ROBERTSON
C.J.0.:—This
is
an
appeal
upon
a
stated
case,
pursuant
to
s.
85
of
The
Assessment
Act,
from
the
judgment
of
Judge
Grosch,
of
the
County
Court
of
the
County
of
Kent,
dismissing
an
appeal
from
the
Court
of
Revision
of
the
City
of
Chatham,
which
confirmed
the
appellants
business
assessment.
The
appellant
is
a
manufacturer
of
tobacco,
and
is
assessed.
as
such
in
respect
of
certain
premises
on
St.
Clair
St.
in
that
municipality,
where
its
tobacco
is
processed.
The
appellant
did
not
appeal
against
its
assessment
as
a
manufacturer
in
respect
of
the
St.
Clair
St.
premises.
The
appellant
also
occupies,
for
the
purposes
of
its
business,
other
premises
in
Chatham
on
Pat-
teson
Ave.
and
on
Colborne
St.
The
appeal
now
before
us
is
against
its
business
assessment
as
a
manufacturer
in
respect
of
the
two
last-mentioned
premises.
After
the
tobacco
is
processed
at
the
St.
Clair
St.
premises
and
packed
in
hogsheads,
it
is
transferred
either
to
the
Patteson
Ave.
premises
or
to
the
Colborne
St.
premises.
There
the
tobacco
is
housed
or
stored
for
periods
of
from
five
months
to
two
or
more
years,
and
in
the
ordinary
course
its
value
is
enhanced
thereby.
The
appellant
is
the
owner
of
the
Patteson
Ave.
premises,
and
is
lessee
of
the
Colborne
St.
premises,
and
it
is
the
sole
occupant
of
both.
The
County
Judge
has
found
that
the
appellant
occupies
or
uses
the
premises
on
Patteson
Ave.
and
Colborne
St.
for
the
purpose
of
its
business,
and
that
business
he
has
found
to
be
the
business
of
a
manufacturer.
Sub-sec.
1
of
s.
8
of
The
Assessment
Act
provides
that
every
person
occupying
or
using
land
for
the
purpose
of
any
business
as
mentioned
or
described
in
the
section,
shall
be
assessed
for
a
sum
to
be
called
"‘business
assessment’’
to
be
computed
by
reference
to
the
assessed
value
of
the
land
so
occupied
or
used
by
him.
The
sub-section
then
proceeds
to
mention
or
to
describe
a
variety
of
classes
of
business
in
numerous
sub-clauses,
each
of
which
is
distinguished
by
a
letter.
As
to
each
class,
provision
is
made
for
an
assessment
at
a
certain
rate
per
centum
of
the
assessed
value
of
the*land
occupied
or
used
for
the
purpose
of
his
business
by
the
person
carrying
on
a
business
that
falls
within
the
class.
Sub-clause
(e)
provides
for
the
assessment
of
‘‘every
person
carrying
on
the
business
of
a
manufacturer
for
a
sum
equal
to
sixty
per
centum
of
the
assessed
value.”
The
appellant’s
business
being
that
of
a
manufacturer,
and
the
lands
on
Patteson
Ave.
and
on
Colborne
St.
being
occupied
or
used
by
the
appellant
for
the
purpose
of
its
business,
all
requirements
are
fulfilled
to
make
the
appellant
liable
to
business
assessment
at
the
per
centum
rate
provided
in
clause
(e).
It
is
not
necessary
that
manufacturing
should
be
carried.
on
upon
these
particular
premises.
The
requirement
is
that
they
shall
be
used
or
occupied
for
the
purpose
of
his
business
by
one
who
carries
on
the
business
of
a
manufacturer.
This
construction
of
the
statute
is
long
settled
by
such
cases
as
Re
Hiram
Walker
&
Sons
Ltd.
and
Town
of
Walkerville
(1917),
40
O.L.R.
154;
Re
Studebaker
Corporation
of
Canada
and
City
of
Windsor
(1919),
46
O.L.R.
78,
followed
recently
in
Re
Toronto
and
Belding
Corticelli
Ltd.,
[1939]
O.R.
409;
and
Kelvinator
Co.
of
Canada
Ltd.
v.
City
of
London,
[1942]
C.T.C.
207,
[1942]
O.W.N.
485.
The
appellant
relies
upon
Re
The
City
of
Chatham
and
Canadian
Leaf
Tobacco
Co.,
[1938]
O.W.N.
265,
where
a
different
conclusion
was
reached
in
regard
to
appellant’s
business
assessment
in
respect
of
lands
used
or
occupied
in
a
similar
way.
The
appellant
says,
in
the
first
place,
that
the
parties
being
the
same,
the
matter
is
res
judicata,
the
subject-matter
being
the
same.
The
subject-matter,
however,
is
not
the
same.
Not
only
are
the
lands
not
identical
in
the
two
cases,
although
the
business
purpose
of
occupation
may
have
been
the
same,
but
the
appeals
are
from
assessments
in
different
years.
The
language
of
Lord
Car-
son
in
Broken
Hill
Proprietary
Co.
Ltd.
v.
Municipal
Council
of
Broken
Hill,
[1926]
A.C.
94,
where
a
similar
contention
was
made,
is
in
point
:—
"There
is,
however,
no
substance
in
this
contention.
The
decision
of
the
High
Court
related
to
a
valuation
and
a
liability
to
a
tax
in
a
previous
year,
and
no
doubt
as
regards
that
year
the
decision
could
not
be
disputed.
The
present
case
relates
to
a
new
question—namely,
the
valuation
for
a
different
year
and
the
liability
for
that
year.
It
is
not
eadem
questio,
and
therefore
the
principle
of
res
judicata
cannot
apply.
’
’
The
appellant
further
contends
that
the
decision
of
1938,
being
a
judgment
of
this
Court
of
Appeal
on
facts
indistinguishable
for
the
present
purpose
from
the
facts
of
the
present
case,
we
are
bound
to
follow
the
decision
of
1938,
the
more
particularly
because
that
decision
is
expressly
founded
upon
the
judgment
of
the
Supreme
Court
of
Canada
in
Loblaw
Groceterias
Co.
Ltd.
v.
The
City
of
Toronto,
[1926]
S.C.R.
249.
Beyond
the
question,
we
should
be
bound
by
the
judgment
of
the
Supreme
Court
of
Canada,
if
it
is
in
point,
and
we
should
regard
with
great
respect
the
former
judgment
of
this
Court
upon
this
same
question,
even
if
it
is
in
conflict
with
other
decisions
of
the
Court.
The
Loblaw
case
is,
however,
not
in
point.
The
business
in
question
in
that
case
was
not
the
business
of
a
manufacturer,
but
was
the
business
of
selling
or
distributing
goods,
wares
and
merchandise
to
a
chain
of
more
than
five
retail
stores
or
shops
in
Ontario,
directly
or
indirectly
owned,
controlled
or
operated
by
the
same
person,
and
came
within
what
is
now
clause
(d)
of
s.
8,
s..s.
1.
By
clause
(d)
the
lands
occupied
or
used
for
certain
specifically
described
purposes,
in
carrying
on
a
business
of
the
class
described
as
above
are
liable
to
business
assessment
on
a
percentage
basis
that
differs
from
the
percentage
basis
applicable
to
the
other
lands
occupied
or
used
by
the
same
person
for
the
same
business.
Clause
(d)
provides
that
the
business
assessment
of
a
person
carrying
on
a
business
such
as
the
clause
describes,
in
respect
of
land
occupied
or
used
by
him
in
such
business
for
distribution
premises,
storage
or
warehouse
for
such
goods,
wares
and
merchandise,
or
for
an
office
used
in
connection
with
the
said
business,
is
to
be
for
a
sum
equal
to
75
per
cent.
of
the
assessed
value
of
the
land
so
occupied
or
used.
The
business
in
question
in
the
Loblaw
case
was
such
a
business
as
clause
(d)
describes.
The
Company
assessed
in
that
case
occupied
or
used
for
the
purposes
of
its
business,
separate
parcels
of
land,
one
parcel
being
used
for
purposes
coming
within
clause
(d),
as
above-mentioned—then
clause
(cc.)
first
enacted
by
c.
2,
s.
2
of
the
statutes
of
1933—and
another
parcel
across
the
road
from
the
first-mentioned
parcel,
which
was
used
as
a
garage,
and
for
the
housing
of
motor-vehicles.
The
Company
was
assessed,
for
business
assessment
on
the
same
basis
in
respect
of
both
parcels
as
coming
under
what
is
now
clause
(d).
The
Company
did
not
appeal
against
its
business
assessment
in
respect
of
the
first-mentioned
parcel,
conceding
that
it
was
properly
assessed
on
a
basis
of
75
per
centum,
but
it
did
appeal
against
its
business
assessment
in
respect
of
the
other
parcel.
The
Supreme
Court
of
Canada
held
"‘that
the
occupation
or
use
of
the
particular
land,
subjected
to
this
special
assessment
must
be
looked
at,
‘
‘
and,
having
regard
to
the
particular
occupation
or
use
of
the
parcel
in
respect
of
which
the
business
assessment
in
question
on
the
appeal
was
made,
it
was
held
that
it
did
not
come
within
the
description
of
the
present
clause
(d).
It
is
this
judgment
of
the
Supreme
Court
of
Canada,
speci-
fically
based
upon
the
construction
of
what
is
now
clause
(d),
that
the
Court
of
Appeal,
in
the
judgment
in
1938,
in
Re
The
City
of
Chatham
and
The
Canadian
Leaf
Tobacco
Co.,
deemed
to
be
conclusive
on
the
point
that
was
raised
before
it
under
what
is
now
clause
(e).
Clause
(d),
however,
had
no
application
to
a
business
of
the
class
that
was
in
question
in
the
1938
case,
and
it
has
no
application
to
the
business
in
question
in
the
present
case.
There
is
nothing
in
clause
(e)
which
governs
in
the
case
of
a
manufacturer,
that
warrants
a
construction
by
which
the
occupation
or
use
of
one
particular
parcel
of
land
employed
in
carrying
on
the
business
of
a
manufacturer
will
distinguish
it,
for
purposes
of
business
assessment,
from
any
other
parcel
used
or
occupied
for
the
purposes
of
the
same
business.
Wherever
in
s.
8(1)
of
The
Assessment
Act
the
Legislature
intended
that,
for
the
purpose
of
business
assessment
one
part
of
the
land
used
or
occupied
for
the
purpose
of
carrying
on
a
business,
should
be
regarded
differently
from
other
land
used
or
occupied
in
the
same
business,
by
reason
of
the
particular
use
to
which
it
is
put,
it
has
said
so
expressly,
as
in
clauses
(a),
(b)
and
(g).
Except
where
a
difference
is
made
either
by
express
exception,
as
in
clauses
(a)
and
(b),
or
by
specific
provision
as
in
clause
(d),
the
terms
of
s.
8(1)
are
such
that
the
person
carrying
on
a
business
for
which
he
occupies
or
uses
land,
is
to
be
assessed
for
business
assessment,
for
a
sum
arrived
at
by
applying
one
and
the
same
per
centum
rate
to
the
assessed
value
of
all
the
land
occupied
or
used
for
the
purpose
of
the
business,
and
the
particular
character
of
the
use
made
of
any
part
of
such
land
is
not
to
be
regarded
so
long
as
it
is
occupied
or
used
for
the
purpose
of
the
business
carried
on
by
the
person
assessed.
The
class
mentioned
or
described
in
the
sub-section
into
which
that
business
falls,
determines
what
that
single
per
centum
rate
should
be.
In
my
opinion,
for
the
reasons
I
have
stated,
we
should
not
follow
the
decision
in
the
case
between
these
parties
in
1938,
but
should
apply
the
principle
of
the
Hiram
Walker
case
and
of
the
Studebaker
case,
and
other
cases
which
I
have
first
cited,
and
we
should
dismiss
this
appeal,
with
costs.
Email this Content