RIDDELL,
J.A.:—This
is
an
appeal
by
the
City
of
Toronto
against
the
decision
of
The
Ontario
Municipal
Board,
ante,
p.
138:
On
the
hearing,
objection
was
taken
that
no
appeal
lay
to
the
Court;
but
we
decided
to
hear
the
appeal
on
the
merits.
In
the
view
that
I
take
of
the
case,
it
is
unnecessary
to
pass
upon
that
point;
and
I
shall
assume,
without
deciding,
that
an
appeal
rightly
lies.
On
the
hearing,
I
was
somewhat
strongly
impressed
with
the
soundness
of
the
claim
of
the
City;
but
from
an
attentive
consideration
of
the
undoubted
and
admitted
facts,
I
am
now
of
the
opinion
that
the
decision
of
the
Board
is
right;
and
I
would
dismiss
the
appeal
with
costs.
Middleton,
J.A.:—An
appeal
by
the
City
of
Toronto
from
an
order
of
The
Municipal
Board
holding
that
the
respondent
is
not
liable
to
be
assessed
in
respect
of
some
$200,000
income
received
from
subsidiary
companies
and
other
companies
in
which
it
holds
stock
and
which
operate
theatres
under
royalty
agreements.
A
preliminary
objection
was
taken
on
the
ground
that
no
appeal
would
lie
from
the
Board.
I
do
not
think
the
objection
is
well
founded
as
the
appeal
is,
in
my
opinion,
upon
a
question
of
law.
It
is
a
question
of
law
whether
the
income
derived
from
the
stock
held
in
these
subsidiary
and
allied
companies
is
assessable
at
all.
The
question
whether
the
income
is
or
is
not
received
is
a
question
of
fact.
I
agree
with
the
opinion
of
the
Board
that
the
respondent
carries
on
a
business
at
its
offices
in
the
Royal
Bank
in
respect
of
which
it
is
liable
to
business
assessment
and
its
income
is
derived
from
that
business.
It
has
no
income
save
that
derived
from
its
business,
beyond
the
income
from
investments
for
which
it
is
assessed.
Its
mode
of
carrying
on
its
business
is
no
concern
of
the
municipality.
That
is
an
affair
of
the
company
and
its
subsidiaries
and
contractors
alone.
One
of
the
results
of
the
present
mode
of
assessing
business
is
that
a
particular
business
may
be
carried
on
in
comparatively
inexpensive
premises
and
yet
have
a
very
large
profit.
In
respect
to
individuals
this
was
attempted
to
be
corrected
by
sec.
(1)
(c)
of
The
Assessment
Act,
R.S.O.
1927,
c.
238,
but
for
some
reason,
not
at
all
apparent,
companies
are
excepted
from
this
provision.
It
makes
the
business
tax
of
individuals
a
minimum
income
tax,
but
companies
are
relieved
from
this
burden.
The
appeal
should
be
dismissed
with
costs.
MASTEN,
J.A.:—I
think
that
no
appeal
lies
to
this
Court
in
the
present
case.
It
is
clear
on
a
consideration
of
the
other
provisions
of
The
Assessment
Act
and
of
the
history
of
the
legislation
which
has
now
culminated
in
sec.
83(6)
of
The
Assessment
Act,
R.S.O.
1927,
c.
238,
that
this
Court
has
no
jurisdiction
to
entertain
an
appeal
from
The
Ontario
Railway
and
Municipal
Board
on
a
question
of
fact
and
that
the
words
"‘or
any
order
of
the
Municipal
Board
‘
’
relate
back
and
are
to
be
read
with
the
words
"‘the
construction
of'',
so
that
the
appeal
is
given
to
this
Court
in
respect
to
the
construction
only
of
any
order
of
The
Municipal
Board.
This
interpretation
is
borne
out
by
the
judgments
of
this
Court
in
Re
Hollinger
Consolidated
Gold
Mines
Ltd.
and
Township
of
Tisdale
[1931]
O.R.
640,
at
p.
645,
and
in
Re
Guardian
Realty
Co.
and
Toronto
[1934]
O.R.
266.
The
Hollinger
case
was
confirmed
in
the
Supreme
Court
of
Canada,
[1933]
S.C.R.
321,
where
the
judgment
of
the
Court
states
at
p.
323:
"‘The
construction
of
a
statutory
enactment
is
a
question
of
law,
while
the
question
of
whether
the
particular
matter
or
thing
is
of
such
a
nature
or
kind
as
to
fall
within
the
legal
definition
of
its
term
is
a
question
of
fact.
‘
‘
A
determination
of
the
nature
of
the
respondent’s
business
is
prima
facie
a
question
of
fact.
Circumstances
may
exist
where
it
involves
a
question
of
law,
but
here
it
seems
to
me
to
depend
on
whether
the
various
subsidiary
corporations
are
independent
personalties,
or
are
mere
agents
controlled
as
such
by
the
respondent
company
for
the
carrying
on
of
its
own
business.
That
appears
to
me
to
be
a
question
dependent
solely
on
the
facts
adduced
in
evidence.
The
further
question
whether
the
income
proposed
to
be
assessed
is
derived
from
the
business
so
carried
on
in
the
premises
liable
to
business
assessment,
or
whether
it
is
derived
from
independent
sources
outside
that
business,
seems
to
me
to
be
plainly
a
question
of
fact
and
not
of
law.
For
these
reasons
I
would
allow
the
preliminary
objection
raised
by
the
respondent
and
dismiss
this
appeal
on
that
ground.
FISHER
and
MACDONNELL,
JJ.A.
agreed
with
MASTEN,
J.A.
Appeal
dismissed.
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