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APPELLANTS; Mar 6. THE CITY OF MONTREAL (PLAINTIFF).RESPONDENT. ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).
Sir W.
Consolidated Statutes of Lower Canada (8).
ch. section sub-section 2,
SUPREMIE COURf OF CANADA.
[VOL. XII. Statutes of Quebec (1).
There can be no doubt that the appellant's school was an educational institution in the primary grammatical signification of that term, and would, primd facie, be exempted, under the authority of these statutory provisions, from payment of the taxes claimed, unless there is to be found some statutory provision depriving such an educational institution as that of the appellants of the exemption, by limiting the words " educational institution " to a public incorporated educational institution. I am quite willing to admit that the intention to exempt must be expressed in clear unambiguous language; that taxation is the rule and exemption the exception, and therefore to be strictly construed; but in this case the intention to exempt seems to me to be made as clear as plain unequivocal language can very well make it. We have nothing, that I can discover, indicating an intention to limit the exemption to public or incorporated institutions.
On the contrary, we find in sec. 77 sub-sec. 2 incorporation made necessary in the case of charitable institutions or hospitals; but not so with reference to all buildings set apart for purposes of education or of religious worship, or to parsonage houses and all burial grounds.
Why should it not with as much force be contended that churches, parsonage houses, and burial grounds, should be incorporated
WLIE before they are exempt under that section ? Surely a school house, seminary or school is an educational institution without reference to incorporation, and may Ritchie be established by individuals quite as well as by corporations.
And again, an incorporated school might be quite as much a private school as this we are now considering. Incorporation gives merely a legal entity;
the advancement and interest of education may be quite as much forwarded by private schools of high standing, such as this is admitted to be, under the immediate government of the proprietors as by incorporated schools governed by a board of directorS.
The mere act of incorporating an existing school, or certain persons to carry it on, does not make it more or less an educational institution, nor more or less a public or private institution, than it was previous to its incorporation.
That the legislature fully understood the distinction between private and public, and between incorporated and unincorporated, educational institutions, is to be discovered in numerous acts
Thus in 29 Vic. ch. 57
(1865), relating to the corporation of the city of Quebec, in the exemption from taxation we find the limitation clearly expressed:
tenant's
By 38 Vic. ch. 76 see. 101 (1875) the city of Three
Rivers is authorized to levy on all lands, city lots or parts of lots, excepting churches, bishop's palaces, parsonage houses, charitable and educational establishments as also their dependencies, whether there are buildings eTected thereon or not, with all buildings and erections thereon fifty cents in each $100, and not a word about or incorporation or limiting the exemption to any particular class of charitable or educational establishments. So in C. 38 Vic. ch. 76 sec. 125:built; built; Then there is 39 Vic. ch. 79 incorporating the city of Hull:- By 40 Vic. c 29 "The Town Corporation General Clauses Act " which applies to every town corporation or municipality which shall hereafter be established, the following property shall not be taxable:- The principle of exemption was, no doubt, to encourage education generally, in like manner as religious instruction was encouraged by exempting all buildings set apart for the purposes of religious worship and for the burial of the dead, by whomsoever owned, and without the slightest reference to incorporation. The legislatures have, no doubt, some very good reasons for requiring incorporation only in the case of charitable institutions and hospitals.
The legislation may, very well, be assumed to be based on the idea that certain kinds of property, such as church property, school property, property used for charitable purposes, burial grounds, and the like, are not fit objects for public contributions, inasmuch as R" they are supposed to contribute to the general public benefit, and operate in relief of public burdens; and this last is particularly applicable to property devoted to works of education and charity. And the exemptions are, doubtless, granted on consideration of public policy, to be recalled whenever this view of public policy shall J. have changed.
The American cases from the State of New York, which were much relied on, I have examined, but they do not, in my opinion, assist us, because they appear to have been decided on the peculiar wording of the statute, in the construction of which, the court held that from such peculiar wording the term " incorporated," used in the connexion it was in the statute, showed that the legislature intended to confine the exemption to incorporated institutions. The wording of our statute being entirely different, and no such intention being discoverable from the language used, the cases do not seem to me to apply.
Under these circumstances, I do not think we have any right to confine the exemption to narrower limits than the terms of the statute not only fairly imply, but actually express. Considerations of public policy are, in my opinion, opposed to our doing so, for thereby we may frustrate the object the legislature may have had in view, namely, the encouragement of education.
The value of an educational institution such as this is admitted to be, to the city of Montreal in which it is situated, and, in fact, to the Province of Quebec, no one will, I think, venture to deny.
To exempt such an institution from local taxation is but a very moderate encouragement to the cause of education, and one to which it is by no means unreasonable to suppose the legislature may have considered it, in the public interests, justly entitled. At any rate, if this is not so, when amending this section had the legislature intended so to limit the application of the term " educa.
tional institution " as to prevent the exemption applying to private educational institutions they should have made their intention more apparent.
And if we have misinterpreted their intention, the remedy is at hand; the legislature can, by the use of unequivocal and Ritchie explicit language, make their intention clear.
FOURNIER J.-Cet appel est d'un jugement de la Cour du Bane de la Reine de la province de Qu6bee, confirmant un jugement de la Cour Sup6rieure du District de Montr6al, condamnant 1'appelante A payer a l'intim6e $440.80, pour taxes municipales, sur une propri6t6 occup6e par elle comme bcole et pensionnat de jeunes filles qui y regoivent l'instraction.
L'appelante a plaid6 qu'elle 6tait en vertu de la 41me Vic., ch 6, sec. 26, exempt6e du paiement des taxes r~clam6es.
Cette section est ainsi conque: ajoutant, 6righes et et
II est admis que pendant les anu6es pour lesquelles les taxes sont demand6es l'appelante a occup6 la propri6t6 mentionn6e dans la d6claration colume 6cole et pensionnat priv6 de jeunes filles, et qu'elle employait plusieurs instituteurs A donner l'6ducation A quatrevingt-cinq jeunes filles, en moyenne, par ann6e. Il est aussi admis que l'appelante n'a requ de 1'intim6e aucune subvention pour le soutien de son 6cole. La pr6tention de l'intim6e est que l'exemption invoqu~e ne s'applique pas aux 6coles priv6es, mais seulemen t aux institutions d'6ducation incorpor6es. La seule question A decider est de savoir si l'6eole tenue par l'appelante est une maison d'6ducation, (educational inslitution) suivant 1'intention de la clause ci-dessus cit6e.
L'hon. juge qui a d6cid6 en premibre instance a donn6 gain de cause A 1'intim6 en se fondant sur le J. motif suivant: " Consid6rant que les expressions dont s'est servi le statut impliquent l'id6e que les maisons d'6ducation (educational institutions) sont des institutions d'un caractbre permanent et fond6es dans un int6rit public, et sons le contr6le de 1'autorit6, et non des institutions priv6es et qu'en cons6quence les lieux occup6s par la d6fenderesse ne sont pas exempts de taxes."
Cette distinction est-elle bien fond6e ? Le 16gislateur avait-il rhellement 1'intention de donner A la disposition ci-dessus cit6e l'effet d'exclure du b6n6fice de l'exemption toutes les 6coles priv6es qui ne sont pas sous le contrble des lois d'6ducation ? Au contraire les teimes g6n6raux de la disposition " toutes maisons d'6ducation " doivent nous faire conclure que dans son intention 1'exemption est g6n~rale, A moins que 1'expression " maison d'6ducation " n'ait reque, avant l'adoption de cette disposition une signification pr6cise et limitative. Si tel 6tait le cas, le 16gislateur n'ayant aucunement d6fini on qualifi6 l'expression dont il se sert, est n6cessairement pr6sum6 l'avoir employ6e dans le sens que d'autre statut sur le mime sujet ont pu lui donner. Bien que la 41me Vic., ch. 6, soit un statut amendant les lois concernant l'6ducation, la sec. 26 amende le ch. 15, sec. 77, en ajoutant une disposition nouvelle, et non pas en modifiant ou changeant quelques-unes de ces dispositions.
Cependant ceite disposition doit-6tre interpr6t6e en la lisant comme faisant maintenant partie du statut amend6 et 'on doit recourir A cc statut pour voir si l'on y trouvera trace de la distinction faite par $91 la cour de premibre instance. Des diverses cat6gories d'exemption de taxe mentionn~es dans la clause 77, la deuxkime seulement pent nous servir A l'interpr6tation or de celle dont il s'agit, elle est ainsi conque:
Ces exemptions sont g6n6rales pour chacune des cat6gories mentionn6es,-il n'y a aucune expression qui puisse en limiter l'application, si ce n'est que les bAtisses exempt~es doivent avoir t destinbes, (set apart,) A des fins religieuses on d'6ducation.
Mais il n'y est nullement question qu'elles devront tre soumises an contr6le d'une autorit6 publique quelconque.
La seule restriction A la g6n6ralit6 de 1'exemption n'existe qu'A l'6gard des h6pitaux et des institutions de charit6 qui pour b6n~ficier de 1'exemption, doivent Atre des institutions incorpor6es.
La conclusion A tirer de l c'est que quant aux institutions d'6ducation il suffit pour avoir droit A 1'exemption que leurs bAtisses soient destin6es A 1'6ducation.
La loi n'exige pas qu'elle soient incorpor6es comme les h6pitaux ou institutions de charit6, ni qu'elles soient sous le contrble d'une autorit6 quelconque. Plus tard esi venue la sec. 26 cit~e plus haut, ajoutant une autre classe d'exemption; comme il a deji 6t6 dit plus haut cette exemption est 6tablie en des termes g6n6raux qui n'impliquent aucune restriction. Il me semble qu'on ne devrait pas introduire une distiction du genre de celle qui a t& faite, lorsque le 16gislateur lui-m~me n'a pas jug6 a propos d'en faire dans les dispositions ci-dessus cit~es.
Une 6cole tenue comme l'est celle dont il s'agit, estelle moins une institution d'6ducation que si elle 6tait sous le contr6le de commissaires d'6cole ? Fait-on autre chose dans l'une et l'autre que d'enseigner. Le contr6le auquel peut 8tre soumis une 6cole en change-t-il 1a nature. Si deux 6coles sont tenues exactement de la mime maniare, ou l'enseignement est de m~me valeur,
-mais
I'une est sous le contr6le des commissaires d'6cole et l'autre en dehors de ce contr81e, et sons laFournier J. direction seulement d'un professeur particulier, seraitil raisonnable de dire que la premibre est une institution d'6ducation et que la seconde ne 1'est pas?
Si Ia loi a consid6r& les 6coles 616mentaires comme des institutions d'6ducation, 6videmment on ne doit pas restreindre les termes " maison d'6ducation " A la d6signation des institutions d'enseignement supbrieure,-ils out une signification plus ample et pouvent comprendre les Gcoles 616mentaires. Cette interpr6tation est admise par la sec. 6 du 4h. 1., r6glant la distribution du fonds destin6 A 1'encouragement de 1'enseignement sup~rieur entre les Universit6s, Coll6ge, S~minaires, Acad6mies, etc., et institutions d'6ducation, autre que les 6coles
616mentaires ordinaires, etc.
Pourquoi le 16gislateur a-t-il fait cette exception, si ce n'est parce que sans cette d6claration expresse les 6coles 616mentaires eussent t comprises dans les termes g6n6raux " institutions d'6ducation " qui comprennent toutes les
6coles, qu'elles soient priv6es ou publiques.
Je ne trouve pas dans nos lois d'6ducation d'expressions suffisantes pour justifier Ia distinction qui a t6 faite; bien au contraire je trouve que les expressions si g6n6rales qu'elle emploie repoussent l'id6e d'une telle distinction. Je crois en cons&quence devoir donner A la sec. 26 tout l'effet que comporte la g6n6ralit6 de ses termes et je crois que
1'6cole de 1'appelante doit Atre consid6r6e comme une maison d'6ducation suivant cette disposition.
Je crois que la. cause de Chegaray v. Jenkins (1), u'a aucune application A la pr6sent cause. Sa d6cision repose sur des statuts diff6rents des n6tres.
Quant l'abus que l'on pourrait faire de cette exemption de taxes en 6tablissant des 6coles plus t6t dans le but de b6n6ficier de l'exemption que dans celui d'enseigner, ii n'en pet 6tre question dans cette cause.
Les faits T-repoussent toute supposition de ce genre.
Ce n'est pas un sujet de plainte en cette cause,-mais simplement un argument ab inconvenienti. Lorsqu'on se plaindra d'un semblable abus, je crois que les tribunaux n'6prouveront pas de difficult6 faire la distinction entre une 6cole tenue de bonne foi et celle qui ne le serait que comme un pr6texte pour 6viter le paiement de la taxe. Pour ces motifs je suis d'avis que 1'appel doit 6tre allou6 avec d6pens.
HENRY J. concurred.
J.-The only question in this case is whether the appellant's property in Montreal, occupied, as she claims, as an educational institution, is exempt from municipal taxes. To the respondent's action for such taxes the appellants pleaded that the said imin) able property, described in the said plaintiffs declaration, and upon and in respect of which the assessments or taxes sought to be recovered by the present action have been, as the plaintiff alleges, imposed, was, during the whole of the years eighteen hundred and seventyeight, eighteen hundred and seventy-nine, and eighteen hundred and eighty, and long previous thereto, occupied by the said defendants as an educational institution, with its dependencies, for the education of girls, and that the said educational institution received no grant from the plaintiff within the limits of which it was situated; and that by law the said immovable property on which the said educational institution is erected, and its dependencies, was, at all the times mentioned in the said plaintiff's declaration, exempt from all municipal and school taxes whatsoever; by reason whereof the said immovable property is exempt from the taxes sought to be recovered in this case, and the said defendants are not bound nor liable, as alleged in the said plaintiff's declaration.
The parties adopted the following admissions: First. That the property set out in the said plaintiff's declaration was, daring the time mentioned therein, occupied and used as a private boarding and day school for girls, kept and maintained by the said defendant, who employed divers teachers, and during that time had therein, on an average, for their education, as pupils, eighty-five girls per annum.
Second. That the said institution for the education of girls never received any grant from the plaintiff. Third. That if the said institution be not an educational institution under section 26 of 41 Vic. c. 6, judgment should go for the amount demanded and costs; if, on the contrary, it is such educational institution, within the meaning of the said section, the said plaintiff's action should be dismissed with costs. This is, then, all that we have to determine.
The section of the act referred to reads es follows be As a matter of fact, the property in question, it cannot be denied, is an educational institution and nothing else.
But, say the respondents, it is not an educational institution within the meaning of the act. In other words, they contend that though the statute says, "every educational establishment " it does not mean "every educational establishment."
On them, it must be conceded, rests the onus to establish that proposition.
Their contention is that this statute applies onl to public institutions under the control of the school commissioners, and not to private schools like the one kept by the appellant. After mature con* sideratio. , I think it safer not to distinguish when the Taschereau law does not do so-not to try, as it were, to make the Etatute say what it does not say-and to hol that the property in question is free from taxation.
Uztder sec. 6 of ch. 15 C. S. L. C. this institution could get a grant from the education funds.
The respondents admit that it would then not be taxable. But does the fact that they do not receive any such grant from the public funds render them liable to taxation ? I cannot see it. It is just because they are no burthen to the Government, or to the municipal authority, that they should be exempt from these taxes.
There are a number of educatiot al institutions in Montreal and other cities-that is colleges, seminaries and convents-which do not fall under said ch. 15 0.S.L.C., and which receive no grant from the government, and yet which pay no municipal taxes. Yet, this must be so under this very clause of this 41 Vic. I do not know of any other statute in the same sense. I asked counsel at the argument if they knew of any other, and they could cite none.
For, it must be remembered, sec. 77 of ch. 15 O.S.L.C , and sec. 13 of 32 Vic. ch. 16, apply only to school, and not to municipal, taxes, and sec. 712 of the Municipal Code does not apply to incorporated cities or towns. fact that such colleges and convents may be incorporated cannot affect the question.
This section of the ManicipalCode I havejust cited exempts from taxation all educational institutions or corporations, showing that, throughout all the rural districts, an educational institution need not necessarily be incorporated to be free from municipal taxes.
Has the legislature intended that what is not taxable in the rural parts of the country should be taxable in Montreal or other incorporated cities ? It would require a clear .text of law to bring me to such a conclusion.
It has been argued that the consequences of a judg- ment maintaining the appellants' contention would be J. to free from taxation a number of small private schools in Montreal.
I do not think so.
We simply declare that the property here in question is an educational institution within the meaning of the act.
I do not say that any petty school in Montreal or elsewhere would come under these terms.
The appeal should be allowed and the plaintiffs' action dismissed with costs in all the courts against them.
GWYNNE J.-The clause relied upon by the appellants as exempting their property from liability to the payment of municipal taxes in the city of Montreal, is found in an act of the legislature of the Province of Quebec, 41 Vic. ch. 6, which is intituled "An act " further to amend the laws respecting public instruc- " tion in this province," and it is enacted in amendment of sec. 77 ch. 15 of the Consolidated Statutes of Lower Canada, which is intituled: " An act respect- " ing provincial aid for superior education and Normal " and Common Schools," and the question before us is whether the property of private persons used as a private school for the education of young ladies, and conducted wholly under the direction, management and control of the private proprietors for their own benefit, as their source of income, is, by the 77th sec. of ch. 15 of the Consolidated Statutes of Lower Canada, as amended by 41 Vic. c. 6, exempted from liability to municipal taxes in the city of Montreal.
By the first five sections of this act, which consolidates into one the several statutes theretofore passed and then in force for making provision for the support of common schools, and the promotion of elementary education in the rural municipalities and in the cities of Quebec and Montreal, and for the promotion also of superior education Gwynne J. and the establishment and support of normal and model schools, a fund called " The Lower Canada super- " ior education investment fund," composed of the proceeds arising from the sale or commutation of the Jesuits estates, was created; and the revenues and interest accruing from such fund, together with a sum of twenty thousand dollars per annum taken from the Consolidated Fund of Canada, and such sum out of the common school fund of Lower Canada as, with the above, might be necessary for the realisation of eighty-eight thousand dollars per annum, were constituted a fund called " The "Lower Canada superior education income fund." By the 6th section of the act it was enacted that the said income fund, or such part thereof as the Governor in Council should from time to time direct, should be annually apportioned by the superintendent of schools for Lower Canada in such manner, and to and among such " universities," " colleges," " seminaries," " academies," " high or superior schools," " model schools " and " educational institutions other than the ordinary elementary schools," in such sums and proportions, as the Governor in Council should approve.
It was contended strongly by Mr. Kerr, on behalf of the appellants, that their school for young ladies was clearly an "educational institution" within the meaning of that term as used in the above section, and upon this assumption he argued that the same term introduced into the act by 41st Vic. c. 6 should receive a like construction, so as to embrace the appellant's school within the term as it is used in the 77th section as so amended.
But that the appellant's school does come within the term " educational institution " as used in the 6th section, is by no means to be assumed. The better opinion appears to me to be that it does not, whatevEr may be the construction of the 77th section as amended.
The fund is created for the purpose of promoting superior education alone; institutions there- J. fore which impart such education to all or to some of their scholars can only be intended
This is indicated by the title at the head of the sections numbering from f to 9 of the act, namely : " Aid to superior educational institutions." Now, the term " educational institution "
is altogether an unusual and quite inappropriate term to apply to a private person, who conducts a school upon his own property; and that no such person, nor yet the school itself which the private proprietor conducts, is meant, but on the contrary persons united together as religious or secular bodies of a corporate or quasi corporate character,. is apparent from the 8th and
9th sections.
By the eighth it is provided that no grant shall be made "to any institution owning real
"estate whose liabilities exceed two-thirds of the value
"of such estate."
The " institution," therefore, which is entitled to receive a grant must be capable of owning real estate and of incurring debts, and the term must, therefore, have a personal application.
The school property where the education is given, and which is used and occupied for educational purposes, cannot come within the term as here used.
The personality of the term is further shown in the 9th section, which provides that:- Every institution, therefore, which is entitled to a grant under the act must be capable of entertaining a desire to obtain it, and of making application for it, that is to say, must be possessed of personality.
The section then provides that " the superintendent shall not recommend any grant to any educational institution whose application is not accompanied by a report, showing," among other things-" the composition of the governing body." J- This language points to the institution entitled to receive a grant being of a corporate or quasi-corporate character, having, as such institutions have, a governing body.
" The general course of instruction and the books used."
This is required for the purpose of satisfying the superintendent that the course of instruction comes within what is esteemed superior education.
"The number of persons taught gratuitously or taught and boarded gratuitously."
The requirement is not that the report shall show whether any persons, and if so how many, are taught gratuitously, or taught and boarded gratuitously, but the report must state the number of persons taught gratuitously, seeming thereby to indicate that gratuitous education of some persons is a condition required by the act in order to show that the institution whose application for a grant is to be considered confers some public benefit to justify its receiving aid from public funds. Finally, it appears to me to be a consideration not to be disregarded that as the bodies which are in the 6th section excepted from the term " educational institutions " entitled to receive a grant are themselves institutions of a corporate and public character, the general term from which they are excepted should be regarded as of like character; the expression is " educational institutions other than the ordinary elementary schools."
In view of all of the above considerations I am of opinion that private persons conducting, as do the VOL. XII.] SUPhotiE COURT OF CANADA.
appellants, under their own sole direction, management and control, a young ladies' private school for their own sole benefit as a source of income, do not, nor does the school so conducted by them, come within oF the term " educational institution " as used in the sections of the act numbered from 6 to 9 inclusive; nwynne 1. and that, therefore, no argument whatever in. support of the appellant's construction of the 77th sec. of the act, as amended by 41 Vic. ch. 6, can be founded upon the assumption that their school is such a one as would qualify and entitle them to receive a grant under these sections.
The clauses relating to assessment and rates commence with 73, by which it was enacted that it should be the duty of school commissioners, and of the trustees of dissentient schools in their respective municipalities, to cause to be levied by assessment and rate in each municipality a sum equal to that allowed out of the common school fund for such municipality.
This clause has no application to the cities of Montreal or Quebec, special provisions being made for these cities by the sections numbering from 128 to 134, which provided that no rate at all should be levied for school purposes in those cities, but that the aid to be furnished to common schools therein should be by grant from the general city funds; but as these sections have been repealed, and others substituted for them, by 32nd Vic. ch. 16, I shall not further refer to them, nor for the present shall
I refer to sec. 77 further than to say that as it relates as it stood prior to the amendment enacted by 41. Vic., only to exemptions from liability to taxes imposed by see. 73, it had no application to the city of Montreal in which the property f the appellants is situate.
The act 32nd Vic b. 16 is intituled: "An act to amend the law respectiu g education in this Province,"
and its enactments must needs be considered in connection with those of ch. 15 of the C.S.L.C. whenever the construction of the latter becomes now under consideration.
By the 13th section of this act it was enacted that the school commissioners of the majority in any school municipality should alone have the power of levying taxes on the lands and real estates of Gwynne J. corporations and incorporated companies, but that they should annually pay over to the trustees of the minority a proportion of all the taxes levied by them on such corporations or companies in the same ratio as the government grant for the same year should have been divided between them and the said trustees, and that instituted; that By the 21st section, the 133rd sec. of ch. 15 of the C. S. L C. and the three first sections of 31 Vic. ch. 22, are repealed.
By the 22nd it was enacted that the annual grant to be paid for the support of schools in the cities of Quebec and of Montreal under the 24th, 88th and 89th sections of the 15th chapter of the Consolidated Statutes of Lower Canada should be in the proportion of the populations of the said cities and should be apportioned by the Minister of Public Instruction, or the Superintendent of Education for the time being, between the Roman Catholic and Protestant Boards of School Commissioners according to the relative proportions of the Roman Catholic and Protestant populations in the said cities according to the then last census, and by the 23rd section it was enacted that the corporations of the cities of Quebec and Montreal should pay for the support of the schools in the said cities a sum equal to three times the amount of the share of the grant coming to the schools of the said city, and that the sum coming "'vynne J. to each of the Roman Catholic and Protestant Boards of School Commissioners under provisions for apportionment contained in the act should be paid by the said corporations by two equal semi-annual payments to the secretary- treasurers of the said boards irrespective of the collection of the tax provided for by sec. 24. By this section (24) it was enacted that the corporations of the cities of Quebec and Montreal should levy annually by assessment on real estate in the said cities a tax sufficient to cover the amount payable by them for the support of schools under the above provisions, and that the said tax should be collected and recovered at the time and in the manner provided for the other city taxes on real estate, and the said tax should be known as the " city school tax."
Then follows section 25, which enacts that :
The object and effect of this last section was simply to exempt property in the cities of Quebec and Montreal from the payment of " the city school tax " under the like circumstances, and only under the like circumstances, as like property in the rural school municipalities was exempted from payment of school tax by section 13.
The exemption there is found in a section relating to the levying of school tax on lands and real estate of corporations and incorporated companies.
The religious, charitable or educational institutions, or corporations whose property, occupied by them for the purpose for which they were instituted, is exempt from taxation under the section, are the same institutions whose property, held by them for the purpose of deriving J income therefrom, is not exempted, but shall be taxed by the school commissioners of the religious body to which such corporations or institutions belong, and to the exclusive benefit of such religi- "ous body.
The section then provides that " in the event that the religious body to which such corporations or institutions belong is not apparent," then such properties-that is the properties of such corporations or institutions from which they derive income-shall be dealt with as the property of other corporations or incorporated companies.
The term "educational institutions and corporations," as used in this section, plainly refers to the owners of the property which is exempted, and it must, in my opinion, be construed as being limited to corporations. It is wholly inapplicable to the case of a private person using his property for the purpose of conducting a private school thereon for his own profit.
We do not speak of the proprietor of a private school as being "instituted " for that purpose. -He cannot be the "educational institution " referred to in the section. So neither can the school which is kept by him on his own property-for the property exempted by the section is the property of the " educational institutions." The term can be applied solely to the owners of the property exempted, and not to the property itself which is occupied as a school
Then again these words " educational institutions or corporations," used as they are in connection with "religious institutions or corporations," and with charitable institutions or corporations," plainly, I think, show that what was intended by the term was an aggregation of persons belonging either to the Roman Catholic or Protestant religions united together as a body for the purpose of religion, or of charity, or of education, which aggregation of persons so united together are spoken of as institutions or corporations instituted for one of the above purposes, that is to say, as corporations, and the same construction must be put upon the term wherever it occurs in the ch. 15 of the Consolidated 6tatutes as amended by 32 Vic. ch. 16.
Now, as to the operation of section 77 as it stood prior to the passing of 41 Vic. ch. 6, and I think it better that we should refer to the French copy of the act upon a question of this nature :- *
A The word "dedicated," as it seems to me, would be a more exact translation into English of the word " consacres " ts here used than " set apart."
" Consacr6s A 'educalion ou culte religieux." These words, so corrected convey to my mind the idea that a destination to a use in which the public, or a considerable portion thereof, were directly interested, as they would be in the case of a building dedicated to religious worship, was intended rather than the use, temporary it might be, by a private person of his own private property to teaching school therein for his own profit; so likewise the other terms used in the same sentence to designate the other descriptions of property intended to be exempted being all of a public nature, seem to me to point in the same direction.
" Presbytdres " represents a building, which being for the sole occupation, as dwelling houses, of ministers of religion engaged in conducting religious worship, and to be enjoyed as part of their stipend, may be said to be so annexed buildings dedicated to public vorship as to partake of their public nature, so " toutes institutions charitables fpitaux imcorpors, ainsi que les cimitidres," are all of a public nature, so that in construing the words " les bdtiments consacris b l'education" in this connection, the J. maxim noscitur a sociis seems to apply.
Moreover, as the act is one relating to public grants in aid of superior education and normal and common schools, the natural construction of the words is to regard them as applying to buildings dedicated to the education to aid which the act is passed, and as exempting from liability to a public tax, levied in aid of such education, property which is dedicated to the purpose in aid of which the tax is levied; and the result, in my opinion, is that private property such as that of the appellant's, occupied as a school by private perons engaged in and pursuing the profession of teaching schooil for their own benefit and profit, as their source of income, was not exempt from liability to rates levied in aid of the public schools either in the rural municipalities or in the city of Montreal.
Then as to exemption from liability to municipal taxation, the municipal code, which applies only to the territory of the province of -Quebec not included in cities and towns incorporated by special statutes, exempts only the following property:- 1. Property belonging to Her Majesty or held in trust for her use, and property owned or occupied by municipal corporations.
2. Property owned by or occupied for the use of the federal or the provincial governments.
3. Property belonging to fabriques or to religious, charitable or educational institutions or corporations, or occupied by such fabriques, institutions or corpora. tions for which they were established, and not possessed solely by them to derive a revenue therefrom. 4. Burial grounds, bishops' palaces, parsonage houses, and their dependencies.
5. All property belonging to Tailway companies, &c. The property in the third of the above paragraphs, which is the only one to which we have occasion to J refer, is wholly framed upon the model of and, with the exception of the addition of the word " fabriques," taken almost verbatim from. the 25th section of 32 Vic. ch 16, which defines the property which alone is exempted from the rate by the 24th section of that act directed to be levied by the corporation of the city of Montreal and called the "city school tax;" and the words " educational institutions," as used in the above paragraph in the Municipal Code Act, which is itself but a consolidation of the previous acts having relation to the same subject, must receive, as indeed from their context they require, a like construction as they would receive in 32 Vic. ch. 16, from which, for the purpose of consolidation into the Municipal Code, they are taken, and as so used in the Code they clearly apply to the owners of the property which is to be exempt, and not to the property itself; moreover, in my opinion, they, by the context in which they appear, apply to an aggregation or association of persons, religious or secular, united together in a corporate capacity to carry out certain purposes of religion or charity or education, for which they were established or founded or united together as an association, and cannot be construed as including a private person, or private persons like the appellants, conducting a private school in order to derive an income therefrom as their means of supporting themselves, and the conclusion is that a person conducting such a school in a rural municipality is not, nor is his property used by him as such school, exempted from tax ition by the Municipal Code, and if such property is exempt from taxation, either for school or municipal rates, in any rural municipality, it must be by force alone of 41st Vic. ch. 6, and if in any city or town, it must be either by the express terms of the act incorporating such city or town, or in some act amending the same, or by force of Vic. ch. In acts incorporating cities and towns already incorporated, there does not appear to have been adopted any uniform clause expressing in identical terms in every act the property intended to be exempted, and yet it is, I think, inconceivable that by the difference in the language used in some of these the legislature intended to exempt property of a private person used by him for his own private profit, if used for giving private tuition therein, or as a private school as a source of income, either from contribution to the fund provided for the maintenance of common schools in which the general public are interested, or from municipal taxes, which enhance the value of the premises by the uses of which he obtains his income, and, no doubt, also his profits, in which the public have no interest whatever.
If such an intention had been entertained it would have been unequivocally expressed.
In the 29 Vic. ch. 57 (A.D. 1865) which is an act consolidating into one act all acts and ordinances relating to the corporation of the city of Quebec, the exemption from taxation is provided for by the 25th section, in the following terms :- In the act incorporating the town of Longueuil, 37 Vic. ch. 19, it is expressed in language identical with that used in the Municipal Code Act. In 37 Vic. ch. VOL. XIl.]
SUPREME COURT OF CANADA.
51, which is an act to revise and consolidate the charter of the city of Montreal and the several acts amending the same, there is no clause of exemption of any property, but in 38 Vic. ch. 73 (1875) which was passed in OF amendment of 37 Vic. ch. 51 there is, and it is as follows:- Gwynne J. Sec. 3. Les 6glises, presbythres et palais 4piscopaux sont exempts de toutes taxes, les 6tablissements occuphs pour des fins de cbarit6 sont exempts de taxes municipales ordinaires et annuelles. In this act the intention of the legislature seems to have been that as to the tax called the " city school tax " exemption was provided by 32 Vic. ch. 16, and that as to municipal taxes there should be no exemption other than those specified in the above clause of 38 Vic. ch. 73.
In 38th Vic. ch. 76 (187.5), incorporating the city of Three Rivers, the exemption clause is thus expressed: Tout bien consacr6 an culte public ainsi que tout cimetikre. Toute maison d'4cole publique et le terrain sur lequel elle est construite.
Toute maison on tout 6tablissement public d'6ducation ainsi que le terrain sur lequel il est construit.
Tous bitiments, terrains et propri6t6s occuphs ou poss6d~s par des h6pitaux ou autrei 6tablissements de charit6.
In the act 39 Vic. chap. 79, incorporating the city of Hull, the exemption is thus expressed;
4. Toute maison d'4cole publique et le terrain sur lequel elle est construite.
Tout 6tablissement ou maison d'6ducation ginsi que le terrain sur lequel il est construit.
Tous batiments, terrains et propri6t~s occuphs ou poss6dds par des h6pitaux on autres tablissements de charit6 ou d'6ducation, et non poss6dds pour faire des profits.
It was argued that the above clause No. 5, tout diab lissement au maison d'6ducation, & c., shows an intention to exempt every school house of whatever nature, including private schools conducted for private gain as a source of income to the private owner, but no such construction is, in my judgment, at all necessary, and if not necessary the clause should not be so construed. The natural construction, in my opinion, is that in the absence of an express intention to the contrary the properties intended to be exempted are those referred to in the acts relating to public instruction, that is to ch. awynne J. 15 of C. S. L. C. and the acts in amendment thereof, as '32nd Vic. ch. 16.
The previous clause exempted only the common and elementary schools and the land on which they are built.
This left "universities," "colleges,"
&c, &c., the property of religious communities and incorporated institutions, unprovided for. It is reasonable to construe clause 5 as introduced to cover those, and we are not, in my opinion, justified in construing it to include property of private persons, to exempt which no intention whatever otherwise appears anywhere. To correct in the future the want of unitormity in the clause relating to exemptions in acts of incorporation, provision was made in an act passed in 40 Vic. ch. 29, and intituled: " The Towns' Corporations general clauses Act."
By the 1st section of this act it was enacted that the provisions of the act should apply to every town, corporation or municipality which should thereafter be established by the legislature, and that they should constitute part of the special act relative to such town so as to form with it one and the same act, unless they be expressly modified or excepted; and by sec. 2 it was enacted that for any provisions of the act not to be incorporated in the special act, the special act must expressly declare that such provisions, specifying them by their numbers, should not form part thereof, and that the act should be interpreted accordingly; and the general exemption clause was enacted as follows in sec. o25:- The following property shall not be taxable:- Thus adopting the precise exemptions, and almost in identical language, as those named in the Municipal Code Act. Then by see. 441 it is enacted that the act might apply to city corporations which should in future be incorporated, and in such case the word town shall be replaced by the word city every time that the meaning of the act thus applied should require it. Provision was thus made for uniformity in so far as to place the rural municipalities and all corporations or municipalities of cities or towns to be created in the future upon the same tooting as to exemptions, namely, these enumerated in this act, and these only, thus manifestly, as it appears to me, excluding the idea of any intention that any property of any private persons engaged as the appellants are in keeping school thereon for their own profit, and as their means of deriving income thei efrom, should be exempted.
But though provision was thus made for uniformity as regards city or town corporations or municipalities to be created in the future, the want of uniformity caused by the difference in the several exemption clauses in the acts or charters relating to cities and towns already incorporated still remained
The provisions of 52 Vic. ch. 16 as to common schools in the cities of Montreal and Quebec were expressly incorporated into the act of incorporation of the city of Hull, 88 Vic. ch. 79 sec. 8 2, and possibly into the acts incorporating other cities and towns. By 38 Vic. ch. 76, the corporation of the city of Three Rivers were constituted the " School Commissioners of the city of Three Rivers," in which corporate name, and not in that of the city J. corporation, they were to act when acting as school commissioners; but as regards municipal taxes, which were regulated by the acts of incorporation of cities and towns, there was no uniformity. Now the removal of this want of uniformity was as necessary as regarded cities and towns already incorporated as those to be incorporated under the provisions of 40 Vic. ch. 29; and this seems to me to afford the key to the construction of the 26th sec. of 41 Vic. ch. 6, which was, in my opinion, enacted by way of amendment of sec. 77 of ch. 15 of C. S. L. C. for the purpose, by this short addition imported into the section, of providing that the matter of the amendment thus introduced should be read as part of that act notwithstanding any provision there might be open to a contrary construction in any act or charter of incorporation of any city or town (this being the mode of creating such municipalities) whether such act or charter was passed previously to the passing of ch. C. S. L. C., or in the interval between the passing of that act and of 41 Vic. c. 6; thus by a short method placing the enactments relating to exemption from taxation both as to school and municipal taxes in cities and towns already incorporated upon the same footing as was provided with regard to the future by 40 Vic.,ch. 29, and with regard to rural municipalities by ch. 15 as amended by 32 Vic. ch. 16, and by the Municipal Code Act.
The 2nd sub-section of sec. 77 of ch. 15 C. S. L. C., as amended, reads as follows:
et The words toutes maisons d'dducation qui ne regoivent aucune subventi n de la corporation, are, in my opinion, not well translated " every educational institution," as they are in the English version, for in every other part of the act in which that term occurs it applies to persons the owners of property consacrds b I'dducation, and not to the property itself so dedicated. What is intended by the words qui ne repoivent aicune subvention de la corporation on municipali/d elles sont situdes it is difficult to understand ; no explanation has been given nor any satisfactory one suggested. The words, according to their ordinary import, convey the idea of a qualification of, or exception from, the generality of the previous words, toutes maisons d'dducation, as that it is not actually toutes maisons d'iducation which is intended, but only such as do not receive a subvention from the corporations in which they are situate; but thii construction would seem to convey an intention, by implication, that only those who do not receive a subvention from the corporation in which they are should be exempt from taxation, and that those who do receive such subvention should not be.
The only maisons d'dducation which can be said to receive a subvention from the corporation in which they are situate are the common schools in those cities whose acts of incorporation and the acts affecting the corporations are similar to those of the cities of Montreal, Quebec and Hull, whereby the aid given to common schools is declared to be by grant out of the general funds of the respective corporations, irre- W1 @ spective wholly of the levy of any tax for the purpose, such grant being subsequently reimbursed to the corporation making it by the levy, together with the ordi- J. nary municipal taxes, in each year of what in 32 Vic. ch. 16 is called the " city school tax." If these common schools, which may be said to receive subvention from the corporations in which they are situate, are to be construed as the maisons d'ducation to be contrasted with those who do not receive any subvention, then the words, qui ne repoivent aucune subvention," &c., &c., might well mean the universities colleges, seminaries, &c., &c, mentioned in the other sections of the act ch. 15; but why refer to them in this manner ? For, by so doing, according to ordinary construction, the intention by implication would arise that the common schools should not be exempt, which could not have been the intention.
It was argued that the words were intended to cover private schools like that of the appellant's, for they do not receive aid from the corporations in which they are situate; but this view cannot be adopted, for- 1. No act of incorporation of any municipality, nor any act, authorizes the application of the moneys of the corporation in aid of private persons keeping a private school; and it would be senseless to treat persons who therefore could not receive any such aid to be intended under this form of expression.
2. Applying the words to them or to their schools would still leave unremoved the difficulty of subjecting to taxation by implication these public schools in cities which may, for the reasons aforesaid, be said to receive subvention from the corporations in which they are situate; and- 3. Such a construction would be utterly subversive of the intent of preserving uniformity in the case of acts of incorporation of cities and towns hereafter to be incorporated appearing in 40 Vic. ch. 29, which exeludes all idea that the schools of private persons should be exempt.
Whatever may have been the object of introducing .1. these words, they seem, at any rate, I think, to indicate that the " maisons d'6ducation " intended were those situated in city or town corporations or municipalities;
these words "corporations or municipality " are the precise words used in 40 Vic. ch. 29 to signify a town or city corporation.
By the 1st section it is enacted that the provisions of the act shall apply to " every town, corporation or municipality," and by sec. 411 " every city, corporation or municipality."
These words " seront exempts de cotisation municipales et sculaires," &c., &c., confirm me in this view. Those words impart, to my mind, that the maisons d'dducation intended to be exempted were these which, by reason of certain provisions to the contrary contained in some act or charter, were, or were deemed to be, not exempted.
Now, the only provisions of this nature were contained in some of the acts of incorporation of cities or towns, or in some acts in amendment of such acts of incorporation, which provisions being removed, as in the view which I take of the amendment they are, a uniformity is established between exemptions as to municipal and school taxes in the rural municipalities and in incorporated cities and towns, and the provisions of 40 Vic. ch. 29.
Reading then sub-sec. 2 of sec. 77 of ch. 15, as amended, as one section, it should be construed as applying only to maisons d'dducation where education is given by the institutions and corporations mentioned in the act, and as exempting both from municipal and school
Statutes and regulations cited
-
Unresolved citations
- section 2
- section 26
- section (24)
- section 25
- section 13
- section 77