ROBERTSON C.J.O.:—This is an appeal by way of a stated case,
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from the decision of Judge Barton of the County Court of the County of York, in an assessment appeal.
Toronto Millstock Co. Ltd., in April 1937, gave notice, pursuant to s. 66 of the Separate Schools Act, R.S.O. 1937, ce. 362, requiring that 40% of its assessment for land and business or other assessments in the City of Toronto, be entered, rated and assessed for separate school purposes. The notice has not since been withdrawn, varied or cancelled by any subsequent notice.
In the year 1942 the assessor, in compiling his roll, entered the Company as a separate school supporter on the assessment roll, in respect of that proportion of the assessments designated in the notice. The respondent Dolson appealed to the Court of Revision in respect of this assessment of the Company as a separate school supporter. When the appeal came on to be heard, no evidence being given by anyone to show whether or not the share or portion of the Company ‘s assessment to be rated and assessed for the support of separate schools, bore a greater proportion to the whole of the Company’s assessment than the amount of the stock or shares held by Roman Catholics bears to the whole amount of the stock or shares of the Company, the Court of Revision allowed the appeal and directed that the Company be entered as a publie school supporter for all of its assessments. From this decision an appeal was taken to the County Judge, who dismissed the appeal, holding that in the absence of affirmative evidence that the notice did not contravene the provisions of s. 66(3) of the Separate Schools Act, the whole of the assessments of the Company ‘‘should be entered, rated and assessed for the purpose of Public Schools." An appeal is now taken to this Court, and it is claimed that the assessment as entered on the roll by the assessor ought to be restored, there being no evidence that the notice given in 1937 in any way contravened that statute.
The question raised on this appeal would appear to be fully answered by the judgment of the Judicial Committee in Board of Education of Windsor v. Ford Motor Co., [1941] 3 D.L.R. 721, A.C. 453. Mr. Phelan earnestly contended that the judgment in that case was upon its special facts: that there had been, in that case, evidence that the company giving the notice had not first informed itself as to the number of its shares held by Roman Catholics, and its notice was not based upon actual knowledge, but was only a guess or estimate, and that the effect of this evidence was to place upon those supporting the assessment for separate school purposes the burden of justifying the notice.
While it may be, as appellant’s counsel contends, that, speaking generally, one who appeals against an assessment must establish some ground for attacking it, I am unable to read the decision of the Judicial Committee in the Ford case in any other sense than as establishing that in such a case as is now before us the burden is, from the commencement, upon those supporting the assessment for separate school purposes, to establish that it is properly made. "‘The supporters of separate schools must establish their right to the statutory privilege.” That is the decision in the Ford ease. It is equally applicable here, and is binding upon us.
The appeal must, therefore, be dismissed with costs.
There were argued with this appeal, appeals in the cases of Dillon v. Russell Construction Co. and Dillon v. Atlantic Service Co., and it was conceded that our decision in this case will apply equally to the two other cases. They will, therefore, likewise be dismissed with costs.
FISHER J.A.:—I agree. .
Masten J.A.:—Having had the opportunity of reading the judgment prepared by the Chief Justice I concur in his conclusion and have nothing to add, except to say that I have earnestly sought to apprehend the relevance and foree of the grounds so strongly urged by Mr. Phelan for distinguishing the present case from Board of Education of Windsor v. Ford Motor 'u., [1941] 3 D.L.R. 721; but I have been unable to do so.
I would dismiss the appeal with costs.
Appeal dismissed.