SMITH,
J.:—This
is
an
appeal
concerning
the
assessment
of
the
respondent’s
Woodbine
Race
Course,
situated
in
the
city
of
Toronto.
The
assessor
of
the
appellant,
in
the
year
1931,
assessed
the
respondent,
in
respect
of
the
85.88
acres
of
land
owned
by
the
respondent,
for
$622,630,
and
the
buildings
for
$202,500,
making
a
total
of
$825,130.
The
residence
of
the
Superintendent,
with
the
land
on
which
it
was
erected,
was
assessed
separately
for
$4,000,
which
amount
was
deducted
from
the
total
of
$825,130,
leaving
an
assessment
of
$821,130,
to
which
was
added
25
per
cent.
for
business
assessment,
amounting
to
$205,282.
The
respondent
appealed
to
the
Court
of
Revision,
which
confirmed
the
assessment
except
as
to
the
business
assessment,
which
was
reduced
to
$191,385.
An
appeal
was
taken
to
His
Honour
Judge
Denton,
who
confirmed
the
decision
of
the
Court
of
Revision.
From
this
decision
the
respondents
again
appealed
to
the
Ontario
Municipal
Board,
which
placed
the
assessment
of
the
lands
used
for
race
track
purposes
at
$565,308,
and
the
buildings
at
$200,000,
making
together
$765,308,
to
which
was
added
25
per
cent.
for
business
assessment,
amounting
to
$191,325.
In
addition
to
these
items,
there
was
added
an
assessment
of
$4,000
for
land
and
house
occupied
by
the
Superintendent,
which
has
not
been
in
dispute.
The
respondent
further
appealed
to
the
Court
of
Appeal
for
Ontario,
which
confirmed
the
assessment
of
the
land
at
the
amount
fixed
by
the
Ontario
Municipal
Board,
namely,
$565,308,
but
struck
off
the
$200,000
on
buildings
and
the
$191,325
for
business
assessment.
From
that
judgment,
ante,
p.
242,
this
appeal
is
taken.
The
Court
of
Appeal
held
that,
as
the
assessment
on
the
land
fixed
by
the
Ontario
Municipal
Board
was
arrived
at
on
the
basis
of
its
potential
value
as
a
subdivision,
which
would
involve
the
destruction
and
removal
of
the
buildings,
nothing
should
be
added
for
the
value
of
these
buildings.
See.
4
of
the
Assessment
Act,
R.S.O.
1927,
c.
238,
enacts
that
all
real
property
in
Ontario
shall
be
liable
to
taxation,
subject
to
certain
exceptions
that
have
no
application
to
this
case.
Sec.
40(1),
(2)
and
(3),
reads
as
follows:
4
‘40.
(1)
Subject
to
the
provisions
of
this
section,
land
shall
be
assessed
at
its
actual
value.
“(2)
In
assessing
land
having
any
buildings
thereon,
the
value
of
the
land
and
buildings
shall
be
ascertained
separately,
and
shall
be
set
down
separately
in
columns
14
and
15
of
the
assessment
roll
and
the
assessment
shall
be
the
sum
of
such
values.
The
value
of
the
buildings
shall
be
the
amount
by
which
the
value
of
the
land
is
thereby
increased.
“
(3)
To
remove
doubts
it
is
hereby
declared
that
the
cost
of
a
building
is
only
one
of
the
matters
which
should
be
considered
in
ascertaining
the
amount
for
which
a
building
should
be
assessed,
and
if
it
is
found
that
a
building,
either
because
of
its
condition
as
to
repair
or
of
its
inappropriateness
to
the
location
in
which
it
is
found
or
because
of
any
other
circumstances
affecting
its
value,
increases
the
value
of
the
land
by
less
than
the
cost
of
the
building,
or
the
cost
of
replacing
it,
such
less
sum
shall
be
the
amount
for
which
the
building
shall
be
assessed
under
subsection
2;
the
meaning
of
that
subsection
being
that
buildings
shall
be
assessed
for
the
amount
of
the
difference
between
the
selling
value
of
the
whole
property
and
the
selling
value
of
the
land
if
there
were
no
buildings
on
it."’
Mr.
Justice
Riddell,
in
his
reasons,
says:
“The
actual
value
is
to
be
determined
by
the
evidence,
and,
not
only
the
present
use
of
the
land
and
the
benefits
derived
therefrom
by
the
owner,
but
all
the
potentialities
are
to
be
taken
into
consideration.”
He
cites
a
long
list
of
authorities
for
this
proposition,
which
has
been
accepted
and
acted
upon
by
both
sides
throughout
and
was
not
questioned
here.
On
this
principle
the
City
Assessor,
Mr.
Harry
Nixon,
states
in
his
evidence
that
he
assessed
the
lands
of
the
respondent
on
the
basis
of
their
potential
value
as
a
subdivision,
and
not
on
the
basis
of
their
value
as
now
used
by
the
respondent,
as
a
race
course;
and
neither
he
nor
any
other
witness
gave
any
evidence
as
to
the
value
of
this
land
for
the
purposes
of
a
race
course.
The
whole
evidence
of
both
sides
before
the
Municipal
Board
was
directed
to
establishing
the
potential
value
of
the
land
as
a
subdivision.
It
was
evidently
assumed
throughout
that
the
highest
actual
value
that
could
be
given
to
the
land
was
on
the
basis
of
its
potential
value
as
a
subdivision.
The
Assessor,
at
p.
179,
produced
his
plan
of
a
subdivision,
Exhibit
23,
and
testified
that
he
made
his
estimate
of
the
value
at
which
he
arrived
for
assessment
on
the
frontage
value
of
the
various
lots
shown
on
this
plan
for
building
purposes,
arriving
at
these
values
from
the
assessed
values
and
sale
prices
of
lands
surrounding
and
in
the
neighbourhood
of
the
lands
of
the
respondent.
On
the
same
page
he
says,
speaking
of
this
plan:
‘“We
used
that
in
the
land
revision
work
to
estimate
the
present
assessment.”
At
p.
180:
‘‘The
information
that
we
used,
Mr.
Geary,
has
to
do
with
the
property
surrounding,
north
and
east,
of
Woodbine
Park.’’
He
goes
on
to
say
that
he
got
the
valuations
by
comparing
in
that
way,
and
arrived
at
a
total
lot
frontage
of
21,072
feet,
and
in
that
way
arrived
at
the
value
of
$791,175,
the
foot
frontage
value
varying
according
to
the
situation
of
the
various
lots.
At
pages
189,
198
and
199
he
refers
to
the
use
of
the
land
for
a
going
concern
as
one
of
the
elements
to
be
taken
into
consideration
in
arriving
at
the
value,
and
says
he
knows
‘‘of
no
other
way
of
arriving
at
a
piece
of
property,
that
is,
in
the
city
limits’’.
Finally,
however,
he
abandons
this,
as
shown
in
the
following
abstract
from
his
evidence
at
p.
205
:
*
*
Exhibit
27.
Statement
of
figures
on
proposed
plan
of
subdividing
Woodbine
Park.
M
Q.
In
this
you
eliminated
all
the
buildings?
‘fA.
Yes,
sir.
"‘Q.
And
you
treat
it
purely
as
a
subdivision?
"A.
Yes.
"‘Q.
Now,
I-
want
to
ask
you:
did
you
arrive
at
any
figures
as
a
going
concern?
"A.
No.
“Q.
You
never
adopted
that?
"‘A.
No,
sir.”
The
learned
Chairman
of
the
Municipal
Board
in
his
reasons
says
:
"
"
There
was
considerable
evidence
offered,
both
by
the
appellants
and
by
the
City
of
Toronto,
setting
out
the
way
in
which
the
assessment
of
this
property
had
been
originally
made,
and
setting
out
the
value
of
the
property
both
for
race
track
purposes,
and
as
a
subdivision
in
the
City
of
Toronto
in
the
event
of
the
racing
being
abandoned
and
the
property
sold
as
a
subdivision.”
I
am
unable
to
find
any
evidence
from
any
witness
as
to
the
actual
value
of
this
property
for
race
track
purposes,
and
it
is
evident
that
the
value
fixed
by
the
Board
was
on
the
evidence
offered
as
to
its
potential
value
as
a
subdivision,
there
being
no
evidence
that
would
justify
the
finding
of
value
arrived
at
on
any
other
basis.
The
Board,
therefore,
having
arrived
at
its
valuation
of
these
lands
on
the
basis
of
a
subdivision,
which
involved
the
destruction
of
all
the
buildings
before
the
land
could
be
used
and
disposed
of
in
lots
as
a
subdivision,
the
buildings
added
nothing
to
that
potential
value
of
the
property
beyond
their
value
for
the
purpose
of
being
wrecked
and
removed.
On
this
branch
of
the
case
I
am
in
entire
agreement
with
the
reasons
clearly
set
out
by
Mr.
Justice
Riddell,
and
also
with
his
view
that
the
question
involved
is
one
of
law.
It
is
manifestly
improper
to
value
the
land
for
the
purpose
of
a
subdivision,
which
would
involve
the
destruction
of
the
buildings,
and
then
value
the
buildings
on
the
basis
of
their
being
used
for
the
purpose
of
a
race
track.
If
the
buildings
were
to
be
valued
on
that
basis,
the
land
would
have
to
be
valued
on
that
basis
also.
I
find
that
the
Court
of
Appeal
has
overlooked
the
evidence
at
p.
95
as
to
the
value
of
the
buildings
for
wrecking
purposes,
and
it
was
not,
I
think,
referred
to
on
the
argument
here.
The
witness,
Joseph
Teperman,
called
by
the
respondent,
examined
as
to
the
cost
of
wrecking
and
removing
the
buildings
and
the
value
of
the
wreckage,
says
:
u
We
would
take
the
entire
site
and
we
would
still
be
prepared
to
pay
$5,000.
"Q.
For
all
the
buildings
?
"‘A.
For
all
the
buildings,
everything
that
is
situated
on
the
ground.
"‘The
CHAIRMAN:
Q.
So
you
would
lose
$5,000
on
the
one
stand
and
you
would
make
up
on
the
other?
“A.
Make
up
on
the
other.’’
There
should
therefore
be
added
to
the
amount
fixed
by
the
Court
of
Appeal
this
sum
of
$5,000
as
the
value
of
the
buildings
for
wreckage
purposes.
The
question
of
whether
or
not
the
respondent
is
liable
for
business
assessment
is,
perhaps,
not
so
clear.
Mr.
Colquhoun,
on
behalf
of
the
appellant,
presented
a
very
able
argument
in
support
of
his
contention
that
the
respondent
was
liable
to
a
business
assessment
by
virtue
of
sec.
9
of
the
Act,
which
reads
in
part
as
follows
:
*
4
9.
(1)
Irrespective
of
any
assessment
of
land
under
this
Act,
every
person
occupying
or
using
land
for
the
purpose
of
any
business
mentioned
or
described
in
this
section
shall
be
assessed
for
a
sum
to
be
called
"‘Business
Assessment’’
to
be
computed
by
reference
to
the
assessed
value
of
the
land
so
occupied
or
used
by
him,
as
follows:
(t
(j)
Every
person
carrying
on
the
business
of
a
photographer
or
of
a
theatre,
concert
hall,
or
skating
rink,
or
other
place
of
amusement,
or
of
a
boarding
stable,
or
a
livery,
or
the
letting
of
vehicles
or
other
property
for
hire,
or
of
a
restaurant,
eating
house,
or
other
house
of
public
entertainment,
or
of
a
hotel
or
any
business
not
before
in
this
section
or
in
clause
(k)
specially
mentioned,
for
a
sum
equal
to
twenty-
five
per
centum
of
the
assessed
value.
"‘(2)
Every
proprietary
or
other
club
in
which
meals
are
furnished,
whether
to
members
or
other,
shall
be
liable
to
a
business
assessment
for
a
sum
equal
to
twenty-five
per
centum
of
the
assessed
value
of
the
land
occupied
or
used
for
the
purposes
of
the
club.’’
He
argues
that
the
respondent,
carries
on
a
business,
and
therefore
comes
within
the
language
of
subsec.
1(j)
quoted
above,
although
not
expressly
mentioned,
because
the
ejusdem
generis
rule
does
not
apply,
by
virtue
of
see.
9
(12)
which
reads
as
follows:
“.
"‘(12)
Wherever
in
this
section
general
words
are
used
for
the
purpose
of
including
any
business
which
is
not
expressly
mentioned,
such
general
words
shall
be
construed
as
including
any
business
not
expressly
mentioned,
whether
or
not
such
business
is
of
the
same
kind
as
or
of
a
different
kind
from
those
expressly
mentioned.’’
It
seems
clear
that
the
mere
fact
that
an
organization
styles
itself
a
club
will
not
finally
settle
the
question
of
whether
or
not
it
is
liable
to
assessment
under
subsec.
1(j).
The
Ontario
Jockey
Club
is
an
incorporated
company,
having
a
fixed
capital
represented
by
stock
shares
issued
to
stockholders
in
the
ordinary
method.
There
is
in
the
organization
a
system
by
which
people
who
are
not
stockholders
may
become
what
is
called
‘‘members’’
of
the
club,
endowing
them
with
certain
privileges
at
race
meetings,
and
perhaps
on
other
occasions,
not
accorded
to
the
public.
These
members,
however,
have
no
voice
in
the
management
of
the
corporation
affairs.
The
race
meetings
are
carried
on
and
managed
by
the
corporation.
The
moneys
received
for
admission
to
the
races
from
the
pari-mutuel
betting
system
and
from
other
sources
are
all
paid
to
the
corporation,
and
are
applied
and
paid
out
as
the
corporation
directs.
The
earnings
or
profits
derived
from
these
race
meetings
or
any
other
uses
to
which
the
property
of
the
corporation
may
be
put
may
be
applied
to
payment
of
dividends
to
the
shareholders
if
the
corporation
so
determine.
The
evidence
is
that
for
the
past
two
years
there
have
been
no
profits,
so
that
dividends
could
not
properly
be
paid
except
out
of
accumulated
surplus,
and
none
have
been
paid
during
these
two
years.
Whether
any
were
paid
in
preceding
years
is
not
disclosed.
It
is
clear
that
the
question
of
whether
or
not
a
corporation
is
liable
for
business
assessment
in
connection
with
the
lands
occupied
by
it,
upon
which
its
affairs
are
carried
on,
does
not
depend
on
whether
or
not
a
profit
is
being
made.
A
corporation,
or
an
individual,
for
instance,
carrying
on
a
mercantile
business
in
a
shop,
is
liable
to
business
assessment,
quite
regardless
of
whether
the
business
is
realizing
a
profit
or
not.
It
is
no
doubt
a
question
of
law
whether
or
not
sec.
9
(2)
quoted
above,
dealing
with
clubs,
necessarily
excludes
all
clubs
from
the
operation
of
sec.
9
(1).
Having
concluded,
as
stated
above,
that
see.
9
(2)
is
not
conclusive
upon
this
point,
the
question
of
whether
or
not
this
particular
club
comes
within
the
provision
of
sec.
9
(1)
can
only
be
determined
by
an
investigation
of
the
facts
concerning
its
organization
and
the
operations
which
it
carries
on.
It
seems
to
me
that
there
is
evidence
upon
which
the
Municipal
Board
could
properly
arrive
at
the
conclusion
which
it
reached,
that
the
respondent
was
occupying
or
using
the
land
in
question
for
the
purpose
of
a
business
within
the
meaning
of
sec.
9(1),
in
view
of
the
provisions
of
subsec.
12,
which
excludes
the
application
of
the
ejusdem
generis
rule.
The
appeal,
therefore,
upon
this
point
must
be
allowed.
The
valuation
of
the
land
for
assessment
purposes,
fixed
by
the
Court
of
Appeal,
will
be
increased
by
the
$5,000
referred
to,
and
upon
that
valuation
the
respondent
is
declared
liable
for
business
assessment,
as
provided
by
the
statute.
The
appellant
was
obliged
to
come
to
this
Court,
and
is
entitled
to
its
costs
of
this
appeal.
Appeal
allowed.
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