Property assessors with the BC Assessment Authority and the
Property Assessment Appeal Board (the
"Board") are not typically bound by
precedent in the same manner as are courts. However, if an
assessor or the Board interprets the Assessment Act and
the regulations under this Act inconsistently with their previous
interpretation, a court may find their decision to be unreasonable.
This principle was recently illustrated in Aspen Planers Ltd. v. Assessor of Area #23, 2015 BCSC
The technical question in Aspen was whether certain
buildings were separate industrial improvements, or whether they
formed part of pre-existing structures. The answer to this
question affected how the buildings were to be valued and,
accordingly, how much property tax would be payable.
Neither the Act nor the regulations specified how to determine
whether an improvement was "part of" another
improvement. In decisions preceding Aspen, the Board
had used a number of different criteria to make this determination,
modifying and restating the test a few times. In Aspen,
the Board yet again restated the test, adding as a criterion the
evaluation of economic features of a building (i.e., whether the
new improvement could fulfill its economic function if the original
structure was disassembled). Using the revised test, the Board
concluded that the buildings were separate industrial
Aspen appealed the Board's decision as unreasonable,
pointing out that if the Board was free to change the test at whim,
property owners could not have confidence that they were aware of
what factors were important if they wished to challenge the
assessment. The Court agreed, holding that inconsistency in
the Board's interpretation of the Assessment Act and
the regulations can suggest that the Board's decision is
Ultimately, the Court found that the Board was unreasonable in
adding economic function of a building as a criterion of the
test. At least with one of the buildings in question, this
addition led to an unreasonable factual conclusion.
Pointedly, the Court stated that:
... it would be advisable for any future
Board, should it consider ... a change to the test to ensure the
parties had been given a chance to make submissions both on the
proposed change, and if that proposed change justifies further
evidence. I am not suggesting that the Board will
automatically err if this is not done but apart from ensuring a
reasonable application of the Regulation, procedural fairness must
be adhered to and that requires that a party know the case it has
to meet when appearing before a tribunal. [para. 90]
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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