ROBERTSON
C.J.O.:—This
is
an
appeal
by
the
County
of
Lambton
from
the
judgment
of
Judge
Miller,
Judge
of
the
County
Court
of
the
County
of
Lambton,
dated
December
10,
1941,
on
an
appeal
by
the
Village
of
Point
Edward
from
the
equalization
of
local
assessments
in
the
County
made
by
the
County
Council
by
its
by-law
passed
on
June
7,
1941.
The
principal
matter
with
which
we
are
concerned
on
this
appeal
relates
to
the
powers
of
the
County
Council
on
the
equalization
of
assessments
under
s.
90
of
the
Assessment
Act,
R.S.O.
1937,
c.
272,
where
valuators
have
been
appointed
in
an
earlier
year,
under
s.
89,
and
have
made
their
report.
There
is
also
a
question
with
reference
to
the
equalization
of
business
assessments.
In
June
1936
the
County
Council
by
by-law
appointed
two
valuators
to
value
the
real
property
within
the
County,
as
provided
by
s.
89
of
the
Assessment
Act.
In
September
1936
the
valuators
made
their
report.
This
report
was
adopted
at
a
meeting
of
the
County
Council
held
on
December
2,
1936,
and
on
December
5,
1936
the
County
Council
passed
its
equalization
by-law
of
that
year,
based
upon
the
valuators’
report.
The
aggregate
valuation
of
real
property
for
the
whole
County
made
by
the
valuators
was
$30,084,500.
The
valuation
of
assessable
real
property
in
Point
Edward
was
$324,900.
No
new
valuation
has
been
obtained
from
the
valuators
since.
By
the
equalization
by-law
passed
by
the
County
Council
on
June
7,
1941,
from
which
this
appeal
arises,
the
aggregate
equalized
assessments
for
the
whole
County
are
the
sum
of
$30,084,500.
Business
assessments,
as
well
as
real
property,
are
included
in
this.
The
assessment
of
Point
Edward
is
equalized
at
$600,000.
In
three
other
local
municipalities
there
has
been
some
increase
in
the
equalized
assessments.
In
two
local
municipalities
there
has
been
no
change,
and
in
the
ease
of
all
the
remaining
local
municipalities
there
have
been
reductions
which
absorb
the
increases
made
in
respect
of
Point
Edward
and
the
three
other
municipalities
where
there
was
an
increase.
The
respondent
appealed
to
the
County
Judge
and
the
County
Judge
held
that
the
equalization
should
have
been
made
upon
the
basis
of
the
valuators’
report
made
in
1936,
so
far
as
real
property
is
concerned,
meaning
thereby
that
the
same
proportions
should
be
observed
in
allotting
to
each
of
the
respective
local
municipalities
its
share
of
the
aggregate
real
property
assessments
for
the
whole
County.
He
also
dealt
with,
and
equalized,
the
business
assessments
separately.
That
is
a
matter
that
can
best
be
dealt
with
by
itself.
The
determination
of
each
of
these
matters
depends
upon
the
proper
construction
of
the
relevant
provisions
of
the
Assessment
Act,
and
no
part
of
that
Act
is
more
obscure
and
difficult
to
interpret
with
any
feeling
of
assurance
than
the
sections
that
deal
with
equalization.
Subsection
(1)
of
s.
89,
which
provides
for
the
appointment
of
valuators,
is
as
follows:
<f
89(l)
The
council
of
every
county
may
appoint
two
or
more
valuators
for
the
purpose
of
valuing
the
real
property
within
the
county,
and
it
shall
be
their
duty
to
ascertain
in
every
fifth
year
at
furthest,
the
value
of
the
same
in
the
manner
directed
by
the
county
council,
but
the
valuators
shall
not
exceed
the
powers
possessed
by
assessors,
and
the
valuation
so
made
shall
be
made
by
the
county
council
the
basis
of
equalization
of
the
real
property
for
a
period
not
exceeding
five
years.”
In
the
opinion
of
the
County
Judge,
when
the
County
Council
has
obtained
a
valuation
under
this
provision,
it
"must
adopt
the
valuation
of
the
County
valuators
as
the
basis
for
equalization
.
.
.
They
cannot
amend
it
to
what
they
think
it
should
have
been
and
make
such
amended
valuation
the
basis
of
their
equalization
.
.
.
The
word
'basis’
as
used
in
this
section
means,
and
can
only
mean,
the
foundation,
the
whole
and
only
foundation
of
the
apportionment.”
It
is
not
disputed
that
in
the
equalization
made
in
1941
the
County
Council
did
not
proceed
as,
in
the
opinion
of
the
County
Judge,
the
statute
required
that
it
should.
It
is
not
entirely
clear,
however,
upon
what
basis
the
Council
did
proceed.
Evidence
was
given
on
the
appeal
to
the
County
Judge
with
reference
to
the
proceedings
of
the
Equalization
Committee
of
the
Council,
whose
report
was
adopted
and
acted
upon
in
passing
the
equalization
by-law,
but
it
does
not
explain
at
all
definitely
how
the
amount
of
$600,000,
at
which
the
assessment
of
Point
Edward
was
equalized,
was
arrived
at.
Certain
matters
of
importance
are,
however,
disclosed
that
seem
to
have
provided
ground,
in
the
opinion
of
the
County
Council,
for
its
action.
There
have
been
substantial
additions
to
the
assessable
real
property
in
the
Village
of
Point
Edward
since
the
valuation
made
in
1936.
An
international
bridge
connecting
Point
Edward
with
Port
Huron
in
Michigan,
had
been
constructed,
and
part
of
it
became
assessable
in
Point
Edward,
as
determined
in
Re
Michigan
State
Bridge
Com’n
v.
Point
Edward,
[1939],
3
D.L.R.
533,
O.W.N.
387.
The
provincial
Legislature,
after
this
decision,
by
statute
fixed
the
amount
of
municipal
taxes
that
the
Bridge
Corporation
should
be
liable
to
pay
annually
to
the
Village
of
Point
Edward
at
$5,000,
but
to
that
extent
it
is
still
assessable
in
respect
of
the
international
bridge.
There
are
also
certain
manufacturing
industries
in
Point
Edward
that
had
been
granted
exemption
in
whole
or
in
part
from
taxation
for
a
fixed
period,
that
have
since
become
fully
assessable
by
the
expiry
of
the
period
of
exemption.
Without
in
any
way
departing
from
the
valuation
made
by
the
valuators
in
1936
of
what
was
then
assessable
in
Point
Edward,
there
were
these
two
classes
of
property
which
had
not
been
included
in
that
valuation,
and
yet
in
1940
increased
substantially
the
value
of
the
assessable
real
property
in
Point
Edward.
For
1936
the
total
"‘value
of
buildings”
on
the
assessment
roll,
according
to
the
Village
Clerk’s
return,
was
$366,826.
For
1940
the
‘‘value
of
buildings’’
shown
on
the
roll
was
$1,238,357.
A
large
part
of
the
increase
was
entered
on
the
assessment
roll
as
for
property
of
the
provincial
Government,
but
there
still
remains
a
substantial
increase
attributable
to
properties
upon
which
taxes
were
payable
to
the
Village.
The
point
at
issue
would
seem
to
be
whether
the
County
Council
was
prevented
by
the
valuation
obtained
in
1936
from
considering
this
substantial
addition
to
the
value
of
assessable
property
in
the
ease
of
Point
Edward,
in
equalizing
the
real
property
assessments
in
the
County.
The
County
Judge
has
held
that
the
County
Council
was
so
prevented.
I
have
difficulty
in
giving
to
the
provisions
of
s.
89(1)
the
controlling
effect
that
the
County
Judge
has
attributed
to
them.
Section
90
continues
to
provide
that
‘‘the
council
of
every
county
shall,
yearly
.
.
.
.
examine
the
assessment
rolls
of
the
different
townships,
towns
and
villages
in
the
county,
for
the
preceding
financial
year,
for
the
purpose
of
ascertaining
whether
the
valuations
made
by
the
assessors
in
each
township,
town
or
village
bear
a
just
relation
one
to
another,’’
and
the
County
Council
is
empowered
to
give
effect
to
its
opinion
in
the
annual
equalization
by-law,
subject
to
appeal.
The
learned
County
Judge
has
held
that
where
valuators
have
been
appointed
under
s.
89(1),
and
have
made
their
report,
the
powers
that
the
County
Council
is
to
exercise
each
year
under
s.
90(1)
are
reduced
to
the
making
of
mere
arithmetical
calculations
to
apportion
the
aggregate
of
the
real
property
assessments
for
the
whole
County
among
the
several
local
municipalities
in
the
proportions
assigned
to
them
respectively
by
the
valuators’
report.
The
learned
Judge
suggests
that
"‘the
correct
interpretation
of
the
statute
would
be
more
clear
if,
in
the
arrangement
of
the
statute,
s.
89
followed
s.
90,
as
in
point
of
time
it
did
so
follow.
‘
‘
It
seems
to
me
that
it
is
more
important
to
know
that
when
the
original
of
the
present
s.
89
was
enacted
by
29-30
Vict.,
e.
51,
s.
175,
it
was
not
placed
in
the
Assessment
Act
at
all,
but
in
that
part
of
the
Municipal
Act
that
deal
with
"Officers
of
Municipal
Corporations’’,
such
as
the
Clerk,
Treasurer,
Assessors
and
Collectors.
There
it
remained
for
almost
40
years
and
was
only
translated
to
its
present
position
as
part
of
the
Assessment
Act
on
the
revision
of
the
Assessment
Act
in
1904
[e.
23].’
The
present
s.
90(1)
stood
throughout,
much
in
its
present
form
in
its
place
in
the
Assessment
Act.
No
doubt
it
was
the
intention
that
valuators,
like
other
officers
of
the
municipality,
should
hold
office
until
removed
by
the
council.
The
provisions
of
s.
89(1)
that
‘‘it
shall
be
their
duty
to
ascertain
in
every
fifth
year
at
furthest,
the
value’’
ete.
plainly
contemplates
a
continuance
in
office
for
more
than
the
purpose
of
a
single
valuation.
The
by-law
of
the
County
of
Lambton
appointing
valuators
in
1936,
however,
contains
expressions
that
seem
to
limit
it
to
an
appointment
for
that
year’s
valuation,
and
no
more.
In
1866
when
the
present
s.
89(1)
had
its
origin,
personal
property,
as
well
as
real
property,
was
subject
to
assessment,
and
when
first
enacted
the
section
provided
that
the
valuators
should
value
both
the
real
and
personal
property.
In
1873
(36
Vict.,
ce.
48,
s.
210)
this
was
changed
and
the
valuation
was
confined
to
real
property.
The
equalization
of
personal
property
was
directed
to
be
"‘as
heretofore.’’
This
also
stood
until
the
Assessment
Act
of
1904,
when
the
assessment
of
personal
property
was
dropped,
and
business
assessment
was
introduced.
I
do
not
doubt
that
it
was
intended
by
the
Legislature
that
the
valuation
made
under
s.
89(1)
should
play
an
important
part
in
the
equalization
directed
to
be
made
yearly
by
s.
90(1).
It
is
to
"be
made
by
the
county
council
the
basis
of
equalization
of
the
real
property
for
a
period.”
But
does
that
necessarily
import
that
the
County
Council
shall
consider
nothing
else?
Is
there
nothing
more
than
mathematical
calculation
left
to
the
Council?
The
County
Council
is
required
yearly
to
examine
the
assessment
rolls
of
the
several
local
municipalities,
and
if
on
such
examination
it
should
appear
that
an
important
and
valuable
industry
has
removed
from
one
local
municipality
to
another
within
the
County,
thereby
gravely
disturbing
the
relation
there
had
been
between
the
respective
values
of
the
assessable
real
estate
within
them,
or
if,
as
here,
valuable
property
that
was
exempt
from
assessment
and
was
therefore
not
included
by
the
valuators
in
their
report,
should
cease
to
be
exempt
from
assessment,
can
the
County
Council
do
nothing
about
it?
It
is
difficult
to
see
why
the
Assessment
Act
should
require,
as
it
has
required
since
1866,
that
every
County
Council
shall
yearly
examine
the
assessment
rolls
of
the
local
municipalities
in
the
County
for
the
preceding
financial
year,
with
no
exception
made
of
such
County
Councils
as
shall
have
obtained
valuations
under
s.
89(1),
if
the
existence
of
such
a
valuation
makes
the
examination
of
the
assessment
rolls
an
empty
performance.
In
my
opinion
it
is
quite
possible
to
give
all
proper
effect
to
the
declaration
of
s.
89(1)
that
the
valuation
shall
be
made
the
basis
of
equalization
of
the
real
property,
and
still
retain
in
the
County
Council
the
power
and
duty
to
bring
into
the
equalization
assessable
real
property
that
has
come
into
existence
since
the
valuation,
as
in
the
case
of
the
international
bridge
at
Point
Edward,
and
real
property
that
was
not
assessable
when
the
valuation
was
made
and
has
since
become
assessable.
The
valuation
still
remains
the
basis
of
equalization
of
all
the
real
property
that
fell
within
its
scope.
I
see
nothing
in
the
statutory
provisions
that
requires
any
broader
effect
to
be
given
to
the
valuation
as
the
basis
of
the
equalization.
The
learned
County
Judge
has
cited
the
language
of
Harrison
C.J.
in
Re
Revell
&
Corporation
of
the
County
of
Oxford
(1877),
42
U.C.Q.B.
337,
on
the
effect
to
be
given
to
the
term
"‘the
basis.’’
That
learned
Judge
was
there
dealing
with
a
quite
different
subject-matter,
and
the
term
was
used
in
another
context,
which
necessarily
affected
its
interpretation.
The
question
in
the
case
cited
was
whether
the
County
rate
should
be
apportioned
on
the
basis
of
the
rolls
for
1876
or
for
1877.
Of
necessity
it
could
be
only
one
or
the
other.
I
have
great
respect
for
the
opinion
of
the
learned
County
Judge
from
whose
decision
the
present
appeal
is
taken,
but
I
am
unable
to
agree
in
his
conclusion
that
the
County
Council
exceeded
its
powers
in
giving
effect
to
its
opinion
that
the
proper
equalization
of
the
local
assessments
in
1941
required
that
they
should
increase
the
assessment
of
Point
Edward,
in
view
of
the
substantial
additions
to
the
assessable
real
property
of
that
municipality.
There
is
another
ground
upon
which,
in
my
opinion,
the
contention
that
the
County
Council,
in
1941,
was
bound
by
the
report
of
the
valuators,
fails.
The
valuation
was
made
in
1936,
and
was
used
in
making
the
equalization
of
that
year.
It
is
true
that
the
valuators’
report
was
not
made
until
September
1936,
and
the
equalization
by-law
upon
which
the
County
rate
for
1937
was
apportioned,
was
not
passed
until
December
1936.
The
statute
(s.
89(1))
provides
that
it
shall
be
the
valuators’
duty
to
ascertain
the
value
‘‘in
every
fifth
year
at
furthest,
’
’
and
that
the
valuation
shall
be
made
the
basis
of
equalization
"‘for
a
period
not
exceeding
five
years.”
Now,
it
seems
to
me
that
that
definition
of
the
period
as
one
"‘not
exceeding
five
years’’
lacks
somewhat
in
definiteness.
Two
years
or
three
or
four
years
would
answer
it
as
well
as
five.
It
was
intended,
I
think,
that
the
County
Council
itself
should
direct
for
how
long
the
valuators’
report
should
be
made
the
basis
of
equalization,
so
long
as
it
did
not
exceed
the
period
of
five
years
without
either
a
new
valuation,
or
an
extension
of
the
term
under
s.
89(2).
In
the
present
instance
the
County
Council
adopted
the
valuators’
report
by
by-law
passed
on
December
5,
1936,
and
enacted
that
the
valuation
"‘shall
be
the
basis
of
equalization
of
the
real
property
for
a
period
not
exceeding
five
years.”
These
are
the
very
words
of
the
statute,
and
they
have
the
same
lack
of
definiteness
and
seem
to
me
to
leave
the
length
of
the
period
for
which
the
valuation
shall
be
the
basis
of
equalization,
undetermined.
In
that
case
the
County
Council
of
1941
was
as
free
as
any
council
to
determine
the
length
of
the
period,
and
to
disregard
the
valuation,
if
it
so
determined.
We
are,
however,
referred
to
the
action
of
the
County
Council
in
June
1941.
There
was
an
Equalization
Committee,
and
on
May
22nd
that
Committee
resolved
to
report
to
the
Council
"‘that
we
continue
the
present
equalized
assessment
of
$30,-
084,500.
for
the
coming
five
years
for
the
purpose
of
levying
rates
against
the
various
municipalities
in
the
county
system
in
the
County
of
Lambton.’’
The
Committee,
by
its
next
resolution,
recommended
to
the
Council
"‘that
at
a
fixed
equalized
county
assessment
of
$30,084,500.
for
the
County
of
Lambton,
Sarnia
Township
be
increased
to
$2,347,000.,
Forest
to
$570,000,
Point
Edward
to
$600,000,
Thedford
to
$160,000,
and
that
benefit
of
increase
be
distributed
to
all
other
municipalities,
except
Forest,
Sarnia,
Point
Edward,
Thedford,
Bosanquet
and
Plymp-
ton,
and
that
a
by-law
be
passed
at
this
session
of
the
Lambton
County
Council
according
to
the
following
schedule.’’
There
follows
a
schedule
setting
forth
an
equalization
exactly
as
set
forth
in
the
equalization
by-law
that
was
tlie
subject
of
appeal
to
the
County
Judge.
The
County
Council
adopted
the
report
of
the
Committee
on
June
6,
1941.
It
is
argued
that
by
the
foregoing
the
County
Council
extended
the
time
during
which
the
valuation
should
continue
to
be
made
the
basis
of
equalization
of
the
real
property,
pursuant
to
s.
89(2).
I
do
not
see
how
respondent
can
make
that
contention.
Even
if
the
first
of
the
above-mentioned
resolutions,
standing
alone,
were
capable
of
being
taken
as
coming
within
s.
89(2),
when
it
is
accompanied
by
the
second
resolution—and
the
County
Council
adopted
the
whole
report
by
one
motion—it
is
evident
that
the
County
Council
intended
by
its
action
to
do
the
very
thing
that
respondent
says
it
cannot
do
in
face
of
the
valuation.
It
is
reasonably
plain
that
the
Committee
and
the
whole
County
Council
as
well,
misunderstood
the
whole
matter.
It
seems
to
have
been
thought
that
the
figure
$30,084,500,
which
was
the
aggregate
value
of
the
real
property
in
the
County,
as
reported
by
the
valuators
in
1936,
was
a
total
sum
fixed
for
the
equalized
assessment,
no
matter
what
the
aggregate
valuation
for
the
whole
County,
as
made
by
the
assessors
in
their
annual
assessment,
might
be.
This
was
in
disregard
of
the
express
direction
of
s.
90(1),
at
its
conclusion.
It
would
appear
from
the
inclusion
of
the
two
resolutions
in
the
one
report
that
the
Committee
considered
that
so
long
as
it
retained
the
figure
of
$30,084,500,
for
the
aggregate,
it
was
permissible
to
alter
at
will
the
several
sums
appropriated
to
the
local
municipalities
that
went
to
make
up
that
aggregate.
Further,
the
Committee,
by
its
first
resolution,
dealt
not
with
the
valuation
which,
s.
89(2)
authorizes
it
to
deal
with,
but
with
"‘the
present
equalized
assessment.
‘
‘
A
more
complete
misunderstanding
of
the
whole
matter
it
would
be
difficult
to
achieve.
In
my
opinion
it
is
impossible
to
regard
what
was
done
as
anything
authorized
by
s.
89
(2).
On
the
contrary,
if
respondent’s
contention
is
sound,
that
the
County
Council
could
not
vary
the
relative
proportions
determined
by
the
valuators
so
long
as
their
report
formed
the
basis
of
equalization,
then
the
action
of
the
County
Council
in
June
1941
was
a
rejection
of
that
valuation
as
the
basis
of
equalization,
just
as
effectively
as
if
the
Council
had,
in
express
terms,
declared
that
the
period
in
which
it
should
be
made
the
basis
of
equalization,
was
determined.
There
is
still
another
ground
upon
which
I
think
it
must
be
held
that
the
period
had
expired.
As
it
should
be
computed,
the
five
year
period
had
elapsed.
The
valuation
was
first
used
as
the
basis
for
equalization
in
1936.
The
fifth
year
in
which
it
was
used
was
1940.
It
could
not
again
be
made
the
basis
of
equalization
in
1941
unless
the
period
of
five
years
was
extended
under
s.
89(2),
and
I
have
already
stated
my
reasons
for
thinking
that
had
not
been
done.
It
was
pointed
out,
however,
that
the
valuators’
report
was
not
made
until
September
1936,
and
that
the
equalization
by-law
for
that
year
which
was
based
upon
it,
was
not
passed
until
December
1936.
It
is
argued
that
June
1941,
when
the
equalization
by-law
now
in
question
was
passed,
is
well
within
the
period
of
five
years.
In
my
opinion
the
years
are
not
to
be
computed
in
that
way.
An
equalization
by-law
is
required
by
the
statute
to
be
passed
in
each
year.
The
valuators
are
to
ascertain
the
values
‘‘in
every
fifth
year
at
furthest.’’
The
true
interpretation
of
the
statute,
it
seems
to
me,
is
that
the
valuation
is
to
be
made
the
basis
of
equalization
in
not
more
than
five
years.
The
precise
date
in
any
year
on
which
the
valuation
is
made
or
the
equalization
by-law
is
passed
is
not
an
important
matter
in
the
computation
of
the
period
of
five
years.
I
am
of
the
opinion
that
on
this
ground
also
the
County
Council
was
not
required
to
make
the
valuations
obtained
in
1936
the
basis
of
equalization
in
1941.
The
matter
of
business
assessments
has
also
to
be
dealt
with.
It
does
not
appear
clearly
how
the
County
Council
dealt
with
them
or
whether
it
dealt
with
them
at
all.
The
figure,
$30,084,-
000,
which
the
Council
took
as
the
aggregate
of
all
the
local
assessments
as
equalized,
was,
of
course,
the
amount
found
by
the
valuators
in
1936
to
be
the
aggregate
value
of
the
real
property
in
the
County.
There
were
no
business
assessments
included
in
the
valuators’
total.
The
County
Judge,
for
the
purposes
of
his
order,
took
the
aggregate
valuations
of
real
property
for
the
whole
County
as
made
by
the
assessors
in
the
year
1940,
and
allotted
it
among
the
local
municipalities
in
proportion
to
the
respective
values
found
for
the
local
municipalities
by
the
valuators
in
1936.
He
dealt
separately
with
business
assessments.
He
made
certain
alterations
in
the
total
amounts
of
the
business
assessments
shown
on
the
assessment
rolls
of
the
several
local
municipalities
to
produce
what
was,
in
his
opinion,
a
just
relation
one
to
another,
and
added
the
amounts
so
determined
for
each
local
municipality
to
its
equalized
real
property
assessment
as
he
had
made
it.
The
only
question
that
is
raised
in
respect
to
this
procedure,
so
far
as
business
assessments
are
concerned,
is
whether
business
assessments
are
to
be
equalized
at
all,
or
whether
to
comply
with
s.
98(1),
business
assessments
are
simply
to
be
taken
as
they
appear
on
the
assessment
rolls
of
the
several
local
municipalities.
No
help
can
be
got
from
s.
98(1)
for
the
word
"equalized”,
where
it
appears
near
the
end
of
that
subsection,
may
be
applicable
only
to
the
words
‘‘assessment
of
real
property”,
which
it
immediately
precedes,
or
it
may
apply
also
to
the
words
business
assessments’’
which
follow
them.
One
finds
the
usual
lack
of
assistance
from
other
sections.
Section
93
is
an
important
section,
intended
to
be
of
wide
general
scope,
yet
in
directing
how
the
County
Council
shall
proceed
in
apportioning
the
County
rate,
it
says
that
the
Council
shall
"make
the
assessment
of
property
equalized
in
the
preceding
year
the
basis
upon
which
the
apportionment
is
made.
”
"
"
Business
assessment
is
not
an
‘assessment
of
property’
”.
See
s.
8.
One
turns
to
s.
91(4)
where
the
powers
of
the
Court
constituted
to
hear
appeals
are
defined.
It
provides
that
‘‘the
court
shall
equalize
the
whole
assessment
of
the
county.
‘
‘
This
is
wide
enough
to
include
business
assessment,
but
it
is
also
wide
enough
to
include
income
assessments
which,
by
s.
98,
are
definitely
excluded.
One
must
regard
s.
90(1)
as
of
prime
importance
in
considering
what
is
to
be
equalized,
for
it
contains
the
authority
given
the
County
Council
to
proceed
to
equalize
assessments.
Unfortunately,
the
significant
word
there
is
‘‘valuations’’.
That
is
the
word
used
in
1853,
when
this
provision
was
first
enacted,
and
it
has
not
been
altered,
although
‘‘business
assessments’’
were
introduced
in
1904.
While
the
valuation
of
certain
occupied
parcels
of
real
property
is
one
element
in
arriving
at
the
amount
of
business
assessment,
it
is
not
the
only
one.
A
percentage
only
of
the
assessed
value
is
taken,
and
that
percentage
varies
with
the
character
of
the
business
for
which
the
property
is
occupied.
The
percentages
to
be
taken
of
the
assessed
value
of
the
premises
vary
from
10%
to
150%.
Further,
there
are
substantial
reasons
for
thinking
that
the
Legislature
may
have
intentionally
withheld
business
assessment
from
the
process
of
equalization
by
the
County
Council.
Business
as-
sessments
do
not
lend
themselves
readily
to
that
process.
Each
individual
business
is
a
ease
by
itself.
There
can
be
no
generalizing
with
them,
as
the
statute
authorizes
to
be
done
in
the
valuation
of
real
property
(see
s.
89(3)).
To
establish
a
just
relation
one
to
another
among
all
the
local
municipalities
in
the
County,
which
the
statute
declares
to
be
the
purpose
of
equalization,
must
of
necessity
be
an
almost
hopless
task
for
the
County
Council
in
the
case
of
business
assessments.
Further,
it
is
to
be
noted
that
the
process
of
equalization
is
not
in
any
sense
a
revision
of
the
local
assessment
rolls.
Notwithstanding
the
equalization,
the
individual
taxpayer
in
each
local
municipality
pays
according
to
the
last
revised
assessment
roll
thereof
(s.
98(2)).
To
increase
certain
individual
business
assessments
in
the
process
of
equalization
places
a
burden
on
the
whole
body
of
rate-payers
in
the
local
municipality,
that,
in
fairness,
should
be
borne
by
a
few.
This
consideration
could
not
be
given
any
weight
against
the
plain
meaning
of
the
words
of
a
statute,
but
in
the
case
of
those
statutory
provisions
one
ean,
at
best,
only
grope
in
the
obscurity
created
by
careless
drafting.
If
the
decision
of
the
question
arising
in
the
present
case
in
regard
to
business
assessments
depended
entirely
upon
the
determination
of
the
statutory
powers
of
the
County
Council,
I
should
not
be
able
to
arrive
at
any
decision
without
great
doubt.
The
real
question
is,
however,
not
in
regard
to
the
powers
of
the
County
Council,
but
in
regard
to
the
powers
of
the
County
Judge
on
appeal
from
the
equalization
by-law.
By
s.
91(8)
‘‘the
judge
shall
equalize
the
whole
assessment
of
the
county.
‘
‘
This
provision
is
not,
as
is
s.
90,
limited
by
its
language
to
the
real
property,
and
may
well
include
business
assessment.
Of
course,
it
will
equally
include
income
assessments,
but
s.
98(1)
will
apply
to
exclude
them.
There
is
nothing
anomalous
in
giving
to
the
County
Judge
on
appeal
a
wider
jurisdiction
than
that
of
the
County
Council.
In
another
respect
that
is
done
by
s.
91(10)
in
respect
to
the
valuators’
report.
I
would
hold,
therefore,
that
the
County
Judge
has
power
on
an
appeal
to
equalize
business
assessments.
In
the
result
the
matter
should
be
referred
back
to
the
County
Judge,
with
a
direction
that
the
County
Council
was
not
required
to
make
the
valuation
of
1936
the
basis
of
equalization
of
the
real
property
assessments,
and
that
the
County
Council
had
power
to
make
such
increases
or
decreases
in
respect
of
real
property
assessment
in
any
of
the
local
municipalities
as
in
their
opinion
were
necessary
to
produce
a
just
relation
between
them,
but
without
reducing
the
aggregate
valuation
for
the
whole
County,
as
made
by
the
assessors.
This
does
not
deprive
the
County
Judge
of
any
of
the
ordinary
jurisdiction
given
him
on
such
an
appeal.
The
appellant
should
have
the
costs
of
the
appeal
to
this
Court.
All
other
costs
are
to
be
in
the
discretion
of
the
County
Judge.
Masten
J.A.:—This
is
an
appeal
from
the
order
or
report
of
His
Honour
Judge
Miller,
Judge
of
the
County
Court
of
the
County
of
Lambton,
dated
December
10,
1921,
made
on
a
rehearing
by
him
of
an
appeal
by
the
respondent
from
the
equalization
by-law
passed
by
the
Council
of
the
appellant
County
in
1941,
raising
the
valuation
of
the
Village
of
Point
Edward
to
$600,000.
The
appeal
to
the
County
Judge
is
by
way
of
re-hearing,
and
the
effect
of
the
Judge’s
order
is
that
he
vacates
and
sets
aside
the
allocation
theretofore
made
against
the
several
local
municipalities
liable
to
contribute
to
the
County
budget
as
enacted
by
the
equalization
by-law
of
the
County
Council,
and
substitutes
an
allocation
based
mathematically
on
the
respective
percentages
of
the
total
County
taxes,
which
were
established
as
a
basis
by
the
report
of
valuators
made
in
1936.
In
doing
so,
the
learned
County
Judge
declares
that
on
the
true
construction
of
the
Act
the
sole
and
exclusive
basis
for
equalization
is
the
valuators’
report
of
real
estate
made
in
1936,
and
that
the
County
Council
has
no
jurisdiction
to
vary
from
the
percentages
shown
by
that
report,
they
being
an
unalterable
basis
for
the
equalization
by-law;
so
that:
the
allocation
to
the
several
local
municipalities
of
the
percentage
of
the
total
County
rate
which
it
establishes,
becomes
merely
a
mathematical
problem.
I
think
that
the
learned
County
Court
Judge
in
discussing
the
term
‘‘basis’’
at
p.
88
of
the
evidence,
has
failed
to
appreciate
the
real
meaning
of
the
words
of
Harrison
C.J.,
in
the
ease
of
Re
Revell
&
Corporation
of
the
County
of
Oxford,
42
U.C.Q.B.
337.
The
headnote
of
that
case
reads
as
follows:
"‘The
council
of
a
county,
in
passing
by-laws
to
levy
money
for
county
purposes
in
1877,
apportioned
the
assessment
of
the
different
municipalities,
not
upon
the
basis
of
the
value
according
to
the
rolls
as
finally
revised
and
equalized
for
1876,
but
according
to
the
rolls
for
1877
:
Held,
that
such
by-laws
were
illegal,
being
contrary
to
sec.
74
of
the
Assessment
Act
32
Vic.
ch.
36,
O.,
and
must
be
quashed.’’
In
my
opinion
the
words
of
Harrison
C.J.
in
the
case
above
quoted
are
intended
to
indicate
that
the
apportionment
pre-
scribed
by
the
equalization
by-law
of
1876
was
an
unalterable
basis
for
the
levying
of
the
tax
in
1877,
and
his
observation,
in
my
view,
has
no
relation
to
the
method
by
which
and
the
consideration
on
which
the
apportionment
prescribed
by
the
equalization
by-law
of
1876
was
reached.
The
view
which
was
acted
upon
by
the
learned
County
Judge
is
in
my
opinion
an
error
in
law.
As
long
ago
as
1916
in
the
case
of
Re
Tp.
of
Stamford
c
County
of
Welland,
31
D.L.R.
206,
37
O.L.R.
155,
I
had
occasion
to
consider
a
similar
question
and
to
state
the
view
which
I
then
entertained
respecting
the
jurisdiction
of
the
County
Council
when
enacting
the
equalization
by-law.
For
all
purposes
relevant
to
the
present
by-law
the
provisions
of
the
Assessment
Act
as
they
then
stood
remain
unchanged.
At
p.
217
D.L.R.,
p.
194
O.L.R.
I
expressed
my
views
in
the
following
words:
“.
.
.
.
by
sec.
86
(now
s.
90),
the
county
council
is
given
a
broad
discretion—so
broad
that
it
is
entitled
to
take
into
its
consideration
the
assessment
rolls
themselves;
its
own
knowledge
of
values
(see
s.
88,
now
92);
the
report
of
the
valuators,
if
any
appointed;
and
thereupon
to
form
its
Own
opinion
as
to
what
is
necessary
to
produce
a
just
relation
between
the
aggregate
valuations
of
the
different
townships.
I
think
that
prima
facie
the
actual
and
true
value
of
the
real
property
should
form
the
basis
on
which
the
equalizing
valuation
is
made
by
the
county
council.’’
I
have
not
had
any
reason
to
change
the
views
which
I
there
expressed,
and,
in
my
opinion,
they
are
entirely
at
variance
with
the
principle
upon
which
the
learned
County
Court
Judge
acted
in
making
the
order
now
in
appeal.
If
I
am
right
in
the
view
just
expressed
the
process
to
be
followed
by
the
County
Council
in
passing
an
equalization
bylaw,
and
by
the
County
Judge
on
a
re-hearing,
is
not
complicated.
Taking
the
valuation
(if
any)
theretofore
made
as
a
basis
or
starting
point,
they
are
entitled,
and
it
is
their
duty
to
consider
such
information
(as
distinguished
from
oral
evidence)
as
is
brought
before
them,
both
as
to
accretions
and
increases
in
the
assessable
property
in
each
local
municipality,
and
also
any
diminution
or
lessening
in
value
of
the
total
assessable
property
in
each,
bearing
in
mind
the
limitation
imposed
by
s.
90
that
they
shall
not
reduce
the
aggregate
valuation
for
the
whole
County
as
made
by
the
assessors.
I
think
that
s.
90
makes
it
plain
that
in
performing
this
function
they
may
increase
the
aggregate
assessment
for
the
whole
County,
though
they
may
not
lower
it
under
the
valuation
fixed
by
the
assessors.
Under
all
the
circumstances
of
the
present
case
I
find
it
impracticable
to
express
any
opinion
respecting
the
manner
in
which
the
question
of
assessment
for
business
tax
was
dealt
with.
Having
had
the
privilege
of
reading
the
reasons
of
my
Lord
the
Chief
Justice
since
writing
the
above,
I
desire
to
add
that
I
concur
in
his
opinion
that
the
attempted
extension
of
the
valuation
made
in
1936
was
ineffectual
and
that
that
report
was
effete
and
irrelevant
as
a
ground
for
consideration
by
the
County
Judge
when
considering
the
local
allocations
to
be
made
in
the
equalization
by-law
of
1942,
but
I
remain
of
the
view
that
on
this
record
I
am
unable
to
deal
with
the
question
of
business
assessment.
For
these
reasons
I
am
of
opinion
that
the
appeal
must
be
allowed
and
the
matter
sent
back
to
be
dealt
with
by
the
learned
County
Court
Judge
on
the
footing
above
indicated.
Costs
should
follow
the
result.
Judgment
accordingly.
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