Decision and Order
IN THE MATTER OF AN APPEAL PURSUANT TO S. 50 OF THE ASSESSMENT ACT
CONCERNING:
Richard C Macintosh
AND
Assessor Of Area #01 - Capital
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Appeal No.: |
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Refer to as: |
MacIntosh et al v. Area 01 (2010 PAABBC 20100728) |
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Date of Decision: |
June 3, 2010 |
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Property: |
270 Sarah Way, Gulf Islands Rural |
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Heard: |
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Board Panel: |
Cheryl Vickers, Panel Chair |
INTRODUCTION
[1] This is an application for reconsideration of the Registrar’s opinion that the Board does not have jurisdiction in this appeal. The Registrar determined the Board did not have jurisdiction because the letter of appeal was not received by the Board until May 3, 2010, although it had been deposited with a courier on April 29, 2010. The Board has previously concluded that for a letter of appeal sent by courier by April 30 is not “filed” within the meaning of the Assessment Act (451605 B.C. Ltd. v. Assessor of Area #15, 1999-15-00028, August 6, 1999). The circumstances of this case invite me to reconsider that conclusion.
ISSUE
[2] The issue is whether a notice of appeal deposited with a courier by April 30 but not received by the Board until after April 30 was “filed with the Board on or before April 30” within the meaning of the Assessment Act, thereby giving the Board jurisdiction to hear the appeal.
FACTS
[3] The Appellants, Linda and Richard MacIntosh, are the owners of the property that is the subject of this appeal at 270 Sarah Way on Saltspring Island.
[4] In the morning of Wednesday, April 28, 2010, Mr. MacIntosh telephoned the Board’s office to clarify the requirements for filing an appeal. He asked, “Does the appeal package need to be received by April 30 at your offices or is sending it on or before the 30th acceptable?” Mr. MacIntosh’s evidence, which cannot be confirmed or denied, is that the woman who answered the phone indicated that appeal documentation often arrived after the 30th, and as long as it was clearly “stamped” on or before the 30th, it would meet the necessary conditions. There was no discussion as to the meaning of “stamped” and Mr. MacIntosh was not advised that the appeal letter must be postmarked by Canada Post.
[5] In the afternoon of April 28, Mr. MacIntosh took the ferry from Saltspring Island to Vancouver and that evening drove to Seattle to visit family. He had the property assessment appeal documentation prepared at the time but concluded he could use April 29 to prepare a more detailed response with respect to the grounds for appeal. On Thursday, April 29, he completed his submission and dropped the completed package to Fed Ex late in the day. He had the option to email, fax, use US Post or courier. He was not confident in the US postal system, did not have a scanner in order to email a photograph, and was concerned that the photo would not transmit clearly by fax. He concluded that Fed Ex was a logical and dependable choice offering a system with which he could track receipt of the package and ensure delivery by May 3. The Fed Ex waybill confirms deposit of the appeal package, addressed to the Board, with Fed Ex on April 29, 2010. The Appellant paid the courier fee.
SUBMISSIONS
[6] Mr. MacIntosh submits that had he known email, fax or Canada Post were the only options, he would have most certainly sent the package by one of those methods. He submits he could easily have faxed the package from Seattle, saving the courier fee. He submits that even if he had been at home on Saltspring Island, given what he knew, he likely would still have sent the package by courier on April 29 or 30 because of his confidence in the tracking system, ironically leaving him in the same predicament. He submits that he did file the appeal by April 30 and that the Board has jurisdiction to hear it.
[7] The Assessor takes no position in this application.
ANALYSIS
[8] Section 50(3) of the Assessment Act provides that an appeal to the Board must be “filed” by April 30. The Act provides the following definition of “file”:
“file” means in relation to a notice or record required to be filed with…the board…, includes mail to or leave with the…board…or deposit in the mail receptacle at their office.
The Interpretation Act provides a definition of “mail” as follows:
“mail” refers to the deposit of the matter to which the context applies in the Canada Post Office at any place in Canada, postage prepaid, for transmission by post, and includes deliver;
and the following definition of “deliver”:
“deliver”, with reference to a notice or other document, includes mail to or leave with a person, or deposit in a person’s mail box or receptacle at the person’s residence or place of business.
[9] The Board has previously interpreted the interplay of the above definitions to require that a notice of appeal must be either received by the Board by April 30 or post marked by Canada Post by April 30 for the Board to have jurisdiction in an appeal. The method by which the Board receives the notice by April 30 is not important, and includes fax, courier or email, but for appeals received after April 30, the Board has found they must be postmarked by Canada Post by April 30, and that depositing with a courier, internal house mail, the BC provincial government mail service, or the US postal service by April 30 does not give the Board jurisdiction. (See for example: 451605 B.C. Ltd., supra; Canadian National Railway Company v. Assessor of Area #10, et al, 97-10-00041 et al, January 29, 1998; Assessor of Area #10 v. Carter, et al, 98-10-00029 et al, December 18, 1998; Hung Fook Canada Ltd., et al v. Assessor of Area #15, 94-15-00063 et al, July 13, 1995). The Board has concluded that it has jurisdiction in an appeal where it was satisfied that a letter of appeal had been deposited with Canada Post by April 30 but not postmarked until later (Lloyd v. Assessor of Area #11, 1999-11-00054, October 8, 1999; Mayer v. Assessor of Area #04, 96-04-00043, December 12, 1996).
[10] In determining whether the Board has jurisdiction because the Review Panel refused or omitted to hear a valid appeal, the Board has held that complaints to the Property Assessment Review Panel are “filed” where there is evidence the complaint had been faxed or emailed by the legislated date but had, for some unexplained reason, not been received (Daimlerchrysler Canada Inc. v. Assessor of Area #08, 2005 PAABBC 20051336; Broadway Properties Ltd., et al v. Assessor of Area #09, 2002 PAABBC 20027690; Timberwest Forest I Limited v. Assessor of Area #08, 2001 PAABBC 20016552). The Board has generally concluded that there must be evidence an appeal was sent to the Review Panel by the relevant deadline even where it was not received (Broadway, supra).
[11] Given the opportunity to reconsider the Board’s conclusion with respect to the use of couriers in the context of this application, I find that the Board has been unduly restrictive in its interpretation of “filed” in declining to accept jurisdiction when a notice has been deposited with a courier by April 30 for the reasons that follow.
[12] The words of an enactment must be interpreted in accordance with the oft quoted principle enunciated by Professor Driedger and repeatedly cited by our courts as the preferred approach to statutory interpretation, namely that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." (Bell Express Vu Limited Partnership v. R. 2002 SCC 42).
[13] The scheme of the Assessment Act is to provide for the annual assessment of real property with an annual right of appeal. It provides that the deadline for an appeal to the Board is April 30. However, given that it allows for the deposit of an appeal with Canada Post by the due date, it clearly does not contemplate that appeals must necessarily be actually received by the Board by April 30. Further, in using the word “includes”, both in the definition of “file” and in the definition of “deliver” the legislature does not intend the methods of filing or delivery to be prescriptive. The legislation contemplates, through use of the word “includes” that other methods besides leaving a copy or depositing by mail will be effective to “file” an appeal. The Board has recognized that the method of filing is not prescriptive in accepting jurisdiction when notices of appeal are faxed or emailed, not only when they are actually received by April 30, but also when it is satisfied on the evidence that they were sent by the legislated deadline although they may not have been received.
[14] I find it is inconsistent with the apparent intent of the legislation that the Board would take jurisdiction on finding that a letter of appeal was deposited in a mail box by April 30, with postage paid, although not received by that date, but would not take jurisdiction where there is evidence that a notice of appeal was deposited with a courier by April 30, with courier fee paid. There is no prejudice to the Assessor for the Board to assume jurisdiction in appeals couriered by April 30 but not received until after April 30 when it assumes jurisdiction in appeals postmarked by April 30 but not received until after April 30. The distinction is unnecessarily technical given the apparent intent of the legislature to provide an expansive rather than prescriptive definition of “file”.
[15] It is interesting to note that prior to the Board’s decision in 451605 B.C. Ltd., supra, specifically finding that the Board did not have jurisdiction in an appeal that had been deposited with a courier on April 30 but not received by the Board until May 3, that the Board’s practice had been to accept appeals sent by courier when the waybill indicated it had been given to the courier on or before April 30. (See the Board’s comments in Assessor of Area #10 v. Carter, supra). I find this earlier approach to the interpretation of previous legislation is consistent with the current legislative intent not to limit the method by which an appeal may be sent to the Board.
CONCLUSION
[16] I find that the definition of “file” is inclusive of methods of delivery beyond those named, and permits of methods of delivery that can be verified as having been sent by the legislated date. The notice of appeal in this case was deposited with a courier on April 29, 2010 as evidenced by the waybill. I find the appeal was “filed with the Board on or before April 30” within the meaning of the Act and, therefore, the Board has jurisdiction.
ORDER
[17] The Board has jurisdiction to hear this appeal and will schedule it for appeal management.