In Re the Assessment Act, in Re Construction Supply Company and Minister of Municipal Affairs, [1945] CTC 58

G. M. BLACKSTOCK, K.C., Chairman — This is an appeal to the Alberta Assessment Commission by Construction Supply Company from the decision of the Court of Revision of improvement district No. 123, which confirmed the assessment of the following personal property owned by the appellant:

At the commencement of the hearing, it was agreed that the gas pump and tank should not have been assessed.

The appeal was heard at Calgary on November 8, 1944, when the appellant was represented by S. J. Helman, Esq., K.C., and the respondent by C. S. Blanchard, Esq. K.C.

The facts are not in dispute. The property in question was leased by the appellant to Bennett & White Construction Company, who had entered into a contract with Birnwel Coal Company in the performance of which this machinery was used. On January 31, 1944, the assessor went to the improvement district for the purpose of making an assessment at which time the machinery in issue was within the district. Pursuant to the provisions of sec. 23 of The Assessment Act, R.S.A., 1942, ch. 157, the assessor requested the appellant to supply him with certain information to enable him to make the assessment. The appellant, taking the view that the property was not assessable and in any event was exempt, refused to furnish the required information. At this point it should be pointed out that this refusal was unwarranted. The information asked for should have been furnished and the question of liability or exemption from liability should have been left for the determination by the proper tribunal. On the other hand, the assessor would have been fully justified when his request was refused in assessing the property at such amount as he deemed proper, thereby placing the onus upon the appellant of establishing the value of it. In future cases, it is suggested that this procedure be followed.

On January 7, 1944, and pursuant to the provisions of sec. 8 of The Assessment Act, the Honourable the Minister of Municipal Affairs directed that in 1944 personal property in certain named improvement districts including improvement district No. 123 should be liable to assessment and taxation.

It was stated by the appellant, and while it was not admitted by the respondent it was not denied, that the machinery was removed from the district early in April, 1944.

The assessor’s report of his assessment is dated July 31, 1944, and the assessment slip sent to the appellant is dated August 9, 1944. The appellant contends that the machinery in question is not assessable. It is submitted that The Improvement District Act, R.S.A., 1942, ch. 152, creates no liability for the assessment and taxation of personal property. In the Board’s opinion, secs. 3 and 8 of The Assessment Act effectively dispose of this contention.

The appellant contends further that the machinery being "‘motor vehicles’’ is exempt from assessment and taxation by virtue of subsec. (3) of see. 5 of the Act. The Commission is unable to agree. The machinery assessed consists of power equipment. It is true that this machinery is operated by motors but in the Commission’s opinion they are not vehicles. A vehicle is a conveyance for the carriage of persons or goods from one place to another and, if the Legislature intended to exempt motorized equipment, apt words would have been used for that purpose. In the Commission’s opinion, the use of the word "‘vehicle'' imports a restriction in the classes of motorized equipment to which the exemption should apply.

The appellant further alleges that the property was brought into the district for a mere temporary purpose and that in any event it was not situate in the district at the time that the assessment was made. In support of this contention, the appellant referred to McKenzie v. Little Cut Arm S.D. (1891) 3 Terr. L.R. 156. In this case, cattle which had been turned out on the range by their owner strayed into the school district and were assessed as personal property. In allowing the appeal, Wetmore, C.J. said:

“When I use the term ‘for a mere temporary purpose’ I wish it understood with a limitation, because I do not desire for a moment to be considered as holding that if the appellant, when he moved his family to Wolff’s to stay there during the summer, and had so taken up his temporary residence there for the summer— if he had brought his stock there deliberately, they would not have been liable to assessment.”

In Graham v. Broadview S.D. (1893) 3 Terr. L.R. 200, Wetmore, C.J. in discussing the same point said:

"Cattle might be temporarily in one district, but they are ‘situated’ ‘ for the purposes of taxation where their headquarters are, and where they are usually kept.’’

And again:

"‘If they were anywhere else it will be assumed they were there for a temporary purpose; and it lies upon the owner to show that they were not there for a temporary purpose. * * * Tf the construction I put upon the term is not the correct one, a person might escape taxation with respect to property of this description altogether.”

In In re E. D. & B.C. Ry Co. and McLellan S.D.; In re Mannix c Walgren and McLennan S.D. [1928] 2 W.W.R. 684, His Honour the late Judge Taylor held that personal property brought into a school district for a short time for a temporary purpose was assessable at the headquarters of the company.

In Hollingsworth & Whitney Ltd. v. Bridgewater, 60 N.S.R. 240, [1929] 1 D.L.R. 481, it was held:

"‘Personal property stored in a town at the time an assessment is made is, if not otherwise exempt, taxable under The Assessment Act, R.S.N.S., 1923, ch. 86, although only so stored pending transportation out of municipality.”

In In re The Assessment Act ; In re Hudson’s Bay Co.; In re Northern Transportation Co. [1939] 3 W.W.R. 466, the Commission allowed appeals taken against the assessment of personal property on the ground that the evidence available to it would have been insufficient for it to establish the place of assessment of the ships assessed.

With much respect, it seems to the Commission that the proper view is that, when property is taken into a municipality for the purposes of the owner ‘s business and when that property remains in the municipality performing work on behalf of the owner and is so situate at the time of assessment, its situs for assessment purposes for that year is in that particular municipality. It then follows that the same property cannot be assessed in any other municipality. The Assessment Act provides that certain property is exempt from liability to assessment and taxation. In modern days when machinery is being used in different municipalities at different times of the year, it would be unfair to permit each municipality to assess the same articles and on the other hand it would be equally unfair to permit any company to escape taxation merely because its machinery was used for a time in one district and then moved into another. Companies would then be creating an exemption for themselves not contemplated by the Act and this is especially true since a company could create a head office in a locality where personal property was not assessable and to which head office the machinery was never taken, and in which it could only be situate by a fiction of law.

The Commission, however, is of the opinion that the appellant is entitled to succeed on the ground that the property assessed had been removed from the district before the assessment was made. Sec. 6 (1) of the Act is in the following terms :

"'Property and businesses liable to assessment shall be assessed in the municipality in which the property is situate or in which the business is carried on.’’

It is clear that the property. in issue was not situate in improvement district No. 123 at the time the assessment was made so that the appeal must be allowed and the assessment set aside.

No costs to either party.