B.C. man's constitutional challenge to property tax law rejected

A file photo shows a statue inside the B.C. Supreme Court in Vancouver, B.C.

The B.C. Supreme Court has rejected an unusual constitutional challenge that sought to invalidate the law that governs the assessment of property values in the province.

The challenge to the Assessment Act came in the form of three "stated cases" arising from appeals to the Property Assessment Appeal Board by property owner Sheldon Goldberg.

The appeals involved three separate properties, located in Vancouver, New Westminster and Surrey, respectively. Each one ended with the appeal board confirming the assessed value after rejecting requests from Goldberg for an in-person hearing and for confirmation that board members had taken an oath of impartiality, independence and honesty.

In each case, the board determined that an in-person hearing was not necessary, and declined to take the kind of oath Goldberg requested.

Goldberg sought to appeal the three appeal decisions to the B.C. Supreme Court, which is allowed under the Assessment Act, but only on questions of law.

Such appeals, known as "stated cases," are prepared by the Property Assessment Appeal Board, but contain questions of law posed by the property owner seeking to appeal.

THE QUESTIONS

Each of the three stated cases included the same three questions for the court, summarized in Justice Margot L. Fleming's decision as follows: 

1. Must or need the Property Assessment Review Panel and the Property Assessment Appeal Board take an oath or affirmation of independence and impartiality and honesty?
2. Need the PAAB Chair (have) advised the panel hearing the case of the appellant’s previous request to state a case?
3. Was there a right to an in-person hearing where witnesses are cross examined on substantial discrepancies and accuracy and independence?

According to the court decision, Goldberg took issue with the requirement that the board bring the case.

"During oral submissions Mr. Goldberg asked that 'further points of law' be considered, handing up a document and complaining that the board 'decided for me what I think is relevant,'" Fleming's decision reads.

Most of these "further points of law," which Fleming listed in the decision, were not phrased as questions, and the board determined that they couldn't be phrased as such. For this reason, it opted not to include them in the stated cases.

"Where the board refuses to include a question in a stated case, an appellant’s remedy is to seek judicial review of the refusal, which did not occur here," Fleming wrote. "Accordingly, I cannot and will not be considering questions other than the questions (from the stated case)."

Among the 15 items Goldberg sought to include that Fleming declined to consider were assertions that Property Assessment Review Panel and Property Assessment Appeal Board members should not vote, or should have to disclose for whom they voted. They should also have to disclose if they own property in the jurisdiction of the matter they're considering, he argued.

Goldberg also asserted that "anyone voting for (Surrey Mayor Doug) McCallum or (his party, the) Safe Surrey (Coalition)" should "be disqualified from sitting" on a panel reviewing his property assessment because he is "a non-resident elector in Surrey and did vote."

'ESSENTIALLY NO MERIT'

In addition to declining to weigh in on these matters, Fleming also declined to answer the questions from the stated cases.

"Regrettably, Mr. Goldberg’s written and oral submissions, which he himself characterized as disorganized, were often, if not mostly, tangential," the judge wrote.

"Clear throughout, however, was his view that the statutory scheme and the general and specific approach of the board does not accord with the demands of natural justice and procedural fairness. Mr. Goldberg’s primary complaint was that assessors, panel members and members of the board exercise their powers and responsibilities without having taken an oath or affirmation of independence and impartiality, which in his view is crucial to their function. Underlying this and other complaints is a belief 'the system' works against the taxpayer."

In dismissing the questions, Fleming wrote that "there is essentially no merit" to the issues Goldberg raised.

NO PROSPECT OF 'GETTING TO THE MERITS'

The judge reached a similar conclusion about the constitutional challenge, in which Goldberg argued that the Assessment Act violates section 8 of the Charter of Rights and Freedoms, which protects against unreasonable search and seizure.

"Mr. Goldberg did not allege any search or seizure or address the need for a reasonable expectation of privacy," Fleming wrote. "Instead he referred to any requirement to show a breach, which I take to mean a search, as ridiculous, arguing he does not want assessors on his property at all and his challenge is to the statutory power that would allow this to occur."

Absent an actual example of a search, Fleming concluded, there could be no assessment of its reasonableness.

"The notice (of constitutional question), Mr. Goldberg’s ongoing refusal to provide requested particulars, and his written and oral submissions make it clear there is no prospect of 'getting to the merits' in this case," the judge wrote. "I therefore dismiss his constitutional challenge."