Robertson
C.J.O.:—This
appeal
and
twenty-eight
other
appeals
more
or
less
similar
in
character,
come
by
way
of
special
case
stated
by
His
Honour
Judge
Barton,
a
Judge
of
the
County
Court
of
the
County
of
York,
under
s.
85
of
the
Assessment
Act,
R.S.O.
1987,
c.
272.
The
respondent
in
each
of
the
cases
operates
a
rooming-house,
where
furnished
rooms
are
let
to
lodgers
or
roomers,
the
operator
in
each
case
taking
care
of
the
rooms
by
cleaning
them,
making
up
beds
and
supplying
linen.
In
1938
respondent
was
assessed
for
$1,800
“business
assessment’’
under
el.
(4)
of
s-s.
(1)
of
s.
8
of
the
Assess-
ment
Act,
this
sum
being
25%
of
the
assessed
value
of
that
part
of
her
premises
devoted
to
the
accommodation
of
roomers.
This
assessment
was
confirmed
by
the
Court
of
Revision,
but
on
appeal,
the
County
Court
Judge
held
that
respondent
was
not
liable
for
business
tax.
The
matter
was
fully
and
ably
argued
in
this
Court
by
counsel
for
the
appellant
and
for
such
of
the
respondents
in
the
several
appeals
as
were
represented
upon
the
hearing.
An
appeal
lies
to
this
Court
in
such
a
ease
as
this
only
from
a
judgment
on
a
question
of
law
or
the
construction
of
a
statute,
a
municipal
by-law,
any
agreement
in
writing
to
which
the
municipality
concerned
is
a
party,
or
an
order
of
the
Ontario
Municipal
Board.
The
learned
County
Court
Judge,
in
holding
respondent
not
liable
to
be
assessed
for
‘‘business
assessment,
””
rested
his
judgment
upon
the
construction
of
cl.
(k)
of
s.
8
of
the
statute.
Clause
(k)
reads
as
follows:
“
(k)
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
(1)
specially
mentioned,
for
a
sum
equal
to
twenty-five
per
centum
of
the
assessed
value.’’
The
learned
County
Court
Judge
held
that
the
words
"‘or
any
business
not
before
in
this
section
or
in
clause
I
specially
mentioned’’
to
be
found
near
the
end
of
el.
(k)
"‘can
only
mean
and
refer
to
any
business
germane
to
those
dealt
with
in
clause
(k).’’
In
so
deciding
the
learned
Judge
would
not
seem
to
have
given
any
weight
to
s-s.
(12)
of
s.
8,
which
is
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.”
These
are
apt
words
to
exclude
the
application
of
the
ejyusdem
generis
rule
in
the
construction
of
el.
(k),
and
to
bring
within
it
every
person
occupying
or
using
land
for
the
purpose
of
carrying
on
a
business,
not
expressly
mentioned,
whether
the
business
is
of
the
same
kind
as
or
of
a
different
kind
from
any
of
the
businesses
expressly
mentioned.
Re
Clark
&
Leamington
(1917)
38
O.L.R.
405.
The
judgment
of
the
County
Court
Judge
cannot,
therefore,
in
my
opinion,
be
sustained
upon
the
ground
set
forth
in
his
reasons
for
judgment
which
he
has
made
part
of
the
special
case.
It
may
be
that
this
question
of
the
construction
of
the
statute,
which
the
learned
Judge
had
decided
in
favour
of
respondent
is
all
that
is
open
for
us
for
consideration
under
this
special
case.
The
question
formally
submitted
by
the
stated
case
is
in
the
following
terms:
"‘I.
Upon
the
facts
above
stated
and
upon
a
true
construction
of
the
Assessment
Act,
particularly
s.
8(1)
(k),
thereof
as
applied
to
such
facts,
was
I
right
in
holding
that
the
respondent
was
not
liable
for
business
assessment
?
‘
Counsel
for
respondent
contended
that
the
question
so
stated
is
not
one
that
s.
85
permits
to
be
stated
for
the
decision
of
this
Court.
It
is
urged
that
the
question
stated
is
a
mixed
question
of
law
and
fact,
or
involves
the
determination
by
this
Court
of
questions
of
fact,
and
that
the
Court
cannot
know,
as
a
matter
of
law,
from
the
facts
stated,
whether
or
not
respondent’s
activities
amount
to
the
carrying
on
of
"‘a
busi-
ness,
‘
‘
nor,
if
she
carries
on
a
business,
whether,
for
that
purpose,
she
occupies
or
uses
land
in
the
sense
in
which
these
words
are
used
in
the
statute.
I
am
inclined
to
agree
that
questions
of
fact
are
involved
in
the
determination
of
these
matters,
if
they
are
not
really
only
questions
of
fact.
I
do
not
think,
however,
that
upon
the
fair
reading
of
the
special
case
these
matters
are
submitted
for
our
determination
in
the
question
stated.
The
case
sets
forth
that
the
respondent
operates
a
rooming-house,
with
some
description
of
the
character
and
extent
of
the
operation.
The
learned
County
Court
Judge
must
himself
have
concluded
that
this
was
a
"‘business’’
in
the
usual
sense
of
the
word,
otherwise
he
would
not
have
applied
the
ejusdem
generis
rule
to
exclude
it
from
cl.
(lc).
If
the
question
is
to
be
regarded
as
a
question
of
law,
there
is
a
good
deal
of
authority
for
holding
that
the
operation
of
a
roominghouse
amounts
to
carrying
on
a
business.
See
Rideau
Club
v.
Ottawa
(1907),
15
O.L.R.
118;
Morton
v.
Palmer
(1881),
51
L.J.Q.B.
7;
Westminster
Council
v.
Southern
R.
Co.,
[1936]
A.C.
511,
esp.
at
p.
529;
Rolls
v.
Miller
(1884),
27
Ch.
D.
71;
Re
Harrison
(1892),
1
Morr.
1;
Tompkins
v.
Rogers,
[1921]
2
K.B.
94.
The
special
case
also
describes
the
premises
which
respondent
operates
as
a
rooming-house,
with
particulars
of
their
assessed
value
and
of
the
number
of
rooms
available
for
the
accommodation
of
roomers,
and
of
the
number
reserved
for
respondent’s
private
use.
All
these
matters
are
stated
as
facts
in
the
special
case,
and
I
think
the
learned
County
Court
Judge
has,
in
effect,
found
as
a
fact
that
respondent
occupies
or
uses
these
premises
for
the
purpose
of
carrying
on
a
rooming-house.
I
am
unable
to
see
that
any
question
of
law
in
this
respect
is
submitted
for
determination
to
this
Court.
As
we
are
not
able
to
agree
with
the
learned
County
Court
Judge
upon
the
one
question
of
law
submitted,
the
appeal
should
be
allowed,
and
the
question
stated
will
be
answered
in
the
negative.
There
will
be
no
order
as
to
costs.
The
same
order
will
be
made
in
the
other
28
cases
argued
with
this
case,
and,
broadly,
these
reasons
will
apply
to
tkem
as
to
this
appeal.
It
would
not
be
right,
however,
to
leave
the
consideration
of
this
case
without
calling
attention
to
the
fact
that
although
the
provision
of
the
Assessment
Act
now
found
in
s.
8(1)(k)
has
been
in
force
since
January
1,
1905,
this
is
the
first
time
that
the
appellant
has
applied
it
to
such
a
business
as
that
of
respondent.
Rooming-houses
where
there
are
not
less
than
eight
rooms
to
let
have
now
been
assessed.
Business
tax
in
such
a
case
as
this
is
substantially
in
lieu
of
income
tax,
and
when
it
is
considered
that
under
el.
(k)
the
amount
of
the
business
assessment
is
25%
of
the
assessed
value
of
the
premises,
it
would
seem
that
the
tax
to
be
paid
is
a
really
burdensome
one,
in
the
case
of
rooming-houses
of
the
more
modest
kind,
and
out
of
all
proportion
to
income
tax
when
directly
applied
by
the
Assessment
Act.
The
total
yearly
revenue
from
eight
moderately-priced
rooms
is
small,
even
if
they
are
all
steadily
occupied
and
paid
for,
and
out
of
it
must
be
provided
taxes
on
the
land,
the
cost
of
repairs
and
upkeep
of
both
building
and
furnishings,
the
cost
of
heat,
water
and
light,
and
the
care
of
the
rooms.
The
net
revenue
must
be
pitifully
small,
and
any
tax
upon
it
is
a
burden.
It
is
not
unreasonable
to
think
that
such
humble
and
unremunerative
businesses
as
these
smaller
rooming-houses
were
not
under
consideration
when
the
business
assessment
to
which
they
are
subject
was
fixed
at
25%
of
the
assessed
value
of
the
premises.
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