Western Racing Association v. Woollatt and Wilson

Plaintiff removed from the city of Toronto to the township of York on December 14, 1923. He paid an income tax to the City of Toronto in 1923 and to the Township of York in 1924. An assessment roll for the City of Toronto was prepared and settled in 1923, pursuant to by-law under s. 57 of the Assessment Act, R.S.O. 1914, c. 195, and plaintiff, then resident in Toronto, was entered on this roll for income. This assessment of 1923 was, pursuant to subs. 5 of said s. 57, adopted by the city council of 1924, by by-law passed February 28, 1924, and the City levied on plaintiff an income tax in 1924, which he paid under protest. He now sought repayment.

Held (reversing judgment of the Appellate Division, Ont., 63 Ont. L.R. 397, which, by equal division, sustained the judgment of Widdifield, Co. C. J., dismissing the action), that plaintiff should succeed. The income assessed in 1924 was the income for 1924 (City of Ottawa v. Egan [19231 SiC.R. 304) notwithstanding 12-13 Geo. V, c. 78, e. changing subs. 2 of s. of said Assesment Act. That subsection, as so changed, merely made the amount of the previous year's income conclusive as to the amount of income to be assessed in the current year, instead of (as formerly) a mere basis for estimating the amount for the current year. The income to be assessed was still the income for the current year. Therefore, under its by-law of February 28, 1924, the city council was assessing and levying on plaintiffs income of 1924; and in doing so was attempting to exercise jurisdiction outside the municipality, contrary to s. 249 of the Consolidated Municipal Act, 1922, was going beyond the jurisdiction given it by e. 297 of said Act to " levy on the whole rateable property within the municipality," and was attempting to assess plaintiff in respect of income in a municipality in which he did not reside, contrary to s. 12 of said Assessment Act. Subs. 3 of s. 95 of said Assessment Act, as enacted by 7 Geo. V, c. 45, s. 9, did not give power to the City to collect from plaintiff a tax on his income of 1924; that subsection only applies to rates properly assessable, and not to rates levied on an income not assessable at all. The fact that the assessment roll of 1923 was finally revised and settled without an appeal by plaintiff, then resident in Toronto, did not make the matter res judicata (Hagereville v. Hambleton, 61 Ont. L.R. 327, distinguished). *PRESENT:-Anglin C. J. C. and Newcombe, Rinfret, Lamont and Smith JJ.