Supreme Court of Canada
Toronto (City) v. Olympia Edward Recreation Club Ltd.,
[1955] S.C.R. 454
Date: 1955-05-24
The Corporation of
the City of Toronto (Appellant) Appellant;
and
Olympia Edward
Recreation Club Ltd. (Respondent) Respondent.
1954: December 9, 10; 1955: May 24.
Present: Kerwin C.J. and Taschereau, Rand,
Kellock, Estey, Locke, Cartwright, Fauteux and Abbott JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
Assessment—Taxation—Powers and jurisdiction
of Court of Revision, County Court Judge, Municipal Board, Court of Appeal—The
Assessment Act, R.S.O. 1950, c. 24, ss. 80, 82 and 83—The British North America
Act, ss.
The issue raised by this appeal was whether
the respondent’s bowling alleys formed part of the real estate as defined by
the Assessment Act, R.S.O. 1950, c. 24, s. 1 (i) (iv) and were therefore
assessable.
Held (Affirming
the decision of the Court of Appeal for Ontario, Rand, Kellock, Locke and
Cartwright JJ. dissenting): that the question was a question of law and that
the Court of Appeal was right in determining that the Ontario Municipal Board
had no power to decide it. Toronto Ry. Co. v. Toronto Corp. [1904] A.C.
809. Bennett & White (Calgary) Ld. v. Municipal District of Sugar City
No. 5 [1951] A.C. 786 distinguished.
Per Estey, Fauteux
and Abbott JJ.: The question could only be determined by a court presided over
by a judge appointed under s. 96 of the British North America Act. Quance v.
Ivey [1950] O.R. 397 approved. Phillips & Taylor v. City of Sault
Ste. Marie [1954] S.C.R. 404 distinguished.
Per Rand and
Cartwright JJ. (dissenting): The series of special appeals from an original
assessment is, on the present statutory language limited to the task of
completing the assessment roll and does not
[Page 455]
extend to the judicial determination of
liability to taxation, a function of the civil courts alone. Under s. 83 an
appeal to the Court of Appeal does not embrace the determination of taxability
either appellate or original, the section gives an appeal only on a
question of law properly arising before the lower tribunals.
On an appeal to the Municipal Board that body
would be concerned with administrative jurisdiction only in the sense of being
the final tribunal in review of the original assessment, its decision having no
greater effect judicially than the act of the assessor. On appeal it may (as
here) revise the acts of the assessor, amend the assessment roll and give it
administrative finality. The court in Quance v. Ivey, supra, did not
consider the administrative function of the Board. On this view of the statute
it was within the jurisdiction of this Court to review the appeal to the Court
of Appeal on the question of the jurisdiction of the Board.
Per Kellock J.
(dissenting): The Assessment Act lays a statutory duty upon the assessor
to determine whether a given piece of property is or is not “land” or is
assessable or exempt. He is to form his own judgment and act upon it. The same
is true of the several assessment tribunals charged with the statutory duty of
preparing and settling the assessment roll. The function of the courts is to
determine in any given case to what extent, if any, liability to taxation
follows. The decision of the Privy Council in the Sugar City case, supra,
was not, as wrongly decided in Quance v. Ivey, supra, that the
legislation was to be construed as conferring upon the assessment tribunals a
jurisdiction formerly exercised by the courts and therefore ultra vires, but
upon the view that it did not confer any such jurisdiction at all. The same is
true of the judgment of this Court in Phillips and Taylor v. Sault Ste.
Marie, supra.
Per Locke J.
(dissenting): The powers given to the Court of Revision, the County Court Judge
and the Municipal Board by s. 83 of the Assessment Act to decide whether
property is or is not assessable, may properly be exercised by them
respectively, in discharge of their statutory duties as administrative acts to
enable the completion of assessment rolls with reasonable promptness. Bennett
& White v. Municipal District of Sugar City, supra, at 811 and 812; Ladore
v. Bennett, [1939] AC. 468 at 480. Quance v. Ivey, supra, distinguished.
APPEAL by special leave from the judgment of
the Court of Appeal for Ontario
dismissing the appellant’s appeal from the decision of the Ontario Municipal
Board in
assessment appeal proceedings under the Assessment Act (Ont.)
J.P. Kent, Q.C. and A.P.G. Joy for the
appellant.
C.R. Magone, Q.C. for the Attorney
General for Ontario.
H.E. Manning, Q.C. and D.W. Mundell, Q.C.
for the respondent.
[Page 456]
D.W.H. Henry, Q.C. for the Attorney
General of Canada.
The judgment of Kerwin C.J. and Taschereau J.
was delivered by:
THE CHIEF JUSTICE:—In this appeal from the
decision of the Court of Appeal for Ontario
the Corporation of the City of Toronto is the appellant and Olympia Edward
Recreation Club, Ltd., is the respondent. It is an assessment appeal and leave
was given by this Court to bring it here. The Attorney General of Canada and
the Attorney General of Ontario were notified and were represented.
The proceedings commenced in 1950 when the Asssessment
Act in force in Ontario was R.S.O. 1937, c. 272, as amended, since the
Revised Statutes of Ontario, 1950, did not come into force until December 31st
of that year. Earlier in the year the respondent had been assessed $31,250 in
respect of a parcel of land in the City of Toronto and $31,000 in respect of an
unfinished building being erected on the land. In the later part of 1950, under
the provisions of the old Assessment Act, a notice was given that the building
was assessed for $305,000 and that taxes would be levied on that assessment for
a period of two months from November 1, 1950 to December 31, 1950. Another
notice was given that the buildings were assessed at $274,000 and that taxes
would be levied on such assessment for a period of twelve months from January
1, 1951 to December 31, 1951. In each case the respondent appealed to the Court
of Revision giving as its reason “building assessment too high”. When the
respondent’s appeals came before the Court of Revision and the appellant’s
appeals before the County Court Judge and the Ontario Municipal Board the
Revised Statutes of 1950 were in force so that these proceedings are governed
by the provisions of the Assessment Act in that revision, c. 24.
The Court of Revision deducted in each case
$96,000 from the value of the building. While the notices of appeal to it might
indicate on their face that the matter to be determined by the Court of
Revision was merely one of quantum, it has been made clear throughout that the
[Page 457]
$96,000 represented the value of the bowling
alleys in the building in question and that the real problem was whether the
alleys were personal property and, therefore, not subject to assessment.
Undoubtedly the assessor’s duty was to perform the functions allotted to him by
the Assessment Act, but if a party assessed takes no steps upon
receiving notice of an assessment, there is nothing to prevent it raising in
the ordinary Courts the question that it was not legally assessable; and if it
appeals, even as far as the Court of Appeal, and fails, it is not bound by that
action and may raise that question in a similar manner.
It was so held in Toronto Ry. v. Toronto
Corporation,
although no constitutional point was there raised. The matter had been
determined in the same sense in Great Western Ry. Co. v. Rouse and Nickle v. Douglas, so that the jurisdiction conferred by the Assessment
Act on the various appellate tribunals broadly conforms to the type of
jurisdiction exercised by the Superior, District or County Courts, which is the
test adopted in Labour Relations Board of Saskatchewan v. John East Iron
Work Ld.
It is now settled that the assessor, the Court
of Revision, the County Court Judge and the Ontario Municipal Board have no
jurisdiction to determine conclusively whether a company is taxable in respect
of any particular property. (Phillips and Taylor v. City of Sault Ste. Marie). When such a question is raised what
purpose can there be to permit appeal after appeal at great expense to those
concerned when the same matter may be litigated again? The question of ultra
vires was not raised in Bennett & White (Calgary) Ld. v.
Municipal District of Sugar City No. 5,
but, in my opinion, the Judicial Committee did not there decide, as
contended by the appellant, that, when such a matter as the one in issue here
arises, any of the appellate tribunals provided for by the Assessment Act has
jurisdiction to decide the point as an administrative matter. Their Lordships
found that s. 53 of the Alberta Act there in question was not unambiguous and
suggested that it might bear several constructions. Nowhere, as I read the
judg-
[Page 458]
ment, is it suggested that when the only matter
is, for instance, the one before the appellate tribunals in this case, any one
of them has any authority of any kind to pronounce upon that subject.
Here the question before the Court of Appeal was
whether the Ontario Municipal Board has power to decide that question. Being of
opinion that the Court of Appeal was right in determining that the Board had no
such power, the appeal should be dismissed with costs, but there should be no
costs to or against either Attorney General.
RAND J. (dissenting):—A few
observations may be useful in clarifying what has for some time been and seems
still to be somewhat confused. The assessment of property for taxation purposes
is primarily an administrative function, directed by statute, in two aspects of
which legal questions may arise. They may go to the jurisdiction to tax, or they
may arise in the course of exercising the function. An example of the latter
would be whether the basis on which a valuation is made is within the
intendment of the statute. That would be a question which the administrative
tribunals would pass upon judicially and the decision of which, if not appealed
from, would stand.
The question of jurisdiction, however, is of
another nature. Whether person or property is within the scope of the assessing
and taxing provisions, with which alone the assessing bodies are authorized to
deal, depends, in its legal aspect, upon the decision of a court within s. 96
of the Confederation Act. But obviously when the assessor is preparing the roll
he must consult those provisions in deciding upon doubtful property or exemption,
or doubtful residence, and what he does is to exercise a lay judgment in
discharging his duty to prepare the roll.
All features of the assessment may, in turn, be
made subject to appeal to other subordinate tribunals. There may be
administrative questions of law, as in the illustration used, or of fact, the
findings on which will be conclusive unless reversed through the means of
appeal given. In matters of jurisdiction, these tribunals can be invested with
power to revise the lay judgment on assessability exercised
[Page 459]
in the first instance by the assessor and to
modify the assessment roll accordingly. The policy of vesting such authority in
a body with provincial wide scope is quite apparent, contributing as it would
to greater uniformity and probability of soundness, and the only question would
be whether the legislation has conferred that authority on the appeal body.
Then there may be appeals to superior courts.
Questions of law within the judicial scope of the assessment tribunals could be
carried to them. If appeal is not expressly provided the decisions would be
open to certiorari. In the revising authority of an administrative
nature, the question arises whether a Court of Appeal as such could be charged
with such a duty. And finally it might have to be considered whether a superior
court has been given a special original jurisdiction, in the course of such
appeals, to deal with the liability to assessment.
With these considerations in mind, the issues in
this appeal can now be approached. The decision in Bennett & White Ld.
v. District of Sugar City in the
Judicial Committee, and in this Court, that
of this Court in Sifton v. Toronto,
and that of the Court of Appeal for Ontario in Ottawa v. Wilson, have clarified the interpretation
of the assessment statute of Ontario from which that of Alberta is largely
taken. It is now settled that the series of special appeals from the original
assessment is, on the present statutory language, limited to the task of
completing the assessment roll and does not extend to the judicial
determination of liability to taxation.
It is also settled that in providing these
assessment tribunals the statute does not set them up as alternative to the
civil courts, carrying the right of election. So far as the former are validly
invested with jurisdiction to deal with questions of law, recourse against an
assessment lies to them alone. The significance of this is that matters within
their competence become res judicata whether or not resort is had to
them by way of appeal. In Bennett & White, at p. 808, Lord Reid, on
this point, said:—
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
[Page 460]
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.
But the present language of s. 83 of the Ontario statute is the same as that on
which Sifton v. Toronto and Ottawa v. Wilson were decided.
If that section was valid to create a jurisdiction in the Court of Appeal
to pronounce upon the validity of the tax, then a collateral attack on the
assessment in the civil courts could not succeed. But in each of those cases
that attack was held to be open and it follows that the appeal to the Court of
Appeal under s. 83 does not embrace the determination of taxability either
appellate or original. Consistently with this, the subordinate bodies are
limited to administrative functions, including questions of law not going to
jurisdiction.
In its application to the Court of Appeal, s. 83
must be held to give an appeal only on a question of law properly arising
before the lower tribunals: I find it impossible to attribute to the
legislation the intention to attempt to make that Court as such a final
revising body in administrative matters. It would verge on absurdity to have
that Court pronounce an opinion on such a matter in another than a judicial
sense. The questions in this case, in the administrative sense, could not,
therefore, be carried there for final revision.
But the appeal to the Ontario Municipal Board
would be concerned with administrative jurisdiction only, dealing with the
question raised here only in the sense of being the final tribunal in review of
the original assessment and having no greater effect judicially than the act of
the assessor. That body can, then, be called upon by way of appeal to revise
the acts of the assessor, to amend the assessment roll and to give it
administrative finality.
The judgment in Quance v. Ivey, interpreted s. 83 as purporting to give
jurisdiction to the assessment tribunals to determine judicially their own
jurisdiction and that it was therefore ultra vires. The court in that case did
not consider the administrative function of the Ontario Municipal Board in the
sense in which that of the similar body in Alberta was held to be effective in Bennett
& White. On
[Page 461]
the assumption made, the decision of the Court
of Appeal is in accordance with the view I have here expressed, but it does not
go to the contention now urged.
On this view of the statute, the jurisdiction of
this Court to hear the appeal was challenged by Mr. Manning. That depends
upon whether or not the judgment in appeal is one rendered in the course of a
judicial proceeding. The taking of an appeal to the Court of Appeal on the
question of the jurisdiction of the Board is a proceeding of that nature which
this Court is competent to review.
The object sought by the legislation is
undoubtedly to provide a machinery of adjudication which can settle the
question of taxability with despatch, and the desirability of concluding these
questions within a fixed time seems to be obvious. To obtain that needs only
some mode of resort to the appropriate tribunals, the civil courts. If by way
of appeal or certiorari the Court of Appeal was given original
jurisdiction to deal with such questions, including appropriate provision for
furnishing the facts, with power to refer the roll back to the Board or County
Judge for amendment in accordance with the judgment, and fixing the time within
which the motion or application must be made, the difficulty facing municipal
assessments would appear to be removed. But the existing language of the
statute, as the cases cited show, is not sufficient to that end.
I would, therefore, allow the appeal and direct
judgment declaring the Ontario Municipal Board to possess jurisdiction to
consider the appeal made to it for the purpose of completing the assessment
roll. The appellant will have its costs in this Court, but there will be no
costs in the Court of Appeal.
KELLOCK J. (dissenting):—The
respondent, the owner of certain premises in the city, was successful, on
appeal to the Court of Revision against assessments for the years 1950 and
1951, in securing a reduction to the extent of the value of the bowling alleys
installed in the building. An appeal by the present appellant to the county
judge was dismissed. A further appeal by the appellant to the Ontario Municipal
Board was dismissed on the ground that the Board was without jurisdiction to
make any determination as to
[Page 462]
whether or not the alleys, i.e., the floors,
came within the definition of “land”, “real property” and “real estate”
contained in s. 1(i) (iv) of the Assessment Act, which reads:
all buildings, or any part of any building,
and all structures, machinery and fixtures erected or placed upon, in, over,
under or affixed to land,
Considering itself bound by the decision of the
Court of Appeal in Quance v. Ivey.
The Board distinguished the judgment of the Privy Council in Bennett &
White v. Sugar City, which
affirmed, on the matter here relevant, the judgment of Rand J., speaking for
the majority in this court.
Under the scheme provided by the Assessment
Act, complaints by a person of an error or omission in regard to himself as
having been “wrongfully inserted in or omitted” from the roll, or as having
been “undercharged or overcharged” by the assessor in the roll are to be dealt
with by the Court of Revision, s. 69. From the Court of Revision an appeal lies
to the county judge, s. 72(1), who, in my view, is here persona designata, or
directly to the Board, s. 80(1). If the first course be taken, an appeal lies
from the county judge to the Board under s. 80(1) or, on consent of all
parties, directly to the Court of Appeal; s. 81(1) and (7). In the case of
appeals to the Board, a similar right of appeal lies to the Court of Appeal
under s. 80(7).
S. 83 of the statute, which was first enacted in
1910 by c. 88, s. 19, provides:
83. It is hereby declared that the court of
revision, the county judge, the Ontario Municipal Board, and every court to
which and every judge to whom an appeal lies under this Act have jurisdiction
to determine not only the amount of any assessment, but also all questions as
to whether any persons or things are or were assessable or are or were legally
assessed or exempted from assessment. R.S.O., 1950, c. 24, s. 83.
A similar provision limited to the Board is
contained in s-s. (6) of s. 80, this provision having been enacted at the time
of the creation of the Board in 1906 by c. 31, the relevant provision being s.
51, s-s. (2). The jurisdiction of the Court of Appeal in the case of appeals
from the Board, is provided for by s-s. (7) of s. 80 of the Assessment Act. This
provision also derives from the statute of 1906, s. 51 (3). As originally
enacted, the sub-section read:
An appeal shall lie from the decision of
the Board under this section to the Court of Appeal upon all questions of
law.
[Page 463]
The additional words now found in s. 80(7) were
added in 1916 by c. 41, s. 6(2), as follows:
Or the construction of a statute, a
municipal by-law, any agreement in writing to which the municipality concerned
is a party, or any order of the Board.
By the same statute the jurisdiction of the
Court of Appeal in the case of appeals from the county judge, now found in s.
81(1), was provided for in similar terms by s-s. (1) of s. 6.
The contention of the respondent is that given
effect to in the Quance case, namely, that s. 80(6) and s. 83
purport to vest in the Board and the other assessment tribunals a jurisdiction
to determine finally the question as to whether property is or is not
assessable under the Act, and that that jurisdiction, being already vested in
the superior courts of the province prior to 1867, the above provisions are
ultra vires. It is also contended that the jurisdiction given the Court of
Appeal by s. 80(7) and s. 83 is limited to matters within the jurisdiction of
the lower tribunals and is not, therefore, to be taken as including
jurisdiction to determine such a question.
The appellant contends, on the other hand, that
the assessment tribunals (not including in this description the Court of
Appeal) were obligated by the terms of the statute to determine all questions
arising upon the assessment roll, for the purpose of settlement of that roll,
without regard to the question as to whether or not any such determination
would, if not appealed against, be final so far as liability to taxation may be
concerned. It is further contended that the jurisdiction given to the Court of
Appeal is an original jurisdiction entitling that court to decide finally such
questions, including such a question as that involved in this litigation.
As the legislation under consideration in the Sugar City case is to all intents and purposes the same as the corresponding
provisions of the Assessment Act, with the exception that the Alberta
Act makes no provision for appeal to a court, it will be convenient at the
outset to consider the judgment of the Judicial Committee in that case.
[Page 464]
The question there was as to whether or not a
decision of the Assessment Commission of Alberta that the appellants were
assessable in respect of certain personal property as to part of which the
appellants contended was not their property but that of His Majesty, and as to
another part was exempt under the statute, was res judicata, or whether
it was open to the appellants to litigate the matter in the ordinary courts. It
was held that they were so entitled.
In delivering the judgment of the Board, Lord
Reid referred to certain earlier decisions under the Ontario statute, namely, Toronto Ry. Co. v. Toronto, Sifton v. Toronto, and Ottawa v. Wilson, and continued at p. 808:
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.
These decisions referred to by Lord Reid are
not, of course, based upon the view of the legislation now put forward by the
respondent and accepted in Quance v. Ivey, (supra) namely,
that the legislation is to be construed as conferring upon the assessment
tribunals a jurisdiction formerly exercised by the courts and therefore ultra
vires. They are based upon the view that it did not confer any such
jurisdiction at all. The same is true of the judgment of this court in Phillips
& Taylor v. Sault Ste. Marie.
Quance v. Ivey cannot,
therefore, stand with the later decisions referred to and must be taken to have
been wrongly decided. It may, moreover, be pointed out that in none of the
Ontario cases above referred to did the courts have occasion to consider
whether there was any duty of an administrative character resting upon the
assessment appeal tribunals as was considered to be the case under the
legislation in question in the Sugar City case.
S. 53 of the Alberta Act in question in that
case corresponds to s. 83 of the Ontario Act except that s. 53 contains
[Page 465]
no provision for a further appeal to a court.
Their Lordships, adopting the view of Rand J., held that the section, in its
setting in the statute, was not to be construed as an optional method of
proceeding in contradistinction to proceeding in the ordinary courts but as
laying upon the Commission a duty to determine the matters mentioned in the
section
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.
That being so, their Lordships held that the
Court of Revision must have jurisdiction to determine those same matters
for the same purpose because “the grounds on which the Act allows complaint to
be made to it may involve those matters” and the statutory function of the
Assessment Commission was only to hear and determine appeals from Courts of
Revision.
The Privy Council did not consider that either
in s. 45, which corresponds essentially to the Ontario s. 70, or elsewhere in
the statute was there any indication that an entry in the assessment roll
upheld by the Commission was in any different position from any other entry in
the roll or any less subject to challenge in the courts. Such a provision, they
considered, was “plainly only what their Lordships in City of Victoria v.
Bishop of Vancouver Island,
referred to as a machinery section”; per Lord Reid, at p. 810.
Unless, therefore, the Ontario legislation is to
be distinguished by reason of the existence of the right of appeal to the Court
of Appeal and the reference in s. 83 to that court, the judgment of the Privy
Council requires this court to hold that, while it is competent and indeed
mandatory, for the assessment tribunals, including the Municipal Board, to
exercise their judgment upon all questions arising in the course of the
preparation of the assessment roll, including the question of assessability or exemption,
nevertheless, when it comes to a question of determining finally a question of
the latter character so as to entail liability to taxation, such jurisdiction
is not to be considered as having been conferred upon these assessment
tribunals.
[Page 466]
It will be convenient at this point to consider
some of the provisions of the statute relating to the duty of the assessor and
other municipal officials as to the preparation of the assessment roll. These
provisions are expressed in the clearest mandatory terms.
By s. 16(1), it is provided that every assessor
“shall” prepare an assessment roll in which “after diligent inquiry” he “shall”
set down according to “the best information to be had” the particulars
mentioned in the section and in so doing he “shall” observe the provisions
therein set out. Under clause (a) the assessor “shall” set down the
names and surnames in full, if they can be ascertained, of all persons,
resident or non-resident, who are “liable to assessment therein”. By clause (b),
he is required to set down in the proper column opposite each name the amounts
“assessable” against such person.
S-s. (2) requires that the assessor “shall” set
down in column 14 the “actual value” of the parcel of real property exclusive
of buildings; in column 15, the value of buildings as determined under s. 33;
in column 16, the total actual value of the land; in column 17, the total
amount of “taxable” land; in column 18, the total value of the land “if liable
for school rates only”; in column 19, the total value of land “exempt from
taxation” or “liable for local improvements only”; and in column 22, the “total
assessment”. In my view, it is impossible, in the face of these provisions, to
say that the assessor is not required to exercise his judgment as between
assessability and exemption and make up his roll accordingly.
By s. 33, s-s. (1), it is provided that, subject
to the other provisions of the section, “land” shall be assessed at its actual
value. In s-ss. (2) and (3), the considerations entering into the ascertainment
of that value in the case of both vacant land and land having buildings thereon
are given. By s-s. (4), it is provided that the buildings, plant and machinery
in or under “mineral land” and used mainly for obtaining minerals, as well as certain
named mining equipment, and the minerals themselves “shall not be assessable”.
The definition of “land” in s. 1(i) of the statute has already been referred
to. All of these provisions
[Page 467]
must be interpreted by the assessor and the
entries he makes in his roll are the result, as they are by the statute
intended to be, of the exercise of his judgment.
It is therefore impossible, in my view, to
contend that where a question arises such as in question in these proceedings,
that is, as to whether a given piece of property is or is not “land” or is
assessable or exempt, the assessor can do other than enter such property upon
the roll because he cannot decide that question. It is true that he cannot
decide such a question finally, but he is required by the statute to form his
own judgment and act upon that judgment. A contrary conclusion would be in the
very teeth of the statute.
Moreover, by s. 50 it is provided that if at any
time it “appears” to any treasurer or other officer of the municipality that
“land” “liable to assessment” has not been assessed in whole or in part for the
current year or for either or both of the next two preceding years, he “shall”
report the same to the clerk of the municipality, who “shall” thereupon, or
upon the omission to assess coming to his knowledge in any other manner, enter
the land on the collector’s roll at its average valuation as assessed in the
three previous years. If the land had not been so assessed, then the clerk
“shall” require the assessor to value the land and
it shall be the duty of the assessor to do
so when so required, and to certify the valuation in writing to the clerk.
It is clear that the officers of the
municipality here mentioned are also required to exercise their judgment on the
question as to assessability or exemption in the same way as is the assessor
under the earlier provisions already discussed, and if it “appears” to them
there has been an omission from the roll of land which ought to have been
assessed by the assessor, they are required to enter it. The same rights of
appeal are provided for by s-s. (3) as if the land “had been assessed in the
usual way.”
If such be the statutory duty of the assessor
and these other municipal officers, it is equally for the Court of Revision to
exercise its judgment upon the same questions
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
[Page 468]
Revision must have jurisdiction to
determine those matters for that purpose because the grounds upon which the Act
allows a complaint to be made to that court may involve those matters,
to refer again to the language of Lord Reid in
the Sugar City case at p. 811, already quoted. The same is true of the
county judge and Municipal Board for the reason that, to quote further from the
same page,
the statutory function of the Commission
(here the judge or Board) is only to hear and determine appeals from Courts of
Revision.
It may be again observed that s. 35 of the
Alberta statute, which provides for appeals to the Court of Revision does not,
for present purposes, differ in any material respect from s. 69 of the Ontario
statute. The same comparison is true as between s. 47(1) of the Alberta statute
and ss. 72(1) and 80(1) of the Ontario Act as to appeals from the Court of
Revision.
This being then the function of the assessment
tribunals, it follows that, as the jurisdiction conferred upon the Court of
Appeal cannot be taken to be other than one to be exercised judicially, that jurisdiction,
with respect to a question such as is here involved, is limited to determining
upon the true interpretation of the statute the nature of the duty resting upon
the Board and the inferior tribunals. It has already been pointed out that the
decisions to which I have. referred, approved as they were in this respect in
the Sugar City case, involve the finding that, notwithstanding the
breadth of the language employed, the Court of Appeal has no jurisdiction with
respect to such a question as that raised in these proceedings.
It is not necessary for the purposes of this
appeal to determine the extent of the jurisdiction committed to the Court of
Appeal or the kind of question upon which, should there be no appeal, the
decision of any of the inferior assesment tribunals would be final.
Illustrations may be found in the authorities referred to by their Lordships in
Toronto Ry. Co. v. Toronto City.
In the course of his judgment in that case Lord Davey said at p. 815:
In London Mutual Insurance Co. v. City
of London, the
decision of the county court judge was treated as final, because the question
was within the jurisdiction of the assessor; but Hagarty C.J. held that if the
property had not been assessable that would have shewn that ab initio
[Page 469]
the assessor and the appellate tribunals
had been dealing with something beyond their jurisdiction, and their
confirmation of the assessor’s act would go for nothing.
That is not to say that the assessor or the
assessment tribunals must any the less carry out the duty laid upon them by the
statutory provisions to which I have referred but merely that it is open to the
person affected to apply to the ordinary courts in the case of such a question
as is involved between the parties to this appeal.
The whole matter, in my opinion, comes to this,
that the legislature, having laid upon the assessor and the several assessment
tribunals the statutory duty of preparing and settling the assessment roll, who
is to say that duty is not to be performed? The function of the courts is to
determine in any given case to what extent, if any, liability to taxation
follows.
I would allow the appeal with costs in this
court and in the Court of Appeal and refer the matter back to the Municipal
Board for its decision.
The judgment of Estey and Fauteux JJ. was
delivered by:
ESTEY J.:—The appellant, in assessing
respondent’s land and building in 1950 and 1951, included, as part of the
latter, its bowling alleys. Upon respondent’s appeal to the Court of Revision
these were held not to be part of the building and, therefore, not taxable as
such. This decision was affirmed by the County Court judge. Upon further
appeals to the Ontario Municipal Board and the Court of Appeal both followed
the decision in Quance v. Ivey, under
which neither of these tribunals had jurisdiction to finally determine such a
question of law. In the course of his judgment Mr. Justice Laidlaw,
speaking on behalf of the Court, stated:
It appears to me to be settled beyond
controversy that the Legislature of a Province, acting within its legislative
powers, cannot constitute a tribunal composed of a member or members appointed
by provincial authority and empower that tribunal to determine conclusively
questions of a character that fall for determination within the jurisdiction of
a superior court. Thus, the Legislature could not give jurisdiction to such a
tribunal to finally determine the question whether a taxpayer is taxable in
respect of certain property. Such a tribunal could not finally decide whether
an assessor exceeded his powers in assessing property which was not liable in
law to assessment.
[Page 470]
The issues in this appeal are, therefore, (a)
is the question whether the bowling alleys are part of the real estate one of
law and (b) if so, is it one that must be determined by a court presided
over by a judge appointed under s. 96 of the B.N.A. Act.
With respect to (a) the facts are not in
dispute. If the bowling alleys were personalty rather than real estate the
assessor had imposed liability in respect of property not taxable under the
statute. The respondent, to that extent, would not be liable and there was,
therefore, an important question of law to be determined rather than a mere
question of valuation, as the appellant contended. Township
of London v. The
Great Western Ry. Co.; Toronto Ry. Co. v. Toronto.
As to (b), in Quance v. Ivey, supra, the
respondent contended that under the statute it was exempt from a business tax.
The County Court judge agreed with the respondent and held that upon a construction
of the statute it was exempt. The Ontario Municipal Board reversed the decision
of the County Court judge. The Court of Appeal held the construction of an act
was a question of law and that none of the tribunals sitting in an appeal under
the Assessment Act (R.S.O. 1950, c. 24) had any jurisdiction to finally
determine this question. In the course of the reasons written by Robertson
C.J.O. and concurred in by Laidlaw, Roach and Hope JJ.A., and those written by
Hogg J.A., the Ontario cases prior to Confederation, certain provisions of the B.N.A.
Act (ss. 92(14), 96, 99 and 100), as well as the authorities to that date
were all considered and the conclusion arrived at that similar tribunals
sitting in appeal from an assessor existed prior to Confederation, but that a
question of law such as that here submitted could be finally decided only in
the courts of law of that period; that under the B.N.A. Act, while these
tribunals may be competently created by the legislature, questions of law such
as that here considered can only be finally determined by a court presided over
by a judge appointed under s. 96 of the B.N.A. Act and, therefore, the
above-mentioned tribunals, including the Court of Appeal sitting in appeal
under the
[Page 471]
provisions of the Assessment Act, could
not finally determine such a question. At p. 408 Robertson C.J.O. stated:
In my opinion it is well established by
decisions of highest authority that jurisdiction to decide disputed questions
of liability to assessment, such as were raised in the cases I have referred
to, and in the present case, was vested in the superior Courts of the Province,
and not in the bodies having jurisdiction to hear assessment appeals under the
provisions of The Assessment Act. It is also clear that that jurisdiction was
so vested prior to Confederation, and continued to be so vested thereafter.
To much the same effect is the statement of Lord
Atkin when, in dealing with the jurisdiction of the Ontario Municipal Board, he
stated:
It is primarily an administrative body; so
far as legislation has purported to give it judicial authority that attempt
must fail. It is not validly constituted to receive judicial authority; so far,
therefore, as the Act purports to constitute the Board a Court of Justice
analogous to a Superior, District,, or County Court, it is pro tanto invailid;
not because the Board is invalidly constituted, for as an administrative body
its constitution is within the Provincial powers; nor because the Province
cannot give the judicial powers in question to any Court, for to a Court
complying with the requirements of ss. 96, 99 and 100 of the British North
America Act the Province may entrust such judicial duties as it thinks fit; but
because to entrust these duties to an administrative Board appointed by the
Province would be to entrust them to a body not qualified to exercise them by
reason of the sections referred to. The result is that such parts of the
Act as purport to vest in the Board the functions of a Court have no effect. Toronto
Corporation v. York Corporation.
The contention that, in effect, the subsequent
decisions of Bennett & White (Calgary) Ltd. v. Municipal District of Sugar City, and Phillips & Taylor v.
Corporation of Sault Ste. Marie are in
conflict with Quance v. Ivey, supra, does not appear to be well founded.
In the Bennett & White case the precise point here in question was
neither raised nor considered. There the personal property of the appellants
was assessed and appeals taken to the Court of Revision and the Alberta Assessment
Commission, being the only appellate tribunals provided under the Assessment
Act of that province. In both of these tribunals the appellant was
unsuccessful and when the municipality sought to enforce the tax it commenced
this action for a declaration that the assessment was invalid. It was contended
on behalf of the municipality that the matter was res judicata by virtue of the
decision of the Alberta Assessment Commission. The Privy Council held that upon
a construction
[Page 472]
of s. 53, upon which the respondents relied, the
legislature had not purported to give to the tribunal under the Assessment
Act jurisdiction to decide such a question. It was, therefore, unecessary
to consider the legislative competence of the province to deprive the courts of
the jurisdiction to determine the question of liability. In fact, Lord Reid,
speaking on behalf of their Lordships, stated at p. 811:
Some indication that the scope of s. 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 ss. 4 and 5, which are the leading sections in the
Act, deal with liability to and exemption from both assessment and taxation.
That in the Bennett & White case it
was not the intention of the Privy Council to in any way limit or qualify their
decision in Toronto Ry. Co. v. Toronto, supra, is apparent from their
reference to that case and the statement of Lord Reid in relation thereto at p.
806:
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.
The question in the Toronto Railway case
was not unlike that here raised. The city imposed a tax upon the street cars as
part of the appellant’s real estate. After being unsuccessful in its appeals
provided for under the Assessment Act, the appellant commenced an action
for a declaration that its street cars were personalty. The Privy Council held
the matter was not res judicata, that the street cars were personalty and
directed a declaration accordingly. At p. 815 Lord Davey stated:
In other words, where the assessment was ab
initio a nullity they had no jurisdiction to confirm it or give it
validity. The order of the Court of Appeal of June 28, 1902, was not,
therefore, the decision of a Court having competent jurisdiction to decide the
question in issue in this action, and it cannot be pleaded as an estoppel.
See also Sifton v. City of Toronto.
In Phillips & Taylor v. The Corporation of Sault
Ste. Marie, supra, the taxpayers had failed in
their respective appeals to certain of the appellate tribunals under the Assessment
Act and thereafter brought this action for a
[Page 473]
declaration that the assessments were invalid.
The respondent pleaded, inter alia, res judicata. Mr. Justice
Taschereau, writing the judgment of this Court, in dismissing that plea adopted
the reasons of Mr. Justice Laidlaw in the Court of Appeal. There
Mr. Justice Laidlaw referred to many of the authorities and quoted a
passage from Bennett & White (Calgary) Ltd. v. Municipal District of Sugar City, supra, at 808 and
809:
...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.
Mr. Justice Laidlaw then continued:
I apply that principle to the instant case
and conclude that the plaintiffs had a right to submit to the Supreme Court of
Ontario the question whether they were liable to assessment and taxation. The
argument that that question is res judicata therefore fails.
It is clear that a county court judge, sitting
in appeal under the Assessment Act, is not acting by virtue of his
appointment under s. 96 of the B.N.A. Act, but rather as a person
selected and designated by the legislature in the Assessment Act. The
same is true of the members of the Court of Appeal and, therefore, sitting in
appeal under the Assessment Act, they possess only such appellate
jurisdiction as the Provincial Legislature may competently vest in them.
This must follow from Toronto Ry. Co. v.
Toronto, supra, where the taxpayer unsuccessfully appealed to the appellate
tribunals under the Assessment Act, including the Court of Appeal, and
thereafter brought an action for a declaration that a portion of the property
included in the assessment was not assessable and, in the course of their
reasons directing that the declaration should be made, it was stated at p. 815:
It appears to their Lordships that the
jurisdiction of the Court of Revision and of the Courts exercising the
statutory jurisdiction of appeal from the Court of Revision is confined to the
question whether the assessment was too high or too low, and those Courts had
no jurisdiction to determine the question whether the assessment commissioner
had exceeded his powers in assessing property which was not by law assessable.
[Page 474]
That the legislature of a province may, within
the field of its legislative competence, impose original jurisdiction upon
courts presided over by judges appointed under s. 96 does not in any way assist
the respondent in this litigation. It is sufficient, for the purpose of this
discussion, to point out that the legislature is not here purporting to do so,
but rather it designates the judges of the respective courts as the parties it
desires to constitute certain of these tribunals, including the Court of Appeal
when sitting as such.
While the work of an assessor is largely
administrative, he must, of necessity, make judicial as well as administrative
decisions. The nature and character of his work and its importance in relation
to the financing of a municipality make it desirable that there should be, at
least with respect to the major portion of his duties, a summary and
expeditious appeal available to the taxpayer. The legislature, in appreciation
of such, has set up these tribunals and given to them, as it appears by virtue
of the provisions of ss. 69 to 83 inclusive of the Assessment Act, such
jurisdiction and authority as it has deemed appropriate and within its
legislative competence. When, however, there is, as here, an important question
of law involving the liability of the taxpayer, which prior to and since
Confederation has never been within the jurisdiction of these tribunals, it
must be decided by a court presided over by a judge appointed under s. 96 of
the B.N.A. Act.
That such was the position prior to
Confederation is illustrated by Township of London v. The Great Western Ry. Co.
supra. There the assessor, in valuing the defendant
railway company’s land, included as part thereof the rails and other
superstructure upon the land. No appeal was taken. When, however, the
municipality brought action to realize the amount of the taxes the railway
defended. It admitted the assessment upon its land and paid into court the
amount of the tax thereon, but contended that the rails, etc. were improperly
included in the valuation. At the trial a verdict was directed for the
plaintiffs, but upon appeal this was reversed and in the course of his judgment
Mr. Justice Burns stated at p. 266:
The distinction where it is necessary to
appeal, and where the claim may be resisted by an action of trespass or
replevin, is this: if the power existed to make the assessment, then there is a
jurisdiction in those doing
[Page 475]
it, and in such case the remedy is by
appeal only; but if the assessment be illegal, then there is no jurisdiction to
do it, and in such case the person resisting is not compelled to resort to the
remedy of appeal, but may resist the illegal exaction.
The court held that inclusion in the valuation
of that which was not part of the land raised a question of liability which
must be decided by the courts. On the other hand a fourth plea was raised as to
the amount of the assessment upon the property which the company had admitted
was subject to assessment. The plaintiff demurred to this plea and the court
upheld the demurrer on the basis that this did not raise a question of
liability, but only as to the amount thereof, which was a matter of which the
appellate tribunal, under the Assessment Act, was the proper body to
make a final disposition.
Tribunals such as the appellate tribunals under
the Assessment Act were continued under s. 29 of the B.N.A. Act and
in relation thereto the provincial legislatures are competent to legislate. Re
Adoption Act.
The tribunals set up under the Assessment Act
are in no different position from others similarly constituted with respect
to their jurisdiction to determine questions of law.
The decision in Quance v. Ivey, supra, clearly
expresses the relevant law. It restricts these tribunals to those matters over
which they may deal effectively and avoids for the taxpayer an expenditure of
time and money in pursuing before these tribunals an issue which can only be
finally and competently disposed of in the courts.
It was submitted at the hearing that
notwithstanding the inability of the legislature to vest in these appellate
tribunals authority to ideal finally with such issues as that with which we are
here concerned, the legislature may impose and, in fact, has particularly in s.
83 of the Assessment Act imposed upon these tribunals a duty to
determine such issues, even though without any degree of finality. The
imposition upon a tribunal of such a duty or to encourage a taxpayer to submit
to an expenditure of time and money that can accomplish nothing in any legal sense
and which, if ultimately determined by a competent tribunal in favour of the
taxpayer, will mean that what was done by the
[Page 476]
assessor or any appellate tribunal under the Assessment
Act was, in effect, a nullity and void ab initio, ought to be set
forth in language that clearly discloses such an intention.
No such intention is to be found in s. 83. On
the contrary, the legislature in that section discloses a dear intention
that the appellate tribunals shall deal effectively and finally with the duties
and responsibilities imposed upon them.
It was suggested that such a course may avoid
delays in the final determination of the roll. Such a suggestion does not
appear to be well founded. When completed, and on or before the required date,
the assessment roll, as prepared by the assessor, must be returned “to the
clerk” of the municipality (s. 53(1)).
Section 54(5) reads:
54(5) Nothing in this section shall in
any way deprive any person of any right of appeal provided for in this Act, and
the same may be exercised and the appeal proceeded with in accordance with this
Act, notwithstanding that the assessment roll has been certified by the court
of revision and become the last revised assessment roll.
The effect of subpara. (5) is that the
assessment roll is completed, notwithstanding that appeals may be carried to
the other appellate tribunals, and certainly where an issue such as we are here
concerned with is raised under proceedings in a court presided over by a judge
appointed under s. 96 of the B.N.A. Act.
The decisions of these appellate tribunals, when
made within the scope of their respective authorities and subject to any right
of appeal under the Assessment Act, are final and binding upon the
parties. This has been repeatedly recognized by the courts. The question with
which we are here concerned is that of liability, admittedly one of law, in
respect of which only courts presided over by a judge appointed under s. 96 of
the B.N.A. Act may make a final decision. If it is finally determined in
favour of the taxpayer, the assessments were made without authority. The true
position with respect to the only issue with which we are here concerned is
clearly stated by Strong C.J. in The Corporation of the City of London v.
George Watt & Sons:
If there is no power conferred by the
statute to make the assessment it must be wholly illegal and void ab initio and
confirmation by the Court of Revision cannot validate it.
[Page 477]
See also to the same effect Toronto Railway
Co. v. Corporation of the City of Toronto, supra; Bennett & White (Calgary)
Ltd. v. Municipal District of Sugar City, supra.
Moreover, the position with respect to the roll
is aptly explained in Shannon Realties v. Ville de St. Michel, where the Privy Council quoted with
approval the statement of Duff J. (later C.J.):
There remains the argument based upon the
Municipal Charter, s. 28. This section deals with the subject of taxation
rather than the subject of valuation. It can afford no basis for impeaching the
assessment roll. Nor do I think it is a ground for impeaching the collector’s
roll except as an answer to a claim for taxes. The contention now raised will
be open to the respondents in answer to such a claim. La Ville St‑Michel
v. Shannon Realties Ltd.
The Ontario Municipal Board held that the
question here raised was one of law upon which it had no jurisdiction to
adjudicate. The Court of Appeal affirmed this decision and held also that,
sitting as an appellate tribunal under the Assessment Act, it had no
jurisdiction to deal therewith. The effect of this decision and that of Quance
v. Ivey, supra, upon which it is founded, is that if either of the parties
desires a final determination of the question of law here raised it can only be
had, as already intimated, by a court presided over by a judge appointed under
s. 96 of the B.N.A. Act.
The appeal should be dismissed with costs.
LOCKE J. (dissenting):—This is an appeal from a
judgment of the Court of Appeal of Ontario, by which the appeal of the City of Toronto from a decision of the Ontario Municipal Board given on December
15, 1952, was dismissed.
The respondent company is the owner of a
property in Toronto upon which
it caused to be erected a two storey brick building, to be used for the purpose
of the operation of bowling alleys. The construction and the installation of
these alleys was completed in the year 1950. While the question as to whether
the alleys were land, real property or real estate within the meaning of those
expressions as used in the Assessment Act (R.S.O. 1950, c. 24) is a
matter of controversy between the parties, it is unnecessary for the
[Page 478]
disposition of this appeal to determine this
question, and sufficient to say that the alleys were laid upon frame stringers
placed, in turn, upon what were described as sleepers laid along the concrete
floors of the building but in no way attached to them, being kept in place by
their own weight.
The City gave notice of assessment to the
respondent on December 22, 1950,
for a period of the last two months of the year 1950 and for the calendar year
1951: in respect of the stated period for 1950 the notice of assessment stated
that the building had been assessed at $305,000 and for the year 1951 at
$274,000. Other than to say that the assessments were for the “value of buildings”
no further particulars were given.
Under the appropriate provisions of the Assessment
Act the respondent appealed to the Court of Revision. The reasons assigned
in the notices of appeal read merely “building assessment too high.” By that
body the assessment for each year was reduced by an amount of $96,000. Other
than the endorsements made on the notices of assessment that in respect of the
year 1950 the assessment of the buildings had been reduced to $209,000 and as
to the year 1951 to $178,000 there is no written record of the proceedings
before the Court of Revision before us.
The city appealed from this decision to a judge
of the County Court of the County of York and the appeals were dismissed. No written reasons were
given.
From this decision the city appealed to the
Ontario Municipal Board. Evidence was taken before that body and, apparently
with the concurrence of the respondent, the assessor of the city stated that
the action of the Court of Revision in reducing the assessment by the amount stated
was based upon the view that the bowling alleys were not assessable and their
replacement value fixed at $96,000 had accordingly been deducted from the
values stated in the notices of assessment. The Municipal Board dismissed the
appeal on the ground that the only question involved was whether the bowling
alleys were liable to assessment or exempt therefrom, the members considering
that, in view of the decision of the Court of Appeal in Quance v. Ivey, they were without jurisdiction to
determine the matter.
[Page 479]
The appeal of the City to the Court of Appeal
was dismissed, Mr. Justice Laidlaw, delivering the unanimous judgment of
the Court, finding that the Ontario Municipal Board was right in deciding that
it was without jurisdiction to decide the question: consequently, he considered
that the Court of Appeal was also without jurisdiction.
By s. 1 (i) of the Assessment Act, “land,”
“real property” and “real estate” include, all buildings and all structures,
machinery and fixtures erected or placed upon, in, over, under or affixed to
lands. By s. 40, real property in Ontario is declared to be liable to taxation, subject to certain
exemptions, none of which touch the present matter.
Before the completion of the assessment roll,
the assessor or his assistant is required to send to every person named therein
a notice in a prescribed form, notifying him of the sum for which he has been
assessed (s. 46). Provision for the disposition of complaints against the
assessment is made in s. 69 and following sections of the Act. These may
be summarized as follows:—Any person complaining of an error or omission in
regard to himself as having been wrongly inserted in or omitted from the roll,
or as having been undercharged or overcharged by the assessor in the roll, may
give notice in writing to the clerk of the municipality or the Assessment
Commissioner that he considers himself aggrieved (s. 69(1)). The appeal is
heard by a court of revision, provision for the constitution of which is made
by ss. 58, 59 and 60. Included in the powers of this court is authority to
reopen the whole question of the assessment and to direct any correction
necessary to be made in the roll (s. 69(20)). The roll as finally revised and
certified by the Court of Revision is declared to be valid and, subject to the
right of appeal, to bind all parties concerned (s. 70).
S. 72 provides that an appeal shall lie to the County Judge at the
instance, inter alia, of any person assessed and the procedure to be
followed for the disposition of the appeal is prescribed. S. 74(2) reads:—
The hearing of the appeal by the county
judge shall, where questions of fact are involved, be in the nature of a new
trial, and either party may adduce further evidence in addition to that heard
before the court of revision, subject to any order as to costs or adjournment
which the judge may consider just.
[Page 480]
S. 80(1) permits an appeal from the decision of
the county judge to the Ontario Municipal Board, a body constituted under the
provisions of the Ontario Municipal Board Act (c. 262 R.S.O. 1950) or,
where no appeal has been taken to the county judge, direct from the decision of
the court of revision. By s. 80(6):—
The Board shall have power upon such appeal
to decide not only as to the amount at which the property in question shall be
assessed, but also all questions as to whether any persons or things are liable
to assessment or exempt from assessment under the provisions of this Act.
S. 83 reads:—
It is hereby declared that the court of
revision, the county judge, the Ontario Municipal Board, and every court to
which and every judge to whom an appeal lies under this Act have jurisdiction
to determine not only the amount of any assessment, but also all questions as
to whether any persons or things are or were assessable or are or were legally
assessed or exempted from assessment.
S. 80(7) provides for an appeal from a decision
of the Board under that section, inter alia, upon a question of law or
the construction of a statute. No provision is made for an appeal from a
finding of that body upon a question of fact.
In cases where an appeal lies from the decision
of the judge to the Board under s. 80, the judge may, with the consent and at
the request of both parties, state a case on, inter alia, a question of
law or the construction of a statute for the decision of the Court of Appeal
(s. 81).
S. 82(1) gives to the judge of a county court
and the court hearing an appeal under s. 80 and the Court of Appeal powers
similar to those given to the court of revision by s. 69(20) to reopen the
whole question of the assessment, so that the assessment roll may be corrected
and the accurate amount for which the assessment should be made stated in it.
The respective contentions of the parties may be
briefly stated. The respondent contends that the Ontario Municipal Board, a
body appointed by the Lieutenant Governor of the Province, was without
jurisdiction to decide the legal question as to whether under the provisions of
the Assessment Act it was liable to assessment in respect of the value
of the bowling alleys, as distinct from the building in which they are situate.
It submits that the powers sought to be vested in the Board by ss. 80(6) and 83
are ultra vires a
[Page 481]
provincial legislature, in that they purport to
vest in its powers which broadly conform to those generally exercisable by
judges of Superior, District or
County Courts referred to in s. 96 of the British North America Act. The
appellant and counsel for the Attorney General of Ontario contest this
position, saying that the functions of the Court of Revision, the County Court
Judge and the Ontario Municipal Board under the sections referred to are
administrative in their nature, being the machinery devised for the purpose of
settling an assessment roll for the purpose of imposing municipal taxation and
that they may accordingly decide questions of this nature for the purpose of
enabling them to discharge those functions. While s. 83 declares the power of
the court, the county judge and the Board to determine the question of law as
to whether any persons or things are assessable or have been legally assessed,
neither counsel contend that their decisions in such matters render the
question of liability res judicata.
The record does not disclose whether this issue
was raised either before the court of revision or the county judge. Before the
Municipal Board, however, the respondent took the position, which was upheld by
the Board, that the only question to be determined was as to whether the
bowling alleys were liable to assessment or exempt therefrom. Upon this issue,
the Board considered itself bound by the judgment of the Court of Appeal to
which reference has been made. It does not appear from the reasons for judgment
delivered by the members of the Board that it was contended before them that
its function in determining this disputed issue was simply administrative, or
that its decision upon the question of law involved would not be binding upon
both parties. That question was, however, argued before the Court of Appeal, Laidlaw J.A. saying (at p. 22) that it
had been contended before them that the Court of Revision, the County Court
judge and the Board had jurisdiction:—
To decide the question in issue as an
administrative matter and “on that level” have power to decide whether the
assessor was right or wrong when he included the value of the bowling alleys in
the assessment made by him of the building.
[Page 482]
As to this, that learned Judge said that:—
The court of revision and the courts of
appeal therefrom cannot assume jurisdiction in that way or upon that basis
decide the real question in issue between the parties as I have stated it
above.
S. 96 of The British
North America Act, 1867 reads:—
The Governor General shall appoint the
Judges of the Superior, District,
and County Courts in each Province, except those of the Courts of Probate in
Noya Scotia and New Brunswick.
S. 129 reads in part:—
Except as otherwise provided by this Act,…
all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers
and Authorities, and all Officers, Judicial, Administrative and Ministerial,
existing therein at the Union, shall continue in Ontario… as if the Union had
not been made; subject nevertheless… to be repealed, abolished or altered by
the Parliament of Canada, or by the Legislature of the respective Province,
according to the Authority of the Parliament or of that Legislature under this
Act.
Prior to Confederation, by an Act to amend and
consolidate the assessment laws of Upper Canada (c. 182, 16 Vict.) provision was made for the assessment of lands
for the purpose of municipal taxation. By s. 26 of that statute it was provided
that any party who:—
Shall deem himself wrongfully inserted in
or omitted from the Roll or undercharged of overcharged by the assessor.
might appeal to a court of five members of the
municipal Council designated a court of revision. That court was empowered to
determine the question raised and the assessment roll as passed by it and
certified by the clerk was declared to be binding on all parties concerned,
except in so far as it might be further amended on appeal. S. 28 provided for
an appeal from the decision of the Court of Revision to the “Judge of the
County Court” who was required, after hearing, to transmit his decision to the
Clerk of the Division Court to
be forthwith transmitted to the Clerk of the Municipality, such judgment to be
final and the assessment roll amended accordingly.
The decision of a county court judge upon a
question as to whether certain property of a railway company was subject to
assessment was held not to be final by Robinson C.J. in Great Western Ry.
Co. v. Rouse.
[Page 483]
It is unnecessary, in my opinion, to discuss the
changes made in the appeal provisions between 1853 and 1904, when Toronto Ry
v. Toronto Corporation, was
decided by the Judicial Committee.
The Assessment Act which affected the
matter to be determined in that case was c. 224, R.S.O. 1897, which did not
contain provisions similar to the present sections 80(6) or 83. The
question was whether the electric cars of the railway ‘company were personal
estate and thus not liable to assessment. S. 71 of that Act which provided for
an appeal to the Court of Revision, in so far as it affected the nature of the
appeal, was in the language of s. 26 of the statute of 1853 above referred to.
The street cars having been assessed as real estate within the meaning of that
term in the statute, the railway company appealed successively to the Court of
Revision, the County Court judge (to whom an appeal was permitted under the
terms of the statute) and to the Court of Appeal and, these appeals having
failed, it was contended on behalf of the City before the Board that the
question of liability to assessment was res judicata. In rejecting this
contention, Lord Davey, by whom the judgment of the Board was delivered, said
in part (p. 815):—
It appears to their Lordships that the
jurisdiction of the Court of Revision and of the courts exercising the
statutory jurisdiction of appeal from the Court of Revision is confined to the
question whether the assessment was too high or too low, and those Courts 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. The order of the Court of
Appeal of June 28, 1902, was not, therefore, the decision of a Court having
competent jurisdiction to decide the question in issue in this action, and it
cannot be pleaded as an estoppel.
In considering this decision, it is to be noted
that nothing was said as to that portion of s. 71 also authorizing an appeal by
a person claiming to be “wrongfully inserted in or omitted from the Roll” and
there was no discussion as to the powers of the Province to enact the relevant
portions of the Assessment Act or any part of them. An earlier decision
to the same effect as that of the Judicial Committee is Nickle v. Douglas, where the authorities are reviewed.
[Page 484]
By c. 31 of the statutes of 1906 the Ontario
Railway and Municipal Board, the predecessor of the Ontario Municipal Board,
was constituted and provision made for appeals to that board in lieu of the
appeal to the Board of County Judges theretofore provided for by the Assessment
Act. By s. 51(2) of that Act it was declared that the Board should have
power upon such appeals to decide not only as to the amount at which the
property should be assessed but also all questions as to whether any persons or
things were liable to assessment or exempt from assessment under the provisions
of the Assessment Act.
By c. 88 of the statutes of 1910 the Assessment
Act of 1904 was amended by adding thereto ass. 78(a) language to the
same effect as the present s. 83.
By c. 27 of the statutes of 1932, s. 6, it was
provided that the Ontario Railway and Municipal Board, as theretofore
constituted, should hereafter be called the Ontario Municipal Board. Members of
the Board were declared to hold office during pleasure and a wide variety of
functions were assigned to the Board.
In Toronto Corporation v. York Corporation while the question to be determined
was the power of the Board to make an order for discovery of documents,
authorising the respondents to inspect the appellant’s water work system and
directing an examination of the appellant’s Commissioner of Works under oath,
the Judicial Committee considered generally the nature of the functions
assigned to the Board. It was there contended for the city that the Act of 1932
and in particular ss. 41 to 46 and 54 and 59 were ultra vires, in that the
Board was entrusted with the jurisdiction and powers of a Superior Court and
within the purview of those sections was, in fact, constituted a Superior
Court.
The judgment delivered by Lord Atkin, after
finding that the Board was primarily, in pith and substance, an administrative
body, said (at p. 427) in respect to the powers contained in the above
mentioned sections (which, with immaterial changes, appear as ss. 37 to 42
and 52 and 55 of R.S.O. 1950, c. 262) p. 427:—
It is difficult to avoid the conclusion
that, whatever be the definition given to Court of Justice, or judicial power,
the sections in question do
[Page 485]
purport to clothe the Board with the
functions of a Court, and to vest in it judicial powers. But, making that
assumption, their Lordships are not prepared to accept the further proposition
that the Board is therefore for all purposes invalidly constituted. It is
primarily an administrative body; so far as legislation has purported to give
it judicial authority that attempt must fail. It is not validly constituted to
receive judicial authority; so far, therefore, as the Act purports to
constitute the Board a Court of Justice analogous to a Superior, District, or
County Court, it is pro tanto invalid; not because the Board is invalidly
constituted, for as an administrative body its constitution is within the
Provincial powers; nor because the Province cannot give the judicial powers in
question to any Court, for to a Court complying with the requirements of ss.
96, 99 and 100 of the British North America Act the Province may entrust such
judicial duties as it thinks fit; but because to entrust these duties to an
administrative Board appointed by the Province would be to entrust them to a
body not qualified to exercise them by reason of the sections referred to.
The result is that such parts of the Act as purport to vest in the Board the
functions of a Court have no effect.
The argument in support of the legislation in
that case was that the administrative powers vested in the Board and the powers
sought to be given by the sections above referred to were severable and
that the powers, the exercise of which was attacked as ultra vires, were properly
exercisable only as incidental to and as appropriate machinery for the exercise
of administrative functions. This contention was upheld in the judgment
delivered, it being considered that the powers of examination, inspection and
discovery of documents, even though couched in terms of similar powers of a
court of justice, were not inconsistent with the powers of an administrative
body whose duty it may be to ascertain the facts with which they are dealing.
The effect of s. 129 of the British North America
Act must be considered. As I have pointed out, the Court of Revision and the
County Court Judge were by the statute of 1853 respectively empowered to
consider and determine the question as to whether the name of a person had been
wrongfully inserted on the roll or whether he had been undercharged or
overcharged by the assessor. It cannot be said, for the reasons so clearly
pointed out by Sir Lyman Duff C.J. in delivering the judgment of this
Court in the Reference Re the Adoption Act and other Acts, that it is not within the power of a
provincial legislature to give additional powers to bodies such as courts of
revision and other courts constituted under provincial authority which do not
answer to the description of Superior, District and
[Page 486]
County Courts in s. 96. That judgment expressly
dissented from the view that the jurisdiction of inferior courts, whether
within or without the ambit of s. 96, was by the B.N.A. Act fixed
forever as it stood at the date of Confederation. May it not, therefore,
properly be said that to confer the power to determine questions of law of this
nature for the purpose of discharging the administrative functions assigned to
these various appellate bodies is within the powers of a province?
In Quance v. Ivey, Robertson C.J.O., in delivering the
judgment of the majority of the Court, reviewed certain of the legislation
dealing with municipal assessments in Upper Canada prior to Confederation and
the subsequent legislation of the Province leading up to the amendment of the Assessment
Act of 1910, purporting to grant to the Municipal Board the powers now
defined in s. 83 of the Act. The learned Chief Justice concluded that the
powers sought to be conferred on the Board by s. 83, which would include the
power to decide whether a person is liable or exempt from assessment, attempted
to confer jurisdiction over a subject matter that, both before and after
Confederation, had been dealt with by the Superior Courts. It does not appear
from the judgments delivered in that case that the question as to whether the
legislation, while ineffective to give the Board jurisdiction to decide the
question of law involved so that the matter would be res judicata as
between the parties and their privies, might not validly empower it in the discharge
of its administrative functions to decide the question for the purpose of
enabling the municipality to complete the assessment roll. Reference was made
to that portion of the judgment of Lord Atkin in Toronto Corporation v. York
Corporation, above referred to, in which, after saying that the Board was
primarily an administrative body and that, so far as legislation had purported
to give it judicial authority, that attempt must fail, it was said that (p.
427):—
The result is that such parts of the Act as
purport to vest in the Board the functions of a court have no effect.
The reference in Lord Atkin’s judgment was to
ss. 41 to 46, 54 and 59 of the Municipal Board Act, 1932, but there
[Page 487]
seems to me to be no answer to the contention
that they apply with equal force to s. 83 of the Assessment Act, if that
section is to be construed literally.
That it should not be so construed appears to me
to follow from what was said in the judgment of the Judicial Committee in Bennett
& White v. Municipal District of Sugar City. In that case, the statutory provision
considered was s. 53 of the Assessment Act of Alberta, the meaning of
which, in so far as it purported to vest jurisdiction in the Alberta Assessment
Commission, seems to me to be indistinguishable from that to be assigned to s.
83 of the Assessment Act of Ontario. The question as to whether the
section of the Alberta Act was intra vires the Legislature was not argued
in the Sugar City case, and that portion of the reasons for judgment which I have
mentioned referred to the contention of the Municipal District that, since an
appeal from the assessment had been taken to the Court of Revision and the
Alberta Assessment Commission, the matter was res judicata. In rejecting
this contention, which had also been rejected in this Court, the Board found
that both the Court of Revision and the Alberta Assessment Commission had
jurisdiction to deal with the question, in discharge of their statutory
functions.
In Ladore v. Bennett Lord Atkin, in delivering the
judgment of the Judicial Committee, pointed out (p. 480) that the Province has
exclusive legislative power in relation to municipal institutions by reason of
s. 92(8) of the British North America Act, 1867 and that:—
Sovereign within its constitutional powers,
the Province is charged with the local government of its inhabitants by means
of municipal institutions.
In the exercise of this power and the discharge
of this duty, the Legislature has provided by the Assessment Act the
machinery by which municipal institutions are required, as a necessary step in
imposing taxation upon property within their territorial limits, to prepare an
assessment roll, value the property for the purpose of an assessment and afford
to those who claim that they are improperly assessed, or that their names
should or should not appear on the roll, the right of recourse to tribunals to
which appeals may
[Page 488]
be taken. To the powers given to the Court of
Revision, the County Court Judge and the Municipal Board by the earlier sections,
there have been added the further powers now given by s. 83. The power given by
that section to decide whether property is or is not assessable may
properly, in my opinion, be exercised by them respectively, in discharge of
their statutory duties as administrative acts to enable municipal institutions
to complete their assessment rolls with reasonable promptness and raise the
moneys necessary for their government.
It was not contended by any of the parties to
this appeal that a decision by the Municipal Board in the present matter that
the bowling alleys, if part of the real property of the respondent within the
meaning of that expression in s. 1 (i) of the Assessment Act, are or are
not liable to assessment would render that question res judicata or oust
the jurisdiction of the courts to determine it.
In the result, this appeal should, in my
opinion, be allowed with costs and the order of the Court of Appeal set aside
and the matter referred back to the Ontario Municipal Board to be decided. I
think there should be no costs for or against the intervenants.
CARTWRIGHT J. (dissenting):—This is an appeal,
brought pursuant to leave granted by this Court on February 15, 1954, from a judgment of the
Court of Appeal for Ontario,
pronounced on December 2, 1953, affirming a decision of the Ontario Municipal
Board, hereinafter referred to as the Board, rendered on December 16, 1952.
The decision of the Board dealt with two appeals
from orders of His Honour Judge McDonagh, a judge of the County Court of
the County of York, dismissing appeals from decisions of the Court of Revision
of the City of Toronto which had reduced, by $96,000 in each case, an
assessment made in 1950 for levying additional taxes for that year and an
assessment made in the same year upon which taxes for the year 1951 were to be
levied.
The Court of Appeal and the Board were of the
opinion, with which I respectfully agree, that notwithstanding the form of the
notice of appeal to the Court of Revision the only question decided by the
Court of Revision and by the learned County Court Judge and raised for decision
before
[Page 489]
the Board was whether certain bowling alleys
contained in the assessed building and valued by the assessor at $96,000 were
liable to assessment or exempt therefrom. The Board decided that it was bound
by the decision of the Court of Appeal for Ontario in Quance v. Ivey, to
hold that it was without jurisdiction to decide this question and consequently
made no order other than a direction that the appellant should pay the costs of
reporting the proceedings. This decision was affirmed by the Court of Appeal.
Laidlaw J.A. who delivered the unanimous judgment of the Court concludes his
reasons as follows:—
On this appeal the only question for
determination is whether the Ontario Municipal Board has jurisdiction to decide
the question in issue between the parties. Having reached the conclusion that
it has no such jurisdiction it follows that this Court has no jurisdiction on
this appeal to decide the question and I refrain from expressing any views in
respect of it.
I would direct that the appeal be dismissed
with costs.
In Quance v. Ivey (supra), the
appellant had been assessed, in the year 1948, in the sum of $12,700 for
“business assessment” in respect of the premises in which it carried on its
business. It appealed to the Court of Revision on the ground that owing to the
nature of its business it was exempt from business assessment. This appeal was
dismissed. The appellant then appealed to the County Judge who allowed the appeal. The assessor appealed from the
decision of the County Judge to the Board. The Board allowed the appeal and restored the
“business assessment”. The appellant then appealed from the decision of the
Board to the Court of Appeal. The Court of Appeal set aside the order of the
Board on the ground that the Board was without jurisdiction and made no further
direction.
There appears to be no ground on which the case
at bar can be distinguished from Quance v. Ivey and it becomes necessary
to consider whether that case was rightly decided.
The judgments delivered in Quance v. Ivey contain
a review of the legislation and the relevant decisions. Robertson C.J.O., with
whom Laidlaw, Roach and Hope JJ.A. agreed, after quoting from the judgment of
the Privy Council in Toronto Ry Co. v. Toronto, said at page 408:—
In my opinion it is well established by
decisions of highest authority that jurisdiction to decide disputed questions
of liability to assessment, such as were raised in the cases I have referred
to, and in the present case,
[Page 490]
was vested in the superior Courts of the
Province, and not in the bodies having jurisdiction to hear assessment appeals
under the provisions of The Assessment Act. It is also clear that that
jurisdiction was so vested prior to Confederation, and continued to be so
vested thereafter.
The learned Chief Justice then reviewed the
legislation constituting the Board and its predecessor the Ontario Railway and
Municipal Board and assuming to give them jurisdiction to hear assessment appeals
and. continued at page 412:—
We have the Board, at its origin given
jurisdiction by the Legislature to deal with, and to adjudicate upon, a
subject-matter that always, both before and after Confederation to that time,
had been dealt with by the Superior Courts in formal actions as within their
jurisdiction exclusively, subject to strictly limited rights of appeal. The
Legislature, at the same time, has purported “to clothe the Board with the
functions of a Court and to vest in it judicial powers.” And these are
severable from the Board’s administrative functions and duties, as Lord Atkin
has said in the case of Toronto v. York Tp., supra. In my opinion it is clear
that the Board has assumed, under an authority that the Legislature has assumed
to give it, to exercise the jurisdiction of a Superior Court, or a tribunal
analogous thereto, in dealing with the appeal before it, and has made an order
that it could make only if there had been observance, in its members,
appointment to and tenure of office, of the provisions of ss. 96, 99 and 100 of
the B.N.A. Act. Without such observance, the Board could not, in my opinion,
exercise jurisdiction in the appeal brought before it by the respondent, and
could not make the order now appealed from.
Hogg J.A., who delivered reasons reaching the
same result, in summarizing his conclusions, said in part at page 427:—
It is not within the legislative power of
the provincial Legislature to confer on the Board, the members of which are
appointed by the Government of Ontario, the jurisdiction purported to be given
to it by ss. 84 (5) and 87 of the Assessment Act, nor for the Board to exercise
such jurisdiction.
S. 84 (5) and 87 referred to by Hogg J.A. are
now ss. 80 (6) and 83 of the Assessment Act.
While it is nowhere explicitly so stated in the
reasons delivered by the Court of Appeal in Quance v. Ivey it is I think
clear from reading them as a whole that in the view of that Court the
amendments made to the Assessment Act subsequent to the decision of the Privy
Council in Toronto Ry. Co. v. Toronto (supra), on their true
construction, expressed the intention of the Legislature to confer upon the
Board jurisdiction to finally decide all questions of the nature referred to in
what are now ss. 80 (6) and 83 so that
[Page 491]
its decision of such questions would be res
judicata inter partes, subject only to the right of appeal given by what is
now s. 80(7).
Counsel for the appellant and for the Attorney
General for Ontario submit, if I have apprehended their arguments correctly, that
on a true construction of the relevant sections of the Assessment Act the
powers conferred on the Court of Revision, the County Judge, the Board and the
Court of Appeal by ss. 80(6), 82 (1), 83 and other related sections are
limited, as regards disputed questions of liability to assessment the
jurisdiction to decide which was vested in the Superior Courts of the Province
prior to Confederation, to deciding such questions as an administrative matter
only, so as to make the assessment roll correct as the assessor would have done
had he not fallen into error; that the jurisdiction of the Courts is not ousted
by the decisions of the tribunals mentioned and that none of such decisions
would support a plea of res judicata if the same questions were raised
in an action between the same parties for a declaration that the property
assessed was exempt from assessment and taxation. It is said that the nature of
the power given to the assessment tribunals by the Ontario Statute is the same
as that conferred on the Alberta Assessment Commission by the Alberta
Assessment Act; and that the reasoning which in Sugar City v. Bennett and
White Ltd.,
brought Rand J. and Lord Reid to the conclusion that the decision of the
Alberta Assessment Commission would not support a plea of res judicata requires
a similar conclusion in regard to the decisions of the assessment tribunals
provided by the Ontario Statute upon questions of the nature above mentioned.
In my view this argument is sound in so far as it relates to the nature of the
powers conferred upon the Court of Revision, the County Judge and the Board.
In the Sugar City case
it was not argued that the sections of the Alberta Assessment Act
conferring jurisdiction on the Assessment Commission were ultra vires of
the Legislature.
[Page 492]
The constitutional validity of the Act being
assumed the problem considered was that of its proper construction.
Section 53 of the Alberta Act is as follows:—
53. 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.
It will be observed that there is no substantial
difference between the words of this section conferring jurisdiction on
the Commission and those of s. 83 of the Ontario Statute conferring
jurisdiction on the tribunals therein mentioned including the Board.
It was pointed out in argument however that
there are certain substantial differences between the provisions dealing with
assessment appeals in the Alberta Act and those in the Ontario Act, an example
being that the latter Act gives rights of appeal to both a County Judge and the Court of Appeal while
the former Act does not. This is quite true, but in the Sugar City case
in the Privy Council and in this Court the Ontario decisions were carefully
considered and both Lord Reid, who delivered the judgment of the Judicial
Committee, and Rand J., who delivered the judgment of the majority in this
Court, disapproved of the decision in Hagersville v. Hambleton, in which the provisions of the Ontario
Assessment Act had been construed as giving binding and conclusive effect to
the decisions of the assessment tribunals.
In Phillips and Taylor v. City of Sault Ste.
Marie, the
question of the construction of the sections of the Ontario Assessment Act
which confer jurisdiction on the assessment tribunals came before this Court
for decision. That was an action brought in the Supreme Court of Ontario for a
declaration that the appellants were not liable to taxation in respect of their
occupancy of certain lands belonging to the Crown in the right of Canada. This was clearly a question the
jurisdiction to decide which was prior to Confederation vested in the Superior
Courts of the Province. Prior to the commencement of the action each of the
appellants had appealed to the Court of Revision against the assessments made
upon the sole ground that they were
[Page 493]
not assessable. That Court having confirmed the
assessment, each appellant appealed to the District Judge upon the same ground
and the appeals were dismissed. They took no further appeal. In defence to the
action the City pleaded that the issues raised were res judicata by
reason of the decisions of the Court of Revision affirmed by the District
Judge. In this case also the constitutional validity of the sections of
the Act conferring jurisdiction on the assessment tribunals was assumed but the
plea of res judicata was rejected. In giving the judgment of the
majority in the Court of Appeal, Laidlaw J.A. applied to the Ontario Act the
principle stated by Lord Reid in Sugar City in the following words:—
…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.
Taschereau J., who gave the unanimous judgment
of this Court, said at page 409:—
...It is now the contention of the
respondent that the judgment given by the Judge of the District Court was final
and that the question of the validity of the assessments is, therefore, res
judicata. For the reasons given by Laidlaw J.A. in the Court of Appeal, I
believe that this argument fails.
It therefore appears to me that judgments which
are binding upon us have construed the provisions of the sections of the
Ontario Assessment Act which confer jurisdiction upon the assessment tribunals
as not giving to such tribunals jurisdiction to determine conclusively
questions the jurisdiction to decide which was prior to Confederation vested in
the Superior Courts. The jurisdiction with which the assessment tribunals are
clothed by the statute thus construed is described by Rand J. in Sugar City (supra)
at page 465 as follows:—
In dealing with taxation, from assessors to
taxation commissions, the provisions of the statute regarding liability and
exemption are necessarily taken into account by lay persons and bodies.
The determination of an exemption involves an interpretation of the statute,
and it thus affects a civil right. But the assessor must have regard to
exemptions for the purpose of the administrative integrity of the roll; and
although it is his duty to follow the provisions of the statute to the extent
his judgment
[Page 494]
permits him to do so, it is undoubted that
that preliminary judgment is essentially different from a judicial
determination of the legal question.
The assessor, as part of his administrative
duty, and as distinguished from purely administrative acts, exercises a lay
judgment in the interpretation of the statute. From the whole of his exercise
of authority, the statute ordinarily gives a right of appeal. By the nature of appeala,
in the absence of special and original powers given to the revising body, it is
to be taken as limited to examination of the matter that was before the
assessor and to the giving, in the same sense, of the decision which he should
have given.
I conclude, therefore, that the Ontario
Assessment Act, on its proper construction, by s. 83 and the related sections,
confers upon the Court of Revision, the County Judge and the Board jurisdiction
to decide all questions not only as to the amount of any assessment but also as
to whether any persons or things are or were assessable or are or were legally
assessed or exempted from assessment, but that any decision given by such
tribunals on questions the jurisdiction to decide which was prior to
Confederation vested in the Superior Courts is to be regarded only, as it was
put by Rand J. in the passage quoted above, as a decision given in the same
sense as the decision of the assessor.
Neither in the Sugar City case nor in Phillips
v. Sault Ste. Marie was it necessary for the courts to deal expressly with
the nature of the right of appeal to the Court of Appeal given by ss. 80 (7),
82 (1) and 83 of the Assessment Act. That court is of course one whose
members’ appointment to and tenure of office are in accordance with the
provisions of ss. 96, 99 and 100 of the British
North America Act. In
this it differs from the Court of Revision and the Board. The powers conferred
upon the County Judge are
conferred upon him as persona designata while those conferred upon the
Court of Appeal are conferred upon it as a Court and not upon its members as personae
designatae. I have had the advantage of reading the reasons of my brother
Rand and I agree with his conclusion as to the nature and extent of the
jurisdiction which is conferred upon the Court of Appeal by the
sections referred to.
It remains to consider the question, which was
not raised in either Sugar City or
Phillips v. Sault Ste. Marie, whether it is within the power of the
Provincial Legislature to confer upon the Court of Revision, the County Judge and the Board the powers
conferred upon them by the relevant sections as above construed. In my
opinion, it is. The
[Page 495]
attack on the constitutionality of the
sections in question is based upon the contention that they purport to
confer upon the tribunals mentioned the powers of a superior court. But it is
of the essence of the nature of a superior court that it has jurisdiction to
give a decision which, subject to such rights of appeal as may be given by
statute, is final and binding between the parties. The statute, as it has been
construed, does not purport to confer upon the assessment tribunals any such
power in regard to questions the jurisdiction to decide which was prior to
Confederation vested in the superior courts.
While, of course, the fact that the Attorney
General for Canada and the Attorney General for Ontario have taken certain
positions on the argument of the appeal does not relieve the Court of its
responsibility in deciding a constitutional question, it is to be observed that
the former contended that the sections in question were ultra vires of
the Provincial Legislature only if they were construed as conferring
jurisdiction on the assessment tribunals “to determine finally whether persons
or things are or were assessable or are or were legally assessed or exempted
from assessment” while the latter did not argue that they should be so
construed.
As to our jurisdiction to hear this appeal I
agree with the reasons and conclusion of my brother Rand.
I would allow the appeal, set aside the order of
the Court of Appeal and the decision of the Board and direct that the matter be
referred back to the Board in order that it may decide the question raised
before it. The appellant should recover its costs in the Court of Appeal and in
this Court from the respondent. There should be no order as to the costs of the
intervenants.
ABBOTT J.:—The relevant facts in this appeal as
well as the statutory provisions and the authorities bearing on the questions
in issue, are fully discussed in the judgments of my Lord the Chief Justice and
my brother Estey. I agree with their reasons and I desire to add only a few
brief observations.
[Page 496]
It appears to me that the question to be
determined in this appeal is identical with that which arose in Quance v.
Ivey, which
in my view was rightly decided.
As my brother Rand has pointed out the
assessment of property for taxation is primarily an administrative function
directed by statute, and in making an assessment the assessor must decide
whether a particular person or piece of property is taxable or not. Other
questions will arise in the course of establishing an assessment such as the
basis upon which the valuation of property is to be made and, since before
Confederation, questions of this kind have been passed upon by appellate
tribunals such as the Ontario Municipal Board, the decisions of which if not
appealed from are final. An example of a case where such a question arose is City
of Toronto v. Ontario Jockey Club, where
following successive appeals to the Court of Revision, a County Court Judge,
the Ontario Municipal Board, the Ontario Court of Appeal and this Court, the
valuation of certain buildings in the original assessment was held to have been
made on an improper basis. Liability to payment of some tax was not disputed.
Where, as in the present case, the sole question
in issue is whether certain property is assessable, it is clear on the
authorities that prior to Confederation the power to decide such a question
judicially was vested in the Superior, County, or District Courts, and has
continued to be so vested.
This question of liability to assessment is one
of law upon which in my opinion tribunals such as the Court of Revision or the
Ontario Municipal Board are not competent to pronounce. It follows that where
they purport to do so such action is without effect.
As Lord Reid said in Bennett & White (Calgary)
Ld. v. Municipal District of Sugar City No. 5, referring with approval to the previous
decision of the Judicial Committee in Toronto Railway Co. v. Corporation of
the City of Toronto:—
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
[Page 497]
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.
The italics are mine.
The constitutional question in this appeal was
not raised in either the Sugar City Case supra or in Phillips & Taylor v. City of Sault Ste. Marie and the learned judges who decided
those cases do not appear to have directed their attention to it.
So far as this appeal is concerned, the Sugar City case and the Sault Ste. Marie case, are in my opinion
authority for no more than the proposition that an assessment tribunal such as
the Ontario Municipal Board cannot determine conclusively whether a particular
property is liable to assessment. I agree with the view expressed by my Lord
the Chief Justice that nowhere in those judgments is it suggested, that where the
sole question in issue is the fundamental legal one of liability to assessment,
these tribunals have any authority to decide it.
The appeal should be dismissed with costs. There
should be no costs for or against the intervenants.
Appeal dismissed with costs. No costs
to or against either Attorney General.
Solicitor for the appellant: W.G. Angus.
Solicitors for the respondent: Armstrong,
Kemp, Young & Burrows.
Solicitor for the Attorney General for Ontario: C.R. Magone.
Solicitor for the Attorney General of Canada: F.P. Varcoe.
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