RIDDELL, J.A.:—This is an appeal by the City of Toronto against the decision of The Ontario Municipal Board, ante, p. 138: On the hearing, objection was taken that no appeal lay to the Court; but we decided to hear the appeal on the merits. In the view that I take of the case, it is unnecessary to pass upon that point; and I shall assume, without deciding, that an appeal rightly lies.
On the hearing, I was somewhat strongly impressed with the soundness of the claim of the City; but from an attentive consideration of the undoubted and admitted facts, I am now of the opinion that the decision of the Board is right; and I would dismiss the appeal with costs.
Middleton, J.A.:—An appeal by the City of Toronto from an order of The Municipal Board holding that the respondent is not liable to be assessed in respect of some $200,000 income received from subsidiary companies and other companies in which it holds stock and which operate theatres under royalty agreements.
A preliminary objection was taken on the ground that no appeal would lie from the Board. I do not think the objection is well founded as the appeal is, in my opinion, upon a question of law. It is a question of law whether the income derived from the stock held in these subsidiary and allied companies is assessable at all. The question whether the income is or is not received is a question of fact.
I agree with the opinion of the Board that the respondent carries on a business at its offices in the Royal Bank in respect of which it is liable to business assessment and its income is derived from that business. It has no income save that derived from its business, beyond the income from investments for which it is assessed.
Its mode of carrying on its business is no concern of the municipality. That is an affair of the company and its subsidiaries and contractors alone.
One of the results of the present mode of assessing business is that a particular business may be carried on in comparatively inexpensive premises and yet have a very large profit. In respect to individuals this was attempted to be corrected by sec. (1) (c) of The Assessment Act, R.S.O. 1927, c. 238, but for some reason, not at all apparent, companies are excepted from this provision. It makes the business tax of individuals a minimum income tax, but companies are relieved from this burden.
The appeal should be dismissed with costs.
MASTEN, J.A.:—I think that no appeal lies to this Court in the present case. It is clear on a consideration of the other provisions of The Assessment Act and of the history of the legislation which has now culminated in sec. 83(6) of The Assessment Act, R.S.O. 1927, c. 238, that this Court has no jurisdiction to entertain an appeal from The Ontario Railway and Municipal Board on a question of fact and that the words "‘or any order of the Municipal Board ‘ ’ relate back and are to be read with the words "‘the construction of'', so that the appeal is given to this Court in respect to the construction only of any order of The Municipal Board.
This interpretation is borne out by the judgments of this Court in Re Hollinger Consolidated Gold Mines Ltd. and Township of Tisdale [1931] O.R. 640, at p. 645, and in Re Guardian Realty Co. and Toronto [1934] O.R. 266. The Hollinger case was confirmed in the Supreme Court of Canada, [1933] S.C.R. 321, where the judgment of the Court states at p. 323: "‘The construction of a statutory enactment is a question of law, while the question of whether the particular matter or thing is of such a nature or kind as to fall within the legal definition of its term is a question of fact. ‘ ‘
A determination of the nature of the respondent’s business is prima facie a question of fact. Circumstances may exist where it involves a question of law, but here it seems to me to depend on whether the various subsidiary corporations are independent personalties, or are mere agents controlled as such by the respondent company for the carrying on of its own business. That appears to me to be a question dependent solely on the facts adduced in evidence.
The further question whether the income proposed to be assessed is derived from the business so carried on in the premises liable to business assessment, or whether it is derived from independent sources outside that business, seems to me to be plainly a question of fact and not of law.
For these reasons I would allow the preliminary objection raised by the respondent and dismiss this appeal on that ground.
FISHER and MACDONNELL, JJ.A. agreed with MASTEN, J.A.
Appeal dismissed.