Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: Baffinland Iron Mines Corporation, et al.

v. The Territorial Board of Revision and
the Government of Nunavut, as
represented by the Department of
Community and Government Services,
2018 NUCJ 24
Date: 20180918
Docket: 08-17-537 CVA
08-17-538 CVA
Registry: Iqaluit

Applicant: Baffinland Iron Mines Corporation

-and-

Respondents: The Territorial Board of Revision and the

Government of Nunavut, as represented by
the Department of Community and
Government Services

-and-

Applicant: Qikiqtani Inuit Association

-and-

Respondents: The Territorial Board of Revision and the

Government of Nunavut, as represented by
the Department of Community and
Government Services
 2

________________________________________________________________________

Before: The Honourable Mr. Justice Earl Johnson

Counsel (Applicant, BIM): Jenna Anne de Jong

Counsel (Applicant, QIA): Sylvie M. Molgat
Counsel (Respondent, GN): Jane O’Neill, Q.C., and Victoria Crosbie
Counsel (Respondent, TBR): Norman Boose

Location Heard: Iqaluit, Nunavut

Date Heard: May 15, 2018
Matters: Judicial review, standard of review, duty of fairness, and
right of notice owed under the Property Assessment and
Taxation Act, RSNWT (Nu) 1988, c. P-10.

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

 3

TABLE OF CONTENTS

I. INTRODUCTION ........................................................................................................... 4
II. EVIDENCE .................................................................................................................... 6
III. FACTS .......................................................................................................................... 7
IV. ISSUES ....................................................................................................................... 11
A. What is the appropriate standard of review?......................................................... 11
1. Arguments ...................................................................................................... 11
i. QIA ................................................................................................................. 11
ii. BIM ............................................................................................................. 12
iii. GN ............................................................................................................... 13
iv. TBR ............................................................................................................. 13
2. Analysis .......................................................................................................... 13
B. Did the TBR breach the rules of procedural fairness by not giving BIM or QIA an
opportunity to be heard before making the decision that the Complaints were out of
time? .............................................................................................................................. 16
1. Arguments ...................................................................................................... 16
i. QIA ................................................................................................................. 16
ii. BIM ............................................................................................................. 22
iii. GN ............................................................................................................... 27
iv. TBR ............................................................................................................. 29
2. Analysis .......................................................................................................... 30
C. If the TBR breached the rules of procedural fairness, was the TBR Decision that
the Complaints were out of time correct? ..................................................................... 34
V. CONCLUSION ............................................................................................................ 39
VI. COSTS ........................................................................................................................ 41
 4

I. INTRODUCTION

[1] The applicant Baffinland Iron Mines Corporation (BIM) is a Canadian

mining company that has operated an iron ore mine known as the
Mary River Project in the Qikiqtani region of North Baffin, Nunavut
(Mary River Lands) since 2013.

[2] The applicant Qikiqtani Inuit Association (QIA) is a not-for-profit

society and a Designated Inuit Organization under the Nunavut Land
Claims Agreement (NLCA). QIA’s responsibilities include the
management of Inuit Owned Lands in the Qikiqtaaluk Region on
behalf of and for the benefit of Qikiqtani Inuit.

[3] BIM leases the Mary River Lands from the QIA pursuant to a
commercial lease dated September 6, 2013. QIA is the Designated
Inuit Organization that owns the Mary River Lands under the NLCA.

[4] The respondent Government of Nunavut (GN) raises revenue by the

taxation of lands and improvements in Nunavut under the authority of
the Property Assessment and Taxation Act, RSNWT (Nu) 1988, c. P-
10 [PATA]. The Director of Assessment (Director) is appointed under
s. 109 of PATA and is responsible for the administration of PATA.
Sections 6 and 7 of PATA mandates that an assessor assess the
lands and improvements for the General Taxation Area (GTA), called
the General Taxation Area Assessment Roll (Assessment Roll).
Section 17 of PATA requires that the must record all pertinent
information including the location of the assessed property, the names
and addresses of the assessed owners and the assessed value of the
property. Under s. 25 the Director must prepare and certify the
Assessment Roll as complete on or before October 31 every year. As
required by s. 27, within 21 days after the Director prepares the
Certified Assessment Roll for property in the GTA under s. 26(2), he
or she:

shall cause a notice of assessment to be mailed to each person

described in subsection (2) at the address shown on the
certified assessment roll first revision

[5] Section 33 of PATA creates a Territorial Board of Revision (TBR) for

the GTA with jurisdiction to hear complaints filed by any person
regarding an assessment as set out in s. 40. Section 48 creates an
Assessment Appeal Tribunal (AAT) to hear appeals referred by the
chairperson of the Tribunal.
 5

[6] Since 2014. both QIA and BIM have disputed the attempted taxation
of the Mary River Lands by the GN. Both BIM and QIA believe that
under the NLCA they are exempt from property tax and all other
levies and charges assessed under PATA.

[7] BIM and QIA filed complaints under s. 40(1) of PATA for the 2014 and
2015 Notices of Assessments for the Mary River Lands. The
respondent TBR directed that the Mary River Lands be reassessed.
BIM and QIA then filed Notices of Appeal in accordance with ss. 45(4)
and 64 and those appeals have not been heard.

[8] The 2016 Notices of Assessments for the Mary River Lands were
delivered to the post office in Iqaluit on November 28, 2016. For
reasons discussed later, QIA received the Notice of Assessment on
December 13, 2016, and BIM received it on January 23, 2017.

[9] QIA filed a complaint on January 23, 2017 and BIM filed a complaint
on January 24, 2017, about the 2016 Notice of Assessments on the
same grounds as the 2014 and 2015 complaints.

[10] In a short six line email dated August 30, 2017, the Secretary of the
TBR informed QIA and BIM that the Board would not hear the
complaints because they were filed more than 45 days from the
December 2, 2017, mailing date stated on the Notice of Assessment
(Decisions).

[11] BIM and QIA filed separate Originating Notices of Motion for judicial
review of the August 30, 2017, TBR Decisions refusing to hear the
complaints.

[12] On October 12, 2017, the parties to both Originating Notices of Motion
filed a consent Order that both motions be heard together and on
February 7, 2018, Browne J. ordered that all evidence and materials
in either application could be utilized in the other application. For the
purposes of this judgment and pursuant to Rules 27 and 56 of the
Rules of the Supreme Court of the Northwest Territories, NWT Reg
(Nu) 010-96 [Rules of Court]. I have changed the style of cause to
include both applications.

[13] The TBR also filed written argument and participated in the hearing.
 6

[14] The GN supports the decision of the TBR and opposes the
applications of BIM and QIA.

II. EVIDENCE

[15] The TBR filed a record as required by Rule 598 (1) of the Rules of
Court. Both BIM and the GN filed what was described as a
“compendium of documents,” while QIA filed what was described as
an “application record”. They include the affidavits of Stephanie
Anderson (Anderson), Brian Lannan (Lannan), Scott Wells (Wells),
and Gerald “Gerry” Towns (Towns), as well as transcripts of their
cross-examination.

[16] The record filed by TBR was rather minimal compared to the evidence
that was filed by the other parties because TBR’s record consisted
solely of their refusal to hold a hearing. TBR’s decision not to hold a
hearing on its jurisdiction to hear a complaint forms the basis for QIA
and BIM’s application. Both applicants alleging that there was a
breach of procedural fairness or a denial of natural justice.

[17] There are no other sections in Rule 598 authorizing additional written
evidence to be filed beyond the record filed by the TBR. As I noted in
Mahe v Nunavut Liquor Licensing Board, 2006 NUCJ 23 (CanLII), the
general rule is that a court in a judicial review application is restricted
to the record prepared by the tribunal. However, as noted at para 15
of McFadyen v Canada (Attorney General), 2005 FCA 360 (CanLII),
there is an exception where the grounds for review are any of the
various forms of jurisdictional error.

This principle has been approved by the Supreme Court of

Canada on numerous occasions: see, for example, Canadian
Union of Public Employees, Local 301 v. Montreal (City), 1997
CanLII 386 (SCC), [1997] 1 S.C.R. 793 at para. 86; R. v.
Miller, 1985 CanLII 22 (SCC), [1985] 2 S.C.R. 613 at paras.
15 and 23-26; Cardinal v. Kent Institution, 1985 CanLII 23
(SCC), [1985] 2 S.C.R. 643 at para. 13. A breach of procedural
fairness is also one of the forms of jurisdictional error to which
this principle applies: see Chen v. Canada (Minister of
Citizenship and Immigration) (1999), 240 N.R. 376, (1999)
1999 CanLII 20683 (FCA), 174 D.L.R. (4th) 165 at para. 10
(F.C.A.); Robert W. Macaulay & James L.H. Sprague, Practice
 7

and Procedure Before Administrative Tribunals, looseleaf, vol.

3 (Toronto: Thomson Carswell, 1988) at 28-56.2ff; Donald
J.M. Brown & The Hon. John M. Evans, Judicial Review of
Administrative Action, looseleaf, vol. 2 (Toronto: Canvasback
Publishing, 2004) at 6-62ff.

[18] Since one of the grounds advanced in the application is the denial of
procedural fairness in failing to hold a hearing on whether the TBR
had jurisdiction to hear the BIM’s complaint, I am satisfied that
additional evidence is admissible in law to address the issues argued
in this application. In any event the parties have all agreed that the
evidence filed by all three parties is admissible in this application.

III. FACTS

[19] BIM and QIA entered into a commercial lease dated September 6,
2013. It was a term of the lease that BIM was obligated to pay all
rates, tax charges, and assessments charged for the Mary River
Lands.

[20] Prior to 2014, QIA had never received or seen any property
assessments for the Mary River Lands.

[21] The 2014 assessment was initially issued to BIM. However, after a
complaint by BIM, a new 2014 assessment was issued substituting
QIA as the new assessed owner. The TBR directed that the Mary
River Lands be re-assessed and QIA filed an appeal of the new 2014
assessment on the grounds that the Mary River Lands are exempt
from taxation under Article 22 of the NLCA. A new Notice of
Assessment was issued to QIA on August 24, 2015, showing QIA as
the assessed owner.

[22] In November 2015, a Notice of Assessment was issued to QIA similar

to the 2014 assessment. Following complaints filed by BIM and QIA,
the 2015 Notice of Assessment was corrected and re-issued on
October 7, 2016. The corrected Notice was sent to both QIA and BIM
at the direction of the TBR and a similar reassessment ordered.

[23] QIA filed an appeal of the 2015 Assessment on the same grounds as
the 2014 appeal.
 8

[24] Towns is a civil servant employed as the Project Manager in the

Nunavut Property Assessment Office of the Department of
Community and Government Services of the GN. The GN has
contracted with the Qikiqtaaluk Corporation (the Contractor) to
provide assessment services and Towns ensures that the contractor
completes the land and improvement assessments in accordance
with the NLCA, PATA, and the Assessment Manual. The Director of
Assessment is Robert Chapple (Chapple).

[25] On July 25, 2016, QIA received a letter from Towns advising that he
was preparing the 2016 assessments.

[26] Towns prepared the Notices of Assessment for 2016, including the
Mary River Lands Assessment Notice. The Notice indicated that the
assessed owner was QIA and stated the mailing date was December
2, 2016.

[27] On or about November 27, 2016, Towns placed the Assessment

Notice for the Mary River Lands in an envelope addressed to QIA, at
P.O.Box 1340, Iqaluit NU, XOA 1HO. On November 28, 2016, Towns
and Travis Towns, a property assessor, delivered the 2016 Notices of
Assessments including the Notice of Assessment for the Mary River
Lands to the Iqaluit post office.

[28] The 2016 Notice stated that “Complaints must be Received Before
January 16, 2017.” Para 5 of the Notice also stated:

Complaints sent or delivered, must be received by the

Secretary of the Board of Revision, NOT LATER THAN 45
DAYS from the date of the mailing of this notice. The mailing
date appears on the front of this notice. All complainants will
be notified where and when the Territorial Board of Revision
will sit.

[29] Towns deposed in his affidavit that he did not send the Assessment
Notice for the Mary River Project to BIM because it is his practice to
send it only to the assessed owner unless specifically requested to
send it to a tenant or as directed by the TBR as occurred in 2015
Notice of Assessment.

[30] On December 1, 2016, Towns placed an advertisement with the

Nunavut News of the North (NNN) and the Kivalliq News to advise the
public of the mailing of the 2016 Assessment Notices as the Nunavut
 9

Tax Assessment Office had done for the previous 18 years. Both
publications are available in all GTA communities and in the City of
Iqaluit. The publications stated that complaints must be made within
45 days of the date of the mailing of the Notice of Assessment.

[31] Wells, QIA’s Director of Finance, did not notice any public notices on
the community bulletin boards at the post office or in the main lobby of
the Iqluvut Building in Iqaluit and did not hear public service
announcements over CBC about the Notices of Assessment being
mailed on December 2.

[32] QIA’s offices closed for the Christmas holidays on December 16,
2016 and re-opened on January 3, 2017. During that period, QIA’s
mail remained in the post office box, but any mail received over the
holidays was picked up on January 3, 2017.

[33] On January 17, 2017, Michael Osland (Osland), outside legal counsel
for QIA, asked Wells if QIA had received a 2016 Assessment Notice
for the Mary River Lands. Osland reminded Wells that the previous
2014 and 2015 Assessments under appeal came out late in the year
or in the early new year.

[34] Since Wells had not received anything, he asked William Bathory
(Bathory), QIA’s Director of Major Projects and QIA’s primary contact
person for BIM regarding the Mary River Lands, whether he thought a
2016 Notice of Assessment might have been sent directly to BIM as
had been the case prior to 2014. Bathory was not aware of any
assessment being received.

[35] After being unable to obtain the 2016 Assessment Notice from the GN
Department of Finance, Scott emailed Towns on Friday, January 20,
2017, and requested a copy of the Assessment Notice.

[36] On January 18, 2017, Chapple emailed the Secretary of the TBR,
Lannan. He stated “the last day for submitting complaints was
January 16, 2017.” He then asks the question “Did you receive any
complaints?”

[37] On January 21, 2017, Towns emailed Scott a copy of the 2016
Assessment Notice and it came to Scott’s attention when he arrived at
work on Monday, January 23, 2017.
 10

[38] Scott immediately forwarded the Assessment Notice to Osland who

attended to filing a Complaint on January 23, 2017, and to forwarding
a copy to BIM. Lannan, acknowledged receipt of the Complaint on
January 23, 2017.

[39] On January 24, 2017, BIM filed a Complaint with the TBR for the 2016
Mary River Project Assessment Notice.

[40] Anderson, the Vice President and Chief Financial Officer of BIM, tried
to contact Towns by telephone between January 5 and January 17, to
determine if the 2016 Assessment Notice for the Mary River Project
had been sent, but was unable to reach him. However, she did not
send him any emails.

[41] On January 17, 2017, Anderson emailed Towns and advised that all
communications with the GN should be directed to her. She did not
mention the 2016 Notice of Assessment

[42] On January 18, 2017, Towns responded to Anderson’s email and

followed up with additional emails on April 26, 2017, and August 22,
2017, which Anderson responded to on August 24, 2017.

[43] On August 30, 2017, Lannan sent QIA a short written decision from
the TBR (QIA Decision). The Decision stated that QIA’s 2016
Complaint would not be heard by TBR because it was outside the 45
day time limit specified in the Notice of Assessment.

[44] On August 30, 2017, Lannan used identical wording in a separate

decision addressed to BIM (BIM Decision) and advised it that its 2016
Complaint would not be heard because it was outside the 45 day time
limit specified in the Notice of Assessment.

[45] The TBR did not hold a hearing and give QIA and BIM an opportunity
to be heard before sending the QIA and BIM Decisions.

[46] A subsequent investigation carried out by QIA in late 2017 revealed

that QIA received the Notice of Assessment on December 13, 2016.
Instead of forwarding the Assessment Notice to QIA upper
management, an employee left it in an unmarked file in the Lands
Department.
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IV. ISSUES

[47] What is the appropriate standard of review?

[48] Did the TBR breach the rules of procedural fairness by not giving BIM
or QIA an opportunity to be heard before making the decision that the
Complaints were out of time?

[49] If the TBR breached the rules of procedural fairness was the TBR
decision that the Complaints were out of time correct?

A. What is the appropriate standard of review?

1. Arguments

i. QIA

[50] During oral argument, QIA’s counsel conceded that Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 SCR [Dunsmuir], Ontario (Energy
Board) v Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 SCR
147 [Ontario Energy Board], and Edmonton (City) v Edmonton East
(Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293
[Edmonton Capilano], suggest that the presumed standard of review
in this application should be reasonableness. It is implicit from
counsel for QIA’s oral submissions that this concession arose
because QIA’s substantive argument was directed at the TBR’s
interpretation of subsection 40(3).

[51] However, in Ms. Molgat’s oral and written submissions, she made
brief comments on the alleged breach of procedural fairness by the
Director of Assessments and the property assessor flowing from
paras 159 to 161 of Boardwalk Reit LLP v Edmonton (City), 2008
ABCA 220 [Boardwalk]. She argued that at a minimum it was
incumbent on the property assessor to have given QIA proper
advance notice of the mailing of the assessments and the date their
Complaint had to be filed. The taxing authority’s decision to simply lie
in the weeds and reveal nothing until the deadline for complaints had
passed violated the rules of natural justice and procedural fairness
owed to QIA.
 12

[52] QIA submitted a lengthy jurisdictional argument based on the factual

allegation that the GN and TBR failed to prove the date that the
Notice of Assessment was actually mailed and that the public notice
advertising was defective. Because the mailing date is unknown it
argued that the 45 days specified in subsection 40(3) should run from
the date that QIA received the Notice of Assessment. Since QIA’s
Complaint was been received by the TBR on January 23, 2017, or 41
days later, it was within the time period contemplated by PATA.

ii. BIM

[53] BIM’s counsel advanced a substantive three part procedural fairness

argument that provided the foundation for an argument that the TBR
lacked jurisdiction to make the Decisions. Ms. De Jong did not
express the same concession as QIA’s counsel about the standard of
review in her initial submissions, but in her reply it became clear that
she was advancing a correctness standard based on the exception
set out in Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12, [2009] 1 SCR 339 [Khosa]. At para 43, the Court confirmed that
procedural fairness issues are to be determined by a court on the
basis of a correctness standard. The Supreme Court reiterated this
principle again at para 79 of Mission Institution v Khela, 2014 SCC 24,
[2014] 1 SCR 502 [Khela], stating:

Third, the ability to challenge a decision on the basis that it is

unreasonable does not necessarily change the standard of
review that applies to other flaws in the decision or in the
decision-making process. For instance, the standard for
determining whether the decision maker complied with the
duty of procedural fairness will continue to be “correctness”.

[54] BIM concluded that under either standard of review, the TBR Decision
cannot withstand scrutiny because it was procedurally unfair. The
TBR failed to give BIM an opportunity to be heard in violation of the
fundamental requirement to “hear the other side” (audi alteram
partem). Had the TBR given BIM the opportunity to be heard, it would
have reached the conclusion that procedural fairness required that
BIM be given adequate notice of the Notice of Assessment and that
the time under PATA for BIM to file a complaint did not begin to run
until a Notice of Assessment was mailed to BIM.
 13

iii. GN

[55] GN’s counsel acknowledged QIA’s apparent concession on the

standard of review and advanced oral arguments based on the
reasonableness standard and in particular relied on Edmonton (City) v
Edmonton (City) Assessment Review Board, 2012 ABQB 399, 541
AR 377 [Edmonton City Assessment]. However, Ms. O’Neill’s written
submissions addressed both. She submitted that the TBR Decision
was both reasonable and correct. The foundation of her argument is
that the substantive issue at play in this case turns on the
interpretation of subsection 40(3) of PATA which is the TBR’s home
statute. Following Edmonton Capilano, she argues the standard of
review is reasonableness. In response to my question during
argument about why the TBR did not invite the applicants to a
hearing, GN counsel simply stated there is nothing in PATA that
authorizes a hearing.

iv. TBR

[56] Counsel for TBR supported the arguments of the GN.

2. Analysis

[57] As stated at para 59 of Dunsmuir, the correctness standard still

applies to true questions of jurisdiction.

Administrative bodies must also be correct in their

determinations of true questions of jurisdiction or vires. We
mention true questions of vires to distance ourselves from the
extended definitions adopted before CUPE. It is important here
to take a robust view of jurisdiction. We neither wish nor
intend to return to the jurisdiction/preliminary question
doctrine that plagued the jurisprudence in this area for many
years. “Jurisdiction” is intended in the narrow sense of whether
or not the tribunal had the authority to make the inquiry. In
other words, true jurisdiction questions arise where the tribunal
must explicitly determine whether its statutory grant of power
gives it the authority to decide a particular matter. The tribunal
must interpret the grant of authority correctly or its action will
be found to be ultra vires or to constitute a wrongful decline of
jurisdiction: D. J. M. Brown and J. M. Evans, Judicial Review
of Administrative Action in Canada (loose-leaf), at pp. 14-3 to
 14

14-6. An example may be found in United Taxi Drivers’

Fellowship of Southern Alberta v. Calgary (City), [2004] 1
S.C.R. 485, 2004 SCC 19 (CanLII)....

[58] The determination of the standard of review is often a matter of how

the Court frames the issue considered by the tribunal. BIM
characterizes the issue as being whether the TBR breached the rules
of procedural fairness before it embarked on the interpretation of
subsection 40(3) of PATA. The GN characterizes the issue as the
TBR’s statutory interpretation of its home statute.

[59] I am satisfied that BIM’s arguments raise a question of true

jurisdiction because the TBR failed to contact the applicants and offer
them an opportunity to be heard before it decided that the applicants
had not complied with subsection 40(3) of PATA.

[60] In Edmonton City Assessment, the ratepayer had made multiple

phone calls to the City about his assessment. His calls were not
returned and he was told that he should mail his complaint. He mailed
it on March 8 and it was postmarked March 9. The statutory deadline
for filing a complaint was March 14. The City records indicated that it
was received 11 days later on March 21, 2001. In its decision, the
Alberta Review Board (ARB) acknowledged that the ratepayers’ intent
was to file the complaint form by the filing deadline. However, this was
not achieved due to circumstances beyond his control, either with
Canada Post or with the ARB.

[61] The ARB recognized in its decision that there was a possible
jurisdictional problem and that to deny the ratepayer a merit hearing
would be to deny him natural justice. As a result, on April 5, 2011, a
Notice of Hearing was sent to Mr. Wood and the City to confirm a
preliminary hearing date of May 11, 2011, for the purpose of
determining whether the complaint was filed as required and whether
a further hearing on the merits should be set.

[62] After hearing the City and ratepayer, the ARB concluded that it had
jurisdiction to extend the time limits in the legislation and deemed the
complaint as valid so that it could proceed to a merit hearing.

[63] While acknowledging that the statutory interpretation question before

the ARB was a question of law that met the true jurisdictional
threshold, Hillier J. concluded at paras 38 and 39 that the standard of
review was reasonableness.
 15

I am fully satisfied that the issue here deals with interpretation

of legislative time limits and whether the ARB has been
granted authority to exercise a discretion. The interpretation
issue in this case derives from the language of the MGA and to
some extent the Interpretation Act - a statute with which it, no
less than other tribunals, may need to be familiar.

This is a question of law. It considers the language by which a

statute sets deadlines and consequences for non-compliance
which may arise in various contexts beyond the expertise of
many tribunals. Arguably, it remains a “true” question of
jurisdiction as affecting legislative deadlines. However,
Rothstein J. signalled at para 43 of ATA that interpretation of a
statutory provision having a jurisdictional flavour does not
automatically trigger a correctness standard of review. In all of
the circumstances here, it is prudent to apply reasonableness as
the appropriate standard of review. [Emphasis in original].

[64] ATA refers to Alberta (Information and Privacy Commissioner) v

Alberta Teachers' Association, 2011 SCC 61, [2011] 3 SCR 654
[ATA]. In that case, Rothstein J. stated at para 34 that true
jurisdictional questions would only arise in exceptional cases:

The direction that the category of true questions of jurisdiction

should be interpreted narrowly takes on particular importance
when the tribunal is interpreting its home statute. In one sense,
anything a tribunal does that involves the interpretation of its
home statute involves the determination of whether it has the
authority or jurisdiction to do what is being challenged on
judicial review. However, since Dunsmuir, this Court has
departed from that definition of jurisdiction. Indeed, in view of
recent jurisprudence, it may be that the time has come to
reconsider whether, for purposes of judicial review, the
category of true questions of jurisdiction exists and is necessary
to identifying the appropriate standard of review. However, in
the absence of argument on the point in this case, it is sufficient
in these reasons to say that, unless the situation is exceptional,
and we have not seen such a situation since Dunsmuir, the
interpretation by the tribunal of “its own statute or statutes
closely connected to its function, with which it will have
particular familiarity” should be presumed to be a question of
statutory interpretation subject to deference on judicial review.
 16

[65] QIA adopted BIM’s arguments and raised a separate fairness issue.
QIA submitted that Boardwalk is supportive of its argument that the
Director and property assessor owed it a duty of fairness that required
them to give QIA proper advance notice of the mailing of the
assessments and the date their Complaint had to be filed. QIA also
raised a jurisdictional argument on the failure of the GN to prove
actual date the Notice of Assessment was mailed. If the jurisdictional
argument is successful then QIA did not file a late complaint and there
was no requirement to extent the 45 day time limit that the TBR
thought was being requested.

[66] I am satisfied that the case at bar falls into the exceptional category
because the TBR, unlike the ARB, may have lacked jurisdiction to
interpret its home statute because it did not give the applicants an
opportunity to be heard before making its decision.

[67] Under all the circumstances I am satisfied that this case fits within the
exceptional category described by Rothstein J. in ATA as further
refined in the Khela and satisfies me that the standard of review is
correctness.

B. Did the TBR breach the rules of procedural fairness by not

giving BIM or QIA an opportunity to be heard before making the
decision that the Complaints were out of time?

1. Arguments

i. QIA

[68] QIA argues that the Director, the Property Assessor and the TBR
knew it had challenged the taxation of the Mary River Lands for the
2014 and 2015 taxation years on constitutional grounds. They further
knew that the Assessment Notices for 2014 and 2015 were under
appeal to the AAT. Under these circumstances the Director and
Property Assessor had a duty to act fairly. It was not unreasonable for
QIA to expect to be informed of the actual date of the mailing of the
Notice of Assessment either by way of a public notice or otherwise
before it received it in the mail. It would also be reasonable to expect
that the Director would exercise the courtesy of forwarding the Notice
of Assessment electronically to QIA’s solicitors of record for the
 17

previous year’s assessments. In support of this argument QIA invited

the Court to consider paras159 to 163 of Boardwalk.

[69] QIA argues that the TBR’s Decision that its Complaint was out of time
was unreasonable because it only focused on s. 40(3) and failed to
take into account the requirements of s. 28 of PATA. Section 27(3)(d)
specifies that the Notice of Assessment must state a date by which a
complaint must be received, which must be at least 45 days after the
date the notice is mailed. Section 28 (1) specifies that the Director
shall within 14 days after the date on which the notices of assessment
are mailed give public notice that the Notices have been mailed and
the manner in which a complaint may be made. To complete the
mailing process s. 28(2)(a) specifies that the public notice must be
given in the GTA in the locations and the manner the Director
considers appropriate. QIA submits that the publication of the public
notice in a newspaper is a manner or method of providing public
notice whereas the word location or locations refers to the geographic
place or site. Used conjunctively, QIA argues that the public notice
that was published does not respect the spirit or intent of the
legislation because it focused only on the manner of publication and
not on the location. The Director failed to consider other alternatives
such as a local radio announcement or community bulletin boards one
of which is located in the main lobby of the Iqluvut Building where
QIA’s offices are located. The Director simply followed the practice
that has been in place for the past 18 years. Although the property
assessor is of the view that NNN is the most widely read newspaper
in the GTA he has no idea whether this is in fact true.

[70] QIA further submits that the public notice advertisement that
appeared in the NNN was deficient on its face. Tab 1 D of the GN
compendium of documents contains the entire December 5, 2016,
edition of the NNN, which includes the public notice advertisement.
Section 28 (1) specifies that the public notice must be given within 14
days after the date when the Notices of Assessment are mailed to the
assessed owners. What is missing from the advertisement is the date
the Notices were mailed. The advertisement is also incorrect because
it states that “a complaint must be in writing, within 45 days of the
date of mailing of the notice”. This is inconsistent with s. 40 (3) which
states the complaint must be received within 45 days. The net result
is that the public does not know from the advertisement what date
constitutes the deadline. At the very bottom of the advertisement it
states “Dated this 2nd day of December, 2016”. Since the public
notice must occur within 14 days of mailing the Notices of
 18

Assessment it is possible they were mailed in the middle of

November. The net result is that the advertisement was not effective
notice to the public.

[71] Finally, QIA submits that the TBR incorrectly applied subsection 40(3)
because it did not consider how s. 27(3) interacted with it. Both refer
to the same step of making a complaint, but subsection 40(4) is the
starting point. It states that the Secretary of the Board “shall confirm
the date of mailing of the assessment notice with the Director or
senior administrative officer”. Lannan did not carry out this step. At
Tab 4 of TBR’s Record, there is an email dated January 18, 2017,
from Chapple telling Lannan that the last day for submitting
complaints was January 16, 2017. He then asks the question “Did you
receive any complaints?” At para 4 of the Lannan affidavit, Tab 4 of
BIM’s compendium of documents, he deposes as follows:

Pursuant to subsection 40(4) of the Property Assessment and

Taxation Act, the secretary and Board are directed to confirm
the date of the mailing of an assessment notice with the
Director of Assessment. The clear inference of the legislation is
that the Board is entitled to rely on this confirmation. There is
no duty of inquiry on the Board.

There is no confirmation in this paragraph that subsection 40(4) was

complied with because the date the notices were mailed was not
confirmed. Nevertheless, the TBR’s written decision that appears at
Tab 5 of the TBR Record states that the Notice of Assessment was
mailed on December 2, 2016. This is the first time that QIA finds out
about the mailing date. However, this does not mean that this was
the actual date the Notice was sent. There is no postmark or post
office receipt or other document to show on what information the
TBR relied to determine that the QIA Complaint was out of time.

[72] The only evidence provided about the actual mailing is found in the
Towns affidavit located at Tab 1 of the GN compendium of
documents. At para 13 he states that he personally placed the 2016
Assessment Notice for the Mary River Project in an envelope
addressed to QIA at P.O. Box 1340 Iqaluit. He states at para 14 that
some of the assessment notices were then put through the Pitney
Bowes postage meter in the assessment office to apply postage prior
to being brought to the Iqaluit post office. The 2016 Assessment
Notices that were not put through the postage meter were brought to
the Iqaluit post office where postage was applied. It is not clear
 19

whether QIA’s 2016 Notice of Assessment was one of the ones that
went through the postage meter or was taken to the post office. At
para 15, Towns deposes that the postage receipt attached as exhibit
“C” is the evidence of payment of the postage for the Notices that
were delivered to the post office. That receipt is dated November 28
and it says nothing about the 2016 Notice of Assessment being
posted to QIA. The receipt is for five parcels with tracking numbers.
Two went to Cape Dorset and two went to Arviat. It is unclear where
the last one went but it could not have been the Notice because the
weight was over six pounds. This evidence does not help to
determine the mailing date.

[73] QIA attached as Tab C of its brief a Timeline to help the Court
understand the relationship of the various dates. On Sunday,
November 27, the Property Assessor put the QIA Assessment Notice
in an envelope. On Monday, November 28, he delivered envelopes to
the post office. Those include the one going to QIA and it is unclear if
it is put through the postage meter or is done by the post office. The
mailing date stated in the Notice of Assessment is Friday December
2. On December 5, the advertisement appears in the NNN. On
Tuesday, December 13, the Notice that was received by QIA but
misplaced. This adds up to 11 days from December 2 and 16 days
from November 28. Given the Christmas rush in Iqaluit, QIA submits
that no one knows when the Assessment Notice was mailed. Towns
admitted in cross-examination that the assessment office picks a
mailing date in advance to go into the notice that is an estimate of
when he will be sent out by the post office.

[74] The only evidence that is before the Court is the date the
Assessment Notice was received by QIA, which is found at Tab 2-L of
the affidavit of Wells in the QIA Application Record. That document
records all mail received by QIA and it shows it was received on
December 13, 2016. The Assessor’s office is across the hall from QIA
offices. Assuming the Notice of Assessment was mailed on November
28 – as the GN argues – then it took 16 days to reach QIA. Given the
time of year and the relatively short 45 day timeframe for complaints
the Assessor’s duty to mail cannot be satisfied by dropping 10,000
pieces of paper off at the Iqaluit post office without obtaining a receipt
or confirmation of postmarking as required by subsection 40(4).

[75] If the Notice was mailed on November 28 and it took 16 days to reach
QIA, then QIA had 29 days to file a complaint. Subsection 27(3)
states that the complaint must be received at least 45 days after the
 20

date of the mailing of the notice. QIA submits that the proper
interpretation of subsection 27(3)(d) and 40(3) to satisfy the 45 days
requirement is to interpret “mailing” to include the assessed owner
actually receiving notice. Support for this interpretation flows from
paras 62 to 63 of Calgary (City) v Municipal Government Board, 2004
ABQB 85, 33 Alta LR (4th) 96 [Calgary City], as well as para 67 of
Edmonton City Assessment, and para 30 of Edmonton Capilano.

[76] This interpretation leads to a harmonious reading between both

sections in accordance with the modern approach to statutory
interpretation where the words of an Act must be interpreted
according to a textual, contextual, and purposive analysis to find a
meaning that is harmonious with the Act as a whole as held at paras
10 to 12 in Canada Trustco Mortgage Co. v Canada 2005 SCC 54
[Canada Trustco] and para 30 of Edmonton Capilano.

[77] The clear requirement in subsection 27(3)(d) that the deadline must
be “at least 45 days after” the Notice of Assessment is mailed
indicates that the Legislature intended that an assessed owner will
have 45 days to make a complaint. In this context, mailed must
necessarily be interpreted as meaning “mailed (and received)”. To
interpret this section otherwise renders it impossible to harmonize this
section with subsection 40(3).

[78] As noted in paras 62 and 63 of Calgary City, a person is entitled to

know of the right to complain and the deadline to act before the
deadline for filing countdown begins. Since PATA requires sending
notices of assessment by mail, notice cannot be said to have been
properly given until received in the mail by the affected party.

[79] As noted by Mahar J. at paras 44 to 45 of Agnico-Eagle v

Government of Nunavut, 2014 NUCJ 30, [2014] NJ No 29 (QL)
[Agnico-Eagle]:

[44] The words of an act or regulation must be taken in

context, with the ordinary sense of the words used considered
against the presumed intentions of the law-maker. Context and
presumptions about the intentions of legislators cannot,
however, overcome clear and unambiguous language. Where
the ordinary meaning of the statute can be clearly articulated it
will always be given significant weight.

[45] When the clear meaning of the words used leads to a

literal interpretation which renders the statute in question
 21

unwieldy or obviously unfair, courts should attempt a broader

interpretation that, while supported by the actual words used,
leads to a conclusion that is workable and in keeping with the
presumed intentions of the law-maker.

[80] Accordingly, “mailing” in subsection 40(3) must be interpreted as

“mailing (and receiving)”. To hold otherwise would be to ignore the
fundamental legal principle expressed in the maxim lex non cogit ad
impossibilia: the law does not compel a person to do that which is
impossible. An assessed owner cannot possibly be expected to make
a complaint under subsection 40(3) PATA until such time as they
have received the Notice of Assessment or, at the very least, been
given notice of the date by which a complaint must be made.

[81] In Boardwalk the Court noted at paras 75 to 78 that:

There is a parallel axiom of construction. Where an Act can be

construed more than one way, courts must reject any
alternative which is manifestly absurd, or extremely harsh,
unjust, or capricious: Bennion, op. cit. supra, at 831-32 (§312);
P.A. Côté, Interpretation of Legislation in Canada 448 ff. (3d
ed. 2000); Poulin v. Serge Morency et Assoc. 1999 CanLII 662
(SCC), [1999] 3 S.C.R. 351, 245 N.R. 312, 330 (para. 31);
Simms v. Reg. of Probates[1900] A.C. 323, 335 (P.C.(S.A.)).
Older authorities are listed in 36 Hals. Laws 408 (3d ed. 1961).
The harsher the result of one interpretation, the stronger the
presumption against it: Côté, op. cit. supra, at 448-50.
[Emphasis in original].

[82] Both the impossibility and absurdity canons can be used to interpret
subsections 27(3)(d) and 40(3). Given the harsh and unjust result to
QIA, the TBR’s interpretation must be rejected as incorrect.

[83] Subsections 27(3) and 40(3) of PATA refer to the same step, which is
the making of a complaint. Interpreting “mailing” in subsection 40(3) to
include the assessed owner receiving the Notice of Assessment leads
to a harmonious reading between these two sections. This
interpretation also protects the rights of both parties. An assessed
owner’s right to complain is protected within PATA’s constraints of 45
days’ notice and a reasonable consideration of mailing. The
respondent’s right to a timely complaint process is protected from
frivolous arguments by s. 114 of PATA that deems service by mail to
have been made 14 days after the date of mailing.
 22

[84] Applying this interpretation, QIA submits that the 45 day complaint
period commenced December 13, 2016, the date it received the
Notice of Assessment. Since QIA’s Complaint was been received by
the TBR on January 23, 2017, or 41 days later, it was within the time
period contemplated by PATA.

[85] Finally, if there is any question about the interpretation of subsection

40(3) in light of subsection 27 (3)(d) it is clear from para 47 of Canada
Trustco, paras 73 to 74 of Calgary City, and para 47 of Agnico-Eagle
that any uncertainty must be resolved in favour of QIA.

ii. BIM

[86] BIM advanced a two part argument that the TBR Decision should be
quashed because it was procedurally unfair. First, the TBR did not
consider that BIM never received the Notice of Assessment because
it was not mailed to BIM. Second, the TBR failed to hold a hearing to
give BIM an opportunity to be heard before deciding that the
Complaint was invalid.

[87] The first flaw in the TBR’s Decision is that it did not take into account
that BIM was never given notice of the assessment, before it
concluded that BIM’s Complaint was out of time. This was
unreasonable and an error of law.

[88] By the GN’s own admission, BIM never received the Notice of
Assessment notwithstanding the GN’s knowledge of BIM’s standing
objection that the Mary River Lands were not subject to property tax.
The GN was well aware of BIM’s position on the taxability of the Mary
River Lands and was aware that BIM was liable to pay the property
tax owing on the lands.

[89] The GN also knew that BIM’s position on the taxation of the lands had
not changed from the time it had received complaints from prior years.

[90] Notwithstanding this knowledge and the fact that the TBR had
previously directed that the prior year’s notice be sent to BIM in
addition to QIA, in 2016 the GN did not send a copy of the Notice of
Assessment to BIM nor did the GN advise BIM it had been sent.
 23

[91] The Assessor knew that one of the live issues in dispute was whether
QIA or BIM was the “owner” for the purposes of PATA and that QIA
took the position that BIM, not QIA, was the owner.

[92] Although the Assessor did place advertisements in NNN and Kivalliq
News, advising that notices of assessment had been mailed, the GN
ought to have known these advertisements were unlikely to come to
BIM’s attention. Having sent notices of assessment to BIM’s
headquarters in Ontario in prior years, the GN should have known
that BIM would be unlikely to encounter paper copies of these
publications. The Assessor admitted on cross-examination that he
had no knowledge of how long PDFs of these publications remained
posted online.

[93] BIM’s own internet searches in 2017 after it learned of the Notice of
Assessment were unable to locate any trace of the advertisements
online.

[94] The issue in this review is not the Assessor’s decision not to mail BIM
the Notice of Assessment. What is under review, however, is the
TBR’s failure to turn its mind to the implications of this failure.

[95] A well-established line of case law has held that where a decision-
maker has actual knowledge of a party’s interest in an issue, it must
give that party notice. Furthermore, a general public notice particularly
in a location unlikely to come to an interested party’s attention is
insufficient to discharge that obligation.

[96] Wiswell v Metropolitan Corporation of Greater Winnipeg, [1965] SCR

512, 51 WWR 513 [Wiswell], involved an application for a declaration
that a zoning by law passed by the respondent was invalid. The
municipality had given notice of hearings in two newspapers but no
notices were posted on the premises. A homeowners association to
which the appellant belonged and which was known by the
respondent to be opposed to the application did not see the
newspaper advertisements and had no notice or knowledge of the by
law application. Cartwright J. on behalf majority of the Supreme Court
of Canada held that the by law was invalid in part because the
municipality, having actual knowledge of the homeowners
association’s standing opposition to zoning changes, had not given
adequate notice in the circumstances. He stated at pages 520 to 521:
 24

I am of the opinion that the by-law was void in the particular

circumstances of this case. It was not merely the failure to post
the placards but the manifest ignoring of the fact known to it
that the Association would oppose the by-law….

[97] Similarly, in this case, the “manifest ignoring of the fact known” to the
GN that BIM would oppose the assessment renders the Notice of
Assessment invalid via-a-vis BIM.

[98] Wiswell was also followed in Conception Bay South (Town) et al. v
Board of Commissioners of Public Utilities (Nfld.) et al., 95 Mfld &
PEIR 106, 1991 CanLii 6983 [Conception Bay]. In Conception Bay,
the Court considered whether decisions of the first respondent, the
Public Utilities Board for the Province of Newfoundland, respecting
rates to be paid to the second respondent, Newfoundland Light &
Power Co. Limited, had breached principles of natural justice.
Cameron J. concluded at para 20:

Some general trends can be observed. It is clear that aside from

statutory requirements the content and method of service of
notice and who is served is influenced by the type of hearing,
the knowledge of the parties respecting who might be affected
by or opposed to a proposed course of action and the nature of
the interest affected.

[99] The principle that can be drawn from these cases is that where a
decision-maker has actual knowledge of a party’s interest in a
decision, procedural fairness requires that the decision-maker give
the interested party notice. The GN had actual notice that BIM
opposed the assessment of the Mary River Lands, and that the
assessed value of the Lands was significant. At a minimum,
procedural fairness requires it to advise BIM that the Notice of
Assessment had been sent to QIA, if not actually to send BIM a
duplicate copy.

[100] The GN was well aware that there was a live issue in dispute as of
December 2, 2016, concerning whether QIA or BIM was the “owner”
for assessment purposes for 2014 and 2015 by virtue of the NLCA.
Until there is a ruling confirming which party is the “owner” BIM is
entitled to be mailed a copy of all notices of assessment. A failure to
require that assessment notices be sent to BIM would reflect pre-
judgment by the TBR.
 25

[101] It is apparent from a review of the Lannan affidavit filed by the TBR
that it neither turned their minds to the Wiswell line of case law nor did
they consider whether valid notice had been given to BIM to trigger
the running of the timelines in PATA to commence a complaint. The
TBR made no inquiries regarding to whom the notice had been sent.
Rather, it simply decided that, having been told the notice had been
mailed to QIA on December 2, 2016, this foreclosed any complaint by
BIM following the 45 day period after the notice was mailed to QIA.

[102] The TBR’s Decision was also procedurally unfair because it failed to
give BIM any opportunity to make representations before reaching a
decision about its jurisdiction to hear the Complaint. As noted at ss.
7:1100, 7:1310 and 7:1330 in Donald J.M. Brown, Q.C. and the
Honourable John M. Evans, Judicial Review of Administrative Action
in Canada (Thomson Reuters, Toronto) (loose-leaf), it is a
fundamental principle of procedural fairness that a party be given the
opportunity to be heard and make representations before a decision is
made which affects its rights.

[103] In justifying making the Decision without providing BIM with an

opportunity to make submissions, the TBR argues at para 4 of the
Lannan affidavit that the Secretary and the Board are entitled to rely
on the confirmation specified in subsection 40(4) and have no duty to
make an inquiry. However, such reasoning is wholly inconsistent with
established principles of statutory interpretation.

[104] Subsection 4 states that for the purposes of subsection 3 the

“secretary of a board of revision shall confirm the date of mailing of
the assessment notice with the Director or senior administrative
officer, as the case may be.

[105] Nowhere in PATA does it state that a hearing may be dispensed with
where a party argues there has been a breach of procedural fairness
(i.e. no notice has been sent to a party entitled to notice or the notice
is inadequate), and nothing short of an unequivocal statement
removing the parties’ procedural rights suffices to do so. As explained
at s. 7:1511 of Brown & Evans:

[a]s a matter of statutory construction nothing short of

unequivocal statutory language or necessary implication will
suffice to persuade the courts that legislation authorizes non-
compliance with the “duty” of fairness”.
 26

[106] This is consistent with statements at para 54 of Wakil v Ontario

Medical Review Committee, [1977] 1 ACWS 4, 1977 CarswellOnt 782
[Wakil], and paras 1, 27 and 29 of Hundal v British Columbia
(Superintendent of Motor Vehicles), [1985] 5 WWR 449, 1985
CarswellBC 190 [Hundal]. In Wakil the Court stated:

the right of a citizen not to be affected in person, purse, or

property without a hearing (unless deprived of it by statute)
was enshrined in the Magna Carta … The mere failure of a
statute to recognize the right will not vitiate that right.

[107] Even if the words “to the owner” were read into subsection 40(3), the
identity of the owner is in dispute. Subsection 27(2) requires that the
Notice of Assessment be mailed to each assessed owner when the
assessed value of the property has changed. The TBR could not
decide if the notice had been mailed to the owner as required by
PATA without deciding whether QIA or BIM was the owner and that
issue is still in litigation. By concluding that the requirements of
subsection 40(3) had been met, the TBR, in essence, prejudged the
merits of QIA’s position before it made this ruling.

[108] For this reason, BIM submits that subsection 40(3) should be
interpreted to mean within 45 days of the mailing of the notice “to the
party” rather than “to the owner”. It states that no complaint shall be
heard unless the Secretary of the TBR receives the complaint within
45 days after the date of mailing of the notice for the assessed
property. The subsection is silent about which person the notice was
to be sent to and could include the owner or another party and these
could be on different dates. Although subsection 27(1) only expressly
requires that the Notice of Assessment be sent to the assessed owner
recorded on the Assessment Roll, it clearly contemplates that the
Notice of Assessment would be mailed to persons other than an
owner. For example, s. 42 requires that a notice of hearing be sent to
not only to the complainant but also to the assessed owner of the
property if the owner is not the complainant. As a result there are two
possible interpretations of subsection 40(3). It could mean within 45
days after the mailing of the Notice of Assessment to the owner or it
could mean within 45 days after the mailing of the Notice of
Assessment to someone who is a party.

[109] The fact that PATA does not expressly refer to the right of interested
persons to receive Notice of Assessments does not mean that it does
not exist. The legislation is simply silent and this Court has to read the
 27

legislation in a manner consistent with the principles of statutory

interpretation.

[110] BIM distinguished Edmonton City Assessment because in that case

the ratepayer actually received the Notice of Assessment, but was
late filing due to mail delays.

[111] BIM also distinguished Pacific Rim Resort Properties Inc. v Port
Alberni Assessor, Area No. 05, 2005 BCCA 241, 41 BCLR (4th) 59
[Pacific Rim], because the legislative scheme was different and used
a statutory date rather than a mailing date.

iii. GN

[112] The GN did not challenge BIM’s factual allegations in paras 88 to 93

above. It also did not address the allegations from the applicants
about the alleged breaches of procedural fairness. Its position was
that the applicant’s submissions on procedural fairness are moot
because PATA does not provide any flexibility or discretion for the
TBR to hear a complaint that has been received outside of the
required time frame.

[113] The GN argues the Court must look at the evidence that was before
the TBR rather than all the affidavits filed. The TBR had Complaints
from QIA and BIM. The TBR knew from the QIA Notice of Complaint
that the Notice of Assessment purported to have been mailed on
December 2 was only received by QIA on January 21. We now know
that QIA received it on December 13.

[114] The GN argues that all the evidence submitted by QIA is extraneous
to the determination of the mailing date because it is stated on the
Notice to be December 2, 2016, and because QIA actually received it
in December 13, 2016. The fact that QIA lost the Notice is unfortunate
but not a relevant consideration. QIA missed that January 16 deadline
and the TBR made a decision that the Complaint was out of time. The
TBR knew that BIM did not receive the Notice and also knew there
were issues between the parties. However, it decided that the
Complaint was out of time. Both Decisions were reasonable and the
Court should defer to the Decisions made by the TBR.
 28

[115] The GN argues that subsection 27(2) of PATA specifies that the
Notice of Assessment is to be sent to the assessed owner recorded
on the assessment role. Towns sent it to QIA because they were the
assessed owner on the assessment role. He defended the Decision in
his cross-examination and explained that in many cases the landlord
is the assessed owner but has numerous tenants. PATA did not
contemplate that he would have to send it to the tenants.

[116] The GN argued that Wiswell was not authority for the proposition
that the actions of the municipality were void. The Court was
composed of a five member panel and two found the actions were
void while one member dissented and held it was voidable. The other
two members refused to decide whether the decision was void or
voidable. The net result is that the case stands for the proposition that
the actions are voidable. It is unclear whether the TBR addressed its
mind to the void-voidable choice, but it made a decision and that
decision was reasonable.

[117] The TBR knew that a Notice of Assessment was sent to the
assessed owner on the rolls. TBR also knew that QIA had not
received the Notice of Assessment prior to the deadline for filing a
complaint. They knew the date of mailing from the email sent by the
Director on January 20 and from the notice itself which stated that the
mailing date was December 2.

[118] The GN argues that subsection 40(3) states that “no complaint shall
be heard”. The use of the mandatory word “shall” indicates that the
TBR has no discretion with respect to the time limits. The TBR can
only exercise powers provided to it by statute and is absolutely
prohibited from doing anything else. The Legislature made it clear that
the TBR shall not hear complaints outside of that time period. When
the TBR found out about the complaints they also determined that it
did not have the discretion to extend the time.

[119] The GN relies on Edmonton City Assessment. That case concerned

the interpretation of similar wording in the Alberta equivalent to PATA.
The Notice of Assessment was received by the ratepayer and he
mailed it before the deadline, but the Board did not receive it until
after the deadline. Subsection 467(4) of the Act stated that:

An Assessment Review Board must dismiss a complaint that

was not made within the proper time.
 29

[120] The Board interpreted the legislation and determined that it could
extend the time. However, at para 61 Hillier J. held that the decision
was unreasonable and that the Board appeared to have invoked
principles of fairness and natural justice to extend the deadline. The
GN submits that what the Court meant is that you cannot interpret a
mandatory provision as allowing any discretion.

[121] Further at para 76 Hillier J. noted that the applicant had argued that
he had done all that he could be expected to do in order to file his
appeal in a timely fashion. He responded that if this argument were to
be successful, it would potentially apply in all cases where the
vagaries of the postal system result in delay in delivery of complaints.
If the Court accepts the QIA argument that the date that should be
used is when the Notice of Assessment is sent and received, then the
TBR would face the problem that Hillier J. described. PATA set up an
annual process. By using the date of receipt, you could have taxation
years from when the Notice was sent. For example, if a ratepayer
moved and changed address he could appear years later and say he
just received the Notice. The Legislature cannot have intended this
interpretation when it provided both direct and public notice of the
mailing of the Notice of Assessments.

[122] The GN also relied on Pacific Rim. In that case, the Notice of Appeal
had to be filed with the Board on or before April 30. The ratepayer
informed the Board prior to the deadline that it intended to appeal, but
did not file until six days after the deadline. The Board ruled the
appeal was invalid. The decision was overturned by the BC Supreme
Court. The Court of Appeal in its judgment overturned the Supreme
Court that had concluded that the interests of fairness dictated that
the filing deadline be extended. The Court of Appeal stated at para 14
that there was no provision in the Act that affords the Board discretion
to extend the time for filing the appeal regardless of what the interests
of fairness dictate.

iv. TBR

[123] The TBR submits that the procedural fairness issues raised by the
applicants arise from the actions of the Director and by the GN. They
do not arise from the actions of the TBR. The TBR was neutral on the
issues that occurred before it received the Complaint. These issues
do not relate to the fairness of the process before the TBR and
 30

therefore are not the proper subject of a judicial review application to

review the TBR’s Decision that the Complaints were out of time.

[124] The TBR acknowledged that there was a potential procedural

fairness issue about the timeliness of the complaints. However, the
TBR’s position is that it did not have the authority to consider this
procedural fairness issue because the complaints were not received
within the 45 days specified under s. 40(3) of PATA. The timeline in
this section is not one set by the TBR but rather by PATA and the
Director, meaning that the TBR had no authority to extend it.

2. Analysis

[125] The principle of audi alteram partem is one of the oldest principles of
administrative law and comes from the common law. As Cȏté J.
stated at para 156 of Boardwalk:

The oldest rule of administrative law is to give a citizen notice

of an alleged transgression or failing, before penalizing him or
her or removing his or her office, property or liberty because of
it. See de Smith, Woolf and Jowell, Judicial Review of Admin.
Action, paras. 6.010 ff. and 7.043 ff. (6th ed. 2007). That is at
the core of the rules of natural justice, and the rules of
procedural fairness. See Dunsmuir v. R., supra (para. 79). It is
no answer that the citizen will have no defence, or that the facts
are already irretrievable. The prisoner already convicted of
murder is still asked if he can give any reason why sentence
should not be passed.

[126] He also noted at para 162 that the rules of fairness are applicable to
taxation statutes:

Indeed, our Court has already stated that such a duty of fairness
attaches to s. 295(4) of the Municipal Government Act:

We would say, however, that while taxation statutes

have not devolved from notions of fairness, we incline
to the view that where any review of their application to
a taxpayer is sternly curtailed, the elemental fairness of
the taxpayer’s treatment must be regarded as justiciable.
This too militates against summary determination of the
jurisdictional question. It appears to us that Chief
Justice Lamer’s widely respected dictum that “if the
 31

prohibitory words of the statute are clear, our inquiry is

ended” is subject to the proviso of procedural fairness
in matters of taxation. See generally, Cardinal v. Kent
Institution 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643,
653 (S.C.C.) where it is said that “[t]here is, as a
general common law principle, a duty of procedural
fairness lying on every public authority making an
administrative decision which is not of a legislative
nature and which affects the rights, privileges or
interests of an Individual. – Amoco Can. Petroleum Co.
v. Min. of Municipal Affairs, supra, at para. 8

Administrative tribunals and the Court of Queen’s Bench have

a duty to consider Court of Appeal decisions. See also
Winnipeg Assessor v. Kisil Hotel, supra. [Emphasis in
original].

[163] So clearly this assessor had a duty to be fair.

[127] Any administrative tribunal should be well aware of these

fundamental principles. The right to a hearing does not come from a
statutory provision but is derived from the common law and depends
on many factors. The right will be implied by a court whenever it is
clear that a party has been treated unfairly and denied the opportunity
to be heard when its rights are affected. It does not have to be in the
legislation although that is frequently the case. Subsection 461(2) of
the Municipal Government Act, RSA 2000, c M-26, that was
interpreted in Edmonton City Assessment makes a hearing
mandatory when the ARB receives a complaint.

461(2) On receiving a complaint, the designated officer

referred to in s. 455 must set a date, time and location for a
hearing before an assessment review board in accordance with
the regulations.

[128] The equivalent sections of PATA are ss. 41 and 42. They state:

41. A board of revision shall hear and consider each

complaint that made to it in accordance with this Part.

42. At least 21 days before the date of hearing of a board of

revision, the secretary of the board shall mail a written notice
of the date, time and place of the hearing to
(a) the complainant;
 32

(b) the assessed owner of assessed property in

respect of which the complaint is made, if he or she is not the
complainant;
(c) the Director; and
(d) if the complaint is made with respect to
assessed property in a municipal taxation area, the senior
administrative officer.

[129] The ARB and TBR were both faced with same issue of possible
invalid complaints because of the failure to comply with statutory time
limits. As noted above the ARB was aware of the ratepayers’ attempts
to communicate with the City and of his intent to file a complaint.
Although the ARB recognized that the complaint might have been
invalid because of missing the statutory deadlines it was also aware
of the rules of procedural fairness. Instead of making a decision in the
absence of the ratepayer, as the TBR did, the ARB decided to hold a
hearing on the issue of whether the complaint was valid. After hearing
from both parties the ARB decided that it had the jurisdiction to extend
the filing deadlines. Hillier J. concluded that the ARB decision did not
meet the reasonableness standard and quashed the decision. There
was no issue before him on the denial of procedural fairness that is
before me on this application and for that reason Edmonton City
Assessment is distinguishable.

[130] The TBR failed to take the same preliminary step of giving the
applicants an opportunity to be heard before it made the substantive
decision on the interpretation of subsection 40(3) of PATA. The TBR
was well aware or should have been well aware of the history of this
file. The 2014 assessment was initially issued to BIM. However, after
a complaint by BIM a new 2014 assessment was issued substituting
QIA as the new assessed owner. The TBR directed that the Mary
River Lands be re-assessed and QIA filed an appeal of the new 2014
assessment on the grounds that the Mary River Lands are exempt
from taxation under Article 22 of the NLCA. A new Notice of
Assessment was issued to QIA on August 24, 2015, showing QIA as
the assessed owner.

[131] In November 2015, a Notice of Assessment was issued to QIA

similar to the 2014 assessment. Following complaints filed by BIM
and QIA the 2015 Notice of Assessment was corrected and re-issued
on October 7, 2016. The TBR ordered a similar reassessment as the
 33

year before and ordered the Director to mail the Notices of

Assessment to both QIA and BIM.

[132] Despite the TBR’s direction on the 2015 Notices, the Director
decided that he would only send the 2016 Notice to QIA. His
explanation for doing so given the background is disingenuous.
Unfortunately, a QIA employee did not forward the Notice to upper
management and they did not find out about it until the 45 days
specified in subsection 40(3) had expired. If the Director had sent the
Notice to BIM there is a high probability it would have come to QIA’s
attention within the 45 day period because QIA and BIM would have
shared the information as occurred on January 23 and 24, 2017.
Taking this simple step would have avoided this litigation.

[133] I agree and accept BIM’s argument that the TBR neither turned its
mind to the Wiswell line of case law nor did it consider whether valid
notice had been given to BIM to trigger the running of the timelines in
PATA to commence a complaint. The TBR made no inquiries
regarding to whom the notice had been sent. Rather, it simply decided
that, having been told the notice had been mailed to QIA on
December 2, 2016, this foreclosed any complaint by BIM following the
45 day period after the notice was mailed to QIA.

[134] On January 18, 2017, Chapple emailed Lannan. He stated, “the last
day for submitting complaints was January 16, 2017.” He then asks
the question “Did you receive any complaints?” This exchange
demonstrates that some complaints were anticipated. Given the
history between QIA and the Board, it would only have taken a phone
call or an email prior to the deadline to find out if something was
wrong with QIA’s assessment. Instead the TBR did nothing until the
deadline had passed. The flurry of activity after QIA found out that the
Notice of Assessment had been sent out confirmed what Chapple and
Lannan had to have suspected. There had been some problem in the
mailing of the Notice of Assessment that resulted in QIA not filing a
complaint.

[135] In Edmonton City Assessment, the ARB knew the ratepayer had
received the Notice of Assessment and intended to file a complaint.
However, it was aware of the rules of procedural fairness and knew it
should give him an opportunity to be heard before moving on to a
hearing on the merits. In this case the TBR should have known BIM
had not received the Notice of Assessment because it was never
mailed to them. Yet the TBR failed to inquire if the Notice of
 34

Assessment had been mailed to BIM after they received the late
Complaint. I am satisfied that BIM falls within Wiswell and that the
TBR breached the rules of procedural fairness by not setting up a
hearing and giving BIM an opportunity to be heard before deciding the
Complaint was out of time.

[136] QIA is in a different position because it did receive the Notice of

Assessment on December 13, 2016. As a result Wiswell is not
applicable. It failed to file the Complaint because of a failure of its
internal mail processing. Nevertheless, it relies on Boardwalk and
advances a breach of procedural fairness argument that is based on
breaches by the Director and property assessor before the Complaint
reached the TBR. It also advanced a solid argument that the TBR
made a jurisdictional error in deciding that its Complaint was out of
time. Once again the TBR failed to address its mind to these types of
arguments and most importantly did not give QIA an opportunity to be
heard. If it had done so it might have accepted the QIA argument and
ruled that the Complaint was validly filed.

[137] The TBR argues that it is not responsible for the actions of the
Director and had no duty of fairness to the applicants. It is apparent
from Cȏté J.’s comments at para 159 of Boardwalk that technical
attempts to defeat a legitimate fairness issue will not be well received.
This argument ignores the history of the relationship between QIA and
the Director. The TBR was well aware of that history having given
specific instructions to the Director the year before to send the
Notices of Assessments to both applicants. The TBR knew there was
a problem when the Complaints were not filed within the 45 day time
limit. By failing to contact the applicants and offer some type of
hearing, the TBR breached the rules of procedural fairness.

C. If the TBR breached the rules of procedural fairness, was the

TBR Decision that the Complaints were out of time correct?

[138] Since I have held that the TBR breached the rules of procedural
fairness with respect to both applicants, I am required to carry out my
own analysis of the TBR Decisions and determine if they were
correct. As stated at para 50 of Dunsmuir:
 35

As important as it is that courts have a proper understanding of

reasonableness review as a deferential standard, it is also
without question that the standard of correctness must be
maintained in respect of jurisdictional and some other
questions of law. This promotes just decisions and avoids
inconsistent and unauthorized application of law. When
applying the correctness standard, a reviewing court will not
show deference to the decision maker’s reasoning process; it
will rather undertake its own analysis of the question. The
analysis will bring the court to decide whether it agrees with
the determination of the decision maker; if not, the court will
substitute its own view and provide the correct answer. From
the outset, the court must ask whether the tribunal’s decision
was correct.

[139] The GN submitted that the applicant’s submissions on procedural

fairness were moot because the statutory scheme set out in PATA
does not provide any flexibility or discretion for the TBR to hear a
complaint that is out of time. In support of this argument, the GN
relied on Quebec (Communauté urbaine) v Corp. Notre-Dame de
Bon-Secours, [1994] 3 SCR 3, [1994] SCJ No 78 (QL). In that case,
and many others, the Supreme Court adopted and applied the basic
principle of statutory interpretation from p. 87 of Drieger, Construction
of Statutes, 2nd ed. (Toronto: Butterworths, 1993).

. . . 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.

[140] Applying these principles and taking into account subsection 28(2) of
the Interpretation Act, RSNWT (Nu) 1988, C I-8 and s. 28 of PATA on
publication of public notice, the GN argues that the system set out in
s. 40 for the filing of complaints is not structured with flexibility or
discretion. As a result, the TBR has no authority to extend the 45 day
timeline after the mailing of the Notice of Assessment.

[141] I am satisfied that these sections of PATA are not as unambiguous

as argued by the GN. Neither applicant argues that the TBR should
have extended the timelines as the ARB did in Edmonton City
Assessment. However, they do argue that the TBR failed to
appreciate the preliminary steps it must take to establish when the 45
 36

day period started to run. It simply assumed that the mailing date as
stated on the Notice of Assessment was correct and then determined
that the Complaints were out of time.

[142] BIM argues that there is some ambiguity in the wording of

subsection 40(3) because it only refers to the mailing of the Notice of
Assessment for the assessed property. The subsection is silent about
who the Notice of Assessment was to be sent to and could include the
owner or another party and these could be on different dates. It could
mean the owner or another party such as a tenant. Although
subsection 27(1) only expressly requires that the Notice of
Assessment be sent to the assessed owner recorded on the
Assessment Roll, it clearly contemplates that the Notice of
Assessment would be mailed to persons other than an owner. For
example, s. 42 requires that a notice of hearing be sent to not only to
the complainant but also to the assessed owner of the property if the
owner is not the complainant. As a result, there are two possible
interpretations of subsection 40(3). It could mean within 45 days after
the mailing of the Notice of Assessment to the owner or it could mean
within 45 days after the mailing of the of the Notice of Assessment to
someone who is a party.

[143] BIM argues that even if the words “to the owner” were read into
subsection 40(3) the identity of the owner is in dispute. Subsection
27(2) requires that the Notice of Assessment be mailed to each
assessed owner when the assessed value of the property has
changed. QIA has asserted in the previous years that BIM is the
“owner” of the Mary River Lands for assessment purposes only by
virtue of the provisions of the NLCA. The GN was aware that this was
a live issue as of December 2, 2016. Until there is a ruling confirming
who is the “owner” for the purposes of PATA, BIM is entitled to be
mailed a copy of the Notice of Assessment. The TBR could not
decide if the notice had been mailed to the owner as required by
PATA without deciding whether QIA or BIM was the owner and that
issue is still in litigation. By concluding that the requirements of
subsection 40(3) had been met, the TBR, in essence, prejudged the
merits of QIA’s position before it made this ruling.

[144] For this reason, BIM submits that subsection 40(3) should be
interpreted to mean within 45 days of the mailing of the notice “to the
party” rather than “to the owner”. The fact that PATA does not
expressly refer to the right of interested persons to receive Notice of
Assessments does not mean that it does not exist. The legislation is
 37

simply silent and this Court has to fill in the legislation following
principles of statutory interpretation.

[145] The GN did not address this argument and simply stated that there
was no ambiguity in subsection 40(3) and went to address the
interpretation advanced by QIA.

[146] I am satisfied that there is an ambiguity in subsection 40(3) and

agree with the interpretation advanced by BIM. This is consistent with
the principles of statutory interpretation set out in Canada Trustco,
Calgary City and Agnico-Eagle that the uncertainty should be
resolved in favour of BIM.

[147] The TBR should have addressed its mind to which parties the
Director should have mailed the Notice of Assessment. If it had done
so, it would have remembered that on the 2015 Notice of Assessment
it ordered that both QIA and BIM be sent the Notice of Assessment
and that BIM should have been sent the 2016 Notice of Assessment.

[148] As a result, I conclude that the TBR’s Decision about the late filing of
the BIM Complaint was incorrect. Since BIM was never mailed the
Notice of Assessment the time has not started to run.

[149] As set out above, QIA advanced a three part argument that the TBR
failed to establish the actual date the Notice of Assessment was
mailed.

[150] First, the public notice was defective.

[151] Second, the TBR failed to confirm the actual date the Notice of
Assessment was mailed as required by subsection 40(4). Instead the
TBR decided that the mailing date was December 2, 2016 because
that was the date that the Director picked and inserted into the Notice
of Assessment. There was no request from the TBR for evidence to
support the December 2 date. As a result, the only solid evidence that
is now before the Court is that QIA received the Notice of Assessment
on December 13, 2016.

[152] Third, relying on Calgary City and para 67 of Edmonton City

Assessment, QIA argues that the words “after mailing of the Notice of
Assessment” should be interpreted as “mailing and receiving.” As
stated at para 61 of Calgary City, the purpose of the mandatory
language used in subsection 27(3)(d) is to provide an assessed
 38

owner a period of time after receiving the Notice of Assessment to

consider making a complaint. The period of time should commence at
the time the notice is received by the assessed owner. To interpret
otherwise would give rise to the inequity of the right to complain being
lost by the assessed owner’s ignorance of the assessment. As stated
at paras 64 and 68 to 71 of Calgary City, interpreting a section like
subsection 40(3) as excluding receipt would mean that a ratepayer
has less than 45 days to respond to a Notice of Assessment. This
would be contrary to the legislative intent.

[153] The GN response to these arguments was that there was no

ambiguity. Additionally that it would impose a difficult administrative
burden on the Director and TBR that Hillier J. described at para 76 of
Edmonton City Assessment. PATA set up an annual process. By
using the date of receipt you could have taxation years from when the
Notice was sent. For example, if a ratepayer moved and changed
address he could appear years later and say he just received the
Notice. The Legislature cannot have intended this interpretation when
it provided both direct and public notice of the mailing of the Notice of
Assessments.

[154] I am satisfied that the public notices in Kivalliq News and NNN
posted by the Director were defective and that the Lannan failed to
obtain proof from the Director on the actual date of mailing as
opposed to the presumed date on the Notice of Assessment.

[155] In Calgary City, the Municipal Government Board [MGB] had to

interpret the Municipal Government Act [MGA] which is very similar to
PATA. On February 1, 2002, property tax assessments were mailed
to property owners in the City including the ratepayer Chou. The City
also placed advertisements in local newspapers as required by the
MGA. The MGA required that each of the assessments indicate a
date, not less than 30 days after the property assessments are sent,
by which a property owner must file a complaint. The assessment
notices indicated that complaints must be filed by March 4, 2002. On
March 6, 2002, Chou filed his complaint with the Assessment Review
Board [ARB] of the City of Calgary but was advised by a clerk that it
was out of time and invalid. The ARB held no hearing and made no
direct representations to Chou who appealed the ARB decision to the
MGB. The MGB decided that the 30 day period starts to run once the
assessed party receives the notice. Park J. confirmed the MGB
decision and dismissed the City of Calgary application.
 39

[156] While there is some basis in Park J.’s analysis in Calgary City to
support QIA’s argument that mailing should be interpreted as mailing
and receiving, I am not satisfied that it is necessarily the correct
interpretation of s. 28 of PATA. That section requires that the public
notice must be made within 14 days of the date of mailing. Since the
appropriate authority would not be able to ascertain when a document
is received by an assessed owner, s. 28 which uses the word “mailed”
could not be carried out unless “mailed” refers to the single act of
mailing a document. Furthermore, there would be no point to have s.
28 mandating public notice if the assessed owner had already
received the actual Notice of Assessment.

V. CONCLUSION

[157] The TBR had the opportunity to hear and rule on the QIA and BIM
jurisdictional arguments that were argued before me. However,
instead of inviting and hearing the applicants’ arguments as advanced
before me the TBR chose one interpretation of subsection 40(3). The
TBR assumed that the issue was whether it could extend the 45 day
time limit. Based on that erroneous assumption the TBR applied case
law that supported their conclusion that it had no discretion to extend
the 45 day deadline. In fact, the issue was when the 45 day time
period started to run. The applicants advanced serious, well-
articulated arguments that raised a preliminary jurisdictional issue
regarding the interpretation of other PATA sections. The points raised
concerned when the 45 days started to run. The applicants were
unable to put this before the TBR because they were not given an
opportunity to be heard.

[158] Although the TBR was correct that it did not have the jurisdiction to
extend the 45 day timeline, it was incorrect in failing to give the
applicants an opportunity to be heard and advance the arguments
that were argued before me.

[159] I have analyzed the arguments that the applicants would have
advanced. If they had been given an opportunity to be heard and
found them to be meritorious and the only question that remains is
whether I am legally obligated to send it back to the TBR for another
hearing or whether I can assume that jurisdiction.
 40

[160] As stated at pages 227 to 228 of Sara Blake, Administrative Law in

Canada 5th ed. (Markham, ON:Lexis Nexis, 2011) the general rule is
that a court’s power is limited to quashing the decision and sending it
back to the tribunal for reconsideration. However, as held at paras 91
and 92 of Corp. of the Canadian Civil Liberties Assn. v Ontario
(Civilian Commission on Police Services), 220 DLR (4th) 86, 2002
CanLII 45090 (ONCA) there are exceptions:

[91] In accordance with these reasons, I would dismiss the

appeal from the decision of the Divisional Court subject to one
variation. While I would quash the decision of the
Commission, I would not remit the matter back to the
Commission to be decided in accordance with this court's
reasons. I would, instead, declare that having regard to the
appropriate interpretation of ss. 64(6) and (7) as outlined in
these reasons, the only possible conclusion is that the
individual complainants are entitled to a hearing
to be conducted pursuant to s. 72(8) by a different police force.

[92] In making this declaration I recognize that I am departing

from the traditional remedy of quashing the decision under
review and remitting the matter back to be dealt with by the
administrative body. There is, however, guidance in the
decision of the Supreme Court in Renaud v. Québec
(Commission des affaires sociales), 1999 CanLII 642 (SCC),
[1999] 3 S.C.R. 855, 184 D.L.R. (4th) 441. In the unusual
circumstances of that case, as here, the complaint had
previously been the subject of review on two or more occasions
and no useful purpose would have been served by remitting the
matter back to the administrative body. I note that in Barreau
du Québec c. Lachance, [2000] J.Q. No. 317 (Quicklaw), the
Quebec Superior Court similarly stated that it would be
"inutile" or useless to send the matter back to the administrative
body. Coincidentally these decisions reflect the
recommendation made by the English Law Commission in its
1994 report "Administrative Law: Judicial Review and
Statutory Appeals": from Lord Woolf, J. Jowell and A.P. Le
Sueur, Principles of Judicial Review (London: Sweet &
Maxwell, 1999) at p. 582 that on rare occasions where no other
outcome would be appropriate, the reviewing court may make
the order the administrative body should have made.

[161] I am satisfied that the case at bar falls within this exception and that
there is no useful purpose in sending the matter back to the Board.
Appeals from the 2014 and 2015 assessments are before the AAT on
 41

the same issues as raised in this Application and the 2016

assessments may be conveniently heard with them.

[162] I conclude that the TBR was incorrect in finding the QIA Complaint
was out of time. Since the TBR had no evidence before it on the
actual date the Notice of Assessment was mailed, it has could not
determine when the 45 days started to run.

[163] I quash the August 30, 2017, Decision of the TBR which decided
that the QIA Complaint was out of time and declare it was received in
a timely manner.

[164] I order that the 2016 Notice of Assessment is null and void for non-
compliance with the notice requirements of PATA and direct that the
Mary River Lands be reassessed and a new Notice of Assessment be
issued, appealable to the Assessment Appeal Tribunal in accordance
with PATA.

[165] I direct and order that the Notice of Assessment for the Mary River
Lands is void and without effect until properly mailed to BIM and
public notice properly given.

[166] I declare that BIM’s Complaint dated January 24, 2017, was
received in a timely manner and direct and order that the Complaint
shall be treated as an appeal to the AAT pursuant to s. 64 of PATA
and joined and heard by the Tribunal together with BIM’s outstanding
appeals from Notices of Assessments for other taxation years.

VI. COSTS

[167] The applicants are awarded special costs as I described them at

para 18 in Rennie v WCB, 2007 NUCJ 22, 66 Admin LR (4th) 140:

The general rule is that the successful party is entitled to party-and-party

costs based on the appropriate column in the tariff listed in the rules of
court. However, courts will increase this amount to a level in-between the
tariff and the solicitor-and-client scale, in appropriate cases, to
approximate the third category of increased costs used in British
Columbia.
 42

[168] I award the applicants party-party costs in column 6 of the Tariff plus
one half of the difference between that amount and solicitor-client
costs and all reasonable disbursements.

Dated at the City of Iqaluit this 18th day of September, 2018

___________________
Justice E. Johnson
Nunavut Court of Justice