Regina Public School District v. Gratton Separate School District, (1915) 50 SCR 589

Supreme Court of Canada

Regina Public School District v. Gratton Separate School District, (1915) 50 S.C.R. 589

Date: 1915-02-02

The Board of Trustees of Regina Public School District No. 4 of Saskatchewan (Plaintiff) Appellant;

and

The Board of Trustees of Gratton Separate School District No. 13 of Saskatchewan (Defendant) Respondent.

1914: October 15, 16; 1915: February 2.

Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ.

ON APPEAL FROM THE SUPREME COURT OF SASKATCHEWAN.

Education—School boards—Assessment and taxation—Taxes payable by incorporated companies—Apportionment—Shares for public and separate school purposes—notice—Construction of statute—Legislative jurisdiction—“B.N.A. Act, 1867,” sec. 92—“Saskatchewan Act,” 4 & 5 Edw. VII. c. 42, s. 17—“School Assessment Act,” U.S. Sash., 1909, c 101, ss. 93, 93a.

Section 93 of the Saskatchewan “School Assessment Act,” R.S. Sask., 1909, ch. 101, authorizes any incorporated company to give a notice requiring a portion of the school taxes payable by the company to be applied to the purposes of separate schools, and section 93a, as enacted by section 3 of chapter 36 of the Saskatchewan statues of 1912-1913, authorizes separate school boards themselves to give a notice to any company which fails to give the notice authorized by section 93 requiring that its taxes should be apportioned between the boards according to the assessments of public and separate school supporters in the district. A number of companies neglected to give the notice provided for and the separate school board gave them notices requiring a portion of their taxes to be applied for the purposes of that board. In these circumstances the public school board claimed the whole of the taxes payable by the companies in question and the separate school board claimed a portion of such taxes. On a special case, directed on the application of the municipal corporation, questions

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were submitted for decision as follows: (a) Had the Saskatchewan Legislature jurisdiction to enact section 93a of the “School Assessment Act”; (b) if question (a) be answered in the negative, has the defendant (the separate school board) the right it claims to a portion of the said taxes; (c) if question (a) be answered in the affirmative, has the defendant the right it claims to a portion of the said taxes,?

Per Davies and Duff JJ. (expressing no opinion as to the constitutionality of the legislation), that the effect of the enactments in question was not to give the separate school board any portion of the taxes claimed by it. The Chief Justice and Anglin J. contra.

Per Idington J.—The enactment of section 93a was ultra vires of the Legislature of Saskatchewan. The Chief Justice and Anglin J. contra.

Per Fitzpatrick C.J. and Anglin J.—The Legislature of Saskatchewan-had jurisdiction to enact section 93a of the “School Assessment Act,” and the taxes payable by the companies in question should be apportioned between the public and the separate school boards in shares corresponding with the total assessed value of assessable property assessed to persons other than incorporated companies for public school purposes and the total assessed value of property assessed to persons other than incorporated companies for separate school purposes respectively.

Judgment appealed from (7 West. W.R. 7) reversed, the Chief Justice and Anglin J. dissenting.

APPEAL from the judgment of the Supreme Court of Saskatchewan[1], affirming the judgment of Brown J.[2], upon the special case submitted for decision.

In the year 1913 the Corporation of the City of Regina, Sask., collected school taxes from a number of companies whose property was assessed within the city and which had omitted to give notices as authorized by section 93 of the “School Assessment Act,” R.S. Sask., 1909, ch. 101, requiring an apportionment of the taxes payable by such’ companies and a share thereof to be applied for the purposes of separate schools. The respondent gave notices to the said companies, under section 93a of the “School Assessment

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Act,” as enacted by the Saskatchewan statutes of 1912-1913, ch.36, sec. 3, that unless and until they had given notices as provided by said section 93 the school taxes payable by them would be divided between the public school district and said separate school district “in shares corresponding with the total assessed value of assessable property assessed to persons other than corporations for public school purposes and the total assessed value of the assessable property assessed to persons other than corporations for separate school purposes respectively.” The form of the notice so given was that provided by said section 93a of the “School Assessment Act.” In these circumstances the appellant, as plaintiff, claimed the whole of the said taxes and the respondent, defendant, also claimed a portion thereof for the purposes of their respective school districts. It was contended by the appellant that section 93a prejudicially affected the rights of certain classes of persons with respect to schools within the meaning of section 17 of the “Saskatchewan Act,” (D.) 4 & 5 Edw. VII. ch. 42, that it was ultra vires of the Legislature of Saskatchewan, and that, in any case, upon its true interpretation, it did not entitle the respondent to any portion of the taxes which it claimed. The respondent contended that the section was intra vires of the legislature and, in the circumstances, gave it the right to a portion of the taxes in question. Thereupon the City of Regin a sought relief, under Supreme Court Rule 566A, and obtained an order directing the issue to be tried by means of a special case submitted for decision by the court. The special case submitted was, as follows:—

“This is an action commenced by way of originating

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summons issued by the City of Regina, in the Province of Saskatchewan, and Dominion of Canada, on the 12th day of November, 1913, for the purpose of determining the respective rights of the above plaintiff and defendant to certain school taxes collected by the said City of Regina.

“On summons, namely, the 4th day of December, 1913, the Honourable Mr. Justice Lamont ordered that the question as to the rights of the plaintiff and defendant herein to the money in question be tried by means of a special case.

“Pursuant to the said order, the following case has been stated for the opinion of the court:—

“1. Gratton Separate School District Number 13 of Saskatchewan is a separate school district within the City of Regina existing under the ‘School Act,’ being chapter 100 of the Revised Statutes of Saskatchewan, 1909, and amendments thereto, and is a town district within the meaning of the ‘School Assessment Act,’ being chapter 101 of the Revised Statutes of Saskatchewan, 1909, and amendments thereto.

“2. Regina Public School District Number 4 of Saskatchewan is a public school district existing under said Act and amendments thereto, and is also a town district as aforesaid.

“3. The City of Regina is a municipal corporation existing under the ‘City Act,’ being chapter 84 of the Revised Statutes of Saskatchewan, 1909, and amendments thereto.

“4. Gratton Separate School is a Roman Catholic separate school established in the Regina Public School District Number 4 of Saskatchewan.

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“5. The companies mentioned in schedule ‘A’ attached hereto are companies, the whole of the assessable property of which lying within the limits of the plaintiff school district was entered, rated and assessed upon the assessment roll of the City of Regina, for the plaintiff school district for the year 1913, and the taxes so assessed have been or are being collected as taxes payable for the plaintiff school district.

“6. Each of the companies mentioned in the said schedule ‘A’ has been duly served by the defendant with notice prescribed by section 93a of the ‘School Assessment Act.’

“7. None of the companies mentioned in the said schedule ‘A’ has to this day given any notice to the secretary-treasurer of the City of Regina, or the secretary of either the plaintiff or defendant, requiring any of the real or personal property for which such company is liable to assessment, to be entered, rated or assessed for the purposes of the said separate school.

“8. None of the companies mentioned in the said schedule ‘A’ has been entered as a separate school supporter in the assessment roll of the said city in respect of any property, and no property of any of the said companies has been assessed in the name of the company for the purposes of the said separate school.

“9. The defendant school district claims that the school taxes payable by the said companies for the year 1913 should be divided between it and the plaintiff school district, as provided in section 93a of the ‘School Assessment Act’; the plaintiff school district claims the whole of the taxes payable by said companies.

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“The questions for the opinion of the court are:—

“(a) Had the Saskatchewan Legislature jurisdiction to enact section 93a of the ‘School Assessment Act,’ being section 3, chapter 36 of the statutes of Saskatchewan, 1912-1913?

“(b) If question. (a) be answered in the negative, has the defendant the right it claims to a portion of said taxes?

“(c) If question (a) be answered in the affirmative, has the defendant the right it claims to a portion of the said taxes?”

The special case was tried before His Lordship Mr. Justice Brown who, in his judgment, on 16th May, 1914, held that public school (Supporters were prejudicially affected by section 93a, hut that, nevertheless, the enactment was intra vires and that the respondent was entitled to the portion of the taxes which it claimed. The plaintiff (now appellant) appealed to the Supreme Court in banco which, by the judgment now appealed from, affirmed the decision of Brown J.

Wallace Nesbitt K.C. and Christopher G. Robinson for the appellant.

H. Y. MacDonald K.C. for the respondent.

The Chief Justice (dissenting).—On this appeal we are asked to say if we agree with the answers given by the two provincial courts to the three questions formulated by the trial judge in the terms and under the circumstances so fully explained in the opinions of my brother judges that it is unnecessary for me to do more than refer to them.

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We are all, with the exception of Mr. Justice Idington, of opinion that the first question was properly answered in the affirmative.

To hold, as in the majority we do, that the Legislature of Saskatchewan was competent to enact section 3, chapter 36 of the statutes of Saskatchewan, 1912-13 (now known as section 93a) in amendment of section 93, chapter 30, of the ordinances of the North-West Territories passed in the year 1901, it is sufficient to refer to section 17 of the Saskatchewan Act, 4 & 5 Edw. VII. ch. 42 (Canada), which is in these terms:—

17. Section 93 of the “British North America Act, 1867,” shall apply to the said province, with the substitution for paragraph (1) of the said section 93 of the following paragraph:—

(1) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act under the terms of chapters 29 and 30 of the ordinances of the North-West Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances.

(2) In the appropriation by the legislature or distribution by the Government of the province of any moneys for the support of schools organized and carried on in accordance with the said chapter 29, or any Act passed in amendment thereof or in substitution therefor, there shall be no discrimination against schools of any class described in the said chapter 29.

(3) Where the expression “by law” is employed in paragraph 3 of the said section 93, it shall be held to mean as set out in the said chapters 29 and 30; and where the expression “at the union” is employed in the said paragraph 3 it shall be held to mean that date at which this Act comes into force.

In construing this constitutional enactment we are not only entitled, hut bound, to consider the history of the subject-matter dealt with, and by the light derived from such source, to put ourselves as far as possible in the position of the legislature whose language we have to expound. In re Branch Lines, Canadian Pacific

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Railway[3], at pages 89-90; In re Representation in the House of Commons[4], at page 567; Halsbury, vol. 27, p. 141, sec. 260.

When this section 17 was under consideration in Parliament it was deemed necessary, because of the bitter controversy to which it gave rise, to fully explain the meaning of the language used and the part which it was intended it should play in the general economy of the constitution then being provided for the new province. It was pointed out that the subject of education is separately dealt with and has its own code in section 93 of the “British North America Act”; and that the powers of the original confederating provinces to make laws in relation to education are expressly limited by this section in several respects. (1) The right to denominational schools which any class of persons had by law in each province at the date of the Union must be preserved; (2) The powers, privileges and duties conferred in Upper Canada upon separate schools and school trustees of the Roman Catholics are extended to the dissentient schools of Protestants in Quebec; (3) Where in any province a system of separate or dissentient schools exists by law at the Union, or is thereafter established, an appeal shall lie to the Governor-in-Council from any act or decision of any provincial authority affecting any right or privilege of the minority.

If, therefore, section 93 of the “British North America Act” had been made applicable in its entirety to the new province, the effect would have been to preserve any right or privilege with respect to denominational schools (not merely separate) which any class of persons had by law in that part of the

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territory which was then being brought into the Union. If the words “in the province at the Union” meant the time at which the territory came into the Union as a province, the word “law” would have included the provisions of section 11 of the “North-West Territories Act” of 1875 and of chapters 29 and 30 of the ordinances of 1901.

To avoid the doubt and uncertainty which arose out of the “Manitoba Act” it was decided to adopt the section we are now considering, which limits the rights and privileges of the minority, Protestant or Catholic, in any school district to those secured to it by chapters 29 and 30 of the ordinances and excludes the rights and privileges guaranteed either by section 11 of the “North-West Territories Act,” 1875, or by any other legislation in force in the territories with regard to any class of schools.

It is, therefore, necessary to examine the provisions of those ordinances to ascertain the nature and extent of the legislative control which the province has over education. Under chapters 29 and 30, the schools, whether public or separate, are the schools of all the ratepayers and they are in every respect on a basis of absolute equality. The Department of Education exercises the same control over all schools, and all the land in the province liable to assessment for municipal purposes is subject to assessment for school purpose. Provision is made for the taxation of land held jointly and for land held by companies.

Only three classes of schools are authorized: (a) Public (undenominational) schools; (b) Protestant separate; (c) Roman Catholic separate. And a separate school district can be established only in an existing

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public school district. No rights or privileges exist by those ordinances with respect to separate schools as contrasted with public schools; except the initial right of affecting the separation, which right carries with it certain advantages with respect to text-books, and the election of trustees who choose the teacher; this is a right common to all schools. It was also said and insisted upon at the time that the intention of Parliament was to secure to all the schools, whether public or separate, their fair share in the appropriation and distribution of any moneys for the support of schools, which in practice they had always received and which was necessary to place them in a position to play their necessary part in the general scheme of national education, and this explains why sub-section 2 was made a part of section 17. The importance of that sub-section is so very obvious in the consideration of both the questions now submitted that it will not be necessary to make further reference to it.

To answer the first question in the negative it must, therefore, be found that some right or privilege with respect to separate schools which a class of persons had at the date of the passing of the “Saskatchewan Act” was or is prejudicially affected by section 93# now in question.

That section reads:—

In the event of any company failing to give a notice as provided in section 93 hereof the board of trustees of the separate school district may give to the company a notice in writing in the following form or to the like effect, that is to say:—

The Board of Trustees of separate school district No. of Saskatchewan hereby gives notice that unless and until your company gives a notice as provided by section 93 of the “School Assessment Act” the school taxes payable by your company in respect of assessable property lying within the limits of school district No. of

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Saskatchewan * * * will be divided between the said public school district and the said separate school district in shares corresponding with the total assessed value of assessable property assessed to persons other than corporations for public school purposes and the total assessed value of assessable property assessed to persons other than corporation for separate school purposes respectively.

The undoubted intention of the legislature as expressed in that language is to provide, in accordance with the spirit and the letter of sub-section 2 of section 17, that the separate schools, whether Protestant or Catholic, are to share equitably in the distribution of the taxes levied upon public companies in the different school districts. And, assuming that to be the intention of the legislature, in what respect can it be said that a right or privilege with respect to separate schools which any person had at the date of the “Saskatchewan Act” is violated or prejudicially affected by the section? Who are the persons prejudiced? The right of separation, the right to religious teaching, the right to elect trustees are not in any way interfered with and what other right had any class of persons at the date of the passing of the “Saskatchewan Act” with respect to separate schools? The section, I repeat, makes provision for the equitable distribution of moneys levied for the support of schools and nothing more.

Mr. Nesbitt, on behalf of the appellant, hesitatingly, and, I thought, almost apologetically suggested that because under section 93 of the ordinance in force at the Union, the school taxes paid by those companies which failed to take advantage of, or to exercise the right to give notice, went to the support of the public schools, there resulted in favour of the supporters of those schools a negative right of which they were deprived by section 93a. This contention is so effectively

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disposed of by my brother Anglin that I hesitate to do more than refer to what he says. The supporter of the public school, which is merely the school of the majority, Protestant or Catholic, in a school district has no right or privilege with respect to the separate school, which is the school of the minority in the same district. The separate school supporters alone have special rights or claims in relation to the separate schools in districts in which they have exercised their right to separation. That is to say, the minority in a school district composes

a class of persons which enjoy some special benefit, immunity or advantage with reference to separate schools

in that district above and apart from those rights enjoyed either at common law or under statutory enactment by the other inhabitants of the same district or of the province at large; and it is the rights of that minority which may not be prejudicially affected. The only right or privilege with respect to the payment of rates enjoyed by any class of persons is that of the minority, whether Protestant or Catholic, which has established a separate school. That minority is exempt from the obligation to pay any rates except those they impose upon themselves (see section 41, chapter 29, ordinance of 1901). A company which by the very nature of things differs from the individuals, whether Protestant or Catholic, of whom it is constituted has not and cannot have any rights with respect to, education and nothing done in the distribution of the school taxes levied on its property can be held to be a prejudicial affection of its right with respect to separate schools. Further, can the contention that the benefit derived from the receipt of taxes collected on the property of a corporation, and which is

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dependent on the omission by that corporation to exercise an option or faculty which, if exercised at any time, is sufficient to cause the benefit to inure to another, be described in the language of section 17 as a right or privilege with respect to separate schools? And finally, by what right can a public school supporter claim that all the taxes levied on public companies should go to the exclusive relief of his obligation to maintain the school of his choice?

Mr. Justice Lamont in the court below seems to me to accurately state the position when he says

that the rights and privileges with which the legislature must not interfere are those of the minority in any school district, and nothing done in regard to that minority can in any way affect a public school supporter either in the same or in any other district.

That the latter’s rates may be increased as a result of the legislation passed to provide for the equitable distribution of the money levied for school purposes as required by sub-section 2 of section 17 is possible, but that sub-section necessarily contemplates changes in the burden of taxation as the result of the changes in the distribution which it requires so as to prevent discrimination “against schools of any class described in said chapter 29.”

I now come to the consideration of the second question.

As was said by their Lordships in the Judicial Committee of the Privy Council in Brophy v. Attorney-General of Manitoba[5]:—

Whilst, however, it is necessary to resist any temptation to deviate from the sound rules of construction in the hope of more completely satisfying the intention of the legislature, it is quite legitimate where more than one construction of a statute is possible to select that one which will best carry out what appears from the general

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scope of the legislation and the surrounding circumstances to have been its intention.

Section 93, which 93a was intended to amend, may be said to be applicable, if not in express terms by implication, only to those companies which have Protestant and Catholic shareholders, because it provides that the share of a company’s property which may be assessed in any school district for separate school purposes shall bear the same ratio and proportion to the whole property of the company assessable within the municipality or school district as the amount or proportion of the shares or stock of the company held and possessed by persons who are Roman Catholics or Protestants bears to the whole amount of such shares or stock of the company. But the amending section contains no such provision. That section (93a) is applicable in terms to all companies which fail to give the notice provided for in section 93. The language used is—

In the event of any company failing to give a notice as provided in section 93.

Mr. Justice Newlands in the court below and the majority here interpret that section so as to make it applicable exclusively to such companies as may give the notice required by section, 93. I think that, reasonably construed, the language is broad enough to comprise all the public companies which have failed to give the notice required by section 93. That seems to he a fair construction of the language used and has this additional advantage that it gives full effect to the evident intention of the legislature which was

to divide the taxes collected from all companies who do not take advantage of section 93 between the public and separate schools in each district in shares corresponding with the total assessed value of the assessable property assessed to persons other than corporations for

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public school purposes and the total assessed value of the assessable property assessed to persons other than corporations for separate school purposes respectively.

All ratepayers, Protestant or Catholic, in each district contribute to the prosperity of those companies in proportion to their numbers, and why should they not all share in the distribution of the taxes levied on their property for school purposes? If the language used may be construed so as to produce that result, why should we be astute to give it another meaning which is not consistent either with common justice or the spirit and letter of the constitutional Act, subsection 2, section 17.

If, as Mr. Justice Lamont says, the legislature had intended that 93(a) should apply only to such companies as had shareholders of the religious faith of the separate school, one would have expected provision would have been made by which it could be ascertained what companies had and what companies had not shareholders belonging to such religious faith. No such provision is found. Without such provision section 93(a), limited to certain companies only, would provide no remedy and would be useless.

The very general language used in the section should be construed so as to give effect to what appears in the general scope of the legislation in the surrounding circumstances to have been the intention of the legislature.

For these reasons I would dismiss this appeal and answer the questions as they were answered below.

Davies J.—This was a special case agreed to by the parties to the action for the purpose of determining the respective rights of the public schools and separate schools to certain school taxes collected from companies by the City of Regina in the Province of Saskatchewan.

The questions submitted were whether the Saskatchewan

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Legislature had power to enact section 93a of the “School Assessment Act,” and if so whether the Gratton Separate School Trustees had the right they claimed to a portion of the school taxes in dispute.

The provincial courts answered the questions in the affirmative, Newlands J. dissenting from the answer affirming the Separate School Trustees’ right to claim a portion of the taxes.

With respect to the constitutional question as to the jurisdiction of the Legislature of the province to enact the section in question, 93a, the conclusion I have reached upon its proper construction relieves me from discussing or answering the question of the legislature’s jurisdiction.

That conclusion is in accordance with that stated in his dissenting opinion by Mr. Justice Newlands of the Supreme Court of Saskatchewan, sitting en banc, to the effect that the section 93a does not give the Board of trustees of Gratton Separate School District, the defendant respondent in this appeal, the right they claim to a portion of the taxes payable by the companies mentioned in Schedule “A” attached to the special case.

It being, therefore, unnecessary to answer the constitutional questions asked, I follow the opinion and advice of the Judicial Committee in the recent judgment delivered by them in the appeal of The John Deere Plow Company v. Wharton(1), and refrain from expressing any opinion. The Lord Chancellor, in delivering the judgment of their Lordships, said, at pages 338-9:—

The structure of sections 91 and 92 and the degree to which the connotation of the expressions used overlaps render it, in their Lordships’

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opinion, unwise on this or any other occasion to attempt exhaustive definitions of the meaning and scope of these expressions. Such definitions, in the case of language used under the conditions in which a constitution such as that under consideration was framed, must almost certainly miscarry. It is in many cases only by confining decisions to concrete questions which have actually arisen in circumstances, the whole of which are before the tribunal, that injustice to future suitors can be avoided. Their Lordships adhere to what was said by Sir Montague Smith in delivering the judgment of the Judicial Committee in Citizens’ Insurance Company v. Parsons[6], to the effect that in discharging the difficult duty of arriving at a reasonable and practical construction of the language of the sections, so as to reconcile the respective powers they contain and give effect to them all, it is the wise course to decide each case which arises without entering more largely upon an interpretation of the statute than is necessary for the decision of the particular question in hand.

This extract is, of course, applicable to the Saskatchewan “Constitutional Act,” the provisions of which we are asked to construe by the special case.

Turning then to the amending section 93a under review, I agree with the construction Mr. Justice New-lands places upon it. We must bear in mind that under the law as it stood when first passed in the North-West Territories ordinances, and as enacted and continued by the Saskatchewan Legislature up to the passing of the amendment 93a in 1913, a company which had no shareholders of the religious faith of the separate school was neither required to give nor could give the notice specified in section 93.

Section 93 of the “School Assessment Act,” and section 93a, which was passed either in amendment or by way of supplement to section 93 must be read and construed together.

Section 93 is a permissive section merely authorizing a company by notice in that behalf to require certain specially designated parts of its property to be

assessed for the purposes of the separate school and not for public school purposes

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with the proviso that the share to be assessed for separate school purposes should hear the same proportion to the whole property of the company assessable within the school district as the proportion of the shares of the company held by Protestants or Roman Catholics respectively bore to the whole amount of the shares of the company.

Section 93a may have been drafted with the intention in the draftsman’s mind of compelling all companies to give such notice. It provided that in the event of any company failing to do so an arbitrary division should be made of assessable school taxes payable by the company between the separate and the public schools, which division did not have any reference to the proportion of shares held in the company by Protestants or Roman Catholics.

Now it is manifest that a company desirous of exercising the permission given by section 93 must before exercising it have ascertained with certainty the religious persuasions or beliefs or connections of its various shareholders. In no other way could the statutory division the company was authorized to require of its assessable taxes be made and the grossest injustice might be done to one or other of the respective schools, public or separate, if in the absence of such knowledge any company should attempt to exercise its privilege.

And so after section 93a was passed its language, “any company failing to give a notice as provided in section 93,” must have reference to such companies only as possessed the knowledge necessary to enable them to give the notice requiring the proportional division of their taxes and yet failed to give it. It

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could not have reference to companies in which none of the shareholders were of the “same religious faith” as that of the separate school seeking the division of the taxes.

In the case before us we have no evidence whatever of the religious faith or religious connections of any of the shareholders of the different companies mentioned in Schedule “A” of the case.

Mr. MacDonald, who argued the case of the defendant separate school so ably, submitted that such knowledge was not necessary, because the section 93a applied to all companies that had not given the notice the section provided for quite irrespective of their power to give the notice from want of knowledge of the religious faith or connections of its shareholders.

As already pointed out by me I cannot accept such a construction, the effect of which would undoubtedly be to defeat the manifest purpose and object of section 93, and probably in many cases create gross injustice.

It never was nor could have been intended that companies not coming within section 93 at all and not having the knowledge requisite to give the notice should have their taxes diverted from the public school to the separate school as a penalty for not giving a notice they could not legally give. The amending section 93a is somewhat crudely drawn, but I do not entertain any doubt of its real meaning and intent.

In my judgment, therefore, the amendment does not apply to companies in which there are no shareholders of the religious faith of the separate school seeking a share of the taxes collected and I would answer the questions by saying that, apart altogether from the legislature’s jurisdiction to enact section 93a,

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upon which I express no opinion, that section does not give the defendant the right it claims to a portion of the school taxes in dispute.

The appeal should be allowed with costs.

Idington J.—The question raised by this appeal is whether or not section 17 of the “Saskatchewan Act” fixed the boundaries of the rights of separate schools in relation to taxes which such corporations as respondent may claim. The question has arisen between appellant and respondent representing the respective interests of public school and separate school supporters in that regard.

Said section 17 no doubt was designed to render impossible such inequitable legislation by the legislature of the new province as would enable one religious body or set of religious bodies to make, as it were, reprisals from each other. If the judgments in the courts below are right then the attempt has been an absolute failure, for it is frankly admitted by the learned trial judge, and indeed can hardly be seriously denied, that the operation of section 93a now in question will prejudicially affect every public school district and every public school supporter where a separate school district exists. I may add thereto that just to the extent the public school supporter is prejudicially affected the separate school supporter will be beneficially affected.

In creating the Province of Saskatchewan, and giving it the power enjoyed by other provinces, under section 93 of the “British North America Act,” paragraph (1) of said section was substituted by the following:—

(1) Nothing in any such law shall prejudicially affect any right

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or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act under the terms of chapters 29 and 30 of the ordinances of the North-West Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances.

(2) In the appropriation by the legislature or distribution by the Government of the province of any moneys for the support of schools organized and carried on in accordance with the said chapter 29, or any Act passed in amendment thereof or in substitution therefor, there shall be no discrimination against schools of any class described in the said chapter 29.

(3) Where the expression “by law” is employed in paragraph (3) of the said section 93, it shall be held to mean the law as set out in the said chapters 29 and 30; and were the expression “at the Union” is employed in the said paragraph (3) it shall be held to mean the date at which this Act comes into force.

It is important to observe that by its very terms this substitution gives rise to a number of considerations different from those which were touched upon in a number of cases which depended upon the “Manitoba Act.” That Act simply adopted the very language of section 93 of the “British North America Act,” so far as the same could be applicable to a single province. This substitution introduces, in its every part, something which easily differentiates not only each such part, but the group of three parts as a whole, from not only the “Manitoba Act,” but also from the prototype of both.

True, the language of the first two lines is identical with the original, and that has been construed as governing the whole. Why was any more added if that sufficed? Why adopt a change if these lines embodied all that was desired and expressed all hoped to be affected thereby? What purposes were the significant words

or with respect to religious instructions in any public or separate school as provided for in said ordinances,

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intended to subserve? Is it not clear that there was something for which the section was intended to operate relatively to public schools as well as separate schools? Why blend the two subject-matters in one sub-section if the first half of a short sentence was to be treated as confined to one subject, one point of view relative thereto, and the phrase, “any class of persons” which is wide enough to cover any class outside or inside those of the class supporting a separate school, be restricted in its meaning so as to cover only the latter in the first part, but both in the latter part?

The trouble is that these lines forming only the first part of a sentence and section in the Act to he construed herein constituted nearly the whole of a section in the “Manitoba Act” which gave rise to much litigation and strife which has left a mark on men’s minds and that operates now as if the two sections were identical.

If that part of this sub-section had been presented in its present setting for the first time and due consideration given that which is demanded by what follows and is implied in chapters 29 and 30 of the ordinances of the North-West Territories passed in the year 1901, I venture to think no one would have thought of making anything but the said ordinances the key-note or dominating factor in the interpretation of the whole section. Such, I submit, they clearly were intended by their incorporation therewith to become. So read and interpreted thus these two lines thereof can and will be given another meaning than the narrow one which has been suggested.

I, therefore, turn to said ordinances to see how the terms of them delimit or bound the rights of the warring

[Page 611]

factions. For the taxing purposes involved in this case, which is all that can concern us, let us look at the terms of said chapter 29, section 45 thereof, which first provides for the rights and liabilities of separate school districts and then provides by subsection 2 thereof, as follows:—

(2) Any person who is legally assessed or assessable for a public school shall not be liable to assessment for any separate school established therein.

Yet this which is thus expressly forbidden to be done is what section 93a specifically enacts shall be done; in an indirect manner it is true but none the less effectually done.

Then we have provision made by sub-section 2 above quoted, which specifically forbids, in the distribution of legislative grants, discrimination against schools of any class described by chapter 29, thereby shewing the intention of the legislature in dealing with the subject.

Again, in sub-section 3 above quoted we have the words “by law” in sub-section 3 of the “British North America Act” declared to mean the law as set out in said chapters 29 and 30. Can there be a doubt, when we have regard to all these provisions and the considerations suggested thereby, that said chapters 29 and 30 were designed within said section 17 to permanently fix the boundaries of the rights of the separate schools and their supporters and the relations between them and the public schools and their supporters?

If so then let us again read the lines

nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have,

upon which stress is laid, and see if the phrases “with

[Page 612]

respect to” and “any class of persons” must necessarily mean, and have relation to only those who are separate school supporters.

I submit the literal meaning of the words used does not imperatively require such interpretation and may, taken in connection with the rest of the subsection and the section as a whole be read as appellant suggests. That protects both classes and insures them and each of them against an invasion of that which was guaranteed by chapters 29 and 30, which was the final result of nearly thirty years of experience and development in relation to a difficult problem.

Moreover, we have in said chapter 30, sections 9 and 93, which expressly deal with the problem of corporate companies (the former in relation to such in rural districts and the latter in villages and town districts) and enable any such company in a separate school district to give notice of its desire to have the whole or part of its property assessed for separate school purposes and not for public school purposes, but in each case:—

Provided always that the share or portion of the property of any company entered, rated or assessed in any municipality or in any school district for separate school purposes under the provisions of this section shall bear the same ratio and proportion to the whole property of the company assessable within the municipality or school district as the amount or proportion of the shares or stock of the company so far as the same are paid or partly paid up, held and possessed by persons who are Protestants or Roman Catholics as the case may be bears to the whole amount of such paid or partly paid-up shares or stock of the company.

What does this mean if not an express prohibition against any greater part thereof than indicated being made applicable to separate school support?

Such was the state of the law when the province was created and such limitation of the proportionate

[Page 613]

share of any corporate company’s taxes, however reached, it was evidently designed to perpetuate. It seems companies did not respond to the invitation to allot a proportion of their assessments to separate school support and hence the enactment of 93a now in question.

I can, in light of said section 93, conceive of legislation being asked for, as against local shareholders in such companies to make those who might be presumed to be supporters of separate schools assessable therefore, in respect of their shares, in ways I need not enter upon, and the company being given credit for that in its public school rating.

Without passing any opinion on that and only by way of illustration as something possibly arguable within the purposes of the chapters 29 and 30 incorporated into the “Saskatchewan Act,” I submit that in said section 93 thereof there may be found a field within which the legislature might properly operate. Indeed, I assume it was something of that kind that the legislature had in view.

But I cannot see how an adhesion to the lines laid down in said ordinances can permit of such drastic legislation as that contained in section 93a.

I think it ultra vires the legislature and that the appeal should be allowed. I see no half-way house such as question (b) seems to suggest may exist within said sections 93 and 93a so far as parts of the assessments are concerned. The first two questions should be answered in the negative and doing so renders it unnecessary to answer the third.

The appeal should be allowed with costs throughout.

[Page 614]

Duff J.—I agree with Mr. Justice Davies. For the reason given by him I confine myself to passing upon the point raised by question (c) as to the construction of the statute.

The sections to be construed (secs. 93 & 93a, as the Act now stands,) are as follows:—

93. A company may by notice in that behalf, to be given to the secretary-treasurer of any municipality wherein a separate school district is either wholly or in part situated and to the secretary of the board of any public school district in which a separate school had been established and to the secretary of the board of such separate school district require any part of the real property of which such company is either the owner and occupant or not being such owner is the tenant or occupant or in actual possession of and any part of the personal property if any of such company liable to assessment to be entered, rated and assessed for the purposes of said separate school and the proper assessor shall thereupon enter said company as a separate school supporter in the assessment roll in respect of the property specially designated in that behalf in or by said notice and so much of the property as shall be so designated shall be assessed accordingly in the name of the company for the purposes of the separate school and not for public school purposes but all other property of the company shall be separately entered and assessed in the name of the company as for public school purposes:—

Provided always that the share or portion of the property of any company entered, rated or assessed in any municipality or in any school district for separate school purposes under the provisions of this section shall bear the same ratio and proportion to the whole property of the company assessable within the municipality or school district as the amount’ or proportion of the shares or stock of the company so far as the same are paid or partly paid up, held and possessed by persons who are Protestants or Roman Catholics, as the case may be bears to the whole amount of such paid or partly paid up shares or stock of the company.

(2) Any such notice given in pursuance of a resolution in that behalf of the directors of the company shall for all purposes be deemed to be sufficient and every such notice so given shall be taken as continuing and in force and to be acted upon unless and until the same is withdrawn, varied or cancelled by any notice subsequently given pursuant to any resolution of the company or of its directors.

(3) Every such notice so given to such secretary-treasurer shall remain with and be kept by him on file in his office, and shall at all

[Page 615]

convenient hours be open to inspection and examination by any person entitled to examine or inspect the assessment roll, and the assessor shall in each year before the completion and return of the assessment roll search for and examine all notices which may be on file in the clerk’s office, and shall thereupon in respect of said notices if any follow and conform thereto and to the provisions of this Ordinance in that behalf.

(4) False statements made in any such notice shall not relieve the company from rates. Any company fraudulently giving such notice or making false statements therein shall be liable to a penalty not exceeding $100. Any person giving for a company such a statement fraudulently or wilfully inserting in any such notice a false statement shall be guilty of an offence and liable on summary conviction to a like penalty. (1901, chap. 30, sec. 93.)

93a. In the event of any company failing to give a notice as provided in section 93 hereof the board of trustees of the separate school district may give to the company a notice in writing in the following form, or to the like effect, that is to say:—

The board of trustees of separate school district No. of Saskatchewan hereby give notice that unless and until your company gives a notice as provided by section 93 of the “School Assessment Act,” the school taxes payable by your company in respect of assessable property lying within the limits of the school district No. of Saskatchewan (naming the public school district in relation to which the separate school is established) will be divided between the said public school district and the said separate school district in shares corresponding with the total assessed value of assessable property assessed to persons other than corporations for public school purposes and the total assessed value of the assessable property assessed to persons other than corporations for separate school purposes respectively.

This notice is given in pursuance of section 93a of the “School Assessment Act” as amended.

(2) Unless and until any company to which notice has been given as aforesaid gives a notice as provided in section 93 hereof the whole of the assessable property of such company lying within the limits of the public school district shall be entered, rated and assessed upon the assessment roll for the public school district and all taxes so assessed shall be collected as taxes payable for the said public school district and when so collected such taxes shall be divided between the said public school district and the said separate school district in the proportions and manner and according to the provisions set out in the notice in the next preceding subsection mentioned.

(3) Service of a notice under the foregoing provisions upon acompany may be effected by serving the same upon any officer or

[Page 616]

agent of the company upon whom service of a writ of summons issued out of the Supreme Court for Saskatchewan may be lawfully served for the company. (Sask., 1912-1913, chap. 36, sec. 3.)

The notice authorized by 93a is to be given only in the event of “any company failing to give a notice as provided by section 93.” And the consequences provided for by 93a(2) arise only in the absence of “a notice as provided in section 93.” I think the notice “provided in section 93” or “provided by section 93” means a notice of the character contemplated by section 93 before the passing of the amendment of 191213, now section 93a. It seems plain that section 93 only contemplated the giving of notice where some part of the real property of the company within the separate school district would properly be “entered, rated and assessed” for the purposes of the separate school in accordance with the rule laid down in the proviso to that section. I think that follows from the language in which that section is expressed.

There is, it appears to me, little or no weight in the suggestion that in this view no provision is made for the case in which all the shareholders should be separate school supporters. The answer seems to be that “any part” as used here extends to every part. It is a very different thing to read “any part” in this context as meaning none.

Question (c) should be answered in the negative.

Since writing my judgment as above, which was filed 2nd February, my attention has been directed to the second and third paragraphs of the judgment of the Chief Justice filed some weeks later and published in the Western Weekly Reports of March 26th. The effect of those paragraphs is that all the members of the Court taking part in the hearing of the appeal except

[Page 617]

Mr. Justice Idington concur in the answer given by the Court below in the affirmative to the first question, that is to say, that the Legislature of Saskatchewan had jurisdiction to enact section 93a.

In view of this statement I think it necessary to re-state in explicit terms what is stated by reference to the judgment of Mr. Justice Davies’ in the first paragraph of this judgment.

Having reached a clear opinion that on the proper construction of section 93a the respondents must fail, I consider it undesirable to express any opinion on the first question—the question relating to the jurisdiction of the legislature to enact that section; or upon any of the thorny questions as to the meaning of section 17 of the “Saskatchewan Act” which may in a proper case require decision. This course is incumbent upon me, as explained by Mr. Justice Davies, by reason of a sound and settled rule that questions as to the limits of legislative powers should not be passed upon when the decision of the cause does not require it—a rule whose observance is especially important in cases such as this.

This is all put very plainly in the judgment of Mr. Justice Davies in which, as stated in the first paragraph hereof, I concur. In the circumstances, however, some expansion of that paragraph seemed desirable to prevent misapprehension; and I should perhaps add that not only have I expressed no opinion upon the first question — I have formed none.

Anglin J. (dissenting).—On this appeal we are asked to review the judgment of the Supreme Court of Saskatchewan en banc affirming the judgment of

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Brown J. on a special case. The questions submitted in the special case are as follows:—

(a) Had the Saskatchewan Legislature jurisdiction to enact section 93a of the “School Assessment Act,” being section 3, chapter 36, of the statutes of Saskatchewan, 1912-1913?

(b) If question (a) be answered in the negative, have the defendants the right they claim to a portion of said taxes?

(c) If question (a) be answered in the affirmative, have the defendants the right they claim to a portion of the said taxes?

The provincial courts have answered questions (a) and (c) in the affirmative.

I am unable to accept Mr. MacDonald’s ingenious contention that prior to the enactment of section 93a the public schools had not a legal right to the school taxes of companies which did not give the notice provided for by section 93 of the “School Assessment Act.” Taking into account all the relevant provisions of chapters 29 and 30 of the North-West Territories Ordinances, 1901, I am satisfied that such taxes were payable to the public schools. The terms of section 93 of chapter 30 in themselves make this reasonably certain. So construed they harmonize with section 41 of chapter 29. To make it clear that this is the correct view of these provisions it is only necessary to remember that until and unless a separate school is established under section 41 of chapter 29, the right of the public school to all the school taxes of the school district, including those of all companies (chapter 30, section 90), is incontestible. It is only upon the establishment of the separate school that this absolute right ceases and then to the extent to which the statute modifies or curtails it — but no further.

I assume, therefore, that the effect of section 93a, where acted upon, is to deprive the public schools of the benefit of a portion of the taxes of companies that

[Page 619]

do not give notice under section 93, which they theretofore enjoyed. But I am not on that account prepared to hold section 93a to be ultra vires. Before it can he so held it must be found to be within the prohibition of section 17 of the “Saskatchewan Act” (4 & 5 Edw. VII. (D.), ch. 42), which declares section 93 of the “British North America Act” applicable to Saskatchewan, substituting, however, a new paragraph for paragraph (1) of that section. With this alteration section 93 of the “British North America Act” as applicable to Saskatchewan reads in part as follows:—

In and for the Province of Saskatchewan the legislature may exclusively make laws in relation to education, subject and according to the following provisions:—

(1) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the ordinances of the North-West Territories passed in the year 1901 or with respect to religious instruction in any public or separate school as provided for in the said ordinances.

In order to ascertain what are the rights and privileges of any class of persons with respect to separate schools which the legislature may not prejudicially affect, we must examine chapters 29 and 30 of the North-West Territories Ordinances, 1901. Sections 41-45 of chapter 29 provide for the establishment of separate schools, the taxation of their supporters for the purposes of such schools, and their exemption from other school rates, and the exemption of persons legally assessed, or assessable as public school supporters from separate school rates. Under section 92 of chapter 30 separate schools in towns and villages are entitled to the benefit of a proportion of the taxes levied upon property held by joint tenants and tenants

[Page 620]

in common, of whom one is a separate school supporter; and section 93 makes a similar provision in regard to companies which give the notice for which it provides. These are the only provisions of chapters 29 and 30 which confer on any class of persons any rights or privileges with regard to separate schools. Certain other sections deal with religious instruction in all schools whether public or separate.

The right to establish separate schools is given only to the minority — Protestant or Roman Catholic — in the district (chapter 29, section 41). The persons qualified to vote must be “Protestant or Roman Catholic” (section 43); in cases of joint tenancy or tenancy in common, where there is a separate school, the holders, “Protestant or Roman Catholic,” are to be assessed in proportion to their interests (chapter 30, section 92); in the case of a company giving the requisite notice, a proportion of its property specified equal to the proportion of the stock held by “Protestants or Roman Catholics, as the case may be,” is to be taxed for separate school purposes. All these provisions make it clear that for the purposes of separate schools the community in each School district was regarded as divided into two classes — one, the majority, the other, the minority — one Roman Catholic, the other Protestant, the latter comprising all non-Roman Catholics. The legislature did not recognize any “class of persons” comprised in the majority in the district as requiring or entitled to separate school rights or privileges. Upon whichever of these two classes should happen to he in the minority in a school district the legislature conferred the right of establishing a separate school with the incidental privileges

[Page 621]

for which the statute provided. The majority did not require and were not given any right or privilege with respect to separate schools. Their school was the public school. They were not a class of persons whom it was deemed necessary to protect. I agree with Brown J., that sub-section 1 of section 93 of the “British North America Act” as it applies to Saskatchewan

is separate school protective legislation, affording protection for, but not protection against separate schools,

and that its object is the same as that of the similar provision applicable to Manitoba, namely, “to afford protection to denominational (separate) schools.” Brophy v. Attorney-General of Manitoba[7]. As put by Lament J.:—

The power of the legislature, therefore, is absolute in dealing with education unless its legislation prejudicially affects the minority, whether Protestant or Catholic, in any school district.

I am unable to appreciate the negative right in regard to separate schools which Mr. Nesbitt contends the majority possessed under the North-West Territories Ordinances, 1901. If they received the entire taxes of certain companies merely because such companies omitted to give a notice under section 93, that was not a right or privilege; if it was, it was not a right or privilege with regard to separate schools; and the majority did not possess it as a class of persons having such right or privilege within the meaning of paragraph (1) of section 93 of the “British North America Act.”

I would, for these reasons, affirm the answer given to question (a).

On the second branch of the case, I agree in the

[Page 622]

opinions expressed by Brown J. and Lamont J. as to the proper construction of section 93(a). No doubt “failing” was not the word most apt to express the intention of the legislature. It primarily suggests the idea of neglect or omission to discharge a duty or obligation. Section 93 did not impose an obligation on any company to give the notice for which it provides. On the other hand, there is nothing in that section which precludes a company which has no shareholders of the religious faith of the minority from giving a notice that it requires all its property to be assessed for public school purposes, although such a notice may be supererogatory. I agree with Mr. MacDonald that the proviso to section 93 relates solely to the duty of the assessor and does not limit the application of the first member of the earlier paragraph of the section to companies having shareholders of the religious faith of the minority, Protestant or Catholic. The provision for notice — permissive as it is — is applicable to all companies, whatever the religious complexion of the shareholders. The presence of the word “failing,” therefore, affords no reason for excluding any company from the operation of section 93a.

But on broader grounds I am of the opinion that section 93a must be regarded as applicable to all companies. Equality of treatment and equal rights and privileges for public and separate schools would appear to be the spirit of the school legislation of Saskatchewan. Under section 93 separate schools could receive no share of the taxes of any company which omitted to give the prescribed notice, although all, or the majority of, its shareholders should be of the religious faith of the minority. As is pointed out by

[Page 623]

Brown and Lament JJ., comparatively few companies would give the notice. Thus a considerable portion of the school taxation to which they would be entitled on a basis of equality of treatment was lost to the separate schools. The provincial judges, familiar, no doubt, with the circumstances which impelled the legislature to enact section 93a [Lyde v. Barnard[8]] are of the opinion that its purpose was to remove this inequality. That seems reasonably obvious from the purview of the section itself and was not seriously contested at bar. Reserving to every company full power by giving a simple notice to ensure that its taxes shall be divided in proportion to the distribution of its shares amongst Protestants and Roman Catholics, sec. 93a provides that in the absence of such a notice (but only when the company has been duly called upon to give it) the taxes on its property shall be divided between the public school and the separate school in the proportion which the assessed value of the property of the ratepayers supporting the public school bears to the assessed value of the property of the ratepayers supporting the separate school. Having regard to the purpose of the legislature in enacting this measure, giving to it the-construction best calculated to suppress the mischief and advance the remedy, I entertain no doubt that section 93a should be deemed applicable to all companies and that the words “failing to give” should be read as meaning “not giving,” an interpretation of which they are readily susceptible. Caledonian Railway Co. v. North British Railway Co.

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[9]. Only “absolute intractability of the language used” can justify a construction which defeats what is clearly the main object of a statute. Salmon v. Duncombe[10].

It is a familiar rule of construction that, although the court are primâ facie bound to read the words of an Act according to their ordinary meaning in the language, if there are other circumstances which shew that the words must have been used by the legislature in a sense larger than their ordinary meaning, the court is bound to read them in that sense. Barlow v. Ross[11].

Thus the omission of an act which ought to be done has often been held to be within the purview of a statute requiring notice of action for anything “done” under it. Wilson v. Mayor and Corporation of Halifax[12]; Poulsum v. Thirst[13]; Holland v. Northwich Highway Board[14]; Canadian Northern Railway Co. v. Robinson[15]. See, too, Barman v. Ainslie[16]. It would be contrary to sound construction to permit the use of a term not altogether apt to defeat the intention of the legislature, which must not be assumed to have foreseen every result that may accrue from the use of a particular word. Nairn v. University of St. Andrews[17].

Since the fact that no duty or obligation is imposed by section 93 on any company precludes our treating the word “failing” as used in section 93a in what is perhaps its primary sense, viz., neglecting or omitting to discharge an obligation, I see no reason why we should not give to it a secondary meaning with which it is frequently employed, especially when by doing

[Page 625]

so we can effectuate the apparent purpose of the legislature.

I would, for these reasons, also affirm the answer to question (c).

The appeal should be dismissed with costs.

Appeal allowed with costs.

Solicitors for the appellant: Barr, Sampson, Stewart & Johnston.

Solicitors for the respondent: Mackenzie, Brown, Macdonald & Bastedo.