City of Halifax v. Lithgow, (1896) 26 SCR 336

Supreme Court of Canada

The City of Halifax v. Lithgow (1896) 26 SCR 336

Date: 1896-05-18

The City of Halifax (Plaintiff)

Appellant

And

James R. Lithgow (Defendant)

Respondent

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.

1896: May 6; 1896: May 18.

Present:—Sir Henry Strong C.J. and Taschereau, Sedgewick King and Girouard JJ.

Municipal corporation—Repair of streets—Pavements—Assessment on property owner—Double taxation—24 V. c. 39 (N.S.)—53 V. c. 60 s. 14 (N.S.)

By sec. 14 of the Nova Scotia statute 53 V. c. 60, the City Council of Halifax was authorized to borrow money for paving the sidewalks of the city with concrete or other permanent material, one-half the cost to be a charge against the owners of the respective properties in front of which the work should be done and to be a first lien on such properties. A concrete sidewalk was laid, under authority of this statute, in front of L.'s property and he refused to pay half the costs on the ground that his predecessor in title had in 1867, under the Act 24 V. c. 39, furnished the material to construct a brick sidewalk in front of the same property and that it would be imposing a double tax on the property if he had to pay for the concrete sidewalk as well.

Held, reversing the judgment of the Supreme Court of Nova Scotia, that there was nothing dubious or uncertain in the Act under which the concrete sidewalk was laid; that it authorized no exception in favour of property owners who had contributed to the cost of sidewalks laid under the Act of 1861; and that to be called upon to pay half the cost of a concrete sidewalk in 1891 would not be paying twice for the same thing because in 1867 the property had contributed bricks to construct a sidewalk which, in 1891, had become worn out, useless and dangerous.

APPEAL from a decision of the Supreme Court of Nova Scotia in favour of the defendant on a special case.

The material facts submitted to the court by the special case are sufficiently indicated by the above

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head-note and the judgment of the court. The majority of the court below held that the defendant could not be called upon to pay his proportion of the cost of a concrete sidewalk laid in front of his property as his predecessor in title had, in 1867, contributed to the expense of a brick sidewalk in the same place and to make him pay for the concrete would be imposing a double tax on the property. The city appealed.

MacCoy Q.C. for the appellant. The same principles as to double taxation are not applied to public bodies and to private corporations. Hibernian Mine Co. v. Тике[1].

The power to change the covering of the sidewalks is a continuing powder and may be exercised whenever the necessity arises. McCormack v. Patchin[2].

The construction given to the Act by the judgment appealed from would make it impossible to apply it and is a strained construction which should not be allowed to stand. See Attorney General v. Noyes[3]; Sawyer v. Vestry of Paddington[4].

Bell for the respondent. The construction of the Act of 1890 which is contended for by the city would impose a burden upon certain ratepayers while the Act was intended to confer a benefit. See Bonella v. Twickenham Local Board[5].

The judgment of the court was delivered by:

THE CHIEF JUSTICE.—This was a special case stated for the opinion of the Supreme Court of Nova Scotia. The case was thus submitted for the purpose of determining the liability of property owners in the city of Halifax to pay their proportion of the cost of materials and laying down sidewalks under chapter

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60, section 14 of the Acts of the Legislature of Nova Scotia for the year 1890. By the section in question it was enacted as follows:

The council is hereby authorized to borrow on the credit of the city of Halifax as the same may be required from time to time a sum not exceeding §250,000 for the purpose of covering such sidewalks of said city as the city council shall determine with brick, flat stones, concrete, or any other appropriate permanent material and for generally improving the condition of and paving such streets and the purchase of such machinery, appliances and permanent material as the city council may determine on the recommendation of the city engineer. It shall decide upon such work to be done under the direction and superintendence of the city engineer; one-half the cost of covering the said sidewalks as above mentioned shall be a charge against the owner or owners of the property in front of which said work is done and shall form a prior lien on said property from the time the city engineer shall file in the office of the city board of works a certificate showing the total cost, which shall be conclusive as to the amount and the ownership of said property, and the lien may be enforced and collected in the same manner and with the same rights and remedies as taxes on real estate are now collected, and may also be collected in the name of the city as an action of debt due, in any court of competent jurisdiction.

In the exercise of the powers thus conferred and on the recommendation of the city engineer, the city council in August, 1891, by resolution directed a concrete sidewalk to be laid down in Barrington street, part of it opposite the property of the respondent. This work having been completed, the engineer filed a certificate showing the total cost of the work in front of the respondent's property, as required by the Act. The city now claims one-half of the cost of this concrete sidewalk to be paid by the respondent and claims a lien therefor on the property of the respondent in the terms of the statute.

The respondent insists that he is not liable to pay the half cost of this new sidewalk for the reason that his predecessor in title in the year 1867, under a statute passed in 1861 which authorized the city to expend

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$20,000 in improving the city sidewalks, had in accordance with the requirements of the last mentioned Act and of a resolution of the city council passed thereunder furnished the material to construct a brick sidewalk in front of this same property. For this reason it was insisted by the respondent that it would be to impose double taxation if the Act of 1891 was applied to his property, and this contention was upheld by a majority of the court below, the Chief Justice and Mr. Justice Townshend dissenting.

At the time of the passing of the resolution for the concrete sidewalk in August, 1891, the case states that:

The brick sidewalk of 1867 had become uneven and the hollow parts of said sidewalk retained several pools of water which lodged there.

In the judgment of Mr. Justice Henry, which sustains the position of the respondent, some cases are referred to as authorities. I have carefully examined these as well as the additional cases cited in the respondent's factum but I find nothing maintaining the propositions upon which the judgment proceeds.

It is, of course, quite competent for the legislature to direct any taxation it pleases, however burdensome, provided it does so in clear and unambiguous language. It is, however, a well known rule of construction to be applied where there is obscurity or ambiguity in the terms of an Act of Parliament which imposes taxation, and which in one view of its terms would result in the imposition of a double tax, to act on the presumption that the legislature did not intend anything so onerous and unfair as to compel a tax-payer to pay the same tax or to pay for the same public benefit twice over.

Could I find anything at all dubious or uncertain, and could I see that a brick sidewalk constructed in 1867 was the same thing as a concrete sidewalk laid down in 1891, I should not be unwilling to adopt the

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conclusion of the court below. I fail, however, to see the least uncertainty as to the intention of the legislature in passing the Act of 1891. It authorizes no exception in favour of property owners who some twenty-four years before had under an Act passed thirty years before contributed to the cost of a sidewalk, but invests the city council with absolute power to direct such sidewalks as they may think fit, the legislature of course presuming as in all such cases that there will be no abuse of the authority thus conferred. Then to be called on to pay half the costs of a concrete sidewalk in 1891, is not to be called upon twice over for the same thing, because in 1867 the same property had been obliged to contribute the bricks to construct a sideway which in 1891 had become worn out, useless and dangerous.

I entirely agree with the reasons of Mr. Justice Townshend as given in his judgment with the exception that I consider the case a much plainer one than he seems to think it.

The appeal must be allowed with costs, and the order of this court must declare that the respondent is liable to pay one-half of the cost of laying the concrete sidewalk in question under the statute of 1891, and the action must be remitted to the court below in order that the amount of the claim of the city may be determined in the manner provided by the special case. And there must be a direction that the respondent pay the costs of the city of Halifax in the court below.

Appeal allowed with costs.

Solicitor for the appellant: W. F. MacCoy

Solicitor for the respondent: F. H. Bell.