Irving Oil Co. Ltd. v. Minister of Municipal Affairs (N.B.) et al., [1977] 1 SCR 310

Supreme Court of Canada

Irving Oil Co. Ltd. v. Minister of Municipal Affairs (N.B.) et al., [1977] 1 S.C.R. 310

Date: 1975-12-19

Irving Oil Company Limited Appellant;

and

The Minister of Municipal Affairs of the Province of New Brunswick and the Provincial Secretary of the Province of New Brunswick Respondents.

1975: November 10; 1975: December 19.

Present: Laskin C.J. and Martland, Ritchie, Dickson and Beetz JJ.

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION

Assessment—Real property—Storage tanks and sub-structures—Assessment Act, 1965-66 (N.B.), c. 110, s. 1(g).

Assessment was made of appellant’s property, consisting of storage tanks, substructures and associated pipes and facilities, on the assumption that the property constituted ‘real property’ within the meaning of s. 1 (g) of the Assessment Act. Appellant contended on the basis of Acadian Pulp & Paper Ltd. v. Minister of Municipal Affairs (1973), 6 N.B.R. (2d) 755, that the tanks in question were excluded from the definition of ‘real property’ as being ‘machinery, equipment, apparatus and installations other than those for providing services to buildings or mentioned in subclause (ii)’. The trial judge found that the property constituted ‘structures which provide storage and shelter for movable property’ but feeling bound by Acadian Pulp and Paper held that they also constituted ‘machinery, equipment, apparatus and installations other than those providing services to buildings’ and therefore by the operation of s. 1 (g) (v) not ‘real property’ within the meaning of s. 1 (g). The Appeal Division set aside the judgment at trial and distinguished Acadian Pulp and Paper.

Held: The appeal should be dismissed.

The tanks being structures other than buildings and providing shelter for movable property are to be equated with ‘buildings’ within the meaning of s. 1 (g) (ii). For the reasons given in Min. Mun. Affairs (N.B.) v. Canaport Ltd., [1976] 2 S.C.R. 599, this is conclusive that the tanks are assessable as ‘real property’ and are not ‘machinery, equipment, apparatus and installations’ within the meaning of s. 1 (g) (v).

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Acadian Pulp and Paper Ltd. v. Minister of Municipal Affairs (1973), 6 N.B.R. (2d) 755 distinguished; Min. Mun. Affairs (N.B.) v. Canaport Ltd., [1976] 2 S.C.R. 599 followed.

APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division, allowing an appeal from a judgment of Barry J. at trial. Appeal dismissed.

P.B.C. Pepper, Q.C., Donald Gillis, Q.C., and Ian Whitcomb, for the appellant.

D.K. Laidlaw, Q.C., and David Norman, for the respondents.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal by Irving Oil Company Limited from a judgment of the Appeal Division of the Supreme Court of New Brunswick setting aside the judgment rendered at trial by Mr. Justice Barry and holding that the appellant’s facilities described in para. 8 of the amended Statement of Claim are properly assessable as “real property” within the meaning of s. 1 (g) of the Assessment Act, 1965-66 (N.B.), c. 110.

The appellant’s business and the nature of the property in question are well described in the judgment delivered by Chief Justice Hughes on behalf of the Appeal Division in the following terms:

The plaintiff is engaged in the business of selling petroleum products in the Province of New Brunswick and elsewhere in Canada and for the purposes of such business owns and uses bulk storage tanks and facilities at thirty-nine locations within the Province. The facilities are of three kinds or classes; (1) storage tanks having a capacity of 6,000 gallons, supported in a horizontal position on steel frames and measuring about 5 feet 9 inches in diameter and 19 feet in length; (2) storage tanks having a capacity of 20,000 gallons standing on an earth mound to provide gravity flow and measuring about 11 feet 6 inches in diameter and 31 feet in height and (3) storage tanks ranging in capacity from 270,000 to 1,050,000 gallons constructed on site of welded steel plate and erected on a prepared base. To each of the three classes of storage tanks there are attached pipes and other facilities for filling the tanks and drawing off the contents which are distributed to

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customers, as well as mounds, moats, pads, dikes and steel frames built and used in connection with the tanks.

In 1972 the taxing authority assessed these properties for real property and business tax in the amount of $100,350.05 and in 1973 in the amount of $103,178.20. This assessment was made on the assumption that the assets so assessed were “real property” within the meaning of the Assessment Act and particularly of s. 1 (g) thereof which reads, in part, as follows:

1. (g) “real property” means

(i) land, or

(ii) land and buildings including machinery, installations and equipment for providing services to the buildings, and where a building is erected on land under lease, license or permit, such building may for the purposes of this Act, be treated as real property separate from the land,

but excludes

(v) structures other than buildings, not providing shelter for people, plant or moveable property, and all machinery, equipment, apparatus and installations other than those for providing services to buildings as mentioned in subclause (ii) whether or not the same are affixed to land and buildings,…

In reliance upon the decision of Acadian Pulp and Paper Ltd. v. Minister of Municipal Affairs[1], the appellant contended that even if the words “structures other than buildings” in subclause (v) are to be interpreted as being property within the concept of “land” or “buildings” and consequently, prima facie “real property”, the tanks here in question were nevertheless excluded from the definition of “real property” as being “machinery, equipment, apparatus and installations other than those for providing services to buildings as mentioned in subclause (ii)”.

The learned trial judge found that the properties described in para. 8 of the amended Statement of Claim were “structures which provide storage and shelter for moveable property” but felt himself

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bound by the Acadian Pulp and Paper Limited case (supra) to hold that they constituted “machinery, equipment, apparatus and installations” and that as none of the items provided services to buildings they were excluded from the definition of real property under s. 1 (g)(v) of the Assessment Act. In setting aside the judgment at trial, Chief Justice Hughes distinguished the Acadian Pulp and Paper case saying:

The 39 storage tanks in the present case provide shelter for oil and therefore fall within the concept of ‘buildings’ under subclause (ii). Unlike the tanks in the Acadian Pulp and Paper Ltd. case they do not constitute in any sense part and parcel of any machinery, equipment or apparatus but are independent units owned and used by the plaintiff for the storage of petroleum products.

I agree with Chief Justice Hughes that the tanks here in question are structures other than buildings and that they provide shelter for moveable property and are therefore to be equated with “buildings” within the meaning of s. 1 (g) (ii). For the reasons which I have indicated in the case of the present respondent against Canaport Limited[2], I consider this finding, of itself, conclusive of the fact that these tanks are properly assessable as “real property” and that they do not constitute “machinery, equipment, apparatus and installations” within the meaning of s. 1 (g)(v).

For these reasons I would dismiss this appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellant: McKelvey, Macaulay, Machum & Fairweather, Saint John, (N.B.)

Solicitor for the respondents: The Attorney General, Federicton.