IN THE MATTER OF AN APPEAL PURSUANT TO S. 50 OF THE ASSESSMENT ACT

 

CONCERNING:

 

 

Ventana Ventures Corp.

Hail Mary Ventures Ltd.

5161 Investments Ltd.

3523 Investments Ltd.

Sundial Properties Inc.

 

APPELLANTS

 

AND

 

 

Assessor Of Area #08 - Vancouver Sea To Sky Region

 

RESPONDENT

 

Appeal Nos.:	2008-08-00055; 2008-08-00056; 2008-08-00057; 2008-08-00058; 2008-08-00059
Refer to as:	Sundial Properties et. al. v. Area 08 (2009 PAABBC 20090036)
Date of Decision:	June 3, 3009
Properties:	See Appendix “A”
Heard:	By Written Submissions, closing May 4, 2009
Submissions:	From the Appellants dated April 6, 2009 and May 4, 2009
	From the Respondent dated April 27, 2009
Board Panel:	Robert A. Kasting, Panel Chair

 

 

INTRODUCTION AND ISSUE

 

[1] The properties are 32 strata lots in a stratified building in Whistler, British Columbia.  The registered owner in the land title office of each strata lot is KKBL No. 376 Ventures Ltd.  Each of the Appellants is the beneficial owner of several of the strata lots.  For the 2008 roll, all of these lots were classified exclusively as Class 6 - Business and Other.  The Appellants say that these lots should receive a split classification between Class 6 - Business and Other and Class 1- Residential as strata accommodation property pursuant to section 1(a) of the Prescribed Classes of Property Regulation, B.C. Reg. 438/81.  For strata accommodation property to qualify for residential classification various use and reporting criteria and conditions of ownership must be met.  The issue in these appeals is whether the Appellants, as beneficial owners, are “owners” within the meaning of the Assessment Act and Regulation thus entitling the properties to a split classification.

 

FACTS

 

[2] The facts are not in dispute and were submitted to the Board by way of an Agreed Statement of Facts.

 

[3] KKBL No. 376 Ventures Ltd (“KKBL”) is registered in the land title office as the owner of the 32 Strata Lots in question.  Sundial Properties Inc is the beneficial owner of 11 of the 32 strata lots.  5161 Investments Ltd is the beneficial owner of 10 of the lots.  3523 Investments Ltd is the beneficial owner of 4 1/3 of the lots; Ventana Ventures Corp is the beneficial owner of 2 1/3 of the lots; Hail Mary Ventures Ltd is the beneficial owner of 4 1/3 of the lots.  A 33^rd lot is referred to in the Agreed Statement of Facts, but the appeal with respect to its classification has been withdrawn.

 

[4] Attached as Appendix “A” to this decision is a list of the 32 strata lots in question, their roll numbers, and their registered and beneficial owners.

 

[5] A variety of parties, including the Appellant beneficial owners and KKBL, the registered owner, entered into a Partition Agreement confirming that KKBL holds the legal title to the strata lots as the “nominee, agent and bare trustee” on behalf of the beneficial owners.

 

[6] The 2008 Property Assessment Notices for the 32 strata lots classified them all as “Business and Other”.  The basis for this classification is found within the definition section of the Assessment Act.  The “owner” for the purposes of assessment is defined in s. 1 of the Act as follows:

“owner” in respect of real property, means the registered owner of an estate in fee simple,and includes,

            (a)        if a person is a registered owner of a life estate, the tenant for life,

            (b)        if there is an agreement for sale and purchase of the real property, the registered holder of the last registered agreement for sale and purchase, and

            (c)        if the real property is held or occupied in the manner referred to in sections 26, 27 and 28, the holder or occupier;

 

THE PARTIES’ POSITIONS

 

[7] The Appellants say that the definition of “owner” in the Act is not restricted to the registered owner of the property and ownership for the purposes of this definition includes different degrees of ownership, including beneficial ownership.

 

[8] The Respondent says that the definition is restricted, in this case, to the legal owner of the property, as registered in the land title office and that the statute does not permit the definition to be expanded to include beneficial owners.

 

ANALYSIS

 

[9] The definition of “owner” has two parts.

 

[10] The first part contains the following words:

            “owner”, in respect to real property, means the registered owner of an estate in fee simple.

 

[11] The “registered owner in fee simple” is also defined within the Act as:

 

            a person registered in the books of the land title office as entitled to an estate in fee simple in real property, and in respect of a lesser estate, includes a person who registers a charge

 

[12] There is no dispute between the parties that, if the definition of owner were limited to its first part, this appeal would fail.

 

[13] The second part of the definition provides the Appellants with the source of their appeal.  The second part of the definition expands the definition to “include” three enumerated situations:

 

            (a)        if a person is a registered owner of a life estate, the tenant for life,

            (b)        if there is an agreement for sale and purchase of the real property, the registered holder of the last registered agreement for sale and purchase, and

            (c)        if the real property is held or occupied in the manner referred to in section 26, 27 and 28, the holder or occupier;

 

[14] The Appellants do not contend that the situation of beneficial ownership falls within any of these enumerated inclusions.  They contend rather, that the legislation, by including within the definition of “ownership” these three examples of lesser estates than fee simple, has expanded the definition of ownership to include other lesser estates, such as beneficial ownership.  They invoke the contextual principles of statutory interpretation enunciated by Bell Expressive Limited Partnership v. Rex, 2002 SCC 42 and rely heavily upon their interpretation of CPR v. British Columbia (Assessor of Area #09 – Vancouver), 2007 BCSC 1773.

 

[15] The Appellants’ submissions fail.

 

[16] I find the definition of “owner” is inclusive, only in that it includes life estates, agreements for purchase and sale, and ss. 26-28 interests within the definition of estates in fee simple.  It is not inclusive in an expansive sense that opens the door to other estate-hold interests.  In the case of life estates and agreements for purchase and sale, these interests must also be registered in the land title office.

 

[17] The issue has arisen previously before this Board.  In Agnello v. Area 15 (2009 PAABBC 20081820), this Board, dealing with a similar issue, stated at paragraph [18]:

 

I find the definition of “owner” is exclusive and limited by the enumerated list.  The use of “includes” in the context is not expansive and does not imply that every sort of ownership interest that may exist beyond those listed are also included.

 

[18] Likewise, in Van Twest v. Greater Vancouver Transportation Authority (2006 PAABBC 20071223), this Board stated at paragraph [26]:

 

            An ordinary reading of the definition of “owner” in the Assessment Act indicates that it does not distinguish between legal ownership or beneficial ownership.  It refers to the “owner” as the registered owner of the fee simple interest except in three situations, such as when there is a registered life tenant, registered agreement for sale or there is an occupier pursuant to other sections of the Assessment Act….(29).  Therefore, if a registered owner in fee simple of a property holds the property pursuant to a trust arrangement for a beneficiary of that trust, it is the registered owner under the Assessment Act, and similarly under the GVTTAA Act, that is determined to be the “owner” even though the beneficial owner may be different.

 

[19] I agree with the reasoning and conclusions in both of these decisions.

 

[20] The Appellants rely heavily on the reasoning of the Supreme Court of British Columbia in CPR v. British Columbia (Assessor Area No. 9 – Vancouver) 2007 BCSC 1773.  In this case, as a result of a previous BC Supreme Court decision in a dispute over the ownership of the property, ownership was held to be vested in the federal Crown.  The title had not yet been corrected in the land title office and the Appellants were assessed property taxes as if they were the owners.  It was common ground that the records of the land title office were in error.

 

[21] Bruce J. allowed the appeal, holding that the definition of “owner” in the Assessment Act must be subject to conclusive evidence that the records of the land title office were in error.  (Para 53) and the change in title was merely an administrative act needed to correct this error (Para 56).  The Court relied upon the authority of Rizzo & Rizzo Shoes Ltd. [1998] 1 SCR 27 to prevent the “absurd consequence” of having the loser in litigation over the ownership of the property be held responsible for paying taxes on it.

 

[22] This case does not assist the analysis in the matter before me.  There is no error in the land title office and no court order changing title to the property.  The statute clearly contemplates the situation before me and provides a clear answer.  The consequence is not an absurd one, but is the consequence intended by the Act.

 

[23] The Appellant also relies upon Re Whistler Village Land Co. Ltd. (1981) 121 DLR (3^rd) 283 (BCSC) as authority for the expansion of the definition of “owner”.  In this case, land was held in trust for the municipality of Whistler.  The issue was whether the municipality, as beneficial owner, could take advantage of the taxation exemptions within the Municipal Act.  The Court held that the statutory exemption applied to land held in trust for the municipality, and that the assessor could not ignore the exemption created by the Municipal Act.

 

[24] Re Whistler Village does not assist the Appellants’ case.  In the case before me, there is no statutory exemption against which to measure the definition of “owner” in the Assessment Act.

 

[25] As the statute is clear and the case law does not support the Appellants’ position, the appeal is not sustainable.

 

[26] I find the Appellants are not “owners” within the meaning of the Assessment Act and the properties, therefore, do not qualify to be split classified between Class 1 – Residential and Class 6 – Business and Other under the Regulation.

 

ORDER

 

[27] The Board confirms the decisions of the 2008 Property Assessment Review Panel classifying each folio as Class 6.

 

APPENDIX A

 

Roll Number	Registered owner	Beneficial owner
08-48-390-501570.019	KKBL No. 376 Ventures Ltd.	Sundial Properties Inc.
08-48-390-501570.024	KKBL No. 376 Ventures Ltd.	Sundial Properties Inc.
08-48-390-501570.025	KKBL No. 376 Ventures Ltd.	Sundial Properties Inc.
08-48-390-501570.030	KKBL No. 376 Ventures Ltd.	Sundial Properties Inc.
08-48-390-501570.032	KKBL No. 376 Ventures Ltd.	Sundial Properties Inc.
08-48-390-501570.037	KKBL No. 376 Ventures Ltd.	Sundial Properties Inc.
08-48-390-501570.047	KKBL No. 376 Ventures Ltd.	Sundial Properties Inc.
08-48-390-501570.052	KKBL No. 376 Ventures Ltd.	Sundial Properties Inc.
08-48-390-501570.056	KKBL No. 376 Ventures Ltd.	Sundial Properties Inc.
08-48-390-501570.059	KKBL No. 376 Ventures Ltd.	Sundial Properties Inc.
08-48-390-501570.063	KKBL No. 376 Ventures Ltd.	Sundial Properties Inc.
08-48-390-501570.018	KKBL No. 376 Ventures Ltd.	5161 Investments Ltd.
08-48-390-501570.021	KKBL No. 376 Ventures Ltd.	5161 Investments Ltd.
08-48-390-501570.022	KKBL No. 376 Ventures Ltd.	5161 Investments Ltd.
08-48-390-501570.028	KKBL No. 376 Ventures Ltd.	5161 Investments Ltd.
08-48-390-501570.034	KKBL No. 376 Ventures Ltd.	5161 Investments Ltd.
08-48-390-501570.036	KKBL No. 376 Ventures Ltd.	5161 Investments Ltd.
08-48-390-501570.046	KKBL No. 376 Ventures Ltd.	5161 Investments Ltd.
08-48-390-501570.049	KKBL No. 376 Ventures Ltd.	5161 Investments Ltd.
08-48-390-501570.065	KKBL No. 376 Ventures Ltd.	5161 Investments Ltd.
08-48-390-501570.066	KKBL No. 376 Ventures Ltd.	5161 Investments Ltd.
08-48-390-501570.020	KKBL No. 376 Ventures Ltd.	3523 Investments Ltd.
08-48-390-501570.027	KKBL No. 376 Ventures Ltd.	3523 Investments Ltd.
08-48-390-501570.029	KKBL No. 376 Ventures Ltd.	3523 Investments Ltd.
08-48-390-501570.033	KKBL No. 376 Ventures Ltd.	3523 Investments Ltd.
08-48-390-501570.044	KKBL No. 376 Ventures Ltd.	3523 Investments Ltd.
08-48-390-501570.036	KKBL No. 376 Ventures Ltd.	Ventana Ventures Corp.
08-48-390-501570.043	KKBL No. 376 Ventures Ltd.	Ventana Ventures Corp.
08-48-390-501570.044	KKBL No. 376 Ventures Ltd.	Ventana Ventures Corp.
08-48-390-501570.031	KKBL No. 376 Ventures Ltd.	Hail Mary Ventures Ltd.
08-48-390-501570.038	KKBL No. 376 Ventures Ltd.	Hail Mary Ventures Ltd.
08-48-390-501570.040	KKBL No. 376 Ventures Ltd.	Hail Mary Ventures Ltd.
08-48-390-501570.055	KKBL No. 376 Ventures Ltd.	Hail Mary Ventures Ltd.
08-48-390-501570.044	KKBL No. 376 Ventures Ltd.	Hail Mary Ventures Ltd.