Supreme Court of Canada

Xerox v. Regional Assessment Commissioner, et al., [1981] 2 S.C.R. 137

Date: 1981-11-24

Xerox of Canada Limited (Plaintiff) Appellant;

and

The Regional Assessment Commissioner, Region No. 10 and the Corporation of the Borough of North York (Defendants) Respondents.

1981: November 24.

Present: Martland, Dickson, Beetz, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Business tax—Assessment—Whether or not appellant assessable as seller of services—“Services” to bear its ordinary meaning—The Assessment Act, R.S.O. 1970, c. 32, s. 7(1)(e).

APPEAL from a judgment of the Court of Appeal for Ontario[^1], allowing an appeal from a judgment of the Divisional Court[^2], allowing an appeal from an order of the Ontario Municipal Board[^3], dismissing an appeal from a decision of a County Court Judge which excluded a corporation from assessment under s. 7(1)(e) of the Ontario Assessment Act. Appeal allowed.

Thomas G. Heintzman, Q.C., and Phillip Sanford, for the appellant.

Bernard Chernos, Q.C., and Raymond H. Raphael, for the respondents.

The judgment of the court was delivered orally by

MARTLAND J.—The only issue in this appeal is as to whether the appellant’s business falls within para, (e) of s. 7(1) of The Assessment Act, R.S.O. 1970, c. 32, which applies to “Every person carrying on the business of selling goods or services”. If it does not, then para. (j) of that subsection is applicable to it.

Blair J.A. in his dissenting reasons in the Court of Appeal reached the following conclusions:

[Page 138]

In summary, I consider the Divisional Court erred in concluding that the leasing of facilities which would enable a customer to do his own photocopying was the sale of a “service” within the meaning of s. 7(1)(e). The extended definitions of service on which it relied are inapplicable and the word “services” must bear its ordinary meaning of being the product of the work of the person supplying it.

Therefore I have no hesitancy in concluding that on a plain reading of the Act Xerox is not assessable for business tax under s. 7(1)(e) and must be assessed under s. 7(1)(j).

We are in agreement with his conclusions.

The appeal is allowed. The orders of the Court of Appeal and of the Divisional Court are set aside and the decision of the Ontario Municipal Board is restored. The appellant is entitled to its costs throughout.

Judgment accordingly.

Solicitors for the appellant: McCarthy & McCarthy, Toronto.

Solicitors for the respondents: Feigman & Chernos, Toronto.

[^1]: (1980), 1980 ON CA, 30 O.R. (2d) 90. [^2]: (1979), 1979 ON SC, 27 O.R. (2d) 269. [^3]: (1978), 9 O.M.B.R. 330.