Date: 20011022
Docket No.: CA 168248
NOVA SCOTIA COURT OF APPEAL
Cite as: Collins v. Nova Scotia (Assessment), 2001 NSCA 153
Glube, C.J.N.S.; Cromwell and Oland, JJ.A.
BETWEEN:
Appellant
- and -
DIRECTOR OF ASSESSMENT
Respondent
__________________________________________________________________
INTERIM DECISION
__________________________________________________________________
Counsel: Emilia M. Collins, for the appellant, not represented by counsel
Randall R. Duplak, Q.C. for the respondent
S. Bruce Outhouse, Q.C. for the Nova Scotia Utility and
Review Board
Appeal Heard: October 15, 2001
Judgment Delivered: October 22, 2001
THE COURT: Appeal decision reserved per reasons for judgment of Oland, J.A.; Glube, C.J.N.S. and Cromwell, J.A. concurring.
OLAND, J.A.:
[1] It is not often that the final disposition of an appeal is not forthcoming in the decision which issues following the hearing of that appeal. However, for the reasons which follow, the decision of the court on the merits of one of the grounds of appeal will remain reserved and the appeal will be finally determined as set out later in this decision.
[2] In January of 1995, the appellant appealed the assessment of her property at 5172 Bishop Street, Halifax, Nova Scotia for $231,300. It was subsequently reduced on review to $229,400. That November, the Regional Assessment Appeal Court upheld that assessment. The appellant appealed. It was not until October 3, 2000, almost five years after she filed the notice of appeal, that the Nova Scotia Utility and Review Board (NSURB) heard her appeal. The appellant was not present nor represented at that hearing. In its decision dated November 17, 2000 the NSURB found that for the 1995 assessment year the appellant’s property should be assessed at $292,700. The appellant now appeals that decision to this court.
[3] During this appeal, the appellant’s spouse, Richard Collins, spoke on her behalf. They reside in the United States and participated in the hearing of their appeal before this court by telephone. Counsel for the respondent and for the NSURB were present in person.
[4] The issues as set out in the factum filed by the appellant read as follows:
1. Excessive delay in scheduling the 1995 Appeal before the Nova Scotia Utility and Review Board.
2. Improper (indeed, lack of any) notification to the Appellant of the scheduled appeal date by the Nova Scotia Utility and Review Board, which conducted the appeal anyway, without full account of the arguments and facts put forward to it beforehand by the Appellant in writing.
3. Systematic blockage of access by the Appellant to relevant public domain information concerning assessment methods and their applicability to surrounding properties in 1995, a matter not necessitating third-party involvement, but requiring that taxation fall uniformly in accordance with the Assessment Act.
[5] After reviewing the material filed by the appellant and the respondent and hearing their submissions, it became all too evident the record filed for the purposes of this appeal was unsatisfactory. The materials received by the court were disorganized and incomplete. It was apparent that only some documents were included as others referred to in them were omitted.
[6] This state of affairs, among other things, resulted in applications being made to this court at the outset of the hearing by each of the parties and by the NSURB, either to introduce further evidence or to seek disclosure of documents. I will summarize these for illustrative purposes. According to its counsel, the respondent’s application to introduce fresh evidence, by way of an affidavit containing the affidavit by a NSURB employee regarding notice of the appeal hearing, was to ensure that the court had all the information regarding the circumstances of the hearing of the NSURB appeal and the information in its file at that time. The appellant applied for production of material pertaining to the alleged delay in scheduling the hearing of her appeal; in court she acknowledged that the documents filed by the NSURB with its application to introduce fresh evidence satisfied that request in part. She also applied for production of material concerning what she alleged was a retroactive alteration of the method of assessment originally used for certain 1995 property assessments. After receiving a letter from the Registrar of this court advising that the appellant appeared to be advancing delay in disposing of her appeal to the NSURB as a basis for her appeal here, the NSURB applied to introduce fresh evidence consisting of two affidavits and a copy of the NSURB’s assessment appeal file concerning the appeal heard by it. As is usual, the decisions on those applications were reserved and the hearing continued with argument on the merits of the appeal.
[7] Attention was not paid to matters which might have been resolved prior to the hearing of this appeal. For example, the respondent submitted that parts of the appeal book and supplementary appeal book filed by the appellant were improperly before the court; however, its counsel acknowledged that the Director had not brought any application to strike out any of that material. Documents that were put forward as evidence were presented in forms unacceptable to the court. For example, Mr. Collins suggested that a photocopy of a signed but unsworn note in the appeal book was equivalent to an affidavit, pointed out that a telephone number appeared at the top of the note, and invited this court to call to verify the authenticity of that document.
[8] Moreover, during oral submissions each of Mr. Collins and counsel for the respondent referred to and purported to rely upon documents which were not even before this court. In addition, each made statements which in essence were attempts to give evidence during argument.
[9] In my view, the material filed on this appeal did not comply with the requirements of Civil Procedure Rule 62. The appeal book and the supplementary appeal book were not prepared in accordance with Civil Procedure Rule 62.14. Before making these comments, I have taken into account the fact that the appellant was without counsel and that in such situations, some allowance might be given. As indicated earlier, the way the respondent chose to handle this appeal was not always helpful.
[10] Having considered all the circumstances surrounding the conduct of this appeal, the decision on the second issue of this appeal, namely whether the appellant was notified of the hearing of her appeal by the NSURB, is reserved. That issue will be determined following the receipt, if any, of affidavit evidence as set out below.
[11] Before setting out those details, it is to be noted that the Assessment Act, R.S.N.S. 1989, c. 23 as amended stipulates that the NSURB is to serve an appellant with notice of the time and place of the hearing of the appeal at least six days previous to the hearing date: see s. 87(2) and s. 70(2). The respondent agrees that if this court finds that the appellant did not, through no fault of hers, have notice of the hearing on October 3, 2000, the NSURB exceeded its jurisdiction.
[12] In her factum, the appellant submits that the NSURB scheduled the hearing “without properly notifying the Appellant beforehand”. During oral submissions to this court, Mr. Collins stated “categorically” that the appellant did not receive notice of the hearing. However, the appellant has not presented any evidence in a form acceptable to this court that she, Emilia Collins, did not receive the August 10, 2000 letter and notice of hearing from the NSURB and that she did not know about the scheduled hearing. It appears she did know that the NSURB intended to set a date for the hearing; there is no evidence about her knowledge of the NSURB’s scheduling process thereafter.
[13] It seems that the appellant may not have understood that assertions do not constitute evidence and that the court will consider only affidavits sworn under oath before a person authorized to administer oaths - see, for example, s. 67 of the Evidence Act, R.S.N.S. 1989, c. 154 on the administration of oaths outside this province. The proper form and content of affidavits are set out in Civil Procedure Rule 38 applicable by Civil Procedure Rule 1.02, and decisions such as Waverley (Village Commissioners) et al. v. Nova Scotia (Minister of Municipal Affairs) (1993), 123 N.S.R. (2d) 46 (S.C.). In general, affidavits in which the affiant sets out facts within her or his own personal knowledge are given more weight.
[14] In the disappointing and very unusual circumstances of this appeal, the appellant will be permitted to submit sworn affidavit evidence on the issue of notification to her and her knowledge of the hearing of her appeal by the NSURB only. Any such affidavit evidence must be directed to the Registrar of this court and received on or before the 23rd day of November, 2001. Copies are to be provided forthwith to counsel for each of the respondent and the NSURB. If such evidence is received, the respondent will be at liberty to file affidavit material responding to that issue only within 14 days after its receipt of a copy of such evidence. If, after affidavit evidence has been filed, either party seeks anything further pertaining to that evidence, that party may apply promptly for directions in Chambers.
[15] All other issues apart from the notice issue are ones that were not raised before the NSURB and this court will not entertain them by way of appeal.
[16] The applications by the respondent and the NSURB for the introduction of fresh evidence are granted and the application by the appellant for the production of additional material is dismissed.
Oland, J.A.
Concurred in:
Glube, C.J.N.S.
Cromwell, J.A.