Majority
APPEAL by the plaintiff from the judgment of the Appellate Division of the Supreme Court of Ontario (1) dismissing (on equal division of the court) his appeal from the judgment of Widdifield, Co. C. J., dismissing his action for return of money paid, under protest, to the defendant, the City of Toronto, for income tax.
The material facts of the case are sufficiently stated in the judgment now reported. The appeal was allowed with costs.
The appellant in person (with him John C. M. Macbeth) for the appellant.
Judgment of the Court
J.-The appellant for some time had been a resident of the City of Toronto, but, on the 14th December, 1923, he- removed to the Township of York, where he has since continuously resided. He paid an income tax to the City of Toronto in 1923, and to the Township of York in 1924. The City of Toronto assessed and levied on him an income tax in 1924 of $176.46, which he paid under protest on the 9th day of March, 1925, and which he seeks to recover with interest in this action.
The trial judge dismissed the action, and this judgment was sustained by the First Appellate Division (1), the Court of four being equally divided.
Section 249 of the Consolidated Municipal Act, 1922 (now s. 258) is as follows:
Section 297 (1), now s. 306 (1), provides that,
Section 300 (now s. 309) provides that,
Sections 11 and 12 of R.S.O. 1914, c. 195, provide as SifroN follows:
Subject to the exemptions provided for in sections 5 and 10 (not material here)- (a) Every person not liable to business assessment under section 10 Smith J.
shall be assessed in respect of income;
((b) and (c) not material here.)
(2) Where such income is not a salary or other fixed amount capable of being estimated for the current year, the income of such person for the purposes of assessment shall be taken to be not less than the amount of his income during the year ending on the 31st December then last past. (1) Subject to subsection 6 of section 40 (not material here), every person assessable in respect of income under section shall be so assessable in the municipality in which he resides either at his place of residence or at his office or place of business.
Section 50 of the Assessment Act, R.S.O. 1914, c. 195, provides that, subject to ss. 56 to 60, the Assessor shall begin to make his roll in each year not later than the 15th day of February, and complete it not later than the 30th day of April.
Section 57 provides that the council of a city may, by by-law, provide for making the assessment at any time prior to the 30th September, and may fix prior and separate dates for the return of the roll of each ward, and shall provide for holding a Court of Revision.
Subsections 3 and 4 provide that the County Judge may sit throughout the year to hear appeals as therein provided.
Subsection 5 provides that,
The assessment so made and completed may be adopted by the council of the following year as the assessment on which the rate of taxation for such following year shall be fixed and levied, and the taxes for such following year shall in such case be fixed and levied upon the said assessment.
7 Geo. V, c. 45, s. 9, amended s. 95 of the Assessment Act by adding subs. (3) as follows:
(3) Subject to the provisions of section 118 (now every person assessed in respect of business or income upon any assessment roll which has been revised by the Court of Revision or County Judge shall be liable for any rates which may be levied upon such assessment roll notwithstanding the death or the removal from the municipality of the person assessed or that the assessment roll had not been adopted by the council of the municipality until the following year.
An assessment roll for the City of Toronto was prepared and settled in 1923, pursuant to by-law under s. 57, and the appellant was entered on this roll for income quite properly, as he was a resident of Toronto in that year and in receipt of the income mentioned in the roll. He made no appeal, and had no ground for appeal. This assessment of 1923 was, pursuant to subs. (5) of s. 57 quoted above, adopted by the council of the following year by by-law No. 9942, passed 28th February, 1924, and by this same by-law the council exercised the power given it smithJ by s. 297 of the Municipal Act, and nowhere else, to "assess and levy on the whole rateable property within the municipality the sum required for the current year." The effect of subs. (2) of s. 11 of the Assessment Act as quoted above was considered in City of Ottawa v. Egan (1). The City of Ottawa assessed and levied in 1921 an income tax on Sir Henry K. Egan in respect of moneys received from an industrial company in 1920. It was established that no similar amount was received from the company in 1921.
The Appellate Division of the Supreme Court of Ontario held that this amount must be deducted from the income assessment, and this was affirmed by the unanimous judgment of this Court.
The decision was that the income to be taxed was the income for the current year, and that the income of the preceding year was only a basis from which to estimate the former. Duff J. says, at p. 309:
We must accept this as still the law, unless it has been changed by subsequent legislation.
Subsection (2) of section 11, quoted above, was repealed by 12-13 Geo. V., c. 78, s. 11, and the following substituted:
This provision has remained unchanged, and is now subs. (2) of s. 10 of the Act. No other statutory change material here seems to have been made.
Has, then, this change in subs. (2) entirely altered the principle of income assessment expressed in the legislation prior to this change as laid down in City of Ottawa v. Egan (1), and has it had the effect of enacting that, in case of a city proceeding under s. 57 (5), the income to be assessed shall be not the income for the current year, but the income for the previous year? I am of opinion that
S.C.R.]
the substituted subsection (2) has no such effect. It merely makes the amount of the previous year's income conclusive as to the amount of income to be assessed in the current year, instead of a mere basis for estimating the amount J. for the current year. The income to be assessed is still the income for the current year, to be fixed at the amount of the previous year's income, and not subject to be changed to the actual amount of the current year's income, as previously.
It follows, therefore, that the decision in City of Ottawa v. Egan (1) applies in this case, and that the assessment in question was on appellant's income of 1924, during which year he was a resident of another municipality, and was properly assessed there for that income.
The city council, therefore, in assessing and levying by its by-law of 28th February, 1924, on appellant's income of 1924, was attempting to exercise jurisdiction outside the municipality that it represented, contrary to s. 249 of the Municipal Act; was going beyond the jurisdiction given it by s. 297 to " levy on the whole rateable property within the municipality "; was attempting to assess the appellant in respect of income in a municipality in which he did not reside, contrary to s. 12 of the Assessment Act; and was thus attempting to subject the appellant to taxation twice on his income of 1924.
It is contended, however, that, notwithstanding these sections, the added subs. (3) of the statute of 1917, quoted above, gives the city council power to collect from the appellant a tax on his income of 1924.
I agree with the view expressed by Hodgins, J. A., in the Appellate Division that this subsection only applies to rates properly assessable, and cannot apply to rates levied on an income not assessable at all, as in this case. It is further argued that, because the assessment roll of 1923 was finally revised and settled without an appeal by the appellant, then resident in Toronto, the matter is res judicata, and the case of Hagersville v. Hambleton (2), is relied on. There the defendant was assessed for income and appealed to the Court of Revision on the ground that he was not a resident; his appeal was dismissed and he made no further appeal. In an action by the corporation for these taxes, defendant pleaded that there was no right sr to tax, because he was not a resident, and the decision VF was that, as the Court of Revision, being a court of coMpetent jurisdiction, had decided that point, that decision Smith J. was final.
I am quite unable to see that this decision has any application to the present case. We have in question here the assessment of appellant's income of 1924. The assessment roll of 1923 had to do with the income of 1923, and the Court of Revision for that year had no jurisdiction to deal with the income of 1924. Appellant was properly placed on the 1923 roll for the income appearing there. He could not appeal successfully against being placed there for that income, and he clearly could not have appealed the'i against being assessed for the same amount f-in 1924, by by-law of that year. The assessment and levy on his income for 1924 were first made by by-law of 28th February, 1924, and there was no tribunal to which he could appeal against that improper assessment and levy except the ordinary courts to which he has resorted.
The only passage in the judgments in Hagersville v. Hambleton (1) that seems to me to have any application to this case is the quotation by Riddell J. from Board v. Board (2), as follows:
The appeal is allowed with costs, and there will be judgment for the appellant (plaintiff) for the amount claimed with interest and costs throughout.
Appeal allowed with costs. Solicitors for the appellant: MacBeth & MacBeth. Solicitor for the respondent: C. M. Colquhoun.
*M
OF FORD CITY...................APPELLANT; AND
THE FORD MOTOR COMPANY OF
R
CANADA, LIMITED..........
...
R
OD ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME ONTARIO
A-semnent and taxation-Assessability of gantry crane-Assessment Act, Ont., R.S.O. 1927, c. 288, s. 1 (h), 4 (19)- " Real Property"- Exemption of "machinery used for manufacturing "-Exception from exemption, of " machinery used for the production or supply of motive power."
The judgment of the Appellate Division, Ont., 63 Ont. L.R. 410, holding that the gantry crane on the respondent's premises was not assessable or liable to taxation under the Ontario Assessment Act, R.S.O. 1927, c. 238, was affirmed, it being held that the subject of assessment clearly fell within subs. 19 of s. 4 of said Act, and was not taken out by the exception; the movable part of the crane, if it should not be regarded as a chattel and not within s. 1 (h), was "machinery used for manufacturing," and not "machinery used for the production or supply of motive power."
APPEAL by the Corporation of the Town of Ford City from the judgment of the Appellate Division of the Supreme Court of Ontario (1) whereby the judgment of the Ontario Railway and Municipal Board, upholding the judgment of the senior Judge of the County Court of the County of Essex affirming the assessability or liability for taxation under the Ontario Assessment Act, R. S. 0., 1927, c. 238, of the gantry crane on the respondent's premises, was set aside and it was declared that the gantry crane was not assessable or liable to taxation under the said Act. Bernard Furlong for the appellant.
H. L. Barnes for the respondent.
On the conclusion of the argument for the appellant, and without calling on counsel for the respondent, the judgment of the Court was orally delivered by
*PRSENT:-Anglin C. J. C. and Duff, Newcombe, Lamont and Smith JJ.
Ont. L.R.
Statutes and regulations cited
-
Unresolved citations
- Section 249 of the Consolidated Municipal Act, 1922
- s. 258
- Section 297
- s. 306
- Section 300
- s. 309
- Sections 11
- 12
- sections 5
- 10
- section 10
- section 40
- Section 50 of the Assessment Act
- ss. 56
- 60
- Section 57
- s. 9
- s. 95 of the Assessment Act
- subs. (3)
- section 118
- s. 57
- subs. (5)
- s. 297 of the Municipal Act
- subs. (2)
- s. 11 of the Assessment Act
- Subsection (2)
- section 11
- s. 11
- s. 10
- subsection (2)
- s. 249 of the Municipal Act
- s. 297
- s. 12 of the Assessment Act
- s. 1
- s. 4 of said Act