HENDERSON
J.
A.:—This
is
an
appeal
upon
a
case
stated
by
His
Honour,
Judge
Macdonell,
County
Judge
of
the
County
of
York,
dated
May
21,
1942,
in
the
following
terms:
"‘The
respondent
is
a
company
occupying
premises
on
Eastern
Ave.
in
the
City
of
Toronto
for
the
purpose
of
manufacturing
soap
and
distributing
its
products.
In
1941,
it
occupied
premises
at
116
Yonge
St.
in
the
said
city,
which
it
called
a
‘Free
Gift
Store’,
and
where
it
displayed
and
distributed
such
articles
as
tableware,
clocks,
clothes
brushes,
and
manicure
sets.
There
were
some
125
different
gifts
which
could
be
obtained
by
persons
by
presenting
coupons
from
wrappers
of
soap
manufactured
by
the
respondent,
or
by
presenting
part
coupons
and
part
cash.
No
article
could
be
obtained
for
cash
only.
"‘The
respondent
sells
its
product
through
wholesale
merchants
and
large
retail
merchants.
It
does
not
sell
direct
to
the
public
nor
to
the
persons
who
present
the
coupons.
Advertisements
are
published
by
the
respondent
advocating
the
collection
of
coupons
from
soap
wrappers,
stating
the
list
of
articles
that
can
be
obtained
in
exchange
for
coupons
or
for
coupons
and
cash,
and
advising
that
such
articles
may
be
obtained
at
the
"Free
Gift
Store’,
116
Yonge
St.,
Toronto.
The
said
articles
are
purchased
by
the
respondent
at
the
wholesale
rates,
and
are
"marked
up’
30%
for
the
purpose
of
fixing
the
number
of
coupons
or
the
number
of
coupons
and
amount
of
cash
at
which
the
article
is
offered.
Each
coupon
has
a
value
known
to
the
respondent
and
this
value
is
included
in
determining
the
cost
of
the
product.
The
occupation
of
the
premises
is
part
of
an
advertising
plan
to
promote
the
sale
of
soap.
"‘A
catalogue
listing
the
above-mentioned
gifts
is
issued
for
the
benefit
of
persons
outside
the
City
of
Toronto.
They
may
send
in
their
coupons
or
their
coupons
and
cash
to
the
manufacturing
premises
of
the
respondent
and
‘gifts’
will
be
forwarded
to
them
in
exchange.
The
store
on
Yonge
St.
is
occupied
at
a
convenient
location
for
persons
in
Toronto
to
see
and
select
from
the
said
articles.
"
The
assessed
value
of
the
premises
occupied
by
the
respondent
in
1941
was
$26,800,
and
the
Court
of
Revision
determined
that
the
respondent
should
be
assessed
for
60%
of
the
assessed
value,
or
$16,080,
under
el.
(e)
of
s.
8(1)
of
the
Assessment
Act,
R.S.O.
1937,
c.
272.
The
respondent
appealed,
and
asked
to
be
assessed
for
25%
of
the
assessed
value,
or
for
$6,700,
under
cl.
(i)
of
the
said
section—‘the
business
of
a
retail
merchant’;
or
under
el.
(k)—‘any
business
not
before
in
this
section
or
in
clause
(l)
specially
mentioned.’
"DECISION
«The
appeal
was
heard
by
me
on
January
15,
1942.
I
allowed
the
appeal
and
reduced
the
assessment
to
$6,700.
"‘REASONS
FOR
MY
DECISION
«The
city
contends
that
the
store
is
part
and
parcel
of
the
business
of
manufacturing
and
that
the
premises
should
be
assessed
under
s.
8
of
the
Assessment
Act
as
those
of
a
manufacturer,
and
that
60%
of
the
assessed
value
should
be
charged.
It
is
contended
by
the
Company
on
the
other
hand
that,
irrespective
of
what
is
the
object
of
opening
the
store,
what
is
being
carried
on
there
is
either
a
retail
business,
in
which
case
the
provisions
of
s-s.
(4)
of
s.
8
govern,
or
that
in
any
event
it
is
not
a
manufacturer
and
that
the
provisions
of
s-s.
(1)(k)
govern,
and
that
what
is
being
carried
on
is
a
business
not
otherwise
mentioned
in
the
section.
"‘It
is
argued
by
counsel
for
the
Company
that
the
general
scheme
of
this
section
of
the
Act
is
to
divide
occupations
into
what
is
actually
done
on
the
premises,
as
well
exemplified
in
s-s.
(1)
(d)
of
s.
8.
I
do
not
think
there
is
any
doubt
that
is
the
general
scheme
of
the
section.
On
the
other
hand,
my
attention
is
called
by
counsel
for
the
city
to
the
decision
in
Ke
Assessment
Act,
Toronto
v.
Belding-Corticelli
Ltd.,
[1939]
3
D.L.R.
73,
O.R.
409,
and
the
Studebaker
case
in
(1919),
49
D.L.R.
326,
46
O.L.R.
78,
which
it
is
contended
established
the
principle
that
branch
stores
operated
as
branches
in
which
the
product
of
the
manufacturer
is
sold
constitute
part
of
the
business
of
manufacturing.
"‘Reading
the
section
of
the
Act
as
a
whole,
it
is
clear
that
what
the
city
should
be
concerned
with
is
the
actual
business
which
is
carried
on
in
the
premises
in
question,
and
not
the
business
of
the
Company
as
a
whole.
"‘Having
reached
this
conclusion
as
to
the
meaning
of
the
Act,
what
I
have
to
decide
is
a
straight
question
of
fact,
whether
what
is
being
carried
on
on
the
premises,
so
far
as
the
city
is
concerned,
is
manufacturing,
or
whether
it
is
a
retail
store
or
something
else.
"‘It
is
always
difficult
to
draw
the
line
in
cases
of
this
kind
but
I
think
it
should
be
drawn
here.
I
must
find
as
a
fact
that
what
is
being
carried
on
is
a
retail
business.
In
any
event,
it
is
far
more
in
the
nature
of
a
retail
business
than
it
is
manufacturing.
It
is
quite
true
the
object
of
the
Company,
in
carrying
on
whatever
business
it
carries
on
at
the
store,
is
advertising
which
may
be
said
to
be
part
of
selling
its
product.
If
the
general
business
of
the
Company
as
a
whole
should
govern
in
every
case
it
is
clear
that
quite
ridiculous
results
might
arise.
For
example,
I
do
not
think
that
the
city
would
agree
that
a
factory
operated
by
a
department
store
such
as
the
T.
Eaton
Co.
should
be
assessed
as
a
retail
store.
"For
these
reasons
I
think
the
appeal
should
be
allowed
and
the
assessment
should
be
entered
at
25%
of
the
value
of
the
property
in
place
of
60%
as
at
present.
"‘QUESTION
"1.
Upon
the
facts
above
stated,
and
upon
a
true
construction
of
the
Assessment
Act,
particularly
s.
8
thereof,
as
applied
to
such
facts,
was
I
right
in
deciding
that
the
assessment
should
be
decided
by
determining
the
actual
business
carried
on
in
the
premises
in
question,
rather
than
by
determining
the
business
of
the
Company
as
a
whole,
and
therefore
that
the
respondent
should
be
assessed
for
business
assessment
for
25%
of
the
assessed
value
of
the
premises
occupied
by
it
at
116
Yonge
St.,
in
the
City
of
Toronto?
"2.
If
Q.
1
is
answered
in
the
negative,
is
the
respondent
assessable
for
business
assessment
in
respect
of
the
said
premises
as
a
manufacturer
for
60%
of
the
assessed
value
of
the
premises
occupied
by
it,
pursuant
to
cl.
(e)
of
s.
8(1)
of
the
said
Act?’’
As
will
be
seen,
the
matter
involves
the
consideration
of
s.
8
of
the
Assessment
Act,
R.S.O.
1937,
c.
272.
I
refer
to
the
foregoing
words
in
the
stated
case:
"‘Reading
the
section
of
the
Act
as
a
whole,
it
is
clear
what
the
city
should
be
concerned
with
is
the
actual
business
which
is
carried
on
in
the
premises
in
question,
and
not
the
business
of
the
Company
as
a
whole.
‘‘Having
reached
this
conclusion
as
to
the
meaning
of
the
Act,
what
I
have
to
decide
is
a
straight
question
of
fact,
whether
what
is
being
carried
on
on
the
premises,
so
far
as
the
city
is
concerned,
is
manufacturing,
or
whether
it
is
a
retail
store
or
something
else.’’
What
is
necessary
under
s.
8
of
the
Assessment
Act
is
to
determine
the
real
character
of
the
business
for
the
purpose
of
which
the
land
is
occupied
or
used,
It
may
be
necessary
in
some
cases
to
look
beyond
the
activities
upon
the
premises
to
ascertain
the
real
character
of
the
business.
For
example
in
Re
Studebaker
Corp.
c
Windsor,
49
D.L.R.
326,
where
the
premises
were
used
to
display
and
sell
motor
cars,
the
Court,
looking
beyond
that,
determined
that
this
was
merely
one
part
of
the
business
of
a
manufacturer,
although
no
manufacturing
was
done
there.
In
Re
Assessment
Act,
Toronto
v.
Belding-
Corticelli
Ltd.,
[1939]
3
D.L.R.
73,
where
the
premises
were
principally
used
for
supplying
the
wholesale
trade
with
goods
of
the
occupant
‘s
manufacture,
the
Court
held
that
the
occupant
should
be
assessed
for
business
assessment
as
a
manufacturer.
In
the
present
case
the
County
Judge
has
found
"‘the
occupation
of
the
premises
is
part
of
an
advertising
plan
to
promote
the
sale
of
soap.’’
Respondent
is
a
manufacturer
of
soap.
The
respondent
itself
publicly
announces
these
premises
as
a
"‘Free
Gift
Store’’,
and
the
stated
case
sets
forth
the
manner
in
which
it
is
used
to
promote
the
sale
of
soap
of
respondent’s
manufacture.
To
classify
the
business
for
which
the
premises
are
occupied
as
that
of
a
retail
business
is
simply
to
close
one’s
eyes
to
its
real
character.
The
business
carried
on
is
part
of
the
respondent’s
manufacturing
business
as
the
learned
County
Judge
himself
has
said.
I
am
therefore
of
opinion
that
the
appeal
should
be
allowed
with
costs,
and
that
the
assessment
appealed
from
should
be
restored.
Appeal
allowed.
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