Windsor Board of Education v. Ford Motor Co. of Canada Ltd. et al.

Windsor Board of Education v. Ford Motor Co. of Canada Ltd. et al.
Collection
Supreme Court Judgments
Date
1939-10-30
Report
[1939] SCR 412
Judges
Duff, Lyman Poore; Rinfret, Thibaudeau; Crocket, Oswald Smith; Davis, Henry Hague; Kerwin, Patrick
On appeal from
Ontario
Subjects
Taxation
Decision Content
Supreme Court of Canada
Windsor Board of Education v. Ford Motor Co. of Canada Ltd. et al., [1939] S.C.R. 412
Date: 1939-10-30
The Board of Education for the City of Windsor (Plaintiff) Appellant;
and
Ford Motor Company of Canada Limited and The Board of Trustees of The Roman Catholic Separate Schools for The City of Windsor (Defendants) Respondents.
1939: March 22, 23; 1939: October 30.
Present: Duff C.J. and Rinfret, Crocket, Davis and Kerwin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Assessment and taxation—Schools—Companies—Company designating portion of its assessment in municipality for separate school purposes—Separate Schools Act, R.S.O., 1937, c. 362, s. 66—Notice by company in form B to city clerk—Apportionment of assessment attacked on ground that portion so designated not ascertained to comply with s. 66 (3) as to proportionate limit—Prima facie validity of notice—Onus of proof. The secretary of respondent company, in accordance with a resolution of its directors, forwarded to the clerk of the City of Windsor a notice in form B, provided for by The Separate Schools Act, now R.S.O., 1937, c. 362, s. 66, requiring that 18% of its assessment be entered, rated and assessed for separate school purposes, and the assessor made his assessment accordingly. An appeal by appellant board against the assessment for separate school purposes was allowed by the court of revision, and its decision was sustained by Mahon Co. C.J., who, in a stated case made for purposes of appeal, found that the apportionment for separate school purposes made by the directors of the company (the shares of which company are numerous, widely distributed and extensively traded), though made in good faith, was not based on actual knowledge and was “only a guess or an estimate”; and held that the notice (form B) given by the company should be set aside and declared of no effect, and that all the company’s assessments in said city should be assessed, enrolled and rated for public school purposes, as it had not been proved affirmatively that there was compliance with s. 66 (3) of said Act, namely, that the portion (18%) designated for separate school purposes was no greater proportion of the whole of the assessment than the amount of the shares held by Roman Catholics bore to the whole amount of the shares of the company. His judgment was reversed by the Court of Appeal for Ontario, [1938] O.R. 301, on the grounds that the statute ought, if possible, to be interpreted and applied so as to effectuate its manifest intention, viz., to provide for an equitable apportionment; on receiving the notice the assessor is bound to assess and return his roll apportioning the assessment; his roll is prima facie valid; the onus of displacing that situation rests on the attacking party and this onus was not discharged. Appeal was brought to this Court.
Held (The Chief Justice and Davis J. dissenting): The appeal should be dismissed.
Per Rinfret, Crocket and Kerwin JJ.: Having regard to the history of the Act and the change made in 1913 (c. 71) to the present form of s. 66 (3), the legislative intention was to free a company desirous of having part of its assessment apportioned to separate school purposes from the difficulty of ascertaining the precise ratio of the holdings of Roman Catholics. To give effect to that intention it must be held, on proper construction of the statute, that the company’s notice stands and is to be followed unless displaced by evidence that the prohibition in s. 66 (3) has been violated. (Regina Public School District v. Gratton Separate School District, 50 Can. S.C.R. 589, discussed; it forms no authority on the point now in question) (Crocket J. further expressly concurred in the reasons given in the Court of Appeal).
Per the Chief Justice (dissenting): Sec. 66 imposes a strict limit upon the proportion which can be designated by the company in its notice, and a prohibition to the company against exceeding that limit. In giving the notice, the company, though not a public body, is exercising a statutory authority bestowed upon it in the public interest and for a public purpose, and 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 (those contemplated by the statute) for which the power is given; 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). The statute contemplates a notice given, and only given, after the company has ascertained as a fact that the proportion is not greater than that defined by s. 66 (3); unless that condition be fulfilled, the company cannot be said to be exercising the statutory power in conformity with the directions of the statute. Though there was no suggestion of any conscious dereliction from duty or any motive but an honest desire to conform to the directions of the statute, yet the material (as disclosed by the findings in the stated case) on which the notice was given formed no substantial foundation for the conclusion of fact which was the essential condition of a valid notice; therefore in giving the notice the company was not acting reasonably in exercise of the power conferred, and therefore the notice was not a valid exercise of the power. The above view would not preclude the establishment before the court of revision that the conditions under which the notice could validly be given did in fact exist; but there was no such evidence in this case.
Per Davis J. (dissenting): The portion of its school rates which a company has a right under the Act to divert from public schools to separate schools is limited to the proportion named in s. 66 (3). Though it may not know all its Roman Catholic shareholders, it can, to the extent that it does ascertain them, exercise that right. But, in the absence of actual knowledge of any amount of shares held by Roman Catholics, an estimate of shares so held does not satisfy the plain conditions imposed by the Act. (Regina Public School District v. Gratton Separate School District, 50 Can. S.C.R. 589, at 606, cited; also the history of the legislation discussed, in regard to the construction of the statutory provisions now in question). In view of the facts as found according to the stated case, the question of onus of proof was not important; but, in a case where it became of importance, the onus should rest upon the party seeking the benefit of the special statutory provision—on the person claiming exemption as a separatist from the general liability for the support of public schools, to prove those exceptional matters that took him out of the general rule (Re Ridsdale and Brush, 22 U.C.Q.B. 122, at 124; Harling v. Mayville, 21 U.C.C.P. 499, at 511; Free v. McHugh, 24 U.C.C.P. 13, at 21; also Parts I and II, generally, of the Act now in question and s. 5 of The Public Schools Act, R.S.O., 1937, c. 357, referred to; also principles as to onus of proof discussed).
APPEAL by the Board of Education for the City of Windsor from the judgment of the Court of Appeal for Ontario[1] reversing the judgment of His Honour G.F. Mahon, a Judge of the County Court of the County of Essex. The judgment of Mahon Co. C.J. sustained the decision of the Court of Revision of the City of Windsor (which had allowed the present appellant’s appeal against the apportionment of assessment made in accordance with the notice in Form B hereinafter mentioned) and held that the notice in Form B (provided for by The Separate Schools Act, now R.S.O., 1937, c. 362, s. 66) forwarded by the secretary of the Ford Motor Company of Canada Ltd. (in accordance with a resolution of the directors of the company) to the clerk of the City of Windsor, directing that 18% of the assessment of said company within the city of Windsor be entered, rated and assessed for separate school purposes, should be set aside, vacated and declared null and void and of no effect and that all the assessments of said company in said city should be assessed, enrolled and rated for public school purposes.
Sec. 66 (3) of said Act provides:
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.
Mahon Co. C.J. found that the apportionment made by the directors of the company (though they “acted in good faith and with every desire to be fair”) “was not based on actual knowledge and was only a guess or an estimate.” He held that the onus was upon the company to establish that the portion of its assessment set out in its requisition (Form B) did not bear a greater proportion to the whole of its assessment than the amount of its stock or shares held by Roman Catholics bore to the whole amount of the stock or shares; and that this onus was not discharged.
The Court of Appeal for Ontario1, on a special case stated by Mahon Co. C.J. for purposes of appeal (pursuant to s. 85 of The Assessment Act, R.S.O., 1937, c. 272), answered the questions submitted therein adversely to his holdings, on the grounds that the statute ought, if possible, to be interpreted and applied so as to effectuate its manifest intention, viz., to provide for an equitable apportionment of public and separate school taxes payable by companies having Roman Catholic shareholders who are supporters of separate schools; the assessor is bound to assess and return his roll apportioning the company’s assessment on receiving the notice; his roll is prima facie valid; the onus of displacing the prima facie situation rests on the attacking party and this onus was not discharged in the present case, though practical means of undertaking to do so existed by summoning and cross-examining the company’s directors or officers on the hearing before the Court of Revision or before the County Court Judge.
The material facts as found by the County Court Judge are set out in the judgments given in this Court now reported. The appeal to this Court was dismissed with costs, the Chief Justice and Davis J. dissenting.
I.F. Hellmuth K.C. and N.L. Spencer for the appellant.
J.B. Aylesworth K.C. for the respondent Ford Motor Company of Canada Ltd.
A. Racine K.C. for the respondent Board of Trustees of the Roman Catholic Separate Schools for the City of Windsor.
THE CHIEF JUSTICE (dissenting)—Mr. Justice Masten states in his judgment:
The appellants admit that prima facie every corporation shall be rated and assessed for the support of public schools and that this is the general or basic rule subject, however, to the provisions of section 65 of the Separate Schools Act.
Section 65 (now s. 66) is in these words:
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, 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.
The appeal came before the Ontario Court of Appeal by way of a stated case and it is convenient to set forth the material facts in the words of the case:
The appeal was heard by the Court of Revision and on the 25th day of November, 1937, the decision of that Court, along with its reasons, was handed down in writing and a certified copy was produced and filed as Exhibit 6. That Court allowed the appeal with the effect that the whole of the assessment of the Ford Company goes to the support of the Public Schools.
The decision of that Court was not unanimous. The minority member, who would have disallowed the appeal, stated “that in his opinion the basis of the appeal should have been established by sub-section 4 of section 65 of the Separate Schools Act”; the section 65 mentioned being now section 66 of the Revised Statutes of Ontario, 1937, chapter 362.
It was the opinion of the majority members of the Court, according to the certificate filed (exhibit 6): “That subsection 4 does not invalidate subsection 3 and providing that the letter of the law and the spirit therein is adhered to in accordance with subsection 3, then subsection 4 would have been grounds for confirmation of the assessment. Such was not established by evidence under oath as previously recorded, not only was no effort made by the Corporation to ascertain the number of shares held by Roman Catholics but the Corporation had no knowledge of the proportion of shares held by Roman Catholics.”
Against this decision Ford Motor Company of Canada Limited and the Board of Trustees of the Roman Catholic Separate Schools for the City of Windsor appealed.
In addition to the aforementioned exhibits filed was exhibit 5, being a certified copy of notice, form 15, under section 33b of the then Assessment Act, Revised Statutes, 1927, chapter 238, of the Ford Motor Company, filed in 1936 attached to which was the statutory declaration of the secretary stating that the Ford Company was unable to ascertain which of its shareholders are Roman Catholic and Separate School supporters or the ratio which the number of shares or memberships held by Roman Catholics who are Separate School supporters bore to all the shares issued by the Corporation.
At the commencement of the hearing of the appeal, after the production of the exhibits and their identification by Mrs. Helen Weller of the City Clerk’s Department of the City of Windsor, Mr. Aylesworth, counsel for the Ford Motor Company, pointed out that one of the main questions between the parties was as to where the burden rests as to the compliance or non-compliance of the Company with the provisions of the then section 65 (now 66) of the Separate Schools Act and that without waiving his position that that onus was on the respondent here to prove affirmatively that less than 18% of the shares were held by Roman Catholics and that that onus was not on the appellant company to prove that there were as many as 18% of its shares held by Roman Catholics, he was willing to bring out the facts on the point. To this Mr. Spencer assented.
Mr. Douglas B. Greig, Secretary of Ford Motor Company of Canada Limited, was then called and gave his evidence, some of the material parts of which were:
The Company was incorporated under the Dominion Companies Act; has 1,658,960 shares of common stock and no preferred shares; that there were shares held by companies; that as of November 28th, 1936, the shares were held in 32 countries; that as of November 27th, 1937, the shares were held in 34 countries; that in Canada and the United States 1.500,000 shares are held; that the company cannot get the shareholders to reply to communications as to religion and school taxes; that the company has difficulty in getting many of its dividend cheques into the hands of those entitled; that they lately had about 100 letters containing dividend cheques returned to them; that there is, on the average, about 20,000 different shareholders; that all the company’s shares of stock are not voting shares; that voting shares are not as widely distributed; that, on the average, about 19% of the proxies are returned; that voting shares are held in 16 different countries; that a number of outstanding shares are held in names of brokers; that between September, 1936, and November, 1937, the company’s records indicate that the average number of shares held by brokers was 195,000; that the company has transfer agencies in Montreal, Toronto, Detroit and New York; that the number of shares changing ownership, according to records of stock exchanges, exceed by 9,500 monthly the number of shares presented for transfer on the books of the company; that in the year 1937 there were 665,874 shares of stock transferred on the books of the company; that the directors knew that all the stock of the company was not held by shareholders of the Roman Catholic faith and that shares were held by both Roman Catholics and others but did not know and could not ascertain what total percentage of the stock was held by Roman Catholics; that it was a practical impossibility to ascertain definitely what percentage of the shares were held by Roman Catholics and in fact the directors did not inquire from the shareholders as to their religious faith; that the Board consisted of five directors of whom one was a Roman Catholic which director was absent from the meeting adopting the resolution.
There were other facts brought out from Mr. Greig’s evidence, but, I think the material facts are above recited. His evidence did show that directors in making the apportionment they did, acted in good faith and with every desire to be fair; they reasoned from a number of angles and made assessment comparisons and population comparisons, it is true many, if not most of them, after the notice, Form B, had been filed with the City Clerk; and that the directors, in adopting the resolution believed, from such information as was available to them, that the apportionment made to Separate Schools by the resolution was a percentage of the Company’s local assessment no greater than the percentage of its shares held by Roman Catholics. However, I found that the division they made was not based on actual knowledge and was only a guess or an estimate.
None of the parties proved what proportion of the stock or shares of the Company was held by Roman Catholics. With the greatest respect, I find myself unable to concur in the application that has been made of this statute by the Court of Appeal for Ontario. My views can be stated very briefly.
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.[2])
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 corporation cannot, in my opinion, be said to be exercising the statutory power in conformity with the directions of the statute.
Now, nobody suggests that in this case there has been on the part of those acting for the ratepayer corporation any conscious dereliction from duty, or any motive but an honest desire to conform to the directions of the statute; but, having considered with the greatest care the material before them as disclosed by the findings of the learned judge, I am constrained to the view that they had not before them any substantial foundation for the conclusion of fact which was the essential condition of a valid notice—in the absence of which, that is to say, the notice could not be given conformably to the tenor of the statute.
It follows, I think, that in giving the notice the corporation was not acting reasonably in exercise of the power conferred; and that the notice was, therefore, not a valid exercise of their power. The learned judge considered that the persons acting for the Ford Company proceeded upon a guess or an estimate. There is much elasticity in the employment of the word “estimate,” but it is very clear to me that, as I have already implied, they had not before them anything that could lead them beyond the region of supposition.
No abstract criterion can be laid down for weighing the probative force of facts. It is sufficient that in this case there was no solid basis for a conclusion that the statutory condition of a valid notice was, in fact, fulfilled.
The view I have expressed would not preclude the Corporation ratepayer, or, I think, the Separate School Board, from establishing before the Court of Revision that the conditions under which the notice could validly be given did in fact exist; but there was no such evidence in this case.
Question No. 3 ought, therefore, to be answered in the affirmative and that answer disposes of the controversy.
The appeal should be allowed and the judgment of Judge Mahon restored.
The judgment of Rinfret and Kerwin JJ. was delivered by
KERWIN J.—On July 27th, 1937, the directors of the respondent company, Ford Motor Company of Canada, Limited, passed a resolution instructing its secretary to forward to the Clerk of the City of Windsor a notice requiring that eighteen per centum of the Company’s land and business or other assessments in Windsor be entered, rated and assessed for Roman Catholic Separate School purposes. A notice to that effect, in the prescribed form, was sent to and received by the City Clerk, and the assessor entered the Company as a separate school supporter in the municipal assessment roll with respect to the designated percentage of the Company’s assessments and as a public school supporter with respect to eighty-two per centum of its assessments.
It is common ground that in the absence of such notice the Company would have been properly entered as a public school supporter only. The notice was given and the entries made in accordance with section 65 of The Separate Schools Act, R.S.O., 1927, chapter 328, as enacted by section 57 of The Statute Law Amendment Act, 1937. As the determination of this appeal depends primarily upon the construction of section 65, its provisions are reproduced forthwith:—
65. (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, 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. FORM B
(Section 65)
Notice by Corporation as to Application of School Tax.
To the Clerk of (describing the municipality).
Take notice that (here insert the name of the corporation so as to sufficiently and reasonably designate it) pursuant to a resolution in that behalf of the directors requires that hereafter and until this notice is either withdrawn or varied the whole or so much of the assessment for land and business or other assessments of the corporation within (giving the name of the municipality) as is hereinafter designated, shall be entered, rated and assessed for separate school purposes, namely, one-fifth (or as the case may be) of the land and business or other assessments.
Given on behalf of the said company this (here insert date).
R.S., Secretary of the Company.
In accordance with section 32 of The Assessment Act then in force (R.S.O., 1927, chapter 238), the Board of Education for the City of Windsor complained to the Court of Revision that the Company was wrongfully placed upon the roll as a Roman Catholic School supporter. By a majority, the Court of Revision considered that it was not established by evidence under oath that eighteen per centum was not a greater proportion of the whole of the Company’s assessments than the proportion of stock or shares in the Company held by Roman Catholics bore to the whole amount of such stock or shares; and
not only was no effort made by the corporation to ascertain the number of shares held by Roman Catholics but the corporation has no knowledge of the proportion of shares held by Roman Catholics.
They therefore held that the whole of the Company’s assessments should be entered and assessed for public school purposes.
The Company and the Board of Trustees of the Roman Catholic Separate Schools for the City of Windsor appealed to the County Judge and upon the latter’s affirmance of the decision of the Court of Revision took a further appeal to the Court of Appeal for Ontario on a stated case. The Court of Appeal reversed the order of the County Judge and the Board of Education now appeals to this Court.
The County Judge reported and found as follows:—
At the commencement of the hearing of the appeal, after the production of the exhibits and their identification by Mrs. Helen Weller of the City Clerk’s Department of the City of Windsor, Mr. Aylesworth, counsel for the Ford Motor Company, pointed out that one of the main questions between the parties was as to where the burden rests as to the compliance or non-compliance of the company with the provisions of the then section 65 (now 66) of the Separate Schools Act and that without waiving his position that that onus was on the respondent here to prove affirmatively that less than 18 per cent. of the shareholders were Roman Catholics and that that onus was not on the appellant company to prove that there were as many as 18 per cent. of its shareholders Roman Catholic, he was willing to bring out the facts on the point. To this Mr. Spencer assented.
Mr. Douglas B. Grieg, secretary of the Ford Motor Company of Canada, Limited, was then called and gave his evidence, some of the material parts of which were:
The Company was incorporated under the Dominion Companies Act; has 1,658,960 shares of common stock and no preferred shares; that there were shares held by companies; that as of November 28th, 1936, the shares were held in 32 countries; that as of November 27th, 1937, the shares were held in 34 countries; that in Canada and the United States, 1,500,000 shares are held; that the company cannot get the shareholders to comply with requests as to school taxes; that the company has difficulty in getting many of its dividend cheques into the hands of those entitled; that they lately had about 100 letters containing dividend cheques returned to them; that there is, on the average, about 20,000 different shareholders; that all the company’s shares of stock are not voting shares; that voting shares are not as widely distributed; that, on the average, about 19 per cent. of proxies are returned; that voting shares are held in 16 different countries; that a number of outstanding shares are held in names of brokers; that between September, 1936, and November, 1936, the company’s records indicate that the average number of shares held by brokers was 195,000; that the company has transfer agencies in Montreal, Toronto, Detroit and New York; that the number of shares changing ownership, according to records of stock exchanges, exceed by 9,500 to 10,000 monthly the number of shares presented for transfer on the books of the company; that in the year 1937 there were 665,874 shares of stock transferred on the books of the company; that the directors knew that all the stock of the company was not held by shareholders of the Roman Catholic faith and that shares were held by both Roman Catholics and others but did not know and could not know what percentage of the stock was held by Roman Catholics.
There were other facts brought out from Mr. Greig’s evidence, but, I think the material facts are above recited. His evidence did show the directors, in making the apportionment they did, acted in good faith and with every desire to be fair. They reasoned from a number of angles and made assessment comparisons and population comparisons, it is true many, if not most of them, after the notice, Form B, had been filed with the city clerk. However, I must find and do find that the division they made was not based on actual knowledge and was only a guess or an estimate.
The questions asked in the stated case are as follows:—
1. Upon the facts above set out and upon the true construction of the Statutes as applied to the facts, was I right in holding that upon an appeal by a ratepayer affected by the Notice “B” given by the Corporation and the assessment, rating and enrolment made thereunder, the onus is upon the Corporation to establish the fact that the share or proportion of its land, business or other assessments as set out in its requisition (Form B) does not bear a greater proportion to the whole of its assessments than the amount of the stock or shares held by Roman Catholics bears to the whole amount of the stock or shares.
2. Upon the facts above set out and upon the true construction of the Statutes as applied to the facts, was I right in holding that upon an appeal by a ratepayer affected by the Notice “B” given by the Corporation and the assessment, rating and enrolment made thereunder, the onus is not upon the ratepayer attacking the assessment to establish affirmatively the fact that the share or proportion of the Corporation’s land, business or other assessments as set out in its requisition (Form B) bears a greater proportion to the whole of its assessments than the amount of the stock or shares held by Roman Catholics bears to the whole amount of the stock or shares.
3. Upon the facts above set out and upon the true construction of the Statutes as applied to the facts so stated, was I right in holding that the appeals of Ford Motor Company of Canada, Limited, and of the Board of Trustees of the Roman Catholic Separate Schools for the City of Windsor, should be dismissed, the decision of the Court of Revision sustained and the Notice, Form B, delivered by Ford Motor Company of Canada, Limited, set aside, vacated and declared null and void and of no effect and that all the assessments of the Company in the City of Windsor be assessed, enrolled and rated for Public School purposes, unless it was affirmatively proved before me that the share or proportion of the Corporation’s land, business or other assessment as set out in its requisition (Form B) did not bear a greater proportion to the whole of its assessment than the amount of the stock or shares held by Roman Catholics bore to the whole amount of the stock or shares.
Two points should, I think, be here emphasized. The first is that, while in the present instance the assessor fulfilled the obligation cast upon him by subsection 2 of section 65 of The Separate Schools Act, the problem would be the same if he had disregarded his plain duty and had failed to assess in accordance with the notice sent by the Company. In either case the question of substance must be whether a party objecting to the notice is obliged to show affirmatively that the proportion of the holdings of Roman Catholics in shares or stock of the Company was less than eighteen per centum. The second point is that the hearing of the appeal from the Court of Revision by the County Judge is in the nature of a new trial, as sub‑section 2 of section 78 of the present Assessment Act, R.S.O., 1937, chapter 272, provides:—
The hearing of the said appeal by the county judge shall, where questions of fact are involved, be in the nature of a new trial, and either party may adduce further evidence in addition to that heard before the court of revision subject to any order as to costs or adjournment which the judge may consider just.
The proper construction of section 65 of The Separate Schools Act cannot be reached without an investigation of its history. For many years the Separate Schools Act in force from time to time in Ontario contained a section empowering a company to give notice to the clerk of the municipality wherein a separate school existed, requiring any part of its assessable property to be rated and assessed for the purposes of the separate school. In this section was included a proviso (as, for instance, in section 54 of The Separate Schools Act as enacted by 4 Edward VII, chapter 24, section 6) that the share so rated “shall bear the same ratio and proportion to the whole of the assessment” as the amount or proportion of the shares or stock of the Company as are held and possessed by persons who are Roman Catholics bears to the whole amount of such shares or stock. In 1913, however, by 3-4 George V, chapter 71, section 66, the statutory provision was recast. What was formerly the proviso appeared (as it now does), as subsection 3,—but with this important difference: Instead of the requirement that the share of the assessment should bear the same ratio and proportion to the whole of the assessment as the amount or proportion of the shares held by Roman Catholics bore to the whole amount of such shares, it was provided that it shall not bear a greater proportion.
Mr. Hellmuth, for the appellant, argued that prior to 1913 it would have been incumbent upon the Company to ascertain the exact proportion, and that as soon as it was shown before the Court of Revision or County Judge that that had not been done, the Company would be assessed for public school purposes; the new Act, he submitted, merely authorized the Company to find the limits of the ratio but gave it no further or greater power. That is, he contended, the Company must be able to show that, in selecting the proportion to be assessed for separate school purposes, it has not adopted a greater proportion than the holdings of Roman Catholics bear to the whole amount of the Company’s stock or shares. As an aid towards the establishment of these propositions he relied upon Regina Public School District v. Gratton Separate School District[3].
In connection with that case, it should be noted at the outset that two members of this Court were in favour of allowing the appeal because of their views as to the proper construction of sections 93 and 93 (a) of the Saskatchewan School Assessment Act, while two others adopted a directly contrary construction. In the result, the appeal was allowed, but that was because the fifth member, Mr. Justice Idington, without expressing any opinion upon the question of construction, concluded that the legislation was ultra vires the Saskatchewan legislature. In any event, the statutory provisions and the facts before the Court in that case were so different from what we have to consider on this appeal that no assistance may be gained from a review of the opinions expressed as to the construction of the statute. There, a number of companies had not given, under the permissive section 93 of the Saskatchewan School Assessment Act, notices requiring a portion of their school taxes to be applied for separate school purposes. Section 93 contained a proviso that the share to be assessed for separate school purposes should bear the same proportion to the whole property of the company assessable within the school district as the proportion of the shares of the company held by Protestants or Roman Catholics respectively bore to the whole amount of the shares of the company,—in effect the same as the proviso in the earlier Ontario statutes. Under section 93 (a), which had been enacted later than section 93, the separate school tru