Consistency in a World Gone Mad: Altus Group Limited v Calgary (City), 2015 ABCA 86

An old advertisement for Beamish, a tipple manufactured in my native Cork, not far from my alma mater, has the punchline: “Consistent, that’s why it’s different”. One of the advantages of relaxing the rules of stare decisis for administrative tribunals is that it allows decision-makers to change positions in response to shifts in facts, be they economic, cultural, political or social. But there are limits, as Altus Group Limited v Calgary (City), 2015 ABCA 86 reminds us.

Here, a municipal review body concluded that the lease of parking spaces to tenants by landlords of commercial office space was liable to tax. Nothing remarkable there. Except the same body had concluded a few years earlier that such leases are not liable to tax. Indeed, this conclusion had been upheld as reasonable on judicial review. Could the body change its mind? No, said the first-instance judge:

I agree that there is case law that may support such a bold statement in certain situations which I will discuss. However, in my view, this does not apply when you are dealing with a question of law and the interpretation of a section of legislation. The City’s position would result in taxation chaos. For example, how can the City or taxpayers budget from year to year if the City’s assessment on landlord/tenant parking may change from year to year depending on how an assessment board may chose and apply a test for assessiblity. Surely some clarity in the law would be better for all concerned. In my view, the legislature allowed for an appeal on the law to the Court of Queen’s Bench from an ARB Decision in order to guard against such a result (2013 ABQB 617, at para. 84).

The Court of Appeal agreed, adding: “considering the importance of coherence in the interpretation of the Bylaw and its purpose in imposing a tax, it would be difficult to accept two opposite interpretations of the provision as reasonable” (at para. 33). The problem lay in the failure to justify the inconsistency rather than the fact of the inconsistency, standing alone: “The apparent conflict…does not create an independent basis for judicial intervention. However, the [first] Decision provides a direct contextual comparison against which to judge the intelligibility, transparency and justifiability of the [second] decision” (at para. 32).

But I do not think the judges’ problem here was with this particular interpretive change.  Of course “taxation chaos” is a bad thing, but “taxation chaos” results any time a taxing authority changes its rules. Rather, as the references to ‘year-to-year budgeting’ and ‘coherence’ suggest, the problem is the potential for taxation chaos which unsettles expectations. Accordingly, the range of reasonable outcomes is reduced by the adoption of an initial interpretation, which cannot be revised without good reason.

Question: how close does the court come here to creating a substantive legitimate expectation that the municipality will not revise its interpretation? Has the Canadian distaste for such expectations been expunged by the concept of the range of reasonable outcomes, a concept in which prior positions (or perhaps promises) work to reduce a decision-maker’s margin of appreciation? Comments welcome!

For a more sceptical take on the decision, see Shaun Fluker.

This content has been updated on May 19, 2015 at 13:18.