ROBERTSON C.J.0.:—This is an appeal upon a stated case, pursuant to s. 85 of The Assessment Act, from the judgment of Judge Grosch, of the County Court of the County of Kent, dismissing an appeal from the Court of Revision of the City of Chatham, which confirmed the appellants business assessment.
The appellant is a manufacturer of tobacco, and is assessed. as such in respect of certain premises on St. Clair St. in that municipality, where its tobacco is processed. The appellant did not appeal against its assessment as a manufacturer in respect of the St. Clair St. premises. The appellant also occupies, for the purposes of its business, other premises in Chatham on Pat- teson Ave. and on Colborne St. The appeal now before us is against its business assessment as a manufacturer in respect of the two last-mentioned premises.
After the tobacco is processed at the St. Clair St. premises and packed in hogsheads, it is transferred either to the Patteson Ave. premises or to the Colborne St. premises. There the tobacco is housed or stored for periods of from five months to two or more years, and in the ordinary course its value is enhanced thereby. The appellant is the owner of the Patteson Ave. premises, and is lessee of the Colborne St. premises, and it is the sole occupant of both.
The County Judge has found that the appellant occupies or uses the premises on Patteson Ave. and Colborne St. for the purpose of its business, and that business he has found to be the business of a manufacturer. Sub-sec. 1 of s. 8 of The Assessment Act provides that every person occupying or using land for the purpose of any business as mentioned or described in the section, shall be assessed for a sum to be called "‘business assessment’’ to be computed by reference to the assessed value of the land so occupied or used by him. The sub-section then proceeds to mention or to describe a variety of classes of business in numerous sub-clauses, each of which is distinguished by a letter. As to each class, provision is made for an assessment at a certain rate per centum of the assessed value of the*land occupied or used for the purpose of his business by the person carrying on a business that falls within the class. Sub-clause
(e) provides for the assessment of ‘‘every person carrying on the business of a manufacturer for a sum equal to sixty per centum of the assessed value.” The appellant’s business being that of a manufacturer, and the lands on Patteson Ave. and on Colborne St. being occupied or used by the appellant for the purpose of its business, all requirements are fulfilled to make the appellant liable to business assessment at the per centum rate provided in clause (e). It is not necessary that manufacturing should be carried. on upon these particular premises. The requirement is that they shall be used or occupied for the purpose of his business by one who carries on the business of a manufacturer.
This construction of the statute is long settled by such cases
as Re Hiram Walker & Sons Ltd. and Town of Walkerville (1917), 40 O.L.R. 154; Re Studebaker Corporation of Canada and City of Windsor (1919), 46 O.L.R. 78, followed recently in Re Toronto and Belding Corticelli Ltd., [1939] O.R. 409; and Kelvinator Co. of Canada Ltd. v. City of London, [1942] C.T.C. 207, [1942] O.W.N. 485.
The appellant relies upon Re The City of Chatham and Canadian Leaf Tobacco Co., [1938] O.W.N. 265, where a different conclusion was reached in regard to appellant’s business assessment in respect of lands used or occupied in a similar way. The appellant says, in the first place, that the parties being the same, the matter is res judicata, the subject-matter being the same. The subject-matter, however, is not the same. Not only are the lands not identical in the two cases, although the business purpose of occupation may have been the same, but the appeals are from assessments in different years. The language of Lord Car- son in Broken Hill Proprietary Co. Ltd. v. Municipal Council of Broken Hill, [1926] A.C. 94, where a similar contention was made, is in point :—
"There is, however, no substance in this contention. The decision of the High Court related to a valuation and a liability to a tax in a previous year, and no doubt as regards that year the decision could not be disputed. The present case relates to a new question—namely, the valuation for a different year and the liability for that year. It is not eadem questio, and therefore the principle of res judicata cannot apply. ’ ’
The appellant further contends that the decision of 1938, being a judgment of this Court of Appeal on facts indistinguishable for the present purpose from the facts of the present case, we are bound to follow the decision of 1938, the more particularly because that decision is expressly founded upon the judgment of the Supreme Court of Canada in Loblaw Groceterias Co. Ltd. v. The City of Toronto, [1926] S.C.R. 249.
Beyond the question, we should be bound by the judgment of the Supreme Court of Canada, if it is in point, and we should regard with great respect the former judgment of this Court upon this same question, even if it is in conflict with other decisions of the Court. The Loblaw case is, however, not in point. The business in question in that case was not the business of a manufacturer, but was the business of selling or distributing goods, wares and merchandise to a chain of more than five retail stores or shops in Ontario, directly or indirectly owned, controlled or operated by the same person, and came within what is now clause (d) of s. 8, s..s. 1. By clause (d) the lands occupied or used for certain specifically described purposes, in carrying on a business of the class described as above are liable to business assessment on a percentage basis that differs from the percentage basis applicable to the other lands occupied or used by the same person for the same business. Clause (d) provides that the business assessment of a person carrying on a business such as the clause describes, in respect of land occupied or used by him in such business for distribution premises, storage or warehouse for such goods, wares and merchandise, or for an office used in connection with the said business, is to be for a sum equal to 75 per cent. of the assessed value of the land so occupied or used.
The business in question in the Loblaw case was such a business as clause (d) describes. The Company assessed in that case occupied or used for the purposes of its business, separate parcels of land, one parcel being used for purposes coming within clause (d), as above-mentioned—then clause (cc.) first enacted by c. 2, s. 2 of the statutes of 1933—and another parcel across the road from the first-mentioned parcel, which was used as a garage, and for the housing of motor-vehicles. The Company was assessed, for business assessment on the same basis in respect of both parcels as coming under what is now clause (d). The Company did not appeal against its business assessment in respect of the first-mentioned parcel, conceding that it was properly assessed on a basis of 75 per centum, but it did appeal against its business assessment in respect of the other parcel. The Supreme Court of Canada held "‘that the occupation or use of the particular land, subjected to this special assessment must be looked at, ‘ ‘ and, having regard to the particular occupation or use of the parcel in respect of which the business assessment in question on the appeal was made, it was held that it did not come within the description of the present clause (d).
It is this judgment of the Supreme Court of Canada, speci- fically based upon the construction of what is now clause (d), that the Court of Appeal, in the judgment in 1938, in Re The City of Chatham and The Canadian Leaf Tobacco Co., deemed
to be conclusive on the point that was raised before it under what is now clause (e). Clause (d), however, had no application to a business of the class that was in question in the 1938 case, and it has no application to the business in question in the present case. There is nothing in clause (e) which governs in the case of a manufacturer, that warrants a construction by which the occupation or use of one particular parcel of land employed in carrying on the business of a manufacturer will distinguish it, for purposes of business assessment, from any other parcel used or occupied for the purposes of the same business. Wherever in s. 8(1) of The Assessment Act the Legislature intended that, for the purpose of business assessment one part of the land used or occupied for the purpose of carrying on a business, should be regarded differently from other land used or occupied in the same business, by reason of the particular use to which it is put, it has said so expressly, as in clauses (a), (b) and (g). Except where a difference is made either by express exception, as in clauses (a) and (b), or by specific provision as in clause (d), the terms of s. 8(1) are such that the person carrying on a business for which he occupies or uses land, is to be assessed for business assessment, for a sum arrived at by applying one and the same per centum rate to the assessed value of all the land occupied or used for the purpose of the business, and the particular character of the use made of any part of such land is not to be regarded so long as it is occupied or used for the purpose of the business carried on by the person assessed. The class mentioned or described in the sub-section into which that business falls, determines what that single per centum rate should be.
In my opinion, for the reasons I have stated, we should not follow the decision in the case between these parties in 1938, but should apply the principle of the Hiram Walker case and of the Studebaker case, and other cases which I have first cited, and we should dismiss this appeal, with costs.
HENDERSON J.A.:—I agree.
GILLANDERS J.A.:—I agree.