Jones v. Edmonton Catholic School District No. 7 et al., [1977] 2 SCR 872

Supreme Court of Canada

Jones v. Edmonton Catholic School District No. 7 et al., [1977] 2 S.C.R. 872

Date: 1976-10-19

Lloyd Neville Jones Appellant;

and

The Board of Trustees of Edmonton Catholic School District Number 7 Respondent;

and

The City of Edmonton and The Court of Revision of The City of Edmonton Respondents;

and

The Attorney General for Alberta, The Attorney General of Nova Scotia and The Attorney General of Canada Intervenants.

1976: May 10, 11; 1976: October 19.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Assessment—Corporations—School assessment—Apportionment between public and separate schools—Jurisdiction of Court of Revision—The Municipal Taxation Act, R.S.A. 1970, c. 251, s. 45(1)(e)—The School Act, R.S.A. 1970, c. 329, ss. 60, 61, 63(4), 64—The British North America Act, 1867, s. 96.

Pursuant to s. 45 (1) of The Municipal Taxation Act, R.S.A. 1970, c. 251, the appellant filed a number of complaints alleging that there had been an improper entry and assessment of the property of various companies for separate school purposes, some of these purporting to have been made under s. 60 and the rest under s. 63 of The School Act, R.S.A. 1970, c. 329. On the application of the respondent Board, an order was made prohibiting the Court of Revision from hearing and deciding the appellant’s complaints. This order was affirmed, with minor variations, and for different reasons, by the Alberta Appellate Division. The appellant then appealed to this Court. The respondent, by its cross-appeal, alleged that the Appellate Division erred in varying the order of prohibition by recognizing that there was a limited jurisdiction in the Court of Revision to consider and determine the appellant’s complaints.

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Provision is made in ss. 60 and 61 of The School Act to enable a corporation to require that a percentage of its assessable property be entered and assessed for separate school purposes. If a corporation does not give a notice under s. 60, provision is made in s. 63 to enable the board of a separate school district to require a part of the assessable property of the corporation to be entered and assessed for separate school purposes.

When a corporation gives notice under s. 60, the percentage of its property to be assessed for separate school purposes is to be determined upon the basis of the value of the shares in the corporation owned by separate school supporters in relation to the total value of all its shares (subs. (2)). In the case of a notice by a separate school district under s. 63, the computation of the percentage of the corporation’s assessable property to be entered and assessed for separate school purposes is to be determined pursuant to s. 64, which provides that the percentage shall bear the same ratio to the total assessed value of the property of the corporation in the district as the assessment of property in the district of persons, other than corporations, who are separate school supporters, bears to the total assessed value of the property in the district of all persons, other than the corporations.

Held: The appeal should be allowed in part and the judgment of the Appellate Division varied by setting aside the order of prohibition in so far as it relates to complaints made by the appellant in respect of notices given by corporations pursuant to s. 60 of The School Act. The cross-appeal should be dismissed.

A court of revision can consider, under s. 45(1)(e) of The Municipal Taxation Act, a complaint relating to a corporation. The word “person” as used in that paragraph is not restricted to natural persons.

A corporation which elects to give a notice under s. 60 of The School Act is obligated to comply with the requirements of subs. (2). Failure to comply renders the notice inoperative and such non-compliance can be brought to the attention of and considered by the Court of Revision under s. 45 (1) (e) of The Municipal Taxation Act.

With respect to the validity of notices filed by the Board under s. 63 in cases where the corporation affected has no shareholders who are separate school supporters, subs. (4) enables a corporation served with such a notice to bring it to an end if it serves a statement, under

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the corporate seal, that all of its shareholders are of the same religious faith as the electors of the public school district. The wording of the subsection is significant in that it provides that if such a statement is served “the notice of the board of the separate school district under subsection (1) is not effective with respect to any subsequent year”. The clear implication is that, in the absence of a statement by the corporation under subs. (4), the separate school board notice under subs. (1) is effective even in respect of a corporation all of whose shareholders are of the same religious faith as the electors of the public school district.

As to the constitutional issue, the fact that a provincial tribunal is required to exercise a judicial function does not, of itself, involve a conflict with s. 96 of the B.N.A. Act. The question is whether that function broadly conforms to the type of jurisdiction exercised by Superior, District or County Courts. The powers conferred upon the Court of Revision under s. 45(1)(e) of The Municipal Taxation Act do not so conform.

The respondent’s contention that any legislation by the Legislature of Alberta subsequent to The School Assessment Ordinance, 1901 (N.W.T.), c. 30, which would permit a challenge to the company’s apportionment would be in breach of s. 17(1) of The Alberta Act was not accepted. Section 17(1) refers to a “right or privilege with respect to separate schools which any class of persons have…”. The right or privilege which companies had under ss. 9 and 93 of the Ordinance was to allocate the assessment of part of their property for separate school purposes, but only in proportion to the number of shares held by shareholders who were Roman Catholics as compared to the total of all shareholdings. The right of a company was no greater than that. Assuming that, under the Ordinance, the company’s notice was final and beyond challenge (which was not necessarily accepted), none the less, a provision which enables the apportionment to be challenged does not in any way diminish the right to apportion. Section 17(1) did not guarantee the right to make a false apportionment.

Windsor Education Board v. Ford Motor Co. of Canada Ltd., [1941] A.C. 453; Banque Provinciale du Canada v. Ogilvie, [1973] S.C.R. 281; Tomko v. Labour Relations Board (Nova Scotia), [1977] 1 S.C.R. 112; Labour Relations Board of Saskatchewan v. John East Iron Works Ltd., [1949] A.C. 134, followed; Regina Public School v. Gratton Separate School (1915), 50 S.C.R. 589, distinguished; City of Toronto v. Olympia

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Edward Recreation Club Ltd., [1955] S.C.R. 454; Re Metro Toronto & L.J. McGuinness & Co. Ltd., [1960] O.R. 267, referred to.

APPEAL and CROSS-APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], affirming an order of D.C. McDonald J., prohibiting the Court of Revision from hearing certain complaints made by the appellant pursuant to s. 45(1) of The Municipal Taxation Act. Appeal allowed in part and cross-appeal dismissed.

H.L. Irving, Q.C., and T.A. Cockrall, for the appellant.

J.E. Redmond, Q.C., and J.P. Warner, for the respondents.

G.A. Ainslie, Q.C., for the intervenant, Attorney General of Canada.

W. Henkel, Q.C., for the intervenant, Attorney General of Alberta.

G. Kavanagh, Q.C., for the intervenant, Attorney General of Nova Scotia.

The judgment of the Court was delivered by

MARTLAND J.—This appeal is from the judgment of the Appellate Division of the Supreme Court of Alberta, which affirmed, with minor variations, and for different reasons, an order made, on the application of The Board of Trustees of Edmonton Catholic School District Number 7, hereinafter referred to as “the Board”, prohibiting the Court of Revision from hearing and deciding certain complaints made by the appellant pursuant to s. 45(1) of The Municipal Taxation Act, R.S.A. 1970, c. 251. That Act provides, in s. 43, for the establishment in each municipality of a court of revision which sits annually to hear and to deal with complaints against assessment.

The respondent, by its cross-appeal, alleges that the Appellate Division erred in varying the order of prohibition by recognizing that there was a limited jurisdiction in the Court of Revision to consider and determine the appellant’s complaints.

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The respondent supports the reasoning of the judgment on the original application and also contends that, if s. 45(1) had the scope claimed by the appellant, its enactment would have been ultra vires of the Legislature of Alberta.

The appellant filed a number of complaints alleging that there had been an improper entry and assessment of the property of various companies for separate school purposes, some of these purporting to have been made under s. 60 and the rest under s. 63 of The School Act, R.S.A. 1970, c. 329. The properties in question are situated within the boundaries of the public school district and of the separate school district in the City of Edmonton. Section 36(5) of The Municipal Taxation Act provides that:

(5) In the case of property that is situated both within the boundaries of a public school district and the boundaries of a separate school district, the municipal secretary or the assessor in the case of a city, shall make the proper entry on the roll as to whether the taxpayer is a public school supporter or a separate school supporter, having regard to the provisions of The School Act.

Under The School Act (s. 14) the Minister of Education may establish any portion of Alberta as a public school district. Provision is made for the establishment of separate school districts by s. 50, subs. (1) of which provides:

(1) The minority of electors in any district, whether Protestant or Roman Catholic, may establish a separate school therein, and in such case the electors establishing a Protestant or Roman Catholic separate school are liable only to assessments of such rates as they impose upon themselves in respect thereof, and any person who is legally assessed or assessable for a public school in the district is not liable to assessment for any separate school therein.

Section 57 of The School Act deals with assessment and taxation and reads as follows:

57. (1) Where a separate school district has been established, the religion of the owner of property liable to assessment, whether Protestant or Roman Catholic, determines whether the property is assessable for public or separate school purposes.

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(2) Where a person is neither a Protestant nor a Roman Catholic, his property is assessable for the public school district (and he is deemed to be a public school supporter) or, if he supports the separate school district, his property is assessable for the separate school district (and he is deemed to be a separate school supporter).

(3) Where the religion of a person is not known his property is assessable and taxable for public school purposes.

With respect to the assessment of the property of a corporation, provision is made in ss. 60 and 61 to enable the corporation to require that a percentage of its assessable property be entered and assessed for separate school purposes:

60. (1) Where a separate school district exists, a corporation that has shareholders or members of the same religious faith as those who established the separate school district may, by giving notice to the proper officer of the municipality require a percentage of the property in respect of which it is assessable to be entered and assessed for separate school purposes.

(2) Where the corporation has shareholders, that notice shall designate the percentage of the property of the corporation in the district assessable for separate school purposes that bears the same ratio to the total assessed value of the property of the corporation in the separate school district as the value of shares of the separate school supporters bears to the total value of all shares of the corporation.

(3) Where the corporation does not have shareholders or is a co-operative association the notice shall designate the percentage of the property of the corporation in the district assessable for separate school purposes that bears the same ratio to the total assessed value of the property of the corporation in the separate school district as the number of members who are separate school supporters bears to the total number of members of the corporation.

(4) The notice given by a corporation shall state that the percentage of the property of the corporation designated in the notice has been approved by a resolution of the corporation or the board of directors of the corporation.

61. (1) A notice under section 60 shall be given to the proper officer of the municipality in which the property is situated and to the secretaries of the boards

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of the public and separate school districts or to the secretary of the board of the division if the public school district is within a division.

(2) The notice shall be given on or before December 1 and becomes effective on the following December 31.

(3) The proper officer shall retain on file in his office each notice given to him by a corporation.

(4) The notice continues in force and shall be acted upon until it is withdrawn, varied or cancelled by a subsequent notice given pursuant to a resolution of the corporation.

If a corporation does not give a notice under s. 60, provision is made in s. 63 to enable the board of a separate school district to require a part of the assessable property of the corporation to be entered and assessed for separate school purposes. It provides:

63. (1) Where a corporation has not given a notice under section 60, the board of a separate school district, by giving notice, may require part of the property in respect of which the corporation is assessable to be entered and assessed for separate school purposes.

(2) The notice shall be given to the corporation, to the proper officer of the municipality and to the secretary of the public school district or to the secretary of the division if the public school district is in a division.

(3) The notice shall be given on or before December 15 and becomes effective on the following December 31 and remains in effect until the corporation gives a notice in accordance with sections 60 and 61, or a notice under subsection (4).

(4) If, before December 31 of any year, a corporation gives to each person mentioned in section 61, subsection (1) a statement under the seal of the corporation that all of the shareholders of the corporation are of the same religious faith as the electors of the public school district, the notice of the board of the separate school district under subsection (1) is not effective with respect to any subsequent year.

It will be noted that when a corporation gives notice under s. 60, the percentage of its property to be assessed for separate school purposes is to be determined upon the basis of the value of the shares in the corporation owned by separate school supporters in relation to the total value of all its

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shares. In the case of a notice by a separate school district under s. 63, the computation of the percentage of the corporation’s assessable property to be entered and assessed for separate school purposes is to be determined pursuant to s. 64:

64. Where the board of a separate school district has given a notice to a corporation under section 63, the proper officer of each municipality shall designate a percentage of the property of that corporation in the district assessable for separate school purposes which shall bear the same ratio to the total assessed value of the property of the corporation in the district as the assessment of property in the district of persons, other than corporations, who are separate school supporters, bears to the total assessed value of the property in the district of all persons, other than the corporations.

The nature of the complaints made by the appellant is illustrated by the two typical examples which were considered in the Appellate Division. One complaint related to Acme Brake & Clutch Ltd., which, on November 15, 1973, had filed a notice under s. 60, as a result of which 100 per cent of its property was assessed for separate school purposes. The appellant complained that this percentage was not determined in accordance with the requirements of s. 60 because it did not represent the ratio between the value of the shares in the corporation owned by separate school supporters and the total value of all shareholdings.

The other complaint related to Aaron Holdings Ltd. In this case the Board had filed a notice pursuant to s. 63. Of this company’s property, 75 per cent was assessed for public school purposes and 25 per cent for separate school purposes. The appellant complained that the company had no shareholders of the Roman Catholic faith and that, therefore, the Board was not entitled to file a notice under s. 63.

The right of the appellant to complain to the Court of Revision depends upon s. 45(1) of The Municipal Taxation Act, which provides:

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(1) A person whose name appears on the assessment roll of any municipality may complain to the court of revision in respect of

(a) an error or omission alleged in respect of the assessment of any property, or

(b) an assessment of land or improvements, or both, alleged to be too high or too low, or

(c) a property in any way wrongly assessed, or

(d) the name of a person alleged to be wrongfully entered upon or omitted from the assessment roll, or

(e) any person who should be assessed as a public school supporter has been assessed as a separate school supporter or vice versa.

The Board sought and obtained an order to prohibit the Court of Revision from hearing and determining the appellant’s complaints on the ground that that Court did not have jurisdiction under s. 45(1) to hear them. The appellant relied upon paras. (c) and (e) of the subsection, but its argument was chiefly based upon para. (e).

The judgment on the application was on the ground that the word “person”, as used in para. (e), meant a natural person and did not apply to a corporation. All the complaints related to corporations. The judgment recognized that The Interpretation Act, R.S.A. 1970, c. 189, by its terms (s. 3(1)), provides that:

Every provision of this Act extends and applies to every enactment, unless a contrary intention appears.

and that s. 21(1)20 provides that “person” includes a corporation. However, the judgment referred to sections of The School Act in which the words “public school supporter” and “separate school supporter” are used in a context which could relate only to a natural person. The instances referred to included ss. 57(2), 57(3), 60(2) and 60(3), which have already been quoted. The conclusion drawn was that “any person who should be assessed as a public school supporter” must mean a natural person.

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The Appellate Division did not adopt this reasoning. It found that the Court of Revision did have jurisdiction to hear the complaints, but held that its jurisdiction in respect of those complaints was limited to the following matters:

(a) Determining whether the notice given under Section 60 of The School Act by Acme Brake & Clutch Ltd. was given to the persons designated by Section 61 of The School Act;

(b) Inquiring as to the existence in fact of a resolution of Acme Brake & Clutch Ltd. relating to Section 60 of The School Act, provided that such inquiry may not in any way deal with the internal affairs or management of the Corporation;

(c) Inquiring whether Acme Brake & Clutch Ltd. had a right to give a notice under Section 60 of The School Act, in the sense that one or more of its shareholders were of the same religious faith as those who established the separate school district;

(d) Inquiring whether:

(i) Aaron Holdings Ltd. gave a notice under Section 60 of The School Act;

(ii) The Edmonton Catholic School District Number 7 gave a notice under Section 63(1) of The School Act with respect to Aaron Holdings Ltd. and whether or not the notice was also given to those designated by Section 63(2) of The School Act;

(iii) Aaron Holdings Ltd., subsequent to receipt of such notice under Section 63(1) of The School Act gave a notice in accordance with Section 63(4) of The School Act.

(e) Inquiring whether the City Assessor of the City of Edmonton has accurately recorded in the Assessment Roll the information required to be entered as a result of or pursuant to notices given under The School Act by or in respect of Acme Brake & Clutch Ltd. and Aaron Holdings Ltd.

I am in agreement with the conclusion of the Appellate Division that the Court of Revision could consider, under s. 45(1)(e) of The Municipal Taxation Act, a complaint relating to a corporation. In my opinion the word “person” as used in that paragraph includes a corporation. The conclusion in the judgment at trial that, in the light of other sections of The School Act, “public school supporter” and “separate school supporter” mean only natural persons is answered by s. 64, which

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refers in terms to “the assessment of property in the district of persons, other than corporations, who are separate school supporters”. This clearly contemplates that corporations can be separate school supporters.

Section 45(1) of The Municipal Taxation Act uses the word “person” twice in addition to its use in para. (e). It appears in the first two words of the subsection and again in para. (d). If “person”, as used, in the subsection is taken to mean only a natural person, no corporation could make any complaint to the Court of Revision in respect of its assessment, and no complaint could be made by anyone as to the wrongful entry or omission of a corporation on or from the assessment roll. If “person” does include a corporation in those two instances I cannot conclude that it was used in a different sense in the same subsection in para. (e).

I will now examine the reasons which led the Appellate Division to sustain the order of prohibition, save to the limited extent previously mentioned. This requires a separate consideration of the conclusions reached with respect to s. 60 and s. 63 of The School Act.

Section 60

The Appellate Division held that, in respect of s. 60, any company having shareholders who are supporters of a separate school was required to determine the number of shareholders who were separate school supporters, the value of their shares, and thereupon make an allocation of the assessable property which is to be entered and assessed for separate school purposes. It was held that:

These matters fall within the internal management of the corporation, and no authority for intrusion is given to an outside agency. Given one or more separate school supporters amongst the shareholders, for the purposes of the operation of section 60 all that is required is a notice by the corporation in which the percentage designation of assessment is set out with a statement that it is

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approved by a resolution of a corporation or of its directors.

It was also held that if

the correctness of the statements in the notice is to be challenged, it would have to be made against the directors or against the company itself, as the case may be, by such action in the courts as may be available and appropriate. The statute does not contemplate that the contents of the notice could be subject to outside attack.

Reference was made to the Privy Council decision in Windsor Education Board v. Ford Motor Company of Canada, Limited[2], in the following passage from the judgment of the Appellate Division:

I do not think that the above conclusion is precluded by Windsor Education Board v. Ford Motor Company of Canada, Limited [1941] A.C. 453. The ratio of that case was directed to the burden of proof in a hearing by the Court of Revision, it having been conceded by counsel that a right of appeal lay in respect of the contents of a notice given by a corporation. That concession unavoidably opened the door to a jurisdiction in the Court of Revision, as appears from the judgment of Lord Atkin at page 463. Such is not the case here. The right of appeal to the Court of Revision is strongly contested and demands a decision.

The Windsor case was concerned with a provision of The Separate Schools Act, R.S.O. 1937, c. 362, s. 66, similar in effect to ss. 60 and 61 of The School Act. The Ontario section provided as follows:

66. (1) A corporation by notice (Form B) to the clerk of any municipality wherein a separate school exists may require the whole or any part of the land of which such corporation is either the owner and occupant, or not being the owner is the tenant, occupant or actual possessor, and the whole or any proportion of the business assessment or other assessments of such corporation made under The Assessment Act, to be entered, rated and assessed for the purposes of such separate school.

(2) The assessor shall thereupon enter the corporation as a separate school supporter in the assessment roll in respect of the land and business or other assessments designated in the notice, and the proper entries shall be made in the prescribed column for separate school rates,

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and so much of the land and business or other assessments so designated shall be assessed accordingly for the purposes of the separate school and not for public school purposes, but all other land and the remainder, if any, of the business or other assessments of the corporation shall be separately entered and assessed for public school purposes.

(3) Unless all the stock or shares are held by Roman Catholics the share or portion of such land and business or other assessments to be so rated and assessed shall not bear a greater proportion to the whole of such assessments than the amount of the stock or shares so held bears to the whole amount of the stock or shares.

(4) A notice given in pursuance of a resolution of the directors shall be sufficient and shall continue in force and be acted upon until it is withdrawn, varied or cancelled by a notice subsequently given pursuant to any resolution of the corporation or of its directors.

(5) Every notice so given shall be kept by the clerk on file in his office and shall at all convenient hours be open to inspection and examination by any person entitled to examine or inspect an assessment roll.

(6) The assessor shall in each year, before the return of the assessment roll, search for and examine all notices which may be so on file and shall follow and conform thereto and to the provisions of this Act.

A dispute arose between the Board and the company in respect of a notice given by the company to the clerk of the municipality requiring that 18 per cent of its assessment in the City of Windsor be entered and assessed for separate school purposes. It was the contention of the Board that the allocation had been improperly made because it was not based upon actual knowledge of the percentage of Roman Catholic shareholders in the company, but was an estimate.

The Board appealed to the Court of Revision pursuant to s. 31 of The Assessment Act, R.S.O. 1937, c. 272, which provided:

31. The court of revision shall hear and determine all complaints with regard to persons alleged to be wrongfully placed upon or omitted from the roll as Roman Catholic separate school supporters, and any person so complaining or any ratepayer may give notice in writing

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to the clerk of the municipality of such complaint, and the provisions of this Act as to giving notice of complaints against the assessment roll and proceedings for the trial thereof shall apply to complaints under this section.

The Board was successful in the Court of Revision and on the company’s appeal to a county court judge. The company appealed to the Court of Appeal for Ontario, which reversed the county court judge. The Board failed on its appeal to this Court, but successfully appealed to the Privy Council, which held that an onus rested upon the company to prove that the allocation to separate school purposes did not exceed the proportion permitted by s. 66, and that this onus had not been met.

At no point in the judgments of this Court or in the Privy Council was it suggested that the requirements of s. 66(3) (the equivalent of s. 60(2) of The School Act) were merely a matter of guidance for the internal management of the company. The failure of the company properly to comply with that subsection resulted in the notice being declared null and void, and the whole assessment being rated for public school purposes.

The Appellate Division, in the passage from its reasons already cited, distinguished the Windsor case on the basis of a concession by counsel in the Privy Council. In the first place, a concession by counsel could not confer upon the Court of Revision a jurisdiction which it did not have. In the second place, the reference to the concession was made in discussing what was regarded as a secondary submission by counsel for the company. The passage in question is as follows, at p. 463 of the Privy Council decision:

Two other matters raised in the excellent argument of Mr. Gahan for the respondents require short notice. It was urged that the provisions of sub-s. 4 of s. 66 have the effect of making the directors’ notice valid unless, at least, it is proved to be invalid. But this construction of the sub-section would lead to impossible results. The notice, says the sub-section, is sufficient, and remains in force until withdrawn, varied or cancelled by another notice of the company. If this were literally construed no appeal against an invalid notice would be of any avail

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until the directors chose to correct their mistake. But the right of appeal is conceded, with the consequence that the notice may be found to be invalid for requiring too great a proportion. Sub-sect. 4 will not avail. The subsection can only affect the notice until challenged on appeal, and it appears to have no bearing on the question of onus on such appeal, which is determined by the considerations already stated.

It should be noted that the judgment of the Appellate Division itself concedes the right of the appellant in this case to appeal from the notice. The question in issue is as to whether the validity of the notice can be considered by the Court of Revision, or whether, once made, it is immune from attack save by an action in the courts. In my opinion the decision of the Privy Council in the Windsor case could not have been made if it had considered that the allocation made by the company was not subject to review on appeal to the Court of Revision.

An issue similar to that in the Windsor case arose in the case of Banque Provinciale du Canada v. Ogilvie[3]. The case, in this Court, turned upon the adequacy of the efforts made by the appellant bank to ascertain the proportion of its shares owned by Roman Catholic shareholders. In this Court they were held to be adequate. The relevant section, s. 58 of The Separate Schools Act, R.S.O. 1960, c. 368, was essentially the same as that considered by the Privy Council in the Windsor case. Again, there was no suggestion that the content of the notice by the corporation could not be considered by the Court of Revision.

While I recognize that there are some differences in wording and arrangement of the subsections as between ss. 60 and 61 of The School Act now being considered and the sections of The Separate Schools Act which were considered in the Windsor case and the Banque Provinciale case, in the light of those decisions I do not construe s. 60(2) of The School Act as manifesting an intention to insulate the contents of a notice filed under that section from consideration by the Court of

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Revision. A corporation which elects to give a notice under s. 60 is obligated to comply with the requirements of subs. (2). Failure to comply renders the notice inoperative and, in my opinion, such non-compliance can be brought to the attention of and considered by the Court of Revision under s. 45(1)(e) of The Municipal Taxation Act.

That the proper allocation by a corporation of part of its assessment to separate school purposes is not merely a matter of internal administration within the corporation was made clear by Chief Justice Duff, who was one of the dissenting judges in this Court in the Windsor[4] case. He was referring to s. 66 of The Separate Schools Act which I have cited. He said, at p. 419:

I am unable to escape the conclusion that section 66 imposes a strict limit upon the proportion of its land and business or other assessments which can be designated by the ratepayer-corporation in its notice for assessment for the purposes of the separate school in the municipality. Subsection 3 appears to me to impose a prohibition directed to the corporation against designating for such purposes a proportion of its land, business or other assessments greater than the proportion which the stock or shares held by Roman Catholics bears to the whole amount of its stock or shares.

The ratepayer corporation is not a public body, but in giving the notice authorized by section 66, it is exercising a statutory authority bestowed upon it in the public interest and for a public purpose. In exercising such authority it is affected by certain obligations which govern a public body invested with powers the execution of which may prejudicially affect the rights and interests of others. It is bound to act within the limits of the power conferred, and conformably to the procedure laid down by the statute. It is bound to exercise the power in good faith for the purposes for which the power is given, that is to say, for the purposes contemplated by the statute; and, in putting the power into effect (following the procedure laid down), it is bound to act reasonably. (Westminster v. London & N.W. Ry. Co., [1905] A.C. 426, at 430).

With great respect, I think this statute contemplates a notice given, and only given, after the ratepayer corporation has ascertained as a fact that the proportion of its assessment directed to be applied for separate school purposes is not greater than the proportion defined by subsection 3. Unless that condition be fulfilled, the

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corporation cannot, in my opinion, be said to be exercising the statutory power in conformity with the directions of the statute.

For these reasons I am of the view that the Court of Revision should not have been prohibited from considering the appellant’s complaint with respect to notices which failed to comply with s. 60.

Section 63

The issue here is as to the validity of notices filed by the Board under s. 63 in cases where the corporation affected has no shareholders who are separate school supporters. Subsection (1) of the section provides that:

Where a corporation has not given a notice under section 60, the board of a separate school district, by giving notice, may require part of the property in respect of which the corporation is assessable to be entered and assessed for separate school purposes.

The Appellate Division dealt with this issue in the following passage from its judgment:

The section operates on a timetable, and its purpose is also directed to fair treatment of minority school districts in the matter of tax support. It is available to a separate school board only when a corporation has not given a notice under section 60 by December 1 (Section 61(2)). This may have occurred because all of its shareholders are public school supporters or it may have been a matter of neglect in the internal management of the corporation, or merely indifference on the part of such of its shareholders as are separate school supporters. Whatever the reason, the separate school board is given the right within a limited time to put the matter to the test. It may give a notice on or before December 15 requiring a part of the assessable property of such corporation to be entered on the assessment roll for separate school purposes. The right to give this notice is not dependent upon the existence of separate school supporters amongst the shareholders of the corporation, as subsection (4) makes abundantly clear; and on this I distinguish the decision in Regina Public School v. Gratton Separate School ((1915), 21 D.L.R. 162) on section 93a of The School Assessment Act of Saskatchewan. It arises when the corporation has not given a notice by December 1, and there are no other conditions attached to the exercise of the right. The notice must be given to all those mentioned in subsection (2) which includes the corporation. The corporation is thereby

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alerted to the claim of the separate school board to a share of its taxes. At that late stage it may, pursuant to section 63(4) give a statement under its corporate seal that all of its shareholders are of the same religious faith as the electors of the public school district.

The contention of the appellant is that ss. 60 and 63 must be read together, and that the words “Where a corporation has not given a notice under section 60” must be construed as being applicable only in a situation where the corporation could have filed a notice under s. 60 but failed to do so. A corporation which has no shareholders who are separate school supporters could not, under s. 60, require a part of its property to be entered and assessed for separate school purposes. This position is supported by the opinions of Davies J. and Duff J. (as he then was) in Regina Public School v. Gratton Separate School[5], which case was distinguished in the passage from the judgment of the Appellate Division which I have quoted.

The Regina case arose out of the meaning and application of s. 93a of the Saskatchewan School Assessment Act enacted in s. 3 of c. 36 of the Saskatchewan Statutes 1912-1913. Section 93 of that Act, R.S.S. 1909, c. 101, contained a provision, similar to s. 60 of The School Act, enabling a corporation to give notice requiring a portion of its school taxes to be applied for separate school purposes. Section 93a, similar in effect to s. 63 of The School Act, provided as follows:

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

The board of trustees of         separate school district No.      of Saskatchewan hereby give notice that unless and until your company gives a notice as provided by section 93 of The School Assessment Act the school taxes payable by your company in respect of assessable property lying within the limits of the        school district No.       of Saskatchewan (naming the public school district in relation to which the separate

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

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

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

The effect of this section was that, if the board of a separate school district properly gave the kind of notice provided in s. 93a, a portion of the school taxes of a corporation to which such notice was given would be payable to the separate school district, and that this would continue until the corporation gave a notice under s. 93, which notice a corporation with no shareholders who were separate school supporters could not give.

The case was considered in this Court by five judges on a special case in which one of the questions was as to the constitutional validity of s. 93a.

Chief Justice Fitzpatrick and Anglin J., as he then was, were of the view that the section was valid, and that it applied to all corporations which had not given a notice under s. 93. Idington J. held that the section was constitutionally invalid. Davies J. and Duff J., as he then was, did not deal with the constitutional issue, but held that the section did not apply to a corporation which, because it had no shareholders who were separate school supporters, could not give a notice under s. 93.

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The provisions of s. 63 of The School Act can be distinguished from s. 93a of the Saskatchewan Act in two respects. In the first place, the wording of the Saskatchewan Act refers to a company “failing” to give a notice as provided in s. 93. This connotes that the corporation has not done something which it was able to do. The Alberta Act does not refer to a failure, but to the fact that a notice has not been given.

In the second place, and more important, is the inclusion in s. 63 of subs. (4). No such provision was contained in s. 93a. Subsection (4) was added to the predecessor of s. 63 by s. 19 of c. 52, Alberta Statutes 1955. It was obviously enacted to meet the difficulty which had previously existed, and which existed under s. 93a, that a notice by the separate school board on a corporation under s. 63 would continue in effect thereafter because the corporation could not file a notice under s. 60, which was the only way of bringing the operation of the school board notice to an end.

Subsection (4) enables a corporation served with a s. 63 notice to bring it to an end if it serves a statement, under the corporate seal, that all of its shareholders are of the same religious faith as the electors of the public school district. The wording of the subsection is significant in that it provides that if such a statement is served “the notice of the board of the separate school district under subsection (1) is not effective with respect to any subsequent year”. The clear implication is that, in the absence of a statement by the corporation under subs. (4), the separate school board notice under subs. (1) is effective even in respect of a corporation all of whose shareholders are of the same religious faith as the electors of the public school district. (By virtue of s. 2(e) and s. 53 of The School Act “electors of the public school district” refers to all electors other than those who are separate school supporters.)

In the result, I would affirm the conclusions of the Appellate Division on this issue.

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Constitutional Issue

The respondent contended that s. 45(1) of The Municipal Taxation Act could not give to the Court of Revision the jurisdiction to hear and determine the appellant’s complaints under ss. 60 and 63 of The School Act because in that event it would be exercising the powers of a Superior, District or County Court contrary to s. 96 of the British North America Act. The Attorneys General of Canada, Nova Scotia and Alberta intervened on this issue. The position of the Attorney General of Canada was that no constitutional issue arose in this case because the Court of Revision, under The Municipal Taxation Act and The School Act, did not have the jurisdiction to deal with the appellant’s complaints. The Attorneys General of Nova Scotia and Alberta contested the respondent’s submission.

In support of his submission, counsel for the respondent cited a number of cases concerned with the powers of the Ontario Municipal Board. The most recent of these decisions was that of this Court in City of Toronto v. Olympia Edward Recreation Club Ltd.[6], which held, in a case which raised the issue as to whether the respondent’s bowling alley formed part of the real estate as defined by The Assessment Act, R.S.O. 1950, c. 24, and was, therefore, assessable, that this was a question of law which the Ontario Municipal Board did not have the power to decide. Counsel contends that the cases cited are authority for the proposition that judicial authority cannot be given to a provincial tribunal so as to purport to constitute it a court of justice analogous to a Superior, District or County Court. He contends that to find a jurisdiction in the Court of Revision to deal with the matters raised in the appellant’s complaints in respect of notices given under s. 60 of The School Act would be contrary to this principle.

The cases cited must be considered in the light of subsequent decisions in respect of the application of s. 96 of the British North America Act. The most recent case dealing with this matter is Tomko v. Labour Relations Board (Nova Scotia),

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as yet unreported[7], delivered on December 19, 1975. In that case this Court rejected the contention that certain of the statutory powers given to the Nova Scotia Labour Relations Board were invalid because they were similar to powers which could be exercised by a Superior Court. Chief Justice Laskin stated the governing principle in this way [at p. 120]:

In my opinion, the judgment of the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd., [1949] A.C. 134, and of this Court in Tremblay v. Commission des Relations de Travail du Québec, [1967] S.C.R. 697, have properly emphasized what other cases have reflected in their consideration of the force of s. 96 (as for example, Dupont v. Inglis, [1958] S.C.R. 535, Attorney General for Ontario and Display Services Co. Ltd. v. Victoria Medical Building, [1960] S.C.R. 32, and Brooks v. Pavlick, [1964] S.C.R. 108), namely, that it is not the detached jurisdiction or power alone that is to be considered but rather its setting in the institutional arrangements in which it appears and is exercisable under the provincial legislation.

The fact that a provincial tribunal is required to exercise a judicial function does not, of itself, involve a conflict with s. 96. The question is whether that function broadly conforms to the type of jurisdiction exercised by Superior, District or County Courts (Labour Relations Board of Saskatchewan v. John East Iron Works Ltd.[8]).

In my opinion the powers conferred upon the Court of Revision under s. 45(1)(e) of The Municipal Taxation Act do not so conform. On the contrary, powers of that kind were exercised by courts of revision prior to the enactment of The Alberta Act, 1905 (Can.), c. 3. Thus, s. 11 of The School Assessment Ordinance, 1901 North-West Territories Ordinances, c. 30, provided for objections to assessment being made to a justice of the peace. Title XXXI, s. 7 of The Edmonton Charter, 1904 North-West Territories Ordinances, c. 19, which established the City of Edmonton, provided:

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7. If any person named in the said roll thinks that he or any other person has been assessed too low or too high or that his name has been wrongly inserted in or omitted from the roll or that any person who should be assessed as a public school supporter has been assessed as a separate school supporter or vice versa he may within the time limited as aforesaid give notice in writing to the secretary-treasurer that he appeals to the commissioners to correct the said error and in such notice he shall give a name and address where notices may be served upon him.

Counsel for the appellant refers to s. 16 of The Alberta Act, the effect of which is similar to that of s. 129 of the British North America Act:

16. All laws and all orders and regulations made thereunder, so far as they are not inconsistent with anything contained in this Act, or as to which this Act contains no provision intended as a substitute therefor, and all courts of civil and criminal jurisdiction, and all commissions, powers, authorities and functions, and all officers and functionaries, judicial, administrative and ministerial, existing immediately before the coming into force of this Act in the territory hereby established as the province of Alberta, shall continue in the said province as if this Act and The Saskatchewan Act had not been passed; subject, nevertheless, except with respect to such as are enacted by or existing under Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, to be repealed, abolished or altered by the Parliament of Canada, or by the Legislature of the said province, according to the authority of the Parliament, or of the said Legislature: Provided that all powers, authorities and functions which, under any law, order or regulation were, before the coming into force of this Act, vested in or exercisable by any public officer or functionary of the North-west Territories shall be vested in and exercisable in and for the said province by like public officers and functionaries of the said province when appointed by competent authority.

He also refers to the judgment of the Ontario Court of Appeal in Re Metro Toronto & L.J. McGuinness & Co. Ltd.[9], in which it was held that the power given to a court of revision to determine questions arising out of the designation of a

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ratepayer as a public or separate school supporter was in the nature of a valid extension of the scope of the jurisdiction of courts of revision existing at confederation.

In my opinion the powers given to the Court of Revision under s. 45(1)(e) of The Municipal Taxation Act do not involve any conflict with s. 96 of the British North America Act.

Section 17 of The Alberta Act

The respondent’s final submission is based upon s. 17 of The Alberta Act. That section made applicable, in Alberta, the provisions of s. 93 of the British North America Act, which enable the provinces to legislate in relation to education. Section 17 substituted, in Alberta, the following provision in place of para. (1) of s. 93:

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

Chapter 30 of the North-West Territories Ordinances, 1901, was The School Assessment Ordinance, and s. 9, dealing with rural districts, and s. 93, dealing with village and town districts, permitted a company to require part of its property to be assessed for separate school purposes, but subject to limitations similar to those contained in s. 60 of The School Act. Unlike s. 60, subs. (2) of each of these sections stated that “Any such notice given in pursuance of a resolution in that behalf of the directors of the company shall for all purposes be deemed to be sufficient…”.

The respondent’s position is that any subsequent legislation by the Legislature of Alberta which would permit a challenge to the company’s apportionment would be in breach of s. 17(1) of The Alberta Act.

I do not accept this contention. Section 17(1) refers to a “right or privilege with respect to

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separate schools which any class of persons have…”. The right or privilege which companies had under ss. 9 and 93 of the Ordinance was to allocate the assessment of part of their property for separate school purposes, but only in proportion to the number of shares held by shareholders who were Roman Catholics as compared to the total of all shareholdings. The right of a company was no greater than that. Assuming that, under the Ordinance, the company’s notice was final and beyond challenge (which I do not necessarily accept), none the less, a provision which enables the apportionment to be challenged does not in any way diminish the right to apportion. Section 17(1) did not guarantee the right to make a false apportionment.

In the result, I would allow the appeal in part and would vary the judgment of the Appellate Division by setting aside the order of prohibition in so far as it relates to complaints made by the appellant in respect of notices given by corporations pursuant to s. 60 of The School Act. The appellant should have his costs against the respondent Board in this Court and in the Courts below. The respondent’s cross-appeal is dismissed with costs. No costs should be paid by or to any of the intervenants.

Appeal allowed in part with costs; cross-appeal dismissed with costs.

Solicitors for the appellant: Parlee, Irving, Henning, Mustard & Rodney, Edmonton.

Solicitors for the respondent Board: Bishop & McKenzie, Edmonton.