Metals and Alloys Co. v. Regional Assessment Commissioner, Region No. 11 and East York (Municipality), (1985) 7 O.A.C. 241 (CA)

• Judge: Houlden, Arnup and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 22, 1985
• Jurisdiction: Ontario
• Citations: (1985), 7 O.A.C. 241 (CA)

Metals & Alloys Co. v. Assess. Commr. (1985), 7 O.A.C. 241 (CA)

MLB headnote and full text

Metals and Alloys Company Ltd. v. Regional Assessment Commissioner, Region No. 11 and East York, Corporation of the Borough of

Indexed As: Metals and Alloys Co. v. Regional Assessment Commissioner, Region No. 11 and East York (Municipality)

Ontario Court of Appeal

Houlden, Arnup and Blair, JJ.A.

January 22, 1985.

Summary:

The operator of a secondary aluminum smelter alleged that a separate shelter housing a shredder was "machinery and equipment used for the purposes of a ... smelter of ore or metals" within s. 3.17 of the Assessment Act and therefore exempt from real property taxation. The operator of the smelter brought an action for a declaration that the shelter was exempt. The trial judge granted the declaration and held that the shelter was exempt from taxation for the years 1979-1982 and "subsequent years so long as the present use of the enclosure continues". The Assessment Commissioner appealed.

The Ontario Court of Appeal allowed the appeal and held that the shelter was real property and not exempt from taxation.

Real Property Tax - Topic 1565

Persons and property liable to assessment - Real property - Defined - The plaintiff operated an aluminum smelter to process scrap aluminum into aluminum ingots - An insulated structure was built to house a shredder used in the process, to combat noise pollution - The Ontario Court of Appeal held that the structure was a building, and thus within the definition of real property in the Assessment Act and taxable - See paragraphs 46 to 50.

Real Property Tax - Topic 6031

Exemptions - Commencement and duration - General - The Ontario Court of Appeal opined that the court has the authority under s. 66 of the Assessment Act, as amended, to make a declaration of exemption from taxation "in futuro" - The court opined that the declaration of exemption should read "and any subsequent year in which the facts remained the same" - See paragraphs 51 to 57.

Real Property Tax - Topic 6376

Exemptions - Particular structures - Machinery and equipment - The Ontario Court of Appeal set out the factors to be considered in determining whether an item is machinery and therefore exempt from taxation within the meaning of s. 3.17 of the Assessment Act - See paragraph 39.

Real Property Tax - Topic 6376

Exemptions - Particular structures - Machinery and equipment - The plaintiff operated an aluminum smelter to process scrap aluminum into aluminum ingots - An insulated structure was built to house a shredder used in the process, to combat noise pollution - The Ontario Court of Appeal held that the structure was a building, and thus within the definition of real property in the Assessment Act and taxable - The court held that the structure was not "machinery ... used for ... a smelter of ore or metals" and exempt under s. 3.17 of the Act - See paragraphs 46 to 50.

Words and Phrases

For any subsequent year - The Ontario Court of Appeal discussed the meaning of the phrase "for any subsequent year" as found in s. 66 of the Assessment Act, R.S.O. 1980, c. 31 - See paragraphs 51 to 57.

Words and Phrases

Machinery - The Ontario Court of Appeal discussed the meaning of the word "machinery" as found in s. 3.17 of the Assessment Act, R.S.O. 1980, c. 31 - See paragraphs 46 to 50.

Cases Noticed:

Hiram Walker & Sons Limited v. Corporation of the Town of Walkerville, [1933] S.C.R. 247, consd. [para. 16].

Chamberlayne v. Collins (1894), 10 T.L.R. 233, consd. [para. 17].

City of London v. John Labatt Limited, [1953] O.R. 800, consd. [para. 18].

Northern Broadcasting Company Limited v. The Improvement District of Mountjoy, [1950] S.C.R. 502, consd. [para. 20].

Greenmelk Company Limited v. The Township of Chatham, [1955] O.W.N. 757, consd. [para. 27].

Warren Bituminous Paving Co. Ltd. v. Corporation of the Township of Otonabee, [1963] 1 O.R. 29, consd. [para. 30].

Weyerhaeuser Canada Ltd. and City of Sault Ste. Marie, Re, [1968] 1 O.R. 460, consd. [para. 33].

Nabisco Brands Ltd. and Regional Assessment Commissioner, Region No. 15 et al. (1984), 45 O.R.(2d) 602, consd. [para. 36].

PPG Industries Canada Ltd. and Regional Assessment Commissioner, Region No. 25 et al., Re (1984), 46 O.R.(2d) 570, consd. [para. 37].

Canaport Limited v. Minister of Municipal Affairs, [1976] 2 S.C.R. 599; 7 N.R. 367; 12 N.B.R.(2d) 277; 10 A.P.R. 277, consd. [para. 41].

Irving Oil Company Limited v. Minister of Municipal Affairs, [1977] 1 S.C.R. 310; 8 N.R. 25; 13 N.B.R.(2d) 37; 13 A.P.R. 37, consd. [para. 41].

Shell Mex and B.P., Ltd. v. Holyoak (Valuation Officer), [1959] 1 All E.R. 391 (H.L.), not appld. [para. 44].

Manchester Marine Ltd. v. Duckworth (Valuation Officer), [1973] 3 All E.R. 838 (C.A.), not appld. [para. 44].

Union Cold Storage Co. Ltd. v. Phillips (Valuation Officer), [1976] R.A. 173 (H.L.), not appld. [para. 44].

Xerox of Canada Ltd. and Regional Assessment Commissioner, Region No. 10 et al., Re (1980), 30 O.R.(2d) 90, affd. [1981] 2 S.C.R. 137, refd to. [para. 46].

St. Anne's Tower Corporation and City of Toronto, Re (1974), 5 O.R.(2d) 718, refd to. [para. 53].

Statutes Noticed:

Assessment Act, R.S.O. 1980, c. 31, sect. 1(k)(iv) [paras. 12-13, 15]; sect. 3.17 [paras. 12-15, 24, 26]; sect. 66 [para. 52].

Assessment Amendment Act, S.O. 1971, c. 79, sect. 13 [para. 52].

Authors and Works Noticed:

Oxford Dictionary [para. 20].

Webster's New International Dictionary (2nd Ed. 1948) [paras. 21-22, 24].

Webster's New International Dictionary (3rd Ed. 1961) [para. 22].

Webster's New International Dictionary (3rd Rev. Ed. 1977) [paras. 23-24].

Webster's New World Dictionary (College Ed. 1968) [para. 25].

Counsel:

B. Chernos, Q.C., and C.B. Davis, for the defendant, Regional Assessment Commissioner, appellant;

Paul J. Pape, for the plaintiff, respondent.

This appeal was heard before Houlden, Arnup and Blair, JJ.A., of the Ontario Court of Appeal on December 12 and 13, 1984. The decision of the Court of Appeal was delivered by Arnup, J.A., and released on January 22, 1985.