City of Montreal v. Bélanger

ELZElAR BRLANGERAND OTHERS..RESPONDENTS. ON APPEAL FROM THE COURT OF QUEEN'S BENCH, PRO- VINCE OF QUEBEC, APPEAL SIDE.

Municipal institution - Expropriation - J.-This is an appeal from a judgment of the Court of Queen's Bench granting the respondents' petition to quash an assessment roll relating to the expropriation required for the widening of Notre- Dame Street east in Montreal.

The Supreme Court had dismissed it. The respondents' main ground of complaint against the said assessment roll is that it puts on the north side of the street upon which their lots are situated a larger proportion of the cost of this local improvement than on the south side of it. After a minute consideration of the divers and much confused statutory enactments bearing on the question, I have come to the conclusion that the Superier Court was right in holding that the respondents' claim is unfounded and that the proprietors on the south side should not be taxed for this improvement TH at the same rate as those on the north side, when, it is not denied, th'ey do not benefit from it at the same rate. .

The policy of taxation of this nature rests upon the enhancement of the value of the properties resulting from the local improvement that necessitated it, and there is nothing in this case to justify a departure from that fair and equitable policy.

Cooley, on Taxation, 448-459.

The widening in question of Notre-Dame Street East was authorised in 1890 by 54 Vict. ch. 78, sec. and the cost of it was by that Act to be levied and paid by the proprietors on each side of the street to a depth of fifty feet, one half by the city and one half by the said proprietors in-accordance with sec. 243 of the charter of the city, 52 Vict. ch. 79.

An amendment passed in 1892, & 56 Vict. ch. 49, sec. 22, restricts that division of the cost of the improvement. to a certain part of the street, without otherwise altering it, and authorises new assessment rolls to give effect to the said amendment.

But by 57 Vict. ch. 57 the apportionment of the cost thereof was altered, and five-eighths are now to be paid by the city and the other three-eights by the proprietors on each side of the street. It is on this last enactment that the respondents base their contention that both sides of the street have to pay in the same proportion the cost of the improvement, though both sides are not improved in the same proportion.

I fail to see any foundation whatever to support the proposition that this last statute can be so construed. All that it does, and all that it purports to do, is to make the city pay five-eights instead of one half, without altering in any way the usual mode of assessing amongst the proprietors the. three-eighths that are left to be paid by them, and to use the very words of sec. 243 of the charter, expressly extended to this work by the Act of 1890, "the rules regulating assessments in general." - Now these rules are (by sec. 209 of the charter) that the city when it orders that the cost of a local improvement shall be paid in whole or in part by the parties interested shall be assessed upon their properties proportionately to the benefit that the improvement brings to them; sees. 209, 213. And says sec. 228: Now, why the benefit to be derived from the widening of Notre-Dame Street should not likewise be taken into account, and the north side be made to pay more than the south side if it benefits more from it, is what I entirely fail to see.

In the absence of a clear and express enactment to support it, the respondents' proposition to the contrary cannot be countenanced. What has been declared by the legislature and all that has been so declared in the matter is that 50 feet the properties on each side of the street are specially benefitted by this widening of the street, and that three-eighths of the cost thereof should be borne by the owners of the said properties, but there is nowhere to be found the enactment that the assessment of these three-eighths should be made regardless of the benefit that accrues to each of these properties from this improvement, or, what the respondents' contention amounts to, that the south side proprietors should pay more than the north side ones, for, as they benefit less than the north side, it is obvious that to make them pay at the same rate would be to make them pay more.

Special benefits to the property assessed, that is benefits received by it in addition to those received .

by other properties liable to the assessment, is the true foundation upon which these local assessments rest; Dillon Mun. Corp.

Here, the legislature has declared what are the properties generally benefited by the widening of this street, and to what extent as between them and the corporation of the city the cost it should be borne, but it has left with the assessors, as usual in such cases, to apportion the burden according to the benefit and to determine what part of that benefit each parcel of these properties actually and separately receives, and for that purpose, by sec. 57 Vict. ch. 57, the assessors are specially empowered to give effect to the alterations introduced by the Act. The fact that by the previous roll both sides of the street had been assessed at the same rate cannot affect the case.

That roll having been set aside, the assessors had the right by the new roll to act as they did, if, as a fact, not open to review here, they found that the north side had benefited more than the south side from this improvement.

Another ground of complaint against this assessment roll is made by one of the respondents, B6langer, based upon the fact that he is charged $381.60 more by this roll than he was by the preceding roll which was set aside by the legislature.

He contends that the subsequent increase in value of his property should not have been taken into account by the new roll. The considerants of the judgment of the Court of Appeal do not notice this objection, and there is nothing in it. There is no evidence that the respondent urged this ground of complaint before the Board of Revisors; the assessment was duly confirmed by the statutory tribunal; and for him now to ask that a roll on a valuation of over half a million dollars should be set aside because he is assessed $381 more than he thinks he ought to have been, seems to me a preposterous demand.

The appeal is allowed with costs and the judgment of the Superior Court restored.

.-I entirely concur in the judgment of the court below to which I cannot usefully add anything. I must therefore dissent from the present judgment.

was prevented by illness from taking part in the judgment.

Appeal allowed with costs.