Dillon v. Toronto Millstock Co. Ltd. and Dolson, [1943] SCR 268

Supreme Court of Canada

Dillon v. Toronto Millstock Co. Ltd. and Dolson, [1943] S.C.R. 268

Date: 1943-04-02

John Dillon (Plaintiff) Appellant;

and

Toronto Millstock Company Limited and F.L. Dolson (Defendants) Respondents.

1943: February 24, 25; 1943: April 2.

Present: Duff C.J. and Davis, Kerwin, Hudson and Taschereau JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Assessment and taxation—Schools—Companies—Company designating portion of its assessment in municipality for separate school purposes—Separate Schools Act, R.S.O. 1937, c. 362, s. 66—Notice by company in form B—Complaint against assessment for separate school purposes—Onus of proof as to compliance with s. 66 (3)—Effect of absence of evidence.

Notwithstanding the filing by a corporation of a notice in form B pursuant to s. 66 (1) of the Separate Schools Act, R.S.O. 1937, c. 362, requiring the whole or a part of the assessments of the corporation to be entered, rated and assessed for separate school purposes, and entry accordingly by the assessor in the assessment roll, it is not necessary for a person filing a complaint against such assessment for separate school purposes to adduce any evidence to prove that the notice so filed by the corporation contravenes s. 66 (3) of said Act, but in the absence of affirmative proof that the portion of assessments required by that notice to be so rated and assessed does not bear a greater proportion to the whole of the assessments of the corporation than the amount of the stock or shares held by Roman Catholics bears to the whole amount of the stock or shares of the corporation, the whole of the assessments of the corporation should be entered, rated and assessed for public school purposes. The rule deduced from the Act in Windsor Education Board v. Ford Motor Company of Canada, Ltd., [1941] A.C. 453, that the normal course of assessment and rating for educational purposes is that the ratepayer is rated for public school purposes, and that the right to the statutory exception in favour of separate schools must be established, is a rule of substantive law, by which the burden of proof is fixed from the beginning upon those claiming the benefit of that exception.

APPEAL from the judgment of the Court of Appeal for Ontario[1] dismissing the present appellant’s appeal from the judgment of His Honour T.H. Barton, Judge of the County Court of the County of York, rendered on an appeal by the present appellant from the decision of the Court of Revision of the City of Toronto given against assessment for separate school purposes of the part of the assessments of the respondent company which had been required to be so assessed by notice given by the said company in form B pursuant to s. 66 (1) of the Separate Schools Act, R.S.O. 1937, c. 362.

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The appeal to the Court of Appeal was upon a case stated by His Honour T.H. Barton (pursuant to s. 85 of the Assessment Act, R.S.O. 1937, s. 272), reading as follows:

FACTS

Toronto Millstock Company Limited, hereinafter called the Corporation, is a Corporation assessed within the City of Toronto; the Corporation pursuant to Section 66 of the Separate Schools Act being Chapter 362, R.S.O. 1937, by Notice Form “B” of the said Separate Schools Act given to the Clerk of the City of Toronto on the 14th day of April, 1937, required part of the assessments of such Corporation for land, business and income liable to taxation for school purposes in respect of which the Corporation was assessed within the said City of Toronto to be entered, rated and assessed for the purposes of such Separate Schools; such notice has not been withdrawn, varied or cancelled by any notice subsequently given pursuant to any resolution of the Corporation or of its directors. In the year 1942 the assessor, in compiling his roll, followed the said notice and entered the Corporation as a Separate School supporter on the assessment roll in respect of so much of the assessments designated in the said notice, and the roll as returned conformed to the said notice. A complaint in respect of the said assessment was lodged by F.L. Dolson, a ratepayer of the City of Toronto, and the Court of Revision in the absence of any evidence being tendered on behalf of the said F.L. Dolson or the Corporation, allowed the appeal and directed all assessments of the Corporation to be entered for Public School purposes. From the decision of the Court of Revision allowing such appeal, the Appellant herein, John Dillon, appealed to me.

On the hearing of the appeal to me from the Court of Revision, the Corporation, although duly notified, did not appear and was not represented and the hearing of the appeal proceeded in its absence.

For the purpose of the appeal before me it was admitted that the Notice Form “B” was regular in form, had been properly filed and that the assessment roll as returned by the assessor was in conformity with the said notice.

The only evidence tendered before me, save the production of the said Notice Form “B”, the assessment roll and the notice of complaint to the Court of Revision, was that of the Respondent, F.L. Dolson, who was called by the Appellant. The witness, F.L. Dolson, testified that he had no knowledge as to who were the shareholders of the company nor as to what was the religion of any shareholder, that he had no reason to believe that the share or portion of the assessments required by the notice to be rated and assessed for Separate School purposes bore a greater proportion to the whole of such assessments than the amount of stock or shares of the Corporation held by Roman Catholics bore to the whole amount of the stock or shares of the Corporation, and that he had made no investigation or inquiries as to any of the pertinent facts concerning the shareholders of the company or their religion: he stated that his reason for appealing was solely that it was his contention that it was the duty of the Corporation affirmatively to prove that the Notice Form “B” did not contravene the provisions of Section 66, Subsection 3 of the Separate Schools Act, if it wished to have its assessments apportioned in accordance with the said notice.

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DECISION

I held that, notwithstanding the filing of a Notice Form “B” pursuant to Section 66, Subsection 1 of the Separate Schools Act, when a notice of complaint as to the assessments for Separate School purposes of the Corporation concerned is filed, it is not necessary for the person filing the complaint to adduce any evidence to prove that the said Notice Form “B” contravenes Section 66, Subsection 3 of the Separate Schools Act, but that in the absence of affirmative proof before me that the percentage required by the said notice to be entered, rated and assessed for the purposes of Separate Schools does not bear a greater proportion to the whole of the assessments of the Corporation than the amount of stock held by Roman Catholics bears to the whole amount of stock or shares of the Corporation, the whole of the assessments of the said Corporation should be entered, rated and assessed for the purpose of Public Schools.

STATEMENT OF THE QUESTION

Upon the facts above and upon the true construction of the Statutes as applied to the facts so stated, was I right in holding,—

1. That where the assessor has entered, rated and assessed part of the assessments of the Corporation for Separate School purposes pursuant to a Notice Form “B” filed by the Corporation pursuant to Section 66 of the Separate Schools Act and a complaint to the Court of Revision has been filed in respect thereto, the person complaining is not required to adduce any evidence to prove that the said notice contravenes Section 66, Subsection 3, but that unless there be adduced before me evidence proving affirmatively that the percentage required by the Corporation’s notice to be entered, rated and assessed for Separate School purposes, does not bear a greater proportion to the whole of the assessments of the Corporation than the amount of the stock or shares held by Roman Catholics bears to the whole amount of the stock or shares of the Corporation, the whole of the assessments of the Corporation must be entered, rated and assessed for Public School purposes;

2. That, notwithstanding that the Corporation has filed Notice Form “B” pursuant to Section 66 of the Separate Schools Act, the whole of the assessments of the Corporation ought to be entered, rated and assessed for the purposes of Public Schools unless it is affirmatively proven before me that the percentage required by the Corporation’s notice to be entered, rated and assessed for the purposes of Separate Schools, does not bear a greater proportion to the whole of the assessments of the Corporation than the amount of the shares held by Roman Catholics bears to the whole amount of stock or shares of the Corporation;

3. That the filing of a complaint to the Court of Revision with respect to the assessment of the Corporation for Separate School purposes in accordance with the said Notice Form “B” filed without the adducing of any evidence in support of the complainant’s contention casts upon those seeking to uphold the assessment made according to the said Notice Form “B” the onus of proving affirmatively that the share or portion of the assessments of the Corporation by the said notice required to be entered, rated and assessed for Separate School purposes does not

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bear a greater proportion to all the assessments of the Corporation than the amount of the stock or shares held by Roman Catholics bears to the whole amount of the stock or shares of the Corporation.

The Court of Appeal answered in the affirmative the questions asked in the stated case.

Special leave to appeal to the Supreme Court of Canada was granted by the Court of Appeal for Ontario.

T.N. Phelan K.C. and A. Kelly for the appellant.

D.H. Osborne for the respondent Dolson.

The judgment of the Court was delivered by

THE CHIEF JUSTICE.—In Windsor Education Board v. Ford Motor Co. of Canada, Ltd.[2], the judgment of the Judicial Committee proceeds upon the principle which is stated in these words at p. 461:—

It is common ground in all the judgments that the normal course of assessment and rating for educational purposes is that the ratepayer is rated for public school purposes. A statutory exception is made in favour of separate schools, but, to avail themselves of the statutory protection consisting of immunity from the ordinary liability and subjection to the extraordinary, the supporters of separate schools must establish their right to the statutory privilege.

The rule which their Lordships deduced from the statute is a rule of substantive law. To quote from the treatise on evidence in Halsbury’s Laws of England (the author of which is Sir Adair Roche, now Lord Roche) at p. 543:—

A distinction is to be observed between the burden of proof as a matter of substantive law or pleading, and the burden of proof as a matter of adducing evidence. The former burden is fixed at the commencement of the trial by the state of the pleadings, or their equivalent, and is one that never changes under any circumstances whatever.

The right to the statutory exception provided by section 66 of the Separate Schools Act (R.S.O. 1937, chap. 362, sec. 66) having been disputed by the notice of complaint, the onus is upon those claiming the benefit of that exception to “establish” the right. It does not matter whether the claim is that the corporation shall be rated as a separate school supporter in respect of the whole of the assessment, or only in respect of part of it. The onus from the begin-

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ning is upon those who support the “right to the statutory privilege.” That, I think, is clearly the effect of the judgment.

The appeal should be dismissed.

There should be no order as to costs.

Appeal dismissed.

Solicitors for the appellant: Day, Ferguson, Wilson & Kelly.

Solicitor for the respondent F.L. Dolson: D. Hillis Osborne.