Docket No.: CA 163809
Date: 20010606
NOVA SCOTIA COURT OF APPEAL
[Cite as: Emscote v. Nova Scotia (Attorney General), 2001 NSCA 92 ]
Bateman, Flinn and Cromwell, JJ.A.
BETWEEN:
THE ATTORNEY GENERAL OF NOVA SCOTIA
Appellant
- and -
EMSCOTE LIMITED, a body corporate
Respondent
__________________________________________________________________
REASONS FOR JUDGMENT
__________________________________________________________________
Counsel: Randall R. Duplak, Q.C., for the appellant
Peter Rumscheidt, for the respondent
Appeal Heard: January 16, 2001
Final Post
Appeal Submissions: February 27, 2001
Judgment Delivered: June 6, 2001
THE COURT: Appeal dismissed with costs and disbursements as per reasons for judgment of Flinn, J.A.; Bateman and Cromwell, JJ.A. concurring.
FLINN, J.A.:
[1] The appellant appeals a decision of Justice Goodfellow, in Chambers, in which he decided that:
(a) A Notice of Dissatisfaction (with respect to a property tax reassessment) mailed by the respondent to the Department of Municipal Affairs was served within the time limits prescribed by s. 68(5) of the Assessment Act, R.S., c. 23 (the Act); and
(b) alternatively, that the time for service was extended to the date on which the Department actually received the Notice of Dissatisfaction.
[2] The appellant submits that the Chambers judge erred in his interpretation of s. 68(5) of the Act, and that the respondent’s Notice of Dissatisfaction was not served within the time limit prescribed by s. 68(5). The appellant also submits that the Chambers judge had no jurisdiction to extend the time for service of the Notice of Dissatisfaction.
[3] The respondent had appealed the real property assessment on its property at Prince’s Lodge, Nova Scotia. The Department of Municipal Affairs then issued an amended Notice of Assessment under s. 68(4) of the Act. The amended Notice of Assessment reassessed the property at a higher value than the original assessment.
[4] The Department’s amended Notice of Assessment was then served on the respondent in accordance with s. 68(4) of the Act which provides as follows:
(4) If the Director amends the roll under the authority of this Section, he shall immediately serve an amended notice of assessment upon the appellant and upon the person assessed, either by personal service or by mailing it by registered mail addressed to the appellant at the address given by him for service and to the respondent, if any, at the last address known to the assessor.
[5] The respondent received the amended Notice of Assessment on Christmas Eve, December 24, 1999. The appellant and the respondent both agreed before the Chambers judge, and in their initial submissions to this court, that the date on which the respondent received the amended Notice of Assessment (December 24, 1999) was the date the respondent was served within the meaning of s. 68(4) of the Act. This date of service becomes important, considering the section which follows.
[6] Section 68(5) of the Act, which is the section of the Act at issue in this appeal, makes provision for what the respondent may do if dissatisfied with the amended Notice of Assessment. It provides as follows:
(5) When an amendment has been made under this Section, the appellant and the respondent shall, if either of them is dissatisfied, serve notice in Form E in the Schedule on the recorder and on the opposite party within seven days after service under subsection (4) and if no notice is so served, then the appeal shall be deemed to have been abandoned.
Emphasis added.
[7] Form E in the schedule to the Act provides as follows:
FORM E
(Section 68)
NOTICE OF DISSATISFACTION
Take notice that I am not satisfied with the amendment made by the assessor under Section 68 of the Assessment Act with respect to the appeal from the assessment of property at . . . . . . . . . assessed to . . . . . .
Dated . . . . . . . . . . this day of . . . . . . . . . ., 19. . . . .
C.D.
Appellant
To . . . . . . . . . .
Recorder of the Regional Assessment Appeal Court for the (City, Town, Municipality) of . . . . . . . . . .
[8] On the day that the respondent received the amended Notice of Assessment, December 24, 1999, its president, Ralph Medjuck, sent a Notice of Dissatisfaction, from his office in Halifax to the Regional Assessment Office in Dartmouth, Nova Scotia by ordinary mail.
[9] The Notice of Dissatisfaction did not arrive at the Regional Assessment Office until January 4th, 2000. The appellant takes the position that since the Notice of Dissatisfaction was not received until January 4, 2000, it was not served within the seven day period prescribed in s. 68(5) of the Act. Therefore, the respondent’s appeal of the reassessment is deemed to have been abandoned. The appellant’s position before the Chambers judge and, initially, on the hearing of this appeal was that, since the respondent was served with the amended Notice of Assessment on December 24, 1999, the respondent had seven days from that date within which to serve the Notice of Dissatisfaction, which seven day period expired on December 31, 1999.
[10] There is no dispute in this case that the Notice of Dissatisfaction was mailed by the respondent, from its office in Halifax, to the Regional Assessment Office in Dartmouth on the same day that the respondent received the amended Notice of Assessment, namely, December 24, 1999. There is also no dispute that the Regional Assessment Office received the respondent’s Notice of Dissatisfaction 11 days later on January 4, 2000. Further, there is no dispute that between December 24, 1999 and January 4, 2000 there were seven days when mail was not delivered. Four of those days were weekend days, and three were statutory holidays in lieu of Christmas Day (December 27, 1999), Boxing Day (December 28, 1999) and New Year’s Day (January 3, 2000).
[11] Under all of these circumstances, it is a reasonable inference that, but for the holidays which occurred during this period, and during which mail was not delivered, the Notice of Dissatisfaction would have been received by the Regional Assessment Office within seven days of the date of its mailing by the respondent.
[12] At the conclusion of the hearing of this appeal the court requested counsel to file further written submissions addressing the following question:
Where the Notice of Dissatisfaction is mailed and delivered by post, in circumstances where it is a reasonable inference that, but for the holidays which occurred between mailing and delivery, the Notice would have been received by the Municipal Assessment Office within seven days of the date of mailing, has service been effected within the meaning of s. 68(5) of the Assessment Act?
[13] Prior to dealing with this question, I will address another issue which has arisen, in the written responses to this question.
[14] The appellant now takes a different position as to when the respondent was served with the amended Notice of Assessment under s. 68(4) of the Act; and, hence, a different position as to when the seven day period expired within which the respondent was required to serve the Notice of Dissatisfaction under s. 68(5). The appellant now says its previous position (that the respondent was served when it received the amended Notice of Assessment - December 24, 1999) may be incorrect. The appellant cites cases in support of the proposition that the amended Notice of Assessment was served on the respondent the day that the Department mailed it; namely, December 21, 1999, and not the date the respondent received it; namely, December 24, 1999. This, the appellant says, adds three more days by which the respondent was overdue in serving its Notice of Dissatisfaction.
[15] I reject this revised position of the appellant. In none of the cases which the appellant cites to advance this position does the legislation provide, as does s. 68(4) of the Act, for service either by personal service or by registered mail. Further, in none of the cases cited by the appellant is the person on whom the document is served required to respond within seven days of service, as is the case here.
[16] The legislature has provided in s. 68(5) of the Act that the respondent must serve its Notice of Dissatisfaction “within seven days after service under subsection (4)”. Surely, the legislature could not have intended that seven day period, under s. 68(5), starts to run before the respondent receives the amended Notice of Assessment.
[17] In my opinion, service of the amended Notice of Assessment under s. 68(4) was effected on the respondent on the day it was delivered by registered mail, namely, December 24, 1999, and not the date the department mailed it, as the appellant now suggests. Therefore, as was acknowledged at the hearing before the Chambers judge and, initially, at the hearing of this appeal, the respondent had seven days from December 24, 1999 to serve its Notice of Dissatisfaction.
[18] I will now return to the main issue in this appeal, that is, whether the respondent served the Notice of Dissatisfaction within the seven day time period prescribed by s. 68(5) of the Act.
[19] Section 68(5) of the Act provides that the appellant shall “serve notice in Form E . . . within seven days” of December 24, 1999. The subsection is silent as to what method of service is permitted, or required. No assistance is found by examining Form E in the Schedule to the Act.
[20] The cases which the appellant cites in support of its position - that the Notice of Dissatisfaction must be received by the department within seven days of December 24, 1999 in order to have been served within the meaning of s. 68(5) - are cases where the statute being interpreted provides for some method of service. They are not helpful to this case where s. 68(5) is silent as to the method of service.
[21] Curiously, the immediately preceding subsection of the Act (s. 68(4)) - requiring the department to serve an amended Notice of Assessment on the respondent (as I have noted earlier in these reasons,) provides for service “either by personal service or by mailing it by registered mail . . .”, yet there is no provision for the method of service of the respondent’s challenge to that amended Notice of Assessment.
[22] There is another, apparent, inconsistency in this Act. When a ratepayer, or other interested party, is dissatisfied with the original assessment of its property, s. 63(1) of the Act provides that notice of appeal “shall be given not later than twenty-one days after the notices of assessment are served as provided in Section 53.” Section 84 of the Act provides for relief to the appellant if the appellant is prevented from duly prosecuting the assessment appeal “by absence, illness or other sufficient cause.” This relief does not appear to apply to the Notice of Dissatisfaction to be served under s. 68(5) of the Act. The appellant certainly takes the position that it does not apply, and the respondent did not make application to the Regional Assessment Office for any such relief.
[23] I do accept the appellant’s position that the word “serve” in s. 68(5) connotes receipt by the Regional Assessment Office. Further, that because of the “thousands of appeals” that are filed every year, a limitation period is of vital importance to the administration of the legislative scheme for processing assessment appeals. It would be unwieldy, for example, for the Regional Assessment Office to have to deal with appeals that were “in the mail” but not received by the Regional Assessment Office.
[24] In view of the conclusion which I have come to in this case, it is neither necessary, nor appropriate, to define when, in other circumstances, service of a Notice of Dissatisfaction has been effected within the meaning of s. 68(5) of the Act.
[25] For the purposes of s. 68(5) of the Act which does not specify a method of service, and where, as here, the respondent mailed the Notice of Dissatisfaction from its office in Halifax to the Regional Assessment Office in Dartmouth on the same day that the respondent was served with the amended Notice of Assessment; namely, December 24, 1999; and where, as here, the Regional Assessment Office actually received the respondent’s Notice of Dissatisfaction 11 days later on January 4, 2000; and where, as here, but for the seven days between December 24, 1999 and January 4, 2000 when mail was not delivered, it is a reasonable inference that the respondent’s Notice of Dissatisfaction would have been received by the Regional Assessment Office within seven days of its mailing, in my opinion the respondent’s Notice of Dissatisfaction is deemed to have been received by the Regional Assessment Office within the time limit prescribed by s. 68(5) of the Act; and, therefore, served within the meaning of s. 68(5).
[26] On that basis, I would dismiss the appellant’s appeal.
[27] While I have serious reservations as to the jurisdiction of the Chambers judge to grant the respondent any extension of time for service of the Notice of Dissatisfaction under s. 68(5) of the Act, in light of the conclusion which I have come to, it is not necessary for me to address that issue.
[28] I would therefore dismiss the appeal, and I would order that the appellant pay to the respondent its costs of this appeal which I would fix at $1,500.00 plus disbursements.
Flinn, J.A.
Concurred in:
Bateman, J.A.
Cromwell, J.A.