Bathurst Paper Limited v. Minister of Municipal Affairs of New Brunswick, [1972] SCR 471

Supreme Court of Canada

Bathurst Paper Limited v. Minister of Municipal Affairs of New Brunswick, [1972] S.C.R. 471

Date: 1971-11-01

Bathurst Paper Limited Appellant;

and

Minister of Municipal Affairs of the Province of New Brunswick Respondent.

1971: October 8; 1971: November 1.

Present: Ritchie, Hall, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION

Taxation—Assessment—Tax exemption granted under 1927 private Act—Assessment Act providing for continued recognition of tax concessions previously enjoyed—Subsequent change in definition of “tax concession”—Whether exemption remained—Assessment Act, 1965-66 (N.B.), c. 110, ss. 1(i) [am. 1968, c. 15, s. 1(b)], 18(2) [re-en. 1967, c. 25, s. 11].

Under the New Brunswick Assessment Act, 1965-66, c. 110, as amended by 1967, c. 25, and 1968, c. 15, the power plant of the appellant company was assessed for tax for the year 1968. On appeal to the Appeals Tribunal set up under the

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Act, the company was held to be exempt under s. 3 of An Act relating to Bathurst Company, Limited, 1927 (N.B.), c. 75, which Act was confirmed by An Act respecting Bathurst Paper Limited—Les Papeteries Bathurst Limitée, 1966 (N.B.), c. 124. Section 18(2) of the Assessment Act provided for the continued recognition of tax concessions enjoyed before November 19, 1965. On a further appeal to the Court of Appeal, the majority of the Court concluded that because of the repeal by 1968, c. 15, s. 1(b), which had effect as of January 1, 1968, of paras. (ii) and (iv) of s. 1(i) (wherein “tax concession” was defined) the claim of exemption failed. Consequently, the assessment was restored. The company then appealed to this Court.

Held: The appeal should be dismissed.

The appellant’s contention that the change in the definition of “tax concession” left the exemption, given in 1927 and confirmed in 1966, untouched because of the comprehensive terms of para. (vi) of s. 1(i) was rejected. Under the amended form of s. 1(i) “any other benefit or advantage of a like nature” would exclude a reduced or fixed assessment and a reduced or fixed tax. Prior to January 1, 1968, it also excluded total exemptions from assessment and taxation. It was not accepted that what had been expressly excluded had at the same time been impliedly retained.

APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division[1], allowing an appeal from a decision of the Appeals Tribunal holding certain property of the appellant to be exempt from taxation under the Assessment Act, 1965-66 (N.B.), c. 110. Appeal dismissed.

D.K. Laidlaw, Q.C., and Thomas W. Riordan, for the appellant.

B.A. Crane, for the respondent.

The judgment of the Court was delivered by

LASKIN J.—The issue in this appeal is whether a power plant of Bathurst Paper Limited, situate outside the Town of Bathurst, was assessable to tax for the year 1968 under the New Brunswick Assessment Act, 1965-66 (N.B.), c. 110, as

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amended by 1967 (N.B.), c. 25 and 1968 (N.B.), c. 15. A narrow point of statutory construction is involved by reason of a claimed exemption from tax under An Act relating to Bathurst Company, Limited, 1927 (N.B.), c. 75, as confirmed by An Act respecting Bathurst Paper Limited—Les Papeteries Bathurst Limitée, 1966 (N.B.), c. 124, deemed by its terms to have come into force on March 31, 1965. It is said on the one hand and denied on the other that the exemption remained, notwithstanding a change in the Assessment Act as hereinafter detailed.

The Assessment Act, which was assented to on February 22, 1966, vested in the Province the assessment and taxation of property which had theretofore been in the hands of its various municipalities. One of the charging sections of the Act, s. 3, proclaimed as of January 1, 1967, provides, as amended by 1967 (N.B.), c. 25, s. 2, that notwithstanding any private or special Act, where no other provision is made under the Assessment Act or the Real Property Tax Act, all provincial, municipal or local taxes or rates on real property are to be calculated and levied upon the whole of the assessments made under the Assessment Act. Sections 15, 16 and 17 fix the standards of value at which real property in general, and farmland, freehold timberland and farm woodlots in particular are to be assessed. Under s. 18(1), these standards of assessment value “apply notwithstanding any provision in any other Act, public or private, or in any tax agreement.”

Section 4 of the Act, proclaimed as of May 1, 1966, sets out a list of exemptions after declaring generally that all real property in New Brunswick is liable to assessment and taxation. None of those exemptions apply in the present case. In addition to them, however, the Act provides in s. 18(2) for the continued recognition of tax concessions enjoyed before November 19, 1965. Section 18(2) which took effect on May 1, 1966, reads:

Notwithstanding the provisions of any other public or private Act, where, before November 19, 1965, a

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person was entitled to a tax concession under any public or private Act or any agreement entered into with or granted by a municipality under the provisions of such Act, that person is not required to pay by way of taxes on real property, including business assessment, in any year any sum or sums greater in the aggregate than would have been payable for such year under all such public or private Acts or agreements during the term specified therein and any extension of such term provided for therein under the law as it existed on November 19, 1965.

“Tax concession” was defined in s. 1(i) of the original Act, also effective as of May 1, 1966, as follows:

“tax concession” means any provision in, or based on the terms of, any public or private Act whereby a person is entitled to a benefit or advantage by way of

(i) a reduced or fixed assessment or valuation of property, real or personal,

(ii) an exemption from assessment on property, real or personal,

(iii) a reduced or fixed rate or tax,

(iv) an exemption from rating or taxation,

(v) a variation in the method of paying rates or taxes, or

(vi) any other benefit or advantage of a like nature.

By 1968 (N.B.), c. 15, s. 1(b), which had effect as of January 1, 1968, paras. (ii) and (iv) of the definition of “tax concession” were deleted. In the result, the power plant of the company was assessed for tax, but on appeal to the Appeals Tribunal set up under the Act, the company was held to be exempt under s. 3 of the Act of 1927, which is in these words:

All power plants, water and storage dams and transmission lines of Bathurst Company, Limited, and of all subsidiary Companies thereof and their respective successors and assigns, in New Brunswick, outside of the Town of Bathurst shall, hereafter, be exempt

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from all municipal taxation, including District and County School rates, and from County valuation.

On a further appeal to the New Brunswick Court of Appeal, the majority of the Court concluded that because of the repeal of paras. (ii) and (iv) of s. 1(i) the claim of exemption failed. Consequently, the assessment in the sum of $271,000 was restored.

The question whether the tax exemption enjoyed under the 1927 private Act survived the change in definition of “tax concession”, effected in 1968, does not depend for its resolution on the confirmatory private Act of 1966. That Act, as its terms plainly show, merely took account of a corporate change of name; and its effective date of March 31, 1965 (which put it within the terms of s. 18(2) of the Assessment Act) simply reflected the effective date of the name change. In short, the private Act of 1966 neither strengthened nor weakened the scope of exemptions under s. 18(2) as it stood at the time the 1966 Act took effect.

What falls to be decided here is whether the Assessment Act can be said to recognize the exemption from tax in the 1927 Act as well on and after January 1, 1968, as before that date. We are not concerned here with any claim to exemption resting upon an allegedly inconsistent piece of legislation passed subsequent to the Assessment Act. The appellant’s position, in line with that taken in the dissenting opinion of Barry J., ad hoc, in the Court of Appeal, is that the change in definition of “tax concession” left the exemption, given in 1927 and confirmed in 1966, untouched because of the comprehensive terms of para. (vi) of s. 1(i); that the majority judgment in the Court of Appeal failed to consider or properly to appreciate the meaning of para. (vi) before the amendment of s. 1(i); and that it would be incongruous to find a repeal of the 1927 and 1966 private Acts by a mere change in a definition, and especially so when s. 18(2) of the Assessment Act exhibited no inconsistency on its face, after the change in definition, with the continued effectiveness of the private Acts. Counsel for the appellant supported his conten-

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tions by reliance on s. 13 of the Interpretation Act, R.S.N.B. 1952, c. 114, which reads as follows:

The amendment of an Act shall not be deemed to be, or to involve, a declaration that the law under the Act was different from the law as it has become under the Act as amended.

In my opinion, s. 13 merely precludes a Court from making the prohibited inference from the fact that an amendment was enacted. It does not exclude reference to the amendment as an item of legislative history bearing on the construction of the amended statute. Such a reference, however, is of itself of no assistance in the present case. There is nothing in the record to indicate any particular circumstances or situation to which the amendment to s. 1(i) was directed. It remains therefore to consider whether a conclusion about the matter in issue can be reached by examining s. 18(2) according to the definition of “tax concession” as it stood before January 1, 1968, and as it became on and after that date.

It is not disputed that the Assessment Act, apart from s. 18(2), effectively cut off any tax exemptions of real property theretofore existing and not falling within s. 4. If there had been no definition of tax concession in the Act, it would at least be open to argument that the terms of s. 18(2) had in view not complete exemptions but rather favourable tax treatment resulting in lighter burdens than would ordinarily be carried by the favoured taxpayers. The original definition may be said, therefore, to have given an expanded meaning to “tax concession”, a meaning which was lost when paras. (ii) and (iv) were repealed. This position involves, however, ascription of a particular meaning to the term “tax concession” and, moreover, limits the scope of para. (vi) of s. 1(i) (“any other benefit or advantage of a like nature”), which remained part of the definition of “tax concession” on and after January 1, 1968, as it was before that date.

Among the meanings of “concession” given in the Oxford English Dictionary is “the action of

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conceding, yielding or granting (anything asked or required)”. This meaning is broad enough to include an exemption unless the context precludes it. But whatever “tax concession” may mean outside of a statutory definition, there is its meaning under para. (vi) to consider. That paragraph cannot have had much, if any, subject-matter when it was part of the original definition of tax concession. But whatever its subject-matter, it then covered only “other” benefits or advantages of a like nature; that is, other than those specified in the preceding paragraphs, which then included exemptions from assessment and exemptions from taxation. If para. (vi) did not embrace exemptions before January 1, 1968, can it reasonably be said that its meaning expanded on and after that date?

The matter may be viewed from the standpoint of the subject-matter of para. (vi) under the amended form of s. 1(i). “Any other benefit or advantage of a like nature” (the emphasis is mine) would exclude a reduced or fixed assessment and a reduced or fixed tax. Prior to January 1, 1968, it also excluded total exemptions from assessment and taxation. The appellant asks this Court to say that what has been expressly excluded has at the same time been impliedly retained. This is not a logical proposition, even though the language of the amended definition lends some credence to it. It does so because of the desire or need to give subject-matter to para. (vi). Yet, the same problem of finding subject-matter existed before the amendment was made. Although it can be urged that failure in clear expression should not be held against a theretofore exempt taxpayer when the Legislature could have spoken unambiguously, I am not persuaded that this is a case in which this approach should be applied. The legislative history, such as it is, does not go that far.

There is another consideration that is equally telling. Legislative changes may reasonably be viewed as purposive, unless there is internal or admissible external evidence to show that only

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language polishing was intended. The submission of the appellant would have it that the amendment in 1968 accomplished nothing of substance, but merely improved the drafting. This is, in my opinion, an untenable position.

In the result, I would dismiss the appeal, but would follow the New Brunswick Court of Appeal in not awarding costs to the successful Minister.

Appeal dismissed.

Solicitor for the appellant: Edward G. Byrne, Bathurst.

Solicitor for the respondent: Eric B. Appleby, Fredericton.