ROBERTSON C.J.O.:—This is an appeal by the County of Lambton from the judgment of Judge Miller, Judge of the County Court of the County of Lambton, dated December 10, 1941, on an appeal by the Village of Point Edward from the equalization of local assessments in the County made by the County Council by its by-law passed on June 7, 1941.
The principal matter with which we are concerned on this appeal relates to the powers of the County Council on the equalization of assessments under s. 90 of the Assessment Act, R.S.O. 1937, c. 272, where valuators have been appointed in an earlier year, under s. 89, and have made their report. There is also a question with reference to the equalization of business assessments.
In June 1936 the County Council by by-law appointed two valuators to value the real property within the County, as provided by s. 89 of the Assessment Act. In September 1936 the valuators made their report. This report was adopted at a meeting of the County Council held on December 2, 1936, and on December 5, 1936 the County Council passed its equalization by-law of that year, based upon the valuators’ report. The aggregate valuation of real property for the whole County made by the valuators was $30,084,500. The valuation of assessable real property in Point Edward was $324,900. No new valuation has been obtained from the valuators since.
By the equalization by-law passed by the County Council on June 7, 1941, from which this appeal arises, the aggregate equalized assessments for the whole County are the sum of $30,084,500. Business assessments, as well as real property, are included in this. The assessment of Point Edward is equalized at $600,000. In three other local municipalities there has been some increase in the equalized assessments. In two local municipalities there has been no change, and in the ease of all the remaining local municipalities there have been reductions which absorb the increases made in respect of Point Edward and the three other municipalities where there was an increase. The respondent appealed to the County Judge and the County Judge held that the equalization should have been made upon the basis of the valuators’ report made in 1936, so far as real property is concerned, meaning thereby that the same proportions should be observed in allotting to each of the respective local municipalities its share of the aggregate real property assessments for the whole County. He also dealt with, and equalized, the business assessments separately. That is a matter that can best be dealt with by itself.
The determination of each of these matters depends upon the proper construction of the relevant provisions of the Assessment Act, and no part of that Act is more obscure and difficult to interpret with any feeling of assurance than the sections that deal with equalization.
Subsection (1) of s. 89, which provides for the appointment of valuators, is as follows: <f 89(l) The council of every county may appoint two or more valuators for the purpose of valuing the real property within the county, and it shall be their duty to ascertain in every fifth year at furthest, the value of the same in the manner directed by the county council, but the valuators shall not exceed the powers possessed by assessors, and the valuation so made shall be made by the county council the basis of equalization of the real property for a period not exceeding five years.”
In the opinion of the County Judge, when the County Council has obtained a valuation under this provision, it "must adopt the valuation of the County valuators as the basis for equalization . . . They cannot amend it to what they think it should have been and make such amended valuation the basis of their equalization . . . The word 'basis’ as used in this section means, and can only mean, the foundation, the whole and only foundation of the apportionment.”
It is not disputed that in the equalization made in 1941 the County Council did not proceed as, in the opinion of the County Judge, the statute required that it should. It is not entirely clear, however, upon what basis the Council did proceed. Evidence was given on the appeal to the County Judge with reference to the proceedings of the Equalization Committee of the Council, whose report was adopted and acted upon in passing the equalization by-law, but it does not explain at all definitely how the amount of $600,000, at which the assessment of Point Edward was equalized, was arrived at. Certain matters of importance are, however, disclosed that seem to have provided ground, in the opinion of the County Council, for its action.
There have been substantial additions to the assessable real property in the Village of Point Edward since the valuation made in 1936. An international bridge connecting Point Edward with Port Huron in Michigan, had been constructed, and part of it became assessable in Point Edward, as determined in Re Michigan State Bridge Com’n v. Point Edward, [1939], 3 D.L.R. 533, O.W.N. 387. The provincial Legislature, after this decision, by statute fixed the amount of municipal taxes that the Bridge Corporation should be liable to pay annually to the Village of Point Edward at $5,000, but to that extent it is still assessable in respect of the international bridge. There are also certain manufacturing industries in Point Edward that had been granted exemption in whole or in part from taxation for a fixed period, that have since become fully assessable by the expiry of the period of exemption.
Without in any way departing from the valuation made by the valuators in 1936 of what was then assessable in Point Edward, there were these two classes of property which had not been included in that valuation, and yet in 1940 increased substantially the value of the assessable real property in Point Edward. For 1936 the total "‘value of buildings” on the assessment roll, according to the Village Clerk’s return, was $366,826. For 1940 the ‘‘value of buildings’’ shown on the roll was $1,238,357. A large part of the increase was entered on the assessment roll as for property of the provincial Government, but there still remains a substantial increase attributable to properties upon which taxes were payable to the Village. The point at issue would seem to be whether the County Council was prevented by the valuation obtained in 1936 from considering this substantial addition to the value of assessable property in the ease of Point Edward, in equalizing the real property assessments in the County. The County Judge has held that the County Council was so prevented.
I have difficulty in giving to the provisions of s. 89(1) the controlling effect that the County Judge has attributed to them. Section 90 continues to provide that ‘‘the council of every county shall, yearly . . . . examine the assessment rolls of the different townships, towns and villages in the county, for the preceding financial year, for the purpose of ascertaining whether the valuations made by the assessors in each township, town or village bear a just relation one to another,’’ and the County Council is empowered to give effect to its opinion in the annual equalization by-law, subject to appeal.
The learned County Judge has held that where valuators have been appointed under s. 89(1), and have made their report, the powers that the County Council is to exercise each year under s. 90(1) are reduced to the making of mere arithmetical calculations to apportion the aggregate of the real property assessments for the whole County among the several local municipalities in the proportions assigned to them respectively by the valuators’ report. The learned Judge suggests that "‘the correct interpretation of the statute would be more clear if, in the arrangement of the statute, s. 89 followed s. 90, as in point of time it did so follow. ‘ ‘
It seems to me that it is more important to know that when the original of the present s. 89 was enacted by 29-30 Vict.,
e. 51, s. 175, it was not placed in the Assessment Act at all, but in that part of the Municipal Act that deal with "Officers of Municipal Corporations’’, such as the Clerk, Treasurer, Assessors and Collectors. There it remained for almost 40 years and was only translated to its present position as part of the Assessment Act on the revision of the Assessment Act in 1904 [e. 23].’ The present s. 90(1) stood throughout, much in its present form in its place in the Assessment Act.
No doubt it was the intention that valuators, like other officers of the municipality, should hold office until removed by the council. The provisions of s. 89(1) that ‘‘it shall be their duty to ascertain in every fifth year at furthest, the value’’ ete. plainly contemplates a continuance in office for more than the purpose of a single valuation. The by-law of the County of Lambton appointing valuators in 1936, however, contains expressions that seem to limit it to an appointment for that year’s valuation, and no more.
In 1866 when the present s. 89(1) had its origin, personal property, as well as real property, was subject to assessment, and when first enacted the section provided that the valuators should value both the real and personal property. In 1873 (36 Vict., ce. 48, s. 210) this was changed and the valuation was confined to real property. The equalization of personal property was directed to be "‘as heretofore.’’ This also stood until the Assessment Act of 1904, when the assessment of personal property was dropped, and business assessment was introduced.
I do not doubt that it was intended by the Legislature that the valuation made under s. 89(1) should play an important part in the equalization directed to be made yearly by s. 90(1). It is to "be made by the county council the basis of equalization of the real property for a period.” But does that necessarily import that the County Council shall consider nothing else? Is there nothing more than mathematical calculation left to the Council? The County Council is required yearly to examine the assessment rolls of the several local municipalities, and if on such examination it should appear that an important and valuable industry has removed from one local municipality to another within the County, thereby gravely disturbing the relation there had been between the respective values of the assessable real estate within them, or if, as here, valuable property that was exempt from assessment and was therefore not included by the valuators in their report, should cease to be exempt from assessment, can the County Council do nothing about it? It is difficult to see why the Assessment Act should require, as it has required since 1866, that every County Council shall yearly examine the assessment rolls of the local municipalities in the County for the preceding financial year, with no exception made of such County Councils as shall have obtained valuations under s. 89(1), if the existence of such a valuation makes the examination of the assessment rolls an empty performance.
In my opinion it is quite possible to give all proper effect to the declaration of s. 89(1) that the valuation shall be made the basis of equalization of the real property, and still retain in the County Council the power and duty to bring into the equalization assessable real property that has come into existence since the valuation, as in the case of the international bridge at Point Edward, and real property that was not assessable when the valuation was made and has since become assessable. The valuation still remains the basis of equalization of all the real property that fell within its scope. I see nothing in the statutory provisions that requires any broader effect to be given to the valuation as the basis of the equalization.
The learned County Judge has cited the language of Harrison C.J. in Re Revell & Corporation of the County of Oxford (1877), 42 U.C.Q.B. 337, on the effect to be given to the term "‘the basis.’’ That learned Judge was there dealing with a quite different subject-matter, and the term was used in another context, which necessarily affected its interpretation. The question in the case cited was whether the County rate should be apportioned on the basis of the rolls for 1876 or for 1877. Of necessity it could be only one or the other. I have great respect for the opinion of the learned County Judge from whose decision the present appeal is taken, but I am unable to agree in his conclusion that the County Council exceeded its powers in giving effect to its opinion that the proper equalization of the local assessments in 1941 required that they should increase the assessment of Point Edward, in view of the substantial additions to the assessable real property of that municipality.
There is another ground upon which, in my opinion, the contention that the County Council, in 1941, was bound by the report of the valuators, fails. The valuation was made in 1936, and was used in making the equalization of that year. It is true that the valuators’ report was not made until September 1936, and the equalization by-law upon which the County rate for 1937 was apportioned, was not passed until December 1936. The statute (s. 89(1)) provides that it shall be the valuators’ duty to ascertain the value ‘‘in every fifth year at furthest, ’ ’ and that the valuation shall be made the basis of equalization "‘for a period not exceeding five years.” Now, it seems to me that that definition of the period as one "‘not exceeding five years’’ lacks somewhat in definiteness. Two years or three or four years would answer it as well as five. It was intended, I think, that the County Council itself should direct for how long the valuators’ report should be made the basis of equalization, so long as it did not exceed the period of five years without either a new valuation, or an extension of the term under s. 89(2). In the present instance the County Council adopted the valuators’ report by by-law passed on December 5, 1936, and enacted that the valuation "‘shall be the basis of equalization of the real property for a period not exceeding five years.” These are the very words of the statute, and they have the same lack of definiteness and seem to me to leave the length of the period for which the valuation shall be the basis of equalization, undetermined. In that case the County Council of 1941 was as free as any council to determine the length of the period, and to disregard the valuation, if it so determined.
We are, however, referred to the action of the County Council in June 1941. There was an Equalization Committee, and on May 22nd that Committee resolved to report to the Council "‘that we continue the present equalized assessment of $30,- 084,500. for the coming five years for the purpose of levying rates against the various municipalities in the county system in the County of Lambton.’’ The Committee, by its next resolution, recommended to the Council "‘that at a fixed equalized county assessment of $30,084,500. for the County of Lambton, Sarnia Township be increased to $2,347,000., Forest to $570,000, Point Edward to $600,000, Thedford to $160,000, and that benefit of increase be distributed to all other municipalities, except Forest, Sarnia, Point Edward, Thedford, Bosanquet and Plymp- ton, and that a by-law be passed at this session of the Lambton County Council according to the following schedule.’’ There follows a schedule setting forth an equalization exactly as set forth in the equalization by-law that was tlie subject of appeal to the County Judge. The County Council adopted the report of the Committee on June 6, 1941.
It is argued that by the foregoing the County Council extended the time during which the valuation should continue to be made the basis of equalization of the real property, pursuant to s. 89(2).
I do not see how respondent can make that contention. Even if the first of the above-mentioned resolutions, standing alone, were capable of being taken as coming within s. 89(2), when it is accompanied by the second resolution—and the County Council adopted the whole report by one motion—it is evident that the County Council intended by its action to do the very thing that respondent says it cannot do in face of the valuation.
It is reasonably plain that the Committee and the whole County Council as well, misunderstood the whole matter. It seems to have been thought that the figure $30,084,500, which was the aggregate value of the real property in the County, as reported by the valuators in 1936, was a total sum fixed for the equalized assessment, no matter what the aggregate valuation for the whole County, as made by the assessors in their annual assessment, might be. This was in disregard of the express direction of s. 90(1), at its conclusion. It would appear from the inclusion of the two resolutions in the one report that the Committee considered that so long as it retained the figure of $30,084,500, for the aggregate, it was permissible to alter at will the several sums appropriated to the local municipalities that went to make up that aggregate. Further, the Committee, by its first resolution, dealt not with the valuation which, s. 89(2) authorizes it to deal with, but with "‘the present equalized assessment. ‘ ‘ A more complete misunderstanding of the whole matter it would be difficult to achieve. In my opinion it is impossible to regard what was done as anything authorized by s. 89 (2). On the contrary, if respondent’s contention is sound, that the County Council could not vary the relative proportions determined by the valuators so long as their report formed the basis of equalization, then the action of the County Council in June 1941 was a rejection of that valuation as the basis of equalization, just as effectively as if the Council had, in express terms, declared that the period in which it should be made the basis of equalization, was determined.
There is still another ground upon which I think it must be held that the period had expired. As it should be computed, the five year period had elapsed. The valuation was first used as the basis for equalization in 1936. The fifth year in which it was used was 1940. It could not again be made the basis of equalization in 1941 unless the period of five years was extended under s. 89(2), and I have already stated my reasons for thinking that had not been done.
It was pointed out, however, that the valuators’ report was not made until September 1936, and that the equalization by-law for that year which was based upon it, was not passed until December 1936. It is argued that June 1941, when the equalization by-law now in question was passed, is well within the period of five years.
In my opinion the years are not to be computed in that way. An equalization by-law is required by the statute to be passed in each year. The valuators are to ascertain the values ‘‘in every fifth year at furthest.’’ The true interpretation of the statute, it seems to me, is that the valuation is to be made the basis of equalization in not more than five years. The precise date in any year on which the valuation is made or the equalization by-law is passed is not an important matter in the computation of the period of five years. I am of the opinion that on this ground also the County Council was not required to make the valuations obtained in 1936 the basis of equalization in 1941.
The matter of business assessments has also to be dealt with. It does not appear clearly how the County Council dealt with them or whether it dealt with them at all. The figure, $30,084,- 000, which the Council took as the aggregate of all the local assessments as equalized, was, of course, the amount found by the valuators in 1936 to be the aggregate value of the real property in the County. There were no business assessments included in the valuators’ total. The County Judge, for the purposes of his order, took the aggregate valuations of real property for the whole County as made by the assessors in the year 1940, and allotted it among the local municipalities in proportion to the respective values found for the local municipalities by the valuators in 1936. He dealt separately with business assessments. He made certain alterations in the total amounts of the business assessments shown on the assessment rolls of the several local municipalities to produce what was, in his opinion, a just relation one to another, and added the amounts so determined for each local municipality to its equalized real property assessment as he had made it.
The only question that is raised in respect to this procedure, so far as business assessments are concerned, is whether business assessments are to be equalized at all, or whether to comply with s. 98(1), business assessments are simply to be taken as they appear on the assessment rolls of the several local municipalities. No help can be got from s. 98(1) for the word "equalized”, where it appears near the end of that subsection, may be applicable only to the words ‘‘assessment of real property”, which it immediately precedes, or it may apply also to the words business assessments’’ which follow them.
One finds the usual lack of assistance from other sections. Section 93 is an important section, intended to be of wide general scope, yet in directing how the County Council shall proceed in apportioning the County rate, it says that the Council shall "make the assessment of property equalized in the preceding year the basis upon which the apportionment is made. ” " " Business assessment is not an ‘assessment of property’ ”. See s. 8. One turns to s. 91(4) where the powers of the Court constituted to hear appeals are defined. It provides that ‘‘the court shall equalize the whole assessment of the county. ‘ ‘ This is wide enough to include business assessment, but it is also wide enough to include income assessments which, by s. 98, are definitely excluded.
One must regard s. 90(1) as of prime importance in considering what is to be equalized, for it contains the authority given the County Council to proceed to equalize assessments. Unfortunately, the significant word there is ‘‘valuations’’. That is the word used in 1853, when this provision was first enacted, and it has not been altered, although ‘‘business assessments’’ were introduced in 1904. While the valuation of certain occupied parcels of real property is one element in arriving at the amount of business assessment, it is not the only one. A percentage only of the assessed value is taken, and that percentage varies with the character of the business for which the property is occupied. The percentages to be taken of the assessed value of the premises vary from 10% to 150%. Further, there are substantial reasons for thinking that the Legislature may have intentionally withheld business assessment from the process of equalization by the County Council. Business as- sessments do not lend themselves readily to that process. Each individual business is a ease by itself. There can be no generalizing with them, as the statute authorizes to be done in the valuation of real property (see s. 89(3)). To establish a just relation one to another among all the local municipalities in the County, which the statute declares to be the purpose of equalization, must of necessity be an almost hopless task for the County Council in the case of business assessments. Further, it is to be noted that the process of equalization is not in any sense a revision of the local assessment rolls. Notwithstanding the equalization, the individual taxpayer in each local municipality pays according to the last revised assessment roll thereof (s. 98(2)). To increase certain individual business assessments in the process of equalization places a burden on the whole body of rate-payers in the local municipality, that, in fairness, should be borne by a few. This consideration could not be given any weight against the plain meaning of the words of a statute, but in the case of those statutory provisions one ean, at best, only grope in the obscurity created by careless drafting. If the decision of the question arising in the present case in regard to business assessments depended entirely upon the determination of the statutory powers of the County Council, I should not be able to arrive at any decision without great doubt. The real question is, however, not in regard to the powers of the County Council, but in regard to the powers of the County Judge on appeal from the equalization by-law. By s. 91(8) ‘‘the judge shall equalize the whole assessment of the county. ‘ ‘ This provision is not, as is s. 90, limited by its language to the real property, and may well include business assessment. Of course, it will equally include income assessments, but s. 98(1) will apply to exclude them. There is nothing anomalous in giving to the County Judge on appeal a wider jurisdiction than that of the County Council. In another respect that is done by s. 91(10) in respect to the valuators’ report. I would hold, therefore, that the County Judge has power on an appeal to equalize business assessments.
In the result the matter should be referred back to the County Judge, with a direction that the County Council was not required to make the valuation of 1936 the basis of equalization of the real property assessments, and that the County Council had power to make such increases or decreases in respect of real property assessment in any of the local municipalities as in their opinion were necessary to produce a just relation between them, but without reducing the aggregate valuation for the whole County, as made by the assessors. This does not deprive the County Judge of any of the ordinary jurisdiction given him on such an appeal.
The appellant should have the costs of the appeal to this Court. All other costs are to be in the discretion of the County Judge.
MIDDLETON J.A.:—I agree and have nothing to add.
Masten J.A.:—This is an appeal from the order or report of His Honour Judge Miller, Judge of the County Court of the County of Lambton, dated December 10, 1921, made on a rehearing by him of an appeal by the respondent from the equalization by-law passed by the Council of the appellant County in 1941, raising the valuation of the Village of Point Edward to $600,000.
The appeal to the County Judge is by way of re-hearing, and the effect of the Judge’s order is that he vacates and sets aside the allocation theretofore made against the several local municipalities liable to contribute to the County budget as enacted by the equalization by-law of the County Council, and substitutes an allocation based mathematically on the respective percentages of the total County taxes, which were established as a basis by the report of valuators made in 1936. In doing so, the learned County Judge declares that on the true construction of the Act the sole and exclusive basis for equalization is the valuators’ report of real estate made in 1936, and that the County Council has no jurisdiction to vary from the percentages shown by that report, they being an unalterable basis for the equalization by-law; so that: the allocation to the several local municipalities of the percentage of the total County rate which it establishes, becomes merely a mathematical problem.
I think that the learned County Court Judge in discussing the term ‘‘basis’’ at p. 88 of the evidence, has failed to appreciate the real meaning of the words of Harrison C.J., in the ease of Re Revell & Corporation of the County of Oxford, 42 U.C.Q.B. 337. The headnote of that case reads as follows:
"‘The council of a county, in passing by-laws to levy money for county purposes in 1877, apportioned the assessment of the different municipalities, not upon the basis of the value according to the rolls as finally revised and equalized for 1876, but according to the rolls for 1877 : Held, that such by-laws were illegal, being contrary to sec. 74 of the Assessment Act 32 Vic. ch. 36, O., and must be quashed.’’
In my opinion the words of Harrison C.J. in the case above quoted are intended to indicate that the apportionment pre- scribed by the equalization by-law of 1876 was an unalterable basis for the levying of the tax in 1877, and his observation, in my view, has no relation to the method by which and the consideration on which the apportionment prescribed by the equalization by-law of 1876 was reached.
The view which was acted upon by the learned County Judge is in my opinion an error in law. As long ago as 1916 in the case of Re Tp. of Stamford c County of Welland, 31 D.L.R. 206, 37 O.L.R. 155, I had occasion to consider a similar question and to state the view which I then entertained respecting the jurisdiction of the County Council when enacting the equalization by-law. For all purposes relevant to the present by-law the provisions of the Assessment Act as they then stood remain unchanged. At p. 217 D.L.R., p. 194 O.L.R. I expressed my views in the following words: “. . . . by sec. 86 (now s. 90), the county council is given a broad discretion—so broad that it is entitled to take into its consideration the assessment rolls themselves; its own knowledge of values (see s. 88, now 92); the report of the valuators, if any appointed; and thereupon to form its Own opinion as to what is necessary to produce a just relation between the aggregate valuations of the different townships. I think that prima facie the actual and true value of the real property should form the basis on which the equalizing valuation is made by the county council.’’ I have not had any reason to change the views which I there expressed, and, in my opinion, they are entirely at variance with the principle upon which the learned County Court Judge acted in making the order now in appeal.
If I am right in the view just expressed the process to be followed by the County Council in passing an equalization bylaw, and by the County Judge on a re-hearing, is not complicated. Taking the valuation (if any) theretofore made as a basis or starting point, they are entitled, and it is their duty to consider such information (as distinguished from oral evidence) as is brought before them, both as to accretions and increases in the assessable property in each local municipality, and also any diminution or lessening in value of the total assessable property in each, bearing in mind the limitation imposed by s. 90 that they shall not reduce the aggregate valuation for the whole County as made by the assessors. I think that s. 90 makes it plain that in performing this function they may increase the aggregate assessment for the whole County, though they may not lower it under the valuation fixed by the assessors.
Under all the circumstances of the present case I find it impracticable to express any opinion respecting the manner in which the question of assessment for business tax was dealt with.
Having had the privilege of reading the reasons of my Lord the Chief Justice since writing the above, I desire to add that I concur in his opinion that the attempted extension of the valuation made in 1936 was ineffectual and that that report was effete and irrelevant as a ground for consideration by the County Judge when considering the local allocations to be made in the equalization by-law of 1942, but I remain of the view that on this record I am unable to deal with the question of business assessment.
For these reasons I am of opinion that the appeal must be allowed and the matter sent back to be dealt with by the learned County Court Judge on the footing above indicated. Costs should follow the result.
Judgment accordingly.