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SC 213 Rivtow Industries et al v. Assessment Commissioner
Quick Link to Stated Case #213 (BCCA)
Quick Link to Stated Case #213 (SCC)
See Stated Case #278 also
RIVTOW INDUSTRIES
RIVTOW STRAITS LTD.
RIVTOW MARINE LTD.
IMPERIAL MARINE INDUSTRIES LTD.
POINT GREY TOWING CO LTD.
v.
THE ASSESSMENT COMMISSIONER OF BRITISH COLUMBIA
Supreme Court of British Columbia (A832280) Vancouver Registry
Before: MR. JUSTICE T.A. DOHM
Vancouver September 27, 1983
J.W. Elwick for the Appellants
J.E.D. Savage for the Respondent
Crown Land - Water Lots - Occupiers - Land - Definitions
RivTow held water leases or licences from the Crown for log booming and storage. As
such they occupied various amounts of the water surface, but only negligibly "occupied" the water
bottom.
This lower Court decision held that Rivtow generally occupied its water lots. It was,
however, reversed resoundingly 3 years later by the Court of Appeal.
Reasons for Judgment (Oral)
September 27, 1983
The issue in this appeal is whether or not the Appellant is an occupier under the Assessment Act
or the Taxation (Rural Area) Act.
I think the words of the Honourable Mr. Justice Murphy in Excelsior Paper Stock Limited v.
Cartwright Lumber Company Limited (1941) 1 W.W.R. 607 are important and determine the
issue:
"Possession must be considered in every case with reference to peculiar circumstances.
The character and value of the property, the suitable and natural mode of using it, the
course of conduct the proprietor might reasonably be expected to follow with the due
regard to his own interests."
I think that the statement is most applicable to the present circumstances.
When dealing with water lots, I am of the view that there are no differences for taxation purposes
between land and water. Water lots are peculiar animals. I say, with respect, the case of Her
Majesty the Queen v. Newmont Mines Ltd. (1982) 37 B.C.L.R. I and the reasoning of Mr. Justice
Lambert is applicable. I think the Assessment Appeal Board followed that case, and did so
correctly.
That case dealt with land per se and there is no difference between what the Court said there and
what the Board has said in the present case dealing with water lots.
So far as the questions are concerned, I think to some extent, some of the questions are
questions of fact. Treating question 1 and question 2 the same, I would answer those questions
"No", I would answer question 3 "Yes" and questions 4 and 5 "No".
I have indicated my reasons for answering" No" to the first two questions when I referred to the
Newmont Mines Ltd. case and its application to water lots.
With respect to questions 3 and 4, I really think these are questions of fact and I am not about to
interfere with the decision of the Board in respect thereto. I note with respect to questions 3 and 4
that the Lessee may at any time apply for reduction in the size of his water lot if he is not using
the same. It also seems to me almost impossible to provide on the issue of occupation for
intermittency in the use of property. It has to be on an annual or biannual basis; it would
otherwise be impossible to police.
In respect to question 5, I agree with Mr. Elwick that the term "passive use" used by the Board
may cause some difficulty. I think it is inappropriate, and the Board need not concern itself with
any such terms. The fact is, there were no other occupiers other than the Appellants, and it
seems to me, keeping in mind that we are dealing here with water lots, that if a water lot is
leased, it is presumed that part of the water lot would not be usable.
For these reasons then I would dismiss the appeal with costs to the Respondent.
SC 213cont Rivtow Industries et al v. Commissioner
RIVTOW INDUSTRIES
RIVTOW STRAITS LTD.
RIVTOW MARINE LTD.
IMPERIAL MARINE INDUSTRIES LTD.
POINT GREY TOWING CO LTD.
v.
THE ASSESSMENT COMMISSIONER OF BRITISH COLUMBIA
British Columbia Court of Appeal (CA001356) Vancouver Registry
Before: MR. JUSTICE J.D. TAGGART, MR. JUSTICE A.B.B. CARROTHERS and MR. JUSTICE
R.P. ANDERSON
January 17, 1986
J.W. Elwick for the Appellants
J.E.D. Savage for the Respondent
[1]
Occupiers - Waterlots for Log Booming and Storage - Trespass
The issue in this appeal was whether or not the Appellant was an occupier under the
Assessment Act or the Taxation (Rural Area) Act of certain premises under lease or license from
the Crown Provincial or Crown Federal which it held for log storing purposes in tidal and non-tidal
waters of the province.
The Assessment Appeal Board found that the Appellant was in actual occupation and
possession of the premises. This finding was upheld in Supreme Court following Excelsior Paper
Stock Limited v. Cartwright Lumber Company Limited (1941) 1 W.W.R. 607 and applying Her
Majesty the Queen v. Newmont Mines Ltd. (1982) 37 B.C.L.R. 1. The Assessor argued that in
addition to actual physical occupation and possession, the Appellant was an occupier as a person
who, if trespass has occurred, is entitled to maintain an action for trespass.
HELD:
1. A demise of the surface of moving waters is legally difficult and must perforce relate to the
bottom of land. The Appellant, while possessing and occupying the surface of the water, has not
reduced to possession or occupied the bottom, and therefore, the possession and occupation test
in the Newmont case has not been met;
2. As these waterlot leases involve the use of the surface of water, any trespass to be actionable
would have to relate exclusively to the surface of the water. The trespass argument is restricted
to trespass to land and fails with the finding that the Appellant does not possess or occupy the
bottom of the waterlots in question. The question of trespass is too problematical, indirect and
uncertain in this case upon which to found an assessment for taxation purposes.
Reasons for Judgment of Mr. Justice Carrothers
January 17, 1986
This appeal has a history that bears repeating. The appellant companies which, for purposes of
this appeal may conveniently be referred to collectively simply as "RivTow", were on December
12, 1983 granted leave by Hinkson, J.A. to appeal to this Court from the decision of Dohm, J.
pronounced September 27, 1983 answering questions put to him in a case stated July 25, 1983
by the Assessment Appeal Board, pursuant to s. 74 (2) of the Assessment Act, R.S.B.C. 1979, c.
21 as amended (the "Act").
[1]
Amended 15/9/86.
I think it useful to digress at this point in the history of this appeal to understand the fundamental
issue which was of concern to the various tribunals throughout and which is the pivotal issue on
this appeal.
The statutory provision for the assessment of land, the fee of which is in the Crown, is to be found
in s. 34 (1) of the Act as follows:
34. (1) Land, the fee of which is in the Crown, or in some person on behalf of the Crown,
that is held or occupied otherwise than by, or on behalf of, the Crown, is, with the
improvements on it, liable to assessment in accordance with this section.
It is to be noted that the subject of the assessment is "land", which by s. 1 of the Act includes land
covered by water, and which is to be distinguished from the surface of the water.
The stated case, to which I have made reference, had its genesis in the decisions of the 1982
Courts of Revision in respect of a number of water lot leases or licences of use and occupation
held by RivTow for log booming and log storage purposes.
These leases or licences, granted exclusively for these limited purposes, were held by RivTow
from either the federal Crown or the provincial Crown and purported to grant rights of use and
occupation of the surface of water covering variously the sea bed or a river bed owned or
controlled by the Crown, either federal or provincial, in all cases navigable waters.
RivTow, in the exercise of its rights of use and occupation of these water lots as log booming and
storage grounds, uses and occupies each lot to different extent and degree and for periods of
time varying from hours or days to months. Floating logs and booms of logs are secured in
position within the water lots by dolphins or piling standing on, driven into or fixed to the sea bed
or river bed. In a few instances, the logs are secured in position by anchor cables affixed to the
upland usually with iron pins set in rock or driven into the ground. An inconsequential area of the
upland would be employed in this fashion. The unoccupied upland occasionally serves as a
windbreak protecting the water lot from the elements, making it more suitable for log storage
purposes. These are the only contacts with "land".
Ingress to and egress from a water lot with logs is on the surface of the water and the log
booming and storage activity within the water lot invariably takes place on the surface of the
water except for the relatively infinitesimal areas of the bottom occupied by footings of any
dolphins or piles aforesaid.
The 1982 Courts of Revision held that these water lot leases were assessable and RivTow
appealed the issue of assessability to the Assessment Appeal Board. On April 22, 1983, the
Assessment Appeal Board dismissed RivTow's appeal.
Both sides sought a stated case: RivTow on the question of assessability and the Commissioner
on a question of fixtures and improvements, being the dolphins and anchor devices.
On September 27, 1983, Dohm, J. affirmed the decision of the Assessment Appeal Board finding
in favour of assessability of the water lots. The Commissioner's questions respecting fixtures and
improvements were withdrawn at the hearing, leaving five questions posed by the stated case,
which were answered by Dohm, J. as follows:
Question Posed
Determination by Dohm, J.
(i) Did the Assessment Appeal Board err in law in holding that the rights conferred on the
Appellants by certain Crown leases and licences included the right to use the surface of
the water covering the lands described in the said leases and licences (sometimes
referred to in the Decision as the demised premises and hereinafter referred to as the
"lands")?
No
(ii) Did the Assessment Appeal Board err in law in failing to distinguish between the lands,
being the property under lease or licence, and the water covering the lands, when
deciding that the Appellants possess and use the lands?
No
(iii) Does the Appellants' use of the water covering the lands render them "occupiers" of
the lands for the purposes of the Assessment Act?
Yes
(iv) Did the Assessment Appeal Board misdirect itself in holding the frequency of use is
not a criterion in determining whether the appellants were in possession or occupation of
the lands?
No
(v) Did the Assessment Appeal Board err in holding that the "passive use" of some areas
in the lands rendered those areas assessable even though not in actual use?
No
Both the Assessment Appeal Board and Dohm, J., in reaching the same conclusion, placed
reliance, in my view incorrectly, on the decision of a five-judge bench of this Court in The Queen
in Right of British Columbia v. Newmont Mines Ltd. (1982), 37 B.C.L.R. 1. That case is authority
for the proposition that Crown land is not assessable which has not been reduced to possession
by other than the Crown and which the lessee or licensee has not occupied. This leaves it open in
each case to determine whether and to what extent the land in question has, in fact, been
reduced to possession and occupation. Thus, the test which is determinative of assessability is
whether the Crown land sought to be assessed has actually been reduced to possession and
occupation by the potential taxpayer.
In the case of a mineral claim, the Crown grant specifically gives the claim holder the right to the
use and possession of the surface of the mineral claim for purposes of exploration, development
and mining production within that mineral claim. In the case of a mineral claim which has been
occupied for mining purposes, it can readily be concluded that the surface has been reduced to
possession and occupation by the holder of the mineral claim.
However, such a conclusion is not so readily reached in the case of water lots, where log
booming and storage is conducted exclusively on the surface of the water. The sea or river
bottom is not used or possessed by the lessee or licensee of a water lot except to an insignificant
extent by anchoring devices securing the logs or booms and in respect of which the questions of
the Commissioner in the stated case have been withdrawn.
In some instances, there is within the water lot lease or license area some dry protective upland
and, in some instances, there is some inaccessible or unusable water surface. I exclude those
areas from my consideration of the meaning of "occupied" as they are not areas which can be
used by RivTow for log booming and storage purposes, being the exclusive use stipulated in the
water lot lease or licence.
The attributes of possession and use of the surface of a mineral claim are patently different in
many respects from those of a water lot lease or licence. The user of a water lot for log booming
and storage purposes conducts such operation suspended in the water and does not possess or
occupy the bottom to any significant degree. Indeed the withdrawal by the Commissioner of those
questions relating to the assessment of anchoring devices confirm the triviality of the areas
occupied by the anchoring devices in relation to the overall question of assessment of water lots.
I do not consider that the case of a lessee or licensee of a water lot for log booming and storage
purposes meets the possession and occupancy test of the Newmont case.
It is "land" which is to be assessed rather than the surface of the water covering or passing over
that land. A demise of the surface of moving water is legally difficult. The demise must perforce
relate to the bottom. The fact is that RivTow, while possessing and occupying the surface of the
water, has not reduced to possession or occupied the bottom. The possessory and occupation
test of the Newmont case has not been met.
It follows that I would allow this appeal. However, before doing so, I would like to comment on a
point raised by the Commissioner for the first time on this appeal. It was not raised by the stated
case nor dealt with by Dohm, J.
The Commissioner submits that the first meaning of "occupier" as defined in s. 1 of the Act,
makes RivTow an occupier at law if not in fact. That definition, followed by three further
definitions, reads:
"occupier" means
(a) a person who, if a trespass has occurred, is entitled to maintain an action for
trespass;
So trespass "the fertile mother of actions" raises its ugly head.
As these water lot leases involve the use of the surface of water, any trespass to be actionable by
RivTow would have to relate exclusively to the surface of the water. Consequently, in the case of
a water lot, an actionable trespass would have to be founded in trespass to the person of RivTow
or trespass to the goods of RivTow, rather than trespass to land.
RivTow, by virtue of a water lot lease for log booming and storage purposes, could not found an
action against another for trespass to land. The water lot demise does not preclude the laying of
cables or other things by others than RivTow along the bottom of these water lots or the dredging
of the bottom for sand. There are various conceivable uses by others than RivTow of the sea bed
or river bed which would be compatible with RivTow's limited use of the surface of the water lots.
The "land" constituting the bottom could well be lawfully used or occupied by others than RivTow,
provided such use or occupation does not interfere with the use or occupation of the surface by
RivTow. I note that all of the other three definitions of "occupier" in s. 1 of the Act have reference
to "a person in possession of land" and, applying the ejusdem generis rule of construction, I doubt
that the Legislature had in its contemplation when enacting the first definition of "occupier"
trespass to the person or trespass to goods. I consider the trespass argument is restricted to
trespass to land and fails with the finding that RivTow does not possess or occupy the bottom of
the water lots in question.
In my view, this question of trespass is too problematical, indirect and uncertain in this case upon
which to found an assessment for taxation purposes.
In the result, this appeal must be allowed. I would answer questions (i), (ii) and (v) in the
affirmative and question (iii) in the negative. The frequency of use criterion for determining
possession or occupation was not argued before us and was not taken into consideration on this
appeal and question (iv) does not require an answer.
I agree. Mr. Justice Taggart.
I agree. Mr. Justice Anderson.
SC 213cont Rivtow Industries et al v. Commissioner (SCC)
THE ASSESSMENT COMMISSIONER OF BRITISH COLUMBIA
(Applicant)
v.
RIVTOW INDUSTRIES
RIVTOW STRAITS LTD.
RIVTOW MARINE INDUSTRIES LTD.
IMPERIAL MARINE INDUSTRIES LTD.
POINT GREY TOWING CO. LTD.
(Respondents)
Supreme Court of Canada (19795)
Present: THE HON. MR. JUSTICE McINTYRE
THE HON. MADAME JUSTICE WILSON
THE HON. MR. JUSTICE LE DAIN
April 21, 1986
Judgment
The motion for leave to appeal from the judgment of the Court of Appeal of British Columbia,
dated January 17, 1986, was heard this day and dismissed with costs.
Signed Guy Goulard, Registrar