Nova Scotia (Finance) v. Jann & Neil Sulkers Ltd.

Nova Scotia (Finance) v. Jann & Neil Sulkers Ltd. Court Court of Appeal Date 1995-10-04 Citation 1995 NSCA 175 Docket CA 116743 Judge/Registrar/Adjudicator Chipman, David (Honourable Justice); Flinn, Edward J. (Honourable Justice); Matthews, Kenneth M., (Honourable Justice) Document Type Decision Decision Content C.A. No. 116743 NOVA SCOTIA COURT OF APPEAL Cite as: Nova Scotia (Finance) v. Jann & Neil Sulkers Ltd., 1995 NSCA 175 Chipman, Matthews and Flinn, JJ.A. BETWEEN: THE MINISTER OF FINANCE ) Leanne M. Rodwell Hayes ) for the Appellant Appellant ) ) - and - ) ) Joel Fichaud, Q.C. ) Cheryl L.M. Hodder ) for the Respondent JANN AND NEIL SULKERS LIMITED ) ) Respondents ) Appeal Heard: ) October 4, 1995 ) ) ) Judgment Delivered: ) October 4, 1995 ) ) ) ) ) ) ) ) THE COURT: Appeal dismissed with costs to the respondent fixed at $650.00 plus disbursements per oral reasons for judgment of Matthews, J.A.; Chipman and Flinn, JJ.A. concurring. MATTHEWS, J.A.: The respondent, on December 9, 1993, purchased the assets of Canadian Tire Store no. 125 in Yarmouth. The Provincial Tax Commission issued a Notice of Assessment assessing tax on the purchase of all of the assets. The respondent filed a Notice of Objection with the Provincial Tax Commissioner alleging that some of the assets were fixtures and should be classified as real property and thus not taxable as "tangible personal property" as defined in s. 2(t) of the Health Services Tax Act, R.S.N.S. 1989, c. 198 (the Act). The objection was dismissed. The respondent appealed to the Nova Scotia Utility and Review Board. The parties agreed that certain items were not taxable, leaving the Board to decide four items: (a) two air compressors (b) outdoor electrical signs (c) fixed conveyor system (d) courtesy desk and counter By decision dated April 10, 1995, it ruled that the two air compressors were tangible personal property and subject to tax, but that the remaining items were fixtures, part of the realty and thus non taxable. The appellant now appeals from that decision with respect to items (b) and (d). Articles affixed to the land even slightly are considered part of the land unless the circumstances are such as to show that they were intended to continue as chattels. See among others Stack v. T. Eaton Co. (1902), 4 O.L.R. 335 and Construction Aggregates Limited v. Nova Scotia (Minister of Finance) (1990), 98 N.S.R. (2d) 49 (T.D.), affirmed (1991), 104 N.S.R. (2d) 89 (C.A.). The Board determined and the appellant admits, that the items are affixed to the reality other than by their own weight. However, the appellant argues that the manner in which the articles are affixed indicates an intention that they were to remain chattels. The Board correctly stated that the appellant "...did not lead any evidence to show that" these items "remain chattels and not fixtures". The Board properly applied the presumption against the position taken by the appellant. An appeal to this court is on a question of law and jurisdiction. (S. 30(1) of the Utility and Review Board Act.) In our opinion the Board made no error in law in reaching its conclusion. It applied the proper legal tests. There is no issue as to jurisdiction. We dismiss the appeal with costs to the respondent which we fix at $650.00 plus disbursements. J.A. Concurred in: Chipman, J.A. Flinn, J.A. C.A. No. 116743 NOVA SCOTIA COURT OF APPEAL BETWEEN: THE MINISTER OF FINANCE ) Appellant ) - and - ) REASONS FOR ) JUDGMENT BY: JANN AND NEIL SULKERS ) LIMITED ) ) MATTHEWS, ) J.A. Respondents ) ) ) ) ) ) )