During: After: panel check fr biases; staff identify ptential cncerns abut bias staff ensure the prper dcuments are filed, received, shared befre the hearing within the prper time limits staff answer inquiries frm the parties abut prcess, legislatin, time limits etc. staff make the hearing arrangements and send ut ntice f hearing staff prepare the hearing package/file fr the panel staff and panel cme t the hearing well rested and prepared t participate staff bring the legislatin, rules etc panel and staff read the materials r determine when t read them and hw t deal with questins the panel may have panel and staff read the legislatin and prcedures and anticipate any cncerns that might arise at the hearing staff ask questins f the panel chair if unsure panel keep an pen mind panel (and staff) remain sensitive t situatins raising ptential biases help maintain the hearing decrum apply the prcedures panel ask apprpriate questins if member is unsure, request a recess t speak with the panel panel keep an pen mind panel keep wn ntes t help with decisin making staff keep the hearing recrd, list f evidence and witnesses and transcript f the hearing staff and panel keep hearing fairness in mind at all times panel set aside the apprpriate time t discuss the case t make a decisin panel and staff remain sensitive t situatins raising ptential biases staff and panel - use a decisin making mdel t help the panel determine what the standard fr decisin making is panel keep an pen mind until yu ve reviewed all the evidence members vice input in the decisin making Municipal Affairs Administrative Law II Page 61 f 99 Gvernment f Alberta September 2012

62 Mdule 3 determine wh will write the decisin and when the panel will review the draft panel (and staff) review the draft t prvide meaningful feedback panel and staff keep fairness in mind staff finalize the recrd staff publish the decisin and deal with inquiries abut it Municipal Affairs Administrative Law II Page 62 f 99 Gvernment f Alberta September 2012

63 Mdule 4 Mdule 4 Decisin Making and Writing Decisin Making Decisin making is a prcess that, when applied prperly, will lead the panel t an infrmed, well funded and lgical decisin that is easy t explain and justify. The Municipal Gvernment Bard has prvided a mdel that incrprates a five step prcess that can be used by ARB s t prduce gd decisins. In general, these five steps are: 1. identifying the issues in supprt f the matters fr the cmplaint 2. identifying the legislative requirements f each matter 3. identifying and srting the relevant evidence 4. applying the facts t the legislatin 5. reaching the decisins Each step invlves a separate actin by the panel and prgresses the panel t an infrmed, well funded and lgical decisin which is easy t explain and justify. In detail, the five steps are: 1. Identifying the issues in supprt f the matters fr the cmplaint. The assessment cmplaint frm identifies the matters, and the disclsure evidence supprts thse matters; the panel must nt hear any matter nt identified n the cmplaint frm, r any evidence that was nt disclsed. 2. Identifying the legislatin and framing the issues/questins and cnditins r legislative requirements f each issue The assessment cmplaint raises the issues; the panel cannt deal with issues nt raised in the cmplaint. The panel then searches the applicable legislatin t determine the sectins that apply. T determine if the panel has the jurisdictin (r authrity) t deal with the case. T read the sectins and make a list f the cnditins, standards, pre-requisites that must exist fr it t decide the case. This becmes the list f the factual items the parties must prve t btain the answers they seek (the cnditins, criteria, required elements, etc). Next, the panel will state the issues and cnditins as questins t fcus themselves and t mve them twards answering the questins fr the parties. 3. Identifying the relevant evidence and making findings f fact n the evidence The panel srts the evidence received in the hearing accrding t the list f cnditins under each issue. The key t srting the evidence quickly is t apply the relevance test. Then the panel takes each grup f evidence and assesses it t determine if the cnditin has been met r prven r nt. The panel repeats the previus step ver and ver until all the evidence has been examined. Municipal Affairs Administrative Law II Page 63 f 99 Gvernment f Alberta September 2012

64 Mdule 4 4. Applying the facts t the legislatin t reach cnclusins and expressing the decisin maker s ratinal fr the cnclusin. The panel ges back t the list frm Step 2 (the legislatin) t determine what cnditins are mandatry and what cnditins are ptinal fr the party t prve. Mandatry cnditins must be established thrugh evidence r the cmplainant will nt be successful. Optinal cnditins mean the party may be able t prve nly ne f a list r prve the item in a number f different ways. Then the panel des a cmparisn f what must be prven t the list in step 3 (what has been prven) t cme t a lgical answer t the questins psed in the issues. Has the legislative test been met? Where the tw lists match, the legislatin will direct the panel t the answer n the issue. Where the tw lists d nt match, the panel will nt have the authrity t give the answer the cmplainant seeks and will have t dismiss the cmplaint r deny the applicatin. The panel s discussin abut hw and why it makes the chices it des becme the panel s reasns fr decisin. 5. Reaching the decisins and frmulating the directins fr implementatin Finally, the panel cllects all f its decisins n the issues and reaches its final decisin n the cmplaint. The panel then identifies the directins r remedies the case requires and any details f implementatin. A cpy f the Assessment Review Bard Decisin template can be fund in the handuts sectin f yur binder. Decisins f an Assessment Review Bard Key Legislatin The decisins f an ARB must adhere t the legislatin that gverns the cmplaint prcess. The MGA utlines what an ARB r the MGB must cnsider when it makes a decisin. Sectin 467(1) An assessment review bard may, with respect t any matter referred t in sectin 460(5), make a change t an assessment rll r tax rll r decide that n change is required. (2) An assessment review bard must dismiss a cmplaint that was nt made within the prper time r that des nt cmply with sectin 460(7). (3) An assessment review bard must nt alter any assessment that is fair and equitable, taking int cnsideratin (a) the valuatin and ther standards set ut in the regulatins (b) the prcedures set ut in the regulatins, and (c) the assessments f similar prperty r businesses in the same municipality. (4) An assessment review bard must nt alter any assessment f farm land, machinery and equipment r railway prperty that has been prepared crrectly in accrdance with the regulatins. Assessment review bard decisins Municipal Affairs Administrative Law II Page 64 f 99 Gvernment f Alberta September 2012

65 Mdule 4 Sectin 468(1) Subject t the regulatins, an assessment review bard must, in writing, render a decisin and prvide reasns, including any dissenting reasns, (a) within 30 days frm the last day f the hearing, r (b) befre the end f the taxatin year t which the cmplaint that is the subject f the hearing applies, whichever is earlier. (2) Despite subsectin (1), in the case f a cmplaint abut a supplementary assessment ntice, an amended assessment ntice r any tax ntice ther than a prperty tax ntice, an assessment review bard must render its decisin in writing in accrdance with the regulatins. Decisins f the Bard MGB Sectin 499(1) On cncluding a hearing, the Bard may make any f the fllwing decisins: (a) make a change with respect t any matter referred t in sectin 492(1), if the hearing relates t a cmplaint abut an assessment fr linear prperty; (b) make a change t any equalized assessment, if the hearing relates t an equalized assessment; (c) decide that n change t an equalized assessment r an assessment rll is required. (2) The Bard must dismiss a cmplaint that was nt made within the prper time r that des nt cmply with sectin 491(1), (2) r (3). (3) The Bard must nt alter (a) any assessment f linear prperty that has been prepared crrectly in accrdance with the regulatins, and (b) any equalized assessment that is fair and equitable, taking int cnsideratin equalized assessments in similar municipalities. (4) The Bard may, in its decisin, (a) include terms and cnditins, and (b) make the decisin effective n a future date r fr a limited time. Bard decisins MGB Sectin 500(1) Subject t the regulatins, if the hearing relates t a cmplaint abut an assessment fr linear prperty, the Bard must, (a) in writing, render a decisin and prvide reasns, including any dissenting reasns, (a) within 30 days frm the last day f the hearing, r (b) befre the end f the taxatin year t which the assessment that is the subject f the hearing applies, whichever is earlier. (2) Subject t the regulatins, if the hearing relates t a cmplaint abut the amunt f an equalized assessment, the Bard must, in writing, render a decisin and prvide reasns, including any dissenting reasns, (a) within 30 days frm the last day f the hearing, r (b) within 150 days frm the date the Minister sends the municipality the reprt described in sectin 320, whichever is earlier. Municipal Affairs Administrative Law II Page 65 f 99 Gvernment f Alberta September 2012

66 Mdule 4 cmplaint under s. 460(5) MGA matter fr cmplaint under s. 460(5) MGA? prperty type is within jurisdictin s. 467(2) MGA and s. 2(2) MRAC jurisdictin - frm f cmplaint, filed within time, cmplaint fee paid? if nt, cmplaint is invalid and panel must dismiss if yes, prceed t next step s. 467(1) MGA matters 1, 2, 4-10 n the cmplaint frm facts nt established t prve item incrrect - dismiss facts established t prve item incrrect - change the rll s. 467(3) MGA any matters under 3 (assessment amunt), n the cmplaint frm is the assessment fair and equitable? a) did the assessr use valuatin and ther standards in the regulatins - the market value mdel standard - including the apprpriate time adjustments b) did the assessr use the prcedures set ut in the regulatins c) are the cmparatrs similar in the same municipality establish facts t prve what the cmplainant alleges - eg. my assessment is wrng because f lcatin r cnditin r imprvements r the assessr did nt use similar cmparatrs. if facts nt prven - dismiss the cmplaint if facts prven - des it change the cmparables? Des it make the assessment unfair r unequitable? If yes, uphld the cmplaint and change the assessment amunt. If n, dismiss the cmplaint. Figure 3 Sample - Assessment Review Bard Decisin Making Mdel n Residential Prperty Municipal Affairs Administrative Law II Page 66 f 99 Gvernment f Alberta September 2012

67 Mdule 4 As yu can see frm the chart, an ARB begins the decisin making prcess as sn as a cmplaint is received by the municipality. The first thing an ARB must deal with is whether they have jurisdictin t hear the cmplaint. The legal tests that must be applied t every cmplaint are the same, and if the cmplaint fails any f the legal tests with respect t the filing requirements, legislatin states that it must be dismissed. S let s lk a little clser at what thse filing requirements are, and what bard members shuld be lking fr when determining whether the bard has jurisdictin t hear the matter(s). In rder t file a cmplaint abut an assessed prperty, the cmplainant must d s in accrdance with sectin 460 f the MGA. Sectin 460(2) states that the cmplaint must be in the frm prescribed in the regulatins. The cmplaint frm is cntained in Schedule 1 f MRAC, and is therefre a regulated dcument. If cmpleted crrectly, it will meet the filing requirements f sectin 460. Issue 1: Is the cmplaint filed in accrdance with the regulatins? Legal Test: Is the cmplaint n the regulated frm? s. 460(2) MGA, Schedule 1 MRAC If N Dismiss cmplaint as prescribed in s. 2(2) f MRAC, s. 18(2) MRAC If Yes mve t next step. *(if a cmplaint is nt filed n the prescribed frm, is it autmatically invalid?) Legal Test: Was the cmplaint fee paid at the time the cmplaint was submitted? s. 460(2) MGA If N Dismiss cmplaint as prescribed in s. 2(2) f MRAC, s. 18(2) MRAC If Yes mve t next step. *(if a cmplaint fee was nt included with the cmplaint, is it autmatically invalid?) Issue 2: Was the cmplaint filed n time? Legal Test: Was the cmplaint filed by the date specified n the municipality s assessment ntice, and what legislatin may have an effect n that date? s. 309(1)(c) MGA, s. 284(3) MGA, s. 605(1) MGA, s.3(1) Interpretatin Act If N Dismiss cmplaint as prescribed in s. 467(2) f the MGA. If Yes mve t next step. *(des the Interpretatin Act factr int whether the cmplaint was filed n time?) Issue 3: Is the prperty type within the bards jurisdictin t hear? Legal Test: Des the bard have jurisdictin t hear the cmplaint? S MGA If N Send cmplaint t the prper bard t hear. S MGA If Yes mve t next step. Municipal Affairs Administrative Law II Page 67 f 99 Gvernment f Alberta September 2012

68 Mdule 4 Issue 4: Are the matter(s) fr the cmplaint identified? Legal Test: Are the matter(s) fr the cmplaint indicated n the cmplaint frm? s. 460(5) MGA If N Dismiss cmplaint as prescribed in s. 2(2) MRAC, s. 18(2) MRAC If Yes mve t next step. Issue 5: Has the cmplainant prvided the infrmatin required? Questin: Has the cmplainant cmplied with sectin 460(7) f the MGA? If N dismiss cmplaint as prescribed in sectin 467(2) f the MGA. If Yes mve t next step (merit hearing). As yu can see, a bard has many things t cnsider with respect t the validity f cmplaints that are filed. The clerk f the bard may pint ut sme f these issues; hwever, it is the respnsibility f the panel t check these issues n every cmplaint. It is imprtant fr yu t remember that nly a panel f the bard can make a decisin n these issues nt a clerk r ther ARB staff. The issues listed abve are cnsidered administrative matters and may be dealt with by a ne member panel f the bard. Part 3 f MRAC dictates the prcess that must be fllwed if a ne member panel is t hear and decide n any matter. Please nte that the timelines fr hearings n administrative matters are different than thse fr merit hearings. Is it necessary t dcument these pre-hearing decisins in the final decisin f the bard? Maybe. If a cmplaint has been filed in accrdance with the regulatins, it is nt necessary t dcument these details; hwever, if a cmplaint is t be dismissed n an administrative matter, this decisin must be in writing and in accrdance with the MGA and MRAC. At the merit hearing, yu need t be aware f the regulatins with respect t the evidence that has been disclsed prir t the hearing, and the evidence that is presented at the hearing. An ARB must nt hear any issues in supprt f a matter that has nt been identified n the cmplaint frm. s. 5(1), 9(1), 22(1) and 34(1) f MRAC. Assessment Review Bard Decisin Making Mdel T assist bard members when making a decisin, a decisin making mdel used by the Municipal Gvernment Bard can be fund in the Handuts sectin f yur binder. Burdens f Prf and the Standard f Prf When the panel is making its final decisin, it must knw and cnsider which party had the bligatin t bring enugh evidence t cnvince the panel in its decisin. The panel must als knw hw much evidence is required t cnvince the panel. The curts call these terms the legal burden f prf and the standard f prf. Each party wh alleges sme set f facts r circumstances befre the panel has the bligatin r burden t prve what it alleges. This is called the evidentiary burden f prf. Fr example, if a cmplainant alleges the repairs t their rf will cst $9,000.00, they must prve that cst t the panel. They prve the cst by bringing evidence in the hearing, such as the written estimate frm a windw supplier r the verbal testimny f the estimatr frm the windw supplier. Smetimes the ther party will agree and the Municipal Affairs Administrative Law II Page 68 f 99 Gvernment f Alberta September 2012

69 Mdule 4 prf cmes frm the agreement f the parties. Fr example, the assessr may agree with the cmplainant that the windws will cst $9, t repair; then there is n written estimate r witness testimny is required. A secnd burden f prf is the legal burden f prf. The party wh initiates the case (cmplainant r respndent) carries the bligatin (r burden) t cnvincingly prve its case in rder t btain the utcme it seeks. The legal burden f prf is measured at the end f the case, using all the evidence brught by all the parties. This means the party starting the case can use its wn evidence and any evidence frm the ther party that helps t demnstrate everything the law requires the cmplainant t prve. In 2009 the Supreme Curt f Canada clarified fr everyne that the standard f prf the ARB must apply in a civil case is the balance f prbabilities. ARB cases are civil cases; therefre the balance f prbabilities is the standard f prf befre the ARBs. This means the panel cnsiders all the evidence at the end f the hearing and decides whether the party wh started the case has prven their case n a balance f prbabilities (smetimes stated as mre likely than nt r fifty percent plus ne. Weighing the Evidence and Making Findings f Fact The panel weighs the evidence at the end f the hearing and makes any required findings f fact. A panel des nt have t weigh the evidence if the parties agree t the fact r if the evidence abut the fact is undisputed (evidence frm ne party is nt cntradicted by the ther party); the panel needs nly cnfirm the fact. Where the parties disagree abut the fact and call cmpeting evidence, the panel must srt thrugh the evidence and assess its value r pririty in assisting the panel t find the fact. This is a cmmn ccurrence when dealing with cmpeting experts. Sme tips and questins n weighing the evidence include: prefer direct evidence (first hand) ver circumstantial (prven by indirect means) decide if crrbratin is required and if s des it exist be clear abut the purpse f the evidence what is intended t prve wh brught the evidence has the party met its evidentiary burden hw des the evidence intertwine with the ther evidence n this pint hw des the ral evidence cmpare t the dcumentary evidence is the party attempting t prve a fact using nly hearsay evidence hw d the varius pieces f evidence n this pint cmpare which witness has mre qualificatins which witness had the mst direct view r participatin which witness tk ntes at the time When dealing with cmpeting experts cnsider: the qualificatins f the experts which expert has the mst direct educatin and experience which expert has the best experience which expert used the mst similar prcess t the ne under cnsideratin which expert used the mst timely infrmatin which expert used infrmatin mst similar t the infrmatin in the assessment hw did the experts perfrm their tests r research which expert is best able t explain their pinin and the basis fr the pinin. Municipal Affairs Administrative Law II Page 69 f 99 Gvernment f Alberta September 2012

70 Decisin Making Tips bridge gaps t cnsensus use a structure fr decisin making - same fr all panels discuss the prcess and the merits each time remember-it s all abut the decisin nt the panel r staff: dn t take it persnally grund the decisin in legislatin deal with ne issue at a time instead f everything tgether srt evidence by issue and legal tests use evidence evaluatin tls - agreed - uncntested - similar - cntested apply cde f cnduct, if required, t reslve cllegial disagreements amng the panel be cllegial express curisity rather than defensiveness wrk t the result nt frm the result Mdule 4 d nt ask a panel member t defend a persnal decisin made during decisin making - rather, re-examine the pieces in decisin making and the evidence and legislatin. If the panel member persists in the dissenting decisin, the panel member is able t mre clearly express the reasns fr the dissenting pinin in a written dissent. Municipal Affairs Administrative Law II Page 70 f 99 Gvernment f Alberta September 2012

71 Mdule 4 A Written Decisin Is... Decisin Writing A written decisin is the methd f cmmunicating the decisins and reasns f the panel t the parties. It is the vice f the panel in written frmat. The quality f the decisin reflects the quality f the decisin making prcess. A panel cannt clearly write a decisin it has nt made; d nt use the decisin writing prcess as a substitute fr decisin making. Panels issue written decisins t prvide clarity and certainty abut their decisins. Just as different panels wuld speak their decisins in different ways, s will panels write their decisins differently. Althugh Alberta Municipal Affairs cannt expect that every decisin will be identical, it can expect that decisins will fllw a cnsistent frmat and cntain cnsistent infrmatin. The decisin shuld be identifiable as an assessment decisin frm the quality and general frmat, nt frm the use f bilerplate terminlgy. Why ARB s Write Decisins? t explain t persuade t infrm t educate t meet the statutry requirement t prevent arbitrary decisins Wh d Panels Write Fr? the cmplainant the respndent assessrs prfessinals in the industry assessment rganizatins and grups ther panels the curts the department and future legislatrs the public. Municipal Affairs Administrative Law II Page 71 f 99 Gvernment f Alberta September 2012

72 Mdule 4 What Defines a Well Written Decisin? A well written decisin: meets legislative requirements is published within the mandated timelines clearly states the questins/matters the panel will address identifies and explains the law and plicy applicable t each issue explains hw the panel interpreted the legislatin and plicy and applied it t the facts f the case is clear, succinct and understandable has a structure and a lgical flw can be implemented withut further clarificatin uses plain, everyday language where-ever pssible and where nt, uses and explains terms in a cnsistent manner uses headings, tables f cntents, bullets, addendums, summaries, lists and similar tls t enhance the readability f the decisin is accurate in spelling, names, qutes and references, grammatically crrect, lgical. A well written decisin als: demnstrates the panel cnsidered the infrmatin and arguments put befre it reveals the panel heard and weighed the evidence befre it, shwing hw it made findings f fact relevant t the questins reflects the expertise f the panel in its reasns and cnsideratins where there is cnflicting relevant evidence, shws hw the panel reslved the cnflicts and which evidence it relied upn and why shws the panel used a lgical, rderly prcess t make its decisin and that each decisin flws frm and melds with the previus decisin and leads t a lgical cnclusin that reslves the matters makes the panel's decisin-making thught prcess clear and understandable. Basic Pieces f a Written Decisin Sectins 13 and 25 f MRAC set ut the requirements fr an ARB decisin which include: a brief summary f the matters r issues cntained n the cmplaint frm the ARB s decisin n each matter r issue the reasns fr decisin, including any dissenting reasns any prcedural r jurisdictinal matters that arse during the hearing and the ARB s decisin n each. Municipal Affairs Administrative Law II Page 72 f 99 Gvernment f Alberta September 2012

73 Mdule 4 The typical pieces f a well written decisin include the fllwing. A panel need nt use these labels and may change the rder t make the mst sense fr a particular case. The amunt f time the panel has t write the decisin will naturally affect hw extensive it makes each sectin. Nature f Applicatin/Intrductin identify the parties, relevant statutry prvisins, subject matter and what is being sught (wh, what, when, and where) state in wn terms (versus pleadings ) The Issue r Issues the matters raised in the cmplaint identify at utset (part f intrductin r separate) guidepst t what is relevant Legislative Tests drawn frm the Act r Regulatins (bth MRAC and MRAT can apply) identify the tests the panel applied usually included in the Analysis sectin r stand alne sectin Psitins f the Parties may nt require separate sectin d nt regurgitate submissins, just summarize make reference t arguments nt expressly cnsidered by the panel and why thse arguments were nt addressed usually included in the Analysis sectin r stand alne sectin Relevant Facts nt the evidence but findings f panel decide n lgical rder r structure (chrnlgical, by subject, etc.) dealing with cnflicting testimny (credibility) dcumentary evidence nly the relevant facts (may want t allude t irrelevant testimny) ensure accuracy (ire f parties and prejudice n appeal) usually included in the Analysis sectin r stand alne sectin Reasns fr factual findings fr any interpretatins f the legislatin r MRAC (e.g. the meaning f cmplete if nt defined) fr reaching the cnclusins reached by the panel (we cnclude because ) usually included in the Analysis sectin r stand alne sectin sme things t avid: leap f faith (i.e., n real explanatin); cut and paste ; veruse f precedent; extensive qutatins Reasns / Analysis An Alternate essence f reasns: why was the decisin reached? lgical prgressin (cnclusin appears bvius frm facts and discussin f legal principles) includes legislative tests, relevant facts, reasns sme things t avid: leap f faith (i.e., n real explanatin); cut and paste ; veruse f precedent; extensive qutatins may be a cmbined sectin incrprating Reasns, Legislative Tests, Relevant Facts, and Psitins f the Parties Municipal Affairs Administrative Law II Page 73 f 99 Gvernment f Alberta September 2012

74 Mdule 4 Cnclusin succinct statement f decisin n the appeal may want t have summary fr each issue in lnger decisins and a case cnclusin f all the issues Order clear statement f the directins and times given t the parties t implement Sample Decisin Template fr Assessment Review Bards Assessment review bards must issue their decisins, in writing, within 30 days frm the last day f the hearing, r befre the end f the taxatin year. Panels can ease the writing bligatin by using a standard structure fr their decisins which prmpts them t prvide certain infrmatin in every case. One such sample might be the ne n the fllwing page. Municipal Affairs Administrative Law II Page 74 f 99 Gvernment f Alberta September 2012

75 ORDER N DECISION BEFORE THE (LOCAL/COMPOSITE) ASSESSMENT REVIEW BOARD On IN THE MATTER OF THE MUNICIPAL GOVERNMENT ACT, STATUTES OF ALBERTA 2000, CHAPTER M- 26. BETWEEN: AND IN THE MATTER OF THE ASSESSMENT COMPLAINT Mdule 4 AND: Cmplainant Respndent Tpic: (type f cmplaint) Prperty: (address) Tax Year: Assessment: $ Matters Identified n the Cmplaint Frm: (the matters are checked) Cmplaint Tpic Matters frm sec. 460(5) MGA 1. the descriptin f the prperty r business 2. the name r mailing address f an assessed persn r taxpayer 3. an assessment 4. an assessment class 5. an assessment sub-class 6. the type f prperty 7. the type f imprvement 8. schl supprt 9. whether the prperty r business is assessable 10. whether the prperty r business is exempt frm taxatin Decisin Reasns Any Dissenting Reasns? Overview f the Prperty and Initial Assessment: The prperty is (descriptin). The prperty is assessed in cnditin fr an assessed value f $. ISSUES (use the nes yu need) 1. Is the (item 1, 2, 4 10) crrect? 2. Is the subject prperty fairly and equitably assessed? ( see sectin 467 f the MGA) 3. Can the ARB deal with Mrs. Green s cmplaint abut (e.g. being ver taxed)? Municipal Affairs Administrative Law II Page 75 f 99 Gvernment f Alberta September 2012

76 PROCEDURAL AND JURISDICTIONAL MATTERS ARISING DURING THE HEARING Mdule 4 Identify the matter, what the ARB ruled and why. If nne raised, say nne raised r delete this sectin frm the decisin. DECISION Under sectin 467(1) the ARB changes the assessment rll as fllws: OR the ARB finds n change is required t the assessment rll. As a result, the cmplaint is granted / dismissed. [The assessment value is set at $.] [The ARB has n jurisdictin t hear.] Use pieces that fit the case. Summary f Cmplainant s Psitin cmplained that. The cmplainant asked that the prperty assessment be set at $. Summary f the Respndent s Psitin The Respndent stated that the assessment set by the ARB was crrect r / and fair and equitable. Summary f the Evidence n the Issue f : (repeat fr each issue) The cmplainant s evidence included: 1. Her testimny that a. 2. testimny as the expert appraiser and his appraisal reprt shwing the current market value f the prperty at is $. 3. Dcuments shwing The Respndent s evidence included: 1. dcuments shwing 2. the assessr s testimny that. REASONS and LEGISLATION Issue Assessment Amunt Under the Municipal Gvernment Act, the ARB cannt change an assessment which is fair and equitable. MGA 467 (3) says An assessment review bard must nt alter any assessment that is fair and equitable, taking int cnsideratin (a) the valuatin and ther standards set ut in the regulatins, (b) the prcedures set ut in the regulatins, and (c) the assessments f similar prperty r businesses in the same municipality. Municipal Affairs Administrative Law II Page 76 f 99 Gvernment f Alberta September 2012

77 Mdule 4 The ARB examines the assessment in light f the infrmatin used by the assessr and the additinal infrmatin prvided by the Cmplainant. The Cmplainant has the bligatin t bring sufficient evidence t cnvince the ARB that the assessment is nt fair and equitable. The ARB reviews the evidence n a balance f prbabilities. If the initial assessment fits within the range f reasnable assessments and the assessr has fllwed a fair prcess and applied the statutry standards and prcedures, the ARB will nt alter the assessment. Within each case the ARB may examine different factrs, depending n what the cmplaint raises as cncerns. In this case, we first examined the evidence abut the cnditin f the prperty. We find the prperty t be in cnditin. Next, we lked at. We examine the cmparables prvided by bth parties. Under the Matters Relating t Assessment and Taxatin Regulatin, an assessment must be based n the market value f the prperty n July 1 f the year befre the assessment. In this case the date is July 1, 2009, this being a 2010 assessment. 1 In this Regulatin, (f) assessment year means the year prir t the taxatin year; 2 An assessment f prperty based n market value (a) must be prepared using mass appraisal, (b) must be an estimate f the value f the fee simple estate in the prperty, and (c) must reflect typical market cnditins fr prperties similar t that prperty. 3 Any assessment prepared in accrdance with the Act must be an estimate f the value f a prperty n July 1 f the assessment year. 6(1) When an assessr is preparing an assessment fr a parcel f land and the imprvements t it, the valuatin standard fr the land and imprvements is market value unless subsectin (2) r (3) applies. The Cmplainant The Respndent presented pre-valuatin cmparables that supprt the assessment.. There is n evidence f merit t vary the assessment further. Issue _#2 Overtaxed The ARB has n jurisdictin t hear a cmplaint abut a prperty tax because the Act des nt allw it. did nt raise the matter in her cmplaint and sectin 5(1) f the Matters Relating t Assessment Cmplaints Regulatin says this ARB has n authrity t hear matters nt marked n the cmplaint. Dated at Edmntn, Alberta this 10 th day f Nvember, 2010 and signed by the Presiding Member n behalf f all three panel members wh agree with this decisin. Jhn Jhn, Presiding Member LARB/CARB Municipal Affairs Administrative Law II Page 77 f 99 Gvernment f Alberta September 2012

78 Tips fr the Authr use the utline and ntes frm the decisin making sessin t create the utline, findings, reasns and results f the decisin flesh ut the utline s it makes sense t a reader use bullets r full sentences r a cmbinatin insert headings t help the reader check the cntent against MRAC t ensure yu have everything included Mdule 4 cmpare the decisin t the style guide t see that the style guide has been fllwed and if nt make changes nce the first draft is cmplete, leave it vernight if pssible befre beginning t edit read the decisin again des it make sense? Des it accurately set ut the decisin f the panel r majrity? Is it clear? Begin t edit until satisfied. respect that writing is difficult wrk, ften dne in a time crunch. Reviewing a Decisin in Draft Either ne f the panel members r smene else may write the decisin after the panel has made the decisin and is able t cnvey its reasns. A best practice fr decisin writers is t have smene else review the draft decisin. The fllwing tips can assist a persn t cllabratively review a decisin drafted by smene else. Tips fr Cmmenting n a Decisin Written by Smene Else respect the final decisin but lk fr the way the written dcument cnveys that decisin lk at the decisin frm the cmplainant s perspective will the cmplainant understand the decisin and reasns fr decisin? prvide feedback n accuracy, clarity, understand ability, lgic, flw, structure pint ut where the decisin des nt include the pieces required by MRAC prvide suggestins n grammar but respect the final chice may rest with smene else cmpare the decisin t any style guide adpted by the ARB t see that the style guide has been fllwed and if nt make suggestins fr imprvement pint ut gaps in lgic r flw but leave the final alteratin t the writer and final chices t the panel respect that writing is difficult wrk, ften dne in a time crunch, and that yur chice f wrds may nt be the same as the writer s Csts and Penalties Part f the decisin making bligatin f panels can be t award csts r penalties fr actins r psitins taken during the prcess. Each ARB may have different pwers and different legislative requirements. A CARB and the MGB have authrity t award csts under sectin 52 f MRAC. A LARB des nt have authrity t award csts. Under sectin 52f MRAC: Municipal Affairs Administrative Law II Page 78 f 99 Gvernment f Alberta September 2012

79 any party t a hearing can apply t have the CARB r MGB award csts a party must apply n later than 30 days after the hearing ends when deciding whether t award csts after an applicatin, the CARB r MGB may cnsider whether there was an abuse f prcess Mdule 4 whether the party applying fr the csts incurred additinal r unnecessary expenses as a result f an abuse f prcess. the CARB r MGB can decide n its wn initiative and at any time t award csts the panel can nly award csts set ut in Schedule 3 MRAC dictates wh pays the csts Schedule 3 states a CARB r MGB may award csts if it determines a hearing was required t determine a matter that did nt have a reasnable chance f success. Imprtant Ntes: Befre a panel decides t award csts r hw much, it must (as part f fair prcess) allw each party t present its evidence and arguments abut csts. Csts under sectin 52 and Schedule 3 f MRAC are punitive in nature. MRAC des nt define abuse f prcess but Schedule 3 utlines the types f cnduct that might guide a panel t determining whether an actin is an abuse f prcess. Generally a panel wuld nt award csts if the cmplainant withdraws a matter during the disclsure prcess r if the cmplainant withdraws a matter after disclsure but befre the hearing begins. MRAC des nt define reasnable chance f success in Schedule 3 and panels will have t decide what that phrase means. Generally the mere fact the cmplaint was nt successful des nt mean the cmplaint did nt have a reasnable chance f success. Tips When Dealing With Csts r Penalties Determine if the legislative standard is mandatry r discretinary If the panel has a discretin t set r alter the csts r penalties, cnsider all the evidence and arguments abut what circumstances exist fr lesser, higher, prescribed r n csts r penalties Determine what meaning t give t wrds like abuse f prcess is this mere incnvenience r extra wrk r time? Is it intentinal cnduct which undermines the fairness f the prcess; is it smething else? Cnsider any infrmatin frm the parties that might excuse r justify the actin r psitin Cnsider any infrmatin shwing the ther party has cntributed t the ffending actin Cnsider any infrmatin abut prejudice arising frm the ffending actin Cnsider what will be fair t the ther party in all the circumstances Take a balanced apprach cases will arise which are better r wrse than this case. Municipal Affairs Administrative Law II Page 79 f 99 Gvernment f Alberta September 2012

80 Mdule 4 Exercise #7 - Decisin Making & Writing The fllwing case study is based n an actual cmplaint that was filed in the Municipal District f Fthills N.31. In this exercise, yu will nly be dealing with nn- assessment matters. This case study will be cntinued in the Principles f Assessment curse t include assessment related matters. T simulate a panel f the bard, yu will be separated int grups f three and asked t review the issues and make decisins n each f thse issues using the decisin making mdel. Yu will then write yur decisin n each f these matters keeping in mind the legislated requirements fr decisins. Instructins: Each member f yur panel shuld read the attached case study carefully. As a grup, make yur decisins n each issue and remember t include: the issue(s) that must be decided upn. the legislatin (if any) that pertains t the issues. any principles f natural justice (if any) that may need t be cnsidered fr the issues the appellant s arguments the respndent s arguments yur findings f fact, and reasns fr yur decisin n each issue Write yur decisins n each issue, and review fr cntent. Select a spkespersn frm yur panel t reprt t the grup *Remember, if there is a dissenting decisin n any issue, that dissent must be included in the verall decisin. The Case t Be Decided Cargill Limited, represented by Wilsn Laycraft - Cmplainant and Municipal District f Fthills N. 31, represented by Brwnlee LLP - Respndent BACKGROUND/SUMMARY: The Cmplainant wns and perates the Cargill Fds High River beef prcessing plant. The Cmplaint is against the prperty assessment fr Taxatin Year 2010 which is cmprised f three parts: The fully integrated beef prcessing plant has capacity t prcess 4,500 head f live cattle per day. Apprximately 2,000 wrkers, perating in tw shifts, perate the plant. The facility reduces live cattle t dress carcass frm as well as prcessing and packaging certain by-prducts such as edible and inedible cmpnents and hides. There is significant refrigerated freezer and cler space within the plant fr strage and preparatin f finished prduct fr shipping t custmers. Much f the handling prcesses are fully r partially autmated. Originally cnstructed in 1989, the plant has been expanded ver the years t its current size and capacity. The plant has a flr area f ver 430,000 square feet. Ancillary buildings n site add almst 29,000 square feet f building area. The entire plant utilizes abut 60 acres f the acre parcel. The prperty is situated n the east side f Alberta Highway 2A, abut three kilmetres nrth f the Twn f High River. Municipal Affairs Administrative Law II Page 80 f 99 Gvernment f Alberta September 2012

81 PRELIMINARY ISSUES: Mdule 4 The Respndent bjected t the Cmpsite Assessment Review Bard (CARB) panel as cnstituted, making applicatin fr CARB Presiding Officer W. Kipp t recuse himself frm this hearing. Grunds fr the applicatin were that the Respndent has a reasnable apprehensin f bias as fllws: Mr. Kipp is invlved in subsisting litigatin (Genesis Investrs v. Genesis Land Develpment Crp.). Brian Gettel, witness fr the Respndent, is invlved in the same litigatin supprting an adverse interest. Mr. Kipp has been retained by the slicitr fr Cargill in the past, and has appeared in at least ne MGB (Municipal Gvernment Bard) assessment hearing (Crridr Pipeline) as an expert witness fr the slicitr fr Cargill. Mr. Gettel, witness fr the Respndent, had pinted ut t cunsel fr the Respndent, that he and Mr. Kipp were bth invlved in the Genesis litigatin matter, each acting fr different parties t the litigatin. Other than sme speculatin regarding the litigatin and the rles f Mr. Gettel and Mr. Kipp, cunsel fr the Respndent had n further infrmatin. Cunsel cnceded that the matter had nt been fully explred. With respect t the invlvement f Mr. Kipp with the slicitr fr the Cmplainant, cunsel fr the Respndent indicated that Mr. Kipp had acted as an expert witness fr the slicitr at a Municipal Gvernment Bard hearing regarding as assessment f the Crridr Pipeline. There was n indicatin whether r nt the Crridr Pipeline appeal has any similarities t this Cargill cmplaint. Any present r past link with either party culd lead a reasnable persn t think that there culd be a reasnable apprehensin f bias. Cunsel fr the Respndent cited cases where apprehensin f bias had been an issue. Tw Municipal Gvernment Bard (MGB) cases were mentined. In ne case, a frmer MGB member was appearing befre that bard as a witness. That was nt fund t be a situatin where there was a reasnable apprehensin f bias. In the secnd situatin, where Bard members were sitting n a case where there were similar issues t cases where thse members had previusly sat and decided, there was n finding f an apprehensin f bias. Cunsel fr the Cmplainant pinted ut that the passage f time is a very relevant factr t cnsider. Further, just because a bard member has sat n a prir case invlving similar subject matter des nt lead a reasnable persn t an apprehensin f bias. Frm a practical perspective, the cmmunity f appraisers is quite small. Reference was made t the Bardwalk case heard by the Alberta Curt f Appeal a number f years ag. In Bardwalk, a judge was asked t step dwn because that judge had prir dealings with the same tax cnsulting cmpany that was representing a party at the appeal hearing. Different individuals were invlved and the judge had resided in a different city. He added that Mr. Kipp had nt perfrmed any wrk fr his law firm since being appinted t the MGB and that there is n present relatinship that wuld give rise t an apprehensin f bias. By his recllectin, any wrk Mr. Kipp had dne n the Crridr Pipeline case had been fur r five years ld s time had well passed fr any reasnable apprehensin f bias. With regard t the Genesis case, it appeared frm the Respndent s cmments that Mr. Kipp was playing a rle as an expert in that case. There wuld therefre nt be a relatinship between him and Mr. Gettel. In this current situatin, there was n suggestin that Mr. Kipp had any past r present link with the Cmplainant, Cargill. Simply because Mr. Kipp had perfrmed wrk fr a law firm in the past des nt give necessarily t reasnable apprehensin f bias. The duty f the Bard, nt nly Mr. Kipp but als fr the lcally appinted members is t make a decisin independent f all municipal influences. Bard members must apprach the case bjectively and bring their wn independent analysis. In clsing, Cunsel fr the Respndent stated that cases invlving judges and allegatins f reasnable apprehensin f bias shuld be viewed smewhat differently than at this level (the Cmpsite Assessment Review Bard level). The Respndent nted that land had nt been identified n the Cmplaint Frm (Exhibit 1) as an issue. Municipal Affairs Administrative Law II Page 81 f 99 Gvernment f Alberta September 2012

82 Mdule 4 Fr that reasn, land wuld nt be smething this Bard culd deal with under Sectin 9(1) f the Matters Relating t Assessment Cmplaints Regulatin (Alberta Regulatin 310/2009) (MRAC). The Cmplainant infrmed the Bard that Mr. Beatty, the appraisal witness fr the Cmplainant, had undertaken a market valuatin f the real prperty which included bth land and buildings. It wuld therefre be up t the Bard t decide whether land is an issue in the cmplaint. The Respndent wanted clarificatin f the revised assessment being requested by the Cmplainant. On the Cmplaint Frm (Exhibit 1), the requested assessment was $75,000,000. In evidence submitted t the CARB, the request was fr an assessment f $50,353,667. As in the prir issue, the CARB s jurisdictin is prescribed by 9(1) f MRAC and that the value set ut n the Cmplaint Frm shuld be the ne t cnsider at the hearing. The intent f the new rules and frm fr prperty assessment cmplaints was t get early disclsure regarding the issues s that the parties knew what the cmplaint was abut and thus, be able t prceed accrdingly. Given the significant difference between the number n the Cmplaint Frm and the number in evidence, that is mre than was intended by the legislatrs when they passed amendments t the Municipal Gvernment Act and its related regulatins such as MRAC. On behalf f the Cmplainant, Cunsel pinted ut the area n the filed Cmplaint Frm where it was stated that the Cmplainant was seeking pinins frm utside experts. The $75,000,000 number n the frm was a preliminary number nly. Prir 2010 CARB decisins frm a number f jurisdictins acrss the prvince had dealt with this matter and the requests n Cmplaint Frms were accepted as preliminary numbers based n an initial analysis. The CARB shuld nt be lcked in t a specific request such as $75,000,000. There culd be findings by the CARB that the prper assessment lies between the current assessment and the requested assessment and the CARB wuld have its hands tied if it was bund by ne number r the ther. The Respndent infrmed the CARB that it was their understanding that ther CARB decisins regarding the weight t be given the frm and its cntents had gne bth ways sme in favur f the Cmplainant and thers in favur f the Respndent. It was the Respndent s psitin that the rebuttal reprt filed by Mr. D Easum (Exhibit 5A) was nt rebuttal evidence. It was merely new evidence that culd have and shuld have been prperly disclsed during the required evidence disclsure time perid. Sectin 8(2)(a) f MRAC sets ut clear rules n disclsure and that sectin must be rigrusly fllwed. It is imprper fr a party t put in its case thrugh rebuttal when it shuld have been dne in the initial filing. In the case f the D Easum rebuttal reprt, it des nt respnd t any evidence that was put in by the Respndent. It simply attaches a number f dcuments withut explanatin r reference t Respndent evidence. MRAC requires that rebuttal evidence be in sufficient detail t allw the Respndent t respnd r rebut the evidence at the hearing and this dcument des nt d that. The Cmplainant maintained that the D Easum rebuttal reprt was respnsive t what is in the Driscll reprt (Exhibit 4D). Links between the cntent f the Driscll reprt and the D Easum rebuttal reprt were pinted ut t the CARB by reference t specific pages in the dcuments. Municipal Affairs Administrative Law II Page 82 f 99 Gvernment f Alberta September 2012

83 References and Resurces References and Resurces Fundatin f Administrative Justice Certificate Prgram Curses Administrative Decisin Writing, A.C.L. Sims, February 14, 1994 C.I.A.J. Cnference Reasns fr Decisin by ARB, Kerans, J., February, 1994 C.I.A.J. Cnference An Editing Checklist, Maryhelen Vicars, February, 1994 C.I.A.J. Cnference A Few Chse Verses frm the Plain English Bible, Maryhelen Vicars, February, 1994 C.I.A.J. Seminar The Decisin Writing Prcess Plain English fr Lawyers (2 nd editin), Richard Wydick, (1985) Carlina Academic Press Practice and Prcedure Befre ARBs, MaCaulay & Sprague Citatin, Canadian Citatin Cmmittee, (2001) Hallmarks f Quality Appeal Divisin Decisins, (2001) B. C. Wrkers Cmpensatin Reprter, Vl. 17, Appeal Divisin Decisin N. 33 Standards fr the Preparatin, Distributin and Citatin f Canadian Judgements in Electrnic Frm, Canadian Judicial Cunsel (1996) Pwers and Prcedures fr ARBs in Alberta (December, 1999) Alberta Law Refrm Institute Plain Language, Clear and Simple (1991) Canada Cmmunicatin Grup - Publishing Advising the Bard: The Scpe f Cunsel s Rle in Advising ARBs, Murray Rankin and Leah Greathead, CDN. Jurnal f Administrative Law & Practice 7 C.J.A.L.P. 29 Preparing t Write Clearly, (1996) Harper and Assciates, B.C. Cuncil f ARBs Fact Finding and the Judiciary, Judge Gerald T. G. Seniuk and Jhn C. Yuille, Ph. D., (1997) C.C.A.T. Cnference Behind Clsed Drs: The Prcess f Making Decisins, Innis Christie (1997) C.C.A.T. Cnference All Abut Decisin Letters: WCB Style fr Decisin Letters (1999) Sims Grup Arbitratr Training Materials Canadian Mtr Vehicle Arbitratin Plan Handling the Evidence frm Pre-Hearing t Final Reasns, Justice J.I. Laskin ON. C.A. (2002) C.C.A.T. Cnference The Hearing is Over: Writing Languages in Plain Language, David C. Ellitt Black, Henry Campbell. Black s Law Dictinary, Abridged Fifth Editin, Set-Paul, West Publishing C., Blake, Sara. Administrative Law in Canada, Trnt, Butterwrths, Municipal Affairs Administrative Law II Page 83 f 99 Gvernment f Alberta September 2012

84 References and Resurces Canadian Bar Assciatin. Reprt f the Task Frce n the Independence f Federal ARBs and Agencies in Canada, Ottawa, Canadian Jurnal f Administrative Law Practices Jnes and De Villars. Principles f Administrative Law, Trnt, Carswell, Law Refrm Cmmissin f Canada. Independent Administrative Agencies, Wrking Paper 25, Ottawa, Minister f Supply and Services Canada, Macaulay, R.W. and Sprague, J.L.H. Practice and Prcedure Befre ARBs, Trnt, Carswell, Reid, Administrative Law Administrative Law: An Overview, dcument prepared by the Legal Services Sectr f the Department f Justice and mdified fr use by the Natinal Transprtatin Agency. Members Handbk, prepared by the Immigratin and Refugee Bard. Members Orientatin Bk, prepared by the Canadian Radi-televisin and Telecmmunicatins Cmmissin. Pwers and Prcedures f ARBs Alberta Law Refrm Institute Cnsultatin Memrandum N. 13, Sept 2008 Edmntn. Municipal Affairs Administrative Law II Page 84 f 99 Gvernment f Alberta September 2012

85 References and Resurces A User's Guide t Legislatin Frm Alberta Justice and Slicitr General website. Statutes f Alberta: annual vlumes Each year the public acts and private acts enacted by the Legislature that year (bills that receive Ryal Assent) are published by the Alberta Queen's Printer in a hard-cver vlume. The vlume als cntains reference materials. The annual vlumes f the Statutes f Alberta are the authritative surce fr interpreting and applying Alberta's acts. Public acts include entirely new public acts, public amendment acts, repeal acts and apprpriatin acts. Private acts are brught frward (r "petitined") by Members f the Legislative Assembly, and d nt affect the ppulatin as a whle. The annual vlume cntains: a table f cntents that lists the acts by chapter number an alphabetical list f acts public acts enacted in that year private acts enacted in that year reference materials. The first page f each act cntains the fllwing infrmatin: the bill number under which the act was intrduced in the Legislative Assembly (in the upper left hand crner) the title f the act the chapter number assigned t the act the date n which the act was given Ryal Assent. Statutes f Alberta: lse-leaf The Alberta Queen's Printer als publishes a 15-vlume lse-leaf cnslidatin f the public acts, excluding apprpriatin acts. These vlumes are updated as sn as pssible after new acts are enacted r amendments cme int effect. Vlumes 1 t 15 cnslidate the public acts enacted by the Alberta Legislature. Vlume 15 als cntains thse amendment acts frm the Revised Statutes f Alberta 2000 that are still awaiting prclamatin, RSA 2000 Schedules A t D, prclamatin tables, and the Table f Public Statutes (printed n pink paper). The lse-leaf versin is an unfficial cnslidatin. The riginal acts, in the hard cver vlumes f the Revised Statutes f Alberta 2000 and the annual Statutes f Alberta, shuld be cnsulted fr all purpses f interpreting and applying the law. The Alberta Gazette Part II Regulatins filed under the Regulatins Act, except thse exempted frm publicatin under that act, are published in Part II f The Alberta Gazette within a mnth f being filed. The Gazette is available frm the Alberta Queen's Printer. Other Frmats Municipal Affairs Administrative Law II Page 85 f 99 Gvernment f Alberta September 2012

86 References and Resurces Alberta Statutes and Regulatins are als available in pamphlet frm, and n the Alberta Queen's Printer web site. Hw t cite statutes (Acts) Statutes (Acts) are referred t by their titles. Fr curt and ther legal purpses, a cmplete citatin wuld cnsist f the title f the act fllwed by a reference t the mre recent f the mst recent statute revisin in which that act was included the year in which the act was enacted (received Ryal Assent) plus the chapter number f the act. Entirely new public acts are given alpha-numeric chapter numbers; ther acts are numbered Chapter 1, 2, 3 etc. The statute revisin is cited in this frm: Revised Statutes f Alberta This may be abbreviated as RSA Years f enactment are cited in this frm: Statutes f Alberta, This may be abbreviated as SA Here are sme examples f citatins f acts: Cperatives Act (SA 2001 cc-28.1); Hspitals Act (RSA 2000 ch-12); Public Wrks Amendment Act, 2002 (SA 2002 c21). Hw t cite regulatins A regulatin may be cited by its title, r as "Alberta Regulatin" r "Alta. Reg." r "AR" fllwed by its number, a slash and the last tw figures f the calendar year f the filing f the regulatin. Fr example, the Partnership Regulatin may be cited as: Partnership Regulatin, r Partnership Regulatin, Alberta Regulatin 276/99, r Partnership Regulatin (Alta. Reg. 276/99), r Partnership Regulatin (AR 276/99) Beginning with regulatins filed in the year 2000, all fur figures f the calendar year are used in Alberta Regulatin numbers; fr example, Change f Name Regulatin (AR 16/2000). Interpretatin Act Users f the Statutes f Alberta shuld be aware f the Interpretatin Act (RSA 2000 cl-8). It sets ut varius presumptins, definitins, and rules f statutry interpretatin and cnstructin that apply t all Alberta acts and regulatins. Fr example, the Interpretatin Act cntains definitins that apply t wrds and phrases used in all acts, except where an act indicates therwise. Municipal Affairs Administrative Law II Page 86 f 99 Gvernment f Alberta September 2012

87 References and Resurces Reference Materials Reference aids are placed at the end f the annual vlume and in the supplement vlume f the lse-leaf statutes. The reference materials included are: Prclamatin Tables - (printed n white paper) These tables list: all enactments brught int frce by prclamatin unprclaimed public enactments acts amended by unprclaimed enactments acts repealed by unprclaimed enactments public enactments that expire n named dates public enactments that cme int frce n named dates. Table f Public Statutes - (printed n pink paper) Part 1 f the table shws all acts in the Revised Statutes f Alberta 2000, all amendments t thse acts, and all ther public acts and amendments enacted between December 31, 2000 and the date stated in the first paragraph f the table. Part 2 f the table shws public acts enacted befre December 31, 2000 fr which n express repeals have been fund, and which were nt cnslidated in r repealed by the Revised Statutes f Alberta Table f Private Statutes f the Prvince f Alberta - (annual vlume nly: printed n blue paper) The table shws all the private acts, and amendments t them, enacted up t the date printed under the title f the table. RSA 2000 Schedules - (lse-leaf statutes) Schedules A t D t the Revised Statutes f Alberta 2000 are included in the last vlume f the lse-leaf statutes. Schedule A: Acts Cnslidated in RSA 2000 Schedule B: Acts Omitted frm and Repealed by RSA 2000 Schedule C: Acts Nt Cnslidated Nr Repealed by RSA 2000 Schedule D: Table f Cncrdance Organizatin f a Statute (Act) Preambles Sme acts begin with a preamble. The preamble is part f the act and may be used t interpret the act. Municipal Affairs Administrative Law II Page 87 f 99 Gvernment f Alberta September 2012

88 References and Resurces Definitins Mst acts cntain a definitin sectin that lists, in alphabetical rder, definitins f terms used in the act. The definitin sectin is usually at the beginning f the act. Hwever, definitins that are restricted in their applicatin t a sectin, part, divisin r ther prtin f an act may be at the beginning f that sectin, part, divisin r ther prtin. Marginal Ntes and Sectin Headers (Side ntes) Marginal ntes and sectin headers (side ntes) are nt part f the statute and shuld nt be relied n t interpret the act. They are included nly fr cnvenience f reference and may be changed editrially whenever apprpriate. Sectins, Subsectins, etc. Every act is cmpsed f numbered sectins, cited as sectin 1, 2, 3, etc. many sectins are further divided int tw r mre subsectins, cited as subsectin (1), (2), (3), etc. sme sectins and subsectins cntain clauses, cited as clause (a), (b), (c), etc., subclauses, cited as subclause (i), (ii), (iii), etc.,paragraphs, cited as paragraph (A), (B), (C), etc., and subparagraphs, cited as subparagraph (I), (II), (III), etc. Decimal Numbering The numbering system can be easily understd by regarding each sectin number as if it were fllwed by a decimal pint and sme zers that are nt shwn; that is, sectin 4 can be thught f as 4.0 r 4.00 etc. In applying the system, nly ne decimal place is usually needed, s that between sectins 4 (4.0) and 5 (5.0) sectins 4.1 t 4.9 can be added (4.10 is nt used since it is the same as 4.1), fr a ttal f nine sectins. By later amendments, up t nine mre sectins can be added between any tw sectins by using tw decimal places, fr example: between sectin 4 and 4.1, sectins 4.01 t 4.09 can be added, between sectins 4.1 and 4.2, sectins 4.11 t 4.19 can be added, and between sectins 4.9 and 5, sectins 4.91 t 4.99 can be added and in the same manner a further nine sectins can be added between any f thse sectins by using three decimal places. If it is necessary t add mre than nine sectins in the same place at the same time, then sme f the sectins are numbered using an additinal decimal place. The same rules apply t adding new subsectins, clauses, subclauses and paragraphs, s that subsectins are numbered (1.1) t (1.9), clauses are numbered (a.1) t (a.9), Municipal Affairs Administrative Law II Page 88 f 99 Gvernment f Alberta September 2012

89 References and Resurces subclauses are numbered (i.1) t (i.9), paragraphs are numbered (A.1) t (A.9), and subparagraphs are numbered (I.1) t (I.9). Parts, Divisins Sme acts are divided int numbered parts, cited as Part 1, Part 2, etc. A part may be divided int divisins cited as Divisin 1, Divisin 2, etc. Transitinal Prvisins If an act r prvisin cannt cme int frce n an intended day withut hardship r cnfusin ccurring, the act may cntain a transitinal prvisin. Transitinal prvisins are used t prvide fr the transitin frm an earlier act t the act that replaces it, r t phase in hw a new r an amending act applies t persns affected by it. A transitinal prvisin may be included in an act if, fr example, certain prvisins f the previus act will apply fr a significant perid f time r if the prvisins may affect many persns. Transitinal prvisins are usually lcated near the end f the act. Cnsequential Amendments Cnsequential amendments in an act amend ther acts that are affected by that act. Cnsequential amendments are included in the acts as published in the annual vlume. In the lse-leaf statutes and ffice cnslidatins, all amendments are incrprated int the amended acts. If an act made cnsequential amendments t ther acts, an editrial nte t that effect is included in the cnslidated amending act. Repeal Prvisins Prvisins repealing ther acts are placed near the end f the act, immediately befre the cming int frce sectin. Cming Int Frce Prvisins The sectin dealing with the cming int frce f an act r f prvisins f an act is usually the last sectin f the act. If there is n cming int frce prvisin in an act, the Interpretatin Act (RSA 2000 cl-8) prvides that the act cmes int frce n the date f Ryal Assent. The Ryal Assent date is n the first page f each act in the annual statute vlume, fllwing the chapter number. If an act, r a prtin f an act, cmes int frce in a manner ther than by Ryal Assent, the last sectin f the act will set ut the methd. The act, r prtin f the act, may cme int frce n prclamatin r n a named future date, r may be deemed t have cme int frce n a named previus date. Citatins (Histrical References) Each sectin f a cnslidated act is fllwed by the citatin fr that sectin and the citatins f any amendments t that sectin. Citatins d nt frm part f the act. They are added editrially. Municipal Affairs Administrative Law II Page 89 f 99 Gvernment f Alberta September 2012

90 References and Resurces Attached Dcuments: 1. Cmplaint Frm 2. Ntice Types 3. Cmplaint Prcess and timeline fr a LARB 4. Cmplaint Prcess and timeline fr a CARB 5. Cmplaint Prcess and timeline fr the MGB 6. Prcess fr Administrative Clerks Municipal Affairs Administrative Law II Page 90 f 99 Gvernment f Alberta September 2012

91 References and Resurces The Assessment Review Bard Cmplaint Frm - Frnt Municipal Affairs Administrative Law II Page 91 f 99 Gvernment f Alberta September 2012

92 References and Resurces The Assessment Review Bard Cmplaint Frm - Back Municipal Affairs Administrative Law II Page 92 f 99 Gvernment f Alberta September 2012