COURT OF APPEAL FOR BRITISH COLUMBIA  
Citation:  
Trafalgar Lands Ltd. v. British Columbia  
(Assessor of Area #09),  
2022 BCCA 211  
Date: 20220614  
Docket: CA48200  
Between:  
Trafalgar Lands Ltd.  
Appellant  
(Applicant)  
And  
Assessor of Area #09 and Property Assessment Appeal Board  
Respondent  
(Respondents)  
And  
Shato Holdings Ltd.  
Respondent  
(Applicant)  
Before:  
The Honourable Madam Justice Fisher  
(In Chambers)  
On appeal from: An order of the Supreme Court of British Columbia, dated  
March 4, 2022 (Shato Holdings Ltd. v. British Columbia (Assessor of Area #09),  
2022 BCSC 345, Vancouver Docket S1910463).  
Counsel for the Appellant, Trafalgar  
Lands Ltd.:  
G.P. Holeksa  
Counsel for the Respondent, Assessor  
of Area #09  
M.J. Watson  
(via videoconference):  
No one appearing on behalf of the  
Respondent, Shato Holdings Ltd.  
Place and Date of Hearing:  
Place and Date of Judgment:  
Vancouver, British Columbia  
June 3, 2022  
Vancouver, British Columbia  
June 14, 2022  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
Summary:  
Page 2  
The proposed appellant seeks leave to appeal an order dismissing an appeal on a  
stated case and upholding a decision of the Property Assessment Appeal Board.  
The Board’s decision concerned the equity of tax assessments of commercial  
property owned by the appellant, in comparison with smaller properties in the same  
area that received a 15% reduction in land values. The appellant asserts errors in  
law arising from the Board’s acceptance of an Assessor’s report that breached  
appraisal principle by failing to take into account the value of improvements, finding  
the onus to be on the appellant to establish its property was not treated equitably,  
and finding that the improvements in the Assessor’s paired sales had minimal value.  
Held: Application dismissed. The appellant has not identified a question of law that  
has some prospect of success on appeal. The chambers judge correctly  
characterized the first and third grounds of appeal as errors of fact, there was  
sufficient evidence before the Board to ground its findings of fact, and it cannot be  
said that the Board adopted a method of assessment that was wrong in principle by  
accepting the Assessor’s expert evidence. The case law has established that there  
is no legal burden of proof in assessment appeals, but rather an evidentiary or  
persuasive burden, and neither the chambers judge nor the Board imposed a legal  
burden of proof on the appellant.  
Reasons for Judgment of the Honourable Madam Justice Fisher:  
[1]  
The proposed appellant, Trafalgar Lands Ltd. (Trafalgar), seeks leave to  
appeal an order dismissing an appeal on a stated case and upholding a decision of  
the Property Assessment Appeal Board of British Columbia (the Board), under  
s. 65(9) of the Assessment Act, R.S.B.C. 1996, c. 20 [the Act]. The Board confirmed  
a decision of the Property Assessment Review Panel that confirmed tax  
assessments for the years 2015 to 2018 of commercial property owned by Trafalgar,  
located on West Broadway in Vancouver (the Property).  
[2]  
Trafalgar disputes the assessments of the Property on the basis that they  
were not equitable in relation to comparable properties. For the years 20152018,  
the Assessor valued small properties zoned for mixed commercial and residential  
uses in the West Broadway corridor (those less than 6,900 square feet; 6,250 in  
2015), at the base land value reduced by 15%. The Property is larger, similarly  
zoned, and was valued without this reduction. It presently houses a two-storey,  
9,512 square foot building in poor condition. The first level is leased commercially  
and the second is vacant.  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
Page 3  
The Board decision  
[3]  
The issue before the Board was whether these assessments were  
inequitable, given the 15% reduction applied to smaller properties in the subject  
area.  
[4]  
In its decision, indexed as Shato Holdings v. Area 09, 2019 PAABBC  
20190016, the Board outlined its equity methodology in its role to ensure that a  
property assessment is both accurate and applied in a consistent manner, as  
required under s. 57(1)(a) of the Act. It was not disputed that the Property’s  
assessed values in 20152018 accurately represented its market value. With  
respect to equity, the Board explained the meaning of fairness and consistency of  
assessment:  
[8]  
… Fairness means similar treatment under the law, which is typically  
interpreted to mean that if one group of taxpayers is afforded a privilege, such  
as a below-market assessment, then other taxpayers should be afforded a  
similar privilege. Fairness is typically measured in terms of the level of the  
property’s total assessment, with land and improvements combined, relative  
to its overall market value, in comparison to other properties. Consistency  
requires equitable treatment in meeting both the accuracy and fairness tests,  
with similar properties assessed similarly and differences explainable and  
accounted for consistently. The Courts have stated that taxpayers have the  
right to an assessment at the lower of either market value or an equitable  
value compared to the assessment of similar properties [Assessor of Area 9 –  
Vancouver v. Lount (1995), Stated Case 353 (BCCA); Assessor of Area #9 –  
Vancouver v. Bramalea Limited (1990), Stated Case 277 (BCCA)].  
[5]  
The Board then noted that similar to other properties along West Broadway,  
the Property had been assessed primarily on its land value, with only a nominal  
amount attributed to improvements. It therefore found it reasonable to consider  
equity comparisons for the land values alone: at para. 9.  
[6]  
The Board focused on three questions, at para. 10:  
a) What is an appropriate equity comparison group for the subject; i.e., what  
is the subject’s competitive set?  
b) Is the subject assessed consistently with regards to the equity  
comparables; i.e., are the differences in assessment explainable and  
accounted for consistently?  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
Page 4  
c) Are the subject’s assessments fair with regards to the equity comparables;  
i.e., do properties in the competitive set exhibit a consistent relationship  
between market value and assessed value?  
[7]  
With respect to the appropriate equity comparison group, the Assessor and  
the appellant each presented market evidence of a competitive set limited to mixed  
use retail/residential properties similar to the Property, all located along West  
Broadway. The appellant drew a further distinction within the competitive set  
between properties in which the highest and best use was an interim use (where the  
use is likely to change in a relatively short time frame, approximately five to seven  
years) and those where redevelopment is a longer-term possibility. The Assessor  
considered all of the sales in the competitive set to be fundamentally land-focused  
and assessed with only a nominal amount attributed to improvements: at para. 14.  
[8]  
The Board found the sales provided strong evidence of redevelopment  
pressures that appeared to be driving the market and saw no persuasive evidence to  
show how improved earning potential contributed to the increases in the land  
assessments during the relevant period. It agreed that income-earning potential may  
have some limited contribution to overall value but found that the evidence did not  
support this as a primary motivator for purchasers in the competitive set. It did not  
find the appellant’s arguments adequate to distinguish those properties given the  
absence of a convincing appraisal analysis: at paras. 1516.  
[9]  
The parties presented market evidence to show that properties in the  
competitive set should be distinguished by lot size. The Assessor’s comparable  
sales indicated that smaller properties had sold for 13 to 22% less than large ones  
over the years in question, but the appellant’s comparables indicated the opposite,  
with smaller properties selling for a 6 to 46% premium. The Board found the market  
evidence supported distinguishing large and small properties by size in this group for  
valuation purposes, but not for equity comparison purposes. It appeared to the  
Board that the majority of these propertiesboth large and smallwere selling  
primarily with redevelopment in mind. It therefore found it reasonable to consider all  
of the properties in the competitive set together in examining the equity of  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
Page 5  
assessment. This meant that if one sub-set within this larger group was found to be  
significantly under-assessed, an equity adjustment for one or both sub-sets may be  
warranted: at para. 19.  
[10] On the question of consistency, the Board considered whether the size  
adjustment was explained by differences in the market. It recognized that if the size  
adjustment could not be demonstrated to be based on the market value differences  
between smaller and larger properties, then their assessment differences would be  
inconsistent and inequitable: at para. 23.  
[11] The Board found the conflicting appraisal evidence troubling, but found the  
Assessor’s comparables to be more convincing than the appellant’s. It found they  
offered reliable evidence to demonstrate that, on balance, smaller properties in the  
competitive set had lower market values than larger properties, all else being equal.  
The Board therefore found this offered adequate evidentiary support to establish  
consistency in the assessment of the competitive set: at para. 31.  
[12] The question of fairness was based on evidence of assessment-sales ratios  
(ASRs), matters not raised in the stated case or on appeal.  
[13] Ultimately, the Board concluded that the Property’s assessments satisfied the  
statutory requirements for both accuracy and equity. It did not find persuasive  
evidence that showed on balance that the Property’s assessments were inconsistent  
or unfair relative to other properties in the competitive set. As a result, the Board left  
the assessments undisturbed: at para. 40.  
Appeal to the Supreme Court  
[14] Trafalgar and the respondent Shato Holdings Ltd. appealed the Board’s  
decision under s. 65(1) of the Act, which gives a person affected by a decision of the  
Board the right to require the Board to refer the decision to the Supreme Court for  
appeal on a question of law alone in the form of a stated case”.  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
Page 6  
[15] A “question of law” under the Act was defined in British Columbia (Assessor  
of Area No. 26 Prince George) v. Cal Investments Ltd.) [1993] B.C.J. No. 93  
[Cal Investments] (S.C.), aff’d (1994) 44 B.C.A.C. 182, and adopted by this Court in  
Gemex Developments Corp. v. Coquitlam Assessor, Area No. 12 (1998), 62  
B.C.L.R. (3d) 354 at para. 9 [Gemex] (C.A.), leave to appeal to SCC refused 27019  
(25 March 1999):  
1.  
2.  
A misinterpretation or misapplication by the Board of a section of  
the Act.  
A misapplication by the Board of an applicable principle of general  
law.  
3.  
4.  
Where the Board acts without any evidence.  
Where the Board acts on a view of the facts which could not  
reasonably be entertained. …  
5.  
Where the method of assessment adopted by the Board is wrong in  
principle.  
[16] The appellants’ challenge to the Board’s decision was based on how it  
addressed the issue of consistency. The notice of stated case set out 12 “questions  
of law”, but the appellants sought the court’s determination only to questions 7 to 12.  
The chambers judge answered these questions in the negative and dismissed the  
appeal as failing to establish an error of law. The stated case questions and the  
judge’s reasoning in respect of each was as follows:  
7.  
Did the Board err in law by finding the highest and best use of the  
subject property was for imminent redevelopment contrary to the agreement  
between the parties that the highest and best use of the subject property was  
an interim use pending redevelopment?  
Any ambiguity in the Board’s finding regarding the highest and best use of the  
Property stemmed from ambiguity in the parties’ agreement regarding the time frame  
for redevelopment, and in any event the Board’s reasons demonstrate that it  
considered the highest and best use of the Property to be an interim use: at  
paras. 7980.  
8.  
Did the Board err in law by finding without any evidence or on a view  
of the facts which could not reasonably be entertained that the Assessor’s  
paired sales had the same highest and best use as the subject property?  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
Page 7  
The Board did not specifically find that the Assessor’s comparables had the same  
highest and best use as the Property. If the parties failed to provide comparables of  
the same highest and best use, the Board cannot be faulted for basing its analysis  
on this evidence given that it is limited to the evidence presented by the parties.  
Ultimately, the Board preferred the Assessor’s finding as more reliable and  
reasonable. The Board had some evidence on which to base this decision: at  
paras. 8587.  
9.  
Did the Board err in law in failing to correctly apply appraisal principle  
by analyzing the Assessor’s paired sales that had a highest and best use that  
was a different highest and best use than the subject property?  
Appraisal principle requires that the subject and comparable properties have the  
same highest and best use. The Board implicitly found that the Assessor’s  
comparables had the same highest and best use as the Property or were otherwise  
sufficiently similar to support his analysis. Determining highest and best use is a  
question of fact that can be overturned only in the absence of any evidence, and  
there was evidence as to the highest and best use of the Assessor’s comparables  
that the Board was entitled to accept. The appellants’ argument was premised on a  
mistake of fact that must fail if there is any evidence to support the Board’s decision:  
at paras. 93, 97101.  
10.  
Did the Board err in law by finding without any evidence or on a view  
of the facts which could not reasonably be entertained that the improvements  
on Assessor’s paired sales had no contributory value?  
The Board found that the improvements on the Assessor’s comparables may have  
had some contributory value but there was insufficient evidence to establish or  
quantify this, and the increases were overwhelmingly attributable to redevelopment  
pressures. The appellants were asking the court to weigh the evidence and overrule  
the Board’s findings: at paras. 104107.  
11.  
Did the Board err in law by failing to correctly apply appraisal principle  
by not considering and removing the contributory value of the improvements  
from the analysis of the Assessor’s paired sales?  
The same reasoning for Question 10 applied to Question 11: at para. 111.  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
12. Did the Board err in law by failing to conclude on the basis of the  
Page 8  
Assessor’s evidence that the subject property was not treated equitably  
resulting in the subject property being denied a reduction based on the  
assessments to sales ratio included in the Assessor’s evidence?  
The evidentiary or persuasive burden was on the appellants to demonstrate that the  
assessments were inequitable. There was some evidence upon which the Board  
could base its finding that the 15% reduction applied to smaller properties was within  
the range of values: at paras. 114116.  
Leave to appeal  
[17] Section 65(9) of the Act permits an appeal on a question of law from a  
decision of the Supreme Court to the Court of Appeal with leave of a justice of the  
Court of Appeal. Only Trafalgar has pursued an application for leave to appeal under  
this provision.  
[18] Leave should only be granted where all of the following criteria are satisfied:  
(i) there is some prospect of the appeal succeeding on its merits;  
(ii) the appeal is on a question of law that has not been addressed by this  
Court, or a question of law on which lower court decisions are in conflict;  
(iii) the question of law affects a substantial number of assessments; and  
(iv) the question of law can be said to admit rationally of a different answer  
from that given below.  
Home Depot Holdings Inc. v. British Columbia (Assessor of Area #10 North  
Fraser Region), 2016 BCCA 511 at para. 5 (Chambers), aff’d 2017 BCCA  
135  
[19] Whether the fourth criteria remains accurate following Canada (Minister of  
Citizenship and Immigration) v. Vavilov, 2019 SCC 65, which changed the law  
regarding the standard of review for statutory appeals, was not addressed by the  
parties. However, nothing turns on this here, as it is my view that this application  
primarily turns on the first criterion, whether Trafalgar has identified a question of law  
that has some prospect of success on appeal.  
[20] In its notice of appeal, Trafalgar sets out five grounds of appeal, but its  
counsel advised me that it intended to proceed on only three:  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
1. The court erred in question 11 in failing to find that the Board erred in  
Page 9  
law by failing to properly apply appraisal principle in determining the per  
square foot value of land by not removing the contributory value of the  
improvements from the analysis of the Assessor’s comparable paired sales.  
2.  
The court erred in each of questions 8, 9, 11 and 12 by imposing the  
onus of proof on the appellant before the Property Assessment Appeal Board  
to establish the Assessor’s comparable paired sales were incorrect.  
4.  
The court erred in questions 8 and 9 in failing to find that the Board  
erred by either finding that the Assessor’s comparable paired sales had the  
same highest and best use as the property subject of the appeal or, if the  
Board found the Assessor’s comparable sales had a different highest and  
best use, the Board erred in law by failing to properly apply appraisal  
principle.  
[21] Trafalgar now articulates its potential appeal on three bases:  
1.  
an error of law in accepting the Assessor’s report when the  
Assessor’s report breached appraisal principle (ground 1);  
2. an error of law in finding that the onus was on the appellant to  
establish that its property was not treated equitably (ground 2); and  
3. an error of law in finding that the improvements in the Assessor’s  
paired sales had minimal value (ground 4).  
[22] The respondent submits that there is no prospect that this appeal will succeed  
on its merits, as none of the questions in the stated case raise questions of law and  
the question of onus of proof is well settled: as the Board’s role is inquisitorial, there  
is no legal burden on any party, but it is up to each party to present evidence that  
supports their position.  
1.  
Error of law in accepting the Assessor’s report when it breached  
appraisal principle  
[23] The first alleged error is based on a submission that appraisal principle  
requires a comparison of land values only, and when interim use properties are  
appraised, the contributory value of the improvements must be considered when  
determining value. Trafalgar contends that the Assessor’s analysis of paired sales  
did not follow this appraisal principle because it ignored the contributory value of the  
improvements. In support of this proposition, it relies on Broadway Properties et. al.  
v. Assessor of Area #09 Vancouver, 2004 PAABBC 20040493 at paras. 4148  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
Page 10  
[Broadway Properties 2004], aff’d (20 September 2005), Vancouver L042658  
(B.C.S.C.), aff’d 2007 BCCA 298; and Broadway Properties Ltd. v. Assessor of Area  
#09 Vancouver Sea to Sky Region, 2020 PAABBC 20201018 [Broadway  
Properties 2020].  
[24] Trafalgar relies on the fourth and fifth Gemex definitions to ground a question  
of law: the Board acted on a view of the facts that could not reasonably be  
entertained, and the method of assessment adopted by the Board was wrong in  
principle. It submits that the Board was required to reject the Assessor’s paired sales  
evidence for lack of a factual foundation that the improvements had no value. It also  
submits that the Board erred in law by adopting the Assessor’s method of appraisal  
because this application “was so unreasonable that no properly trained assessor or  
appraiser would apply it in such a manner”, citing Cal Investments at para. 20.  
[25] The respondent emphasizes that both parties presented extensive expert  
opinion evidence before the Board about the paired sales analyses and the related  
concepts of contributory value of improvements on the various properties. It submits  
that the Board’s acceptance of the Assessor’s expert evidence did not constitute an  
error of law, as the method of evaluation depends on the suitability of the individual  
properties and cannot be said to be unreasonable in the manner asserted by  
Trafalgar.  
[26] This alleged error relates to stated case question 11. The chambers judge  
considered this to be a question of fact, not law, noting that the Board had  
considered the contributory value of the improvements on the comparable properties  
but preferred the Assessor’s evidence that this value was nominal and the increases  
in value were “overwhelmingly attributable to redevelopment pressures”: at  
para. 104. She held that the Board’s reasoning on this point was a “complete  
answer” to this ground: at para. 111. This reasoning included the following findings  
by the Board:  
[15]  
The evidence from both parties includes a total of 17 sales in this area  
between 2013 and 2016. I find these sales provide strong evidence of  
redevelopment pressures that appear to be driving this market. I note the  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
Page 11  
land assessments have nearly tripled for the subject and others in the  
competitive set over the four years, yet I see no persuasive evidence to show  
how improved earning potential contributes to this increase. In contrast, I  
emphasize the Appellant’s explanation that purchasers in this area are  
“parking money” with the hope “that motivated developers will pay a premium  
for their sites”. …  
[16]  
I agree that income-earning potential may have some limited  
contribution to overall value, but I find the evidence does not support this as a  
primary motivator for purchasers in the competitive set. The Appellant pointed  
out income figures for select properties, but did not carry this through in a  
comprehensive appraisal analysis that evaluates highest and best use  
against income-based market value, neither for these specific properties nor  
across the competitive set. In the absence of a convincing appraisal analysis  
to support this distinction, I do not find these arguments are adequate to  
distinguish these properties within the competitive set.  
[Emphasis added.]  
[27] I accept that in Broadway Properties 2004, the Board established that the  
value of improvements should be included in valuations for interim use properties as  
“part of good appraisal practices”, as income producing improvements on interim  
use property have some value: at para. 48. I also accept that a failure to take  
improvement value into account in a paired sales analysis may render the analysis  
unreliable. This is what occurred in the Board’s more recent decision in Broadway  
Properties 2020. There, the Board found that the evidence presented did not  
adequately support an 8% increase to the value of the subject property to account  
for location because the Assessor’s paired sales analysis did not take into account  
the differences in the value of the comparables due to differences in the  
improvements and the revenue streams derived from them: at para. 42. This was  
based on clear findings that redevelopment of the comparable properties was not  
imminent or reasonably foreseeable in the near future: at para. 38.  
[28] There were no such findings in this case. To the contrary, the Board did not  
find that the evidence supported the income-earning potential of the comparable  
properties as a significant motivator for purchasers in the competitive set, although it  
recognized that the income-earning potential may have had some limited  
contribution to overall value: at para. 16. Given this, there is no merit in Trafalgar’s  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
Page 12  
submission that the assessor’s paired sales evidence “must be rejected for lack of a  
factual foundation that the improvements had no value”.  
[29] Nor is there any merit in Trafalgar’s submission that the Assessor’s appraiser  
applied a method that was “so unreasonable that no properly trained assessor or  
appraiser would apply it in such a manner”. This is because neither the Assessor’s  
appraiser nor Trafalgar’s appraiser took the value of improvements into account in  
their respective paired sales analyses. Each appraiser criticized the paired sales of  
the other on various points, and the Assessor challenged Trafalgar’s criticisms about  
improvement value, noting the low capitalization rates and underuse of allowable  
density. I appreciate that the equity values were compared as base land values but  
given the evidence that the improvements had a nominal value in light of the land-  
driven market, the Board was entitled to accept the Assessor’s evidence on this  
point, despite Trafalgar’s criticism on the issue of improvement value. This is not a  
case where the Board was obliged to reject the methods by which the appraisers  
assessed their paired sales.  
[30] With respect to the land-driven market, Trafalgar made a further submission  
that the Board erred by considering the increases in value in each of the relevant  
years. It suggests that this was an irrelevant consideration, as the Board was  
required to determine how the value of the improvements factored into the sale price  
for each year. I do not see how this new argument can establish an error of law for  
the purpose of an assessment appeal, nor how the Board’s consideration of  
increases in the market can be said to be an irrelevant consideration. The Board  
found the evidence of all 17 sales in both appraiser reports to provide “strong  
evidence of redevelopment pressures that appear to be driving this market”, and  
simply noted that there was no persuasive evidence that showed how improved  
earning potential contributed to the substantial increases in land assessments for the  
Property and those in the competitive set: at para. 15.  
[31] I therefore see no basis on which Trafalgar could succeed on this ground of  
appeal. The chambers judge correctly characterized the alleged errors as factual,  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
Page 13  
not legal, there was sufficient evidence before the Board to ground its findings of  
fact, and it cannot be said that the Board adopted a method of assessment that was  
wrong in principle by accepting the Assessor’s expert evidence.  
2.  
Error of law in finding that the onus was on Trafalgar to establish  
that its property was not treated equitably  
[32] Trafalgar takes issue with the judge’s statement that “[t]he onus is on the  
appellant to establish that the assessment was inequitable”: at para. 42. The judge  
cited KBK No. 197 Ventures Ltd. v. British Columbia (Assessor of Area #09 –  
Vancouver Sea to Sky Region), 2013 BCSC 981 at para. 55, which states: “The  
onus is on the owner to establish the unfairness by reference to other assessments”.  
[33] Trafalgar submits that these statements are contrary to British Columbia  
(Assessor of Area #10 Burnaby/New Westminster) v. Haggerty Equipment Co.  
Ltd., [1997] B.C.J. No. 1296 at paras. 1314 [Haggerty] (B.C.S.C.), which held that  
the essential nature of proceedings before the Board are inquisitorial, not  
adversarial, and the onus is really on no party. The question there was whether the  
Board erred in law by failing to impose an onus of proof on the owner to demonstrate  
a fact in issue:  
13  
Section 45(5) of the Act deals with an appeal of an assessment to the  
Court of Revision and indicates that the burden of proof is on "the person  
complaining". The Act is silent as to the burden of proof regarding any  
subsequent appeal to the Board. The appellants say that the burden of proof  
must remain on the party advancing a proposition and that this party has the  
onus of proving on a balance of probabilities the proposition they are  
advancing. In this case, the respondent/owner is arguing for a reduction in  
value. Accordingly, the appellants say that the respondent had the onus and  
burden of proof to establish the extent of the contamination, the remediation  
required, and the costs associated in controlling the contamination if it wanted  
to take the benefit of the decision awarding a substantially reduced value on  
that very basis.  
14  
This submission fails to take into account the essential nature of the  
proceedings before the Board. The proceedings are inquisitorial and not  
adversarial. … Accordingly, it is up to both the Assessor, the City and the  
respondent to put whatever evidence before the Board which they think  
would be of assistance to the Board in its deliberations and up to the Board to  
requisition evidence which it believes would be of assistance. Because the  
proceedings are inquisitorial, the onus is really on no party. However, it will  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
Page 14  
obviously be in the interests of all parties to present the evidence which bests  
supports the position which is most advantageous to them. …  
I believe that it is more than happenstance that the legislature did not set out  
the onus in hearings before the Board as it did in s. 45(5) for appeals before  
the Court of Revision. Accordingly, the Board did not err in law by failing to  
impose an onus of proof on the owner to demonstrate that there was  
contamination and that contamination required remedial work. Similarly, the  
onus was not on the Assessor or the City to demonstrate that there was no  
groundwater contamination and that there was no need for remedial work.  
The respondent or the appellants could have gone to the expense of  
arranging for an independent assessment of whether and to what extent  
there was contamination. Because none of them did, that information was  
unfortunately not in front of the Board. At the same time, unfortunately the  
Board did not request or insist that this information be available to it.  
Accordingly, the Board took into account all of the evidence which was before  
it when it arrived at its conclusions. Accordingly, the answer to this question is  
“no”.  
[Emphasis added; citations omitted.]  
[34] Trafalgar submits that an appellant does not have the onus to establish that  
its property was not treated equitably; rather, it only has the onus to establish that  
the property is similar to other properties and being treated differently by the  
Assessor, after which the onus shifts to the Assessor to establish that the different  
treatment is reflected in the market. It cites no authority for this proposition but says  
that once it provided evidence establishing that the improvements had value (which  
the Board accepted), the Board erred in concluding that its contributory value  
argument was not persuasive due to the absence of a convincing appraisal analysis  
supporting the distinction. It says further that the chambers judge erred in imposing  
the onus on the appellant in respect of her answers to questions 8, 9, 11 and 12.  
[35] The respondent submits that the question of the onus of proof before the  
Board is well settled: the Board’s role is inquisitorial and its mandate to find actual  
value will often displace any notion of onus of proof. It says that the jurisprudence is  
clear that if one party fails to lead adequate evidence before the Board on a  
particular point, that party does so at its peril, and the Board is entitled to render a  
decision based on the evidence, or lack of evidence, before it, citing Petro-Canada  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
Page 15  
Inc. v. Assessor of Area #12 Coquitlam (1992), 10 B.C.A.C. 129 in addition to  
Haggerty.  
[36] As I read these authorities, there is no legal burden of proof in an assessment  
appeal, but there is an evidentiary or persuasive burden, in that the party asserting a  
fact should lead evidence supporting that fact. The statement in KBK No. 197  
Ventures Ltd., referred to by the chambers judge, does not make this distinction, but  
it is clear in the chambers judge’s reasons that she treated this as an evidentiary or  
persuasive burden only. In addressing question 12, she expressly referred to the  
burden in these terms:  
[114] As noted above, the evidentiary burden is on the appellants to  
demonstrate that the assessments were inequitable. …  
[116] … Accordingly, the persuasive burden was on the appellants to  
establish the alleged inequity. The Board assessed the evidence, made  
findings of fact, and disagreed. There was evidence to support this decision,  
and thus this ground should be dismissed.  
[Emphasis added.]  
[37] Further, there no indication that the Board inappropriately imposed a legal  
burden of proof on Trafalgar. On the issue of consistency, it simply found the  
Assessor’s comparables to be more convincing than Trafalgar’s, and that this  
evidence was reliable enough to demonstrate that “on balance smaller properties in  
the competitive set have lower market values than larger properties, all else being  
equal”: at para. 31. On the issue of fairness, the Board found the ASR evidence to  
be weak, as neither party presented a comprehensive analysis of this measure. The  
weakness of the equity evidence left it “unconvinced regarding the unfairness of  
assessments within the competitive set”: at para. 39. In the context of the remedy for  
a proven inequity, which “ultimately imposes inaccuracy”, the Board held that it  
would “not order an equity reduction without persuasive evidence that justifies  
straying from the market value standard”: at para. 38. I see no error in this  
reasoning.  
[38] This is similar to what occurred in Haggerty, where none of the parties  
presented independent expert evidence as to whether and to what extent there was  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
Page 16  
groundwater contamination. The Court determined it was not an error for the Board  
to consider the evidence before it and, without an independent assessment, it was  
open for the Board to conclude it could not find there was groundwater  
contamination.  
[39] Accordingly, I see no basis on which Trafalgar could succeed on this ground  
of appeal. Neither the chambers judge nor the Board imposed a legal burden of  
proof on Trafalgar.  
3.  
Error of law in finding that the improvements in the Assessor’s  
paired sales had minimal value  
[40] Trafalgar’s submission on this ground of appeal seems to confuse the issues  
raised in questions 8 and 9 (comparing properties of the same highest and best use)  
with question 10 (improvements having no contributory value). Trafalgar contends  
that the Assessor led no evidence that the improvements on his paired sales had no  
value; to the contrary, the Assessor’s evidence included photographs of established  
operating buildings that had value and Trafalgar’s evidence showed that seven of  
the Assessor’s eight comparables were operating buildings that had value. On this  
evidence, Trafalgar submits, the only possible result was that the improvements in  
the Assessor’s comparables had more than minimal value.  
[41] The respondent submits this question is largely the same as the first ground  
of appeal: it is a question of fact on which extensive expert opinion evidence was  
considered by the Board.  
[42] Again, the chambers judge considered questions, 8, 9 and 10 to be questions  
of fact, not law, which can be overturned only in the absence of any evidence. She  
was satisfied with the Board’s implicit finding that the Assessor’s comparables had  
the same highest and best use as the Property or were otherwise sufficiently similar  
to support his analysis. She was also satisfied that there was evidence as to the  
highest and best use of the Assessor’s comparables that the Board was entitled to  
accept. With respect to the value of the improvements, the judge considered that  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
Page 17  
Trafalgar was asking the court to weigh the evidence and overrule the Board’s  
findings: at paras. 97, 100, 107.  
[43] Trafalgar’s arguments on this ground echo the same issues as the first  
ground and do not raise an identifiable error of law or a basis on which it could  
succeed on appeal.  
A note on practice  
[44] In support of this application, Trafalgar filed an affidavit of its appraiser  
commenting on the issues of the onus of proof, appraisal principle applicable to  
interim use properties, and the value of assessments that will be affected by this  
appeal. The respondent filed an affidavit by another appraiser in response, much of  
it containing argument.  
[45] I consider neither of these affidavits appropriate on an application for leave  
under the Act. Most of the evidence contained in Trafalgar’s affidavit either touches  
on legal issues or is not relevant to the application. In particular, the evidence about  
appraisal principle is in essence fresh evidence on a substantive issue that was not  
put before the Board or the court below, and unnecessary given the principles stated  
in Broadway Properties 2004. The respondent’s affidavit does not address this fresh  
evidence but expresses disagreement with various legal and factual issues, none of  
which was helpful.  
[46] That said, it is acceptable for an applicant to file affidavit evidence to support  
a criterion required to obtain leave that includes a factual element, such as, in an  
assessment appeal, whether the question of law affects a substantial number of  
assessments.  
Conclusion  
[47] The test for leave to appeal under the Act is strict. Not only is an appeal  
restricted to questions of law, but all four criteria set out above must be met. It is my  
view that this application largely fails on the first criterion alone: whether there is  
some prospect of the appeal succeeding on its merits.  
Trafalgar Lands Ltd. v. British Columbia (Assessor of Area #09)  
Page 18  
[48] The first and third grounds of appeal do not raise a question of law and  
Trafalgar has not identified a legal error by the chambers judge or the Board in  
applying an evidentiary or persuasive burden of proof. Although a division of this  
court has not addressed the question of onus of proof, there is no real conflict in the  
lower court decisions on this point, and the inquisitorial nature of assessment  
appeals appears to be well settled in the relevant jurisprudence.  
[49] For all these reasons, the application for leave to appeal is dismissed, with  
costs.  
The Honourable Madam Justice Fisher”  



© 2019 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission