Russell Industries Limited v. City of Toronto, [1940-41] CTC 237

ROBERTSON C.J.O.:—This is an appeal from the order of the Ontario Municipal Board of January 14, 1941, dismissing the appeal of the appellant from the decision of Judge Macdonell of the County Court of the County of York who had dismissed an appeal from the Court of Revision of the City of Toronto confirming the assessment of the appellant for income for the year 1939 at the sum of $263,669.

The appellant holds a lease from Canadian Acme Serew and Gear Ltd. of certain rooms in a building at 207 Weston Road South in Toronto, where the lessor has its manufacturing business. The rooms are used as offices by certain of appellant’s executive officers, and the meetings of its directors are held there and this is its head office. The appellant claims that it occupies these rooms for the purpose of its business and that it is liable to business assessment under s. 8 of the Assessment Act, R.S.O. 1937, e. 272, and further that all its income is derived from the business in respect of which it is so assessable under s. 8. Appellant was not assessed for business assessment, and it does not appear that appellant appealed against the omission to so assess it, but the test whether appellant is liable to income assessment under s. 9 ( 1 ) ( b ) is not actual assessment under s. 8 but assessability.

The evidence both before the County Judge and before the Municipal Board largely related to the use made by appellant of the rooms in question and the nature of its occupation of them.

Appellant was itself at one time the owner of a large manufacturing business, but some years ago it disposed of it. Appellant now is the chief owner of the shares of three other companies which have for convenience been called its "‘subsid- iaries” in these proceedings. The most important of these so- called subsidiaries is the Can. Cycle & Motor Co. Ltd. from which appellant received in dividends in the year 1938 $270,000 of the total income of $298,227.85 for which it is assessed. Canada Cycle & Motor Co. has its own offices and manufacturing plant in the Town of Weston, and the shares that appellant holds in that company were acquired as the consideration, or part of the consideration, for the sale by appellant of that manufacturing business to Can. Cycle & Motor Co. No income was derived by appellant from either of the other subsidiary companies as they paid no dividends in 1938. Appellant has also a substantial amount of capital invested in the shares of other companies which it has acquired as ordinary investments, and it sells any of these shares that cease to be desirable and buys others as an investment of capital. From these investments it received in dividends in 1938 $21,478.52 of the income assessed. The balance of the income of 1938 is made up of minor items of interest, dividends on life insurance and premiums on United States funds.

Appellant contends (1) that at its offices at 207 Weston Road South it directs or participates in carrying on the business of all its subsidiaries and therefore that it occupies these offices for the purpose of a manufacturer and derived the dividends it received from Canada Cycle & Motor Co. from that business so carried on by it, (2) that in any event it carries on at these offices its own affairs, which include the care and supervision of its interests in all its subsidiaries and of its investments in other companies and the disposal of investments, and the making of new investments, and generally the doing of all that requires to be done in looking after its own capital and the earning of an income. Appellant claims that even if it fails on the first point all its income is derived under the second head and that whatever name may be given to its business it is "business

within the broad terms of s. 8, and as it is carried on at these premises there is liability to business assessment and no liability to assessment for income.

The County Judge dealt more particularly, if not exclusively, with the first of these contentions, and while we have not before us the notice of appeal to the County Judge it would appear from the reasons for judgment that no other point was taken before him. He found as a fact that appellant did not carry on the business of managing, controlling or operating its subsidiaries and therefore did not carry on any business on the premises in question within s. 8 of the Assessment Act. The Municipal Board on the other hand dealt only with the second contention, assuming (it would appear erroneously) that appellant had abandoned the first contention.

The finding of the Board is expressed in these terms: "The Board finds that the appellant company was not carrying on a business within the meaning of Section 8 of ‘The Assessment Act’ at the offices mentioned in the lease at 207 Weston Road South and that even if it were carrying on a business at those premises, the profits received by it from the Canada Cycle and Motor Company Limited and from its other investments were not received by it by reason of that business.”

Respondent took the preliminary objection before this Court that the questions raised on this appeal are questions of fact and that no appeal lies under s. 84(6) of the Act.

Whether or not appellant oecupies its offices for the purpose of the manufacturing business of its subsidiaries, or of any of them, is in my opinion a question of fact which the County Judge determined against appellant. The Municipal Board did not discuss this question, considering that appellant no longer raised it, but the question being formally before it the Board is to be taken as having adopted the finding of fact of the County Judge in this regard. Appellant did not ask to be allowed to have the matter sent back for consideration of this question by the Board. An appeal does not lie to this Court upon the question, which is wholly a question of fact : Toronto v. Famous Players Canadian Corp., [1935], 3 D.L.R. 327, O.R. 314; Internat T Metal Industries Ltd. v. Toronto, ante, page 102.

With respect to appellant’s second contention, to which alone the Municipal Board gave consideration, the finding of the Municipal Board with respect to the carrying on of a business is that "Appellant Company was not carrying on a business within the meaning of s. 8 of the Assessment Act at the offices mentioned.’’ It may be, as counsel for appellant contends, that a finding so expressed is not in any event a simple finding of fact, for it involves the construction of the statute, and much may depend upon what the Board considered to be the meaning of s. 8. It would appear that there may be some support for this contention to be found in some of the reported cases. I do not think it is necessary, however, to further consider the point, for in my opinion the appeal may be disposed of on another ground. It is not enough that appellant should succeed in establishing that it is assessable under s. 8. It must also appear that the income for which it is assessed is derived from the business in respect of which it is assessable under s. 8. This also is a question of fact, and the finding of the Board upon it is against appellant.

Counsel for appellant criticized the terms in which the Board expressed its finding on this question. The Board may have been unfortunate in expressing its finding, but its meaning is plain enough. When the Board said "‘even if it were carrying on a business at those premises’’ it might have more accurately expressed its meaning by saying, ‘‘even if the purpose for which appellant used or occupied those premises could be said to be the carrying on of a business,’’ or some similar form of expression. The Board had in mind only that which appellant had contended amounted to ""carrying on business,’’ and the Board plainly found that the income for which appellant is assessed was not derived from that source, whether it is or is not properly called a ‘‘business’’ within s. 8.

As this is undoubtedly a finding of fact, it is not within the province of this Court to determine whether or not the finding is right, or to say whether we disagree with it in whole or in part. The decision of the Board on that matter is conclusive.

The appeal is therefore dismissed with costs.

Appeal dismissed.