Decision and Order
IN THE MATTER OF AN APPEAL PURSUANT TO S. 50 OF THE ASSESSMENT ACT
CONCERNING:
AND
Assessor Of Area #24 - Cariboo
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Appeal No.: |
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Refer to as: |
West Fraser Mills Ltd v. Area 24 (2010 PAABBC 20100044) |
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Date of Decision: |
April 9, 2010 |
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Property: |
1000 Finning Road, City of Quesnel |
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Heard: |
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Appearances: |
James D. Fraser, Barrister and Solicitor, for the Appellant |
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Guy McDannold, Barrister and Solicitor, for the Respondent |
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Board Panel: |
Cheryl Vickers, Panel Chair |
INTRODUCTION AND ISSUE
[1] This is the Respondent Assessor’s application to add an issue to this appeal.
[2] The appeal relates to the 2009 assessment of the Appellant’s pulp and paper mill at Quesnel, BC. The Appellant raised numerous issues with respect to the costing of various improvements and an issue as to whether the Moving Bed Biofilm Reactor (MBBR) is entitled to an exemption from taxation. The Assessor now asks the Board to hear an additional exemption issue alleging that the Post Effluent Clarifier has been improperly exempted from taxation. The issue is whether the Board should exercise its discretion to hear the issue respecting whether or not the Post Effluent Clarifier is entitled to be exempt from taxation.
BACKGROUND
[3] In appeal management, the Board set fall 2009 dates for the identification of issues by both parties. The Appellant identified a number of issues with respect to the valuation of the improvements, including Major Industrial Property Manual (MIP Manual) interpretation issues and effective age issues, as well as an issue respecting the entitlement of the MBBR to an exemption from taxation. The parties have been working co-operatively towards the resolution of the various MIP Manual and effective age issues, but advised early on that the exemption issue would likely require adjudication. The Assessor did not initially identify any of his own issues with the 2009 assessment of the property.
[4] As I understand it, the Appellant submits that the MBBR is entitled to an exemption from taxation pursuant to section 220 (1)(q) of the Community Charter as an “effluent reservoir”, an “effluent lagoon”, or a “sewage treatment plant”. Alternatively, the Appellant submits the MBBR is exempt under the Assessment Act Improvements Exclusion (1991) Regulation, BC Reg 69/91 as an “oxygen reactor”. With respect to the first argument, as I understand it, the Appellant says the MBBR functions as an “effluent lagoon” or as an “effluent reservoir” and, therefore, is entitled to the exemption. As I understand it, the Assessor says the MBBR is not an “effluent lagoon” or an “effluent reservoir” and, therefore is not entitled to the exemption.
[5] The parties initially proposed preparation of an Agreed Statement of Facts (ASF) and provisional dates for either a written submission or oral hearing. The Board ordered the preparation of an ASF, identifying both agreed and disputed facts relevant to the MBBR issue, to be delivered to the Board by March 4, 2010. On February 15, 2010, the Assessor sought to add the entitlement of the Post Effluent Clarifier to an exemption from taxation as an issue in the appeal. The Board suspended preparation of the ASF pending its determination of the Assessor’s application.
[6] The Assessor submits that when the Post Effluent Clarifier was added to the roll in 1999 it was exempted in error. Counsel indicates the error was discovered by the Assessor on February 15, 2010 during the course of working on this appeal. Counsel made this application forthwith. The Assessor suggests identification of the new issue will not significantly disrupt appeal management, will require minimal additional facts and no significant additional time. The Assessor submits there is no prejudice to allowing the issue to proceed and that it is in the public interest to allow the issue to proceed to ensure the correction of an error
[7] The Appellant disputes that the Post Effluent Clarifier was coded as exempt in error, and submits it could have been exempted under section 220(1)(q) of the Community Charter as an “effluent reservoir” or “effluent lagoon”. The Appellant suggests the timing of the new issue is “questionable”, and submits that the Post Effluent Clarifier was inspected by the Assessor along with other improvements at the plant in September of 2009 and that any issue with respect to it ought to have been raised earlier. The Appellant submits addition of the new issue will disrupt appeal management, will require significant additional time and expense to develop the factual and expert evidence required to dispose of the issue, and is, consequently, prejudicial to the Appellant. The Appellant submits the entitlement to the exemption is a matter of opinion, there is no “obvious” inaccuracy in the roll, and no immediate and obvious public interest in correcting the roll given the exemption has been in place for 10 years.
[8] With respect to the timing of the Assessor’s application, the Assessor says that following the inspection, the information gathered was reviewed bit by bit as time allowed and that other statutory responsibilities took priority and precluded the Assessor from exclusively focusing on this appeal.
[9] I am advised that the Agreed Statement of Facts is essentially ready. There are a number of facts that I am advised the Assessor is not prepared to accept as agreed, but that he is also not intending to challenge with evidence. Nor do I understand the Assessor to be alleging there are additional relevant facts not already identified in the draft ASF.
[10] Counsel for the Appellant requests that the Assessor prepare a Statement of Issues, Evidence and Analysis (SIEA) so that the Appellant might fully understand the Assessor’s refusal to grant the exemption for the MBBR. Similarly, the Appellant asks that if the Assessor is allowed to pursue the exemption issue for the Post Effluent Clarifier, that he be required to prepare the SIEA for that issue as well.
ANALYSIS
[11] The Assessment Act gives the Board the discretion to open the whole question of a property’s assessment to ensure accuracy (section 57). It also has the power to make rules and orders to control its own processes and to facilitate the just and timely resolution of appeals (Administrative Tribunals Act, section 11). It is well established that in determining whether to exercise its discretion to hear another issue the Board will consider the following factors:
· The need to uphold the efficacy of the Board’s rules and the appeal management process in general;
· The prejudice to the parties;
· The degree to which prejudice can be compensated by other means;
· The likelihood that the roll will be inaccurate and the extent of the inaccuracy;
· The public interest in fair and equitable assessment Fletcher Challenge v. Area 04 (2000 PAABBC 20002667); Norske Skog Canada Limited v. Area 06 (2003 PAABBC 20031294); Area 11 et al v. TSI Terminal Systems Inc. et al (2004 PAABBC 20042416); Elk Falls Pulp et al v. Area 06 (2005 PAABBC 20042697); Rutherford Creek et al v. Areas 08, 20 & 21 (2005 PAABBC 20050447).
Appeal Management Process
[12] There has been extensive appeal management with opportunity for both sides to identify issues. The parties have been working cooperatively towards resolution of all the effective age and MIP Manual issues with the exemption for the MBBR being identified as the sole issue requiring adjudication. I am advised that the parties are making good progress towards resolution of all of the non-MBBR issues. Although the MBBR issue has still not been scheduled for hearing, it is late in the appeal management process for the Assessor to be identifying an issue for the first time. I am advised the ASF on the MBBR issue is essentially ready so adjudication of the MBBR issue, subject to production of SIEA’s, could proceed without further delay. Although the Assessor characterizes the Post Effluent Clarifier issue as “the same” as the MBBR issue, I am inclined to agree with the Appellant that adjudication of the Post Effluent Clarifier issue will require assembling considerable additional evidence with respect to the nature and function of that facility, and will likely delay resolution of this appeal. While the issue with respect to both improvements will be whether either is an “effluent reservoir” or “effluent lagoon” within the meaning of section 220(1)(q) of the Community Charter, and while, as I understand it, the Post Effluent Clarifier and the MBBR are both part of the mill’s effluent treatment process, they are separate improvements and the board would require evidence with respect to the nature and operation of both.
Prejudice
[13] The Appellant has been proceeding with this appeal on the assumption that the Assessor had no issues. There is prejudice to the Appellant in now having to mount resources to respond to a new issue raised by the Assessor.
Likelihood and Extent of Inaccuracy
[14] While the Assessor says the exemption was granted in error and that the Post Effluent Clarifier is not entitled to an exemption, the Appellant disputes that there is an error and submits that section 220(1)(q) of the Community Charter applies to exempt this facility. There is, therefore, a legal issue as to whether or not the Post Effluent Clarifier is exempt and I cannot say with certainty that the roll is in error with the exemption having been granted to date. Without more information about both facilities, it also cannot be said that resolution of the issue for one facility necessarily resolves the issue for the other, or that the exemption of one facility and non-exemption of the other is necessarily wrong.
Public Interest in Fair and Equitable Assessment
[15] Certainly, it is in the public interest that the roll be accurate, but it is also in the public interest that the appeal process move along in a timely way. The Assessor will have the opportunity to raise the issue of whether the Post Effluent Clarifier is entitled to the exemption given in another year. I am not able to say with certainty that the roll is inaccurate and must be amended. The exemption has been in place for a number of years I see no immediate urgency to adjudicating the issue. The Assessor inspected the plant in September of 2009. While I accept counsel’s explanation for the delay in raising the issue, I do not accept it as an excuse for failing to identify issues in a timely way. In an annual assessment process both parties must be prepared to identify issues early on in the life of an appeal.
CONCLUSION
[16] I conclude the various factors weight against exercising the Board’s discretion to allow the Assessor to raise an additional issue at this time. The Assessor’s application is dismissed.