Kew v. Burlington

Was the defendant entitled to add the Assessment Roll to the Collectors Roll, issue tax notices and impose taxes in the circumstances herein for the year 1971?—No.

Are the proceedings and decisions therein referred to in para. 10 of this stated case an attack by the plaintiff

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upon the collectors roll in this action?—If this question is whether the matter is res judicata, the answer is no.

Is the claim of the plaintiff herein barred by the limitation provisions contained in the Assessment Act?—No.

Is the plaintiff entitled to recover from the defendant the sum of $88,624.82 referred to in para. 2 above?—Yes.

If the answer to question 4 is yes, is the plaintiff entitled to interest and, if so, at what rate?—The issue of interest was not the subject of argument in this Court. In its statement of claim, the plaintiff asked for interest at the rate of 1 per cent per month from the date of payment of the claimed taxes, July 30, 1974, until repayment to the plaintiff‑appellant, “the rate of interest being the same as that charged by the defendant to the plaintiff on arrears of taxes”. The question of interest is complicated further by the fact that The Judicature Act was amended in 1977 by 1977 (Ont.), c. 51, s. 3(2) of which provides as follows:

3. (2) This section applies to the payment of money under judgments delivered after this section comes into force but no interest shall be awarded under this section for a period before this section comes into force.

The amending statute came into force on November 25, 1977.

The record filed by the parties in this Court does not disclose the precise nature of the proceedings in Weekly Court, nor is it apparent whether the parties have invoked Rules 124 and 125 as well as Rule 497b of the Rules of Practice of the Supreme Court of Ontario. Thus it is not clear that upon disposition of the stated case, the parties have in effect agreed that judgment shall go on the basis of the answers given. However, in its factum filed in this Court, the appellant asked that the judgment of the Court of Appeal “be set aside and that judgment be entered for the plaintiff as prayed in the statement of claim with interest at such rate as this honourable Court may determine”. The response by the respondent to this proposal was simply that the appeal be dismissed. Under these circumstances, and bearing in mind the lengthy proceedings endured by the parties in this action and in the prior appeal proceeding, I think the proper course is to refer the interest issue to a Supreme Court judge sitting in Weekly Court for a determination on any evidence which the parties may wish to adduce in the manner authorized by the Rules of Court, of that part of question 5 which asks what rate of interest is applicable, it being my opinion that the

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appellant is entitled to interest from and after July 30, 1974, being the date of payment under protest of the unauthorized demand for taxes.

As between the plaintiff and defendant, who shall pay the costs of these proceedings?—The respondent shall pay the costs of these proceedings in this Court and in all the Courts below to the appellant.