C.A. No. 125360
NOVA SCOTIA COURT OF APPEAL
Cite as: Hussain v. Dartmouth (City), 1996 NSCA 142
Hallett, Chipman and Pugsley, JJ.A.
BETWEEN: )
)
SYED HUSSAIN and GLORIA HUSSAIN ) Meinhard Doelle
) and Gerald W. Green
Appellants ) for the Appellants
)
- and - )
)
CITY OF DARTMOUTH and THE DIRECTOR ) Randall R. Duplak, Q.C.
OF ASSESSMENT FOR THE PROVINCE ) and Amy J. Parker
OF NOVA SCOTIA ) for the Respondent,
) Director of Assessment
Respondents )
)
)
)
) Appeal Heard:
) June 18, 1996
)
)
)
) Judgment Delivered:
) July 3, 1996
THE COURT: The appeal is dismissed with costs in the amount of $1,000.00, plus disbursements, as per reasons for judgment of Chipman, J.A.; Hallett and Pugsley, JJ.A., concurring.
CHIPMAN, J.A.:
This is an appeal from a decision of a judge in Chambers in Supreme Court dismissing an application for a mandamus ordering the Director of Assessment to exempt the appellants' property from taxation under s. 5(1)(b) of the Assessment Act, R.S.N.S. 1989, c. 23 as amended, and for a certiorari quashing the decision of the Director refusing to do so.
The appellants acquired property at 6 Admiral Street, Dartmouth from Woodlawn Shopping Centre Limited on April 25, 1991. Woodlawn had acquired it from Pentecostal Assemblies of Canada on April 6, 1989. Pentecostal Assemblies had used the property as a church prior to selling it to Woodlawn. During the time Pentecostal Assemblies owned it, it was assessed as commercial exempt pursuant to s. 5(1)(b) of the Assessment Act. Pentecostal Assemblies built the building situated on the property and consecrated it with a religious service and the laying of a corner stone. It held services of worship continuously until it sold the property to Woodlawn, and thereafter with Woodlawn's permission. It ceased holding services after December 31, 1990 and the corner stone which had been laid during the consecration of the building was removed.
On January 1, 1991, the property was assessed to Woodlawn as commercial taxable pursuant to s. 5(1)(b) of the Act and it was so assessed at the time it was acquired by the appellants in April of 1991.
The building on the property has been vacant and never used as a church since the Pentecostal Assemblies ceased using it on December 31, 1990. It looks like a church building, having a cross on the front elevation and a steeple.
The appellants were President and Secretary respectively of the Islamic Association of Maritime Provinces. They claimed that they were requested by the Congregation of the Association to acquire the property for use as a Mosque. They maintained that the title was put in their name because the Muslim faith has a prohibition against participating in what is known as usury. That did not explain to the satisfaction of the Chambers judge why, if the property was bought by the appellants on behalf of the Congregation, it could not have been put in the Congregation's name and why, if the Congregation owed the appellants the purchase price, the debt could not have been secured by a mortgage without interest.
The appellants said that during 1993 they became aware that the Congregation no longer had any plans to use the property as a place of worship.
In an affidavit the assessor stated that the Islamic Association of Maritime Provinces owned a property at 42 Leaman Drive, Dartmouth, Nova Scotia, which had been used as a Mosque and private religious school since 1971. The assessor also stated that he had been advised that a company of which the male appellant was President applied for a Development Agreement with the City of Halifax to construct an addition to a property on South Park Street for use as a school and place of worship for the Muslim religion and that the Development Agreement was placed in abeyance pending negotiations regarding a lease by the Association on a portion of Chebucto School in Halifax for use as a school and place of worship.
In January, 1992, the appellants appealed the assessment of the property to the Regional Assessment Appeal Court (RAAC). In the Notice of Appeal, it was stated that the church building would be demolished and the land used for residential purposes. The RAAC dismissed the appeal on June 29, 1992 confirming the assessment in the amount of $300,000.
The appellants also appealed the 1993, 1994 and 1995 assessments to the RAAC. The subsequent notices of appeal referred to the building on the property as a vacant church. The appellants maintained in their affidavits sworn on July 7, 1995 that they understood that RAAC had authority to declare the property to be exempt under the Act. Other grounds for their appeals were the amount of the assessment and the designation of the property as commercial. They subsequently discovered that the question whether the property was exempt from taxation under the Act was a matter for determination in the Supreme Court.
On July 10, 1995, the appellants made this application to the Supreme Court for an order in the nature of mandamus and certiorari and for a declaration that the property was exempt from taxation under s. 5(1)(b) of the Act:
5 (1) The following property is exempt from taxation under this Act:
. . .
(b) every church and place of worship and the land used in connection therewith, and every churchyard and church burial ground and every church hall used for religious or congregational purposes exclusively save only for occasions specially authorized by church authorities and for which no revenue in excess of one hundred dollars per annum is received, but in computing revenue for the purposes of this clause there shall be excluded any contribution paid towards the reasonable additional costs of upkeep imposed by the use;
. . .
The Chambers judge observed that the burden was upon the appellants to show that the property should be granted an exempt status. He referred to inconsistencies in the appellants' affidavits and held that the appellants had not discharged the burden of proof upon them as enunciated in Acadia University v. District of Barrington (1978), 28 N.S.R. (2d) 596. The property was assessed as a commercial property when the appellants purchased it. It was not owned by a religious organization. The religious organization for which the appellants claimed to hold the property did not have, and never had, a firm intention of using it as a place of worship. The Chambers judge concluded that the appellants owned the property apparently in their own name and for their own account.
The Chambers judge referred to and distinguished case law relied upon by the appellants. He concluded:
In the case before me, the building in question, I would gather, certainly looks like a church and has functioned as a church, but it is not owned by a church organization and there is no present intention on the part of any organization to use it as a place of worship. Subsection 5(1)(b) permits "every church and place of worship" to be exempt - this building is neither. With respect to contrary opinions, I see no ambiguity in s. 5(1) of the Act. I conclude the property is not qualified to receive the exemption sought. It is not a "church and place of worship", and in the absence of some intention to use it as a church, it is neither.
The Chambers judge dismissed the application.
The issue before us is whether the Chambers judge erred in concluding that the property was not exempt from taxation pursuant to s. 5(1)(b) of the Act.
We are bound by the conclusion of the Chambers judge that there is no present intention on the part of any organization to use the property as a place of worship. This is a finding which was not shown to be erroneous.
The appellants stress the fact that the property was once owned by a religious organization and used by it for worship. They say that as it is still vacant, the change of ownership and cessation of use are not disqualifying events. In response to this I would point out that an exemption is not a permanent status attached to a property. The Director of Assessment completes and forwards the Assessment Roll to the clerk of the Municipality on or before December 31 of each year (s. 52 of the Act). An owner loses an exemption for the portion of the taxation year during which it is not exempt if it ceases to be so exempt on or before March 1 in any year (s. 9 of the Act). Thus, the exempt status of a property is a matter for consideration in each and every taxation year. The property at issue had already ceased to be classified as exempt before the appellants purchased it.
The question of law that arises is whether, at the time of the application to the Supreme Court this building - not owned by a religious organization or used or intended to be used by such an organization - is a church within the meaning of s. 5(1)(b) of the Act. I am satisfied that if this vacant building cannot be considered a church, it is certainly not a place of worship.
The exemptions listed in s. 5(1)(b) of the Act are:
(a) every church;
(b) every place of worship;
(c) the land used in connection therewith;
(d) every church yard;
(e) every church burial ground;
(f) every church hall used for religious or congregational purposes on the basis specified in the subsection.
The appellants refer to the presumption set out in Driedger on the Construction of Statutes, Third Edition, (Toronto: Butterworths 1994), which is stated in the following terms at p. 163:
It is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings. Another way of understanding this presumption is to say that the legislature is presumed to avoid stylistic variation. Once a particular way of expressing a meaning has been adopted, it is used each time that meaning is intended. Given this practice, it then makes sense to infer that where a different form of expression is used, a different meaning is intended.
At p. 170 the author state:
One of the most striking features of legislative drafting is its avoidance of stylistic variation. As much as possible, drafters strive for uniform and consistent expression. Once a pattern of words has been devised to express a particular purpose or meaning, the pattern is used for this purpose or meaning each time the occasion arises. This practice of consistent expression creates expectations in the reader that may form the basis for an implied exclusion argument.
The appellants point out that under s. 5(1) of the Act, the exemption for a church is not qualified in any way by requiring any particular ownership or user. Other portions of s. 5(1) are qualified by ownership and/or use requirements. For example, s. 5(1)(n) provides for exemption for property owned by the Royal Canadian Legion which is used exclusively for the purposes of the Legion. Similarly, s. 5(1)(h) provides an exemption for property owned by a municipality whether occupied for the use of the municipality or unoccupied. Even within s. 5(1)(b) there is a use requirement for the land used in connection with a church or a place of worship and church halls. The Legislature must be presumed to be consistent. It would use these preconditions or qualifiers with respect to churches and places of worship if it intended them to apply.
I have reviewed s. 5(1) of the Act which sets out the various properties which are exempt from taxation. Not all of these are qualified by ownership and/or use requirements. For example:
. . .
(e) every public school house, city or town hall, court house, gaol, lockup house and temperance hall, and the land used in connection therewith;
(f) all school lands;
(g) all public landings, public breakwaters and public wharves;
I am unable to conclude that the Legislature has shown any stylistic consistency in s. 5(1) of the Act which is of any assistance in resolving the issue before us.
The appellants refer to two cases in Ontario dealing with the application of the exemption provisions in the Ontario Assessment Act: Re Presbyterian Church Building Corp. and Assessment Commissioner for Territorial District of Algoma, [1973] 3 O.R. 1007 and Re Regional Assessment Commissioner, Region No. 31 and Corporation of Synod of Toronto and Kingston - The Presbyterian Church of Canada (1974), 4 O.R. (2d) 773. The relevant provision of the Ontario Assessment Act applied by the court in both of those cases was s. 3, para. 3:
3. All real property in Ontario is liable to assessment and taxation, subject to the following exemptions from taxation:
3. Every place of worship and land used in connection therewith and every churchyard, cemetery or burying ground.
(a) Where land is acquired for the purpose of a cemetery or burying ground but is not immediately required for such purpose, it is not entitled to exemption from taxation under this paragraph until it has been enclosed and actually and bona fide required, used and occupied for the interment of the dead.
(b) The exemption from taxation under this paragraph does not apply to lands rented or leased to a church or religious organization by any person other than another church or religious organization.
In both cases, Presbyterian churches had been established. They were owned on behalf of the Presbyterian Church of Canada. They were subsequently closed as places of worship and were vacant. The buildings were still owned on behalf of the Church. In the first case, Vannini D.C.J. of the Ontario District Court and in the second, Lacourciere, J. of the Ontario High Court of Justice found that the properties were exempt. Vannini, J. said, [1973] 3 O.R. at p. 1010:
Except in respect of the lands, there are no disqualifying conditions to the exemption provided by the Act in respect of a place of worship. If the Legislature had intended that the exemption only apply as long as the place was actually used, in use or occupied as a place of worship, it could have imposed such conditions by express language, as with some of the other exemptions . . .
Vannini, J. concluded at p. 1011:
While the building in question is not now actually used or occupied as a place of worship it once was and still remains available as such to any religious denomination or group who may be interested in acquiring it by purchase.
As a building the place is still, functionally at least, a church. It is available to anyone interested to use it as a place of worship. As long as it remains fundamentally a church building it may be used as a place of worship and where, as here, it is still owned by or on behalf of a recognized church body, then, in the absence of any express disqualifying conditions as to actual use or occupation as such, it remains a place of worship entitling it to the exemption provided by s. 3, para. 3 of the Act for the meaning thereof is not to be strained in the absence of such expressed disqualifying conditions.
An exemption which is clearly provided for is not to be taken away except by words equally as clear as was done with some of the other exemptions.
In the second case, Lacourciere, J. said, 4 O.R. (2d) at p. 776:
The words "place of worship" do not have as necessary to their meaning the actual use of the buildings or structures. Rather they name a certain type of building which has as its purpose worship. The Legislature has not seen fit to qualify "place of worship" by adding the conditions that it be actually used as a place of worship or that it continue to carry on actively as a place of worship and I am not prepared to read these conditions into the legislation.
It is to be observed that the Ontario legislation differs from that which we are called upon to construe. There is an implication to be found in paragraph 3(b) that ownership of the property at issue must be held by a religious organization. In the two cases cited, a religious organization was, in fact, the owner. In that respect, the cases are different from this case, but the appellants contend that the rationale in those cases - that the legislation provided no criteria as to use or intention to use - is important in the interpretation of s. 5(1)(b) of the Act.
The Chambers judge held that the Ontario cases were distinguishable because in both the property was still owned on behalf of a recognized church body. Here the vacant building was not owned by a religious organization and no religious organization had any intention of putting it to a religious use.
What was the intent of the Legislature here? The word "church" has a number of dictionary meanings depending on the context in which it is used. Black's Law Dictionary, Fifth Edition (West Publishing Co. 1979), defines the physical object:
. . . place where persons regularly assemble for worship;
. . .
Church property. Within constitutional exemption from taxation it means property used principally for religious worship and instruction. Church of the Holy Faith v. State Tax Commission, 39 N.M. 403, 48 P. 2d 777, 784.
The Collins Concise Dictionary (1988), refers to the building as "a building for public worship, esp. Christian worship". The Concise Oxford Dictionary (1982) defines it as a "building for public Christian worship". The Random House Dictionary of the English Language (Second Edition 1987) has the same definition.
In ascertaining the legislative intent in s. 5(1)(b) of the Act, respecting the meaning of the word "church", s. 9(5) of the Interpretation Act, R.S.N.S. 1989, c. 235 must be kept in mind:
9 (5) Every enactment shall be deemed remedial and interpreted to insure the attainment of its objects by considering among other matters
(a) the occasion and necessity for the enactment;
(b) the circumstances existing at the time it was passed;
(c) the mischief to be remedied;
(d) the object to be attained;
(e) the former law, including other enactments upon the same or similar subjects;
(f) the consequences of a particular interpretation; and
(g) the history of legislation on the subject.
In Evangelical Lutheran Synod of Missouri, Ohio and Other States v. Edmonton, [1934] 2 D.L.R. 513 (S.C.C.), Lamont, J. with whom Duff, C.J.C. and Hughes J. concurred said at p. 514 in dealing with a claim of exemption from taxation:
. . . The Act grants immunity from a burden which most other inhabitants are called upon to bear, and those who claim the benefit of that immunity must bring themselves strictly within the purview of the statute granting it, . . .
This principle was applied by this Court in Municipality of the County of Kings v. International Christian Mission Inc. (1963), 47 M.P.R. 244 at p. 248.
In my opinion, the Legislature never intended to give a taxpayer an exemption under s. 5(1)(b) of the Act with respect to a building not used as a church, not owned by a religious organization, and in which no religious organization had formed any intention to hold services of worship. Nor does the fact that the property once had one or more of these attributes make any difference. It is not necessary to make any further determination as to the precise nature of the ownership or degree of user which might be sufficient. It was clearly insufficient here to constitute the building on the appellants' property a church within the meaning of the Act.
The appellants have not shown that the Chambers judge erred in declining to apply the exemption in the Act to the facts as found by him.
I would dismiss the appeal with costs in the amount of $1,000.00, plus disbursements.
Chipman, J.A.
Concurred in:
Hallett, J.A.
Pugsley, J.A.