William Pearce Appellant;
and
The City of Calgary Respondent
1915: 15 July.
ON APPEAL FROM THE DISTRICT COURT, DISTRICT OF CALGARY, IN
ALBERTA.
The Registrar in Chambers — Appeal — Jurisdiction—Assessment
and taxation—Adjudication authorised by provincial authority—"Supreme
Court Act," R.S.C., 1906, s. 41—Finality of provincial decision—"Court
of last resort"
[Page 1]
A provincial statute, providing that judgments of courts in
the province on appeal from decisions of courts of revision in respect of
assessments for taxation purposes shall be final and conclusive on the matters
adjudicated upon thereby, does not circumscribe the appellate jurisdiction
given to the Supreme Court of Canada in such matters by section 41 of the
"Supreme Court Act," R.S.C., 1906, ch. 139. Crown Grain Co. v.
Day ( (1908) A.C. 504) applied.
A district court judge, in the Province of Alberta,
adjudicating in matters concerning the assessment of property for municipal
purposes under the provisions of the North-West Territories Ordinance No. 33,
of 1893, as amended by the statutes of Alberta, ch. 9 of 1909, and ch. 27 of
1913, sec. 7, is a "court of last resort created under provincial
legislation" within the meaning of section 41 of the "Supreme Court
Act," R.S.C., 1906, ch. 139,
[Page 2]
and, consequently, an appeal from the
decision lies to the Supreme Court of Canada when it involves the assessment of
property at a value of not less than ten thousand dollars. City of Toronto v.
Toronto Railway Co. (27 Can. S.C.R. 640) referred to as effete, Canadian
Niagara Power Co. v. Township of Stamford (50 Can. S.C.R. 168) and Re
Heintze, Fleitman v. The King (52 Can. S.C.R. 15) referred
to.
MOTION before the Registrar in Chambers, to affirm the
jurisdiction of the Supreme Court of Canada to entertain an appeal from the
judgment of His Honour A. A. Carpenter, judge of the District Court for the
District of Calgary, in Alberta, reducing the assessment of the property of the
appellant by varying the decision in respect thereof by the Court of Revision
of the City of Calgary.
The city assessor of the City of Calgary assessed real estate
in the city belonging to the appellant, at a total value of $236,595, which, on
his appeal, pursuant to the provisions of the city charter, to the city council
sitting as a court of revision, was reduced to $201,107. On a further appeal to
the district judge the assessment was further reduced to the sum of $168,595 by
the judgment from which an appeal is now sought to the Supreme Court of Canada
direct from the decision of the district judge.
Crysler K.C. in support of the motion contended that
the district court judge from whose decision, by provincial legislation, no
appeal lay, was a "court of last resort" within the language of
section 41 of the "Supreme Court Act," and that an appeal would lie
from his decision to the Supreme Court of Canada.
Fisher, contra, urged (1) that the judge of the
district court was "persona designata" and his decision was
not the subject of an appeal, and (2) that the Alberta statutes gave an appeal
from the district judge to the Supreme Court of the province and that
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the present appeal should not have
been taken until after such an appeal had been taken and disposed of.
THE REGISTRAR.—This is an application to affirm the
jurisdiction of the Supreme Court of Canada to entertain an appeal direct from
the decision of the district judge of the District of Calgary, in Alberta. The
facts are as follows:—
One William Pearce, the owner of property in Calgary, Alta.,
having appealed respecting the assessment of his property there from the
decision of the court of revision to the judge of the district court, and being
dissatisfied with the decision rendered on that appeal, now desires to appeal
direct therefrom to the Supreme Court of Canada under the provisions of section
41 of the "Supreme Court Act." I have to determine whether or not
there is jurisdiction in this court to hear such an appeal, there being involved
the assessment of property of a value much in excess of $10,000.
A charter was granted to the City of Calgary by an ordinance of
the North-West Territories, chap. 33, of the Ordinances of 1893. By section 40
of that ordinance provision is made for assessment appeals by which the roll
shall be revised by the city council as a court of revision. The decision of
that court was declared to be final, subject to an appeal to the judge of the
Supreme Court of the North-West Territories having jurisdiction in the City of
Calgary; section 41 of the ordinance gave an appeal from this judge to the
Supreme Court en banc.
In 1909, by chapter 9 of the statutes of Alberta, a general Act
was passed applicable to all cities having a municipal charter by which an
appeal from the court of revision was made to lie to the judge of the district
[Page 4]
court of the district in which the city
or town affected was situated, but this statute made no reference to appeals to
the Supreme Court en banc nor to section 41, sub-sec. 6, which gave such
an appeal from the Supreme Court judge. In 1913, by chapter 27, sec, 7, of the
statutes of Alberta, this sixth sub-section was struck out and section 41 was
amended in the following manner. The section formerly provided that:—
if any person is dissatisfied with
a decision of the Court of Revision he may appeal therefrom to the judge of the
Supreme Court having jurisdiction in the City of Calgary.
By the amendment the following words were added, after the word
"Calgary":—
and his decision shall be final
and conclusive in all matters adjudicated upon
and, by the same Act, sub-section 6 of
section 41, which provided for an appeal to the Supreme Court en banc was
repealed. I take it that the effect of this legislation was to provide that,
after 1913, assessment appeals from the court of revision had to be taken to
the judge of the district court, and that his decision was final so far as
provincial legislation was concerned. This, however, could not oust the
jurisdiction of the Dominion Parliament. In The Crown Grain' Co. v. Day
it was held that provincial legislation could not provide that, in
mechanics' lien cases, there should be no further appeal beyond the provincial
Court of Queen's Bench, in Manitoba.
The "Supreme Court. Act," by section 41, gives an
appeal in the following language:—
An appeal shall lie to the Supreme Court from the judgment
of any court of last resort created under provincial legislation to adjudicate
concerning the assessment of property for provincial or municipal purposes in
cases where the person or persons presiding over such court
[Page 5]
is or are by provincial or
municipal authority authorised to adjudicate and the judgment appealed from
involves the assessment of property at a value of not less than ten thousand
dollars.
Previous to the Revised Statutes of Canada, 1906, chapter 139,
the clause of the former "Supreme Court Act" dealing with assessment
appeals, instead of the words in the present section "by provincial or
municipal authority authorized to adjudicate," had the words
"appointed by provincial or municipal authority" and it was held by
this court in the case of The City of Toronto v. The Toronto Railway
Co
that where, in the Province of Ontario, an appeal lay from the court of
revision to a board of county court judges, and it was desired to take an
appeal from such board to the Supreme Court of Canada, that no appeal lay under
the section in question, as it then stood, as the county court judges were not
appointed by provincial or municipal authority but by Dominion authority. Since
the Revised Statutes of Canada, 1906, came into force this decision has no
further application and jurisdiction has been exercised in a number of cases: Canadian
Niagara Power Co. v. Township of Stamford
Re Heintze, Fleitman v. The King.
I am of opinion that the district judge who heard the appeal from
the court of revision in the present case was a "court of last resort
created under provincial legislation" within the meaning of section 41 of
the "Supreme Court Act."
Under these circumstances the motion should be granted and the
jurisdiction of the Supreme Court of Canada to entertain the appeal should be
affirmed.
Motion granted with costs.
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On the 2nd of November, 1915, the appeal to the Supreme Court of
Canada was heard on the merits, the judges present being Sir Charles
Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ., and judgment was
reserved.
Chrysler K.C. appeared for the appellant.
C. J Ford for the respondent.
On the 15th of November, 1915, judgment was delivered allowing
the appeal with costs, the Chief Justice and Davies J. dissenting. By
this judgment, on a view by the majority of the judges of the evidence as to
the value of the property in question, the amount of the assessment thereon was
further reduced. (See 9 West W.R., pages 195 and 668).
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