MacDonald, J.A.:—This is an appeal by way of stated case from the decision of the Saskatchewan Assessment Commission which held that the appellant, hereinafter called " ‘ the com- pany,‘‘ is liable to assessment for the year 1944 as carrying on business in the defendant city.
The company was incorporated by letters patent issued under The Companies Act, 1934, ch. 33 (Dom.) and dated October 1, 1940. The purpose and object for which incorporation was granted was, ‘‘to establish, maintain and conduct and operate a school or schools for instruction and training in flying, to be operated for purposes of and in conjunction with the British Commonwealth Air Training plan. ‘ ‘
The capital of the company was $50,000, made up of 400 shares of preferred stock of the par value of $100 a share, and 100 shares of common stock of the par value of $100 a share. The letters patent provide for the payment of interest on the preferred shares at 5 per cent per annum, and expressly prohibit the payment of any dividend on common shares. The letters patent also give the company power to redeem the preferred shares. The evidence shows that 280 preferred shares and 70 common shares were issued. All the preferred shares were redeemed in April, 1943, and since then the only outstanding capital consists of the 70 shares of common stock which are held by the Regina Flying Club, a non-profit organization.
Shortly after its incorporation the company entered into a contract with His Majesty the King in the right of Canada, represented and acting by the Minister of National Defence for Air. The contract was amended from time to time. Under the terms of the contract as it stood at all material times, the Minister provides all buildings, planes, equipment and facilities necessary for the operation of the school and the company undertakes to take reasonable care of the same.
From time to time the Minister pays to the company sums of money calculated on various bases which need not be detailed. These are the only moneys received by the company, as the contract provides that during its continuance the company shall not carry on any activity other than such as may be necessary or desirable for the purpose of operation of the school and the giving of the instruction and training thereby provided for.
Par. 5 of the schedule attached to and forming part of the contract reads as follows:
"" (5) Notwithstanding anything to the contrary in the preceding paragraphs, any sum paid or payable thereunder shall be subject to adjustment or revision in the manner following: If in respect of any period of 24 weeks after the date of commencement of instruction and training, the cost of operation, as ascertained by His Majesty, be less than the total amount paid or payable under the preceding paragraphs in respect of the said period of 24 weeks, then the payment to which the Company shall be deemed to have been entitled under the preceding paragraphs shall only be an amount equal to the actual cost of such operation as so ascertained, plus 20 per centum of the difference between said actual cost and the amount paid or payable under the preceding paragraphs with respect to the said period of 24 weeks and the balance of 80 per centum shall be repaid to the Crown when requested by the Minister. The amount retained by the Company shall not be distributed and shall be held by the Company in a reserve account until the termination of the contract and shall then be paid to a flying club approved by the Minister, failing which it shall revert to the Crown. If, in respect of any period of 24 weeks, the actual cost of operation so ascertained exceeds the amount paid or payable as hereinbefore mentioned in respect of said period, there shall be paid to the Company in addition to the amount paid or payable in respect of the said period of 24 weeks, the difference between said amount and the actual cost of operation so ascertained less 20 per centum of such difference. The said 20 per centum of such difference shall be a charge against the reserve account herein referred to. Any payments made to the Company in excess of those so due under the provisions of this paragraph shall be refunded by the Company to His Majesty or at the discretion of His Majesty be recoverable from any subsequent payments due to the Company by His Majesty.”
The city assessed the company in respect of business under sec. 460 of The City Act, R.S.S. 1940, ch. 126, which provides that, subject to the other provisions of the Act, the municipal and school taxes shall be levied on (1) lands; (2) businesses; and (3) special franchises. The assessment was confirmed by the Court of Revision and by the Saskatchewan Assessment Commission. At the request of the company, the commission stated a case for the opinion of the Court under the provisions of sec. 498a of The City Act, as enacted by sec. 15 of ch. 22 of the statutes of 1943, under which the commission may submit in the form of a stated case for the opinion of the Court of Appeal a question of law only.
The questions submitted are whether the commission was right in holding:
(1) That the appellant was carrying on business within the meaning of Th e City Act and was liable to assessment ;
(2) That the buildings and other property referred to in the assessment were occupied and/or used by the appellant for business purposes within the meaning of The City Act and that the appellant was liable to assessment for the whole of the said buildings and property with respect. to business tax ;
(3) That the appellant was liable for business assessment although solely engaged in performing a contract for the Crown.
Thé case states that findings of fact made by the commission are set out in the decision of the commission, copy of which is attached thereto. The evidence taken on the hearing before the commission is also attached.
Learned counsel for the city raises the preliminary objection that. the questions submitted are not questions of law only. But it is a question of law whether there was evidence to support the findings of the commission: Jn re Elmsthorpe R. M. and Dom. Fire Brick and Clay Products, Ltd. (No. 2) [1944] 2 W.W.R. 20. The objection is accordingly overruled.
"‘Business’’ includes any trade, profession, calling, occupation or employment: The City Act, see. 2, par. 4. I cannot see, however, that the included words add anything to the word " " business/ ‘ for the latter word itself has such an extensive meaning. ‘‘Business’’ means anything which occupies time and attention and labour for the purpose of profit : Smith v. Anderson (1880) 15 Ch, D. 127, at 258, 50 L.J. Ch. 39, at 43%,. per Jessel, M.R. True, the decision of Jessel, M.R. was reversed (ibid.) but such reversal was on another point.
The definition of "‘business’’ in Smith v. Anderson, supra, was adopted by the Ontario Appeal Court in Rideau Club v. Ottawa (1907) 15 O.L.R. 118, and by this Court in In re Nor. Sask. Flying Training School Ltd. and Buckland R.M.; In re Prince Albert Air Observers f School Ltd. and Buckland R.M. [1943] 3 W.W.R. 609, [1944] C.T.C. 40.
Now it seems clear to me that the company was not carrying on business for the purpose of profit. The preferred shares had been redeemed in April, 1943, and so no question arises in respect of them; no dividend is payable in respect of the common shares; the company will have no share in any surplus assets, and it is engaged solely in performing the contract in question.
This distinguishes this case from In re Nor. Sa^k. Flying Training School Ltd. and Buckland R.M., supra, the basis of the decision there being that that company was carrying on business for profit. The provisions of the contract in question there were, as frankly admitted by learned counsel for the city, different from those of the contract in question in this ease. A summary of the terms of the former contract appears in the Judgment, and need not be repeated.
I am therefore of opinion that the company was not carrying on business within the meaning of The City Act and was not liable to assessment.
I am further of opinion that the company was not liable to assessment as the occupation by the company of the property was an occupation "for the Crown:’’ Halifax v. Halifax Harbour Commrs. [1935] S.C.R. 215.
The relation between the company and the Crown under the contract in question here seems to me to be in all essentials the same as the relation between the Halifax Harbour Commission and the Crown.
It is true that sec. 357 of The Halifax City Charter provides that the business tax shall be payable by “ " every occupier of real property,’’ ete., and that the words just quoted do not appear in The City Act. But it seems equally clear that it is the occupant of the property who is to be assessed for business. The mode of assessing businesses shall be by fixing a rate per square foot of the floor space of each building or part thereof used for business purposes (sec. 463) and the occupant of any building liable to taxation under sec. 463 shall be liable for the business tax though he may also be the owner of the premises and liable as such owner to taxation on the land (sec. 465). That it is the occupant of property who is liable for business tax seem recognized by the second question submitted.
For these reasons I am of opinion that the appeal should be allowed with costs and the assessment of the company set aside.