MacDonald,
J.A.:—This
is
an
appeal
by
way
of
stated
case
from
the
decision
of
the
Saskatchewan
Assessment
Commission
which
held
that
the
appellant,
hereinafter
called
"
‘
the
com-
pany,‘‘
is
liable
to
assessment
for
the
year
1944
as
carrying
on
business
in
the
defendant
city.
The
company
was
incorporated
by
letters
patent
issued
under
The
Companies
Act,
1934,
ch.
33
(Dom.)
and
dated
October
1,
1940.
The
purpose
and
object
for
which
incorporation
was
granted
was,
‘‘to
establish,
maintain
and
conduct
and
operate
a
school
or
schools
for
instruction
and
training
in
flying,
to
be
operated
for
purposes
of
and
in
conjunction
with
the
British
Commonwealth
Air
Training
plan.
‘
‘
The
capital
of
the
company
was
$50,000,
made
up
of
400
shares
of
preferred
stock
of
the
par
value
of
$100
a
share,
and
100
shares
of
common
stock
of
the
par
value
of
$100
a
share.
The
letters
patent
provide
for
the
payment
of
interest
on
the
preferred
shares
at
5
per
cent
per
annum,
and
expressly
prohibit
the
payment
of
any
dividend
on
common
shares.
The
letters
patent
also
give
the
company
power
to
redeem
the
preferred
shares.
The
evidence
shows
that
280
preferred
shares
and
70
common
shares
were
issued.
All
the
preferred
shares
were
redeemed
in
April,
1943,
and
since
then
the
only
outstanding
capital
consists
of
the
70
shares
of
common
stock
which
are
held
by
the
Regina
Flying
Club,
a
non-profit
organization.
Shortly
after
its
incorporation
the
company
entered
into
a
contract
with
His
Majesty
the
King
in
the
right
of
Canada,
represented
and
acting
by
the
Minister
of
National
Defence
for
Air.
The
contract
was
amended
from
time
to
time.
Under
the
terms
of
the
contract
as
it
stood
at
all
material
times,
the
Minister
provides
all
buildings,
planes,
equipment
and
facilities
necessary
for
the
operation
of
the
school
and
the
company
undertakes
to
take
reasonable
care
of
the
same.
From
time
to
time
the
Minister
pays
to
the
company
sums
of
money
calculated
on
various
bases
which
need
not
be
detailed.
These
are
the
only
moneys
received
by
the
company,
as
the
contract
provides
that
during
its
continuance
the
company
shall
not
carry
on
any
activity
other
than
such
as
may
be
necessary
or
desirable
for
the
purpose
of
operation
of
the
school
and
the
giving
of
the
instruction
and
training
thereby
provided
for.
Par.
5
of
the
schedule
attached
to
and
forming
part
of
the
contract
reads
as
follows:
""
(5)
Notwithstanding
anything
to
the
contrary
in
the
preceding
paragraphs,
any
sum
paid
or
payable
thereunder
shall
be
subject
to
adjustment
or
revision
in
the
manner
following:
If
in
respect
of
any
period
of
24
weeks
after
the
date
of
commencement
of
instruction
and
training,
the
cost
of
operation,
as
ascertained
by
His
Majesty,
be
less
than
the
total
amount
paid
or
payable
under
the
preceding
paragraphs
in
respect
of
the
said
period
of
24
weeks,
then
the
payment
to
which
the
Company
shall
be
deemed
to
have
been
entitled
under
the
preceding
paragraphs
shall
only
be
an
amount
equal
to
the
actual
cost
of
such
operation
as
so
ascertained,
plus
20
per
centum
of
the
difference
between
said
actual
cost
and
the
amount
paid
or
payable
under
the
preceding
paragraphs
with
respect
to
the
said
period
of
24
weeks
and
the
balance
of
80
per
centum
shall
be
repaid
to
the
Crown
when
requested
by
the
Minister.
The
amount
retained
by
the
Company
shall
not
be
distributed
and
shall
be
held
by
the
Company
in
a
reserve
account
until
the
termination
of
the
contract
and
shall
then
be
paid
to
a
flying
club
approved
by
the
Minister,
failing
which
it
shall
revert
to
the
Crown.
If,
in
respect
of
any
period
of
24
weeks,
the
actual
cost
of
operation
so
ascertained
exceeds
the
amount
paid
or
payable
as
hereinbefore
mentioned
in
respect
of
said
period,
there
shall
be
paid
to
the
Company
in
addition
to
the
amount
paid
or
payable
in
respect
of
the
said
period
of
24
weeks,
the
difference
between
said
amount
and
the
actual
cost
of
operation
so
ascertained
less
20
per
centum
of
such
difference.
The
said
20
per
centum
of
such
difference
shall
be
a
charge
against
the
reserve
account
herein
referred
to.
Any
payments
made
to
the
Company
in
excess
of
those
so
due
under
the
provisions
of
this
paragraph
shall
be
refunded
by
the
Company
to
His
Majesty
or
at
the
discretion
of
His
Majesty
be
recoverable
from
any
subsequent
payments
due
to
the
Company
by
His
Majesty.”
The
city
assessed
the
company
in
respect
of
business
under
sec.
460
of
The
City
Act,
R.S.S.
1940,
ch.
126,
which
provides
that,
subject
to
the
other
provisions
of
the
Act,
the
municipal
and
school
taxes
shall
be
levied
on
(1)
lands;
(2)
businesses;
and
(3)
special
franchises.
The
assessment
was
confirmed
by
the
Court
of
Revision
and
by
the
Saskatchewan
Assessment
Commission.
At
the
request
of
the
company,
the
commission
stated
a
case
for
the
opinion
of
the
Court
under
the
provisions
of
sec.
498a
of
The
City
Act,
as
enacted
by
sec.
15
of
ch.
22
of
the
statutes
of
1943,
under
which
the
commission
may
submit
in
the
form
of
a
stated
case
for
the
opinion
of
the
Court
of
Appeal
a
question
of
law
only.
The
questions
submitted
are
whether
the
commission
was
right
in
holding:
(1)
That
the
appellant
was
carrying
on
business
within
the
meaning
of
Th
e
City
Act
and
was
liable
to
assessment
;
(2)
That
the
buildings
and
other
property
referred
to
in
the
assessment
were
occupied
and/or
used
by
the
appellant
for
business
purposes
within
the
meaning
of
The
City
Act
and
that
the
appellant
was
liable
to
assessment
for
the
whole
of
the
said
buildings
and
property
with
respect.
to
business
tax
;
(3)
That
the
appellant
was
liable
for
business
assessment
although
solely
engaged
in
performing
a
contract
for
the
Crown.
Thé
case
states
that
findings
of
fact
made
by
the
commission
are
set
out
in
the
decision
of
the
commission,
copy
of
which
is
attached
thereto.
The
evidence
taken
on
the
hearing
before
the
commission
is
also
attached.
Learned
counsel
for
the
city
raises
the
preliminary
objection
that.
the
questions
submitted
are
not
questions
of
law
only.
But
it
is
a
question
of
law
whether
there
was
evidence
to
support
the
findings
of
the
commission:
Jn
re
Elmsthorpe
R.
M.
and
Dom.
Fire
Brick
and
Clay
Products,
Ltd.
(No.
2)
[1944]
2
W.W.R.
20.
The
objection
is
accordingly
overruled.
"‘Business’’
includes
any
trade,
profession,
calling,
occupation
or
employment:
The
City
Act,
see.
2,
par.
4.
I
cannot
see,
however,
that
the
included
words
add
anything
to
the
word
"
"
business/
‘
for
the
latter
word
itself
has
such
an
extensive
meaning.
‘‘Business’’
means
anything
which
occupies
time
and
attention
and
labour
for
the
purpose
of
profit
:
Smith
v.
Anderson
(1880)
15
Ch,
D.
127,
at
258,
50
L.J.
Ch.
39,
at
43%,.
per
Jessel,
M.R.
True,
the
decision
of
Jessel,
M.R.
was
reversed
(ibid.)
but
such
reversal
was
on
another
point.
The
definition
of
"‘business’’
in
Smith
v.
Anderson,
supra,
was
adopted
by
the
Ontario
Appeal
Court
in
Rideau
Club
v.
Ottawa
(1907)
15
O.L.R.
118,
and
by
this
Court
in
In
re
Nor.
Sask.
Flying
Training
School
Ltd.
and
Buckland
R.M.;
In
re
Prince
Albert
Air
Observers
f
School
Ltd.
and
Buckland
R.M.
[1943]
3
W.W.R.
609,
[1944]
C.T.C.
40.
Now
it
seems
clear
to
me
that
the
company
was
not
carrying
on
business
for
the
purpose
of
profit.
The
preferred
shares
had
been
redeemed
in
April,
1943,
and
so
no
question
arises
in
respect
of
them;
no
dividend
is
payable
in
respect
of
the
common
shares;
the
company
will
have
no
share
in
any
surplus
assets,
and
it
is
engaged
solely
in
performing
the
contract
in
question.
This
distinguishes
this
case
from
In
re
Nor.
Sa^k.
Flying
Training
School
Ltd.
and
Buckland
R.M.,
supra,
the
basis
of
the
decision
there
being
that
that
company
was
carrying
on
business
for
profit.
The
provisions
of
the
contract
in
question
there
were,
as
frankly
admitted
by
learned
counsel
for
the
city,
different
from
those
of
the
contract
in
question
in
this
ease.
A
summary
of
the
terms
of
the
former
contract
appears
in
the
Judgment,
and
need
not
be
repeated.
I
am
therefore
of
opinion
that
the
company
was
not
carrying
on
business
within
the
meaning
of
The
City
Act
and
was
not
liable
to
assessment.
I
am
further
of
opinion
that
the
company
was
not
liable
to
assessment
as
the
occupation
by
the
company
of
the
property
was
an
occupation
"for
the
Crown:’’
Halifax
v.
Halifax
Harbour
Commrs.
[1935]
S.C.R.
215.
The
relation
between
the
company
and
the
Crown
under
the
contract
in
question
here
seems
to
me
to
be
in
all
essentials
the
same
as
the
relation
between
the
Halifax
Harbour
Commission
and
the
Crown.
It
is
true
that
sec.
357
of
The
Halifax
City
Charter
provides
that
the
business
tax
shall
be
payable
by
“
"
every
occupier
of
real
property,’’
ete.,
and
that
the
words
just
quoted
do
not
appear
in
The
City
Act.
But
it
seems
equally
clear
that
it
is
the
occupant
of
the
property
who
is
to
be
assessed
for
business.
The
mode
of
assessing
businesses
shall
be
by
fixing
a
rate
per
square
foot
of
the
floor
space
of
each
building
or
part
thereof
used
for
business
purposes
(sec.
463)
and
the
occupant
of
any
building
liable
to
taxation
under
sec.
463
shall
be
liable
for
the
business
tax
though
he
may
also
be
the
owner
of
the
premises
and
liable
as
such
owner
to
taxation
on
the
land
(sec.
465).
That
it
is
the
occupant
of
property
who
is
liable
for
business
tax
seem
recognized
by
the
second
question
submitted.
For
these
reasons
I
am
of
opinion
that
the
appeal
should
be
allowed
with
costs
and
the
assessment
of
the
company
set
aside.
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