Township of Cornwall v. Ottawa and New York Rway. Co.

Township of Cornwall v. Ottawa and New York Rway. Co.
Collection
Supreme Court Judgments
Date
1916-02-14
Report
(1916) 52 SCR 466
Judges
Fitzpatrick, Charles; Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander
On appeal from
Ontario
Subjects
Appeal
Decision Content
Supreme Court of Canada
Township of Cornwall v. Ottawa and New York Rway. Co., (1916) 52 S.C.R. 466
Date: 1916-02-14
The Township of Cornwall (Plaintiff) Appellant;
and
The Ottawa and New York Railway Company and Others (Defendants) Respondents.
1915: December 6, 7; 1916: February 14.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.
Appeal—Jurisdiction of provincial tribunal—Consent of parties—Estoppel—Assessment—Railway bridge over navigable river—R.S.O. [1914] c. 195—R.S.O. [1914] c. 186.
By the Ontario Assessment Act an appeal is given from a decision of the Court of Revision to the county court judge with, in certain cases, a further appeal to the Railway and Municipal Board. A railway company took an appeal direct from the Court of Revision to the Board. When the appeal came up for hearing the chairman stated that the Board was without jurisdiction and the parties joined in a consent to its being heard as if on appeal from the county court judge. The Board then heard the appeal and gave judgment dismissing it. The companies applied for and obtained leave to appeal from said judgment, under section 80 of the “Assessment Act,” which allows an appeal on a question of law only, to the Appellate Division which reversed it. On appeal from the last mentioned judgment to the Supreme Court of Canada,
Held, Fitzpatrick C.J. and Idington J. dissenting, that the case was not adjudicated upon by the Board extra cursum curiœ; that it came before the Appellate Division and was heard and decided in the ordinary way; an appeal would therefore lie to the Supreme Court under section 41 of the “Supreme Court Act.”
Per Duff J.—The decision of the Board that the objection to its jurisdiction could be waived and that it could lawfully hear the appeal from the Court of Revision direct (and affirm or amend the assessment) given at the invitation of both parties pursuant to an agreement between them and acted upon by the Board in hearing the appeal on the merits, and acted on by the Appellate Division, is binding on the parties and not open to question on this appeal: Ex parte Pratt (12 Q.B.D. 334); Forrest v. Harvey (4 Bell App. Cas. 197); Gandy v. Gandy (30 Ch. D. 57); Roe v. Mutual Loan Fund Association (19. Q.B.D. 347); and, consequently, the appellant municipality is precluded from contending on appeal to the Supreme Court of Canada that, in the circumstances, the Appellate Division had no authority under the “Assessment Act” to declare the assessment illegal.
A railway company, under authority of the Parliament of Canada, built an international bridge over the St. Lawrence River at Cornwall and have since run trains over it.
Held, that such superstructure supported by piers resting on Crown soil and licensed for railway purposes was not included in the railway property assessable under sec. 47 of the “Ontario Assessment Act” (R.S.O. [1914] ch. 195); if it is included it is exempt from taxation under sub-sec. 3 of sec. 47.
Judgment appealed against (34 Ont. L.R. 55) affirmed.
APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario[1], reversing the ruling of the Ontario Railway and Municipal Board and quashing the assessment of the respondents’ bridge over the St. Lawrence.
Two questions arose on the appeal. First, had the Railway and Municipal Board jurisdiction to deal with the matter except on appeal from a decision of the county court judge? Secondly, had the Township of Cornwall a right to assess the respondents for the Canadian portion of their bridge over the St. Lawrence? The Appellate Division decided against the right to assess.
Watson K.C. and Gogo for the appellant.
Ewart K.C. and W.L. Scott for the respondents.
THE CHIEF JUSTICE (dissenting).—I think this appeal must be allowed on the ground that the Ontario Railway and Municipal Board had no jurisdiction to hear the appeal from the Court of Revision of the Township of Cornwall. The judgment of the Board was a complete nullity and the Appellate Division could not vary it.
The “Assessment Act,” R.S.O. 1914, ch. 195, contains the following sections:—
72. Sub-sec. 1.—An appeal to the county judge shall lie at the instance of the municipal corporation, or at the instance of the assessor, or assessment commissioner, or at the instance of any municipal elector of the municipality not only against a decision of the Court of Revision on an appeal to the said court, but also against any omission, neglect or refusal of the said court to hear or decide an appeal.
79. The decision or judgment of the judge or acting judge shall be final and conclusive in every case adjudicated upon.
80. (1) Where a person is assessed to an amount aggregating in a municipality in territory without county organization $10,000 or upwards, an appeal shall lie from the decision of the judge to the Ontario Railway and Municipal Board and any person who had appealed or was entitled to appeal from the Court of Revision to the judge shall be entitled to make the appeal to the Board.
(2) An appeal to the Board shall also lie where the amount, though originally less than the sum mentioned in the next preceding sub-section, has been increased by the Court of Revision or by the judge so that it equals or exceeds that sum.
(6) An appeal shall lie from the decision of the Board under this section to a Divisional Court upon all questions of law, but such appeal shall not lie unless leave to appeal is given by the said court upon application of any party and upon hearing the parties and the Board.
At the opening of the proceedings before the Ontario Railway and Municipal Board the Chairman said:—
The Board has already held that it has no jurisdiction to entertain an appeal from the Court of Revision; an appeal only lies to the Board from the county judge.
Nevertheless the Board by consent of the parties proceeded to hear and adjudicate upon the matter.
It is perfectly clear that no consent of the parties can give to the court a jurisdiction which it does not possess. In the case of In re Aylmer[2], at p. 262, Lord Esher M.R. said:—
If on the other hand it is an attempt to give to the court a similar power resting on the consent of the parties, the well known rule applies that the consent of parties cannot give the court a jurisdiction which it does not otherwise possess.
In the American and English Encyc. of Law and Practice, vol. 4, under the title “Appeal,” it is said in a note on p. 44:—
When an appeal should have been taken to an intermediate appellate court, consent cannot give the Supreme Court jurisdiction of it.
The statute having ordained the means by which an appeal may be brought against an assessment and prescribed the courts which shall have power to entertain such appeal, the parties cannot at their own pleasure agree on a different procedure. This is no mere question of formality or abbreviation of procedure. In every legal proceeding it Would certainly be simpler to go per saltum direct to the final court of appeal. If this course had been permissible the parties need never have gone to the Railway and Municipal Board at all, but might have carried an appeal direct from the Court of Revision to the Appellate Division or even this court if we had been willing to entertain it.
If the court has no jurisdiction to hear a cause, its proceedings cannot, of course, be in any way validated by an appeal from the judgment, neither can the court to which the appeal is carried entertain the same. Encyc. of Law and Practice, vol. 4, p. 46:—
Though an appeal will lie to the Supreme Court from a decision of an appellate court in a case in which the court has no juris- diction by reason of any of the questions involved, the appeal cannot be entertained by the Supreme Court for the purpose of passing upon the merits of the case, but only for the purpose of reversing or vacating the judgment of the Appellate Court and remanding the cause to that court with direction to dismiss the appeal.
I think it is only necessary to point out in addition that the rules which would ordinarily govern in cases between private individuals do so with greater force in one in which the public has an interest. In the present case we have a court without jurisdiction undertaking to direct the alteration of a municipal assessment roll. This it certainly can obtain no authority to do from any consent of parties.
DAVIES J.—The competency of this court to entertain this appeal was first challenged on the ground that the parties had agreed during the course of the litigation to skip the statutory appeal to the county judge from the Court of Revision and appeal directly from the latter court to the Board of Railway Commissioners.
At the hearing, the Board called attention to this deviation from the course of the statutory proceedings, but as it would appear to have been then the desire of both parties, in order to abbreviate procedure and save expense, went on and heard and dismissed the appeal.
On that hearing after some discussion between counsel on the question of the necessity of an appeal to the county judge before coming to the Board of Railway Commissioners, Mr. Scott for the railway company said:—
Then this appeal will be taken as if it had gone before the county judge and we are appealing against an adverse decision of the county judge, which apparently was accepted as the correct statement of the fact, whereupon the chairman said:—
Your contention is that under the provisions of the “Assessment Act” the property is not assessable.
There is not anything, however, in the proceedings before the Railway Board indicating any intention upon the part of either party to treat the proceeding as one extra cursum curiœ and to ask the Board to act as arbitrators merely. On the contrary, it was to be treated
as if there had been an appeal to the county judge and the railway company was appealing against an adverse decision of his.
The question both parties desired to have decided was that stated by the chairman: Was or was not the bridge over the St. Lawrence River assessable property?
It is only fair to say that counsel for the municipality followed the chairman’s statement with a claim that counsel for the railway should admit that the bridge “was not on railway lands,” apparently to exclude a claim that it was exempted under sub-section 3 of section 47 of the “Assessment Act,” which admission counsel for the railway company, evidently acting upon an understanding which had been reached, immediately made qualifying the admission afterwards with the statement that
some portions of the bridge might be on railway lands, but the whole bridge is over the St. Lawrence River.
As a fact, the bridge is one known as a cantilever bridge which crossed the St. Lawrence, an international public river. It was contended at bar that this admission, when read with the concurrent statements, was a concession as to the facts only, leaving the broad question open as one of law whether such a bridge “not on the lands of the railway,” but crossing the St. Lawrence River came within the provisions of the “Assessment Act.”
It is well to note that while section 48 of the “Railway and Municipal Board Act,” ch. 186, R.S.O., gives an appeal from the Board to a Divisional Court upon a question of jurisdiction or upon any question of law, sub-section 6 of section 80 of the “Assessment Act,” ch. 195, R.S.O., enacts:—
An appeal shall lie from the decision of the Board under this section to a Divisional Court upon the questions of law,
omitting any reference to questions of jurisdiction. Under both Acts, the appeals are dependent upon leave being obtained from the Divisional Court, but under the “Assessment Act” they are confined to appeals “upon questions of law,” while under the “Board Act” they expressly embrace questions of jurisdiction as well as of law. I conceive the legislature intended that in all cases where the Board had original jurisdiction under the Act constituting it, leave to appeal might be granted either on questions of jurisdiction or of law while such leave could only be granted from the Board’s decisions when acting under the “Assessment Act” as a court of appeal, on questions of law.
Leave on this appeal was only granted as it could only be granted under the provisions of the “Assessment Act” on a question of law, which in this particular case was whether the particular bridge was or was not within the “Assessment Act” and liable to be assessed.
On the question of jurisdiction I have reached the conclusion that the Divisional Court of Appeal had jurisdiction to grant leave to appeal from the judg- ment of the Railway Board and to hear and determine the question of law raised, and that the appeal to this court from their judgment is competent.
I so hold upon the broad grounds that the parties to the appeal were within the jurisdiction of the Railway Board, that the subject matter of the appeal was one within the competence of that Board to decide upon and that while the agreed departure by the parties from the regular procedure to bring the matter before the Board was, it is true, a deviation from the cursus curiœ, it was not an attempt to give the Board a jurisdiction over the subject matter and the parties it did not possess, or such a departure from the ordinary practice by consent as would deprive either of the parties of the right of appeal from the Board’s decision. No objection was taken to the jurisdiction of the Appellate Division to grant leave to appeal to that court. No objection to the Appellate Division’s jurisdiction was raised before that court on the argument of the appeal. It is clear that all parties thought such an appeal would lie, and it hardly seems to me open to argument that the Court of Appeal acted as arbitrators only and not as a competent court believing it had full jurisdiction over the subject matter and the parties.
The judgments of their Lordships of the Judicial Committee in the appeal of Pisani v. The Attorney-General for Gibraltar[3], in which Sir Montague Smith reviews Bickett v. Morris[4], and other cases upon the question I am discussing seems to me to lay down at p. 522 the true principle upon which deviations from the cursus curiœ should be determined. It is true that there was a deviation from the cursus curiœ, but the court had jurisdiction over the subject, and the assumption of the duty of another tribunal is not involved in the question. Departures from ordinary practice by consent are of every day occurrence; but unless there is an attempt to give the court a jurisdiction which it does not possess, or something occurs which is such a violent strain upon its procedure that it puts it entirely out of its course, so that a Court of Appeal cannot properly review the decision, such departures have never been held to deprive either of the parties of the right of appeal.
As to the merits, I have had much difficulty in construing and reconciling the several provisions and sub-sections of section 47 of the “Assessment Act,” but I agree that the language of sub-section 3, beginning with the words: “Notwithstanding anything in this Act contained,” makes it clear that the superstructures, etc., “on railway lands” (outside of the specified exceptions named in sub-section 2 within which this bridge does not admittedly come) “shall not be assessed.”
This railway cantilever bridge spanning the St. Lawrence, it was claimed by respondent was admitted by Mr. Scott before the Board “not to be on railway lands” and so, it was claimed not to be within the exemption of sub-section 3. Apart from such admission, I would feel strongly inclined to hold that as a matter of law this bridge was on railway lands and was exempt.
For me, however, a larger and broader question arises than the meaning of the exempting clause read in connection with the admission referred to or irrespective of that admission and that is whether such a bridge as this comes within section 47 at all.
It is not enough to satisfy the court that under the circumstances and in view of the admission of Mr. Scott the bridge does not come within the exempting clause of the Act. The appellant must go further and shew that it comes with reasonable clearness within the provisions authorizing the assessment of railway property.
Where is the language to be found evidencing an intention on the part of the legislature to authorize the assessment of such a bridge or that part of it within Dominion territory? The soil of the river to the international line is in the Crown, the abutments supporting the bridge are built in and upon the soil. The river is a public international river, and I agree with the Divisional Court that the bridge over that soil authorized to be so constructed by the Dominion Parliament should be held, as the Divisional Court held, to be in one sense a part of the soil itself. It is a unique structure not provided for by the clauses of the “Assessment Act” authorizing the assessment of property.
Built under the authority and with the licence of the Dominion Parliament over a public international river the soil of which to the boundary line is in the Crown, with supporting piers in this Crown soil, this “superstructure” is then licensed by legislative authority for railway purposes and, as I have said, is part of that soil. I am unable to conclude that the word “highway” used in connection with the words “street or road” in clause (c) of sub-section 2 of section 47 includes this public international river. I am not able to find any words in the clauses authorizing assessments of bridges or superstructures on railways which would include such a unique structure as this and being unable to find language authorizing with reasonable clearness such an inclusion I must, of course, hold the bridge not be assessable. As was said by Lord Chancellor Loreburn in Banknock Coal Co. v. Lawrie[5], at pp. 110-11, quoted at p. 737 of Mr. Chartres’s Book on the Judicial Interpretations of Workmen’s Compensation Law:—
We are not at liberty to amplify an enactment so as to include within its ambit matters which upon the plain meaning of the language are not included, even if convinced that the omission was inadvertent and undersigned.
I would, therefore, dismiss the appeal with costs.
IDINGTON J. (dissenting).—This appeal comes to us under somewhat peculiar circumstances; by virtue of section 41 of the “Supreme Court Act,” which I shall presently refer to and examine. The respondents appealed against their assessment, for the year 1914, in respect of a bridge over part of the St. Lawrence River, by the township assessor, to the Court of Revision to which no evidence was presented and thereupon the appeal was dismissed.
Section 70 of the Assessment Act provides in such case that:—
The roll as finally passed by the court, and certified by the clerk as passed, shall, except in so far as the same may be further amended on appeal to the judge of the county court be valid, and bind all parties concerned, notwithstanding any defect or error committed in or with regard to such roll, etc., etc.
There was no appeal taken to the county judge as provided by the Act against the judgment of dismissal by the Court of Revision.
The Act provides for such an appeal and what the judge in such case is to do and thereupon declares as follows:—
The decision and judgment of the judge or acting judge shall be final and conclusive in every case adjudicated upon. No such appeal was taken.
Section 80 of said Act provides in cases of which this might have been one that
an appeal shall lie from the decision of the judge to the Ontario Railway and Municipal Board, and any person who had appealed or was entitled to appeal from the Court of Revision to the judge shall be entitled to make the appeal to the Board.
The respondents gave notice of an appeal to said Board in the following terms:—
Take notice that the Ottawa and New York Railway Company, the New York and Ottawa Railway Company and New York Central Lines intend to appeal and hereby appeal against the decision of the Court of Revision for the Township of Cornwall rendered on the 25th day of May, 1914, confirming the assessment of the International Bridge between Canada and the United States No. 1295 on the roll and amounting to $300,000 on the ground that the said bridge is not under the provisions of the “Assessment Act” properly assessable at all.
The Board met on 23rd September, 1914, when the chairman thereof pointed out, that it had held it had no jurisdiction to hear any such appeal, but only appeals from the county judge, and asked counsel for the present appellant if he intended to raise that objection. Counsel replied he would raise all the objections possible.
Then a discussion ensued between counsel and the chairman which shews that for some reason or other in the nature of a personal or professional reciprocity the counsel for appellant (then respondent) seemed to assent to trying the matter on its merits and then the following appears of record:—
Mr. Scott: I appreciate the position you take. Then this appeal will be taken as if it had gone before the county judge, and we are appealing against an adverse decision of the county judge.
The Chairman: Your contention is that under the provisions of the “Assessment Act,” the property is not assessable? Mr. Scott: Yes, we have no complaint as to the amount.
Mr. Gogo: Before the argument proceeds, I think my learned friend will concede that the railway bridge is not on railway lands.
Mr. Scott: Yes, there is no dispute as to the facts. It is purely a question of law. To begin with, I put in the assessment notice which is addressed to the Ottawa and New York Railway, the New York and Ottawa Railway and the New York Central Lines. There are a number of items on it, but the only one from which we appeal is the assessment of $300,000 on the International Bridge.
(Assessment notice marked Exhibit No. 1.)
The Chairman: This is a copy of the Assessment Roll?
Mr. Scott: Yes, nothing turns on the question of the parties; I represent them all.
Mr. Gogo: There is another question involved in this case, and that is that it is not a railway company who are operating the bridge. The railway company simply have running rights over the bridge.
Mr. Scott: The facts with regard to this bridge are as follows: The bridge was built and is owned by the Ottawa and New York Railway Company under the provisions of certain Acts of Parliament which I have set out in this memorandum that I propose to hand in.
The parties proceeded to argue the appeal, and in the course of that argument to state the supposed relevant facts.
The memorandum which appellant’s counsel refers to therein I infer was supplied later. That memorandum appears in the case before us and a lease which also appears in the case is before us, but when the latter was introduced does not appear. Inasmuch as the two first exhibits in the record are apparently stamped by the clerk of the board, but the copy of lease in the record is not so marked, I infer it was not before the Board.
This argument before the Board appears in the case, apparently, as if taken down by the stenographer of the Board.
From that argument it seems quite clear that counsel for respondents (then appellants) never withdrew the concession he had made, or relied upon anything in what either of law or fact it clearly covers. Apart from that, he took and seemed chiefly to rely upon, the distinct ground, that inasmuch as the bridge in question was over a, navigable river it was, therefore, within the exemption in favour of the railway companies in respect of bridges over public highways. He failed in this contention before the Board, which held that such a public highway as a navigable river was not the kind of highway referred to in the Act, in providing for exemptions from taxation of bridges over highways.
The matter is thus stated by the Board:—
The exceptions are (1) structures, etc., which are affixed to a highway, street or road merely crossed by a railway, and (2) bridges and tunnels in, out, under or forming part of any highway. Mr. Scott, for the appellants, contends that the River St. Lawrence is a “highway,” that the bridge is over it, and, therefore, exempt under the last named exception; further, the river being such a highway, and being merely crossed by the railway, the bridge (a structure or superstructure) is exempt under the first named exception. To this contention the Board cannot accede.
The Board then proceeds to demonstrate why it cannot accede thereto and ends by stating:—
It is admitted that sub-section (3) of section 47 has no application, the bridge in question not being on railway lands.
Hence, agreeing with Mr. Justice Britton’s opinion in a previous case[6], between same parties the Board dismissed the appeal.
It is quite clear to me not only that the whole submission to the Board was irregular and a something never contemplated by the Act, unless and until the matter had been passed upon by the county judge, after a proper trial which should have elicited and made clear all the relevant facts, but was also a limited submission proceeding upon the elimination of any claim to exemption on the ground of the bridge being on or over railway lands as provided for in section 47, sub-section (3) of the Act.
It puzzles one to understand why such a course should have been pursued. Assuming the Board had decided the other way I am at a loss to understand how such a proceeding and possible judgment could have overridden the plain terms of section 70 of the Act as quoted above, making the roll as certified by the clerk, after the Court of Revision, final and binding upon all concerned.
The five gentlemen composing the Court of Revision are the same who presumably chose to make that submission. They had no power thus to interfere with the legal product of their own work thus validated by section 70.
A judgment of the Board under such circumstances was clearly not appealable to the Appellate Divisional Court.
It would be difficult to conceive of its being appealable, even if the language providing for an appeal from the Board to the Appellate Division had been much more comprehensive than it is; unless for the limited purpose of having it declared to have been made without jurisdiction.
Moreover, the appeal provided in assessment cases coming before the Board to the Appellate Division is of a very limited character. It is somewhat analogous to that provided in the way of appeals to this court from the Board of Railway Commissioners for Canada. It is limited to questions of jurisdiction and questions of law. Sub-section 6 of section 80 (already referred to) of the “Assessment Act,” provides as follows:—
(6) An appeal shall lie from the decision of the Board under this section to a Divisional Court upon all questions of law, but such appeal shall not lie unless leave to appeal is given by the said court upon application of any party and upon hearing the parties and the Board.
The next sub-section provides for the practice and procedure on such appeals following that prescribed in county court appeals.
The whole jurisdiction rests entirely upon section 80 restricted by sub-section 6 just quoted unless, as may be arguable, aided by section 48 of the “Ontario Railway and Municipal Board Act,” ch. 186, R.S.O., 1914.
Sub-section 1 of that section seems to give the Divisional Court express power to hear appeals from the Board upon any question of its jurisdiction as well as upon any question of law.
As the appeal in any case is only upon leave being given one might have expected the order giving leave to define what is to be dealt with. We get no aid in that regard from the order made herein giving leave.
Sub-section 3 of section 48, aforesaid, provides as follows:—
(3) On the hearing of any appeal the court may draw all such inferences as are not inconsistent with the facts expressly found by the Board and are necessary for determining the question of jurisdiction or law, as the case may be, and shall certify its opinion to the Board and the Board shall make an order in accordance with such opinion.
I shall assume for our present purposes that these two sub-sections are applicable to such appeals as contemplated and provided for by sub-section 6 of section 80 of the “Assessment Act.” It is possible by doing so to give that some wider meaning than it might otherwise have in itself, and hence due to the Appellate Division, possibly taking that view to so consider it.
In view of the course of the argument herein before us I should not express any definite opinion as to their applicability. I only desire, for argument’s sake, to assume that as far as jurisdiction of the Board came in question that may have been appealable and that inferences of fact, from facts found by the Board, might on such an appeal be drawn.
The Appellate Division seems not only to have set aside, or at all events overlooked, the terms of the submission, and proceeded as if the whole of the questions of both law and fact possible to have been originally raised were open for it to deal with, as might be done in an ordinary appeal and that notwithstanding the express concession of counsel as quoted above emphasized by the express statement of the Board also quoted above, and by the meaning evidently attached by him at the time, as the course of his argument before the Board indicates, to the concession he had made.
I am unable to understand why, under the circumstances, the matter should have been again agitated, or permitted to be so, before the Appellate Division.
Not only that but further evidence was introduced, a plan was filed, and correspondence between the Registrar of the Court and counsel had, explanatory thereof. As the result of doing so the Appellate Division has discarded the ground taken by respondents, when before the Board as appellants, and adopted the ground deliberately abandoned before the Board, as the basis of an opinion which should, if competent, lead to the Board reversing its judgment.
We have not been helped much by anything appearing upon the record to understand such a result as springing from a mere submission by the parties concerned to a tribunal chosen by them, and acting entirely beyond the course defined by statute for such a tribunal to follow, when discharging its statutory duties.
I am driven to the conclusion that the Appellate Division must have inadvertently overlooked the fact that the Board was acting and could not properly act in any other way than as the result of such a submission, and in such a case its deliverance was not appealable.
In such explanation as Mr. Scott offered us he frankly stated that at some stage in the proceedings before the Appellate Division, Mr. Gogo, as counsel for respondent, called attention to the limiting effect of the concession which had been made, and something ensued as result which is not clear. The court has not dealt at all with that aspect of the case.
Mr. Ewart properly declined to enter upon any discussion of the disputed facts upon or in regard to which a misunderstanding (to which he was no party) had evidently arisen, but submitted to us in argument that the question was only one of law and involved no matter of fact.
For two reasons I cannot accede to that view. In the first place as already stated, both questions of law and fact were taken and treated by the Board as taken out of the case submitted to them. It is their understanding of what it was they complaisantly had undertaken to decide, which must govern, and I re- spectfully submit ought to have governed all concerned.
In the next place it is impossible as the Appellate Division found, to treat the whole question involved as one of law. The course of calling for evidence of fact upon which to proceed puts aside Mr. Ewart’s submission on that head. The basic facts upon which to found and frame any opinion of the law to govern are disputed unless confined to what the Board expressly states was admitted and acted upon by it. There is no room left therein to draw inferences of fact found in the lease and plan filed in the Appellate Division.
Indeed, the lease alone now appearing in the case, presents many arguable questions of law as to the legal result thereof before applying the provisions therein as fact to the determination of the rights of the parties hereto under the “Assessment Act.”
The lease to the holding company is for ninety-nine years and it is by the terms thereof that company which must bear the burden of taxation. And the assessment roll, but for the curative clause already referred to is, l incline to think, defective in form in that connection.
Whether the contracting parties sought to avoid by the form of the provision in the lease relative to taxes, the claims of direct taxation of the holding company as being more favourable for all concerned than a taxation of the reversions, I know not.
Then, again, evidently there was in contemplation some improvements and additions to the structures to be made by the holding company and respectively become the respective properties of the leasing companies at the expiration of the term. Are such improvements and additions taxable, and if so against whom?
I am not concerned with all these things further than to point out the involved nature of the facts to be determined before the “Assessment Act” can be properly applied. And I express no opinion upon their effect in that regard.
I may be permitted, however, most respectfully to suggest, from what appears in the case, that if the Appellate Division had refused, as I submit it should have done, to entertain such an irregular appeal, the facts might have been better ascertained by the investigation in due course of law before the county judge and then and thereafter fully considered and given due effect to.
These considerations, moreover, suggest to me that the Appellate Division so far as it did go into an examination of the facts, went beyond its jurisdiction which was confined by the very terms of the Act enabling it to entertain any appeal to mere questions of law, even if the case could otherwise have been held appealable.
The case thus presented for our consideration in appeal is clearly one in which we cannot deal with the merits.
It falls in principle within what the House of Lords had to consider in the case of Burgess v. Morton[7]. There the court had determined, at the request of the parties, upon a submission to the said court of an imperfectly stated case, and thereupon an appellate court had heard an appeal from such determination on the like material and the House of Lords declined to go into the merits and confined itself to declaring that the Appellate Court had no jurisdiction and to reverse it accordingly.
There are numerous cases upon the subject, but this one seems in principle, in its essential features, as nearly on all fours, as one might expect to find, with what happened and is involved herein.
But the question that has puzzled me most and in which we have not been able to elicit assistance from counsel is whether or not this court can be said to stand in relation to the courts below in the same position as the House of Lords stood in that case and numerous others to the courts appealed from.
We must never forget that we are not, as the Court of Queen’s Bench formerly in England was, and its successors still are, possessed of an inherent jurisdiction in many ways to keep other courts within the limits of the jurisdiction assigned them.
Our duties in this case are confined within the terms of section 41 of the “Supreme Court Act,” as follows:—
An appeal shall lie to the Supreme Court from the judgment of any court of last resort created under provincial legislation to adjudicate concerning the assessment of property for provincial or municipal purposes, in cases where the person or persons presiding over such court is or are by provincial or municipal authority authorized to adjudicate, and the judgment appealed from involves the assessment of property at a value of not less than ten thousand dollars. 52 Vict., ch. 37, sec. 2.
It is quite clear that the Appellate Division is a court of last resort and answers all the requirements of the section in any ordinary case involving an assessment of not less than ten thousand dollars.
Do the words, in cases where the person or persons presiding over such court is or are by provincial or municipal authority authorized to adjudicate,
eliminate such a case as this?
At first blush it seems incongruous for us to hold by virtue only of this section that the court appealed from had no jurisdiction and that we are entitled not only to so hold as a matter of opinion, but also to reverse on that ground.
Though counsel were invited to consider the section and aid us in regard to its construction no one has remarked upon this difficulty, and I, therefore, am content to assume the difficulty I suggest as possibly in our way does not exist. Inded, we have heard no argument on the section, though it was invited.
I have also observed since the argument the use in said section of the words “or municipal” therein which suggest the possibility of municipalities in some of the provinces being empowered by statute to submit to the court of last resort in the province a question needing determination. I know of none in Ontario and assume if any other power given than what I have referred to it would have been cited.
I may also add that I have considered whether the mere power to express an opinion can be held an authority “to adjudicate” within the meaning of the words of the section. I conceive so, if the opinion is intended to be imperative when confined as it ought to be to a question of law, and hence there may be herein an adjudication within the meaning of the section.
Moreover, on due reflection, the authorization dealt with in these words is that over the subject matter involved in the section as a whole, and not only over such merely incidental matter as arising in its application. Many variations of that which has occurred herein or of an accidental excess of the jurisdiction of the court might in course of time arise. It would seem as if to give effect to any of the objections I suggest might be too much in line with the microscopical method of analyzing a statute and thereby laying a foundation for frittering it away instead of fitting the whole to what it was intended for. In this case the attempting to do so would disappoint what I think was the evident purpose of Parliament in assigning to us the jurisdiction it has by the enactment in section 41.
Assuredly neither the formal judgment nor the opinion judgment gives us any right to assume that the Appellate Division imagined it was acting upon or pursuant to a submission by consent to obtain its opinion, or doing anything but determining as the court of last resort in a province what it supposed it had power to determine.
I do not see how we can escape from declaring our opinion that it is because of the incompetency of the Appellate Division to review and in effect reverse the Board that we are debarred from examining the case on its merits and as a logical result must give as far as we can effect to such opinion.
Such a mode of dealing with appeals calling in question the jurisdiction of the court appealed from by merely expressing an opinion that the court below had no jurisdiction was in vogue in Ontario (then Upper Canada) at an early date. See the