City of Ottawa v. Wilson, [1928-34] CTC 93

MiDDLETON, J.A.:—I agree with the views expressed by my brother Grant, and in the conclusion arrived at by him. Independently I had arrived at the same result for the following reasons.

In the absence of some express provision, a municipal corporation has no extra-territorial jurisdiction, the Municipal Act, R.S.O. 1927, c. 233, sec. 258; Barton v. Hamilton (1889) 18 O.R. 199; Re Boylan and Toronto (1887) 15 O.R, 13.

Sec. 11 of the Assessment Act, R.S.O. 19*27, c. 238, is in accordance with this general principle; a person can only be assessed for income ‘‘in the municipality in which he resides,” i.e., residence at the time of assessment is essential.

In Sifton v. Toronto [1929] S.C.R. 484, this principle was carried to its logical conclusion. Toronto could not enforce payment of income tax in 1925 under a by-law passed in that year based upon an assessment made in 1924, in respect of an income earned in 1925, because Sifton. had left Toronto in December, 1924, and was not resident in Toronto in 1925, the year of the imposition of the tax, although an anticipatory assessment had been made in 1924 while Sifton was resident in the City.

This is conclusive unless the amending Act of 1930 has changed the law in that respect. This section only applies to the case of death or removal from the municipality after an assessment has been completed and falls far short of what would be necessary to enable the municipality to impose a tax upon a person who is not resident in it at the time of the assessment.

Had the Legislature intended to enable a municipality to collect income tax upon an income earned or received while the person was resident within the municipality notwithstanding his removal before assessment made, it would have been easy to so enact.

The assessment not being authorized by law and completely beyond the powers of the municipality, failure to appeal to the Court of Revision is immaterial.

GRANT, J.A.:—This is an appeal by the defendant from the judgment of Logie, J., delivered on the 11th day of June, 1932, whereby he awarded to the plaintiff corporation the sum of $3,- 687.73 for income tax for the year 1931. Under the powers in that regard conferred b ythe statute upon cities, the corporation prepares in one year, the assessment upon which is based the levy of taxes in the year following. The taxation for 1931, here in question, was based upon an assessment made in the year 1930. In February of 1930, the defendant, being resident in Ottawa, was required by the assessor, pursuant to the statutory provisions, to make and file a return on oath shewing the amount of her income received during the year 1929. This she did, as by law required (although subsequent to the time fixed by t the statute), on or about the 6th day of April, 1930.

On the 29th of May, 1930, having let her Ottawa residence to the Japanese Minister, defendant moved from Ottawa to the Village of Rockcliffe, where she still resides.

As authorized by the Assessment Act, the preparation of the assessment roll in Ottawa is begun early in the year, and by bylaw the assessor is required to complete and return his roll to the City Clerk by the 20th of September in each year. He is also required by law to make oath .verifying the roll and the accuracy of its contents. In the present case, the roll was completed and returned to the clerk on the 20th September, 1930, and the oath taken in due course. The statutory provisions governing cities in these matters, are all recited in the reported cases to which reference is subseqquently made, and, as there is no conflict in respect to them, the various sections of the Statute need not be again recited. Notice of her assessment was sent on. September 20th, 1930, by registered mail addressed to the defendant at 192 Daly Avenue, Ottawa, her place of residence prior to May 29th, of that year, and apparently the postal officials altered the address and delivered the letter at her then residence in Rockcliffe. The defendant did not appeal against her assessment, relying upon her rights as put forward in her defence in the present action.

Veale, the assessment commissioner for the City, in his evidence, testified that the assessor as by law required, called at the residence, 192 Daly Avenue, on August 9th, 1930, more than two months after defendant had moved out of it; and that it was his duty, when calling to ascertain who was living in the house. Obviously if .he had been properly discharging his duties, he should then have learned of defendant’s removal, and should have learned that she was no longer a resident of the city. His duty required of him in making his roll to see that, being a resident in Rockeliffe, she was not assessed for income in Ottawa. Veale further testified that the assessment for her income was entered on the roll on September 20th, 1930.

The learned trial Judge was of opinion that by virtue of recent amendments of the Assessment Act, ‘‘a person having been wrongfully assessed as a. resident and having had an opportunity to appeal . . . and having failed to exercise his statutory right is debarred from proving that he resided elsewhere than in the municipality by which he has been taxed.’’ With great respect, I am-unable to agree in that view. If- the view upon which the judgment is based, were sound, then it would follow that if a, person were resident in Toronto, had never been resident in Ottawa, and were assessed in the latter city for income, having, but not exercising the right of appeal, he would be debarred from shewing the facts which clearly establish the absence of any right in the City of Ottawa to assess or tax him, and would have no defence to an action to collect the tax. Only very clear and unambiguous language so enacting, could bring about such a state of law, and no such language has been brought to our attention.

Stress was laid by counsel for the City upon the fact that defendant had made an income return in April of 1930. No statutory consequence is attached to the making of this return All residents, when so required by the assessor, are bound by law to make the return upon oath, under sanction of certain penalties for failure so to do. Briefly expressed, the effect is an admission by the declarant of her being at that time a resident of the municipality, and of the amount of her income during the preceding calendar year. If this defendant had continued a resident of Ottawa until after the assessment roll had been completed in the Fall of 1930, and had then moved away, we would have had the Sift on case over again, but with a statute altered to meet it. But this case goes a step further back than did the Sifton case, and presents a state of facts not in any way affected by any recent legislation.

In Sifton v. Toronto [1929] S.C.R. 484, the plaintiff was, admittedly, properly placed upon the assessment roll as he was resident in Toronto when the roll was completed and when it was finally revised, and so had no ground of appeal.

In the case at bar, defendaent was not a resident of Ottawa when the assessment roll was made or completed by the assessor, and the facts were wanting, to enable the assessor to put her name on the roll at all, in respect of income.

The provisions of the Assessment Act, R.S.O. 1927, ¢. 238, dealing with the locality of income assessment, is found in sec. 11(1) and reads:

"Subject to subsec. 6 of sec. 40 (does not affect) every person assessable in respect of income under sec. 10, shall be so assessed in the municipality in which he resides either at his place of residence or at his office or place of business.’’

That a municipality has no power to assess for income a person resident elsewhere in this Provinee, has been repeatedly affirmed. Vide Ottawa v. Kecfer (1923), 54 O.L.R. 86; Re Fox v. Windsor (1925) 97 O.L.R. 248; S if ton V. Toronto (1929) 63 O.L.R. 397 at 404-5. This of course means ‘‘in which he resides’’ at the time when he is assessed. According to the evidence of Veale (supra) defendant was assessed for income on September 20th, and it is undisputed that she was then, and had been since May 29th, residing in Rockcliffe and not in Ottawa. The statutory foundation for income assessment. in Ottawa was non-existent. Counsel for the City relies upon the filing of the income return and the decision of Hagersville v. Hambleton (1927) 61 O.L.R. 327. This decision is interpreted in the Sifton judgment in the Supreme Court (supra, at 488-9) and, as the facts underlying the ratio decidendi are not present, it does not affect the case at bar.

The completion of the roll, in point of law, takes place when . the roll is returned to the clerk by the assessor, Re Palmer and Toronto (1924) 26 O.W.N. 84 at 85. This point is carefully considered in Re Bayack (1929) 64 O.L.R. 14, where it is made quite clear that there is no ” assessment ” in the statuory sense, until the assessor returns his roll. Up to the time of this return he has power, and it is his clear duty to alter his entries to accord with the facts as then existing, and within his knowledge, and he should use all due diligence to acquaint himself with such facts. (Vide Riddell, J.A., at foot of p. 18 and top of p. 19; Masten, J.A., at foot of p. 20 and top of p. 21) :

"‘If non-taxability develops before the assessment roll is completed and settled, the name of the property should not appear on the roll’’ (vide Masten, J.A., in Re Kemp and Toronto (1930) 69 O.L.R. 423 at 435, interpreting the Bayack decision).

In the ease at bar, therefore, the name of the defendant should not have appeared at all upon the roll for income assessment.

The amendment of sec. 306 of the Municipal Act, by e. 44, see. 12 of the statutes of 1930, does not affect the matter. The amended section now reads ‘‘levy on the whole rateable property according to the last revised assessment roll.’’ I adhere to the view expressed at some length in Re Lyman [1932] O.R. 419, that the word “rateable” thus used means ‘‘rateable by law” and that in addition to being so rateable the section requires that it shall also appear on the last revised assessment roll.

Sec. 98(3) of the Assessment Act as amended in 1930, to overcome (as supposed) the effect of the Sifton decision (supra) was also relied upon by the City. The amended section reads:

“(3) Notwithstanding any provision of The Municipal Act and subject to the provisions of sec. 121 every person assessed in respect of business or income upon any assessment roll which has been revised by the Court of Revision or County Judge shall be liable for any rates which may be levied upon such assessment roll notwithstanding the death or removal from the municipality of the person assessed and notwithstanding that such rates are not levied until the year following that in which the assessment roll was revised. ‘ ‘

Where the section says ‘‘shall be liable for any rates that may be levied ‘‘ it means "‘that could properly be levied’’ (vide Hodgkins, J.A., in the Sifton case, 63 O.L.R. at p. 405, approved in [1929] S. C. R. at 488).

See also, as to the proper. interpretation of this section as amended, Ottawa v. Kemp, [1931] O.R. at pp. 755 (foot) 756-7.

Here, as already shewn, the City could not ^properly” assess, much less could levy rates in respect of income of defendant who was not resident in the municipality when she was assessed. There must co-exist the power of the municipality to assess, and the liability of the subject to be assessed. Both of these essentials were lacking.

Further, where the section states that neither death nor removal of the ‘‘person assessed’’ shall relieve from liability, it means, in my opinion, death or removal of a person who is assessed at the time of such death or removal, as was Sifton in his case and as was also the defendant in Ottawa v. Kemp (supra). At the time when the present defendant removed from Ottawa she was not a ‘‘person assessed’’ nor had the City corporation any power by law thereafter to make her a ‘‘person assessed ‘ ‘ in respect of income. Were it otherwise, removal of the person from and continuous residence without the municipality for ten years previously, would not avail him, if the assessor chose to place his name on the roll, and no appeal were taken. It is to be noted that failure by the assessor to give the notice of his assessment to the person assessed does not invalidate the assessment {vide sec. 73). In my opinion, the interpretation, which I have given above of ‘“person assessed’’ as used in sec. 98(3) is both natural and reasonable, and is in every way preferable to that urged upon us by counsel for the City.

In my judgment therefore, the defendant’s appeal should be allowed and the action dismissed, both with costs.

MULOCK, C.J.O. and MAREE, J.A., agreed with GRANT, J.A.

MASTEN, J.A., agreed with Middleton, J.A., and GRANT, J.A.

Appeal allowed with costs.