City of Winnipeg v. Rural Municipality of St. Vital, [1945] CTC 15

McPherson, C.J.K.B.—The above is an action by the plaintiff, a municipal corporation by virtue of The Winnipeg Charter, 1918, ch. 120, and amending Acts [now 1940, ch. 81]. The defendant is a rural municipality incorporated under the provisions of The Municipal Act of the province of Manitoba [now R.S.M., 1940, ch. 141].

The plaintiff is and has been owner of the lands mentioned in the statement of claim since May 7, 1924, which lands are situate within the boundaries of the defendant municipality. The said lands have been used since they were acquired as a park and, more especially, as a golf course for the benefit of the public, and have been operated as such by the Public Parks Board of the city of Winnipeg. Up to the year 1939 the said lands were never assessed for taxation by the defendant, but it did assess them in 1939 and 1940 and imposed taxation thereon for those two years amounting to $1,493.58.

The plaintiff, by letter, notified the defendant on July 28, 1941, that it claimed the said lands and buildings thereon were not liable to be assessed for taxes and that it would oppose any attempt to sell them for same. The defendant, on September 18, 1941, did sell the said lands for taxes, and purchased the tax certificate itself and issued a tax-sale certificate to itself as purchaser. The lands were not redeemed from the tax sale within the statutory period and the defendant made a return to the district registrar of the land titles district of Winnipeg, alleging that the lands had been sold to the defendant and had not been redeemed; and on November 25, 1942, the defendant filed an application asking to be registered as owner of the said lands and buildings thereon under the provisions of The Real Property Act, R.S.M., 1940, ch. 178, and The Municipal Act, of the province of Manitoba.

The district registrar, on December 30, 1942, showed on his records that the total amount outstanding against the said lands which were purported to have been sold, including bonuses, interest, and costs of application, amounted to $1,751.40, and the district registrar issued a notice to the plaintiff advising it that unless the said lands were redeemed, or proceedings taken to stop the issue of a certificate of title to the defendant, a certificate of title would issue to the defendant applicant. The plaintiff thereupon, in order to prevent said certificate of title so issuing to the defendant, on December 30, 1942, paid to the district registrar the said sum of $1,751.40 under protest that the same was not owing.

The plaintiff further alleges in its statement of claim that the assessment levying an imposition of taxes, and the said purported tax sale, were unlawful and void upon the grounds set forth in par. 7 of the said statement of claim, which said grounds attacked the assessment on a great number of points as to the manner of the alleged assessment and levies, etc., the principal of which were that the land had not been assessed to the registered owner, that no notice of the assessment had been sent to such owner, and that numerous other formalities required by The Municipal Act had not been properly complied with.

The plaintiff’s claim was based upon two grounds: (1) That the land taxed is a public park owned by the city and is therefore exempt from taxation of all kinds by defendant; (2) That in the alternative, if it is taxable, the defendant failed to carry out the provisions of The Municipal Act in levying the taxes against the city.

Under see. 696, ch. 120 of S.M. 1918 (commonly referred to as The Winnipeg Charter), the plaintiff had power to acquire (among other things) land for a park or parks, pleasure ground or pleasure grounds, or a public playground or playgrounds; and, under see. + of the said Charter:

‘All lands used for public park purposes or exhibition grounds, now or hereafter owned by the city, which are situate outside the territorial limits of the city, shall be exempt from municipal taxation by any municipality in which such lands are situate.”

There is a further provision in said Charter, see. 700 (14) which states that the city shall have power to pass by-laws ‘‘for acquiring and holding, by purchase or otherwise, for the public use of the city, lands situate outside its limits; and such land so acquired shall form part of the city.”

It is admitted that ho admission fee is charged to the property in question but that a green fee is charged to those who wish to play on the golf course. It is also admitted by counsel that in the system of parks set up by the plaintiff fees are collected for such games as tennis, bowling, ete., depending upon the location of the park and the provision made by the city for games to be played therein. The defendant claims that the payment of fees takes the property out of the category of a public park. The definition of what is a public park, in the New English Dictionary, vol. 7, is ‘‘land laid out and devoted to public recreation.” In the Century Dictionary, vol. 4, it is defined as ‘‘land maintained for public use for open air recreation.” In Booth v. Minneapolis, 203 N.W. 625, it was held that a park is “a pleasure ground for the recreation of the public, to promote its health and enjoyment.”’

I would therefore hold that the land in question, the use of which is available to all the public, is a public park notwithstanding that fees are charged for its special use by a part of the publie.

The case of Springbank Mun. Dist. v. Calgary [1937] 3 W.W.R. 639, referred to by the defending counsel, is easily distinguishable because of the fact that the operation of the park was part of a contract in connection with public service of light, power and transportation to other residents, and a fee for admission was charged the publie under certain conditions.

In the recent case of Old Kildonan Mun. v. Winnipeg [1943] 2 W.W.R. 268, where a similar condition to the present existed, namely, a park with a public golf course operated therein, Donovan, J., held that it was a public park and exempt from taxation by the plaintiff municipality. There were other matters under consideration in connection with a clash as to description of boundaries, which are not present in this action, but in other respects the conditions are identical.

I would hold that the land is exempt from taxation.

The argument was also advanced by counsel for the defendant that the plaintiff was not entitled to take action for recovery of the moneys paid by it to the district registrar. In C.P.R. v. Cornwallis R.M. (1890) 7 Man. R. 1, it was held that the plaintiffs had the right to recover the money paid under protest. This judgment was confirmed by the Supreme Court, 19 8.C.R. 702. In Dom. Express Co. v. Brandon (1909) 19 Man. R. 297, 12 W.L.R. 498, where the plaintiff sought to obtain an injunction to restrain an attempted levy, Mathers, C.J. dismissed the injunction on the ground that "‘the plaintiff would have the right to recover this tax if paid under protest * =

In view of the fact that I find the said land is exempt from tax sale, it will not be necessary to inquire into the details of the manner in which the alleged assessment and levy were made by the defendant.

There will be judgment for the plaintiff declaring:

(1) That the said lands and buildings have been since May 7, 1924, and still are, exempt from, and not liable for, any taxation by the defendant municipality ;

(2) That the said assessment and levy for the years 1939 and 1940 was and is illegal, null and void;

(3) That the sale of the said land and buildings, and issue of the said tax sale certificate, was and is illegal, null and void; and ;

(4) Judgment against defendant for the sum of $1,751.40, or repayment of same by the district registrar to the plaintiff.

The plaintiff should be entitled to costs, including a fiat for examination on discovery.