Clark House, Re, (1972) 5 N.B.R.(2d) 431 (CA)

• Judge: Ryan, J.A., concurred with Bugold, J.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: November 24, 1972
• Jurisdiction: New Brunswick
• Citations: (1972), 5 N.B.R.(2d) 431 (CA)

Clark House, Re (1972), 5 N.B.R.(2d) 431 (CA);

    5 R.N.-B.(2e) 431

MLB headnote and full text

Sommaire et texte intégral

Re Clark House

Indexed As: Clark House, Re

Répertorié: Clark House, Re

New Brunswick Court of Appeal

Bugold, and Ryan, JJ.A., and Barry, J.(ad hoc)

November 24, 1972.

Summary:

Résumé:

The New Brunswick Court of Appeal dismissed an application for an order of certiorari to quash a notice of assessment and a notice of taxation with respect to a boarding home for elderly ladies in Fredericton, New Brunswick. The home was operated by the I.O.D.E. (Imperial Order Daughters of the Empire) incorporated under a special act of the Parliament of Canada. The boarding home was operated for the benefit of ladies, age 60 years or older. The boarders were required to pay a weekly charge of $35 to $40 depending upon the accommodation. In addition, the boarders were required to deposit, upon admission, $300 to cover mortuary expenses. In addition, each lady boarder was required to supply a guarantee, with two sureties, for the payment of all outstanding amounts owed by the boarders to the I.O.D.E. The weekly charge was set and designed to cover all operating costs of the home excluding charges for depreciation and major repairs.

The New Brunswick Court of Appeal held that the operation of the home was not charitable in character because the home was expected to be self sustaining except as to capital costs. The appeal court stated that the boarding house was administered "for ladies in the middle class income sector of society" which ladies were required to pay "the whole or substantially the whole cost of their residence" - see paragraph 38.

The New Brunswick Court of Appeal stated that the operation of the home involved "no element of relief of poverty or distress" - see paragraph 29. In addition, the services were not offered or accepted as charity - see paragraph 27.

The New Brunswick Court of Appeal stated that the designation of the I.O.D.E. Clark House as a registered Canadian Charitable organization pursuant to the Income Tax Act, was not relevant to the interpretation of section 4 of the Assessment Act - see paragraph 14.

Real Property Tax - Topic 6053

Exemptions - Charitable purposes - Charity and charitable activities defined - Taxation - Assessment of realty - Section 4(1)(da) of the Assessment Act - The New Brunswick Court of Appeal refused to grant an exemption and held liable to taxation a boarding home for ladies, age 60 years or older, where the ladies paid a weekly charge which covered the operating expenses of the home excluding charges for depreciation and major repairs - The Court of Appeal stated that the operation of such a home did not constitute a charitable activity.

Real Property Tax - Topic 6463

Exemptions - Practice - Relief which should be applied for - Taxation - Assessment of realty - Procedure to claim an exemption and to appeal from an assessment of realty for purposes of taxation - The New Brunswick Court of Appeal stated that such an appeal can be more satisfactorily dealt with where the taxpayer commences an action for a declaration rather than an application for an order of certiorari - Paragraph 67.

Real Property Tax - Topic 6406

Exemptions - Evidence and proof - Onus of proof - Taxation - Assessment of realty - Burden of proof - The New Brunswick Court of Appeal stated that a claimant for an exemption has the burden of establishing that the claimant is clearly within the words of the exemption - Paragraphs 56 and 63.

Words and Phrases

Charitable - The New Brunswick Court of Appeal discussed the meaning of "charitable", as found in s. 4 of the Assessment Act, S.N.B. 1965-66, c. 119.

Cases Noticed:

Re Marshall's Will Trusts, [1945] 1 Ch. 217, folld.

Re Ina Grafton Homes and Township of East York (1963), 40 D.L.R.(2d) 401, folld.

The Commissioners for Special Purposes of the Income Tax v. John Frederick Pemsel, [1891] A.C. 531, folld.

Ruthenian Catholic Mission v. Mundare School District, [1924] S.C.R. 620, folld.

The Minister of Municipal Affairs v. Saint John Y's Men's Properties Co. Ltd. (1969), 1 N.B.R.(2d) 411 (C.A.), folld.

The Minister of Municipal Affairs v. The Young Women's Christian Association of Moncton (1969), 1 N.B.R.(2d) 432 (C.A.), folld.

Protestant Old Ladies Home v. Provincial Treasurer of Prince Edward Island, [1941] 2 D.L.R. 534 (S.C.), folld.

Re Sherbourne House Trust (1931-32), 40 O.W.N. 196 (Ont. C.A.), folld.

MacDuff, MacDuff v. MacDuff, [1896] 2 Chan. 451, folld.

Re City of London and Ursuline Religious of Diocese of London, [1964] 1 O.R. 587 (C.A.), 591, folld.

Re Mennonite Home Association of York County and Village of Stouffville et al. (1970), 12 D.L.R.(3d) 97 (C.A.), folld.

Statutes Noticed:

Assessment Act, S.N.B. 1965-66, c. 110, sect. 4(1)(da), sect. 14(1), sect. 14(4).

Counsel:

E.J. Mockler, for the applicant;

David M. Norman, and Richard Burns, for the respondent, Minister of Municipal Affairs.

Ryan, J.A., concurred with Bugold, J.A.