HENDERSON J.A.:—An appeal by way of stated case from the judgment of His Honour Judge Coughlin of the County of Essex, dated January 2, 1942.
This appeal concerns the question of the assessability for municipal taxes of parsonages situate on church land being land vested in the trustees or corporation representing the church congregation, and the land occupied therewith, and turns upon the construction of s. 4(2) of the Assessment Act R.S.O. 1937, c. 272, which reads as follows:
"‘4. All real property in Ontario and all income derived, whether within or out of Ontario, by any corporation, or received in Ontario on behalf of any corporation, shall be liable to taxation, subject to the following exemptions : :
(2) Every place of worship and land used in connection therewith and every churchyard, cemetery or burying ground.” This was followed by s-s. (a) of s-s. (2), which is concerned with cemeteries or burying grounds, and is not in question here.
Counsel have been good enough to furnish the Court with the history of the relevant sections of the Assessment Act, commencing with the Consolidated Assessment Act of Upper Canada, 1859 (Can.), c. 55, s. 9, which is as follows:
" " 9. All land and personal property in Upper Canada shall be liable to taxation, subject to the following exemptions, that is to say:
«(3) Every place of worship, Church-yard or Burying ground ;
4 “ (21) The stipend or salar of any Minister of Religion from whatever source derived, as long as the same does not exceed one thousand two hundred dollars annually.’’
The subsequent legislation is :
The Assessment Act of Upper Canada, 1886 (Can.), c. 53: (9. All land and personal property in Upper Canada shall be liable to taxation, subject to the following exemptions, that is to say :
"‘(3) Every place of worship, Church-yard or Burying ground ;
"(22) The stipend or salary of any Minister of religion.’’
The Assessment Act of 1869, 1868-9 (Ont.), c. 36:
"9. All land and personal property in the Province of Ontario shall be liable to taxation, subject to the following exemptions, that is to say:—
(3) Every place of worship, and land used in connection therewith, church yard or burying ground.
" " (22) The stipend or salary of any minister of religion, and the parsonage or dwelling house occupied by him, with the lands thereto attached.’’
The Assessment Act, 1869 (Ont.), e. 27 :
( A. That sub-section twenty-two of said section nine be repealed, and the following substituted: ‘The stipend or salary of any clergyman or minister of religion, while in actual connection with any church, and doing duty as such clergyman or minister to the extent of one thousand dollars, and the parsonage or dwelling-house occupied by him, with the land thereto attached, to the extent of two acres, and not exceeding two thousand dollars in value.’ ‘‘
The Assessment Act, R.S.O. 1877, c. 180 :
"‘All land and personal property im this Province shall be liable to taxation, subject to the following exceptions, that is to say:
4< (3) Every place of worship, and land used in connection therewith, church yard or burying ground.
( (23) The stipend or salary of any clergyman or minister of religion, while in actual connection with any church, and doing duty as such clergyman or minister to the extent of one thousand dollars, and the parsonage or dwelling-house occupied by him, with the land thereto attached, to the extent of two acres, and not exceeding two thousand dollars in value. ‘ ‘
The Assessment Amendment Act, 1885 (Ont.), c. 42:
"‘12. Sub-section 23 of section 6 of The Assessment Act is hereby repealed and the following substituted therefore :—
(23) The stipend or salary of any clergyman or minister of religion while in actual connection with any church and doing duty as such clergyman or minister, to the extent of one thousand dollars and the parsonage, when occupied as such or unoccupied, and if there be no parsonage the dwelling house occupied by him with the land thereto attached, to the extent of two acres, and not exceeding two thousand dollars in value. This subsection shall not apply to a minister or clergyman whose ordinary business or calling at the time of the assessment is not clerical though he may do occasional clerical work or duty.’’
The Assessment Act, R.S.O. 1887, c. 193 :
“7. All property in this Province shall be liable to taxation, subject to the following exemptions, that is to say:
"" (3) Every place of worship, and land used in connection therewith, churchyard or burying ground.
‘* (25) The stipend or salary of any clergyman or minister of religion while in actual connection with any church and doing duty as such clergyman or minister, to the extent of one thousand dollars, and the parsonage, when occupied as such or unoccupied, and if there be no parsonage the dwelling house occupied by him with the land thereto attached, to the extent of two acres, and not exceeding $2,000 in value. This sub-section shall not apply to a minister or clergyman whose ordinary business or calling at the time of the assessment is not clerical, though he may do occasional clerical work or duty.”
An Act respecting Exemptions from Municipal Assessments, 1890 (Ont.), e. 55:
"1. Land on which a place of worship is erected, and land used in connection with a place of worship, shall be liable to be assessed in the same way and to the same extent as other land, for local improvements hereafter made or to be made.
"2. The stipends or salaries of clergymen and ministers of religion, and parsonages or dwellings occupied by them with the lands attached thereto, shall be liable to assessment for all municipal purposes in the same manner, and to the same extent as the incomes, dwellings and property of other persons. The article numbered 25 of the 7th section of The Assessment Act is hereby repealed.
"6. This Act shall go into force on the first day of January next after the passing thereof.” (January 1st, 1891).
The Consolidated Assessment Act, 1892 (Ont.), e. 48:
"7. All property in this Province shall be liable to taxation, subject to the following exemptions, that is to say:
"‘(3) Every place of worship, and land used in connection therewith, churchyard or burying ground. Provided however that land on which a place of worship is erected, and land used in connection with a place of worship, shall be liable to be assessed in the same way and to the same extent as other land, for local improvements, hereafter made or to be made.”
The Assessment Act, R.S.O. 1897, c. 224:
"7. All property in this Province shall be liable to taxation, subject to the following exemptions, that is to say:
"‘(3) Every place of worship, and land used in connection therewith, churchyard or burying ground; but land on which a place of worship is erected, and land used in connection with a place of worship, shall be liable to be assessed for local improvements in the same way and to the same extent as other land.’’
An Act to amend The Assessment Act, 1903 (Ont.), e. 21:
^1(2) The paragraph numbered 3 of said section 7 (of the Assessment Act) is amended by striking out all the words after the words ‘burying ground’ in the second line.’’
The Assessment Act (Consolidated), 1904 (Ont.), c. 23:
"‘5. All real property in this Province and all income derived either within or out of this Province by any person resident therein, or received in this Province by or on behalf of any person resident out of the same shall be liable to taxation, subject to the following exemptions, that is to say :—
"‘(2) Every place of worship and land used in connection therewith, churchyard or burying ground.’’
The Assessment Act, R.S.O. 1914, c. 195, s. 5, is to the same effect except that the word ‘‘cemetery’’ is introduced after the word ^churchyard” in s-s. (2).
The Assessment Amendment Act, 1919 (Ont.), c. 50 and the Assessment Act, R.S.O. 1927, c. 238, s. 4 are not material here.
By the Assessment Amendment Act, 1936 (Ont.), c. 3, the commencement paragraph of s. 4 was repealed, and a new subsection substituted, which reads as follows:
"‘4. All real property in Ontario and all income derived, whether within or out of Ontario, by any corporation, or received in Ontario on behalf of any corporation, shall be liable to taxation, subject to the following exemptions.”
The statute next appears in the Revised Statutes of Ontario, (1987), c. 272, s. 4, already quoted.
The following cases may be referred to:
Harris v. Whitby Tp. (1898), 34 C.L.J: 240 is a decision of Dartnell, County Judge of the County of Ontario, who held that since 1890, parsonage and a reasonable curtilage surrounding it were liable to taxation for municipal purposes, which decision is in accordance with the express provisions of the statute then in force.
Catholic Corporation of Antigonish v. Municipality of Richmond (1911), 45 N.S.R. 320, is a decision of the Court of Appeal of Nova Scotia, in which it was held that the Assessment Act, R.S.N.S. 1900, c. 73, s. 4, which exempts from taxation " ‘every Church and place of worship and the land used in connection therewith, and every churchyard and burial ground,’’ does not extend to and include lands and buildings not being churches or places of worship such as glebe houses and lands, rectories, parsonages, etc. occupied and used by the pastors in actual charge of the churches.
City of Victoria v. Bishop of Vancouver Island, 59 D.L.R. 399, [1921] 2 A.C. 384, is a decision of the Judicial Committee upon s. 197(1) of the Municipal Act of British Columbia (1914 (B.C.), c. 52), which exempts from municipal rates and taxes
‘‘every building set apart and in use for the public worship of God. ‘ ‘ It was held that this exemption applies to the land upon which a building of the description is erected, as well as to the fabric itself.
Re Melville Presbyterian Church, [1926] 4 D.L.R. 1149 is a judgment of His Honour Judge O’Connell, Junior Judge of the County of York, on appeal by the Corporation of the Township of Searborough from the Court of Revision for that Township. The history of the legislation is reviewed and His Honour says at p. 1151 :
"‘But while the section relating to the exemption of parsonages was omitted from the consolidated Act, s. 2 of the 1890 Act expressly making them liable to assessment was not included. This, however, in my opinion did not have the effect of restoring the previously enjoyed exemption of parsonages. The Legislature having but a short time before by express legislation taken the parsonages out of the exemption had, I think, deemed the omission from the consolidated Act of the previously exempting section sufficient for the purpose of excluding them from exemption and that it was not necessary to include the section of the Act of 1890 (s. 2) expressly making them liable to assessment, the expression in s. 7(3) of the consolidated Act exempting ‘every place of worship, and land used in connection therewith, not being sufficiently comprehensive to include parsonages in view of its previous restricted meaning.”
Assuming, but not deciding that previous legislation is to be a guide in the construction of subsequent legislation, I am in agreement with the reasoning of the learned County Judge and whether one takes into account the history of this legislation or not, in my view the words "‘every place of worship and land used in connection therewith’’ do not include houses and the lands appurtenant thereto used as a residence by the priests or ministers of the Church.
The stated case now in appeal says that ‘‘parsonages’’ or "‘residences'' are divided into three classes, as follows:
Class 1 consists of cases where the parsonage and the church are structurally connected.
Class 2 consists of cases where the parsonage and the church are physically unconnected but are situate in close proximity on the same parcel of land.
Class 3 consists of cases where the parsonage and the church are on lands separated by intervening lands or streets. It further says: "It was further established that in all the parsonages involved in this appeal many of the functions incidental to the management and operation of churches as places of worship are carried on, such as the holding of trustee meetings, the giving of spiritual instructions, the solemnization of marriages, the keeping of civil and religious records, the distribution of aid to the needy and many other works of a religious or philanthropic nature.’’
It was conceded by counsel that the three classes of parsonages above set forth are all in one category, so far as the question of exemption is concerned.
Primarily a parsonage or minister’s residence is a place of residence for the minister, and if married, for his wife and children. The uses made of it as above referred to are incidental only, and in my view the words "‘every place of worship and land used in connection therewith’’ plainly do not include parsonages or ministers’ residences.
It is quite common nowadays for the minister’s residence to be in an entirely different quarter of the municipality than that occupied by the place of worship and it is conceivable that a minister’s residence might even be in an adjoining municipality.
I have not overlooked the argument put forward by Mr. Rodd, that land, real property and real estate, are defined in the As- sessment Act of Ontario, to include among other things, all buildings placed upon the land. In my opinion the land upon which a parsonage is built, is not land used in connection with a place of worship, much less is the parsonage erected on land used in connection with a place of worship.
The answer to the question of law stated by the learned County Judge should therefore be as follows :
Ministers ’ residences or parsonages are not exempt from municipal taxation under s-s. (2) of s. 4 of the Assessment Act, R.S.O. 1937, c. 272.
The appeal is therefore dismissed. I do not suppose it is a case in which costs are asked.
Appeal dismissed.