Town of Timmins v. Pamour Porcupine Gold Mines, Ltd., [1940-41] CTC 327

HENDERSON J.A.:—An appeal from the judgment of Danis, District Judge sitting in the District Court of the District of Cochrane, dated February 18, 1941.

The action is brought under s. 2(3) of the Statute Labour Act, R.S.O. 1937, c. 274, in respect of poll tax imposed upon male inhabitants of the Town of Timmins, employed by the defendant ; and counsel agree that in respect of the moneys now claimed, the facts required to be proved have been proved, viz., that the male inhabitants in question have been employed by the defendant company for not less than 30 days: that wages sufficient to pay the taxes claimed were owing to the respective employees at the time of the demand and that the demand was duly made; and counsel further agree that the amount which the plaintiff is entitled to recover can be computed by them without the Court being required to do so.

The learned District Judge decided against the plaintiff on the ground that the defendant is resident outside the Town of Timmins, and that the authority of the municipality is confined to its territorial limits, and also upon the ground that the section in question imposes a duty on the defendant, under certain circumstances, but does not confer any right of action against it.

With respect, I am of opinion that the learned District Judge is in error and that upon the admitted facts a right of action is conferred upon the plaintiff, and that the plaintiff is entitled to enforce its claim by action although the defendant is not resident within its boundaries. It is true that many powers are conferred upon municipalities which can only be exercised within their territorial limits, but in my opinion the right of the Town to collect taxes due to it by tax-payers or in respect of which a right of action is conferred against some one other than the tax-payers, is not so limited.

Mr. Walton further argued that the right of the collector to demand the tax was limited to the territorial limits of the Township. In my opinion this contention cannot succeed. If the right of the collector to demand taxes is limited to persons who are within the territorial limits of his municipality, then any non-resident ratepayer would escape payment of taxes. I think the statute must be construed reasonably and when the collector is authorized to make a demand for the tax it follows that he may demand it from the person liable, in this case the taxpayer’s employer, wherever the latter may be.

The statute leaves much to be desired inasmuch as conditions might easily arise which would make its provisions difficult to determine or to enforce. It is quite conceivable that individuals who move their place of residence from one municipality to another might be assessed for poll tax in more than one municipality in the same year, and no provision is made to enable the Court to determine the priority of the right, in such an event.

Section 2(1)(d) of the Act provides for levying and collecting the poll tax from every male inhabitant of the municipality who has not filed with the clerk a certificate showing that he has been assessed or performed statute labour, or paid poll tax, elsewhere in Ontario, and it is said in this case that some of the persons in respect of whom poll tax is claimed in this action, have filed such certificates. Under the circumstances we cannot, in my opinion, (at all event upon the facts here presented) order the defendant to pay to the plaintiff poll tax imposed on its employees in such cases, and this opinion is therefore directed only to those instances in which the facts admittedly have been proved, and no such complication arises.

It is to be noted that the obligation imposed on the employer by the section in question is to pay over to the collector, and the collector is not a party to this action. Counsel for the plaintiff asked that if necessary the collector of taxes for the Town of Timmins should be added as a party plaintiff, upon his written consent being filed, and I think this should be done.

I think, therefore, the appeal must be allowed within the limits above noted, and judgment given for the plaintiff accordingly, with costs of the action and of the appeal, upon the appropriate scale.

Appeal allowed.