SEMPLE,
RECORDER
:—Plaintiff
declares—1.
Under
the
Act,
1935
(Que.),
c.
112,
s.
12,
it
has
been
imposed
(sic)
upon
any
"‘individual’’
having
his
ordinary
(sic)
residence,
domicile
or
place
of
business
in
the
City
of
Montreal
or
in
any
of
the
municipalities
under
the
control
of
the
Montreal
Metropolitan
Commission,
an
annual
tax,
called
"‘income
tax,’’
to
be
levied
and
collected
each
year
in
addition
to
any
other
tax,
from
and
after
May
1,
1935,
and
not
to
exceed
20%
of
the
amount
of
the
tax
payable
by
such
individual,
in
virtue
of
the
Income
War
Tax
Act,
R.S.C.
1927,
c.
97,
and
its
amendments,
for
the
preceding
year
ending
on
December
21
;
2
.—The
rate
of
such
tax
has
been
fixed
and
determined
as
follows
by
By-law
No.
1337,
adopted
by
the
municipal
council
of
the
City
of
Montreal
on
April
27,
1935.—
(a)
10%
of
the
amount
payable
under
the
said
Act
if
such
amount
is
of
$200
or
less;
(b)
15%
if
the
amount
payable
under
the
Act
is
over
$200
but
does
not
exceed
$400;
(c)
20%
if
the
amount
payable
under
the
Act
is
over
$400
;
3
.—The
defendant
is
an
4
"
individual
‘
‘
as
described
in
the
said
Act
and
by-law,
having
his
ordinary
(sic)
residence
or
domicile
at
626
Belmont
Ave.,
in
the
City
of
Westmount,
which
is
a
municipality
under
the
control
of
the
Montreal
Metropolitan
Com’n,
and
as
such,
the
defendant
was
obliged
to
deliver
to
the
director
of
finance
of
the
City
of
Montreal,
on
or
before
May
15,
1935,
a
declaration
stating
the
amount
of
the
tax
for
which
he
has
declared
himself
liable
in
his
last
return
to
the
Dominion
Government,
and
to
remit
to
the
director
of
finance
the
amount
of
the
tax
payable
in
accordance
with
the
said
return
;
4
.—The
defendant
is
indebted
to
the
plaintiff
in
the
sum
of
$
,
in
accordance
with
his
declaration
made
without
pre-
judice
and
in
accordance
with
the
certificate
of
the
director
of
finance
of
the
City
of
Montreal,
which
certificate
is
herewith
fyled
;
5
.—The
defendant
has
failed
to
pay
the
said
sum
of
$
which
is
the
amount
of
the
tax
imposed
and
payable
in
accordance
with
his
return;
and
plaintiff
prays
for
judgment
against
defendant
for
the
said
sum
of
$
,
with
interest
at
6%
and
the
costs.
The
defendant
pleads
to
the
action—1.—The
description
of
the
defendant
in
the
writ
of
summons
is
incorrect
since
the
defend-
ant
is
domiciled
in
the
Municipality
of
Cornwall
in
the
Province
of
Ontario;
2.—The
statute
mentioned
in
para.
1
speaks
for
itself,
otherwise
the
paragraph
is
denied
and
is
irrelevant;
3.—The
by-law
in
para.
2
speaks
for
itself,
otherwise
paragraph
is
denied
and
is
irrelevant;
4.—Para.
3
is
denied;
5.—Para.
4
is
denied
as
drawn;
6.—Para.
5
is
denied
as
drawn;
and,
for
further
plea,
defendant
pleads
specially;
7.—That
at
no
time
did
defendant
have
nor
has
he
now
his
domicile,
his
usual
residence,
his
ordinary
residence,
or
place
of
business
in
West-
mount;
8.—On
the
contrary,
a
long
time
before,
at
the
time
of
adoption
of
said
statute
and
by-law
and
at
the
time
of
the
service
of
the
present
action
defendant’s
domicile
was
still
in
the
Municipality
of
Cornwall
in
the
said
Province
of
Ontario;
and
concludes
for
the
dismissal
of
plaintiff’s
action
as
being
badly
founded
in
fact
and
in
law.
The
facts
of
the
case
as
established
by
evidence
may
be
summarized
in
the
following
words—The
defendant
was
born
at
Black
Lake,
Glengarry
County,
Ontario,
March
1,
1870,
where
his
father
and
mother
were
domiciled.
In
1886
he
went
to
Cornwall,
a
few
miles
from
his
birth-place,
to
work
for
his
uncle
and
has
resided
there
continuously
since
that
time.
He
bought
his
uncle’s
business
in
1894
and
has
from
that
day
down
to
the
present
writing
carried
on
as
general
storekeeper
and
realtor.
He
was
married
in
Cornwall
in
1901
and
has
had
five
children
of
whom
one,
a
boy,
died
and
was
buried
there
27
years
ago.
For
a
short
period
after
his
marriage
defendant
and
his
wife
lived
with
the
Phillips’
family
(Mrs.
Phillips
is
his
cousin)
but,
later,
he
bought
a
house
in
Cornwall
for
himself
and
his
family
and
there
they
all
lived
together
until
1922.
In
the
meantime,
his
family
grew
up
and
passed
through
all
the
grades
of
the
Cornwall
schools.
The
question
of
higher
education
presented
itself
and,
naturally
McGill
University
became
the
objective
for
the
children.
Other
considerations,
both
social
and
moral,
were
weighed
and
as
there
were
only
18
Jewish
families
in
Cornwall
at
the
time
and
the
defendant
and
his
wife
being
anxious
to
supervise
their
children’s
education,
keep
them
together
and,
at
the
same
time,
better
their
religious
and
social
opportunities,
the
purchase
of
the
house
in
Westmount
was
effected
and
Mrs.
Jacobs
and
the
children
removed
to
it
bringing
with
them
some
of
the
furniture
from
their
Cornwall
home
and
with
the
exception
of
one
son
who
has
returned
to
Cornwall
and
one
daughter
who
is
married,
are
living
there
still.
At
the
time
of
the
purchase,
the
defendant
declared
to
the
property
agent
that
it
was
for
the
time
only
which
would
suffice
to
educate
his
children.
Since
the
completion
of
his
children’s
education
in
1931
the
house
has
been
for
sale
but
defendant
has
found
no
purchaser
even
at
the
assessed
value
which
is
one-third
less
than
the
purchase
price
and
the
cost
of
improvements.
Defendant’s
home
is
entered
upon
the
assessment
roll
of
Westmount
and
it
is
described
thereon
as
being
his
domicile.
Defendant
did
not
know
that
he
was
on
the
voters’
list
in
Westmount
but,
in
any
event,
he
never
voted
in
Westmount.
His
tax
bills
for
the
Westmount
property
are
sent
to
him
in
Cornwall
and
are
paid
from
there.
The
defendant
has
never
resided
in
Westmount.
He
comes
to
Westmount
on
Sunday
to
visit
his
wife
and
family,
on
Monday
attends
to
all
the
buying
he
requires
for
his
business
in
Cornwall
and
immediately
returns
there.
On
rare
occasions
he
has
remained
over
until
Tuesday.
The
house
in
Westmount
is
the
only
parcel
of
real
estate
belonging
to
defendant
outside
the
limits
of
Cornwall.
After
the
departure
of
Mrs.
Jacobs
and
the
children
for
Westmount,
the
defendant
left
his
house
and
went
again
to
the
Phillips’
residence,
of
which
Mrs.
Phillips
is
the
lessee
and
where
she
lives
with
her
daughter.
Residing
there
also
are
defendant’s
brother
and
defendant’s
eldest
son
who
has
returned
from
Westmount
to
enter
his
father’s
business
and
to
which
one
day
he
will
succeed.
The
defendant
pays
all
the
expenses
of
the
Phillips’
residence
by
an
allowance
and
there
he
entertains
his
friends
and
his
family.
The
defendant
has
extensive
and
also
the
most
valuable
real
estate
holdings
in
Cornwall,
and
he
has
bought
more
property
there
since
the
Westmount
purchase.
Dominion
Income
Tax
is
assessed
upon
and
paid
by
defendant
in
Cornwall.
All
his
financial
and
business
interests
are
there.
It
is
there
that
defendant
exercises
all
political
and
municipal
franchises.
Defendant
fyles
some
40
odd
exhibits,
including
marriage
contract,
title
deeds,
last
will,
correspondence,
insurance
policies,
automobile
license
(first
one
issued
in
1911)
all
describing
him
as
of
Cornwall.
He
is
a
life-governor
of
the
Cornwall
Hospital;
he
is
a
member
of
social
clubs
there
but
of
none
elsewhere.
His
son
is
a
member
of
a
social
club
in
Cornwall.
When
the
Westmount
house
is
sold,
defendant’s
wife
will
return
to
Cornwall,
and,
after
his
death,
defendant’s
last
will
directs
his
executors
to
buy
or
rent
a
home
in
Cornwall
for
his
wife
and
children
that
she
may
live
there
throughout
her
natural
life.
The
following
articles
of
By-law
1337
are
pertinent
to
the
issue—Article
2
(in
part)—An
annual
tax,
called
"‘income
tax’’
is
hereby
imposed
and
shall
be
levied
and
collected
in
addition
to
any
other
tax,
from
May
1,
1935,
upon
any
individual
having
his
usual
residence,
domicile
or
place
of
business
within
the
said
territory.
Article
3—Every
individual,
without
any
previous
notice
or
demand,
shall
deliver
to
the
Director
of
Finance,
on
or
before
May
15,
1935,
a
declaration
under
oath,
in
accordance
to
form
No.
1
forming
part
of
this
by-law,
stating
the
amount
of
the
tax
for
which
he
has
declared
himself
liable
in
his
return
to
the
Federal
Government
for
the
year
1934.
Article
12
(in
part)
.
.
.
.
The
city
.
.
.
.
may
sue
such
taxpayer
before
the
Recorder’s
Court
of
the
City
of
Montreal
to
have
the
amount
of
the
tax
owed
by
him
established
and
to
have
him
condemned
to
pay
the
amount
of
tax
so
established.
And,
as
they
are
the
basis
upon
which
rest
many
of
the
decisions
of
our
Courts,
it
is
now
convenient
to
cite
those
articles
of
the
Civil
Code
bearing
directly
upon
the
facts
of
this
case—
Article
79—"The
domicile
of
a
person,
for
all
civil
purposes,
1S
at
the
place
where
he
has
his
principal
establishment.''
Article
80—"Change
of
domicile
is
effected
by
actual
residence
in
another
place,
coupled
with
the
intention
of
the
person
to
make
it
the
seat
of
his
principal
establishment.’’
Article
81—"
1
The
proof
of
such
intention
results
from
the
declarations
of
the
person
and
from
the
circumstances
of
the
case.”
Article
83
(in
part)—"‘A
married
woman,
not
separated
from
bed
and
board,
has
no
other
domicile
than
that
of
her
husband.
‘
‘
Article
179
(in
part)—The
wife
is
obliged
to
follow
her
husband
and
live
with
him
wherever
he
thinks
fit
to
reside
.
Counsel
for
the
parties
have
submitted
exhaustive
briefs
which,
inevitably
have
much
in
common.
It
becomes
opportune,
then
to
extract
therefrom,
with
all
possible
precision,
the
divergent
viewpoints
giving
rise
to
this
controversy.
Counsel
for
the
plaintiff
avers
that
defendant
is
subject
to
the
tax
because,
although
his
place
of
business
is
in
Cornwall,
his
domicile,
his
ordinary
residence
is
in
Westmount.
Citing
the
related
articles
of
the
Civil
Code,
it
is
stressed
by
counsel
that
whatever
be
the
declarations
of
a
person
as
to
his
domicile,
they
are
to
be
interpreted
according
to
the
circumstances
of
the
case.
Since
1922,
defendant
has
had
no
home
(foyer)
in
Cornwall.
There
he
lives
the
life
of
a
bachelor
and
the
only
difference
between
he
and
a
boarder
is
that,
acknowledging
the
consideration
shown
him
before
and
since
his
marriage
by
his
cousin,
he
makes
her
an
allowance
to
cover
all
the
expenses
of
the
household.
All
his
business
interésts
are
there
and
documentary
evidence
leaves
no
doubt
that
he
is
described
as
being
of
Cornwall.
But
what
he
holds
most
dear,
his
family,
has
resided
in
Westmount
for
14
years.
Not
only
has
he
no
home
in
Cornwall
but
his
declared
intention
is
not
to
establish
one
there
because
he
proposes
retiring
from
business,
leaving
it
to
his
son,
and
spending
the
remainder
of
his
life
travelling
with
his
wife.
An
individual
can
have
but
one
domicile
because
he
can
have
but
one
principal
establishment.
That
does
not
mean
the
commercial
sense
of
the
term—the
place
where
he
makes
most
or
all
of
his
money.
It
does
mean,
though
for
the
head
of
a
family,
the
place
where
his
wife
and
children
live.
Admitting
that
defendant
‘s
domicile
is
in
Cornwall,
he
cannot
deny
that
his
usual
residence
is
in
Westmount.
And
if
that
be
so,
the
tax
is
applicable.
The
purpose
of
the
law
in
setting
out
‘‘domicile,
usual
residence
or
place
of
business’’
was
that
every
individual,
while
enjoying
its
advantages,
should
contribute
to
the
expenses
ot
Montreal.
Counsel
for
the
defendant
urges
that
domicile
results
from
two
things
which
must
concur,
namely,
residence
and
the
intention
of
making
one’s
home.
There
must
be
fact
and
intent.
And
more
specifically,
it
is
insisted,
defendant’s
domicile
of
origin
is
in
Ontario;
that
his
place
of
business
is
there;
that
all
his
financial
interests,
that
his
whole
income
originates
there.
Detendant
pays
his
Dominion
Income
Tax
at
Cornwall
and
all
his
subsistence
accounts.
That
there
he
supervises
and
safeguards
his
material
interests.
Defendant
bought
a
residence
for
his
wife
and
children
in
Westmount
for
sound
educational,
both
religious
and
moral,
reasons
and,
so,
for
a
temporary
period
only.
Arguing
from
the
facts
established
by
the
evidence,
defendant’s
habitual
physical
residence
as
well
as
his
usual
and
principal
residence
is
in
Cornwall,
and
at
no
time
there
was
animus
manendi
or
animus
residendi
in
Westmount.
And
counsel
concludes
by
stressing
that
the
domicile,
usual
residence
and
place
of
business
of
defendant
is
in
the
City
of
Cornwall
in
the
Province
of
Ontario.
The
by-law
enumerates
three
conditions
precedent
to
its
application
to
the
invividual,
namely,
1—Domicile;
2—Usual
residence;
3—Place
of
business.
In
other
words,
within
the
territory
to
which
the
by-law
runs,
the
individual
who
is
domiciled
therein,
or
whose
usual
residence
is
therein,
or
who
has
a
place
of
business
therein,
that
individual
comes
within
its
purview.
The
by-law
is
drawn
in
wide
and
disjunctive
terms
and
as
it
is
a
taxing
ordinance
it
must
receive
a
restrictive
interpretation
and,
consequently,
any
reasonable
doubt
as
to
its
true
import
must
be
resolved
in
favour
of
the
individual
as
against
the
taxing
authority.
Domicile
is
not
to
be
assimilated
to
residence;
one
is
a
right,
the
other,
a
fact.
Domicile
and
residence,
when
accurately
used,
are
not
convertible
terms.
They
cannot
be
synonymous
for
one
may
have
more
than
one
residence
at
the
same
time,
but
only
one
domicile.
And
may
it
be
suggested
here
that,
having
regard
to
the
rules
of
guidance
in
our
Civil
Code,
to
our
own
jurisprudence
and
to
our
own
writers
thereunder
and
to
our
statutory
interpretations
that,
as
to
the
considerable
number
of
references
made
to
writers
under
the
Code
Napoleon
it
might
be
well
to
recall
the
oft-repeated
confession
of
these
same
writers
that
"this
is
the
view
taught
in
the
schools
and
supported
by
the
best
writers,
but
unfortunately
the
Courts
will
not
accept
it’’.
The
difference
between
""la
doctrine
et
la
jurisprudence,”’
Walton,
on
the
Civil
Code,
p.
122.
The
by-law,
as
stated,
distinguishes
"‘domicile’’
from
‘‘usual
residence’’
and
both
from
"‘place
of
business’’.
These
last
words
are
not
embodied
in
plaintiff’s
action
and
are
not
an
issue
between
the
parties.
But
in
plaintiff’s
declaration
it
is
averred
that
defendant
is
indebted
to
plaintiff
because
he
has
his
"‘or-
dinary
(sic)
residence
or
domicile’’
in
Westmount.
The
certified
English
copy
of
the
by-law
speaks
of
‘‘usual’’
not
‘‘ordinary’’
residence
and,
as
indicated
does
not
confound
"
"
usual
residence
’
‘
with
^domicile”.
It
is
proposed,
then,
to
maintain
the
distinction
between
these
terms,
as
the
by-law
so
wills
it,
and
not
concede
their
immixture
by
counsel
for
the
parties.
Domicile.—Every
one
receives
at
birth
a
domicile
of
origin.
It
is
a
basie
principle
that
the
domicile
of
origin
has
persisted
until
a
change
of
domicile
is
proved
clearly
and
unequivocally.
To
prove
the
abandonment
of
the
domicile
of
origin
and
the
acquisition
of
another
domicile
(73.6.
of
choice)
it
is
essential
and
mandatory
that
by
substantial
evidence
there
be
established
the
fact
of
the
change
of
residence,
and,
next,
the
intention
of
making
that
new
residence
his
principal
establishment.
And
the
burden
of
proving
this
change
of
domicile,
animo
et
facto,
lies
upon
those
who
assert
it.
In
view
of
these
recognized
rules,
drawn
from
jurisprudence
of
our
Courts
and
from
our
own
writers,
what
attempt,
if
any,
has
been
made
by
plaintiff
to
found
by
substantial
evidence
its
present
claim
on
domicile?
With
the
exception
of
illegal
proof,
introduced
by
it
into
the
record
with
the
indulgent
courtesy
of
counsel
for
defendant,
embodying—in
a
letter
from
the
secretary-treasurer
of
Westmount—the
gratuitous
statement
that
defendant
is
domiciled
at
the
residence
he
owns
in
that
city,
there
is
not
a
tittle
of
evidence
on
that
point.
And
this
notwithstanding
the
universally
accepted
principle
that
the
onus
of
proof
of
change
of
domicile
is
on
the
party
alleging
it
and
every
presumption
is
to
be
made
in
favour
of
the
original
domicile.
Conversely,
and
without
obligation
on
his
part,
defendant
has
proved
his
domicile
of
origin
was
in
Ontario,
that
he
has
uninterruptedly
retained
it
by
a
life-time
of
residence
therein;
by
exercising
his
political,
municipal
and
social
privileges
there;
by
there
concentrating
the
entity
of
his
financial
interests;
by
making
it
the
seat
of
all
his
investments
and
assets
(less
the
Westmount
property
of
which
he
is
the
involuntary
owner)
;
and
by
directing
his
executors,
in
his
last
will,
to
buy
or
lease
a
home
for
his
wife
and
children
in
Cornwall
that
his
wife
may
live
there
throughout
her
natural
life.
It
is
repeated—as
it
is
a
basic
principle
that
the
domicile
of
origin
has
persisted—,
in
what
more
ample
manner
could
the
defendant
have
lived
up
to
and
fulfilled
the
essentials
of
factum
et
animo
manendi?
Usual
residence.—The
property
in
Westmount
was
acquired
for
the
specific
and
temporary
reasons
determined
by
evidence.
It
was
purchased
for
the
occupancy
of
Mrs.
Jacobs
and
the
children
agreeably
to
the
expressed
intention
of
defendant
at
the
time.
And
when
the
chief
consideration
for
acquiring
{i.e.,
the
education
of
the
children)
was
accomplished,
the
property
was
offered,
and
still
is,
for
sale.
Defendant
never
lived
in
the
house.
He
never
"‘came
to
reside
and
dwell’’.
At
no
time
was
it
his
"settled
abode’’.
At
the
most,
he
sojourned
(temporary
stay)
there
on
Sundays
and
Mondays,
rarely
on
a
Tuesday.
It
was,
with
certainty,
the
usual
residence
of
his
wife
and
family
;
but,
with
equal
certainty,
it
was
not
the
usual
residence
of
defendant.
Misled,
doubtless,
by
the
proper
reasoning
in
several
reported
cases
under
statutes
or
by-laws
dissimilar,
however,
as
to
phraseology
to
By-law
1337
and
which,
perforce,
are
without
present
application,
counsel
for
the
parties,
at
times,—due
to
the
prolixity
of
cited
writers—appear
to
be
in
agreement
that
"‘usual
residence’’
is
synonymous
with
"‘principal
establishment’’
and,
consequently,
with
"‘domicile’’.
If
that,
in
truth,
be
so,
why
does
the
by-law
carry
both
terms?
Why
does
the
by-law
provide
for
the
levy
upon
"‘any’’
individual,
when
by
the
confusion
of
"domicile’’
and
‘‘usual
residence’’,
carried
to
its
logical
conclusion,
only
the
individual
domiciled
in
the
territory
would
come
within
the
by-law,
for
the
individual
having
his
"‘usual
residence’’
therein
would
insist
that
these
words
mean
“domicile
0
.
Full
effect
must
be
given
to
each
word
in
a
statute
and
if
their
meaning
is
clear
it
becomes
unnecessary
to
seek
the
intention
of
the
law-maker.
Mention
has
been
made
of
the
elemen-
tary
repugnaney
between
"domicile’’
and
"residence”.
From
the
language
of
this
by-law,
there
is
similar
repugnancy
to
‘‘usual
residence’’.
The
phrase,
as
framed,
is
disjunctive.
To
disregard
in
it
the
well
known
rule
as
to
construing
‘‘or’’
would
result
in
the
destruction
of
the
larger
scope
of
the
by-law.
The
phrase
is
unmistakable—if
the
‘‘domicile’’
is
within
the
territory,
there
is
no
question;
if
the
‘‘usual
residence’’
is
within
the
territory,
again
there
is
no
question.
In
so
far
as
counsel
for
plaintiff
relies
upon
the
trite
legal
maxim,
ubi
uxor,
ibi
domus—where
the
wife
is,
there
is
the
home
—it
might
be
pointed
out
that,
legally,
home
is
an
indefinite
term
and
for
that
and
other
reasons
the
maxim,
in
reality,
is
but
a
presumption
which
is
not
conclusive
and
which
may
be
rebutted
by
other
circumstances
such
as,
the
retainder
by
the
husband
of
his
domicile
of
origin.
During
the
course
of
his
argument,
and
its
is
repeated
in
his
brief,
counsel
for
plaintiff
suggested
that
since
defendant
is
resident
in
Westmount,
he
should,
in
equity,
contribute
his
share,
in
return
for
the
advantages
he
enjoys,
towards
defraying
their
costs.
The
sufficient
answer
to
this
is
that
the
defendant
in
real
estate
taxes
(including
school
taxes
never
of
benefit
to
his
family)
and
in
water
rates,
is
discharging
any
duty
which,
determined
by
itself,
he
may
owe
to
the
community;
and,
it
may
be
added,
while
paying
his
school
taxes
he
was
simultaneously
meeting
the
tuition
expenses
of
his
children
at
McGill
University,
in
its
turn
a
rate-payer
of
Montreal.
Apart
from
this,
equity
is
not
the
criterion
of
a
taxing
statute;
in
very
fact,
an
extreme
view,
indicating
the
drift
of
opinion,
assimilates
the
taxing
statute
to,
at
least,
the
penal,
if
not
the
criminal,
statute
in
demanding
the
construction
of
any
doubt
against
the
levy.
In
the
result,
and
for
the
short
reason
that
plaintiff
has
failed
to
prove
the
essential
and
pertinent
averments
of
its
declaration
that
defendant
has
or
ever
has
had
either
his
domicile
or
his
usual
residence
in
Westmount,
but
that,
on
the
contrary,
defendant
has
established,
by
substantial
evidence,
both
oral
and
documentary,
that
he
has
preserved
his
domicile
of
origin
in
Ontario
and
also
has
uninterruptedly
made
it
the
situs
of
his
usual
residence,
plaintiff’s
action
must
be
dismissed,
and
is
now
dismissed
with
costs.
Action
dismissed.
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