RIDDELL, J.A.:—The appellant is the proprietor of the well- known race-course known as the Woodbine, and is appealing against the decision of the Railway and Municipal Board, whereby its property was ordered to be assessed for $765,308, being $565,308 on the land and $200,000 on the buildings ; it was further to be assessed as "‘business assessment’’ on $191,325.
The property of the appellant is situated in the eastern part of the city, much of it being land left by the recession of the lake; and its extent is some 85 or 86 acres.
The appeal is on two lines, (1) as to the assessment on the land and buildings, and (2) as to the "‘business assessment.”
As respects the land, the Assessment Act, R.S.O. 1927, c. 238, sec. 4, expressly declares that, "‘all real property in Ontario . . . shall be liable to taxation, subject to’’ specified exceptions, none of which is applicable here ; and the sole question is the ‘‘actual value;’’ sec. 40(1). The. actual value is to be determined by the evidence, and, not only the present use of the land and the benefits derived therefrom by the owner, but all the potentialities are to be taken into consideration.
The principle is precisely the same as in expropriation cases, damage cases, &c., as to which Cripps on Compensation, 7th ed., pp. 164-5, gives the rules, citing such cases as Cedar Rapids Mfg. & Power Co. v. Lacoste (1914) 16 D.L.R. 168; Re Lucas c Chesterfield Gas c Water Bd. [1909] 1 K.B. 16; Fraser v. Fraserville (1917) 34 D.L.R. 211; Trent-Stoughton v. Barbados Water Supply Co. Ltd. [1893] A.C. 502. The Ontario cases are usefully collected in 2 C.E.D. (Ont.), pp. 601-2. See especially Re Macpherson & Toronto (1895) 26 O.R. 558; James v. Ont. & Que. Ry. Co. (1885) 12 O.R. 624; 15 A.R. (Ont.) 1; Turnbull Real Estate Co. v. The King (1903) 33 8.C.R. 677. " " Land which may probably be used for building purposes must not be valued on the same basis as purely agricultural land:” The Queen v. Brown (1867) L.R. 2 Q.B. 630; South Eastern Ry. Co. v. Cooper [1924] 1 Ch. 211.
It is, to my mind, abundantly manifest that the Board estimated the value of these lands upon the hypothesis that they might conveniently and profitably be used as building lands— on what has been called the ‘‘subdivision’’ plan; that course is, I think wholly unexceptionable; and, indeed, an appeal would not lie if that were all that is in the case.
But while the value of the lands is fixed by considering what they might be worth—might sell for—were they exploited in the manner suggested, the Board has added to this valuation the value of the buildings, which, admittedly must be taken away entirely before the lands could be utilized in the manner suggested—in other words, the Board has fixed the value of the lands as they would be without the buildings, without considering that that implied the removal or destruction of the buildings—in still other words, the Board has fixed the value of the lands by considering what value they might acquire without considering what was necessary to enable them to acquire that value. In the manner pursued in fixing this value, it has been considered that the buildings are to be removed, and then, though this value is arrived at on the hypothesis that the buildings are to be removed, the total assessment is made on the hypothesis that the buildings stay and improve the value of the lands.
That this is illogical, will, I think be admitted—it is unjust and improper to remove the buildings for one purpose and retain them for another. In the manner by which this value of the lands was arrived at, the buildings do not increase the value of the lands; and consequently "‘the value of the buildings” being for the purposes of the statute "‘the amount by which the value of the land is . . . increased” should be placed at Q, and the whole assessment of lands and buildings reduced to $565,308.
There is, of course, no appeal as to fact: Re Consolidated Tel. Co. Ltd. & Caledon & Erin Tps. (1920) 55 D.L.R. 673, 48 O.L.R. 140; Re S. H. Knox c Co. (1909) 18 O.L.R. 645; Re Hollinger Cons. Gold Mines Ltd. c Tisdale Tp., [1931], 4 D.L.R. 239, O.R. 640, but the matter on which we are now passing is matter of law.
The other question may at first sight present more difficulty, 1.€., the assessment of appellant in the form of a ‘‘business assessment’’. This is provided for in sec. 9(2) of the Assessment Act, which reads :—
‘“Every proprietory or other club in which meals are furnished, whether to members or others, shall be liable to a business. assessment for a sum equal to twenty-five per centum of the assessed value of the land occupied or used for the purposes of the club.”
It will be seen that the clubs that are to be liable to a “business assessment’’ are only those in which meals are furnished; I fail to find any evidence that meals are furnished in this club, and, consequently, it is not liable. Even were it the case that meals were furnished at all, it would be only during the Race Meets, which last only two weeks in the year, according to the evidence.
Remembering that all taxing statutes must be interpreted strictly, it seems to me that the intention of this section is to cover clubs which habitually and regularly furnish meals and not such clubs as do this only for a few days at the most, and as a mere incident to their real object.
In this view, I do not think it necessary to discuss the case of Rideau Club v. Ottawa (1907) 15 O.L.R. 118, which it was argued concludes the appeal in favour of the appeal.
I would allow the appeal to the extent indicated, and with costs.
Appeal allowed.