GRAHAM,
Jd.
:—The
first
question
submitted
is
:—
"
Whether
the
Halifax
Harbour
Commissioners
are
occupiers
of
any
real
property
within
the
meaning
of
the
City
Charter
(1931)
?”’
I
take
this
question
to
raise
only
the
question
of
actual
occupation.
It
was
admitted
that
all
the
lands
upon
which
the
S.E.
Terminals
stand
are
the
property
of
the
Dominion
of
Canada,
that
the
management,
charge
and
direction
of
the
Terminals
were
transferred
from
the
Department
of
Railways
&
Canals
to
the
Department
of
Marine
&
Fisheries
for
the
administration
of
the
Halifax
Harbour
Commissioners
by
Order
of
the
Governor
in
Council
dated
August
8,
1928.
The
Commissioners
have
their
offices
there.
They
employ
the
workmen,
and
have
charge
of
the
work.
They
levy
and
receive
the
rates,
charges
and
income
accruing
from
the
property,
its
plant
and
equipment,
and
from
all
work
done
there.
They
operate
and
administer
the
property.
Palpably
then
they
are
actual
occupiers,
either
for
themselves
or
as
agents
of
the
Crown.
In
which
of
these
capacities
they
occupy
is,
for
the
moment,
immaterial.
Accordingly
it
is
not
open
to
serious
debate
that
the
first
question
should
be
answered
in
the
affirmative.
The
second
question
is
:
"‘If
the
answer
to
the
first
question
is
in
the
affirmative,
whether
the
Halifax
Harbour
Commissioners
are
occupiers
of
any
real
property
for
the
purpose
of
any
trade,
profession
or
other
calling
carried
on
for
the
purpose
of
gain
F
’
In
other
words,
are
they
occupiers
for
the
purpose
of
any
trade
carried
on
for
the
purpose
of
gain,
so
as
to
come
within
subsec.
1
of
sec.
357
of
the
Charter?
No
doubt
the
general
purpose
of
their
occupancy
is
to
develop
the
Port
of
Halifax;
but,
to
effectuate
that
purpose,
they
administer
the
docks
and
transit
sheds
or
warehouses
and
levy
dues
and
charges
on
ships
and
cargoes.
In
the
course
of
the
business
they
operate
a
grain
elevator,
pack
and
mark
goods,
and
do
the
work
incidental
to
docking
ships,
handling
cargoes
and
operating
docks
and
warehouses.
For
all
of
these
services
they
are
paid.
That
this
constitutes
carrying
on
a
trade
for
the
purpose
of
gain
is
well
settled
by
authority.
But
before
I
deal
with
the
matter,
let
me
say,
that
here
again,
it
is
immaterial
to
the
argument,
for
the
moment,
in
what
capacity
they
occupy,
i.e.,
whether
as
servants
of
the
Crown
or
otherwise,
because
even
if
they
occupy
as
servants
of
the
Crown
the
occupation
may
be
for
purpose
of
trade.
A
very
plain
instance
of
such
an
occupation
was
the
Quebec
Liquor
Commission
which
was
held
to
be
a
servant
of
the
Crown
in
Quebec
Liquor
Com’n
v.
Moore,
[1924],
S.C.R.
540,
4
D.L.R.
901.
So
then
agents
of
the
Crown
may
be
carrying
on
a
trade,
and
if
so
it
may
be
for
the
purpose
of
gain.
As
to
that
I
quote
the
following
pronouncement
by
the
Lord
Chancellor
in
Halifax
v.
Fairbanks
[1927]
4
D.L.R.
945,
at
pp.
946-7
:—
"‘In
the
course
of
the
argument
for
the
respondent
estate
it
was
suggested
that
an
occupation
by
the
Crown
cannot
be
held
to
be
for
purposes
of
gain,
and
accordingly
that
the
premises
in
question
were
not
assessable
to
the
business
tax;
but
in
their
Lordships’
view
there
is
no
substance
in
this
argument.’’
On
the
same
point
I
refer
also
to
Brighton
College
v.
Marriott
(1924)
41
T.L.R.
165.
The
question
whether
such
a
business
as
that
of
the
Commissioners
was
carried
on
for
the
purpose
of
gain
was
discussed
in
Mersey
Dock
&
Harbour
Board
v.
Lucas
(1883)
8
App.
Cas.
891
;
and
it
was
held
that
the
Mersey
Docks
carried
on
a
trade
or
concern
for
gain.
In
that
case
the
Earl
of
Selborne,
L.C.
said
(p.
905)
:—
“To
my
mind
it
is
reasonably
plain
that
the
gains
of
a
trade
are
that
which
is
gained
by
the
trading,
for
whatever
purposes
it
is
used,
whether
it
is
gained
for
the
benefit
of
a
community,
or
for
the
benefit
of
individuals.
Whether
the
benefit
is
to
be
obtained
.
.
.
by
lightening
and
diminishing
publie
burdens,
it
is
the
same.”
See
also
Inland
Revenue
Comers
v.
Port
of
London
Authority
[1923]
A.C.
507,
at
p.
510.
And
in
Re
Duty
on
Estate
of
Incorporated
Council
of
Law
Reporting
(1888)
22
Q.B.D.
279,
at
p.
293.
Further
as
to
the
meaning
of
‘‘gain’’
I
refer
to
Re
Arthur
Average
Ass
f
n
et
al.,
Ex
p.
Hargrove
&
Co.
(1875)
L.R.
10
Ch.
542,
at
p.
546,
and
to
Forth
Conservancy
Board
v.
Inland
Revenue
Comers
[1931]
A.C.
540.
The
conclusion
in
light
of
these
cases
must
be
that
the
Commissioners
occupy
for
purposes
of
a
trade
carried
on
for
the
purpose
of
gain.
However,
even
if
it
were
otherwise,
they
would
then
be
occupiers
under
sec.
357
(3),
i.e.,
occupiers
"‘for
any
other
purpose
than
the
purpose
of
gain’’.
The
second
question
therefore
should
be
answered
in
the
affirmative.
The
third
question
is
:—
"If
the
answers
to
the
foregoing
questions
are
in
the
affirmative
and
the
Halifax
Harbour
Com’rs
are
occupiers
of
real
property
for
the
purpose
of
any
trade,
profession
or
other
calling
carried
on
for
the
purpose
of
gain,
whether
they
are
exempted
from
business
tax
by
any
provision
of
the
Halifax
City
Charter
or
any
other
enactment.’’
Here
the
main
issue
in
this
appeal
arises.
Is,
or
is
not,
the
occupancy
of
the
Commissioners
the
occupancy
of
the
Crown?
It
is
to
be
recalled,
that
by
sec.
370(a)
of
the
City
Charter,
"the
property
of
His
Majesty’’
used
for
Dominion
purposes
is
4
‘exempt
from
real
property
tax’’.
That
is
so
anyway.
Being
so
exempt
sec.
357(1)
declares
it
exempt
from
the
business
tax,
which
in
other
cases
is
levied
on
an
occupant
carrying
on
a
trade
for
gain.
But
property
of
His
Majesty
as
represented
by
the
Dominion
used
for
commercial
or
industrial
purposes
is,
by
virtue
of
sec.
373
not
exempt.
For
it
the
occupant
shall
be
rated
and
taxed
as
if
he
were
the
owner.
Of
course,
the
occupant
must
mean
an
occupant
other
than
the
Crown
by
its
servants;
and
I
assume
that
occupancy
for
the
purpose
of
the
trade
of
the
Commissioners
is
a
user
for
‘‘industrial
purposes’’.
It
is
almost
unnecessary
to
say
that
an
incorporated
body
may
be
constituted
and
act
as
agent
of
the
Crown,
and
so
may
occupy
property
as
such
agent.
As
to
that
I
refer
to
Bainbridge
v.
Postmaster-General
[1906]
1
K.B.
178;
Roper
v.
Public
Wks.
Corners
[1915]
1
K.B.
45,
and
Quebec
Liquor
Com’n
v.
Moore
[1924]
S.C.R.
540.
And
adopting
the
language
of
Patterson,
J.
in
Kearney
v.
Oakes
(1890)
18
S.C.R.
148,
at
p.
175,
I
may
add
that
in
deciding
whether
it
is
an
agent
of
the
Crown
or
not
the
same
rules
are
applicable
as
between
ordinary
parties.
It
may
not
be
irrelevant
next
to
consider
briefly
what
property
the
Commissioners
occupy:
what
their
activities
are
:
who
occupied
the
property
before
them:
what
previous
occupants
did,
and
under
what
authority
and
in
what
right
they
occupied.
Nothing
is
added
to
the
discussion
by
carrying
the
enquiry
back
beyond
Confederation.
At
that
time,
by
sec.
108
of
the
B.N.A.
Act,
Halifax
Harbour
became
the
property
of
the
Dominion.
As
such
property
it
is
exempt
from
taxation,
as
of
course
it
had
been
when
held
by
the
Crown
in
right
of
the
Government
of
Nova
Scotia.
See.
108
and
its
effect
are
dealt
with
by
Lord
Herschell
in
A.-G.
Can.
v.
A.-G.
Ont.
et
al.,
[1898]
A.C.
700,
at
p.
712.
The
Department
of
Marine
and
Fisheries
was
created
by
1868
(Can.),
c.
57,
and
is
one
of
the
great
Departments
of
Govern-
ment.
To
it
was
committed
the
duty
of
controlling
and
managing
harbours,
ports,
wharves,
piers,
harbour
commissioners
and
harbour
masters.
Later,
by
1872
(Can.),
c.
42
it
was
provided
that
the
Governor
in
Council
might
from
time
to
time
appoint
a
harbour
master
for
the
Port
of
Halifax
under
the
Minister
of
Marine
&
Fisheries,
who
would
perform
such
duties
as
were
imposed
upon
him
by
the
Governor
in
Council.
Perhaps
because
of
this
statute,
and
no
doubt
because
of
its
importance
as
one
of
the
two
great
open
winter
ports
on
the
eastern
seaboard
of
the
Dominion,
the
general
Act
respecting
Government
Harbours
(Government
Harbours
and
Piers
Act,
R.S.C.
1927,
c.
89),
by
express
provision
does
not
apply
to
Halifax
Harbour,
nor
does
Part
XII
(Of
Public
Harbours
and
Harbour
Masters)
of
the
Canada
Shipping
Act,
R.S.C.
1927,
c.
186.
In
any
event,
it
is
clear
that
for
60
years,
i.e.,
from
1867
until
1928,
the
management
and
control
of
Halifax
Harbour
was
a
duty
which
was
by
the
statute
above
referred
to
placed
upon
the
Department
of
Marine
&
Fisheries.
However,
the
first
important
harbour
works
were
built
at
the
north
end
of
the
city
soon
after
Confederation
by
the
Department
of
Railways
&
Canals,
another
great
department
of
state,
to
meet
the
requirements
of
the
government
railway
under
arrangement
with
the
Department
of
Marine
&
Fisheries.
In
1913
the
same
department
began
to
construct
the
S.
E.
Terminals.
The
site
at
that
time
was
covered
by
the
waters
of
the
Harbour.
The
railway
built
and
operated
the
long
2,000’
quay
wall
and
one
pier
and
carried
on
practically
the
same
work
that
the
Commissioners
now
carry
on.
This
was
the
situation
until
the
Commissioners,
under
the
Halifax
Harbour
Loan
Act,
1928
(Can.),
c.
28,
were
charged
with
the
administration
and
control
of
the
Harbour,
and
by
virtue
of
orders
of
the
Governor
in
Council,
took
over
the
Terminals
and
assumed
the
duties
the
railway
was
performing
there.
Since
that
time
they
have
built
a
second
pier
for
which
the
Government
under
special
statutes
provided
$9,000,000—
secured
by
their
debentures.
Perhaps
I
should
say
in
passing
that
the
C.N.R.
Co.
formed
in
1919
took
over
the
operations
of
the
Intercolonial
Railway,
the
Government
railway
first
operating
in
Nova
Scotia,
but
I
assume
that
both
railways
were
operated
by
the
Department
of
Railways
&
Canals
or
were
agents
of
that
department.
The
railway
tracks
still
run
upon
the
property.
They
have
offices
there
and
use
the
terminals
for
their
own
purposes
and
also
for
the
Canadian
National
Steamships
free
of
charge.
The
officials
of
the
Immigration
Department
also
have
accommodation
provided
for
them.
It
appears
then
that
the
duties
taken
over
by
the
Commis-
sioners
were
not
merely
public
duties;
but
were
duties
carried
on
upon
Government
property,
by
the
Government
or
its
servants
at
all
times
before
they
were
undertaken
by
the
Commissioners
;
and
so
were
until
then
governmental
duties.
It
can
make
no
difference
by
what
Department
of
Government
they
were
carried
on.
In
connection
with
this
conclusion
I
think
it
may
be
fairly
urged
that
since
under
the
Constitution
the
harbours
belonged
to
the
Government,
its
administration
and
control
is
a
governmental
duty
which
could
not
be
transferred,
but
must
be
performed
by
the
Government,
by
its
servants
or
agents.
The
building
and
operation
of
terminals
upon
the
Harbour
is
another
matter.
It
is
a
duty,
which
as
we
have
seen
was
in
fact
a
governmental
duty,
but
which
I
assume
could
be
transferred
to
a
body
independent
of
the
Government.
Though
as
to
that
also
it
may
be
noted
that
the
Act
which
constituted
the
Department
of
Marine
&
Fisheries
placed
upon
the
Minister
the
duty
of
administering
"‘any
laws
made
or
to
be
made
relating
to
.
.
.
harbours,
ports,
piers
and
wharves;’’
and
it
may
perhaps
be
contended
that
by
virtue
of
that
provision
he
administers
the
Act
constituting
the
Commissioners.
However
that
may
be
I
will
assume
that
after
the
transfer
the
duties
of
the
Commissioners
would
not
necessarily
remain
governmental
duties
merely
because
the
Commissioners
do
with
the
Government
property
what
the
Government
had
done
before
them;
but
only
if
what
they
do
is
done
by
them
as
agents
of
the
Government.
At
the
same
time
the
facts
that
the
Terminals
were
Government
property
and
that
the
Government
operated
them
are
highly
significant
facts
in
determing
whether
or
not
the
Commissioners
are
agents
of
the
Government.
The
question
then
is
whether
the
Commissioners
being
in
possession
of
the
property
under
the
circumstances
which
I
have
set
out
occupy
and
operate
it
as
an
independent
body
or
as
agents
of
the
Government.
In
attempting
to
decide
it,
the
first
essential
is
to
examine
the
Act
under
which
the
Commissioners
were
constituted
and
are
operating.
As
Duff,
J.
(now
C.J.C.)
said
in
Quebec
Liquor
Com’n
v.
Moore
[1924]
S.C.R.,
at
p.
551:
"The
broad
principle,
of
course,
is
that
the
liability
of
a
body
created
by
statute
must
be
determined
by
the
true
interpretation
of
the
statute;’’
and
by
that
means
also,
I
think
its
true
status
and
functions
are
to
be
found.
The
major
provisions
of
the
Act
are
as
follows:
Its
members,
three
in
number,
are
appointed
by
the
Governor
in
Council.
They
are
removable
at
pleasure
and
no
doubt
may
change
with
the
Government
of
the
day.
That
in
itself
is
significant.
They
administer
and
control
the
Harbour,
appoint
the
harbour
master;
they
must
file
with
the
department
a
complete
list
of
employees
and
their
salaries.
The
real
property
they
control
is
all
Government
property
and
all
they
may
acquire
becomes
Government
property.
None
can
be
acquired
or
disposed
of
without
the
approval
of
the
Government.
All
development
work
is
subject
to
approval;
all
their
accounts
and
vouchers
are
subject
to
audit
and
approval.
Their
by-laws
which
regulate
the
direction,
control
and
government
of
themselves
and
their
workmen,
and
of
the
Harbour
and
of
all
vessels
in
the
Harbour
must
be
approved
by
the
Governor
in
Council
and
published
in
the
Canada
Gazette.
These
inter
alia
fix
all
wages
and
salaries
paid,
and
all
rates
and
charges
to
be
levied.
When
their
revenue
reaches
$50,000
per
year
all
expenditure,
both
operating
expenses
and
expenditure
on
capital
account,
must
be
submitted
to
the
Minister
and
may
be
reduced
by
him.
They
may
borrow
on
debentures.
Up
to
the
present
the
Government
has
been
the
source
from
which
they
got
money.
All
capital
expenditure
is
subject
to
the
supervision
and
control
of
the
Minister
of
Marine.
After
operating
expenses
and
interest
are
paid
surplus
revenue
goes
to
a
sinking
fund
to
pay
the
debentures.
In
the
nature
of
things
repayment
will
take
a
long
time.
It
appears
then
that
the
activities
of
the
Commissioners
are
closely
circumscribed
and
fixed.
Their
discretion
is
limited
to
routine
matters,
some
of
them
of
considerable
size
and
importance,
but
all
minor
matters
when
considered
in
relation
to
the
proposition
as
a
whole,
and
not
greater
than
many
executives
pass
upon
and
decide
in
large
private
corporations.
Besides
as
marking
their
close
relation
to
the
Government,
(1)
The
Commissioners
may
require
the
collector
of
customs
to
collect
their
charges
from
vessels
before
giving
them
clearance;
(2)
they
receive
as
part
of
their
revenue
the
fees
formerly
paid
to
the
harbour
master
and
which
under
a
former
statute
appear
to
be
moneys
of
the
Government.
These
statutory
provisions,
as
Ridley,
J.
said
in
Graham
v.
Public
Wks.
Com’rs
[1901]
2
K.B.
781,
are
to
be
considered
in
light
of
the
surrounding
circumstances.
It
is
relevant
then,
in
addition
to
what
has
been
already
detailed,
to
repeat
that
Halifax
Harbour
is
a
great
open
winter
port;
that
its
importance
is
so
manifest
that
it
is
not
bound
by
general
legislation
for
the
control
of
harbours;
that
the
Commissioners
administer
and
control
Government
property
which,
before
it
was
put
in
their
charge,
cost
many
millions
of
public
money
;
that,
since
that,
they
themselves
have
made
and
are
making
further
developments
for
which
nine
millions
of
public
money
was
appropriated.
It
must
be
conceded
that
the
statute
and
these
circumstances
raise
a
strong
inference
that
the
Commissioners
are
an
organ
of
Government
and
agents
of
the
Government.
However,
it
is
necessary
to
weigh
against
it
and
the
conclusion
it
involves,
the
case
made
by
the
other
side.
The
city
submits
that
the
administration
and
control
of
such
docks
and
equipment
as
the
Terminals
are
not
in
essence
governmental
duties;
that
the
Commissioners
carry
on
their
duties
for
the
public
or
in
the
performance
of
a
public
duty
only;
but
that
their
occupancy
though
having
a
publie
character
and
devoted
to
public
purposes
is
not
for
the
Government
and
is
therefore
liable
to
be
rated,
as
was
held
in
Mersey
Docks
&
Harbour
Board
v.
Cameron,
11
H.L.C.
443,
11
E.R.
1405,
and
in
Clyde
Navigation
Trustees
v.
Adamson
(1865)
4
Marg.
931.
It
is
suggested
that
the
Government
might
lease
the
terminals
just
as
Government
land
was
leased
in
Montreal
v.
A.-G.
Can.
&
A.-G.
Que.
(1922)
70
D.L.R.
248,
and
the
lessee
would
not
be
an
agent
of
the
Crown,
and
so
they
might
properly
turn
them
over
without
compensation
other
than
that
the
Commissioners
should
operate
and
develop
them
for
the
public;
and
that
the
Government
might
make
the
Commissioners
its
agents
to
administer
and
control
the
Harbour,
though
they
gave
them
the
Terminals
as
a
public
body
merely,
and
that
to
operate
them
the
Commissioners
were
given
wide
discretion,
and
are
little
fettered
by
mandate
of
the
Government.
It
is
contended
that
considering
the
nature
and
importance
and
public
character
of
the
property
the
statute
does
not
limit
and
circumscribe
the
rights
and
discretion
of
the
Commissioners
in
operating
and
developing
the
property
to
a
greater
extent
than
a
lease
or
transfer
of
the
property
with
reasonably
adequate
restrictions
would
be
expected
to
have
done.
It
is
not
easy
to
find
decisive
authority
upon
the
point
in
issue.
Counsel
cited
many
cases,
but
they
differ
so
greatly
in
their
incidents
that,
as
Patterson,
J.
said
in
Kearney
v.
Oakes.
18
S.C.R.,
at
p.
160,
in
large
measure
we
have
to
""
interpret
our
statute
by
itself’’.
The
cases
are
helpful
however
to
show
what
considerations
in
each
case
led
the
Court
to
a
conclusion.
The
decisions
that
the
operation
of
docks
for
the
public
was
not
a
service
of
the
Crown
which
were
given
in
such
cases
as
Mersey
Dock
&
Harbour
Board
v.
Cameron,
supra;
Clyde
Navigation
Trustees
v.
Adamson,
supra,
and
Leith
Harbour
&
Docks
Corners
v.
Inspectors
of
the
Poor
(1866)
L.R.
1
H.L.
Se.
17,
do
not
help
us
much,
because
the
operation
and
development
of
Government
property
is
certainly
a
governmental
duty
if
it
is
being
done
by
agents
of
the
Government.
In
such
circumstances
in
Roper
v.
Public
Wks.
Com’rs
[1915]
1
K.B.,
at
p.
52,
Shearman,
J.
said
:
"
*
They
are
Government
servants
doing
the
work
of
the
Government
;
in
other
words
they
are
servants
of
the
Crown.
‘
‘
Counsel
for
the
Commissioners
relied
strongly
upon
The
Queen
v.
McCann
(1868)
L.R.
3
Q.B.
141.
There
the
Commissioners
of
Works
&
Buildings
who
were
servants
of
the
Crown
were
incorporated
to
build
a
bridge
and
to
borrow
£120,000
from
the
treasury
on
an
assignment
of
prospective
tolls.
Blackburn,
J.
said,
at
p.
147
:—
"
‘We
have,
therefore,
a
case
in
which
a
corporation
is
created
in
the
servants
of
the
Crown,
for
executing
a
private
work
out
of
public
funds,
which,
by
the
theory
of
our
law,
has
been
granted
to
her
Majesty,
and
is
called
the
consolidated
fund.
Out
of
that
fund
the
money
is
provided
for
carrying
on
the
work,
and
into
that
fund
the
surplus
from
the
tolls
is
to
go,
and
consequently
this
is
de
facto
an
occupation
by
the
servants
of
the
Crown.”
However,
the
case
differs
from
the
present
in
that
admittedly
the
defendants
were
servants
of
the
Crown,
while
here
that
is
the
very
fact
in
issue.
In
Quebec
Liquor
Com
9
n
v.
Moore
[1924]
S.C.R.,
at
p.
551,
the
main
considerations
which
led
the
Court
to
the
conclusion
that
the
Liquor
Commission
was
an
instrument
of
Government
were:
(1)
that
the
Commissioners
were
appointed
by
the
Governor
in
Council
and
were
removable
at
pleasure;
(2)
that
all
property
then
in
possession
was
property
of
the
Crown;
(3)
that
all
moneys
at
the
discretion
of
the
Provincial
Treasurer
were
remissible
to
him
and
become
part
of
the
consolidated
fund
of
the
Province;
(4)
that
the
employees
were
declared
to
be
public
servants
and
as
such
had
to
take
the
oath
of
public
service.
That
of
course
made
a
very
clear
case.
It
is
stronger
than
this
one,
but
it
shows
the
way
to
a
conclusion.
On
the
other
hand,
among
the
cases
cited
by
the
city
solicitor
was
fox
v.
Govt.
of
Newfoundland
[1898]
A.C.
667,
at
p.
672.
There
the
Boards
of
Education
were
held
not
to
be
agents
of
Government
to
distribute
moneys
for
educational
purposes,
principally
because:
(1)
there
was
a
separate
Board
for
each
of
three
principal
religious
denominations;
(2)
they
had
discretionary
power
in
expending
the
money
granted
for
educational
purposes.
The
Act
differentiated
between
money
to
be
expended
by
the
Boards
and
money
to
be
expended
as
the
Governor
in
Council
may
determine.
(3)
The
Boards
had
power
to
make
by-laws,
which
would
be
subject
to
the
approval
of
the
Governor
in
Council,
but
were
not
bound
to
make
them;
(4)
their
accounts
were
laid
before
the
Legislature
but
not
in
order
that
anything
might
be
disallowed.
That
case
is
clearly
not
as
strong
a
case
as
the
present.
Their
discretion
in
expending
money,
which
was
after
all
the
reason
for
their
existence,
was
unfettered.
In
St.
Catharines
v.
Hydro-Elec.
Power
Com
f
n
[1928]
1
D.L.R.
598,
61
O.L.R.
465,aff‘d
[1930]
1
D.L.R.
409,
the
Commission
was
held
not
be
an
agent
of
the
Government,
but
their
function
and
powers
greatly
differed
from
those
of
the
Halifax
Harbour
Commissioners.
Their
purpose
was
to
build
electric
railways
for
municipalities,
which
when
built
were
vested
in
the
commission.
They
could
issue
bonds
guaranteed
by
the
Province
;
but
the
municipalities
had
to
deposit
their
own
debentures
to
secure
payment
of
them.
Each
municipality
paid
its
share
of
the
Commission’s
working
capital,
operating
and
repayment
deficits.
The
surplus
revenues
went
to
the
municipalities.
That
is
clearly
not
a
helpful
case.
In
Metropolitan
Meat
Industry
Board
v.
Sheedy
[1927]
A.C.
899,
the
duties
taken
over
by
the
Board
were
not
duties
formerly
done
by
servants
of
the
Crown.
They
had
discretionary
powers.
The
Government
appointed
them
and
could
veto
certain
things,
but
these
circumstances
were
said
to
be
counter-balanced
by
the
fact
that
the
powers
of
acquiring
land,
building
abattoirs
and
works,
selling
cattle
and
meat
on
its
own
behalf
or
on
behalf
of
others,
were
exercised
at
its
own
discretion,
and
that
the
charges
it
levied
went
into
its
own
fund
and
not
into
the
general
reserve
of
the
state.
The
wide
discretionary
power
of
the
Board
seems
to
have
been
a
strong
factor
in
bringing
the
Court
to
the
decision
that
they
were
not
servants
of
the
Crown.
Even
after
examination
and
comparison
of
these
cases
and
many
others
to
which
we
were
referred,
it
is
not
easy
to
reach
a
convincing
conclusion.
With
some
doubt
I
am
of
opinion
that
the
Commissioners
are
to
be
considered
agents
of
the
Government,
because
the
Terminals
were
built
by
the
Government
upon
their
own
property,
and
operated
as
a
governmental
duty,
and
they
remain
still
the
property
of
the
Government
and
an
adjunct
of
the
Government
railway
;
because,
since
the
administration
and
control
of
the
Harbour
itself
was
always
a
governmental
duty,
the
presumption
is
that
the
Government
delegates
that
duty
to
the
Commissioners
as
designated
agents
of
the
Government,
and
I
think
they
probably
could
not
do
otherwise;
because
Halifax
Harbour
is
a
great
national
winter
port,
and
its
terminal
development
therefore
a
matter
of
national
as
well
as
local
concern;
because
the
Government’s
large
original
investment
and
their
large
subsequent
appropriations
for
development
made
and
to
be
made
by
the
Commissioners
support
the
presumption
of
agency
;
because
the
complete
provision
to
subject
their
operations
to
the
approval
of
the
Minister
and
to
limit
their
discretionary
powers,
and
to
supervise
and
'audit
their
ordinary
and
capital
expenditure
and
to
direct
and
control
their
operations
and
administration
indicates
an
intention
to
constitute
them
a
subordinate
rather
than
an
independent
body;
because
the
customs
officials
of
the
Government
collect
part
of
their
revenue
for
them;
because
in
the
natural
course
of
events
revenues
of
the
Commissioners
over
and
above
authorized
expenditures
must
for
a
very
long
time
go
to
repay
interest
or
capital
of
Government
loans.
The
result
of
the
conclusion
to
which
I
have
come
is,
that
the
property
occupied
by
the
Commissioners
should
be
held
to
be
exempt,
and
the
third
question
answered
in
the
affirmative.
In
view
of
the
foregoing
conclusion
the
fourth
question
does
not
require
an
answer.
However,
since
their
occupation
is
the
occupation
of
the
Government
the
question
if
answered
would
have
to
be
answered
in
the
negative.
There
should
be
no
costs
to
either
party.
Carroll
and
HALL,
JJ.
concur.
Doull,
J.:—This
is
a
case
stated
by
the
Court
of
Tax
Appeals
of
the
City
of
Halifax
for
the
opinion
of
the
Court.
The
stated
case
is
under
a
provision
of
the
Halifax
City
Charter
by
which
the
chairman
of
the
Court
of
Tax
Appeals
may
state
a
case
for
the
opinion
of
the
Court.
The
case
was
so
stated
and
brought
before
Hall,
J.
at
Chambers
and
was
by
him
referred
to
the
Court
en
banc.
It
appears
that
during
the
past
2
years,
the
City
of
Halifax
has
assessed
for
business
tax
the
Halifax
Harbour
Commissioners
and
that
these
Commissioners
have
objected
to
the
assessment
and
have
appealed
to
the
Court
of
Tax
Appeals
of
the
city
and
this
stated
case
is
for
the
purpose
of
deciding
the
validity
of
the
grounds
upon
which
that
appeal
is
based.
The
City
of
Halifax
is
a
body
corporate
governed
by
a
series
of
Acts
which
were
consolidated
in
the
present
City
Charter
in
the
year
1931
and
has
the
undoubted
right
to
assess
and
tax
ordinary
persons
and
corporations.
The
relevant
sections
of
the
City
Charter
are
set
out
in
the
stated
case.
The
sections
under
which
the
tax
is
imposed
are
secs.
357
or
3/3
or
both
read
together,
and
possibly
sec.
372.
The
language
of
sec.
357(1)
is
difficult
to
construe
otherwise
than
as
making
an
exception
of
the
occupiers
of
real
property
which
is
exempt
under
the
Charter.
The
provisions
of
sec.
373,
however,
prevent
the
exemptions
under
the
Act
from
applying
to
a
case
where
any
person
is
occupying
for
business
purposes,
property
of
His
Majesty
;
and
further
provides
that
every
person
so
occupying
any
such
land
shall
be
rated
and
taxed
in
like
manner
as
if
he
were
the
actual
owner
and
shall
be
liable
to
the
rates
and
taxes
assessed
and
rated
in
respect
thereto.
I
am
of
opinion
that
these
two
sections,
read
together,
are
sufficient
to
impose
liability
upon
the
Harbour
Commissioners
if
they
are
not
exempt
under
some
other
provisions
of
the
Charter
or
of
some
other
Act
or
under
the
common
law.
The
other
sections
of
the
City
Charter
set
out
in
the
stated
case,
deal
with
procedure
governing
assessment
and
assessment
appeals
and
are
not
material
to
the
decision
of
this
case
in
which
no
question
has
been
raised
regarding
the
procedure.
The
questions
reserved
for
the
decision
of
this
Court
are:
Q.
1.
Whether
the
Halifax
Harbour
Com’rs
are
occupiers
of
any
real
property
within
the
meaning
of
the
City
Charter
(1931
)
?
Q.
2.
If
the
answer
to
the
first
question
is
in
the
affirmative
whether
the
Halifax
Harbour
Com’rs
are
occupiers
of
any
real
property
for
the
purpose
of
any
trade,
profession
or
other
calling
carried
on
for
the
purpose
of
gain
?
Q.
3.
If
the
answers
to
the
foregoing
questions
are
in
the
affirmative
and
the
Halifax
Harbour
Com’rs
are
occupiers
of
real
property
for
the
purposes
of
any
trade,
profession
or
other
calling
carried
on
for
the
purposes
of
gain,
whether
they
are
exempted
from
business
tax
by
any
provision
of
the
Halifax
City
Charter
or
by
any
other
enactment?
Q.
4.
If
the
answers
to
Qq.
1
and
2
are
in
the
negative
and
it
is
decided
that
the
Halifax
Harbour
Com’rs
are
not
liable
to
be
assessed
for
business
tax
whether
the
tax
provided
in
subsec.
3
of
sec.
357
can
be
assessed
against
the
Halifax
Harbour
Com’rs?
Q.
5.
How
the
costs
of
the
application
are
to
be
borne?
It
is
objected
on
behalf
of
the
Harbour
Com’rs
that
the
assessment
is
illegal
on
the
ground
that
the
Halifax
Harbour
Com’rs
are
exempt
from
business
tax
by
virtue
of
the
provisions
of
sec.
125
of
the
B.N.A.
Act
and
the
provisions
of
the
City
Charter
which
exempt
"‘the
property
of
His
Majesty
used
for
Imperial,
Dominion
or
Provincial
purposes’’.
The
reasons
urged
on
behalf
of
the
Harbour
Com’rs
being—
1.
The
said
Halifax
Harbour
Com’rs
do
not
own
any
real
property
in
the
City
of
Halifax;
2.
The
only
property
at
present
occupied
by
the
Commissioners
is
property
of
His
Majesty
used
for
Dominion
purposes,
which
property
is
exempt
from
taxation
by
virtue
of
the
B.N.A.
Act
;
3.
Under
the
City
Charter,
1931,
no
business
tax
is
payable
in
respect
of
the
occupancy
of
any
property
exempt
from
taxation
;
4.
The
said
Halifax
Harbour
Com’rs
do
not
occupy
any
building
or
land
whatever
for
any
commercial
or
industrial
purposes
;
5.
All
real
property,
lands
and
buildings
within
the
City
of
Halifax
at
present
occupied
or
used
by
the
Commissioners
are
the
property
of
His
Majesty
and
are
used
for
Dominion
purposes
and
are
not
used
for
commercial
or
industrial
purposes
and
the
said
Halifax
Harbour
Com’rs,
in
using
and
occupying
such
land,
is
doing
so
as
the
agents
and
servants
of
the
Government
of
Canada
and
for
governmental
purposes
only.
These
contentions
are
to
be
disposed
of
by
answers
to
the
questions
submitted
to
the
Court.
In
my
opinion,
the
answers
to
all
these
questions
depend
upon
the
proper
view
of
the
occupation
of
the
Halifax
Harbour
Com’rs.
They
contend
that
they
occupy
the
premises
as
servants
or
agents
of
the
Crown
for
Crown
purposes.
A
consideration
of
this
contention
will
decide
all
the
questions.
In
Canada,
the
administration
of
harbours
has
always
been
a
function
of
Government
and
although
in
one
notable
instance,
Saint
John,
the
harbour
works
were
at
one
time
vested
in
the
municipality
in
which
they
lie,
no
such
state
of
affairs
existed
in
Nova
Scotia.
Prior
to
Confederation
the
administration
of
several
harbours
was
in
the
hands
of
Commissioners
who
were
appointed
by
the
Governor
in
Council
or
in
the
case
of
outlying
ports,
by
the
Court
of
Sessions.
It
was
a
usual
provision
in
Acts
providing
for
Commissioners
that
they
might
raise
money
by
way
of
loan
and
repay
it
out
of
the
fees.
At
Confederation,
all
public
harbours
passed
to
the
Dominion
Government
by
sec.
108
and
the
Third
Schedule
of
the
B.N.A.
Act
under
the
headings
of
‘‘Public
Harbours,
Lighthouses
and
Piers’’.
This
included
Halifax
Harbour.
The
power
to
deal
with
navigation
and
shipping
was
reserved
to
the
Dominion
Government
by
the
same
Act.
The
powers
given
by
the
B.N.A.
Act
were
at
once
exercised
by
the
Dominion
Government
which,
as
speedily
as
possible,
established
a
Department
of
Marine.
(See
Acts
of
1868
(Can.),
c.
57,
Department
of
Marine.)
In
1892
the
department
was
re-organized
as
the
Department
of
Marine
&
Fisheries.
(See
Department
of
Marine
and
Fisheries
Act,
R.S.C.
1906,
c.
44
(now
R.S.C.
1927,
ce.
125).)
Sec.
5
of
this
Act
provides
:—
i(
(5)
The
duties,
powers
and
functions
of
the
Minister
shall
extend
and
apply
to
the
boards
and
other
public
bodies,
officers
and
other
persons,
and
to
the
subjects,
services
and
properties
of
the
Crown,
enumerated
in
the
schedule
to
this
Act,
of
which
the
Minister
shall
have
control,
regulation,
management
and
supervision.
’’
In
the
Schedule
to
the
Act
there
are
the
following
:
‘(3)
Ports
and
harbours,
harbour
commissioners
and
harbour
masters.
"(4)
Piers,
wharfs
and
breakwaters,
the
collection
of
tolls
in
connection
therewith,
and
the
minor
repairs
on
such
properties.
.
.
.
"‘(7)
River
and
harbour
police.”
In
1927
the
department
was
again
re-organized.
(See
1926-7
(Can.),
ec.
62.)
See.
5
(as
amended
by
sec.
3)
of
this
Act
reads:—
‘‘The
duties,
powers
and
functions
of
the
Minister
shall
extend
and
apply
to
such
boards
and
other
public
bodies,
subjects,
services
and
properties
of
the
Crown
as
may
be
designated
or
assigned
to
the
Minister
by
the
Governor
in
Council,
over
which
the
Minister
shall
have
the
control,
regulation,
management
and
supervision.’’
By
the
Department
of
Marine
Act,
1930
(Can.),
ce.
31,
the
departments
were
separated
and
the
Department
of
Marine
created.
The
Acts
incorporating
Halifax
Harbour
Com’rs
and
the
Orders
in
Council
transferring
the
lands
which
they
occupy
to
the
Department
of
Marine
have
the
effect
of
placing
these
properties
and
their
administration
under
the
control
of
the
Minister
of
Marine.
The
Halifax
Harbour
Commissioners’
Act,
1926-27
(Can.),
3.
58,
was
assented
to
on
the
same
day
as
1926-27
(Can.),
c.
62.
The
Acts
repealed
by
this
Act
(c.
58
of
1927),
viz.,
ce.
42
of
the
statutes
of
1872;
ce.
12
of
the
Acts
of
1873;
c.
49
of
the
statutes
of
1882,
c.
78
of
the
statutes
of
1885;
and
c.
23
of
the
statutes
of
1919,
are
in
reference
to
the
harbour
master
at
Halifax
and
make
it
clear
that
the
fees
which
he
collects
are
moneys
of
the
Crown,
out
of
which
he
was
given
a
statutory
right
to
collect
his
own
salary
and
expenses.
It
is
to
be
noted
that
all
harbour
and
port
dues
in
harbours
not
under
Commissioners
are
Crown
dues.
See
the
various
Acts
in
the
Revised
Statutes
since
Confederation:
Government
Harbours
and
Piers
Act,
R.S.C.
1906,
c.
112;
Canada
Shipping
Act,
R.S.C.
1927,
e.
186.
It
is
to
be
further
noted
that
the
practice
of
appointing
Commissioners
to
administer
the
affairs
of
harbours
is
a
practice
of
long
standing.
Quebec,
1868;
Halifax,
1872;
Pictou,
1873.
These
Commissioners
were
usually
given
power
to
borrow
money
and
to
pay
the
same
out
of
dues
but
the
change
in
the
Commission
by
various
Acts
and
the
final
change
in
the
case
of
Halifax
(and
Saint
John)
indicate
that
these
activities
were
all
along
considered
functions
of
the
Government
and
apart
from
the
charges
on
revenue
authorized
by
Acts
of
Parliament,
there
is
no
indication
that
revenues
are
anything
other
than
Crown
dues
as
heretofore.
Having
before
us
the
constitution
and
antecedents
of
the
Halifax
Harbour
Com’rs,
we
may
approach
the
question
set
out
in
the
stated
case.
I
have
no
doubt
that
the
Harbour
Com’rs
are
occupying
the
property
in
question
within
the
meaning
of
the
City
Charter
if
they
do
not
represent
the
Crown
for
Crown
purposes.
Mersey
Docks
d
Harbour
Board
v.
Cameron,
11
H.L.C.
448;
The
Queen
v.
Ponsonby,
3
Q.B.
14,
114
E.R.
412;
Smith
v.
Vermilion
Hills
(1916)
30
D.L.R.
83
at
pp.
84-5.
I
have
no
doubt
that
the
Harbour
Com’rs
are
occupiers
of
the
premises
for
the
sake
of
gain
and
carrying
on
a
trade
or
business.
Halifax
v.
Fairbanks
[1927]
4
D.L.R.
945
(P.C.).
Assuming
that
the
occupier
is
an
ordinary
corporation
the
question
of
the
tax
being
a
direct
tax
and
within
the
powers
of
the
provincial
Legislature
is
also
covered
by
authority.
I
have
no
doubt
it
is
intra
vires.
(Halifax
v.
Fairbanks.)
The
whole
question
is
whether
the
occupation
of
the
Harbour
Com’rs
is
the
occupation
of
the
Crown
for
Crown
purposes.
If
it
1s,
the
Commissioners
will
be
exempt
from
business
tax
or
any
other
tax;
if
it
is
not,
I
think
that
the
tax
has
been
validly
assessed.
In
deciding
this
question,
it
is
necessary
to
consider
a
number
of
cases
which
have
been
cited
in
the
argument.
The
case
of
Mersey
Docks
&
Harbour
Board
v.
Cameron,
11
H.L.C.
443,
is
a
decision
of
the
House
of
Lords
which
corrected
a
tendency,
which
had
been
growing
up,
to
treat
almost
any
kind
of
occupation
for
the
benefit
of
the
public,
as
an
occupation
of
the
Crown
for
the
purposes
of
exemption
from
poor
rates.
Referring
to
the
exemption
which
attaches
to
the
Crown
in
cases
where
it
is
not
expressly
referred
to
in
a
statute,
Blackburn,
J.
said
(pp.
464-5)
:
"‘So
far
the
ground
of
exemption
is
perfectly
intelligible,
but
it
has
been
carried
a
good
deal
farther,
and
applied
to
many
cases
in
which
it
can
scarcely
be
said
that
the
Sovereign
or
the
servants
of
the
Sovereign
are
in
occupation.
Long
series
of
cases
have
established
that
where
property
is
occupied
for
the
purpose
of
government
of
the
country,
including
under
that
head
the
police,
and
the
administration
of
justice,
no
one
is
rateable
in
respect
of
such
occupation.
And
this
applies
not
only
to
property
occupied
for
such
purposes
by
the
servants
of
the
great
departments
of
State,
such
as
the
Post
Office,
Smith
v.
Birmingham
(7
El.
and
Bl.
483
[119
E.R.
1326]),
the
Horse
Guards,
Lord
Amherst
v.
Lord
Sommers
(2
T.R.
372
[100
E.R.
200]),
or
the
Admiralty,
The
Queen
v.
Stewart,
(8
El.
and
Bl.
360
[120
E.R.
134]),
in
all
which
cases
the
occupiers
might
strictly
be
called
the
servants
of
the
Crown;
but
also
to
property
occupied
by
local
police,
Justices
of
Lancashire
v.
Stretford
(Ell.
Bl.
and
Ell.
225
[120
E.R.
492]
)
;
to
county
buildings
occupied
for
the
assizes,
and
for
the
judges’
lodgings,
Hodgson
v.
Local
Board
of
Carlisle
(8
El.
and
Bl.
116
[120
E.R.
43])
;
or
occupied
as
a
county
court.
.
.
.
The
Queen
v.
Shepherd
(1
Q.B.
170
[133
E.R.
1095]
).
"‘In
these
latter
cases
it
is
difficult
to
maintain
that
the
occupants
are,
strictly
speaking,
servants
of
the
Sovereign,
so
as
to
make
the
occupation
that
of
Her
Majesty;
but
the
purposes
are
all
public
purposes,
of
that
kind
which,
by
the
constitution
of
this
country,
fall
within
the
province
of
Government,
and
are
committed
to
the
Sovereign,
so
that
the
occupiers,
though
not
perhaps
strictly
servants
of
the
Sovereign,
might
be
considered
in
consimili
casu.
And
the
decisions
are
uniform,
and
were
not
disputed
at
the
Bar,
that
the
exemption
applies
so
far;
but
there
is
a
conflict
between
the
decisions
as
to
whether
the
exemption
goes
farther.
‘
‘
He
then
refers
to
the
several
cases
relating
to
charities
(hex
v.
St.
Luke’s
Hospital,
2
Burr.
1053,
97
E.R.
703;
Rex
v.
Inhabitants
of
St.
Bartholomew’s,
4
Burr.
2435,
98
E.R.
276;
and
The
King
v.
Com’rs
of
Navigation
of
Salter’s
Load
Sluice
et
al.,
4
T.R.
730,
100
E.R.
1270)
which
last
case
was
a
case
of
a
canal
operated
by
commissioners,
the
receipts
of
operation
of
which
were
to
be
applied
"‘‘to
the
purposes
of
the
Act,
and
to
and
for
no
other
use
or
purpose
whatsoever.’
”’
After
discussion,
the
Judges
overruled
these
last
mentioned
cases
and
held
the
Mersey
Docks
and
Harbour
Board
liable
to
pay
poor
rates,
putting
the
case
squarely
on
the
ground
that
the
Board
are
not
different
from
any
other
company,
e.g.,
a
company
incorporated
under
the
Companies
Clauses
Act.
It
may
be
well
here
to
note
the
history
of
these
docks.
The
ancient
harbour
dues
of
the
Mersey
were
originally
Crown
dues
“as
any
one
who
refers
to
Hargrave’s
Tracts,
where
there
is
a
great
deal
about
them,
will
find’’.
These
dues,
in
the
case
of
the
Mersey
were
granted
by
King
Charles
II
to
the
ancestor
of
the
Earl
of
Sefton
and
by
the
Earl
of
Sefton
sold
to
the
Corporation
of
Liverpool,
and
from
the
Corporation
of
Liverpool
they
have
been
granted
to
the
Mersey
Docks
&
Harbour
Board.
“It
is
enough
to
say
of
them
that
they
are
property
.
.
.
which
might
belong
to
a
private
person,
but
as
the
case
states
in
fact
do
belong
to
the
Mersey
Docks
and
Harbour
Board’’
(Mersey
Docks
&
Harbour
Board
v.
Lucas,
8
App.
Cas.
891,
at
p.
908).
The
docks
themselves
were
built
under
the
provisions
of
various
statutes,
the
earliest
of
them
being
in
the
reign
of
Queen
Anne,
but
from
the
time
when
Charles
II
granted
the
harbour
dues
to
the
Earl
of
Sefton,
any
authority
that
the
Crown
had
over
the
revenues
and
the
administration
of
these
docks
was
no
greater
than
that
which
the
Government
of
the
country
would
have
over
any
private
company
carrying
on
a
similar
private
enterprise.
The
following
cases
simply
decide
the
same
thing,
that
the
Boards
carrying
on
business
of
administering
docks
as
a
private
enterprise
are
not
the
Crown
or
the
servants
of
the
Crown.
The
words
quoted
above
are
an
argument
to
this
effect,
in
Mersey
Docks
&
Harbour
Board
v.
Lucas,
supra;
also
to
the
same
effect,
Port
of
London
Authority
v.
Inland
Revenue
Com
f
rs
[1920]
2
K.B.
612.
This
latter
case
simply
decides
that
the
Port
of
London
Authority
carries
on
a
trade
or
business.
The
case
of
Gilbert
v.
Trinity
House
Corp.
(1886)
17
Q.B.D.
795,
is
referred
to.
In
the
defendant
corporation
were
vested
the
superintendence
and
management
of
lighthouses,
beacons
and
buoys
in
England,
and
extensive
powers
were
given
to
them
subject
to
the
control
of
the
Board
of
Trade,
but
all
dues
levied
by
them
were
to
be
carried
to
the
account
of
the
Mercantile
Marine
Fund,
out
of
which
fund
also
all
the
expenses
incurred
were
to
be
paid.
It
appears
that
originally
lighthouses
in
England
were
in
private
hands.
They
were
erected
in
many
cases
by
private
persons
or
local
bodies
and
paid
for
by
dues
collected
from
shipping.
Prior
to
1856,
a
corporation
known
as
the
"‘Elder
Brethren
of
Trinity
House’’
repaired
and
maintained
beacons;
at
first
perhaps
as
a
charity,
and
in
process
of
time
they
acquired
rights
in
the
control
and
management
of
them.
Undoubtedly
they
were
organized
as
a
private
corporation
and
operated
as
such.
They
had
been
organized
as
early
as
1014,
and
other
powers
were
given
to
them
in
1685.
Up
to
the
year
1854
they
took
the
dues
for
their
own
use
and
it
was
not
until
after
that
time
they
acquired
powers
and
duties
under
the
Shipping
Act.
Consequently,
the
judgment
of
Day,
J.
rests
on
firm
historical
ground
(p.
801)
:—
‘
‘
Trinity
House,
to
my
mind,
is
not
in
the
position
of
a
great
officer
of
state.
It
is
nothing
more
than
an
amalgamation
by
authority
of
state
of
a
vast
number
of
bodies
having
general
authority
over
the
lighthouses
and
beacons
and
buoys
throughout
the
country
for
the
general
convenience.
"‘It
is
a
corporation
with
very
great
powers
vested
in
it
by
statute,
but
in
no
possible
sense
can
it
be
deemed
to
represent
the
Crown.
All
the
great
officers
of
the
state
are,
if
I
may
say
so,
emanations
from
the
Crown.
They
are
delegations
by
the
Crown
of
its
own
authority
to
particular
individuals.
That
is
not
the
case
with
the
Trinity
House,
which
has
its
nature
and
origin
defined
with
sufficient
clearness
to
enable
us
to
say
that
at
any
rate
it
is
in
no
sense
an
emanation
from
the
Crown,
nor
in
any
way
whatever
a
participant
of
any
royal
authority.
‘
‘
Wills,
J.
said
(p.
802)
:—
‘“We
have
had
brought
before
us
the
whole
history
of
the
Trinity
House,
and
the
charters
and
Acts
of
Parliament
affecting
it,
and
it
would
seem
that
at
first
it
was
a
private
guild
or
corporation.
Now
at
what
time
did
it
cease
to
be
so,
and
become
a
great
representative
of
the
state?’’
Metropolitan
Meat
Industry
Board
v.
Sheedy
[1927]
A.C.
899,
In
this
case
the
appellant
was
a
Board
which
administered
the
meat
industry
in
Australia.
It
operated
the
abattoirs,
slaughter
houses,
cattle
sale
yards
and
meat
markets
in
the
County
of
Cumberland,
New
South
Wales.
Prior
to
1915
the
business
of
slaughtering
cattle
had
been,
in
the
main,
carried
on
by
private
enterprise,
but
in
that
year,
great
changes
were
made
and
the
Metropolitan
Meat
Industry
Board
was
established
and
to
that
board
many
of
the
powers
of
the
municipal
council
of
the
City
of
Sydney
were
presented;
particularly
powers
of
the
Board
of
Health
and
the
regulation
of
the
slaughter
of
cattle.
Viscount
Haldane
says
(p.
905)
:—
"‘In
the
statute
before
their
Lordships
they
think
it
not
immaterial
to
observe
that
under
the
previous
legislation
of
1902
the
local
authorities
entrusted
with
the
powers
which
the
Act
of
1915
readjusts
were
certainly
not
constituted
servants
of
the
Crown
under
the
then
existing
Acts.
Their
Lordships
agree
with
the
view
taken
by
the
learned
judge
in
the
Court
below
that
no
more
are
the
appellant
Board
constituted
under
the
Act
of
1915
servants
of
the
Crown
to
such
an
extent
as
to
bring
them
within
the
principle
of
the
prerogative.”
This
was
a
case
where
priority
in
respect
to
payments
was
claimed.
The
decision
is
based
on—1.
The
former
status
of
Boards
which
this
Board
supersedes.
(The
former
Boards
were
not
Crown
officers)
;
2.
Their
discretionary
powers
to
act;
3.
It
is
expressly
stated
that
the
fact
that
they
are
not
incorporated
does
not
matter;
4.
They
do
not
pay
their
receipts
into
the
general
revenue
of
the
state.
Their
Lordships
observe
that
each
case
requires
consideration
of
its
own
facts
and
under
the
circumstances
before
their
Lordships
in
this
case,
they
think
that
it
ought
not
to
be
held
that
the
appellant
Board
are
acting
mainly,
if
at
all,
as
servants
of
the
Crown
acting
in
its
service.
Fox
v.
Govt.
of
Newfoundland
[1898]
A.C.
667:
This
was
a
case
where
priority
was
claimed
of
moneys
to
the
credit
of
various
denominational
education
Boards.
This
money
had
been
paid
out
by
the
Government
to
these
various
Boards
and
was
deposited
in
a
bank
which
became
insolvent.
It
was
held
that
as
the
Government
had
parted
with
the
power
to
pay
and
administer
the
money,
it
was
no
longer
moneys
of
the
Crown
and
was
not
entitled
to
priority.
St.
Catharines
v.
H.E.P.
Com’n
[1930]
1
D.L.R.
409:
This
commission
was
distinctly
organized
to
act
on
behalf
of
the
municipalities
which
paid
deficits
and
received
benefits
of
surplus,
and
was
held
not
to
be
a
Department
of
Government.
This
commission
was
purely
for
the
benefit
of
municipalities,
and
neither
the
commission
nor
the
Government
was
liable
for
its
indebtedness
(except
where
specifically
guaranteed).
Rattenbury
v.
Land
Settlement
Board
[1929]
1
D.L.R.
242
illustrates
what
is
undoubtedly
the
law
that
a
corporation
which
may
be
the
servant
and
the
agent
and
the
representative
of
the
Government
may,
nevertheless,
be
sued
and
particularly,
may
be
sued
if
the
statute
provides
that
it
can
be.
The
Land
Settlement
Board
in
this
case
was
undoubtedly
part
of
the
Department
of
Agriculture
of
the
Province
of
British
Columbia,
but
it
did
not
follow
that
it
could
not
be
sued
and
that
was
particularly
the
case
because
the
Acts
of
British
Columbia
provided
that
it
could
and
the
whole
theory
of
the
Act
was
held
to
show
that
that
was
what
was
intended.
Newcombe,
J.
(pp.
247-8),
cites
with
approval
Phillimore,
J.
in
Graham
v.
Public
Wks.
Corners
[1901]
2
K.B.
781
at
p.
791,
after
referring
to
the
convenience
of
the
practice
by
which
the
Crown,
with
the
consent
of
Parliament,
establishes
officials
or
corporations
who
may
sue
or
be
sued
in
respect
of
business
engagements,
without
the
formalities
of
the
procedure
necessary
when
a
subject
is
seeking
redress
from
his
sovereign
:
‘Now,
the
only
question
for
us
is
whether
the
Commissioners
of
Public
Works
and
Buildings
are
not
of
the
class
of
persons
well
described
by
Lindley,
L.J.
in
Dixon
v.
Farrer
(1896)
17
Q.B.D.
658;
18
Q.B.D.
43
[at
p.
51]
as
"a
nominal
defendant
sued
as
representing
one
of
the
departments
of
the
State.
‘
‘
There
is
no
reason
in
principle
why
they
should
not
be.
As
I
have
pointed
out,
there
is
nothing
derogatory
to
the
Crown,
and
there
is
very
great
convenience,
in
the
establish-
ment
of
such
bodies.
The
mere
fact
of
their
being
incorporated
without
reservation
confers,
it
seems
to
me,
the
privilege
of
suing
and
the
liability
to
be
sued.’
‘‘
The
observations
of
Newcombe,
J.
on
pp.
248-9
are
instructive
in
showing
that
a
corporation
so
formed
for
the
purpose
of
carrying
out
Crown
duties
and
responsibilities,
is
a
servant
of
the
Crown
and
the
question
as
to
whether
it
may
be
sued
or
may
not
be
sued
is
another
question
which
is
to
be
decided
upon
a
consideration
of
the
statutes
applicable.
It
is
to
be
observed
that
although
liable
to
be
sued,
this
defendant
was
undoubtedly
a
servant
of
the
Crown.
Having
dealt
with
cases
in
which
Boards
constituted
by
Acts
of
Parliament
have
been
held
not
to
be
agents
or
servants
of
the
Crown,
let
us
contrast
some
cases
in
which
the
opposite
has
been
held.
The
Queen
v.
McCann
(1868)
37
L.J.M.C.
25,
affd
at
p.
123.
In
this
case
the
question
arose
as
to
whether
the
Commissioners
of
Works
&
Buildings
which
was
an
incorporated
body
by
Act
of
Parliament
for
the
purposes
of
making
a
bridge
over
the
Thames
was
subject
to
be
assessed
for
poor
rates.
In
this
case
Blackburn,
J.,
(37
L.J.M.C.
at
pp.
32-3),
who
had
written
the
decision
of
the
majority
of
the
Judges
in
the
Mersey
Docks
case,
quoted
the
passage
above
set
out
in
regard
to
the
exemption
of
the
great
departments
of
state,
and
then
goes
on
to
explain
it.
He
then
contrasts
it
with
the
present
case
where
the
defendant
is
a
body
known
as
the
‘‘
Commissioners
of
Works
&
Buildings’’
:
_“In
the
present
case,
in
construing
the
act
of
parliament,
what
I
think
we
must
come
to
is
this,
that
the
legislature,
having
in
view
an
embankment
of
the
Thames
or
a
bridge,
which
is
not
one
of
those
government
purposes
which
are
spectant
regi
at
all,
instead
of
enacting
that
it
shall
be
carried
out
by
private
enterprise,
or
by
a
private
body
that
shall
act
for
themselves,
enact
that
it
shall
be
carried
out
by
the
Government
out
of
the
Government
funds.
They
create
the
Commissioners
of
Woods
into
a
special
corporation
for
doing
it.
.
.
.
They
grant
powers
to
raise
money
from
its
occupation,
which
would,
no
doubt,
make
the
occupation
beneficial
in
general;
but
it
is
solely
and
exclusively
for
the
purpose
of
repaying
the
Government
the
advance,
for
keeping
up
the
bridge
and
so
on,
and
if
there
be
any
surplus,
in
the
original
act
they
have
enacted
that
such
surplus
shall
be
applied
to
such
metropolitan
improvements
as
the
legislature
shall
direct.
That
has
been
subsequently
repealed,
and,
consequently,
if
there
ever
should
come
to
be
any
surplus,
it
would
be
held
by
the
Commissioners;
certainly
not
for
the
benefit
of
the
individual
Commissioners;
but,
like
everything
else,
it
would
be
held
by
them
in
trust
for
the
Consolidated
Fund,
so
that
this
is
a
case
in
which
a
special
corporation
is
created
of
the
servants
of
the
Crown,
for
the
purpose
of
executing
a
private
work,
but
executing
it
out
of
the
general
fund,
which,
by
the
general
theory
of
law,
had
been
granted
to
Her
Majesty
:
this
is
called
the
Consolidated
Fund;
out
of
that
the
work
is
to
be
carried
on,
into
that
the
surplus
is
to
go;
and,
consequently,
this
is
de
facto
an
occupation
by
the
servants
of
the
Crown,
the
servants
of
the
general
government.
The
whole
scheme
of
the
enactment
is,
that
the
Commissioners
of
Woods
and
Forests
are
created
a
special
corporation,
who
are
to
execute
this
work,
private
in
its
nature,
but
de
facto
for
the
Government,
with
the
Government
funds,
and
to
receive
the
profits
of
the
occupation
for
the
Government
funds,
and
in
that
case
it
is
the
occupation
of
the
Crown,
and
is
not
any
more
rateable
than
the
private
estates
of
the
Crown
would
be,
such
as
the
Home
Park,
at
Windsor,
or
anything
else.
‘
‘
Lush,
J.
said:—
"
"
It
appears
to
me
that,
on
the
true
construction
of
the
statute,
this
bridge
was
a
national
undertaking.
Every
argument
used
by
Mr.
Keane
would
be
equally
applicable
to
make
out
the
rateability
of
the
Post
Office,
or
any
other
national
establishment
in
this
country.
‘
‘
Quebec
Liquor
Com’n
v.
Moore
[1924]
4
D.L.R.
901.
While
the
matter
before
the
Court
in
that
case
was
the
liability
of
the
Commission
to
be
sued
for
a
tort,
there
is
no
doubt
from
the
judgment
of
Duff,
J.
that
it
is
an
agent
or
servant
of
the
Crown
carrying
on
a
certain
business
which
has
been
undertaken
by
the
Government
as
a
Government
monopoly.
We
are
now
able
to
lay
down
some
principles
on
which
the
question
as
to
whether
or
not
a
corporation
is
a
servant
or
agent
of
the
Crown,
seems
to
depend
:
1.
The
capacity
to
sue
or
liability
to
be
sued
is
not
a
material
factor
in
determining
the
question.
(Rattenburg
v.
Land
Settlement
Board
[1929]
1
D.L.R.
242.)
2.
The
question
of
whether
the
person
or
corporation
is
subject
to
mandamus
does
not
decide
the
matter,
for
while
it
is
true
that
officers
of
state
are
not
subject
to
mandamus
for
acts
done
in
their
executive
capacity,
it
is
also
true
that
Crown
servants
may
owe
a
duty
to
private
members
of
the
public
and
in
such
case,
mandamus
may
lie
even
against
persons
who
are
servants
of
the
Crown.
(Rex
v.
Com’rs
for
Special
Purposes
of
Income
Tax
[1920]
1
K.B.
26.)
3.
The
undertaking
which
the
Board
takes
over
and
its
history
with
particular
reference
to
whether
it
has
been
Crown
business
is
a
most
material
circumstance:
Mersey
Docks
&
Harbour
Board
v.
Cameron,
supra;
Metropolitan
Meat
Industry
Board
v.
Sheedy,
supra;
The
Queen
v.
McCann,
supra;
Gilbert
v.
Trinity
House
Corp,,
supra;
Rattenburg
v.
Land
Settlement
Board,
supra.
4.
Another
way
to
state
the
same
thing
is
whether
a.
Board
undertakes
a
private
business
or
is
an
"‘emanation
of
the
Crown’?
or
there
is
a
delegation
to
the
Board
of
the
Crown’s
business—
this
is,
in
each
case,
a
question
of
fact
to
be
determined
largely
by
the
supervision
which
is
to
be
exercised
in
each
particular
case.
In
this
case
it
seems
to
me
that
the
stated
case
is
not
altogether
satisfactory
in
setting
out
the
actual
supervision
which
is
exercised
as
a
matter
of
fact,
by
the
Department
of
Marine.
It
would,
I
think,
astonish
the
people
of
Halifax
and
of
Nova
Scotia
if
it
were
held
that
the
Harbour
Com’rs’
business
is
an
ordinary
shipping
business
like
that
of
the
private
wharf
owners
who
do
business
in
the
city,
and
I
would
think
that
it
would
be
material
to
have
shown
what
is
the
undoubted
fact,
that
in
the
year
1931,
the
government
employed
a
world
famous
expert
from
England
to
investigate
and
make
a
report
on
all
the
Harbour
Commissions
in
Canada
with
a
view
to
changing
the
administration
of
this
and
other
public
harbours,
which
report
is
probably
still
before
the
Government
for
consideration.
I
refer
to
the
well-known
Gibbs
report.
The
questions
must
be
answered
by
reference
to
the
facts
set
out
in
the
stated
case
and
I
think,
particularly,
by
reference
to
the
Act
constituting
the
commission.
Under
that
Act
the
Governor
in
Council—appoints
the
Commissioners
on
the
recommendation
of
the
Minister;
approves
the
by-laws,
appoints
the
president;
gives
the
commission
power
to
enter
on
Crown
property;
approves
the
establishment
of
a
harbour
limit;
approves
expropriation,
lease,
purchase,
or
other
acquisition,
or
sale
or
lease
of
real
or
personal
property
;
any
elevator,
wharf,
pier,
or
other
building,
or
any
machinery
and
equipment
of
His
Majesty
in
the
right
of
the
Government
of
Canada
within
the
limits
of
the
harbour
under
the
control
of
the
corporation
may
be
transferred
by
the
Governor
in
Council
to
the
jurisdiction
of
the
corporation
at
their
request
upon
such
conditions
as
may
be
mutually
agreed
upon;
no
by-law
is
effective
until
approved
of
by
the
Governor
in
Council;
by-laws
are
necessary
to
fix
rates
and
Commissioners
may
require
the
Collector
of
Customs
(another
Government
official),
to
collect
any
rates;
the
borrowing
powers
of
the
corporation
can
only
be
exercised
by
the
corporation
with
the
approval
of
the
Governor
in
Council
on
the
recommendation
of
the
Minister
of
plans,
specifications
and
estimates
in
detail
for
the
work
proposed
and
the
amount
to
be
borrowed.
If
debentures
are
to
be
sold,
the
Governor
in
Council
must
approve
the
rates
and
terms
;
the
principal
and
interest
on
sums
borrowed
are
to
be
repaid
out
of
revenue
and
when
there
is
a
surplus
it
is
to
be
used
for
a
sinking
fund
for
debt
retirement
in
such
manner
as
the
Minister
may
direct
;
if
the
gross
revenue
reaches
$50,000
per
annum,
an
estimate
is
to
be
submitted
and
is
subject
to
the
approval
of
the
Minister,
there
is
an
audit
to
be
made
by
the
department;
;
a
list
of
permanent
personnel
is
to
be
filed
with
the
department
setting
out
the
salary,
length
of
service,
nationality
and
such
other
particulars
as
the
Minister
may
direct
;
the
corporation
has
rights
of
seizure
and
detention
and
has
a
special
lien
for
rates
and
penalties.
An
examination
of
this
Act
convinces
me
that
the
theory
behind
it
is
simply
this:
Halifax
Harbour
is
a
great
national
port
:
it
is
in
the
interest
of
all
Canada
that
it
be
developed
in
such
a
way
that
Canadian
trade
shall
flow
through
Canadian
ports,
and
in
the
winter
time
there
are
only
two
open
ports
on
the
East
Atlantic
coast,
Halifax
and
Saint
John.
As
a
consequence,
the
money
from
the
Dominion
treasury
and
the
best
supervision
that
can
be
obtained
have
been
made
available
to
develop
this
port—but
nothing
in
the
Act
changes
the
port
revenues
from
the
character
which
they
had
previously,
namely:
that
of
revenues
of
the
Crown.
The
Board
is
only
a
convenient
manager
for
the
port
and
is
simply
an
agent
of
the
Dominion
Government
to
carry
on
what
has
been
made
and
what
has
always
been
the
business
of
the
Crown.
I
therefore
answer
the
questions
as
follows
:
Q.
1.
Whether
the
Halifax
Harbour
Com’rs
are
occupiers
of
any
real
property
within
the
meaning
of
the
City
Charter
(1921)
?
A.
The
Halifax
Harbour
Com’rs
are
occupiers
of
the
Crown
property
comprising
the
wharves,
piers
and
other
terminal
facilities
on
Halifax
Harbour
but
they
occupy
as
servants
and
agents
of
the
Crown.
Q.
2.
If
the
answer
to
the
first
question
is
in
the
affirmative
whether
the
Halifax
Harbour
Com’rs
are
occupiers
of
any
real
property
for
the
purpose
of
any
trade,
profession
or
other
call-
ing
carried
on
for
the
purpose
of
gain?
A.
The
occupation
of
the
Halifax
Harbour
Com’rs
is
the
carrying
on
of
a
business
for
the
purpose
of
gain
but
it
is
carried
on
by
the
Crown
through
the
agency
of
the
Halifax
Harbour
Com’rs.
Q.
3.
If
the
answers
to
the
foregoing
questions
are
in
the
affirmative
and
the
Halifax
Harbour
Com’rs
are
occupiers
of
real
propery
for
the
purpose
of
any
trade,
profession
or
other
calling
carried
on
for
the
purposes
of
gain,
whether
they
are
exempted
from
business
tax
by
any
provision
of
the
Halifax
City
Charter
or
by
any
other
enactment?
A.
The
Halifax
Harbour
Com’rs
are
exempt
from
business
tax
as
agents
and
servants
of
the
Crown
occupying
the
property
on
behalf
of
the
Crown.
Q.
4.
If
the
answers
to
questions
1
and
2
are
in
the
negative
and
it
is
decided
that
the
Halifax
Harbour
Com’rs
are
not
liable
to
be
assessed
for
business
tax
whether
the
tax
provided
by
sub-
sec.
3
of
sec.
357
can
be
assessed
against
the
Halifax
Harbour
Com’rs?
*A.
For
the
reasons
given,
no
business
tax
can
be
assessed
against
the
Halifax
Harbour
Com’rs.
Q.
5.
How
the
cost
of
the
application
are
to
be
borne.
A.
Both
parties
are
public
bodies
and
the
matter
has
come
before
the
Court
in
this
manner
largely
by
agreement
and
there
should
be
no
order
as
to
costs.
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