LORD
Reid:—This
is
an
appeal
against
a
judgment
of
the
Supreme
Court
of
Canada
dated
March
30,
1950
([1950]
C.T.C.
410).
By
that
judgment
the
Supreme
Court
reversed
a
judgment
of
the
Appellate
Division
of
the
Supreme
Court
of
Alberta
dated
April
16,
1949
(
[1949]
2
W.W.R.
129)
which
had
affirmed
a
judgment
of
Shepherd,
J.,
of
April
21,
1948.
The
appellants
are
a
company
incorporated
under
The
Companies
Act
of
Alberta
and
the
respondents
are
a
municipal
district
in
that
province.
By
the
judgments
of
the
Supreme
Court
of
Alberta
it
was
declared
that
the
assessment
of
the
appellants
for
personal
property
made
by
the
respondents
for
the
year
1947
was
invalid,
and
that
assessment
was
quashed
and
set
aside.
In
1946
the
Dominion
Government
were
carrying
out
in
the
southern
part
of
the
province
of
Alberta
a
large
irrigation
scheme
which
included
the
construction
of
diversion
and
irrigation
tunnels
at
St.
Mary’s
Dam
in
the
respondent’s
municipal
district.
On
July
22,
1946,
the
Minister
of
Agriculture
for
the
Dominion,
acting
on
behalf
of
the
Crown,
entered
into
a
contract
with
the
appellants
for
the
construction
of
those
tunnels.
That
contract
is
hereafter
referred
to
as
"‘the
contract.’’
The
value
of
the
work
to
be
done
by
the
appellants
under
the
contract
was
in
the
region
of
$800,000
and
the
work
was
to
be
completed
by
April,
1948.
It
will
be
necessary
later
to
examine
closely
certain
of
the
provisions
of
the
contract,
but
at
this
point
it
need
only
be
stated
that
the
appellants
were
bound
to
provide
the
plant
and
equipment
necessary
for
carrying
out
the
contract
and
that
they
did
provide,
at
the
site
of
the
works,
a
large
variety
of
plant
and
equipment
which
remained
there
during
the
year
1947.
The
respondents
are
authorized
by
The
Assessment
Act,
R.S.A.
1942,
¢.
157,
and
The
Municipal
District
Act,
R.S.A.
1942,
c.
151,
to
make
assessments
and
levy
taxes
in
respect
of
personal
property
in
their
district,
and
in
June,
1947,
their
assessor
visited
the
site
of
the
appellants’
works
and
spent
three
days
in
making
a
detailed
valuation
of
those
parts
of
the
plant
and
equipment
brought
there
by
the
appellants
which
he
thought
were
taxable
under
those
Acts
as
personal
property.
The
assessor’s
valuation
of
this
property
was
$183,147.
On
September
22,
1947,
the
respondents
sent
to
the
appellants
an
assessment
slip
which
was
a
notice
that
the
appellants
were
assessed
for
the
year
1947
in
respect
of
$6,140
for
buildings
and
improvements,
and
$177,007
for
personal
property,
making
in
all
the
sum
of
$183,147.
It
is
admitted
by
both
parties
that
nothing
turns
in
this
case
on
the
distinction
between
buildings
and
personal
property
and
that
the
assessment
can
be
regarded
as
if
it
were
entirely
an
assessment
in
respect
of
personal
property.
The
appellants
lodged
a
complaint
against
this
assessment
and
this
complaint
was
dealt
with
by
the
council
of
the
respondents’
district
sitting
as
a
court
of
revision
on
October
31.
The
court
of
revision
increased
the
assessment
by
$1,000.
The
appellants
then
appealed
against
this
decision
to
the
Alberta
Assessment
Commission
on
the
following,
among
other
grounds:
"1.
The
personal
property
which
comprises
$178,022
of
the
said
assessment
is
the
property
of
His
Majesty
in
the
-
right
of
the
Dominion
of
Canada
and
therefore
the
appellants
cannot
be
assessed
with
regard
thereto.
"2.
The
said
assessment
contains
a
considerable
number
of
motor
vehicles
which
are
exempt
from
taxation.’’
This
appeal
was
heard
by
the
commission
and,
after
written
briefs
had
been
submitted,
the
commission,
on
January
13,
1948,
gave
their
decision,
in
which
it
was
stated:
"After
due
consideration
of
these
briefs
and
the
evidence
submitted,
the
Commission
is
of
the
opinion
that
the
property
in
question
has
been
rightfully
assessed
to
Bennett
&
White
(Calgary)
Limited.
The
Commission,
however,
feels
that
the
assessments
are
excessive
and
should
be
reduced
to
amounts
as
follows:
|
"Personal
property
|
$119,980
|
|
"Buildings
and
improvements
|
4,470
|
|
and
it
so
ordered.’’
|
|
The
respondents
then
demanded
from
the
appellants
a
sum
of
$3,915.27
as
tax
and
penalty
in
respect
of
the
assessment
as
altered
by
the
Alberta
Assessment
Commission,
and
in
answer
to
this
demand
the
appellants
raised
the
present
action
against
the
respondents
on
April
15,
1948.
In
order
to
understand
the
nature
of
the
present
action
it
is
necessary
to
have
in
mind
the
scheme
for
the
taxation
of
personal
property
contained
in
The
Assessment
Act
and
The
Municipal
District
Act
(which
are
directed
by
sec.
3
of
The
Assessment
Act
to
be
read
together)
and
it
is
also
necessary
to
have
in
mind
certain
provisions
of
the
contract.
As
regards
assessment,
sec.
4
of
The
Assessment
Act
provides
that,
subject
to
certain
exceptions
which
are
not
material
in
this
ease
:
‘6
all
property
and
every
interest
therein
in
a
municipality
which
is
subject
or
liable
to
taxation
by
an
Act
of
the
Province,
save
and
except
only
such
property
as
is
declared
by
this
Act
to
be
exempt,
shall
be
liable
to
assessment
and
taxation
by
the
municipality.’’
The
exemptions
are
contained
in
see.
5(1)
and
those
material
in
this
case
are:
“(0)
every
right,
title
and
interest
of
His
Majesty
in
any
property
whatsoever
;
and
‘‘(z)
all
motor
vehicles.”
Sec.
8
provides
:
"(2)
The
board
of
a
school
district
which
collects
its
own
taxes
and
the
council
of
any
municipality
may
provide
by
by-law,
passed
not
later
than
the
first
day
of
May
in
any
year,
that
in
the
said
year
all
personal
property
within
the
school
district
or
municipality,
as
the
case
may
be,
shall
be
liable
to
assessment
and
taxation.
In
a
municipality
this
assessment
may
be
made
for
municipal
purposes
or
for
school
purposes
or
for
both.
“(3)
In
any
school
district
or
municipality
in
which
personal
property
is
liable
to
assessment
and
taxation
it
shall
be
assessed
at
its
actual
cash
value
as
it
would
be
appraised
if
taken
in
payment
of
a
just
debt.’’
The
respondents
passed
a
by-law
on
April
3,
1947,
to
the
effect
that:
"Under
authority
of
section
8
of
The
Assessment
Act,
being
chapter
157
of
the
revised
Statutes
of
Alberta,
1942,
and
subject
to
the
various
provisions
of
the
said
Act,
the
Council
of
the
Municipal
District
of
Sugar
City
No.
5
enacts
that
within
the
boundaries
of
Sugar
City
No.
5
all
personal
property,
shall
be
liable
to
assessment
and
taxation
for
both
municipal
and
school
purposes.’’
Sec.
24
provides
that
the
assessor
of
the
municipality
shall
make
a
return
to
the
secretary-treasurer
of
the
assessments
made
by
him,
and
sec.
26(1)
directs
the
secretary-treasurer
immediately
to
prepare
an
assessment
roll
in
which
he
shall
set
forth
as
far
as
his
then
information
permits:
""
(l)
the
name
of
the
person
who
is
the
owner
or
of
the
person
who
is
in
legal
possession
of
assessable
personal
property
or
the
names
of
both
such
persons;
‘“(m)
the
assessed
value
of
all
assessable
personal
property.
‘
‘
Sec.
26(3)
further
provides
that
the
secretary-treasurer
shall
include
in
the
assessment
roll
the
name
and
address
of
every
person
who
is
assessed
in
respect
of
such
property
and
particulars
of
the
property
assessed
and
the
assessed
value
thereof,
but
see.
26(4)
states
that
failure
to
enter
any
of
these
particulars
shall
not
invalidate
the
assessment
nor
affect
the
liability
of
any
person
to
pay
taxes
if
the
correct
description
and
the
assessed
value
of
the
property
appear
upon
the
assessment
roll.
Sec.
27
directs
the
secretary-treasurer
to
mail
to
every
person
whose
name
appears
on
the
roll
an
assessment
slip.
If
any
person
whose
name
appears
on
an
assessment
roll
wishes
to
complain,
sec.
35
makes
provision
for
his
complaint
being
made
to
the
court
of
revision
and
such
complaint
may
be
in
respect
of,
inter
alia:
"(b)
any
assessment
alleged
to
be
too
high
or
too
low;
""(c)
any
property
or
business
in
any
way
wrongfully
assessed
;
"(d)
the
name
of
any
person
alleged
to
be
wrongfully
entered
upon
or
omitted
from
the
assessment
roll.
‘
‘
A
further
appeal
from
a
decision
of
the
court
of
revision
is
provided
by
sec.
47,
which
enacts
:
"(1)
Any
person
who
or
the
assessment
of
whose
property
is
affected
by
the
decision
of
the
court
of
revision
or
of
the
person
or
persons
from
time
to
time
designated
by
the
Minister
as
the
person
or
persons
to
deal
with
complaints
may
appeal
to
the
Alberta
Assessment
Commission
against
the
decision
and
may
also
appeal
against
the
omission,
neglect
or
refusal
of
the
court
to
hear
or
decide
a
complaint
made
to
it,
and
in
hearing
all
such
appeals
the
Commission
shall
be
governed
by
the
provisions
of
this
Act
and
The
Alberta
Municipal
Assessment
Commission
Act.’’
The
Municipal
District
Act
makes
provision
in
part
VII
for
the
levying
of
taxes.
Sec.
288
authorizes
a
levy
for
ordinary
municipal
purposes
upon
the
assessed
value
of
all
lands,
improvements
and
personal
property
set
out
in
the
assessment
roll
of
a
tax
at
a
certain
rate,
and
sec.
291
directs
the
secretarytreasurer
to
enter
in
the
assessment
and
tax
roll
a
statement
of
all
taxes
against
each
parcel
or
personal
property
assessed
upon
the
roll.
See.
295
directs
the
secretary-treasurer
to
mail
to
each
person
whose
name
appears
on
the
assessment
roll
notice
of
the
amount
of
taxes
due
by
him
in
respect
of
the
property
or
business
for
which
he
is
assessed,
and
see.
297
provides
that
all
taxes
levied
under
the
provisions
of
this
Act,
except
as
otherwise
provided,
shall
be
deemed
to
be
due
on
January
1
in
the
year
in
which
they
are
imposed
and
shall
be
payable
at
the
office
of
the
secretary-treasurer.
The
provision
in
the
contract
on
which
the
appellants
chiefly
rely
in
contending
that
the
property
assessed
was
the
property
of
His
Majesty
is
clause
15,
which
is
in
these
terms:
"All
machinery,
tools,
plant,
materials,
equipment,
articles
and
things
whatsoever
provided
by
the
contractor
or
by
the
engineer
under
the
provisions
of
sections
14
and
16
for
the
works
and
not
rejected
under
the
provisions
of
section
14
shall
from
the
time
of
their
being
so
provided
become
and
until
the
final
completion
of
the
said
work
shall
be
the
property
of
His
Majesty
for
the
purposes
of
the
said
works
and
the
same
shall
on
no
account
be
taken
away
or
used
or
disposed
of
except
for
the
purposes
of
the
said
works
without
the
consent
in
writing
of
the
engineer.
His
Majesty
shall
not,
however,
be
answerable
for
any
loss
or
damage
whatsoever
which
may
at
any
time
happen
to
such
machinery,
tools,
plant,
materials,
equipment,
articles
or
things.
Upon
the
completion
of
the
works
and
upon
payment
by
the
contractor
of
all
such
monies,
loss,
costs
and
damages,
if
any,
as
shall
be
due
from
the
contractor
to
His
Majesty
or
chargeable
against
the
contractor
under
this
contract
such
of
the
said
machinery,
tools,
plant,
materials,
equipment,
articles
and
things
as
shall
not
have
been
used
and
converted
in
the
works
or
disposed
of
by
His
Majesty
under
powers
conferred
in
this
contract
shall
upon
demand
be
delivered
up
to
the
contractor
in
such
condition
as
they
may
then
be
in.’’
Relying
on
this
clause
the
appellants,
in
their
statement
of
claim,
contended
that
they
had
been
wrongfully
and
illegally
assessed
because
the
personal
property
in
respect
of
which
the
assessment
was
made
was
at
all
relevant
times
the
property
of
His
Majesty
and
that
they
could
not
be
in
law
assessed
or
placed
on
the
tax
roll
in
relation
thereto.
Alternatively,
the
appellants
relied
on
the
exception
of
motor
vehicles
in
see.
5
(1)
(z)
of
The
Assessment
Act
and
contended
that
certain
types
of
vehicles
specified
were
motor
vehicles
within
the
meaning
of
this
exception
and
were
exempt
from
taxation.
The
respondents
in
their
defence
and
counterclaim
contended
that
the
decision
of
the
Alberta
Assessment
Commission
against
the
appellants
was
a
final
decision
and
that
the
appellants
were
precluded
by
it
from
taking
exception
to
the
assessment
and
taxation
of
which
they
complain.
The
respondents
further
sought
a
declaration
that
the
appellants
are
liable
to
the
said
assessment
and
taxation.
Shepherd,
J.,
decided
that
the
appellants
were
not
precluded
from
maintaining
this
action
and
that
the
appellants
are
entitled
to
succeed
on
the
ground
that
the
assessment
for
personal
property
made
against
them
for
the
year
1947
is
invalid.
He
therefore
quashed
and
set
aside
this
assessment.
The
Appellate
Division
of
the
Supreme
Court
of
Alberta
reached
the
same
decision
but
on
somewhat
different
grounds.
The
case
was
then
appealed
to
the
Supreme
Court
of
Canada
where
the
decision
of
the
Courts
of
Alberta
was
reversed
and
the
appellants’
action
was
dismissed.
The
decision
of
the
Supreme
Court
of
Canada
was
unanimous,
but
judgments
of
Kerwin
and
Rand,
JJ.,
were
based
on
different
reasons.
The
decision
of
Rand,
J.,
was
concurred
in
by
Taschereau,
Estey
and
Locke,
JJ.
Rand,
J.,
held
that
the
appellants
were
not
precluded
by
the
decision
of
the
Alberta
Assessment
Commission
from
maintaining
this
action
but
that
they
failed
in
this
action
because
the
property
assessed
was
not
the
property
of
His
Majesty
but
was
throughout
owned
and
possessed
by
the
appellants.
The
majority,
however,
held
that
certain
of
the
subjects
assessed
came
within
the
statutory
exception
of
motor
vehicles
and
the
course
which
they
took
to
give
effect
to
this
finding
gives
rise
to
a
difficulty
which
their
Lordships
will
later
examine.
Kerwin,
J.,
was
of
opinion
that
the
appellants
were
precluded
from
maintaining
this
action
on
the
ground
that
the
decision
of
the
Alberta
Assessment
Commission
is
res
judicata.
Their
Lordships
think
it
proper
to
deal
with
this
matter
first
as
it
involves
a
question
of
jurisdiction.
Questions
of
a
somewhat
similar
character
have
arisen
not
infrequently
in
the
past
and
it
may
be
well,
before
examining
the
statutory
provisions
which
are
relevant
in
this
case,
to
consider
the
earlier
cases.
Toronto
Ry.
Co.
v.
Toronto
Corporation,
[1904]
A.C.
809,
has
for
long
been
regarded
as
the
leading
authority.
In
that
case
under
The
Assessment
Act
of
Ontario
personal
property
of
the
company
was
exempt
from
assessment
and
the
question
was
whether
the
company’s
tramway
cars
in
Toronto
were
within
this
exception
or
were
liable
to
taxation
as
real
estate.
The
corporation
assessed
these
cars.
The
Assessment
Act
provided
for
an
appeal
to
a
court
of
revision
which
was
empowered
to
"‘try
all
complaints
in
regard
to
persons
wrongfully
placed
upon
or
omitted
from
the
roll
or
assessed
at
too
high
or
too
low
a
sum.’’
That
court
decided
against
the
company
on
their
appeal.
The
court
provided
for
further
appeals
first
to
a
board
of
county
court
judges
and
then
to
three
or
more
judges
of
the
Court
of
Appeal
;
and
it
provided
that
the
latter
appeal
should
be
final.
The
company
appealed
unsuccessfully
to
the
board
and
then
to
the
Court
of
Appeal.
Then
the
corporation
sought
to
tax
the
company
on
the
value
of
the
tramway
cars.
The
company
refused
to
pay
and
raised
an
action
in
which
they
claimed
a
declaration
that
the
cars
were
personal
estate
and
that
they
were
not
liable
to
pay
the
tax
in
respect
of
them
which
the
corporation
demanded.
The
corporation
pleaded
inter
alia
that
the
decision
of
the
Court
of
Appeal
was
res
judicata.
Their
Lordships
held
that
the
court
of
revision
and
the
courts
exercising
the
statutory
jurisdiction
of
appeal
from
it
"
"
had
no
jurisdiction
to
determine
the
question
whether
the
assessment
commissioner
had
exceeded
his
powers
in
assessing
property
which
was
not
by
law
assessable.
In
other
words,
where
the
assessment
was
ab
initio
a
nullity
they
had
no
jurisdiction
to
confirm
it
or
give
it
validity.’’
Their
Lordships
pointed
out
that
this
decision
was
in
accordance
with
earlier
Canadian
authorities.
In
Bishop
of
Vancouver
Island
v.
Victoria
(City),
[1921]
2
A.C.
384,
the
land
upon
which
St.
Andrew’s
Cathedral
stands
had
been
assessed
for
several
years
under
the
Municipal
Act
of
British
Columbia
and
the
corporation
sought
to
recover
from
the
bishop
taxes
in
respect
of
these
years.
The
Act
exempted
every
building
set
apart
and
in
use
for
the
publie
worship
of
God,
and
the
question
was
whether
the
site
of
the
cathedral
fell
within
this
exemption.
The
corporation
contended
that
it
was
too
late
to
raise
this
question.
The
Act
provided
that
every
person
complaining
of
an
"‘error
or
omission
in
regard
to
himself’’
as
having
been
wrongfully
placed
upon
the
assessment
roll
had
a
right
of
appeal
to
a
court
of
revision
and
that
the
assessment
roll
as
revised,
confirmed
and
passed
by
the
court
of
revision
except
in
so
far
as
amended
on
appeal
by
one
of
the
tribunals
mentioned
in
the
Act
should
be
deemed
valid
and
binding
on
all
persons
concerned.
The
bishop
had
taken
no
objection
to
the
assessment
rolls
for
the
years
in
question
and
they
were
duly
passed
and
confirmed,
but
it
was
held
by
their
Lordships
that
this
did
not
prevent
him
from
maintaining
later
that
no
taxes
had
been
lawfully
imposed
on
the
land
on
the
ground
that
the
sections
to
which
reference
has
been
made
"are
merely
machinery
sections
dealing
with
irregularities,
mistakes
and
errors
occurring
in
the
drawing
up,
shaping
and
forming
of
the
assessment
rolls,
and
do
not
by
any
means
empower
the
corporation
or
its
officers
to
assess
and
tax
any
kind
of
property
expressly
or
impliedly
exempted
from
taxation
by
the
provisions
of
these
very
statutes
from
1914
and
1918,
both
inclusive.
To
hold
that
they
did
so
would
amount
to
holding
that
the
corporation
and
its
officers
had
the
power
of
repealing
express
provisions
of
these
statutes.’’
These
cases
were
followed
by
the
Supreme
Court
of
Canada
in
Donohue
Bros.
v.
St.
Etienne
de
la
Malbaie
Corporation,
[1924]
S.C.R.
511.
In
that
case
Anglin,
J.,
said:
"The
inclusion
of
the
non-assessable
property
is
simply
ineffectual.
Such
property,
though
included
in
the
roll,
cannot
be
made
the
subject
of
taxation.’’
In
Donohue’s
case
the
Supreme
Court
in
their
Lordships’
Judgment
rightly
distinguished
Shannon
Realties
v.
Ville
de
St.
Michel,
[1924]
A.C.
185.
In
the
Shannon
case
the
company
sought
to
have
the
entire
assessment
roll
for
several
years
quashed
and
annulled.
This
claim
failed,
but
it
appears
from
a
passage
in
the
judgment
of
Duff,
J.,
which
was
approved
by
their
Lordships
that
it
was
open
to
the
company
to
question
the
roll
in
answer
to
a
claim
for
taxes.
The
case
on
which
the
respondents
in
this
appeal
chiefly
relied
was
Hagersville
(Village)
v.
Hambleton,
(1927)
61
O.L.R.
327,
in
which
the
decision
of
a
court
of
revision
was
held
to
be
res
judicata.
The
Ontario
Assessment
Act
had
been
amended
after
the
decision
in
Toronto
Ry.
Co.
v.
Toronto
Corporation,
supra,
so
as
to
give
to
the
court
of
revision
jurisdiction
to
determine
the
amount
of
any
assessment
and
also
all
questions
as
to
whether
any
persons
were
assessable
or
had
been
legally
assessed,
and
Middleton,
J.A.,
stated
that
the
Act
as
amended
‘‘gives
to
the
assessment
roll,
as
finally
revised,
a
binding
and
conclusive
effect
as
to
all
matters
that
were
or
might
have
been
raised
upon
an
appeal
to
the
Court
of
Revision.’’
Their
Lordships
are
unable
to
agree
with
this
as
a
general
statement
of
the
law.
In
the
first
place
the
Hagersville
case
was
complicated
by
an
admission
that
jurisdiction
was
legally
and
effectively
vested
in
the
court
of
revision,
and
it
was
held
at
least
by
some
of
the
learned
judges
that
it,
followed
from
this
that
a
decision
of
the
court
of
revision
was
res
judicata.
Riddell,
J.A.,
having
stated
the
general
rule
that
in
order
to
oust
the
jurisdiction
of
the
ordinary
courts
it
is
necessary,
in
the
absence
of
a
special
law
excluding
it
altogether,
to
plead
that
jurisdiction
exists
in
some
other
court,
said:
"‘Here
the
plea
has
been
properly
made,
the
jurisdiction
in
the
‘other
court,’
the
Court
of
Revision,
is
admitted,
and
the
matter
must
be
held
concluded.”
And
secondly
their
Lordships
are
unable
to
reconcile
the
statement
of
the
law
by
Middleton,
J.A.,
with
later
Ontario
cases.
In
Sifton
v.
Toronto
(City),
[1929]
S.C.R.
484,
an
assessment
was
made
on
a
person
who
had
ceased
to
reside
in
Toronto.
The
assessment
was
made
by
simply
taking
the
previous
year’s
assessments.
The
person
aggrieved
had
resided
in
Toronto
during
that
year
and
had
then
no
reason
to
appeal.
The
next
year
he
had
no
opportunity
to
appeal
in
the
manner
provided
by
the
Act
because
of
the
procedure
adopted
in
making
the
assessment;
the
only
possible
appeal
was
to
the
court.
That
being
so
the
Supreme
Court
distinguished
the
Hagersville
case
and
held
that
appeal
to
the
court
was
competent.
Their
Lordships
recognize
that
this
is
a
possible
distinction
but
they
are
unable
to
find
any
sufficient
distinction
between
the
Hagersville
case
and
the
next
case
decided
in
Ontario,
Ottawa
(City)
v.
Wilson,
[1928-34]
C.T.C.
93.
In
that
case
the
taxpayer
had
removed
from
the
city
before
he
was
assessed,
so
the
city
had
no
right
to
assess
him.
He
could
have
exercised
the
rights
of
appeal
under
The
Assessment
Act
but
he
did
not
do
so.
Instead
he
raised
the
matter
in
court
and
he
was
held
entitled
to
do
so.
The
only
substantial
difference
between
this
case
and
the
Hagersville
case
appears
to
be
that
in
the
Hagersville
case
the
person
aggrieved
had
appealed
unsuccessfully
to
the
court
of
revision
before
raising
the
matter
in
the
ordinary
courts
whereas
in
Wilson’s
case
he
had
not.
This
could
only
be
a
valid
distinction
if
the
law
were
that
a
person
aggrieved
by
an
assessment
has
an
option
either
to
appeal
in
the
manner
provided
by
the
Act
or
to
raise
the
matter
in
the
ordinary
courts.
Their
Lordships
have
seen
nothing
in
the
Act
from
which
an
intention
to
create
such
an
unusual
option
could
be
inferred.
In
their
Lordships’
judgment
the
effect
of
these
authorities
is
that
a
taxpayer
called
on
to
pay
a
tax
in
respect
of
certain
property
has
a
right
to
submit
to
the
ordinary
courts
the
question
whether
he
is
taxable
in
respect
of
that
property
unless
his
right
to
do
so
has
been
clearly
and
validly
taken
away
by
some
enactment,
and
that
the
fact
that
the
statute
which
authorizes
assessment
allows
an
appeal
or
a
series
of
appeals
against
assessments
to
other
tribunals
is
not
sufficient
to
deprive
the
taxpayer
of
that
right.
As
has
already
been
stated
a
person
who
objects
to
an
assessment
under
The
Assessment
Act
of
Alberta
is
entitled
under
that
Act
to
complain
to
a
court
of
revision
on
any
of
the
grounds
set
out
in
sec.
35.
Those
grounds
include
a
complaint
that
any
property
has
been
wrongfully
assessed
or
that
the
name
of
any
person
has
been
wrongfully
entered
upon
the
assessment
roll.
If
disssatisfied
with
the
decision
of
that
court
he
can,
under
sec.
47,
appeal
against
that
decision
to
the
Alberta
Assessment
Commission.
So
there
are
three
stages
at
which
a
person
might
plead
in
an
action
in
the
ordinary
courts
that
he
had
been
illegally
assessed
and
was
not
bound
to
pay
tax
levied
in
consequence
of
that
assessment.
He
might
do
so
without
having
exercised
his
right
to
complain
to
the
court
of
revision;
or
he
might
do
so
after
having
complained
unsuccessfully
to
the
court
of
revision
but
without
having
exercised
his
right
to
appeal
to
the
assessment
commission;
or
he
might
do
so
after
having
appealed
unsuccessfuly
to
the
assessment
commission.
It
is
necessary
to
examine
each
of
these
possible
cases
in
turn.
The
relevant
provisions
of
the
Act
in
the
first
case
are
secs.
32
and
45.
Sec.
32
provides:
‘Where
any
person
was
at
the
time
of
the
assessment
taxable
in
respect
of
any
property,
business,
trade
or
profession,
or
in
respect
of
any
share
or
interest
therein,
in
respect
of
which
his
name
was
entered
upon
the
assessment
roll,
and
there
has
been
no
complaint
to
the
court
of
revision,
in
accordance
with
the
provisions
of
this
Act,
then
upon
the
expiration
of
the
time
hereinafter
limited
for
the
lodging
of
complaints,
the
assessment
of
the
property,
business,
trade
or
profession
or
any
share
or
interest
therein
entered
opposite
his
name
shall
be
deemed
incontestably
to
be
the
proper,
lawful
and
final
assessment
of
the
property,
business,
trade
or
profession
or
of
his
share
or
interest
therein.’’
See.
45
provides:
4
Upon
the
termination
of
the
sittings
of
the
court
of
revision,
or
where
there
are
no
complaints
upon
the
expiry
of
the
time
for
complaining
thereto,
the
secretary-treasurer
shall,
over
his
signature,
enter
at
the
foot
of
the
last
page
Of
the
roll,
the
following
certificate,
filling
in
the
date
of
the
entry
:
‘Roll
finally
completed
this
day
of
,
19
and
the
roll
as
thus
finally
completed
and
certified
shall
be
the
assessment
roll
for
that
year,
subject
to
amendment
on
appeal
by
the
Alberta
Assessment
Commission,
and
to
any
amendment
that
may
be
necessary
to
bring
the
roll
into
conformity
with
the
assessment
of
the
municipality
made
by
the
Commission,
and
any
directions
of
the
Commission
with
respect
thereto,
and
subject
to
any
further
amendment
as
herein
provided,
and
shall
be
valid
and
bind
all
parties
concerned,
notwithstanding
any
defect
in
or
omission
from
the
said
roll
or
mistake
made
in
or
with
regard
to
such
roll
or
any
defect,
error
or
mis-statement
in
any
assessment
slip
or
notice
or
any
omission
to
deliver
or
to
transmit
any
assessment
slip
or
notice.??
It
is
to
be
observed
that
the
initial
words
of
sec.
32
‘‘
Where
any
person
was
at
the
time
of
the
assessment
taxable
in
respect
of
any
property
.
.
.’’
govern
the
whole
section.
So,
if
a
person
was
not
taxable
in
respect
of
property
entered
against
his
name
in
the
roll,
this
section
does
not
purport
to
make
that
assessment
incontestable
or
final.
Sec.
45
only
makes
the
roll
final
and
binding
notwithstanding
defects,
omissions
or
mistakes
in
it,
and
is
plainly
only
what
their
Lordships
in
Victoria
(City)
v.
Bishop
of
Vancouver
Island,
supra,
referred
to
as
a
‘‘machinery
section.”
Accordingly
there
is
nothing
in
the
Act
which
could
prevent
a
person
who
had
failed
to
complain
to
a
court
of
revision
from
pleading
after
the
roll
had
become
final
that
he
was
not
taxable
in
respect
of
the
property
entered
against
his
name
in
the
roll.
The
position
at
the
next
stage
is
the
same.
The
relevant
sections
are
then
secs.
33
and
45,
and
the
provisions
of
sec.
33
are
the
same
as
those
of
sec.
32
mutatis
mutandis.
Sec.
33
also
begins
with
the
words
‘‘
Where
any
person
was
at
the
time
of
the
assessment
taxable
,’’
So
an
unsuccessful
complaint
to
the
court
of
revision
does
not
prevent
the
person
aggrieved
from
later
raising
in
court
the
question
whether
he
is
taxable,
and
the
decision
of
the
court
of
revision
is
not
res
judicata.
The
respondents
contend
that
the
position
is
different
if
the
person
aggrieved
appeals
from
the
decision
of
a
court
of
revision
to
the
Alberta
Assessment
Commission
before
raising
the
matter
in
the
ordinary
courts,
and
that
a
decision
of
the
assessment
commission
dismissing
such
an
appeal
is
res
judicata.
If
that
contention
is
right
the
effect
is
that
a
person
aggrieved
by
a
decision
of
a
court
of
revision
has
an
option
either
to
take
the
matter
to
court
or
to
appeal
to
the
assessment
commission,
so
that
if
he
appeals
to
the
assessment
commission
and
vets
an
adverse
decision
from
them
he
cannot
thereafter
be
heard
to
raise
the
same
matter
again
in
court.
This
contention
is
based
entirely
on
sec.
53
of
The
Assessment
Act
which
is
in
these
terms
:
“In
determining
all
matters
brought
before
the
Commission
it
shall
have
jurisdiction
to
determine
not
only
the
amount
of
the
assessment,
but
also
all
questions
as
to
whether
any
things
are
or
were
assessable
or
persons
were
properly
entered
on
the
assessment
roll
or
are
or
were
legally
assessed
or
exempted
from
assessment.”
The
argument
is
that
jurisdiction
has
been
conferred
on
the
commission
to
determine
whether
persons
were
legally
assessed
and
no
appeal
from
the
commission’s
decision
has
been
provided,
and
that
a
decision
of
a
tribunal
which
has
jurisdiction
to
make
that
decision
must
be
res
judicata.
But
their
Lordships
are
of
opinion
that
sec.
53
is
not
unambiguous.
No
doubt
it
could
have
the
meaning
for
which
the
respondents
contend,
but
it
can
also
mean
that
the
commission
has
jurisdiction
to
determine
the
matters
mentioned
in
so
far
as
it
is
necessary
for
it
to
determine
these
matters
in
order
to
carry
out
its
statutory
duty
to
determine
whether
the
assessment
roll
should
be
amended,
but
only
for
that
purpose.
The
court
of
revision
must
have
jurisdiction
to
determine
those
matters
for
that
purpose
because
the
grounds
on
which
the
Act
allows
a
complaint
to
be
made
to
that
court
may
involve
those
matters,
and
the
statutory
function
of
the
commission
is
only
to
hear
and
determine
appeals
from
courts
of
revision.
There
is
no
indication
in
sec.
45
or
elsewhere
that
an
entry
in
the
assessment
roll
which
has
been
upheld
by
the
commission
is
in
any
different
position
from
any
other
entry
in
the
roll
or
is
any
less
subject
to
challenge
in
the
courts.
Some
indication
that
the
scope
of
sec.
53
is
not
unlimited
may
also
be
got
from
the
fact
that
it
only
confers
jurisdiction
to
deal
with
questions
of
assessment
and
is
silent
as
to
questions
of
liability
to
taxation,
whereas,
secs.
4
and
5
which
are
the
leading
sections
in
the
Act
deal
with
liability
to
and
exemption
from
both
assessment
and
taxation.
Moreover
their
Lordships
think
it
not
irrelevant
to
note
that
originally,
when
appeals
from
courts
of
revision
went
to
the
district
judge
and
not
to
the
commission,
the
Act
provided
that
the
decision
and
judgment
of
the
judge
should
be
final
and
conclusive
in
every
case,
but
that
after
the
commission
was
set
up
to
hear
appeals
that
provision
was
repealed.
The
jurisdiction
of
the
courts
to
determine
questions
of
liability
to
taxation
can
only
be
ousted
by
clear
words
and
in
their
Lordships’
judgment
it
is
far
from
clear
that
sec.
03
was
intended
to
have
that
effect.
Accordingly
their
Lordships
agree
with
the
majority
of
the
learned
judges
of
the
Supreme
Court
of
Canada
in
holding
that
the
decision
of
the
assessment
commission
is
not
res
judicata
against
the
appellants.
There
being,
then,
no
substance
in
the
plea
that
the
mere
decision
of
the
assessment
commission
is
final
and
conclusive
in
favour
of
the
assessment,
their
lordships
proceed
to
consider
whether
that
assessment
was,
on
its
merits,
valid
or
not.
First,
it
is
necessary
to
determine
whom,
or
what
property.
in
the
present
case
the
relevant
provincial
legislation
purports
to
assess
to
personal
property
tax.
It
may
be
convenient
to
recall
at
this
point
the
relevant
statutory
provisions
although
some
of
them
have
already
been
indicated.
These
provisions
are
contained
in
the
Alberta
Assessment
Act,
supra,
as
amended;
and
in
the
Alberta
Municipal
District
Act,
supra,
also
as
amended.
Statutes
of
this
kind
can,
in
the
case
of
land,
in
which
successive
or
concurrent
"‘estates''
can
exist,
assess
the
persons
entitled
to
these
limited
interests
in
proportion
to
their
respective
value.
When,
however,
personal
property
(which
is
defined
in
The
Assessment
Act
as
‘‘goods
and
chattels’’)
is
involved,
the
law
knows
nothing
of
successive
estates
in
such
property,
nor
do
the
provincial
statutes
pretend
to
assess
“‘limited
interests’’
therein.
Whoever
is
liable
to
pay
the
tax
must
pay
it
on
the
full
cash
value
of
the
personal
property
assessed
(see,
for
instance,
sec.
8(3)
of
the
Alberta
Assessment
Act).
The
person
who
is
to
be
assessed
and
who
is
to
pay
is
the
person
whose
name
is
entered
on
the
assessment
roll
under
the
provisions
of
sec.
26
of
The
Assessment
Act;
and
this
person,
in
the
case
of
personal
property,
is
either
the
“owner”
or
the
person
who
is
‘‘in
legal
possession’’
of
the
property,
or
both
such
persons
(sec.
26(1)
(i)).
While
the
section
speaks
of
the
‘‘owner’’
or
“a
person
in
legal
possession,”
the
definitions
section—sec.
2—provides
that
“owner”
in
relation
to
property
other
than
land
means
‘‘any
person
who
is
in
legal
possession”?
thereof,
and
seemingly,
here,
no
one
else.
(What
effect
this
small
discrepancy
has
when
the
ownership
of
chattels
is
in
X
and
the
legal
possession
in
Y
is
obscure
but
of
no
practical
importance
in
this
case.)
By
sec.
5(1)
of
The
Assessment
Act
the
following
property
is
exempt
from
taxation:
"(o)
every
right,
title
and
interest
of
His
Majesty
in
any
property
whatsoever
;
“
(z)
all
motor
vehicles.’’
By
sec.
125
of
the
British
North
America
Act,
1867:
“No
Lands
or
Property
belonging
to
Canada
or
to
any
Province
shall
be
liable
to
Taxation.”
The
first
inquiry
must,
as
indicated
earlier,
be
whether
the
Alberta
legislation
(which
has
not
been
challenged
on
the
ground
that
it
is
ultra
vires)
purports
to
make
either
the
property
in
question
in
this
case
or
the
appellants
in
respect
of
that
property
assessable.
This
involves
the
further
inquiry,
whether
the
appellants
were,
in
1947,
(a)
‘‘owners’’
or
(b)
persons
‘‘in
legal
possession
??
of
the
chattels
in
question
within
sec.
26(1)
(l).
Clearly,
if
they
were
neither—as,
for
instance,
they
would
be
if
the
crown
were
both—the
appellants
are
exempt.
(a)
Their
Lordships
are
of
opinion
that
the
crown
was
at
all
material
times
the
owner
of
the
articles
in
question.
Clause
15
of
the
contract
provides
:
“15.
All
machinery,
tools,
plant,
materials,
equipment,
articles
and
things
whatsoever,
provided
by
the
Contractor
or
by
the
Engineer
under
the
provisions
of
sections
14
and
16,
for
the
works,
and
not
rejected
under
the
provisions
of
section
14,
shall
from
the
time
of
their
being
so
provided
become,
and,
until
the
final
completion
of
the
said
work,
shall
be
the
property
of
His
Majesty
.
.
.’’
The
English
decided
cases
have
dealt
not
infrequently
with
clauses
of
this
type.
See
Brown
v.
Bateman,
(1862)
L.R.
2
C.P.
272;
Blake
v.
Izzard,
(1867)
16
W.R.
108
;
Reeves
v.
Barlow,
(1884)
12
Q.B.D.
436;
In
re
Keen;
Ex
parte
Collins,
[1902]
1
K.B.
555;
Hudson
on
Building
Contracts,
7th
ed.,
pp.
396,
420:
Hart
v.
Porthgain
Harbour
Co.,
[1903]
1
Ch.
690.
In
some
of
these
cases
a
distinction
has
been
drawn
between
clauses
which
provide
that
as
and
when
plant
or
materials
are
brought
to
the
site
they
shall
be
"‘considered’’
or
‘‘deemed’’
to
become
the
property
of
the
building
owner
and,
on
the
other
hand,
clauses
which
provide
that
they
are
to
"‘be
and
become’’
his
property.
In
the
former
case
it
has
sometimes
been
held
that
the
clause
was
ineffective
to
achieve
its
aim
and
that
the
property
remained
in
the
builder,
at
the
mercy
of
his
creditors
and
trustee
in
bankruptcy
(see
In
re
Keen;
Ex
parte
Collins,
supra).
When,
as
in
Keeves
v.
Barlow,
supra,
a
decision
of
the
Court
of
Appeal
and
perhaps
the
leading
decision
in
the
field,
the
formula
is
‘‘be
and
become”?
or
its
equivalent,
that
case
decides
that
the
clause
means
what
it
says,
operates
according
to
its
tenor,
and
effectively
transfers
the
title.
In
Hart
v.
Porthgain
Harbour
Co.,
supra,
Farwell,
J.
(as
he
then
was),
seems
to
have
thought
it
immaterial
which
formula
was
used;
but
on
any
view
"‘be
and
become”?
is
effective,
and
the
same
must
hold
good
of
‘‘
become
and
be’’—the
wording
employed
in
this
case.
It
is
true
that
apart
from
the
case
of
bargain
and
sale
of
goods
(and
sale
of
goods
is
not
here
in
question)
either
a
deed,
or
a
delivery
(actual
or
constructive)
is
necessary
to
transfer
the
title
to
chattels,
inter
vivos.
But
in
the
present
case
there
was
delivery
on
a
site
owned
and
occupied
by
the
building
owner—the
crown—and
on
the
English
cases
this
has
been
held
sufficient.
(It
has
been
assumed
that
the
words
"‘as
and
when
provided”
in
clause
15
mean
"‘as
and
when
delivered
on
the
site;”
indeed,
they
can
hardly
mean
anything
else.)
If
this
reasoning
is
well
founded
the
plant,
equipment
and
materials
became
the
property
of
the
crown
as
and
when
so
delivered.
But
the
provincial
statute
purports
to
make
not
only
the
owner
but
any
persons
in
legal
possession
of
the
personal
property
assessable.
Their
Lordships
will,
for
the
time
being,
postpone
consideration
of
the
arguments
(1)
that
this
tax
falls
on
‘‘property’’
only
and
not
on
persons
in
respect
of
that
prop-
erty;
(2)
that
by
sec
125
of
the
B.N.A.
Act,
1867,
"property
belonging
to
the
Crown
is
exempt
from
taxation;’’
and
treat
first,
without
recourse
to
these
possible
grounds
of
exemption,
the
question
whether
the
crown
or
the
appellants
were
at
the
material
time
"‘in
legal
possession’’
of
the
relevant
property.
It
is
certainly
arguable,
though
not
in
their
Lordships’
considered
opinion
more,
that
as
and
when
the
chattels
were
delivered
on
the
crown
site,
the
crown
acquired
and
as
from
then
retained
not
only
dominion,
but
legal
possession,
of
them.
The
following
arguments
under
this
head
deserve
consideration:
(1)
While
it
is
true
that
the
earlier
part
of
clause
15
makes
no
express
provision
that
possession
is
to
reside
in
either
party,
yet
the
latter
part
of
the
clause
provides
that
the
respondents
—the
crown—must,
when
the
contractual
work
has
been
completed,
deliver
up
the
property
to
the
builders.
This,
it
is
argued,
is
unmeaning
unless
there
has
been
in
the
first
instance
a
delivery
the
other
way
around—by
the
builders
to
the
crown—
and
such
a
delivery
would
vest
the
legal
possession
in
the
crown
and
divest
the
builders
thereof
at
the
material
time.
(2)
A
rule
has
sometimes
been
propounded
in
English
decisions
that
where
the
contract
is
silent
or
ambiguous
as
to
what
party
is
to
have
possession,
there
arises
a
presumption
that
possession
“‘runs
with’’
the
ownership
(see
per
Lord
Esher
in
Ramsay
v.
Margrett,
[1894]
2
Q.B.
18,
at
25).
(3)
There
must
be
a
term
implied
in
this
case
that
(notwithstanding
the
property
has
passed
to
the
crown)
the
builders
shall
be
entitled
to
use
and
handle
their
plant
and
materials.
Such
an
implication
is,
in
the
strictest
sense,
‘‘necessary
to
the
business
efficacy
of
the
contract’’—a
building
contract—for
without
it
the
builders
could
not
build;
but,
it
is
contended,
it
is
wrong
to
imply
more
than
is
strictly
necessary;
and
here
the
necessities
of
the
case
would
be
satisfied
by
the
implication
of
a
licence,
without
the
further
implication
of
legal
possession.
(4)
It
is
further
argued
that
the
essence
of
legal
possession
is
exclusive
control
and
that
this
cannot
have
been
intended
to
remain
in
the
builders
because
of
the
very
wide
powers
of
control
vested
by
clause
11
of
the
contract
in
the
crown's
engineer.
These
arguments
have
been
most
carefully
considered.
They
commended
themselves
to
the
trial
judge.
But,
although
not
lacking
in
formal
plausibility,
they
seem
to
their
Lordships,
when
weighed,
deficient
in
substance
and
reality.
Argument
(4)
for
instance
would
seem
to
confuse
control
of
operations
with
control
of
the
physical
instruments
by
which
the
opera-
tions
are
to
be
carried
out.
These
may
well
be
in
different
persons.
The
true
position,
in
their
Lordships’
view,
is
that
while
the
delivery
on
the
crown
site
was
a
delivery
to
the
crown
and
vested
the
ownership
in
the
crown,
there
was
a
notional
or
actual
bailment
or
redelivery
of
possession
to
the
builders
for
the
purpose
of
carrying
out
the
building
contract.
If,
therefore,
no
other
considerations
were
involved
than
those
considered
so
far,
the
appellants
might
be
judged
to
have
been
validly
assessed
qua
persons
in
legal
possession.
There
are,
however,
at
least
two
other
factors
to
be
taken
into
account
:
(a)
The
first
of
these
is
based
on
the
express
exemption
under
sec.
5(1)(z)
of
The
Assessment
Act,
of
"‘all
motor
vehicles.’’
In
the
assessment
were
included
certain
articles
the
character
of
which
qua
"‘motor
vehicles’?
within
the
meaning
of
this
head
of
exemption
is
not
challenged
in
these
proceedings—viz.,
three
motor
vehicles
of
a
type
called
"‘dumptors.”
They
were
not
an
insignificant
component
of
the
total
subjectmatter
of
the
assessment.
The
assessment
commission
reduced
the
assessed
values
standing
in
the
assessment
as
it
emerged
from
the
court
of
revision;
but
as
their
Lordships
read
the
commission’s
decision
it
merely
scaled
down
the
amounts
without
excising
or
varying
any
items
against
which
these
amounts
were
tabled.
The
Supreme
Court
of
Canada
on
the
other
hand
dealt
with
this
situation
by
deleting
the
three
‘‘dumptor’’
items
as
items
and
approving
the
reduced
assessment
subject
to
this
deletion.
‘Their
order
was:
“And
this
Court
did
further
order
and
adjudge
that
the
appellant
is
entitled
to
a
declaration
that
the
assessment
and
taxation
of
all
the
personal
property
in
question
in
this
action,
except
the
dumptors,
were
properly
made
and
imposed.”
With
great
respect
to
the
Supreme
Court,
their
Lordships
feel
bound
to
express
their
view
that
the
course
adopted
by
that
court
was
not
open
to
it.
When
an
assessment
is
not
for
an
entire
sum,
but
for
separate
sums,
dissected
and
earmarked
each
of
them
to
a
separate
assessable
item,
a
court
can
sever
the
items
and
eut
out
one
or
more
along
with
the
sum
attributed
to
it,
while
affirming
the
residue.
But
where
the
assessment
consists
of
a
single
undivided
sum
in
respect
of
the
totality
of
property
treated
as
assessable,
and
when
one
component
(not
dismissable
as
de
minimis)
is
on
any
view
not
assessable
and
wrongly
included,
it
would
seem
clear
that
such
a
procedure
is
barred,
and
the
assessment
is
bad
wholly.
That
matter
is
covered
by
authority.
In
Westmount
(City)
v.
Montreal
Inght,
Heat
&
Power
Consolidated,
[1926]
S.C.R.
515,
the
court
(see
especially
per
Anglin,
C.J.)
in
these
conditions
held
that
an
assessment
which
was
bad
in
part
was
infected
throughout
and
treated
it
as
invalid.
Here
their
Lordships
are
of
opinion,
by
parity
of
reasoning,
that
the
assessment
was
invalid
on
toto.
(b)
This
would
be
a
sufficient
reason
for
allowing
the
appeal,
but
their
Lordships
think
it
desirable
to
deal
with
a
seeond
ground
on
which
the
assessment
was
impeached,
having
regard
to
the
elaborate
argument
which
was
directed
to
it.
It
has
been
noted
that
sec.
125
of
the
B.N.A.
Act,
1867,
provides
that
"No
Property
or
Land
belonging
to
Canada
or
to
any
Province
shall
be
liable
to
Taxation.’’
A
solution
of
the
present
problem
tempting
in
its
simplicity
is
to
say
that
the
chattels
in
question
in
this
case
belong
to
the
crown
in
right
of
the
Dominion
of
Canada
and
cannot
be
the
subject-matter
of
taxation,
whoever
may
be
in
legal
possession
of
them;
that
there
is
no
subject-matter
on
which
a
provincial
taxing
statute
can
operate.
The
appellants
hesitated
to
put
their
case
as
high
as
this,
feeling
that
it
would
be
difficult
to
reconcile
such
a
submission
with
a
number
of
decided
cases
including
some
decisions
of
this
Board,
where
the
subject
was
taxed
although
the
ownership
was
in
the
crown.
Much
argument
was
directed
to
the
question
whether
the
present
tax
or
assessment
was
of
"‘prop-
erty’’
or
of
"‘persons
in
respect
of
that
property,’’
the
first
alternative
favouring
this
extreme
contention
open
to
the
appellants.
On
this
point
the
following
considerations
seem
to
their
Lordships
relevant
:
(1)
Of
course
no
tax
literally
falls
on
"property’’
only
as
opposed
to
"‘persons.’’
All
taxes
are
physically
paid
by
persons.
But
(2)
this
particular
tax
cannot
be
exacted
as
a
debt
from
the
person
on
the
assessment
roll.
Provisions
for
exacting
taxes
on
land
as
debts
due
from
the
person
assessed
(see
sec.
305
of
Municipal
District
Act)
are
not
reproduced
when
it
comes
to
taxes
on
personal
property.
(3)
The
provincial
Acts
in
this
connection
in
some
passages
speak
of
tax
on
personal
property
or
tax
on
persons
in
respect
of
their
personal
property
almost
interchangeably;
but
it
is
perhaps
not
without
importance
that
the
actual
charging
section
in
the
present
case—sec.
288
of
The
Municipal
District
Act
—speaks
of
a
tax
‘‘on
the
assessed
value
of
all
.
.
.
personal
property.”
The
section
[as
enacted
by
1944,
€.
41,
see.
26,
and
amended
by
1947,
c.
49,
see.
11]
reads
as
follows:
"
‘288.
Upon
the
completion
of
the
estimate
of
probable
expenditure
the
council
shall
proceed
to
make
an
estimate
of
the
probable
revenue
of
the
municipal
district
for
the
year
to
be
derived
from
business
taxes
and
sources
of
revenue
other
than
taxation,
and
shall
by
by-law
authorize
the
secretary-treasurer
to
levy
for
ordinary
municipal
purposes
upon
the
assessed
value
of
all
lands,
improvements
and
personal
property
set
out
in
the
assessment
roll,
a
tax
at
such
uniform
rate
on
the
dollar
as
the
council
deems
sufficient
to
produce
the
amount
of
the
expenditures
as
estimated
by
the
council
less
the
amount
of
the
estimated
probable
revenue
from
business
taxes
and
sources
other
than
taxation,
due
allowance
being
made
for
the
amount
of
taxes
which
may
reasonably
be
expected
to
remain
unpaid,
and
for
the
offset
of
business
or
improvement
tax
as
hereinafter
provided
for.’’
It
may
well
be,
therefore,
that
the
tax
is
properly
to
be
regarded
as
a
tax
on
property
and
on
property
only.
There
is
as
against
this
the
following
circumstance
to
be
taken
into
account:
In
cases,
at
least
where
land
has
been
concerned,
it
has
been
held
that
if
the
language
of
the
provincial
statute
is
sufficiently
explicit
and
compelling,
A.
may
be
taxed
in
respect
of
property
"‘belonging’’
to
B.
Even
where
B.
is
exempt,
e.g.,
where
B.
is
the
crown,
property
belonging
to
B.
may
be
taken
as
a
fictional
measure
of
the
tax
to
be
exigible
from
A.,
provided
always
the
Act
makes
this
intention
perfectly
clear.
Their
Lordships
have
not
in
mind
the
case
often
cited
in
this
connection
of
Halifax
(City)
v.
Fairbanks
Estate,
[1928]
A.C.
117,
because
in
that
case
the
special
legislation
provided
that
land
let
by
the
subject
to
the
crown
should
be
treated
as
still
occupied
by
the
subject.
This
is
clearly
not
a
case
of
property
”belonging”
to
the
crown
at
all.
The
property
”belonged”
to
the
subject
and
was
let
to
the
crown.
The
same
consideration
applies
to
A.-G.
of
Can.
v.
Vancouver
(City),
[1944]
S.C.R.
23
(reversing
[1943]
1
W.W.R.
196)
where
again
the
subject
(the
Canadian
Northern
Pacific
Railway)
leased
land
to
the
crown
and
was
assessed
under
the
terms
of
the
provincial
statute
which
charged
the
lessor
in
respect
of
the
whole
value
of
such
land.
Rather
they
have
in
mind
cases
such
as
Smith
v.
Vermilion
Hills
R.M.,
[1916]
2
A.C.
569;
Spy
Hill
R.M.
v.
Bradshaw,
(1912)
2
W.W.R.
399;
and
Montreal
(City)
v.
A.-G.
for
Can.,
[1923]
A.C.
136.
In
Smith
v
.Vermilion
Hills
R.M.,
the
appellant
was
assessed,
under
Saskatchewan
Statutes,
6
Edw.
VII,
ec.
36,
and
7
Edw.
VII,
c.
3,
in
respect
of
Dominion
land
of
which
he
held
grazing
leases
from
the
crown.
‘‘Land’’
was
defined
in
such
statutes
as
including
any
estate
or
interest
therein.
It
was
held
that
the
statutes
should
be
read
as
imposing
the
tax
on
the
appellant’s
interest
in
the
land.
This
ease
is
clearly
distinguishable
from
the
present
appeal
on
the
ground
that
the
relevant
provincial
statute
dealing
with
‘‘land’’
(in
which
successive
interests
and
estate
can
subsist)
provided
that
that
term
should
include
“any
estate
or
interest
therein’’
and
that
every
‘‘owner
or
occupant”
should
be
liable
to
be
taxed
for
‘‘land
owned
or
occupied
by
him.’’
It
was
held,
affirming
the
Supreme
Court
of
Saskatchewan
(6
Sask.
L.R.
336)
and
the
Supreme
Court
of
Canada
(49
S.C.R.
063)
that
the
tax
was
not
imposed
on
the
land
itself,
so
as
to
conflict
with
sec.
125
of
the
B.N.A.
Act,
1867,
but
was
imposed
only
on
the
“interest”
of
the
appellant
as
a
tenant
thereof.
The
Supreme
Court
of
Canada
had
reached
a
similar
conclusion
in
C.
&
E.
Land
Co.
v.
A.-G.
of
Alta.,
[1911]
45
S.C.R.
170.
In
Montreal
(City)
v.
A.-G.
for
Can.,
supra,
the
material
provincial
taxing
provision
(article
362A,
added
to
the
City
of
Montreal
Charter
by
7
Edw.
VII,
e.
63,
article
19)
provided
that
persons
occupying
for
certain
purposes
crown
buildings
or
lands
should
be
taxed
as
if
they
were
actual
owners.
The
tenant
of
such
buildings
and
lands
did
not
pay.
The
Judicial
Committee
held,
following
the
Vermilian
Hills
case,
that
the
tax
was
only
on
the
tenant’s
interest
during
his
occupation,
and
was
not
a
tax
“‘on’’
crown
lands
and
as
such
ultra
vires
see.
125
of
the
B.N.A.
Act
1867.
In
the
present
case
:
(1)
“Lands”
are
not
involved,
but
personal
property,
in
which
estates
do
not
exist:
(2)
There
is
no
express
provision
that
the
subject
is
to
be
liable
to
any
extent
in
respect
of
the
Crown
property,
or
that
the
exemption
accorded
to
such
property
shall
not
extend
to
the
subject
who
may
have
some
interest
therein
(contrast
Montreal
(City)
v.
A.-G.
for
Can.,
supra)
;
(3)
All
that
is
said
is
that
(without
specific
reference
to
crown
property)
the
subject
shall
be
lable
where
in
legal
possession
;
(4)
This
leaves
it
open
to
doubt
whether
‘‘person
in
possession”
covers
a
person
in
possession
of
crown
property.
Where
the
terms
and
scope
of
incidence
of
such
a
provision
are
in
any
doubt
they
should
if
possible
be
construed
so
as
not
to
conflict
with
see.
125
of
the
B.N.A.
Act,
1867—and
that
accord
ean
in
the
present
case
best.
be
secured
by
reading
persons
"‘in
legal
possession’’
as
limited
to
persons
who
would
be
taxable
if
owners
in
possession;
and
the
crown,
who
are
the
owners,
would
not
have
been
taxable
if
in
possession
;
(5)
Lastly,
according
to
the
terms
of
sec.
26(1)
(1)
itself
the
person
to
be
entered
on
the
assessment
roll
is
not
the
person
in
legal
possession
of
any
personal
property,
but
the
person
‘‘in
legal
possession
of
assessable
personal
property
;
‘
‘
and
crown
property
not
being
taxable
is
a
fortiori
non-assessable.
For
these
reasons
it
appears
to
their
Lordships
that,
even
if
motor
vehicles
had
not
been
included
in
the
assessment,
it
would
still,
for
the
reasons
indicated
above,
have
been
invalid.
Their
Lordships
will
accordingly
humbly
advise
His
Majesty
that
this
appeal
ought
to
be
allowed,
the
judgment
of
the
Supreme
Court
of
Canada
set
aside
and
the
judgment
of
the
Appellate
Division
of
the
Supreme
Court
of
Alberta
restored,
and
that
the
respondents
ought
to
pay
the
appellants’
costs
of
the
appeal
to
the
Supreme
Court
of
Canada.
The
respondents
must
pay
the
appellants’
costs
of
this
appeal.
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