Lyon J.A.:
The applicants in each of these matters seek leave to appeal from orders of the Municipal Board of Manitoba (the Board) affecting the assessment of properties in the City of Winnipeg. Leave may only be granted on a question of law or jurisdiction.
Argument on the two applications was heard together. The issue common to both is whether the Board of Revision or the Board may, on appeal by the property owner alone, increase or validate an assessment where the Assessor has failed to file an application for revision or appeal to either body. The factual differences in the background of each application are as follows:
(1) In Valley Gardens, the subject property was assessed by the assessor in 1997 at $3,699,000. Valley Gardens applied for a revision to the Board of Revision pursuant to s. 42(1) of The Municipal Assessment Act, S.M. 1989-90, c. 24 C.C.S.M., c. M226 (the Act). The Assessor did not apply to the Board of Revision for a revision but, at the hearing, requested an increase in the assessed value. The Board of Revision ordered the realty assessment to be increased to $4,050,000. From that order Valley Gardens appealed to the Board which confirmed the increased realty assessment set by the Board of Revision.
(2) In 79912, the Assessor assessed the subject property for 1997 at $2,125,800. 79912 applied for a revision to the Board of Revision. The Assessor did not apply to the Board of Revision for a revision of the assessed value. The Board of Revision ordered that the 1997 realty assessment for the property be confirmed at the above figure. 79912 appealed this order to the Board. The Assessor did not appeal from the order. Shortly before the hearing by the Board, the Assessor filed a brief requesting, for the first time, that the assessed value be increased to $2,380,000. The Municipal Board, on October 1, 1997, ordered that the 1997 realty assessment be revised upward to $2,284,000.
The applicants argue that, notwithstanding recent amendments to the Act, the decisions of thisCourt in Orange Properties Ltd. v. Winnipeg City Assessor (1995), 100 Man. R. (2d) 208 (Man. C.A.), and [ Properties Ltd. v. Winnipeg (City) Assessor] (1996), 107 Man. R. (2d) 278 (Man. C.A.), and W.R.E. Development Ltd. v. Winnipeg City Assessor (1995), 100 Man. R.
(2d) 202 (Man. C.A.), setting out the procedure for appeals of this nature, still apply. Basically, in W.R.E. and Orange Properties the Court held that neither the Board of Revision nor the Municipal Board had the power to order an increase in the assessed value of a property in the absence of an application for revision by the Municipal Assessor to the Board of Revision. Counsel for the Assessor takes the position that the 1996 amendments to ss. 54(1) and 60(1) of the Act enlarging the appellate jurisdiction of the Board of Revision and the Board fundamentally altered the statutory interpretations given by the Court in Orange and W.R.E.
A second issue raised by the applicants in Valley Gardens relates to the Board’s alleged error, without hearing argument by the parties, in assessing the value of the property as it existed in the year of the appeal (1997) rather than the reference year (1991). The Assessor argues that the effective date for the physical state of property for appeal purposes is the first day of the general assessment, namely January 1, 1994.
I am satisfied that the applicants have made out questions of law for which leave to appeal should be allowed. Accordingly, leave to appeal to the Court of Appeal is granted on the following questions:
• With respect to Valley Gardens:
(1) Did the Municipal Board err by confirming an increase of the realty assessment of real property in the absence of an application for any increase by the City of Winnipeg’s Municipal Assessor to the Board of Revision, and in the further absence by the Assessor of any appeal to the Municipal Board?
(2) Did the Municipal Board err when it determined that it “must look at the physical condition of the property in the appeal year and determine the value of the property, as it physically exists in the year under appeal by reference to the economic conditions of the reference year,” or must the assessment be made on a consideration of the physical condition of the property as it existed either
i) in the reference year (1991); or
ii) the first day of the general assessment (January 1, 1994)?
• With respect to 79912:
(1) Did the Municipal Board err by ordering an increase of the realty assessment of real property in the absence of an application for any increase by the City of Winnipeg’s Municipal Assessor to the Board of Revision, and in the further . absence by the Assessor of any appeal to the Municipal Board?
Leave to appeal granted.