Saint‑Basile, Village Sud (Corporation municipale de) v. Ciment Québec Inc., [1993] 2 S.C.R. 823

Ciment Québec Inc. Appellant

v.

Corporation municipale de Saint‑Basile, Village Sud Respondent

Indexed as: Saint‑Basile, Village Sud (Corporation municipale de) v. Ciment Québec Inc.

File No.: 22749.

1993: February 23; 1993: July 15.

Present: La Forest, L'Heureux‑Dubé, Gonthier, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for quebec

Municipal law ‑‑ Real estate assessment ‑‑ Immoveables not entered on assessment roll ‑‑ Interpretation of s. 65(1) of the Act respecting Municipal Taxation, R.S.Q., c. F‑2.1.

The appellant is the owner of a large industrial complex where it manufactures cement. It filed a complaint with the Bureau de révision de l'évaluation foncière ("BREF") challenging the value of the unit of assessment of its new plant and the entry of several buildings that were part of that plant on the assessment roll for 1981, 1982 and 1984. The appellant contends that most of these buildings should be excluded from the roll because they are used mainly for purposes of industrial production. The BREF allowed the appellant's complaints in part and, under s. 65(1) of the Act respecting Municipal Taxation, struck from the roll certain buildings that were part of the plant. The BREF was of the view that the exemption provided for in s. 65(1) applied not only to moveable property placed for a permanency, but also to immoveables by nature that are machines, apparatus and their accessories used mainly for purposes of industrial production and not designed to provide a service to land or a building. The Provincial Court reversed that decision and concluded that the exemption applied only to moveable property placed for a permanency, excluding buildings within the meaning of the Civil Code. The court noted that if the legislature had intended to give the word "building" in s. 65(1) a different meaning from that in the Code, it would have done so expressly. The Court of Appeal upheld the Provincial Court's decision.

Held: The appeal should be allowed.

The exemption provided for in s. 65(1) does not exclude from its scope all buildings within the meaning of the Civil Code. The wording of this subsection, interpreted and analyzed in its own particular context, requires first and foremost that the court examine each immoveable or part of an immoveable making up a given plant in the concrete setting of the industrial production, regardless of the nature of their status as immoveables. It is the requirement of industrial production which is the cornerstone of s. 65(1), and not the traditional Civil Code categories of immoveables. Given the definition of the word "immoveable" in s. 1 A.M.T., it is clear that the introductory paragraph of s. 65 ("The following immoveables are not to be entered on the roll") does not distinguish between immoveables by nature and moveable objects placed for a permanency. Further, the concepts of destination and use which have been attached to the terms "land" and "building" are foreign to the criteria for immoveables by nature in the civil law. The meaning of the terms "land" and "building" should therefore be analyzed on the basis of the legislative framework adopted by the legislature, which clarifies and qualifies the concepts in the Code and is dissociated from the traditional civil law categories. Finally, the terms "machines""apparatus" and "accessories", which are not part of the special vocabulary of the Code, may encompass in the context of s. 65(1) a whole range of immoveables which can be used mainly for purposes of industrial production.

Here, the approach taken by the BREF is in keeping with the letter and spirit of s. 65(1). First, it applied the terms "machines""apparatus" and "accessories" in the complex setting of the components of an industrial production process, regardless of the dispute as to the nature of their status as immoveables within the meaning of the Civil Code, which is consistent with the wording of the introductory paragraph. Secondly, it took into account the fact that an immoveable or part thereof can be inseparable from a machine or apparatus and at the same time provide a service to land or a building. The words "used mainly for purposes of industrial production" and "taking into account the . . . use of the land or building" require such a construction. The BREF's approach derives from the following observation: s. 65(1) does not suggest that all buildings can never be excluded from the roll on the ground that some buildings may be served by machines, apparatus or their accessories.

The Court does not express any opinion on the correctness of the findings of fact of the BREF.

Cases Cited

Distinguished: Donohue Bros. v. Parish of St‑Étienne de la Malbaie, 1924 42 (SCC), [1924] S.C.R. 511; Aluminium du Canada Ltée v. Village de Melocheville, 1972 163 (SCC), [1973] S.C.R. 792; Richmond Pulp & Paper Co. of Canada v. Town of Bromptonville, 1970 132 (SCC), [1970] S.C.R. 453; referred to: Ville de Saint‑Romuald d'Etchemin v. Ultramar Canada Inc., [1985] C.P. 212, aff'g [1980-1984] B.R.E.F. 883; Bélair v. Ville de Ste‑Rose (1922), 1922 40 (SCC), 63 S.C.R. 526; Montreal Light, Heat & Power Consolidated v. City of Outremont (1932), 53 Que. K.B. 133; Montreal Light, Heat & Power Consolidated v. City of Westmount, 1926 77 (SCC), [1926] S.C.R. 515; Bell Telephone Co. of Canada v. Ville St‑Laurent (1935), 60 Que. K.B. 101; St‑Romuald d'Etchemin (Cité de) v. Golden Eagle Canada Ltd., [1980] C.A. 74; Banque d'Hochelaga v. Waterous Engine Works Co. (1897), 1897 69 (SCC), 27 S.C.R. 406; Sherbrooke (Cité de) v. Commissaires d'écoles de Sherbrooke, 1957 60 (SCC), [1957] S.C.R. 476; Cablevision (Montreal) Inc. v. Deputy Minister of Revenue of Quebec, 1977 203 (SCC), [1978] 2 S.C.R. 64; Lower St. Lawrence Power Co. v. Immeuble Landry Ltée, 1921 60 (SCC), [1926] S.C.R. 655; Cie de papier Québec et Ontario Ltée v. Baie‑Comeau (Ville de), J.E. 89‑200.

Statutes and Regulations Cited

Act respecting Municipal Taxation, R.S.Q., c. F‑2.1, ss. 1 "immoveable", 2, 31, 65(1) [am. 1980, c. 11, s. 130].

Act respecting Municipal Taxation and providing Amendments to Certain Legislation, S.Q. 1979, c. 72.

Cities and Towns Act, R.S.Q. 1964, c. 193, s. 488.

Civil Code of Lower Canada, art. 376.

Real Estate Assessment Act, S.Q. 1971, c. 50, ss. 1(a) [repl. 1978, c. 59, s. 1], (b), (u), 8 [repl. 1979, c. 22, s. 65], 12 [am. 1972, c. 46, s. 4; am. 1973, c. 31, s. 8; am. 1978, c. 59, s. 4].

Authors Cited

Bélanger, Louise. "L'évaluation des immeubles industriels au Québec: les hauts et les bas de l'article 65 par. 1 de la Loi sur la fiscalité municipale". Dans Développements récents en droit municipal. Formation permanente du Barreau du Québec. Cowansville: Yvon Blais, 1989, 151.

Pâquet, Jean‑M. "Les aspects juridiques". Dans La réforme de la fiscalité municipale. Formation permanente du Barreau du Québec, cours 51, 1980.

Poirier, Michel, et Jean‑Marie Lavoie. "La réforme de la fiscalité municipale: taxation et paiements de transfert" (1981), 12 R.D.U.S. 141.

APPEAL from a judgment of the Quebec Court of Appeal, 1991 3130 (QC CA), [1991] R.J.Q. 2757, 41 Q.A.C. 128, affirming a judgment of the Provincial Court, J.E. 88‑149, reversing a decision of the Quebec Bureau de révision de l'évaluation foncière, [1985] B.R.E.F. 471. Appeal allowed.

Benoît Mailloux and Martin R. Gagné, for the appellant.

Paul Bégin and Suzanne Ouellet, for the respondent.

The judgment of the Court was delivered by

//L'Heureux-Dubé J.//

L'Heureux‑Dubé J. ‑‑ This appeal concerns the interpretation of s. 65(1) of the Act respecting Municipal Taxation, R.S.Q., c. F‑2.1 ("A.M.T."), formerly S.Q. 1979, c. 72. More precisely, the issue is whether the tax exemption provided by that section applies only to moveable property as defined in s. 1 A.M.T., excluding buildings within the meaning of the Civil Code.

The respondent municipal corporation argues that the appellant's immoveable property is taxable while the appellant contends that most of the facilities in its new plant should be excluded from the real estate assessment roll because they are used mainly for purposes of industrial production. The appellant's cement manufacturing process thus assumes great importance in this case.

I ‑ Facts

The appellant Ciment Québec Inc. is the owner of land within the territorial limits of the respondent municipal corporation on which there is a large industrial complex, consisting of a stone quarry and two plants. The appellant's operations involve extracting raw material from the quarry, crushing the stone extracted and mixing two types of extracted stone, one with a high and the other with a low calcareous content. Its operations also include adding additional material needed in the production of cement and a burning process, which is the final stage of manufacture. When this process is finished, the cement produced is taken to warehouses. The first plant is now out of use and is of no concern in the instant appeal. Construction of the second plant began in 1978 and was completed in late 1982. It is this latter plant which is at the core of the dispute.

In this regard the evidence, which is not disputed at this stage of the proceedings, is as follows. Unlike the old plant, the facilities in this new one are no longer contained in one building covered by a single roof; instead different production stages have been set up. Accordingly, a primary crusher, weighing 400 tons, surrounded by foundations and concrete walls, breaks the material down to a five‑and‑a‑half inch diameter. This crushed stone, consisting of high stone and low stone, is taken to secondary crushers by conveyors about 450 feet long. These conveyors are supported by steel bases and structures. The secondary crushers again break the stone down, to a two‑and‑a‑half inch diameter. The structure of the crushers supports the arrival of the conveyor as well as the transformers, the control centres of the engines and the system for lubricating the crushers.

This crushed stone is then taken to the prehomogenizer, which is where the mixing of the high and low stone begins. The prehomogenizer consists of two tanks and a gauging system below the tanks. The sheathing of the prehomogenizer keeps the humidity level below 6 percent, in accordance with the requirements of the cement production procedure. Another stage in the industrial production chain is carried out by the stone distributor, which, by means of an aerial conveyor, distributes the stone to four different locations. This conveyor is supported by a structure. Like the prehomogenizer, the sheathing of the stone distributor keeps the humidity of the stone from increasing beyond 6 percent. The sheathing also allows for recovery of dust in the air.

Before the raw material can be burned, it first has to be reduced to a fine dust. This operation is performed by the "Loesche" mill. Cyclone separators located above the mill are then used to separate the lime from the dust. Dust collected in this way is moved to a pump which then takes it to the homogenizer. Close by there are electrostatic precipitators, which filter the hot gases and recover a large quantity of dust which is reintroduced into the process. The homogenizer makes a final mixing and standardizes the concentration of the raw mix. This raw mix is then burned using the pre‑heating tower. The first stage of burning involves the raw mix in suspension dropping through four cyclones; 60 percent of the burning is done in the pre‑heating tower, the remainder by the rotary kiln, which raises the temperature from 1,000 degrees Celsius in the pre‑heating tower to 1,500 degrees Celsius.

After these two burning stages, the raw mix is transformed into clinker, which takes the form of small pellets from zero to four inches in diameter, which have to be cooled before other processing stages can take place. After emerging from the cooler, the clinker is crushed to a maximum one inch size by the clinker crusher and then carried on conveyors to the clinker stockpile. This stockpile is the last stage of the industrial process before storage. It constitutes a cushion before the clinker, to which gypsum is added, goes into the ball mills and then into storage silos. The sheathing of this stockpile is also used to recover the dust.

For the periods from January 1 to December 31, 1981, January 1 to December 31, 1982 and the 1984 fiscal year, the respondent had on its real estate assessment roll, in whole or in part, several buildings which were part of the cement production line. On April 27, 1982, the appellant, through a complaint filed with the Quebec Bureau de révision de l'évaluation foncière ("BREF"), challenged the value of the unit of assessment and the entry of certain buildings on the roll for 1981 and 1982. On April 4, 1984, the appellant filed another complaint with the BREF in which it challenged the value of the unit of assessment and the entry of certain buildings on the 1984 roll.

By a decision dated August 29, 1985, the BREF allowed the appellant's complaints in part and, under s. 65(1) A.M.T., struck from the respondent's assessment roll certain buildings which were part of its new plant. The BREF accordingly reduced the value of the unit of assessment of the appellant's plant for 1981, 1982 and 1984.

On September 25, 1985, the respondent appealed this decision to the Quebec Provincial Court and the appellant filed a cross‑appeal. By a judgment dated November 30, 1987, the Provincial Court allowed the respondent's appeal and dismissed the appellant's cross‑appeal. It restored the values of the unit of assessment of the appellant's plant for the 1981 and 1982 rolls to the level fixed by the roll amendment notices issued by the respondent and set the value of the plant's unit of assessment for 1984 at $10,231,902.

On December 17, 1987, the appellant appealed this judgment to the Quebec Court of Appeal. By a unanimous judgment dated September 10, 1981, the Court of Appeal dismissed the appellant's appeal and upheld the Provincial Court's decision.

II ‑ Legislation

Sections 1 and 31 A.M.T. read as follows at the relevant time:

1. In this act, unless the context indicates otherwise"immoveable" means an immoveable by nature within the meaning of the Civil Code or a moveable object placed by anyone for a permanency in or on an immoveable by nature;

2. Subject to the provisions of this act, the immoveables situated in the territory of a municipal corporation must be entered on the roll of the municipal corporation.

Additionally, s. 65(1) provided:

65. The following immoveables are not to be entered on the roll:

(1) machines, apparatus and their accessories used mainly for purposes of industrial production or farming operations, or intended for that use and not designed to provide a service to land or a building, taking into account the actual or intended use of the land or building;

III ‑ Judgments

Bureau de révision de l'évaluation foncière, [1985] B.R.E.F. 471

After referring to several earlier decisions, the BREF examined the definition of the word "immoveable" in s. 1 A.M.T. and noted that the only reference to the Civil Code concerned immoveables by nature. It was of the view that the word "immoveable" within the meaning of the Act includes, at the very least, land and buildings within the meaning of the Civil Code, but that s. 1 A.M.T. [translation] "is an `original' definition for the purposes of a particular statute and must be seen, interpreted and applied as such" (p. 485). The BREF further noted that the only time the notion of "building" comes into play is with respect to the exception contained in s. 65(1) A.M.T., where the question is whether the purpose of "machines, apparatus and their accessories" is to provide a service to a "building". It referred to Ville de Saint‑Romuald d'Etchemin v. Ultramar Canada Inc., [1985] C.P. 212, affirming [1980‑1984] B.R.E.F. 883, where the word "building" as used in s. 65(1) A.M.T. was given its ordinary meaning. Summarizing the mechanism for giving effect to s. 65(1) A.M.T., the BREF wrote (at p. 489):

[translation] In the Act respecting Municipal Taxation, and in particular s. 65, there are the following concepts including that of "building". They merge, complement and clarify each other by the limitations they impose on each other, on their own understanding. Thus:

(1) the unit of assessment brings together all parts of the immoveable property,

(2) the immoveables are in general immoveables by nature (land and buildings) and moveable property covered by the definition in s. 1 A.M.T. . . .

(3) the moveable objects referred to in s. 1 A.M.T. are the "machines, apparatus and their accessories" described in s. 65 and the others which make up the concept of an immoveable by destination but which the Act respecting Municipal Taxation has broadened.

That is why, in applying s. 65 A.M.T., we must be aware that references to general statutes and judgments based on them may mislead us by causing us to forget the special characteristics of the Act respecting Municipal Taxation, which is the statute we must apply here. [Emphasis in original.]

The BREF added that s. 65(1) A.M.T. makes essential distinctions between the words "immoveables""machines""apparatus""accessories""land" and "building", distinctions which do not exist as such in the Civil Code (at p. 489):

[translation] The particular context we are dealing with in the Act respecting Municipal Taxation is further characterized by the fact that s. 65 requires us to look at the situation in terms of industrial production, which already takes the discussion onto a special and specific level which the cases applying the Civil Code quite properly do not always take into account. [Emphasis in original.]

The BREF further noted that while buildings within the meaning of the Civil Code must generally be entered on the roll as they are immoveables by nature, such buildings may nevertheless constitute "machines""apparatus" and "accessories" within the meaning of s. 65 A.M.T., [translation] "thereby losing their identification as a building and assuming that of machines, and so on, which will circumscribe, define or limit the meaning of the word "building" in the Act respecting Municipal Taxation" (p. 490). (Emphasis in original.) Being of the view that, under the Act, immoveable property providing a service to a machine or an apparatus can be its accessory, and at the same time provide a service to land or a building, the BREF referred to the criteria set out in Ultramar Canada Inc., supra.

Applying these criteria to the 41 items entered on the respondent's assessment roll for 1981, 1982 and 1984, the BREF kept on the roll 20 structures which were part of the old plant as these were not used for purposes of industrial production on the dates covered by the complaints, there being no specific evidence as to their intended use. The BREF concluded that the 21 structures making up the new plant and the industrial complex were, for the most part, used, wholly or partly, to carry out the processing of the raw material. It completely excluded from the roll 8 structures in the new plant, kept 7 in their entirety and partly excluded 6. It thus reduced the value of the unit of assessment for the appellant's new plant for 1981, 1982 and 1984.

Provincial Court (Québec, No. 200‑02‑007252‑853, November 30, 1987), J.E. 88‑149

Judge Gagnon stated the issue as follows (at p. 3):

[translation] The fundamental point at issue here is as follows: does the exemption contained in s. 65(1) of the Act respecting Municipal Taxation, which provides for the exclusion from the roll of machines, apparatus and their accessories when they are used or intended for use in industrial production and not designed to provide a service to land or a building, apply to all or part of the structures or facilities making up the industrial complex referred to by the respondent as the new plant. [Emphasis in original.]

After summarizing the BREF's decision and the arguments of the parties, Judge Gagnon gave an historical account of the legislation on real estate taxation of machinery. He noted that s. 65 A.M.T. is much more restrictive than its predecessor, s. 12 of the Real Estate Assessment Act, R.S.Q. 1977, c. E‑16 (formerly S.Q. 1971, c. 50). In his view, for immoveable property to be covered by the exception contained in s. 65(1) A.M.T. and excluded from the roll, three requirements must be met (at p. 27):

[translation] 1. It must be a machine, apparatus or accessory of a machine or apparatus.

2. The machine, apparatus or accessory must be used mainly for purposes of industrial production or farming operations, or intended for that use.

3. The machine, apparatus or accessory must not be designed to provide a service to land or a building.

Judge Gagnon then referred to Bélair v. Ville de Ste‑Rose (1922), 1922 40 (SCC), 63 S.C.R. 526, Montreal Light, Heat & Power Consolidated v. City of Outremont (1932), 53 Que. K.B. 133 (P.C.), and Bell Telephone Co. of Canada v. Ville St‑Laurent (1935), 60 Que. K.B. 101 (P.C.), and noted that the terms "machine""apparatus" and "accessory" are not defined in the Act. He then asked the following question (at p. 30):

[translation] Should we conclude that the machines and apparatus, the value of which cannot be entered on the roll, can equally well be immoveables by nature and moveable property placed by anyone for a permanency on an immoveable by nature?

After quoting the dictionary definitions of the terms "machine""apparatus" and "accessory", Judge Gagnon rejected the approach taken by the BREF and examined ss. 63(2) and 65(6) A.M.T. In his view, these provisions show that if the legislature had intended to give the word "building" in s. 65(1) a different meaning from that in the Civil Code, it would have done so expressly. He, therefore, concluded that this term has the meaning given to it by art. 376 C.C., and that [translation] "the machines and apparatus falling within the exception in s. 65(1) and not to be entered on the roll are moveable objects attached by anyone for a permanency to an immoveable by nature" (p. 34). Judge Gagnon was of the opinion that the term "accessory" means a non‑essential part which [translation] "can be added to a machine or apparatus to make it more efficient, safer or to enable it to carry out different types of work or processing in the industrial process" (p. 34). He noted that certain concrete supports, stands or bases on which machines or apparatus rest can be immoveables by nature or parts thereof, but that they could not at the same time be "accessories" exempted from the roll for the purposes of s. 65(1) A.M.T., as an immoveable by nature cannot be the accessory of an immoveable by destination.

Applying these principles to the items in the unit of assessment of the appellant's new plant, Judge Gagnon restored the values of the unit of assessment of the appellant's plant for the 1981 and 1982 rolls to the level set by the notices amending the roll issued by the respondent, and set the plant's unit of assessment value for 1984 at $10,231,902.

Court of Appeal, [1991 3130 (QC CA)](/fr/qc/qcca/doc/1991/1991canlii3130/1991canlii3130.html), [1991] R.J.Q. 2757 (Nichols, Tourigny and Chevalier JJ.A.)

After citing s. 65(1) A.M.T., Nichols J.A. for the court summarized the BREF's decision as follows (at p. 2759):

[translation] The B.R.E.F. found that most of the components of the unit of assessment were covered by this exception. In its view, the provision applies not only to moveable property which becomes immoveable by destination but also to immoveables by nature when it is shown that they are used mainly for industrial production and are not designed to provide a service to land or a building.

He gave an historical account of the legislation and referred to the Court of Appeal's decision in Cité de St‑Romuald d'Etchemin v. Golden Eagle Canada Ltd., [1980] C.A. 74, to illustrate the problem presented by the definition of the word "building" in the Real Estate Assessment Act. He noted that this definition was not the definition of the general law and that, by virtue of it, even if they were immoveable by nature, the only taxable buildings were those falling within this specific definition. In this regard Nichols J.A. was of the view that the fact that the Act respecting Municipal Taxation does not adopt this definition and that it also consolidates the definitions which the old law gave to the words "immoveable" and "immoveable by destination" provides an indication of the thrust of the new Act. After analyzing ss. 31 and 32 A.M.T., Nichols J.A. concluded that the word "building" could not be given a precise meaning which the Act did not give it (at p. 2763):

[translation] Since the definition of the word "immoveable" refers to the Civil Code of Lower Canada meaning in the case of an immoveable by nature and art. 376 of the Civil Code of Lower Canada includes in immoveables by nature "(l)ands and buildings", it clearly follows that the word "building", used in s. 32 of the Act respecting Municipal Taxation, cannot, in the absence of a different definition, refer to anything but a "building" provided for in art. 376, that is the building known to the general law.

The same word cannot have a different meaning when it is found in s. 65 A.M.T.

Further, Nichols J.A. could not subscribe to the Provincial Court's decision in Ultramar Canada Inc., supra, relied on by the BREF. In his view, it is not relevant to establish whether an immoveable by nature can become a machine or a machine can become something other than an immoveable by destination. He, accordingly, considered that the wording of s. 65(1) A.M.T. leaves no room for interpretation and that the word "building" can have no meaning other than that deriving from the definition of the word "immoveable", that is the meaning it has in the general law. In this connection, he wrote (at p. 2765):

[translation] If the legislature had intended that buildings, which are immoveables by nature within the meaning of the Civil Code of Lower Canada, could become machines and apparatus or accessories thereof for purposes of the exception, it should have giving the word a definition different from the general law one.

I accordingly conclude that the Provincial Court judgment is correct and the B.R.E.F.'s interpretation wrong.

The Court of Appeal accordingly upheld the findings of the Provincial Court and dismissed the appeal.

IV ‑ Issue

The only issue in this Court, as in the lower courts, is whether the exemption provided for by s. 65(1) A.M.T. applies only to moveable property as defined in s. 1 A.M.T., excluding buildings within the meaning of the Civil Code.

V ‑ Analysis

In my opinion, when legislation is to be interpreted it is worth beginning by looking, however briefly, at its background. By clarifying the specific nature of s. 65(1) A.M.T., this approach will place the judgments of the Court of Appeal and the Provincial Court in their particular context and clarify the issues involved here.

(a) Background

Prior to the adoption of the Real Estate Assessment Act, S.Q. 1971, c. 50, the Cities and Towns Act, R.S.Q. 1964, c. 193, provided that machinery and accessories were taxable. Section 488 read in part as follows:

488. The taxable immoveables in the municipality shall comprise lands, constructions and work‑shops erected thereon and all improvements made thereto, as well as machinery and accessories which are immoveable by destination or which would be so if they belonged to the owner of the real property.

Under the second paragraph, the municipal council could order, by by‑law, that "the machinery and accessories which are immoveable by destination, or which would be so if they belonged to the owner of the real property, are not immoveables taxable in the municipality". However, the municipalities governed by the Municipal Code enjoyed no latitude, as machinery was not an immoveable taxable thereunder. In Richmond Pulp & Paper Co. of Canada v. Town of Bromptonville, 1970 132 (SCC), [1970] S.C.R. 453, Pigeon J. noted the disparity between these two systems (at p. 455):

Since 1959 however, by virtue of the amendment enacted by s. 7 of the Act 7‑8 Eliz. II, c. 19, municipalities governed by the Cities and Towns Act are authorized to order by by‑law that machinery and accessories "are not immoveables taxable in the municipality". In this regard, it must be noted that in Quebec machinery is taxable property under the Cities and Towns Act only. It is not such under the Municipal Code nor, for the greater part, in Montreal including the whole metropolitan area (The Protestant School Board of Greater Montreal v. Jenkins Bros Ltd., 1967 67 (SCC), [1967] S.C.R. 739).

In 1972, the Real Estate Assessment Act deprived the municipal councils of cities and towns of their discretion to tax machinery by standardizing real estate assessment rules. In 1979, s. 8 read as follows:

8. Except where otherwise provided by this act, all immoveables must be entered on the roll and be entered at their actual value on 1 January preceding the deposit of the roll. Subject to the exemptions provided in this act, the immoveables entered on the roll are taxable.

However, s. 12 imposed a requirement that certain immoveable property should not be entered on the roll, and then set out exceptions. This provision stated:

12. Immoveables intended or used principally for research, business, industry, prevention or reduction of noise, fighting water, air or soil pollution or for the operation of a farm or woodlot shall not be entered on the roll, except the following:

(a) lots and buildings excluding the buildings used mainly to fight pollution and the underlying land;

(b) roads other than railroads, whether paved or not, bridges, tunnels, fences and other works forming part of them;

(c) fences, sidewalks, drains and other structures for surface arrangement unless the immoveables are situated on a farm or woodlot contemplated by section 21;

(d) apparatus, devices, equipment and systems to ensure service to a building and forming part of it, excluding machinery and equipment for handling purposes other than elevators, lifts, escalators and moving sidewalks;

(e) radio and television station towers and antennae;

(f) other immoveables forming part of a waterworks or sewer system, a system for the transport or distribution of liquid or solid matter, or a gas transport system of an undertaking which does not distribute gas to consumers in Québec.

Additionally, s. 1 defined the following terms as follows:

(a) "immoveable": an immoveable by nature within the meaning of the Civil Code, or an immoveable by destination;

(b) "immoveable by destination": any moveable thing placed for a permanency by any person on or in an immoveable by nature;

(u) "building": a structure intended to lodge persons, animals or things;

On December 21, 1979, the Quebec legislature enacted Bill 57 on municipal taxation, the Act respecting Municipal Taxation, R.S.Q., c. F‑2.1, introduced by the Act respecting Municipal Taxation and providing Amendments to Certain Legislation, S.Q. 1979, c. 72, to take effect for the purposes of all municipal fiscal periods, beginning with the fiscal period 1980. While maintaining the principle that all immoveables should be entered on the roll (s. 31), the new Act set out limited exceptions to the general rule. I reproduce s. 65 for convenience:

65. The following immoveables are not to be entered on the roll:

(1) machines, apparatus and their accessories used mainly for purposes of industrial production or farming operations, or intended for that use and not designed to provide a service to land or a building, taking into account the actual or intended use of the land or building;

(2) mobile equipment mainly used for industrial or transport purposes, or intended for that use;

(3) ore within the meaning of the Mining Act;

(4) galleries, shafts, excavations, tunnels, or the equipment of underground or open mines;

(5) reserves of raw materials in peat‑bogs, quarries and sandpits;

(6) a railway, bridge, tunnel, fence or other works forming part thereof, intended for the operation of a railway undertaking, except the land forming the bed of such an immoveable and a structure intended to lodge persons, shelter animals or store things;

(7) a dam, embankment, a flume or other works intended for driving timber or for conveying timber to a mill or a wood processing plant;

(8) an access road to forest or mining operations.

Further, the definition of the word "building" was not incorporated into the body of s. 1. That provision incorporated in the definition of the word "immoveable" the old definition of the term "immoveable by destination" as set out in para. (b) of s. 1 of the Real Estate Assessment Act:

1. In this act, unless the context indicates otherwise"immoveable" means an immoveable by nature within the meaning of the Civil Code or a moveable object placed by anyone for a permanency in or on an immoveable by nature;

This brief historical review invites three comments, in my view. First, it seems quite clear that the introductory paragraph of s. 12 of the Real Estate Assessment Act was broader in scope than s. 65 A.M.T. While it excluded from the roll immoveable property intended or used mainly for industrial purposes, it also included immoveable property used or intended for research, business, prevention or reduction of noise and fighting pollution. The new provision is thus more restrictive so far as exemptions are concerned (M. Poirier and J.‑M. Lavoie"La réforme de la fiscalité municipale: taxation et paiements de transfert" (1981), 12 R.D.U.S. 141, at p. 156):

[translation] It is important to note at the outset that the first paragraph of s. 12 of the Real Estate Assessment Act dealt with immoveable property intended or used for research, business, industry, fighting water, air, soil or noise pollution or for the operation of a farm or woodlot. The relevant provisions of s. 65 of the Act respecting Municipal Taxation are limited to certain property used for purposes of industrial production, operation of a farm or transport only. Second, the new provisions completely reverse the rules that applied previously. Under s. 12 of the Real Estate Assessment Act, there was in principle no entry for immoveable property intended or used principally for business, industry, fighting pollution or the operation of a farm or woodlot, apart from certain exceptions stated in the Act. Under ss. 31 and 65 of the Act respecting Municipal Taxation, such immoveable property is in principle entered on the roll apart from the exceptions expressly mentioned in s. 65 of the Act. It goes without saying that these changes result in the taxing of much property which was not formerly taxed. The assessor enters such immoveable property on the assessment roll and the new entries will be effective as of January 1, 1980. [Emphasis added.]

(See also J.‑M. Pâquet"Les aspects juridiques", in Formation permanente du Barreau du Québec, cours 51, La réforme de la fiscalité municipale (1980), at p. 29; L. Bélanger"L'évaluation des immeubles industriels au Québec: les hauts et les bas de l'article 65 par. 1 de la Loi sur la fiscalité municipale" in Développements récents en droit municipal (1989), 151, at pp. 157‑58.)

There is, however, a certain continuity between these successive statutes. Thus, s. 12 of the Real Estate Assessment Act and s. 65(1) A.M.T. both refer to the concept of the principal use or intended use of the immoveable property enjoying the exemption, which does not cover property providing a service to buildings. Unlike the old wording of the Cities and Towns Act, these two sections also exclude machinery from the assessment roll without referring to the term "immoveable by destination", with s. 65(1) A.M.T. adding the term "apparatus" to the words "machines" and "accessories". Moreover, like the Cities and Towns Act and the Real Estate Assessment Act, the Act respecting Municipal Taxation defines a moveable object placed for a permanency without the civil law requirement that it be placed for a permanency and belong to the owner of the immoveable by nature (Banque d'Hochelaga v. Waterous Engine Works Co. (1897), 1897 69 (SCC), 27 S.C.R. 406; Bell Telephone Co. of Canada v. Ville St‑Laurent, supra; Cité de Sherbrooke v. Commissaires d'écoles de Sherbrooke, 1957 60 (SCC), [1957] S.C.R. 476, and Cablevision (Montreal) Inc. v. Deputy Minister of Revenue of Quebec, 1977 203 (SCC), [1978] 2 S.C.R. 64). Seen from this standpoint, therefore, the successive statutes dispense with a criterion peculiar to the civil law.

Finally, and this is connected to the foregoing, an observation that the Act respecting Municipal Taxation reflects a legislative intent to subject to real estate tax several types of property not subject to tax under the Real Estate Assessment Act does not thereby remove the necessity of interpreting the legislative wording in its own particular context. Before analyzing the wording of s. 65(1), the Court of Appeal noted two changes which it considered important (at p. 2762):

[translation] The first observation resulting from the wording of this new Act concerns the fact that the legislature did not reproduce the specific definition of the word "building".

It is this definition which presented a problem and which led the courts to restrict considerably the municipal tax base by excluding from the roll all buildings not used to accommodate persons, animals or things.

Another special feature of this new Act (A.M.T.) results from the fact that the legislature saw fit to consolidate the definitions which the Real Estate Assessment Act gave of the words "immoveable" and "immoveable by destination".

In my view, these two premises must be borne in mind in analyzing s. 65(1) A.M.T., which gives rise to the divergent interpretations found in the decisions of the B.R.E.F. and the Provincial Court.

With respect, I consider that these two changes cannot in themselves be conclusive as to the point at issue here. First, in my opinion no conclusion can be drawn from the fact that the legislature incorporated in the definition of the word "immoveable" the definition of "immoveable by destination" as set out in s. 1(b) of the Real Estate Assessment Act. That definition had already been consolidated by s. 1(a) of the same Act, in which the word "immoveable" was defined as including the concept of an "immoveable by destination". Further, the core of the matter is not to articulate a definition of the concept of a "building" in absolute terms, but rather to determine the meaning and scope of s. 65(1) A.M.T. with respect to the class of property covered by this exemption. Certainly, when a term used by the legislature is not otherwise defined, reference may be had to the reservoir of concepts contained in the Civil Code (Bélair v. Ville de Ste‑Rose, supra; Montreal Light, Heat & Power Consolidated v. City of Westmount, 1926 77 (SCC), [1926] S.C.R. 515; Montreal Light, Heat & Power Consolidated v. City of Outremont, supra, and Bell Telephone Co. of Canada v. Ville St‑Laurent, supra). However, this approach must not ignore the textual environment adopted by the legislature itself. In the case at bar, therefore, the most important question concerns the limits laid down by s. 65 A.M.T.

(b) [Section 65](https://www.canlii.org/en/qc/laws/stat/cqlr-c-f-2.1/latest/cqlr-c-f-2.1.html) [A.M.T.](https://www.canlii.org/en/qc/laws/stat/cqlr-c-f-2.1/latest/cqlr-c-f-2.1.html)

1. The terms "immoveables""land" and "building"

Before considering the central issue in this appeal, two preliminary observations should be made.

To begin with, the introductory paragraph of s. 65 refers to the term "immoveables" without distinguishing immoveables by nature from the moveable objects covered by s. 1 A.M.T. ("The following immoveables are not to be entered on the roll"). (Emphasis added.) Subject to the exceptions and clarifications in each paragraph, therefore, the legislature refers us to its own definition, which in turn refers to the Civil Code in the case of immoveables by nature (s. 1). Under art. 376 C.C., immoveables by nature are lands and buildings. In Bélair, Anglin J. interpreted the term "building" broadly, taking in structures such as bridges (at pp. 530‑31):

The words "bâtiments" ‑‑ "buildings" in Art. 376 C.C. may therefore be taken to mean "structures" and it follows that a bridge over a river resting on piers is an immovable by nature because it is a structure permanently affixed to the soil or bed of the river. This would certainly be the case if the appellant were the owner of such soil or bed. The fact that he is not such owner but is merely entitled to a servitude or right to maintain the bridge upon it does not prevent the character of immovability attaching to the bridge.

In City of Westmount, Anglin C.J. concluded that the same was true for pipes, poles, cables and transformers used to distribute electricity (at pp. 520‑21). In Lower St. Lawrence Power Co. v. Immeuble Landry Ltée, 1921 60 (SCC), [1926] S.C.R. 655, this Court held an electric lighting system including poles, wires and transformers to be an immoveable by nature. Rinfret J. said the following (at pp. 665‑66):

[translation] Under the Civil Code of the Province of Quebec, all property, corporeal as well as incorporeal, is moveable or immoveable (art. 374 C.C.). Land and buildings are immoveable by their nature (art. 376 C.C.). Commentators are agreed in saying that the word "building" should not be limited to its etymological meaning, but should be used by analogy for any kind of "structure".

Planiol (Traité Élémentaire ‑ 6th ed., vol. 1, No. 2207) clearly sums up the general view when he says that it

means not only buildings strictly speaking, such as dwelling houses, shops, workshops, sheds, barns and so on, but also works of any kind, such as bridges, wells, kilns, dikes, dams, tunnels and so on. Accordingly, buildings must be defined here: any permanent assembly of materials, either on the surface of the ground or underneath.

After discussing Bélair, City of Westmount and Immeuble Landry, Beetz J. summarized the principles governing property immoveable by nature as follows (Cablevision (Montreal) Inc. v. Deputy Minister of Revenue of Quebec, supra, at p. 73):

These three decisions undoubtedly stress the incorporation of the structures into the land as a condition for their becoming immovable by nature. We must, however, remember the principle that requires this condition: the structures, such as those involved in these cases, must participate in the fixity or immobility of the land, which is the ultimate measure of whether a thing is immovable by nature. The principle is observed as long as a structure participates in the immovable nature of the land, by adhering directly to it or to another structure, which in turn adheres to the land. In either case the structure is immovable by nature because it is naturally immobile. Most legal writers point out that land is the only tangible property that is really immovable. Nevertheless, according to art. 376 C.C. buildings are immovable by nature just as land is. In my view, the criterion for being immovable by nature is met when a structure that may be described as a building adheres to something that is immovable by nature, whether land or a building, and thereby acquires a fixed foundation. The possibility that the structure adhering to the land and the structure adhering to that structure may not be owned by the same person is of no consequence. [Emphasis added.]

The introductory paragraph of s. 65 does not in itself exclude such immoveables from the scope of the first paragraph.

Moreover, unlike the term "immoveables" used in the introductory paragraph, s. 65(1) refers to the concepts of "land" and "building" and attaches parameters which are foreign to the criteria for immoveables by nature in the civil law, namely the concepts of destination and use. Furthermore, these concepts of "land" and "building" are only relevant in deciding whether the immoveable property or the part thereof under consideration is designed to provide a service to them. The question of whether or not it is appropriate to draw on the reservoir of Civil Code concepts in defining the term "building" used in fine thus seems to me to be secondary: the meaning and scope of the term should instead be analyzed in the context in which it is used. As the legislature has indicated, immoveable property which is "exempt" for the purposes of s. 65(1) cannot be separated from the industrial production context. The words "used mainly for purposes of industrial production" and "taking into account the actual or intended use of the land or building" indicate that the legislative framework in question is dissociated primarily from the traditional civil law categories. In these circumstances, the approach to be taken in considering the words "land" and "building" referred to by the notion of "service" is still determined, like the immoveable property covered by the exemption, by the textual environment adopted by the legislature. The characteristic vocabulary of the Civil Code is thereby both clarified and qualified.

This, then, is the background against which the Court must consider the question which is at the core of this appeal: does the exemption contained in s. 65(1) A.M.T. apply only to moveable property placed for a permanency, excluding buildings within the meaning of the Civil Code?

2. Section 65(1)

The BREF found that there were four criteria under s. 65(1) A.M.T. (at p. 493):

[translation] The following criteria are thus used in determining whether immoveable property or a part thereof should not be entered on the roll under s. 65(1) of the Act respecting Municipal Taxation:

(1) This is immoveable property;

(2) This is either:

(a) a set of mechanisms combined to receive a form of energy, transform it and regenerate it in a more appropriate form or to produce a given effect (machine);

(b) an assembly of several instruments for the performance of work, observation of a phenomenon or undertaking of certain actions (apparatus);

(c) a tool or other immoveable object which is not an integral part of a machine or which is used for a particular activity but cannot be separated from a machine or an apparatus (accessory);

(3) This immoveable is used mainly for a specific industrial purpose, namely production, that is, making saleable and usable, saleable and usable by users or other apparatus, given wares (stone);

(4) The purpose of this immoveable is not, that is to say, the justification for its existence is not the fact that it provides a service (which is not the mere physical presence of a material object adhering to the soil or building) to land or a building within the meaning of the general law, taking into account the use made of the building, by seeing whether it is used for purposes of industrial production. [Emphasis added.]

The definitions of the words "machine""apparatus" and "accessory" are the same as those adopted by the BREF in an earlier decision, Ultramar Canada Inc., supra, and are based on the definitions of these terms contained in the Petit Larousse (1981). In the case at bar the Provincial Court referred instead to the definitions in the Petit Robert (1986). Accordingly, Judge Gagnon wrote (at pp. 30‑31):

[translation] In distinguishing between a machine and an apparatus in its definition, the Petit Robert seems to limit the meaning of the word machine:

"Machine II. Manufactured object, generally complex, designed to transform energy and use that transformation (to be distinguished in principle from apparatus and tool, which only use energy)."

On the other hand, the term apparatus as defined by the Petit Robert has a very broad meaning:

"Apparatus:

2. Set of elements used for the same purpose and forming a whole . . . Assembly of parts or instruments combined into a whole to perform work, observe a phenomenon, undertake actions."

Subsequently, he adopted the following definition of the word "accessory" (at p. 34):

[translation] The Petit Robert gives the word accessory in mechanics a rather limited meaning:

Accessories ‑‑

Non‑essential part

An accessory can be added to a machine or apparatus to make it more efficient, safer or to enable it to carry out different types of work or processing in the industrial process.

The definitions of the words "machine" and "apparatus" adopted by the BREF, on the one hand, and the Provincial Court, on the other, are not significantly different. Both concern objects intended to produce a given effect, the characteristic of a machine being to transform energy. When placed in the context of s. 65(1) A.M.T., these definitions may encompass a whole range of immoveables which, regardless of the distinctions characteristic of the civil law, are nevertheless used mainly for purposes of industrial production.

In this regard, two examples will illustrate the difficulties that arise when s. 65(1) is read exclusively in terms of the parameters peculiar to the civil law. In Cie de papier Québec et Ontario Ltée v. Baie‑Comeau (Ville de), Sup. Ct. Baie‑Comeau, No. 655‑05‑000080‑838, November 10, 1988, J.E. 89‑200, Rioux J. referred to arts. 377 and 385 of the Civil Code, which read as follows:

377. Windmills and water mills, built on piles and forming part of the building, are also immoveable by their nature when they are constructed for a permanency.

378. Boats, scows, ships, floating mills and floating baths and generally all manufactories not built on piles and not forming part of the realty, are moveable.

He proceeded to make the following analysis (at pp. 12‑13):

[translation] Some of the expressions used by the Civil Code have aged, so it is worth referring to a dictionary such as Littré [Paris, 1873] to understand the meaning of the words used by the Civil Code. According to Littré, the word "pilier" ("pile") means "any solid mass used to support part of a building" or "whatever supports any body". This definition may be compared with that given by Petit Robert [1983]: "solid mass of masonry forming a separate vertical support in a structure".

It should also be noted that the word "usine" ("plant"), according to Littré"formerly and strictly speaking" meant "water‑driven machine" and the word "moulin" ("mill") meant a "machine consisting of various parts for the purpose of turning millstones and used to transform grains into flour".

This means that under the Civil Code, we must regard as immoveables by nature machines built on piles which are the equivalent of the "concrete bases" at issue in the case at bar. That is what art. 377 of the Civil Code says. On the other hand, machines not built on piles and not forming part of the realty are moveables (art. 385). [Emphasis added.]

Without expressing any opinion on the merits of this decision, it is clear that such a mill, a "machine" in the ordinary sense of the word, is also a "building" which meets the criteria of an immoveable by nature within the meaning of the civil law. According to the rulings of the Provincial Court and the Court of Appeal, such a mill would nevertheless be excluded ipso facto from the scope of s. 65(1) A.M.T. on account of this very characterization, regardless of the fact that the other conditions in this provision might be met. As I noted earlier, the introductory paragraph of s. 65 does not distinguish between immoveables by nature and moveable objects placed for a permanency. In my opinion, there is no way around this.

Moreover, the Provincial Court itself used an example in distinguishing the words "machines" and "apparatus" (at p. 31):

[translation] In my humble opinion the legislature, in juxtaposing the terms machine and apparatus, intended to avoid having the exception apply exclusively to objects designed to transform energy and to use that transformation. Accordingly, it might be asked whether an oven used to bake bread in a bakery is a machine, whereas there is no doubt that it is apparatus used for an industrial production purpose. [Emphasis added.]

This example leads to the same difficulties. An oven built outdoors of stone and mortar would be a "building" according to the civil law criteria for immoveables by nature. Limiting the scope of s. 65(1) to moveable objects placed for a permanency, as the Court of Appeal and Provincial Court did, this oven would have to be entered on the roll. On the other hand, the oven referred to by the Provincial Court in the foregoing example would be excluded, regardless of the fact that both these apparatus might meet the other conditions specified by the legislature. In my view, such a conclusion cannot be inferred from the wording of s. 65(1). It turns the classification of an "apparatus" according to the civil law rules, here an immoveable by destination, into a condition sine qua non, while relegating the industrial production requirement to a position of secondary importance. And yet it is this latter requirement, and not the traditional Civil Code categories, which is the cornerstone of s. 65(1).

In my opinion, the same qualifications must be made regarding the word "accessories". After reproducing the definition from the Petit Robert, the Provincial Court added (at pp. 34‑35):

[translation] In a plant, certain apparatus and machines are attached or fixed to concrete bases or metal structures adhering to the building. Certain apparatus, such as conveyors or moving walkways, are supported by metal structures fixed to the ground and sometimes covered with a roof.

These bases, structures or supports, as a result of their adherence to the ground or a floor of the building, are immoveables by nature. When the machines or apparatus they support are removed, they no longer perform the function for which they were built, but they nevertheless remain immoveables by nature or parts thereof.

With all due respect for the contrary view, I consider that such bases or supports are not accessories of machines or apparatus. An immoveable by nature cannot be the accessory of an immoveable by destination. [Emphasis added.]

In support of this distinction the respondent referred to Donohue Bros. v. Parish of St‑Étienne de la Malbaie, 1924 42 (SCC), [1924] S.C.R. 511; Richmond Pulp & Paper Co. of Canada v. Town of Bromptonville, supra, and Aluminium du Canada Ltée v. Village de Melocheville, 1972 163 (SCC), [1973] S.C.R. 792. These cases have no bearing on the case at bar. The context in which s. 65(1) occurs requires the Court to analyze the actual situation of an industrial production complex and the immoveables associated with that production from an entirely different perspective.

In Donohue Bros., the issue was whether certain machinery in a pulp mill could be assessed with the mill under ss. 16(27) and 656 of the Municipal Code. These provisions read as follows:

16. . . .

(27) The words "land" or "immoveable" or "immoveable property" mean all lands or parcels of land in a municipality, owned or occupied by one person or by several persons jointly, and include the buildings and improvements thereon;

656. The real value of the taxable immoveable property includes the value of the land and of the buildings, and of all improvements which may have been made thereto, except those set forth in article 657.

A majority of this Court held that the machinery was not included in the meaning of the word "building". Mignault J. wrote (at pp. 518‑19):

[translation] The respondent argues that it could take the machines into account in assessing this pulp mill. It contends that these machines are included in the meaning of the word "buildings" or "constructions", and that in any case they are "improvements" and taxable as such under the articles I have cited.

It seems to be admitted that the machines in question are immoveables by their destination. However, although we are dealing with an immoveable property tax, all that is immoveable is not necessarily taxable under the Municipal Code, as we have held in Breakey v. Metgermette North (1920 56 (SCC), 61 Can. S.C.R. 237).

An immoveable by its destination being, by definition, a moveable object by its nature that is considered as immoveable by reason of the immoveable to which it is attached, differs from an immoveable by nature in that its immoveability is purely legal and fictitious, and not material or real (Planiol, tome 1, no. 2210). It can never be said that it is part of the building or construction where it is situated, for then it would be an immoveable by its nature.

For this reason, I would not include machines which become immoveables by destination within the meaning of the word "building" or "construction". [Emphasis added.]

This passage was quoted in Richmond Pulp & Paper Co. of Canada and Village de Melocheville, which also concerned provisions of the Municipal Code. It is clear from the foregoing that the relevant provision of the Municipal Code in itself excluded the possibility of entering immoveables by destination on the roll, the pivot on which this system rested being the concepts of "building" and "construction". The wording itself therefore required that the Court resolve the problems in applying it by a reasoning based exclusively on the traditional civil law parameters, including that of immoveables by destination. That is not the case here. First, the introductory paragraph of s. 65 refers to the term "immoveables" without distinguishing immoveables by nature from moveable objects placed for a permanency. Second, like the terms "machine" and "apparatus", the word "accessory" is not part of the special vocabulary of the Civil Code.

Furthermore, the wording of s. 65(1) requires first and foremost that the Court examine each immoveable or part of an immoveable making up a given plant, not in the abstract but in the concrete setting of the industrial production. In these circumstances, it seems to me at the very least risky to refer in general to the structures, bases or rooves of a plant without adverting to the functional framework in which these immoveables may each operate. The example of the stone distributor which is part of the appellant's new plant is significant in this regard. The Provincial Court considered that it should be entered on the roll as a result of the following analysis (at pp. 41‑42):

[translation]

STONE DISTRIBUTOR (element No. 26)

The explanations given by the engineer Gagnon indicate that this construction was put there specifically for the process of dry manufacture of cement. The crushed stone is taken to it by conveyors and distributed into several piles inside. An apparatus which moves on a rail, known as a stone scraper, is used to grind this stone. The mixtures are made mechanically and the mixed product is taken on conveyors into a tunnel.

Figure I‑35 indicates that this is a structure 500 feet long by 114 wide and 48 feet high. The municipal assessor compares the external appearance of this structure to an arena and photo P‑20 corroborates this description.

Even though the structure was built and put there for the industrial process which was to take place, it remains a building. Only the stone scraper and the conveyors and the engines which operate them are machines or apparatus. Figure 1‑35 includes only the components of the building itself and the municipal assessor was right to enter the values indicated on this figure in the roll. [Emphasis added.]

The BREF, for its part, concluded that this immoveable should be excluded from the roll (at p. 498):

[translation]

26. Stone distributor (Exhibit I‑35)

The crushed stone, identified as high or low, sorted, mixed in specific proportions according to an established formula, is then taken by conveyor No. 6 to the stone distributor (photos P‑20 to P‑24) in which the stone scraper is located. It is in and by this immoveable that the mixing done in the prehomogenizer is carried out. Essentially, it is the same industrial operation at a later stage of production.

As in the prehomogenizer and perhaps even more, the foundations play an active part since they form four of the hoppers and a scraping surface containing stone being mixed, the "correction piles". These foundations are part of the stone scraper since they are its lower portion used both to move the stone scraper as such (mobile portion) and to serve the conveyor which receives the scraped stone from two piles to ensure continuity.

The structure, like the prehomogenizer, is part of the foundations since it supports conveyor No. 8 which moves about inside to make up the four correction piles by its pouring car, and it holds up the exterior sheathing which ensures that the 6% humidity level, set by the manufacturer of the Loesche mill, is not exceeded.

All parts of the stone distributor therefore play an active role in the industrial production. Even the external facing is not intended only to cover a machine or apparatus and protect it from the elements. The evidence disclosed that it is a mechanism for controlling the humidity level.

The same is true for the foundations which play an active part in the stone mixing. It should not be forgotten that we are concerned here with industrial production of cement by the dry process, using mixed crude stone to which additives are added.

The crushed and ground stone mixtures therefore require use of containers whether mobile or not and mobile parts whether installed or not, the two components being essential to each other and together making up a machine, apparatus or their accessories, as the case may be, just as the hammer and anvil form a single whole for the blacksmith. On the evidence, therefore, this stone distributor is covered by s. 65 A.M.T. and should therefore not be entered in the roll since at the relevant dates it was a machine or apparatus used for purposes of industrial production (transcript, 20‑11‑84, pp. 42 et seq.). [Emphasis added; italics in original.]

Although the appeal at bar is limited to questions of law, and not the problem of their application to the components of the plant concerned, the approaches taken by the Provincial Court, on the one hand, and the BREF, on the other, reflect two irreconcilable interpretations of the provision at issue here. Without expressing any opinion on the correctness of the findings of fact of the BREF, I am of the view that the approach taken by the latter is still most in keeping with the letter and spirit of s. 65(1). First, it applies the terms "machines""apparatus" and "accessories" in the complex setting of the components of an industrial production process, regardless of the dispute as to the nature of their status as immoveables within the meaning of the Civil Code, which is consistent with the wording of the introductory paragraph ("The following immoveables are not to be entered on the roll"). That dispute may in itself give rise to considerable difficulty. As the dividing line between being an immoveable by destination and an immoveable by nature depends primarily on the facts, it will often be a very fine one.

Secondly, the approach taken by the BREF takes into account the key fact that an immoveable or part thereof can be inseparable from a machine or apparatus and at the same time provide a service to land or a building. The words "used mainly for purposes of industrial production" and "taking into account the . . . use of the land or building" in my opinion require such a construction. (Emphasis added.) Accordingly, in the case of the stone distributor, the evidence was that the structure supporting the external sheathing was not intended only to cover the machines and apparatus to protect them from the elements, as it was also a means of controlling the humidity level, a special requirement of the cement manufacturing process. The dispute then came down to a question of proportion, subject to rebuttal evidence, according to the facts of the case. Section 2 A.M.T. in fact provides:

2. Unless otherwise indicated by the context, any provision of this act which contemplates an immoveable property, moveable property or unit of assessment is deemed to contemplate part of such an immoveable property, moveable property or unit of assessment, if only that part falls within the scope of the provision.

In Cie de papier Québec et Ontario Ltée, supra, the Superior Court was faced with this very question of separating the respective functions of an electrical installation system (at pp. 57‑58):

[translation] The huge electrical installations of the plaintiff's plant, which are designed to receive electric current generated by the McCormick power station, to reduce its tension and distribute it throughout the plant would not be justified if the electricity was used only for "services to land or buildings", such as the lighting, heating and other equipment serving only the immoveable or the building. On the contrary, it was proven that not only is the electricity used mainly for purposes of industrial production, but the proportion devoted to services to the land and buildings was minimal. In its submission, the plaintiff set the proportion of electricity used to provide services to the land and buildings at 3% and that allocated to industrial production at 90%. The defendant challenges these figures, suggesting instead a proportion of 18.4% for various services. Even that proportion leads irresistibly to the conclusion that the electricity is used mainly for purposes of industrial production and that the machines, apparatus and accessories used to transform, transport or distribute the electric current are used mainly for purposes of industrial production, in accordance with the language of s. 65(1) of the Act respecting Municipal Taxation. There will be an exception to this principle when it is established that a given line and the machines, apparatus and accessories relating thereto are not allocated mainly to industrial production, but are there to provide services to the land or to the buildings, such as the lines supplying the lighting towers, the wharf for loading and unloading ships, the lac La Chasse pumping station, the administrative offices, the anti‑pollution system, drainage apparatus, anti‑pollution apparatus, and so on. [Emphasis added.]

The Superior Court arrived at this conclusion after deciding that the word "building" used in s. 65(1) in fine should be given the meaning it has in civil law (at p. 10). While it avoids stating the problem in terms of immoveables by nature or by destination, which the legislation abandons in the introductory paragraph, the BREF's approach ultimately derives from the following observation: s. 65(1) does not suggest that all buildings can never be excluded from the roll on the ground that some buildings may be served by machines, apparatus or their accessories. Both the spirit and the letter of this provision require instead that each immoveable property or part of an immoveable property making up a plant be looked at in the concrete setting of the industrial production, in keeping with the legislative intent. In these circumstances I cannot conclude, as did the Provincial Court and the Court of Appeal, that the exemption conferred by s. 65(1) A.M.T. applies restrictively only to moveable property as defined in s. 1 A.M.T., excluding buildings within the meaning of the Civil Code.

VI ‑ Conclusion

For all these reasons, I would allow the appeal and set aside the judgment of the Court of Appeal. Since the discussion in this Court centered on the only point at issue, regarding the interpretation of the legislative provision, and not the findings of fact of the BREF, the decision rendered by the BREF on August 29, 1985 should also be restored, the whole with costs throughout.

Appeal allowed with costs.

Solicitors for the appellant: Gagné, Letarte, Sirois, Beaudet, Québec.

Solicitors for the respondent: Pothier Bégin, Sainte‑Foy.