Robertson C.J.O.:—This appeal and twenty-eight other appeals more or less similar in character, come by way of special case stated by His Honour Judge Barton, a Judge of the County Court of the County of York, under s. 85 of the Assessment Act, R.S.O. 1987, c. 272. The respondent in each of the cases operates a rooming-house, where furnished rooms are let to lodgers or roomers, the operator in each case taking care of the rooms by cleaning them, making up beds and supplying linen. In 1938 respondent was assessed for $1,800 “business assessment’’ under el. (4) of s-s. (1) of s. 8 of the Assess- ment Act, this sum being 25% of the assessed value of that part of her premises devoted to the accommodation of roomers. This assessment was confirmed by the Court of Revision, but on appeal, the County Court Judge held that respondent was not liable for business tax. The matter was fully and ably argued in this Court by counsel for the appellant and for such of the respondents in the several appeals as were represented upon the hearing.
An appeal lies to this Court in such a ease as this only from a judgment on a question of law or the construction of a statute, a municipal by-law, any agreement in writing to which the municipality concerned is a party, or an order of the Ontario Municipal Board. The learned County Court Judge, in holding respondent not liable to be assessed for ‘‘business assessment, ”” rested his judgment upon the construction of cl. (k) of s. 8 of the statute. Clause (k) reads as follows: “ (k) Every person carrying on the business of a photographer or of a theatre, concert hall, or skating rink, or other place of amusement, or of a boarding stable, or a livery, or the letting of vehicles or other property for hire, or of a restaurant, eating house, or other house of public entertainment, or of a hotel or any business not before in this section or in clause (1) specially mentioned, for a sum equal to twenty-five per centum of the assessed value.’’
The learned County Court Judge held that the words "‘or any business not before in this section or in clause I specially mentioned’’ to be found near the end of el. (k) "‘can only mean and refer to any business germane to those dealt with in clause (k).’’
In so deciding the learned Judge would not seem to have given any weight to s-s. (12) of s. 8, which is as follows: ** (12) Wherever in this section general words are used for the purpose of including any business which is not expressly mentioned, such general words shall be construed as including any business not expressly mentioned, whether or not such business is of the same kind as or of a different kind from those expressly mentioned.”
These are apt words to exclude the application of the ejyusdem generis rule in the construction of el. (k), and to bring within it every person occupying or using land for the purpose of carrying on a business, not expressly mentioned, whether the business is of the same kind as or of a different kind from any of the businesses expressly mentioned. Re Clark & Leamington (1917) 38 O.L.R. 405. The judgment of the County Court Judge cannot, therefore, in my opinion, be sustained upon the ground set forth in his reasons for judgment which he has made part of the special case.
It may be that this question of the construction of the statute, which the learned Judge had decided in favour of respondent is all that is open for us for consideration under this special case. The question formally submitted by the stated case is in the following terms: "‘I. Upon the facts above stated and upon a true construction of the Assessment Act, particularly s. 8(1) (k), thereof as applied to such facts, was I right in holding that the respondent was not liable for business assessment ? ‘
Counsel for respondent contended that the question so stated is not one that s. 85 permits to be stated for the decision of this Court. It is urged that the question stated is a mixed question of law and fact, or involves the determination by this Court of questions of fact, and that the Court cannot know, as a matter of law, from the facts stated, whether or not respondent’s activities amount to the carrying on of "‘a busi- ness, ‘ ‘ nor, if she carries on a business, whether, for that purpose, she occupies or uses land in the sense in which these words are used in the statute. I am inclined to agree that questions of fact are involved in the determination of these matters, if they are not really only questions of fact.
I do not think, however, that upon the fair reading of the special case these matters are submitted for our determination in the question stated. The case sets forth that the respondent operates a rooming-house, with some description of the character and extent of the operation. The learned County Court Judge must himself have concluded that this was a "‘business’’ in the usual sense of the word, otherwise he would not have applied the ejusdem generis rule to exclude it from cl. (lc). If the question is to be regarded as a question of law, there is a good deal of authority for holding that the operation of a roominghouse amounts to carrying on a business. See Rideau Club v. Ottawa (1907), 15 O.L.R. 118; Morton v. Palmer (1881), 51 L.J.Q.B. 7; Westminster Council v. Southern R. Co., [1936] A.C. 511, esp. at p. 529; Rolls v. Miller (1884), 27 Ch. D. 71; Re Harrison (1892), 1 Morr. 1; Tompkins v. Rogers, [1921] 2 K.B. 94.
The special case also describes the premises which respondent operates as a rooming-house, with particulars of their assessed value and of the number of rooms available for the accommodation of roomers, and of the number reserved for respondent’s private use. All these matters are stated as facts in the special case, and I think the learned County Court Judge has, in effect, found as a fact that respondent occupies or uses these premises for the purpose of carrying on a rooming-house. I am unable to see that any question of law in this respect is submitted for determination to this Court.
As we are not able to agree with the learned County Court Judge upon the one question of law submitted, the appeal should be allowed, and the question stated will be answered in the negative. There will be no order as to costs.
The same order will be made in the other 28 cases argued with this case, and, broadly, these reasons will apply to tkem as to this appeal.
It would not be right, however, to leave the consideration of this case without calling attention to the fact that although the provision of the Assessment Act now found in s. 8(1)(k) has been in force since January 1, 1905, this is the first time that the appellant has applied it to such a business as that of respondent. Rooming-houses where there are not less than eight rooms to let have now been assessed. Business tax in such a case as this is substantially in lieu of income tax, and when it is considered that under el. (k) the amount of the business assessment is 25% of the assessed value of the premises, it would seem that the tax to be paid is a really burdensome one, in the case of rooming-houses of the more modest kind, and out of all proportion to income tax when directly applied by the Assessment Act. The total yearly revenue from eight moderately-priced rooms is small, even if they are all steadily occupied and paid for, and out of it must be provided taxes on the land, the cost of repairs and upkeep of both building and furnishings, the cost of heat, water and light, and the care of the rooms. The net revenue must be pitifully small, and any tax upon it is a burden. It is not unreasonable to think that such humble and unremunerative businesses as these smaller rooming-houses were not under consideration when the business assessment to which they are subject was fixed at 25% of the assessed value of the premises.
FISHER J.A.:—I confess when the argument of these appeals had concluded my conclusion was that they should be dismissed but further consideration and reading the reasoning and conclusion of my Lord the Chief Justice I find myself obliged to concur with him in allowing the appeals and without costs.
Gillander : J.A.:—I agree.
Appeal allowed.