Toronto (City) v. Olympia Edward Recreation Club Ltd.

Toronto (City) v. Olympia Edward Recreation Club Ltd.
Collection
Supreme Court Judgments
Date
1955-05-24
Report
[1955] SCR 454
Judges
Kerwin, Patrick; Taschereau, Robert; Rand, Ivan Cleveland; Kellock, Roy Lindsay; Estey, James Wilfred; Locke, Charles Holland; Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles
On appeal from
Ontario
Subjects
Taxation
Decision Content
Supreme Court of Canada
Toronto (City) v. Olympia Edward Recreation Club Ltd., [1955] S.C.R. 454
Date: 1955-05-24
The Corporation of the City of Toronto (Appellant) Appellant;
and
Olympia Edward Recreation Club Ltd. (Respondent) Respondent.
1954: December 9, 10; 1955: May 24.
Present: Kerwin C.J. and Taschereau, Rand, Kellock, Estey, Locke, Cartwright, Fauteux and Abbott JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Assessment—Taxation—Powers and jurisdiction of Court of Revision, County Court Judge, Municipal Board, Court of Appeal—The Assessment Act, R.S.O. 1950, c. 24, ss. 80, 82 and 83—The British North America Act, ss.
The issue raised by this appeal was whether the respondent’s bowling alleys formed part of the real estate as defined by the Assessment Act, R.S.O. 1950, c. 24, s. 1 (i) (iv) and were therefore assessable.
Held (Affirming the decision of the Court of Appeal for Ontario, Rand, Kellock, Locke and Cartwright JJ. dissenting): that the question was a question of law and that the Court of Appeal was right in determining that the Ontario Municipal Board had no power to decide it. Toronto Ry. Co. v. Toronto Corp. [1904] A.C. 809. Bennett & White (Calgary) Ld. v. Municipal District of Sugar City No. 5 [1951] A.C. 786 distinguished.
Per Estey, Fauteux and Abbott JJ.: The question could only be determined by a court presided over by a judge appointed under s. 96 of the British North America Act. Quance v. Ivey [1950] O.R. 397 approved. Phillips & Taylor v. City of Sault Ste. Marie [1954] S.C.R. 404 distinguished.
Per Rand and Cartwright JJ. (dissenting): The series of special appeals from an original assessment is, on the present statutory language limited to the task of completing the assessment roll and does not extend to the judicial determination of liability to taxation, a function of the civil courts alone. Under s. 83 an appeal to the Court of Appeal does not embrace the determination of taxability either appellate or original, the section gives an appeal only on a question of law properly arising before the lower tribunals.
On an appeal to the Municipal Board that body would be concerned with administrative jurisdiction only in the sense of being the final tribunal in review of the original assessment, its decision having no greater effect judicially than the act of the assessor. On appeal it may (as here) revise the acts of the assessor, amend the assessment roll and give it administrative finality. The court in Quance v. Ivey, supra, did not consider the administrative function of the Board. On this view of the statute it was within the jurisdiction of this Court to review the appeal to the Court of Appeal on the question of the jurisdiction of the Board.
Per Kellock J. (dissenting): The Assessment Act lays a statutory duty upon the assessor to determine whether a given piece of property is or is not “land” or is assessable or exempt. He is to form his own judgment and act upon it. The same is true of the several assessment tribunals charged with the statutory duty of preparing and settling the assessment roll. The function of the courts is to determine in any given case to what extent, if any, liability to taxation follows. The decision of the Privy Council in the Sugar City case, supra, was not, as wrongly decided in Quance v. Ivey, supra, that the legislation was to be construed as conferring upon the assessment tribunals a jurisdiction formerly exercised by the courts and therefore ultra vires, but upon the view that it did not confer any such jurisdiction at all. The same is true of the judgment of this Court in Phillips and Taylor v. Sault Ste. Marie, supra.
Per Locke J. (dissenting): The powers given to the Court of Revision, the County Court Judge and the Municipal Board by s. 83 of the Assessment Act to decide whether property is or is not assessable, may properly be exercised by them respectively, in discharge of their statutory duties as administrative acts to enable the completion of assessment rolls with reasonable promptness. Bennett & White v. Municipal District of Sugar City, supra, at 811 and 812; Ladore v. Bennett, [1939] AC. 468 at 480. Quance v. Ivey, supra, distinguished.
APPEAL by special leave from the judgment of the Court of Appeal for Ontario[1] dismissing the appellant’s appeal from the decision of the Ontario Municipal Board[2] in assessment appeal proceedings under the Assessment Act (Ont.)
J.P. Kent, Q.C. and A.P.G. Joy for the appellant.
C.R. Magone, Q.C. for the Attorney General for Ontario.
H.E. Manning, Q.C. and D.W. Mundell, Q.C. for the respondent. D.W.H. Henry, Q.C. for the Attorney General of Canada.
The judgment of Kerwin C.J. and Taschereau J. was delivered by:
THE CHIEF JUSTICE:—In this appeal from the decision of the Court of Appeal for Ontario[3] the Corporation of the City of Toronto is the appellant and Olympia Edward Recreation Club, Ltd., is the respondent. It is an assessment appeal and leave was given by this Court to bring it here. The Attorney General of Canada and the Attorney General of Ontario were notified and were represented.
The proceedings commenced in 1950 when the Asssessment Act in force in Ontario was R.S.O. 1937, c. 272, as amended, since the Revised Statutes of Ontario, 1950, did not come into force until December 31st of that year. Earlier in the year the respondent had been assessed $31,250 in respect of a parcel of land in the City of Toronto and $31,000 in respect of an unfinished building being erected on the land. In the later part of 1950, under the provisions of the old Assessment Act, a notice was given that the building was assessed for $305,000 and that taxes would be levied on that assessment for a period of two months from November 1, 1950 to December 31, 1950. Another notice was given that the buildings were assessed at $274,000 and that taxes would be levied on such assessment for a period of twelve months from January 1, 1951 to December 31, 1951. In each case the respondent appealed to the Court of Revision giving as its reason “building assessment too high”. When the respondent’s appeals came before the Court of Revision and the appellant’s appeals before the County Court Judge and the Ontario Municipal Board the Revised Statutes of 1950 were in force so that these proceedings are governed by the provisions of the Assessment Act in that revision, c. 24.
The Court of Revision deducted in each case $96,000 from the value of the building. While the notices of appeal to it might indicate on their face that the matter to be determined by the Court of Revision was merely one of quantum, it has been made clear throughout that the $96,000 represented the value of the bowling alleys in the building in question and that the real problem was whether the alleys were personal property and, therefore, not subject to assessment. Undoubtedly the assessor’s duty was to perform the functions allotted to him by the Assessment Act, but if a party assessed takes no steps upon receiving notice of an assessment, there is nothing to prevent it raising in the ordinary Courts the question that it was not legally assessable; and if it appeals, even as far as the Court of Appeal, and fails, it is not bound by that action and may raise that question in a similar manner.
It was so held in Toronto Ry. v. Toronto Corporation[4], although no constitutional point was there raised. The matter had been determined in the same sense in Great Western Ry. Co. v. Rouse[5] and Nickle v. Douglas[6], so that the jurisdiction conferred by the Assessment Act on the various appellate tribunals broadly conforms to the type of jurisdiction exercised by the Superior, District or County Courts, which is the test adopted in Labour Relations Board of Saskatchewan v. John East Iron Work Ld.[7]
It is now settled that the assessor, the Court of Revision, the County Court Judge and the Ontario Municipal Board have no jurisdiction to determine conclusively whether a company is taxable in respect of any particular property. (Phillips and Taylor v. City of Sault Ste. Marie[8]). When such a question is raised what purpose can there be to permit appeal after appeal at great expense to those concerned when the same matter may be litigated again? The question of ultra vires was not raised in Bennett & White (Calgary) Ld. v. Municipal District of Sugar City No. 5[9], but, in my opinion, the Judicial Committee did not there decide, as contended by the appellant, that, when such a matter as the one in issue here arises, any of the appellate tribunals provided for by the Assessment Act has jurisdiction to decide the point as an administrative matter. Their Lordships found that s. 53 of the Alberta Act there in question was not unambiguous and suggested that it might bear several constructions. Nowhere, as I read the judg- ment, is it suggested that when the only matter is, for instance, the one before the appellate tribunals in this case, any one of them has any authority of any kind to pronounce upon that subject.
Here the question before the Court of Appeal was whether the Ontario Municipal Board has power to decide that question. Being of opinion that the Court of Appeal was right in determining that the Board had no such power, the appeal should be dismissed with costs, but there should be no costs to or against either Attorney General.
RAND J. (dissenting):—A few observations may be useful in clarifying what has for some time been and seems still to be somewhat confused. The assessment of property for taxation purposes is primarily an administrative function, directed by statute, in two aspects of which legal questions may arise. They may go to the jurisdiction to tax, or they may arise in the course of exercising the function. An example of the latter would be whether the basis on which a valuation is made is within the intendment of the statute. That would be a question which the administrative tribunals would pass upon judicially and the decision of which, if not appealed from, would stand.
The question of jurisdiction, however, is of another nature. Whether person or property is within the scope of the assessing and taxing provisions, with which alone the assessing bodies are authorized to deal, depends, in its legal aspect, upon the decision of a court within s. 96 of the Confederation Act. But obviously when the assessor is preparing the roll he must consult those provisions in deciding upon doubtful property or exemption, or doubtful residence, and what he does is to exercise a lay judgment in discharging his duty to prepare the roll.
All features of the assessment may, in turn, be made subject to appeal to other subordinate tribunals. There may be administrative questions of law, as in the illustration used, or of fact, the findings on which will be conclusive unless reversed through the means of appeal given. In matters of jurisdiction, these tribunals can be invested with power to revise the lay judgment on assessability exercised in the first instance by the assessor and to modify the assessment roll accordingly. The policy of vesting such authority in a body with provincial wide scope is quite apparent, contributing as it would to greater uniformity and probability of soundness, and the only question would be whether the legislation has conferred that authority on the appeal body.
Then there may be appeals to superior courts. Questions of law within the judicial scope of the assessment tribunals could be carried to them. If appeal is not expressly provided the decisions would be open to certiorari. In the revising authority of an administrative nature, the question arises whether a Court of Appeal as such could be charged with such a duty. And finally it might have to be considered whether a superior court has been given a special original jurisdiction, in the course of such appeals, to deal with the liability to assessment.
With these considerations in mind, the issues in this appeal can now be approached. The decision in Bennett & White Ld. v. District of Sugar City[10] in the Judicial Committee, and in this Court[11], that of this Court in Sifton v. Toronto,[12] and that of the Court of Appeal for Ontario in Ottawa v. Wilson,[13] have clarified the interpretation of the assessment statute of Ontario from which that of Alberta is largely taken. It is now settled that the series of special appeals from the original assessment is, on the present statutory language, limited to the task of completing the assessment roll and does not extend to the judicial determination of liability to taxation.
It is also settled that in providing these assessment tribunals the statute does not set them up as alternative to the civil courts, carrying the right of election. So far as the former are validly invested with jurisdiction to deal with questions of law, recourse against an assessment lies to them alone. The significance of this is that matters within their competence become res judicata whether or not resort is had to them by way of appeal. In Bennett & White, at p. 808, Lord Reid, on this point, said:—
This could only be a valid distinction if the law were that a person aggrieved by an assessment has an option either to appeal in the manner provided by the Act or to raise the matter in the ordinary courts. Their Lordships have seen nothing in the Act from which an intention to create such an unusual option could be inferred.
But the present language of s. 83 of the Ontario statute is the same as that on which Sifton v. Toronto and Ottawa v. Wilson were decided. If that section was valid to create a jurisdiction in the Court of Appeal to pronounce upon the validity of the tax, then a collateral attack on the assessment in the civil courts could not succeed. But in each of those cases that attack was held to be open and it follows that the appeal to the Court of Appeal under s. 83 does not embrace the determination of taxability either appellate or original. Consistently with this, the subordinate bodies are limited to administrative functions, including questions of law not going to jurisdiction.
In its application to the Court of Appeal, s. 83 must be held to give an appeal only on a question of law properly arising before the lower tribunals: I find it impossible to attribute to the legislation the intention to attempt to make that Court as such a final revising body in administrative matters. It would verge on absurdity to have that Court pronounce an opinion on such a matter in another than a judicial sense. The questions in this case, in the administrative sense, could not, therefore, be carried there for final revision.
But the appeal to the Ontario Municipal Board would be concerned with administrative jurisdiction only, dealing with the question raised here only in the sense of being the final tribunal in review of the original assessment and having no greater effect judicially than the act of the assessor. That body can, then, be called upon by way of appeal to revise the acts of the assessor, to amend the assessment roll and to give it administrative finality.
The judgment in Quance v. Ivey,[14] interpreted s. 83 as purporting to give jurisdiction to the assessment tribunals to determine judicially their own jurisdiction and that it was therefore ultra vires. The court in that case did not consider the administrative function of the Ontario Municipal Board in the sense in which that of the similar body in Alberta was held to be effective in Bennett & White. On the assumption made, the decision of the Court of Appeal is in accordance with the view I have here expressed, but it does not go to the contention now urged.
On this view of the statute, the jurisdiction of this Court to hear the appeal was challenged by Mr. Manning. That depends upon whether or not the judgment in appeal is one rendered in the course of a judicial proceeding. The taking of an appeal to the Court of Appeal on the question of the jurisdiction of the Board is a proceeding of that nature which this Court is competent to review.
The object sought by the legislation is undoubtedly to provide a machinery of adjudication which can settle the question of taxability with despatch, and the desirability of concluding these questions within a fixed time seems to be obvious. To obtain that needs only some mode of resort to the appropriate tribunals, the civil courts. If by way of appeal or certiorari the Court of Appeal was given original jurisdiction to deal with such questions, including appropriate provision for furnishing the facts, with power to refer the roll back to the Board or County Judge for amendment in accordance with the judgment, and fixing the time within which the motion or application must be made, the difficulty facing municipal assessments would appear to be removed. But the existing language of the statute, as the cases cited show, is not sufficient to that end.
I would, therefore, allow the appeal and direct judgment declaring the Ontario Municipal Board to possess jurisdiction to consider the appeal made to it for the purpose of completing the assessment roll. The appellant will have its costs in this Court, but there will be no costs in the Court of Appeal.
KELLOCK J. (dissenting):—The respondent, the owner of certain premises in the city, was successful, on appeal to the Court of Revision against assessments for the years 1950 and 1951, in securing a reduction to the extent of the value of the bowling alleys installed in the building. An appeal by the present appellant to the county judge was dismissed. A further appeal by the appellant to the Ontario Municipal Board was dismissed on the ground that the Board was without jurisdiction to make any determination as to whether or not the alleys, i.e., the floors, came within the definition of “land”, “real property” and “real estate” contained in s. 1(i) (iv) of the Assessment Act, which reads:
all buildings, or any part of any building, and all structures, machinery and fixtures erected or placed upon, in, over, under or affixed to land,
Considering itself bound by the decision of the Court of Appeal in Quance v. Ivey[15]. The Board distinguished the judgment of the Privy Council in Bennett & White v. Sugar City[16], which affirmed, on the matter here relevant, the judgment of Rand J., speaking for the majority in this court.
Under the scheme provided by the Assessment Act, complaints by a person of an error or omission in regard to himself as having been “wrongfully inserted in or omitted” from the roll, or as having been “undercharged or overcharged” by the assessor in the roll are to be dealt with by the Court of Revision, s. 69. From the Court of Revision an appeal lies to the county judge, s. 72(1), who, in my view, is here persona designata, or directly to the Board, s. 80(1). If the first course be taken, an appeal lies from the county judge to the Board under s. 80(1) or, on consent of all parties, directly to the Court of Appeal; s. 81(1) and (7). In the case of appeals to the Board, a similar right of appeal lies to the Court of Appeal under s. 80(7).
S. 83 of the statute, which was first enacted in 1910 by c. 88, s. 19, provides:
83. It is hereby declared that the court of revision, the county judge, the Ontario Municipal Board, and every court to which and every judge to whom an appeal lies under this Act have jurisdiction to determine not only the amount of any assessment, but also all questions as to whether any persons or things are or were assessable or are or were legally assessed or exempted from assessment. R.S.O., 1950, c. 24, s. 83.
A similar provision limited to the Board is contained in s-s. (6) of s. 80, this provision having been enacted at the time of the creation of the Board in 1906 by c. 31, the relevant provision being s. 51, s-s. (2). The jurisdiction of the Court of Appeal in the case of appeals from the Board, is provided for by s-s. (7) of s. 80 of the Assessment Act. This provision also derives from the statute of 1906, s. 51 (3). As originally enacted, the sub-section read:
An appeal shall lie from the decision of the Board under this section to the Court of Appeal upon all questions of law. The additional words now found in s. 80(7) were added in 1916 by c. 41, s. 6(2), as follows:
Or the construction of a statute, a municipal by-law, any agreement in writing to which the municipality concerned is a party, or any order of the Board.
By the same statute the jurisdiction of the Court of Appeal in the case of appeals from the county judge, now found in s. 81(1), was provided for in similar terms by s-s. (1) of s. 6.
The contention of the respondent is that given effect to in the Quance case, namely, that s. 80(6) and s. 83 purport to vest in the Board and the other assessment tribunals a jurisdiction to determine finally the question as to whether property is or is not assessable under the Act, and that that jurisdiction, being already vested in the superior courts of the province prior to 1867, the above provisions are ultra vires. It is also contended that the jurisdiction given the Court of Appeal by s. 80(7) and s. 83 is limited to matters within the jurisdiction of the lower tribunals and is not, therefore, to be taken as including jurisdiction to determine such a question.
The appellant contends, on the other hand, that the assessment tribunals (not including in this description the Court of Appeal) were obligated by the terms of the statute to determine all questions arising upon the assessment roll, for the purpose of settlement of that roll, without regard to the question as to whether or not any such determination would, if not appealed against, be final so far as liability to taxation may be concerned. It is further contended that the jurisdiction given to the Court of Appeal is an original jurisdiction entitling that court to decide finally such questions, including such a question as that involved in this litigation.
As the legislation under consideration in the Sugar City case is to all intents and purposes the same as the corresponding provisions of the Assessment Act, with the exception that the Alberta Act makes no provision for appeal to a court, it will be convenient at the outset to consider the judgment of the Judicial Committee in that case. The question there was as to whether or not a decision of the Assessment Commission of Alberta that the appellants were assessable in respect of certain personal property as to part of which the appellants contended was not their property but that of His Majesty, and as to another part was exempt under the statute, was res judicata, or whether it was open to the appellants to litigate the matter in the ordinary courts. It was held that they were so entitled.
In delivering the judgment of the Board, Lord Reid referred to certain earlier decisions under the Ontario statute, namely, Toronto Ry. Co. v. Toronto[17], Sifton v. Toronto[18], and Ottawa v. Wilson[19], and continued at p. 808:
In their Lordships’ judgment the effect of these authorities is that a taxpayer called on to pay a tax in respect of certain property has a right to submit to the ordinary courts the question whether he is taxable in respect of that property unless his right to do so has been clearly and validly taken away by some enactment, and that the fact that the statute which authorizes assessment allows an appeal or a series of appeals against assessments to other tribunals is not sufficient to deprive the taxpayer of that right.
These decisions referred to by Lord Reid are not, of course, based upon the view of the legislation now put forward by the respondent and accepted in Quance v. Ivey, (supra) namely, that the legislation is to be construed as conferring upon the assessment tribunals a jurisdiction formerly exercised by the courts and therefore ultra vires. They are based upon the view that it did not confer any such jurisdiction at all. The same is true of the judgment of this court in Phillips & Taylor v. Sault Ste. Marie[20].
Quance v. Ivey cannot, therefore, stand with the later decisions referred to and must be taken to have been wrongly decided. It may, moreover, be pointed out that in none of the Ontario cases above referred to did the courts have occasion to consider whether there was any duty of an administrative character resting upon the assessment appeal tribunals as was considered to be the case under the legislation in question in the Sugar City case.
S. 53 of the Alberta Act in question in that case corresponds to s. 83 of the Ontario Act except that s. 53 contains no provision for a further appeal to a court. Their Lordships, adopting the view of Rand J., held that the section, in its setting in the statute, was not to be construed as an optional method of proceeding in contradistinction to proceeding in the ordinary courts but as laying upon the Commission a duty to determine the matters mentioned in the section
in so far as it is necessary for it to determine these matters in order to carry out its statutory duty to determine whether the assessment roll should be amended, but only for that purpose.
That being so, their Lordships held that the Court of Revision must have jurisdiction to determine those same matters for the same purpose because “the grounds on which the Act allows complaint to be made to it may involve those matters” and the statutory function of the Assessment Commission was only to hear and determine appeals from Courts of Revision.
The Privy Council did not consider that either in s. 45, which corresponds essentially to the Ontario s. 70, or elsewhere in the statute was there any indication that an entry in the assessment roll upheld by the Commission was in any different position from any other entry in the roll or any less subject to challenge in the courts. Such a provision, they considered, was “plainly only what their Lordships in City of Victoria v. Bishop of Vancouver Island[21], referred to as a machinery section”; per Lord Reid, at p. 810.
Unless, therefore, the Ontario legislation is to be distinguished by reason of the existence of the right of appeal to the Court of Appeal and the reference in s. 83 to that court, the judgment of the Privy Council requires this court to hold that, while it is competent and indeed mandatory, for the assessment tribunals, including the Municipal Board, to exercise their judgment upon all questions arising in the course of the preparation of the assessment roll, including the question of assessability or exemption, nevertheless, when it comes to a question of determining finally a question of the latter character so as to entail liability to taxation, such jurisdiction is not to be considered as having been conferred upon these assessment tribunals. It will be convenient at this point to consider some of the provisions of the statute relating to the duty of the assessor and other municipal officials as to the preparation of the assessment roll. These provisions are expressed in the clearest mandatory terms.
By s. 16(1), it is provided that every assessor “shall” prepare an assessment roll in which “after diligent inquiry” he “shall” set down according to “the best information to be had” the particulars mentioned in the section and in so doing he “shall” observe the provisions therein set out. Under clause (a) the assessor “shall” set down the names and surnames in full, if they can be ascertained, of all persons, resident or non-resident, who are “liable to assessment therein”. By clause (b), he is required to set down in the proper column opposite each name the amounts “assessable” against such person.
S-s. (2) requires that the assessor “shall” set down in column 14 the “actual value” of the parcel of real property exclusive of buildings; in column 15, the value of buildings as determined under s. 33; in column 16, the total actual value of the land; in column 17, the total amount of “taxable” land; in column 18, the total value of the land “if liable for school rates only”; in column 19, the total value of land “exempt from taxation” or “liable for local improvements only”; and in column 22, the “total assessment”. In my view, it is impossible, in the face of these provisions, to say that the assessor is not required to exercise his judgment as between assessability and exemption and make up his roll accordingly.
By s. 33, s-s. (1), it is provided that, subject to the other provisions of the section, “land” shall be assessed at its actual value. In s-ss. (2) and (3), the considerations entering into the ascertainment of that value in the case of both vacant land and land having buildings thereon are given. By s-s. (4), it is provided that the buildings, plant and machinery in or under “mineral land” and used mainly for obtaining minerals, as well as certain named mining equipment, and the minerals themselves “shall not be assessable”. The definition of “land” in s. 1(i) of the statute has already been referred to. All of these provisions must be interpreted by the assessor and the entries he makes in his roll are the result, as they are by the statute intended to be, of the exercise of his judgment.
It is therefore impossible, in my view, to contend that where a question arises such as in question in these proceedings, that is, as to whether a given piece of property is or is not “land” or is assessable or exempt, the assessor can do other than enter such property upon the roll because he cannot decide that question. It is true that he cannot decide such a question finally, but he is required by the statute to form his own judgment and act upon that judgment. A contrary conclusion would be in the very teeth of the statute.
Moreover, by s. 50 it is provided that if at any time it “appears” to any treasurer or other officer of the municipality that “land” “liable to assessment” has not been assessed in whole or in part for the current year or for either or both of the next two preceding years, he “shall” report the same to the clerk of the municipality, who “shall” thereupon, or upon the omission to assess coming to his knowledge in any other manner, enter the land on the collector’s roll at its average valuation as assessed in the three previous years. If the land had not been so assessed, then the clerk “shall” require the assessor to value the land and
it shall be the duty of the assessor to do so when so required, and to certify the valuation in writing to the clerk.
It is clear that the officers of the municipality here mentioned are also required to exercise their judgment on the question as to assessability or exemption in the same way as is the assessor under the earlier provisions already discussed, and if it “appears” to them there has been an omission from the roll of land which ought to have been assessed by the assessor, they are required to enter it. The same rights of appeal are provided for by s-s. (3) as if the land “had been assessed in the usual way.”
If such be the statutory duty of the assessor and these other municipal officers, it is equally for the Court of Revision to exercise its judgment upon the same questions
in order to carry out its statutory duty to determine whether the assessment roll should be amended, but only for that purpose. The Court of Revision must have jurisdiction to determine those matters for that purpose because the grounds upon which the Act allows a complaint to be made to that court may involve those matters,
to refer again to the language of Lord Reid in the Sugar City case at p. 811, already quoted. The same is true of the county judge and Municipal Board for the reason that, to quote further from the same page,
the statutory function of the Commission (here the judge or Board) is only to hear and determine appeals from Courts of Revision.
It may be again observed that s. 35 of the Alberta statute, which provides for appeals to the Court of Revision does not, for present purposes, differ in any material respect from s. 69 of the Ontario statute. The same comparison is true as between s. 47(1) of the Alberta statute and ss. 72(1) and 80(1) of the Ontario Act as to appeals from the Court of Revision.
This being then the function of the assessment tribunals, it follows that, as the jurisdiction conferred upon the Court of Appeal cannot be taken to be other than one to be exercised judicially, that jurisdiction, with respect to a question such as is here involved, is limited to determining upon the true interpretation of the statute the nature of the duty resting upon the Board and the inferior tribunals. It has already been pointed out that the decisions to which I have. referred, approved as they were in this respect in the Sugar City case, involve the finding that, notwithstanding the breadth of the language employed, the Court of Appeal has no jurisdiction with respect to such a question as that raised in these proceedings.
It is not necessary for the purposes of this appeal to determine the extent of the jurisdiction committed to the Court of Appeal or the kind of question upon which, should there be no appeal, the decision of any of the inferior assesment tribunals would be final. Illustrations may be found in the authorities referred to by their Lordships in Toronto Ry. Co. v. Toronto City[22]. In the course of his judgment in that case Lord Davey said at p. 815:
In London Mutual Insurance Co. v. City of London[23], the decision of the county court judge was treated as final, because the question was within the jurisdiction of the assessor; but Hagarty C.J. held that if the property had not been assessable that would have shewn that ab initio the assessor and the appellate tribunals had been dealing with something beyond their jurisdiction, and their confirmation of the assessor’s act would go for nothing.
That is not to say that the assessor or the assessment tribunals must any the less carry out the duty laid upon them by the statutory provisions to which I have referred but merely that it is open to the person affected to apply to the ordinary courts in the case of such a question as is involved between the parties to this appeal.
The whole matter, in my opinion, comes to this, that the legislature, having laid upon the assessor and the several assessment tribunals the statutory duty of preparing and settling the assessment roll, who is to say that duty is not to be performed? The function of the courts is to determine in any given case to what extent, if any, liability to taxation follows.
I would allow the appeal with costs in this court and in the Court of Appeal and refer the matter back to the Municipal Board for its decision.
The judgment of Estey and Fauteux JJ. was delivered by:
ESTEY J.:—The appellant, in assessing respondent’s land and building in 1950 and 1951, included, as part of the latter, its bowling alleys. Upon respondent’s appeal to the Court of Revision these were held not to be part of the building and, therefore, not taxable as such. This decision was affirmed by the County Court judge. Upon further appeals to the Ontario Municipal Board and the Court of Appeal both followed the decision in Quance v. Ivey[24], under which neither of these tribunals had jurisdiction to finally determine such a question of law. In the course of his judgment Mr. Justice Laidlaw, speaking on behalf of the Court, stated:
It appears to me to be settled beyond controversy that the Legislature of a Province, acting within its legislative powers, cannot constitute a tribunal composed of a member or members appointed by provincial authority and empower that tribunal to determine conclusively questions of a character that fall for determination within the jurisdiction of a superior court. Thus, the Legislature could not give jurisdiction to such a tribunal to finally determine the question whether a taxpayer is taxable in respect of certain property. Such a tribunal could not finally decide whether an assessor exceeded his powers in assessing property which was not liable in law to assessment. The issues in this appeal are, therefore, (a) is the question whether the bowling alleys are part of the real estate one of law and (b) if so, is it one that must be determined by a court presided over by a judge appointed under s. 96 of the B.N.A. Act.
With respect to (a) the facts are not in dispute. If the bowling alleys were personalty rather than real estate the assessor had imposed liability in respect of property not taxable under the statute. The respondent, to that extent, would not be liable and there was, therefore, an important question of law to be determined rather than a mere question of valuation, as the appellant contended. Township of London v. The Great Western Ry. Co.[25]; Toronto Ry. Co. v. Toronto[26].
As to (b), in Quance v. Ivey, supra, the respondent contended that under the statute it was exempt from a business tax. The County Court judge agreed with the respondent and held that upon a construction of the statute it was exempt. The Ontario Municipal Board reversed the decision of the County Court judge. The Court of Appeal held the construction of an act was a question of law and that none of the tribunals sitting in an appeal under the Assessment Act (R.S.O. 1950, c. 24) had any jurisdiction to finally determine this question. In the course of the reasons written by Robertson C.J.O. and concurred in by Laidlaw, Roach and Hope JJ.A., and those written by Hogg J.A., the Ontario cases prior to Confederation, certain provisions of the B.N.A. Act (ss. 92(14), 96, 99 and 100), as well as the authorities to that date were all considered and the conclusion arrived at that similar tribunals sitting in appeal from an assessor existed prior to Confederation, but that a question of law such as that here submitted could be finally decided only in the courts of law of that period; that under the B.N.A. Act, while these tribunals may be competently created by the legislature, questions of law such as that here considered can only be finally determined by a court presided over by a judge appointed under s. 96 of the B.N.A. Act and, therefore, the above-mentioned tribunals, including the Court of Appeal sitting in appeal under the provisions of the Assessment Act, could not finally determine such a question. At p. 408 Robertson C.J.O. stated:
In my opinion it is well established by decisions of highest authority that jurisdiction to decide disputed questions of liability to assessment, such as were raised in the cases I have referred to, and in the present case, was vested in the superior Courts of the Province, and not in the bodies having jurisdiction to hear assessment appeals under the provisions of The Assessment Act. It is also clear that that jurisdiction was so vested prior to Confederation, and continued to be so vested thereafter.
To much the same effect is the statement of Lord Atkin when, in dealing with the jurisdiction of the Ontario Municipal Board, he stated:
It is primarily an administrative body; so far as legislation has purported to give it judicial authority that attempt must fail. It is not validly constituted to receive judicial authority; so far, therefore, as the Act purports to constitute the Board a Court of Justice analogous to a Superior, District,, or County Court, it is pro tanto invailid; not because the Board is invalidly constituted, for as an administrative body its constitution is within the Provincial powers; nor because the Province cannot give the judicial powers in question to any Court, for to a Court co