Majority
Respondent's automobile was struck by appellant's train at a railway The statutory signals (ringing bell and blowing whistle) were not given.
Owing to bluffs and shrubbery intercepting his view, the respondent was unable to see down the railway in the direction of the approaching train until he had reached the right-ofway. The respondent had listened for the whistle and looked for smoke. When he reached the right-of-way, he took a hurried glance along the track which did not disclose any danger. He then gave his attention to his automobile as it went up a grade towards the track and did not again look along the track until too late to avoid the accident. In an action for damages, the jury negatived contributory negligence on the part of respondent and he recovered damages. Held, Davies C.J. dissenting, that the respondent's failure under the existing circumstances to make a more careful and complete observation, which would have disclosed the approaching train, did not so incontrovertibly amount to contributory negligence that no jury could reasonably find otherwise.
Wabash Railway Co. v. Misener (38 Can. S.C.R. 94), Booth v. Ottawa Electric Railway (63 Can. S.C.R. 444) and Dublin, Wicklow & Wexford Ry. v. Slattery (3 App. Cas. 1155) ref.-Canadian Pacific Ry. Co. v. Smith (62 Can. S.C.R. 134) distinguished.
Judgment of the Court of Appeal for Saskatchewan ([19231 1 W.W.R. 1419) affirmed, Davies CJ. dissenting.
APPEAL from a decision of the Court of Appeal for Saskatchewan (1), affirming the judgment of the trial judge and maintaining the respondent's action.
The material facts are fully stated in the above headnote and in the judgments now reported.
D. L. McCarthy K.C. for the appellant.
Eug. Lafleur K.C. and G. H. Yule for the respondent. THE CHIEF JUSTICE (dissenting).-At the close of the argument in this appeal I was of the opinion that it should be allowed on the ground of the contributory negligence of the respondent in not looking, after he had emerged from *PRESENT:-Sir Louis Davies C.J. and Idington, Duff, Anglin and Mignault JJ.
(1) [19231 1 W.W.R. 1419.
the shrubs and other obstructions which had impeded his view, to see if a train was approaching before he attempted to cross the level railway crossing. Had he looked when he did get an unobstructed view of the track he could not have failed to see the approaching train in time to avoid an accident. I have tried, but have failed, to excuse his neglect to look because he had not heard the statutory warnings. I cannot bring myself to doubt that had he looked, as the law obliges, before going on to the crossing, he could not and would not have failed to see the approaching train.
It is of the greatest public importance that this court should not fritter away the duty that is incumbent on all those who attempt to cross level railway crossings to look and listen before crossing to satisfy themselves that no train is approaching. This duty to look and listen before crossing is not abrogated because of a failure to hear the statutory warnings while approaching the crossing, or by the fact that the statutory warnings of ringing the bell or blowing the whistle were not given.
It may not be our law in Canada, as it is in some of the United States of America, that before crossing a level railway crossing there is a duty to " stop, look and listen," but it is law in Canada requiring alike to " look and listen " before attempting to cross such a crossing. Listening alone is not sufficient, particularly when looking is at the same time possible. To fail to look is to my mind such a breach of an obvious and necessary duty that it cannot be excused because there is or chances to be a concomitant breach of duty on the parts of the servants of a railway to give the statutory warnings.
Here the plaintiff before coming on to the crossing was driving his motor amongst shrubs and other obstructions which did not give him a clear view of the track. Whilst he was amongst these obstructions he did not hear the statutory warnings and& so presumed that no train was approaching and that there was no duty on his part to look before crossing. In fact he says
I take this to mean that he did not look with such care as he should have, because if he had he could and would certainly have seen the approaching train.
It has been alleged that he had only a few seconds in which to see the train when he did get clear of the obstructions. This in my opinion is no ground of excuse for not looking. He had plenty of time to look after he emerged into the open, but negligently considered that because he had not already heard the statutory warnings no train was approaching and it was not necessary for him to look. Whereas when he did get into the open he would certainly have seen the train had he looked-the train then being about 50 feet from the crossing.
In my opinion this appeal should be allowed on the ground of the contributory negligence of the respondent but for which the accident would not have happened. J.-For the reasons assigned by the learned judges in the court below I think this appeal should be dismissed with costs.
J.-This appeal should be dismissed with costs. The evidence of the respondent, if accepted, affords a sufficient ground for a verdict within the principle of the observations both of Lord Cairns and of Lord Penzance in Dublin, Wicklow & Wexford Ry. v. Slattery (1).
J.-Accepting the jury's finding that the plaintiff's injuries were ascribable to the omission by their servants to give the statutory crossing signals, the defendants appeal from the unanimous judgment of the Court of Appeal of Saskatchewan holding them liable, contending that contributory negligence on the part of the plaintiff is so clearly established by his own evidence that no jury could have reasonably found otherwise and that the case should therefore have been withdrawn by the learned trial judge and the action dismissed.
Failure to look with reasonable care for an approaching train before crossing the railway is the fault charged against the plaintiff. Owing to bluffs and shrubbery intercepting his view, the plaintiff was unable to see down the railway tracks in the direction of the approaching train until he had reached the right-of-way-at a distance of about 50 feet from the tracks.
He testified that because of these conditions he listened with great care for bell and whistle signals but heard none and looked for smoke but saw none. Being thus more or less lulled into a sense of security, he did not, when he reached the right-of-way, look down the track as carefully as he would otherwise have done, contenting himself with a hurried glance, which did not disclose the danger, and then fixing his attention upon guiding his automobile over the crossing, approaching which the highway is only 9 feet or 10 feet wide and is flanked by ditches running along the railway and about 7 feet in depth. Can it be said that his failure under these circumstances to make a more careful and complete observation, which would have disclosed the approaching train, so incontrovertibly amounted to contributory negligence that no jury could reasonably find otherwise or could hold that he was excused from doing more than taking the hurried glance he did, which served to confirm the impression, already created by the omission of the statutory signals and his failure to see any smoke when approaching the railway, that no train was coming? The four learned judges who constituted the Court of Appeal have already answered this question in the negative. Were they so manifestly in error that we should reverse their judgment? I think not. I regard the following observations of Lord Herschell in Peart v. The Grand Trunk Ry. (1), as most apposite:
The case at bar appears to me to fall within the principles underlying the decisions of this court in Wabash Railway Company v. Misener (1), and Ottawa Electric Railway v. Booth (2), and of the House of Lords in Slattery's Case (3), and is readily distinguishable from CLK.
The Canadian Pacific Ry. Co. v. Smith (4), where the plaintiff had failed to take any precautions and in the view A Jof the majority in this court there were no circumstances upon which a jury could have found that neglect excusable.
The damages awarded, while possibly too large, cannot be said to be so excessive as to shock the conscience of the court.
MIGNAULT J.-Judgment was rendered in this case in favour of the respondent for $11,483.25 on the verdict of a jury, and this judgment was unanimously affirmed by the Court of Appeal for Saskatchewan. The appellant brings the case to this court on practically two grounds:
1. That there was no evidence on which the jury could find that the plaintiff was not guilty of contributory negligence in not looking down the railway line to see whether a train was coming, before he attempted to cross the track. 2. That the amount of damages granted by the jury was excessive. No criticism is made of the charge to the jury of the trial judge.
The facts of the accident may be stated in the language of Mr. Justice Turgeon of the Court of Appeal:
The accident occurred through the collision of the appellant's train and the respondent's automobile on a level crossing at the intersection of the railway line with a public highway. The company's servants were negligent in not ringing the bell and blowing the whistle as required by "The Railway Act," 1919, ch. 68. The respondent, who was driving the automobile accompanied by one Birkett, says that he was proceeding eastward towards the track at a speed of about 10 or 12 miles an hour. He knew that the train (a regular passenger train) was due to pass at about the time in question, and while still some distance away from the track he kept a lookout for smoke and listened for the whistle, but neither saw nor heard anything. His view of the trac towards the south, from which direction the train was coming, was obscured by trees until the right-of-way was reached, 50 feet from the track.
On arriving at this right-of-way he glanced down the track, but did not see the train. He then gave his attention to his automobile and continued towards the track. Just before reaching the rails he looked again, and this time he saw the train, as he says, " practically on top " of him. In the emergency (1) 38 S.C.R. 94.
(3) App. Cas. 1155.
(2) 63 S.C.R. 444.
(4) 62 Can. S.C.R. 134. The jury, in answer to questions put to them, found that the plaintiff was injured by the negligence of the defendant, such negligence consisting in that the defendant had failed to blow the whistle and ring the bell, and that no negligence of the plaintiff had contributed to the accident. The damages were assessed at $1,483.25 as special damages and at $10,000 for general damages.
The rule which has frequently been applied in cases of this character is that a person in the position of the plaintiff is bound to exercise reasonable care, having due regard to all the circumstances of the case. Whether he has or has not done so is a question for the jury, properly instructed, to decide, and an appellate court will not interfere with their finding if there was evidence on which it could reasonably be based.
The case under consideration is very close to the line as will be apparent when it is compared to the recent decision of this court in Canadian Pacific Ry. Co. v. Smith (1), strongly relied on by the appellant.
In that case, a majority of the court held that the trial judge was justified in withdrawing the case from the jury at the close of the plaintiff's evidence and dismissing the The facts were that Smith had driven his car for half a mile in full view of the defendant's railway where a train was then approaching the highway crossing, and the testimony of persons driving an automobile immediately behind Smith's car was that they had seen the approaching train during the whole of the time occupied in traversing this half mile stretch of the highway. The engine did not whistle until it gave two short blasts immediately before the accident, nor did the bell ring. Smith stated that he could not remember turning his head and looking to see whether a train was coming, although he thought he had looked because he always did so. Under these circumstances and because, in my opinion, no jury could reason- CK.
ably find in favour of the plaintiff, I concurred in the judg- ment allowing the appeal from the Court of Appeal which had ordered a new trial.
The statement of the facts of this case above quoted shows that the respondent, when approaching the railway, knew that a train, a regular passenger train, was due to pass at about the time in question, and while still some distance from the track he kept a lookout for smoke and listened for the whistle, but neither saw nor heard anything. Until he reached the right-of-way, fifty feet from the track, his view in the direction whence the train was coming was obstructed by trees. On arriving at the rightof-way he glanced down the track, but did not see the train, and then he gave his attention to his car, for the roadway was rather narrow and the railway ditches were on either side. He admitted that had he looked more carefully on reaching the right-of-way he would likely have seen the train in time to prevent the accident, but he added that he felt sure there was no train coming because he had listened for the signals and had not heard any.
There is a difference between the two cases in that Smith for a full half mile had a clear view of the track and could have seen the train, as the people in the car behind him saw it, had he looked, and the inference was irresistible that he did not look. Here the plaintiff could not see the train until he reached a point fifty feet from the tracks, but then had he looked carefully he would have seen it. In both cases there was a failure to give the statutory signals and had these signals been given there was room in both cases for the contention that they might have prevented the plaintiff from crossing the tracks.
In this case, there is also to be considered the statement of the plaintiff that the absence of signals led him to conclude that no train was coming, lulled him into a sense of security, to use the terms found in many of the cases, and so convinced him that he could cross the track in safety.
I think this statement of the plaintiff, which was evidently believed by the jury, sufficiently distinguishes this case from the Smith Case (1) and permits us to consider whether on the whole evidence the conclusion of the jury that the plaintiff was not guilty of contributory negligence is so unreasonable that it should be disregarded as being perverse. While I do not think I would have acquitted the plaintiff of contributory negligence had I tried the case, the point is that the jury were the sole judges of the facts and I am not in position to say that there was no evidence whatever on which they could reach the conclusion they did.
There is a rather close parity between this case and the decision of this court in Wabash Railroad Co. v. Misener
(2). The circumstances there were even more favourable to a finding of contributory negligence than the facts proved in the case under consideration. And yet this court declined to set aside a judgment of the appellate court which confirmed the judgment of the trial judge giving effect to the verdict.
Perhaps it may not be amiss here to refer to what I said in Grand Trunk Pacific Co. v. Earl (3), as to the doctrine of common fault which prevails in the province of Quebec.
In my judgment, the facts of the present case would furnish a typical case for the application of such a doctrine, were it in force in Saskatchewan.
But this is of course beside the question we have to consider.
The practice of this court is against interfering with the quantum of damages which, although undoubtedly large.
in this case, is not so unreasonable that it cannot be upheld.
I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Borland & McIntyre.
Solicitors for the respondent: G. H. Yule.
S.C.R.
ACTION-Practice and procedure--Action to set aside judgment-Statement of claim- Allegation of pedury-New evidence.]
In an action to set aside a judgment obtained in the same court, the statement of claim merely alleged that the judgment
"was obtained by the false and untrue statements made by the defendant" on material matters of fact at the former trial. In dismissing the action, the trial judge said "that to hear evidence would only leave me in the position that the judge was in when he tried the first
Counsel for the appellant in this court declined to give any assurance, or even to state, that any evidence materially different from that given at the original trial would or could be adduced.
The trial judge dismissed the action and the Appellate Division affirmed his judgment.-Held, Duff J. dissenting, that a new trial should be refused.- Per Davies C.J. and Anglin J.-The dismissal of the action may be regarded as equivalent in effect to an order perpetually staying it as frivolous and vexatious and an abuse of the process of the court, which under the circumstances, should not be interfered with.-Per
Idington and Brodeur JJ.-The statement of claim does not sufficiently disclose a cause of action.
Duff J.
contra.-Per Idington J.-The trial judge rightly refused to rehear substantially the same evidence and to review the judgment rendered upon it at the former trial.- Per Idington and Brodeur JJ.-The sufficiency of the allegations in a statement of claim is a matter of practice and procedure and the jurisprudence of this court is not to interfere in such matters.-Per Duff
J. (dissenting).- Where the plaintiff's statement of claim sufficiently alleges a cause of action and the plaintiff appears at the trial ready to proceed with his evidence in support of his claim the trial judge could not properly disniss the action except upon some admission on behalf of the plaintiff shewing his claim to be unfounded or unenforceable. To dismiss the action as an abuse of the process without hearing the evidence in such circumstances would be unprecedented and contrary to the course of the court. The trial judge did not so proceed but dismissed the action on the ground that the statement of claim shewed no cause of action, and as he erred in this, there should be a
ACTION-Continued.
new trial.-Per Mignault J.-When it became evident to the trial judge at the second trial that no other evidence than that offered at the former trial would be tendered he was justified in dismissing the action.-Judgment of the Appellate Division ([19221 1 W.W.R. 1208) affirmed, Duff J. dissenting.
2-Right of action-Foreign administration-Promissory notea-Situs-Action in Manitoba-Ancillary probate.] C., domiciled in Massachusetts, died there leaving among the assets of her estate promissory notes payable to her order but not indorsed. The maker lived in Manitoba. The Probate Court of Massachusetts appointed P. administrator of C's. estate. -Held, affirming the judgment of the Court of Appeal (32 Man. R. 108) that the situs of the notes was in Massachusetts they being transferable by acts done solely there, and the administrator or his transferee alone could sue on them.- Held also, that the administrator could maintain an action against the maker in the Manitoba courts without taking out ancillary administration in that province.
PREscorr. ... 3 - Laches - Acquiescence - Purchase from promoters- Consideration - Payment for services - Resolution of directors.] An action was brought by individual shareholders against a joint stock company and its president for rescission of an agreement to purchase the assets of the business formerly carried on by the president (promoter), worth some $1,500, for 500 shares of the common stock (par value $50,000) of which 200 were to be held in trust and given topurchasers of the preferred; also to have struck from the minutes a resolution of the board of directors providing payments to the president for future services as manager and a return of the money received by him pursuant to said resolution.-Held, affirming the judgment of the Appellate (50 Ont. L.R. 387) Duff and Brodeur JJ. dissenting as to the first-mentioned cause of action, that whether or not the proceedings of the company are open to attack no fraud was proved and the plaintiffs are debarred, by laches and acquiescence in all that was done for ACTION-Concluded.
several years, from maintaining the action.-Per Duff J.-It is clear that the
500 shares were allotted to the vendors of the assets at a discount and the allotment was ultra vires. The agreement should, therefore, be set aside.-Per Anglin J.- The appellants, suing as individuals, cannot have such allotment set aside.
Fullerton v. Crawford (59 Can. S.C.R.
314) referred to.-Held also, Anglin and
Mignault JJ. (dissenting)
, that the respondents should not be given the costs of this appeal or of any proceedings below.
4 - Workmen's Compensation Act
Action against employer-Injury accident-Jurisdiction of Compensation Board
........
See WORKMEN'S
- Foreign judgment - Vendor and purchaser-Agreement for sale-Assignm ent.............................
ADMIRALTY LAW-Collision - Vessel having barge in tow-Absence of regulation lights-Possibility of avoiding accident- Liability of both vessels.] The lake steamer
Maplehurst, having in tow the barge
Brookdale, both the property of the
Canada Steamship Lines, Ltd. left the city of Montreal for the city of 4uebec on the evening of July
15,
1920. The
Maplehurst was not equipped for towing as she did not have the regulation towing lights required by article 3 of the "Regulations for preventing collisions."
barge Brookdale had the regulation red and green side lights. While the Maplehurst was proceeding down the channel through Lake St. Peter, a collision occurred between the Brookdale and the tug Margaret Hackett upbound with a barge in tow, both the property of the
George Hall Coal Company of Canada.
As a result of the collision, the tug foundered and the barge Brookdale sustained damages.
The plaintiffs, as their respective owners, sued for damages, each imputing fault and blame to the other. The trial judge held that the officers of the Maplehurst had been guilty of negligence which was a direct and efficient cause of the collision; and he also found that the accident could have been avoided by the exercise of skill and promptitude on the part of those in charge of the tug Margaret
Hackett. The owners of the Maplehurst were condemned to pay three-quarters of the loss suffered by the owners of the tug Margaret Hackett and the latter were held answerable for one-quarter of the damages sustained by the barge Brookdale.-Held that the Maplehurst had by her negligence contributed to the col- ADMIRALTY LAW-Concluded lision to the extent to which the trial judge found her owners answerable. Mignault J. dubitane.-Per Duff J.- Where the negligence of the plaintiff and the negligence the defendant are in sequence, the question whether the collision could "have been avoided by the exercise of ordinary care and skill on the part of the defendant," depends upon the circumstances; and the conduct of the plaintiff may have been such in its bearing and effect upon the conduct of the defendant as to form a very important element in the determination of that question.-Per Anglin J.-The fault of the officers of the Maplehurst continued operative until the collision was, if not inevitable, only to be avoided by great skill and extraordinary alertness on the part of those in charge of the Margaret Hackett.
GEORGE HALL CO.; SS. LINES THE HACKET.. AMOUNT
IN
CONTROVERSY - Addition of interest-Supreme Court Act, 10-11 Geo. V., c. 32, s. 40.......... . APPEAL - Amount in controversy-Addition of interest to amount of judgment-"Supreme Court Act," 10-11 Geo. V., c. 32, s. 40.]
Under the provisions of section 40 of the "Supreme Court Act," as enacted by 10-11 Geo. V., c. 32, interest from the date of the judgment of the trial court to the date of the judgment of the appellate court cannot be added to the amount of the judgment of the trial court, in order to bring the "matter in controversy" up to an amount exceeding two thousand dollars. HAMIL- EvANs................... 2-Leave by Supreme Court-Criminal Case-9-10 Geo. V., c. 32, 55, 36 and 41- Canada Grain Act, 2 Geo. V., c. 27, s. 215 (D).]
Though sec. 41 of the Supreme Court Act empowers the court to grant leave to appeal "in any case whatever" in which any of certain specified matters are in controversy the right is limited to cases in which an appeal may lie as provided in sec.
36.-A conviction contravention of sec. 215 of the Canada Grain Act the penalty for which is fine or imprisonment is a conviction in a "criminal cause" and not appealable under see. 36 of the Supreme Court Act. KING V. Co ...... 3-Motion to quash-Payment of costs below-Threat of execution-Acquiescence in judgment-Right of appeal.] Payment of costs in the courts below made under threat of execution does not amount to acquiescence in the judgment rendered APPEAL-Concluded.
and the right of appeal to this court therefore still exists.
4 - Findings at trial - Inference - Concurrent findings ................
5 - Action under Workmen's Compensation Act-Submission to trial Judge- Quality of Judge--Quasi arbitration.. 46
6 - Income tax - Bank - Branch - Annual profit-Assessment roll-Valida ting Act-Pending cases............
ASSESSMENT AND TAXES-Assessment on income-Industrial company- Distribution of funds-Assessment for current year-Consideration of . previous year's income-Assessment Act, R.S.O.
(1914] c. 195, s. 11 (2).] Section of the
Ontario Assessment Act provides taxes on income and by subsection 2
"where such income is not a salary or other fixed amount capable of being estimated for the current year the income of such person for the purposes of assessment shall be taken to be not less than the amount of his income during the year ending on the 31st day of December then last past."
In 1921 the shareholders of an industrial company were assessed in respect of moneys received from the company in 1920.
On appeal it was established that no similar amounts were paid them in 1921 and the Appellate
Division deducted said amount from the assessable income for that year.-Held, that the income to be taxed is that of the current year; that the income of the preceding year is only a basis from which to estimate the former when subsection
2 applies; and that the income to be assessed for 1921 was properly reduced.
CrrY v. EGAN..........
2 - Assessment and taxes - Bank - Net annual income or profit-Municipal assessment-Business done in municipality
-Assessment
Act, 8-9 Geo. V., c. 5- Validating Act-Pending cases-Right of appeal.] By the Nova Scotia Assessment
Act a bank doing business in any municipality may be taxed on the "net annual income or profit" derived from such business.
In 1921 the branch of the
Royal Bank at Glace Bay received a large sum on deposit by its customers which was remitted to the head office of the bank in Montreal and merged in the general funds there. Without regard to any use made of this money by the head office the branch was credited with interest at four per cent on the amount.- 68208-A4i
ASSESSMENT AND TAXES--Continued Held, per Idington, Anglin and Mignault JJ
Davies C.J. and Duff and Brodeur JJ. contra, affirming the judgment of the Supreme Court of Nova Scotia (56 N.S. Rep. 120), that the sum so credited, less the amount of any loss incurred in the other operations of the branch, constitutes the "net annual income or profit" of the bank derived from its business in Glace Bay which was liable to taxation.-Held, per Idington and Brodeur JJ., Anglin J. contra, that an Act of the legislature validating the assessment roll for 1921 and omitting the provision in former Acts of the kind that it would not apply to pending cases, takes away the bank's right to appeal in this case which was pending when the Act came into force.
- Certiorari - Collection of tax - Distress - Secretary-Treasurer of Province-Judicial or ministerial Act-Tax on liquor for export-Direct or indirect taxation-B. N.A.
s. 92 (2)-12 Geo. V., c. 3 (N.B.), Liquor Exporters' Taxation Act.] By section 3 of the Liquor Exporters' Taxation Act of New Brunswick (12 Geo. V., c. 3), every person who has liquor for export from the province shall pay to the Crown a tax thereon at a specified rate and, by section 4, within a specified time; by section 6 in default of payment the amount of the tax may be levied by distress under a warrant signed by the Provincial Secretary-Treasurer, or (section 7) the Secretary-Treasurer may bring an action to recover it; and section 9 authorizes the Lieutenant-Governor in Council to make regulations for, inter alia, "the fixing and determining of the amount of the said tax."
In a case of distress under these provisions it was not shown how the amount had been determined.-Held, Anglin and Mignault JJ. dissenting, that the act of the Secretary- Treasurer in signing the warrant is judicial and not ministerial merely and that certiorari will lie to bring the proceedings before the Supreme Court of the province for review.-Held, also, Anglin and Mignault JJ. expressing no opinion, that the imposition of a tax on liquor kept for export is indirect taxation and ultra vires of the provincial legislature. ExPoRT Co.
TON.........
4-Assessment and taxes-Trustee under will-Income to be accumulated- Unknoum beneficiaries-Constitutional law-Direct or indirect taxation-Assessment Act R.S.O. [1914] c. 195, ss. 13 (1) and 83.] section 5 of the Ontario Assessment Act "all income derived either within or without Ontario by any person resident therein" is assessable and by section 13 (1) ASSESSMENT AND TAXES-Concluded
"every agent, trustee, or person who collects or receives, or is in any way in possession or control of, income for or on behalf of a person who is resident out of
Ontario shall be assessed in respect of such income."-Held, reversing the judgment of the Appellate Division (50 Ont.
L.R. 305), Idington J. dissenting, that a trustee under a will cannot be assessed for income received which, as directed by the will, had to accumulate for a designated term of years and then be apportioned among testator's children when neither the identity of the beneficiaries nor the amount to be assessed against the trustee can be presently ascertained.
As to beneficiaries resident in Ontario they and not the trustee should be assessed if their identity could be ascertained.-Per Duff J.-Sec. 13 (1) provides for indirect taxation and is ultra vires of the Ontario Legislature.-By section 83 of the Act every tribunal or judge to which an appeal may be taken can determine whether "any person or things are or are not assessable or are or were legally assessed or exempted from assessment."-Held per Duff J. that notwithstanding these provisions a person assessed may, after the assessment has been upheld, bring action for a judgment declaring it illegal on the ground that the legislation professing to impose it is ultra vires. Idington J. contra.-Per
Davies C.J. and Anglin, Brodeur and
Mignault JJ.-The judgment of this court declaring the assessment illegal deprives the trustee of any interest he may have had to challenge the validity of the provisions of the Assessment Act assuming to impose it and the dismissal of the action for a declaratory judgment
(52 Ont. L.R. 562) should be affirmed.
McLEOD V. CITY WINDSOR.......
BANK
- Tax - Branch - Annual income or profit-Right of appeal ..........
BANKRUPTCY AND INSOLVENCY- Bankruptcy - Authorized assignment - Railway Co.-Prior assignment of book debts-(D) 9-10 Geo. V., c. 36, a. 30 (1);
10-11 Geo. V., c. 34.]
A company incorporated as a railway and mining company entered into an agreement with the purchaser of the property of a similar company under which it operated, for a few months, the short line of railway covered by the purchase.
The purchaser having, then, made default in his paymentA, the former owners resumed possession of the property.
Shortly after the company which had so operated made a voluntary assignment under the Bankruptcy Act.-Held, Idington and Brodeur JJ. dissenting, the said company was
BANKRUPTCY AND INSOLVENCY- Concluded.
not a "railway company" within the meaning of see. 2 (k) of the Bankruptcy Act and its assignment was authorized under the provisions of that Act.- Shortly before going into bankruptcy the company made an assignment of its book debts which under sec. 30 (1) of the Act was void if the assignor did not comply with the requirements of provincial legislation as to registration, notice and publication thereof.-Held, assignment was void as against the trustee in bankruptcy though there was no such provincial legislation. BANK V. EASTERN TRUST Practice and procedure-Stay of proceedings-Debtor-Extension of credit by unsecured creditors-Approval by Bankruptcy Judge-Privileged claim-Action to enforce -Right of judge to grant stay-C.C. Art. 2013 et se.-"The Bankruptcy Act," as amended by (D) 11-12 Geo. V., c. 17, s. 2 (gg), 6, 7, 9, 10, 13 (15), 13a, 42, 45, 51,
The appellant company, being financially embarrassed, but before any assignment made, submitted to its insecured creditors a proposal for an extension of credit of one year, pursuant to section 13 of the Bankruptcy Act. Such proposal was accepted by the majority of the unsecured creditors and duly approved by a judge in bankruptcy according to the provisions of the Act. The respondent, having a claim against the appellant for work done and materials supplied, caused to be registered a privilege, under articles 2013 et seq C C upon the property on which work had been performed and, within the delay mentioned in the code, brought action to realize its security. The appellant then petitioned the court in bankruptcy for a stay of proceedings in such action until the expiry of the extension of credit.- Held that the judge in bankruptcy had no jurisdiction under the provisions of the Bankruptcy Act to grant such stay.-Per Duff, Anglin and Brodeur JJ.-The court in bankruptcy had no inherent power to stay action.-Held, also, that the respondent company was a "secured creditor" within the meaning of section 2, subsection gg. of the Bankruptcy Act.
RIoRDAN Co. v. DANFown Co............. CARRIER - Railways - Misdelivery - Liability - "Loss"-Meaning - Absence of Notice.] The appellant had purchased at Vancouver lumber from the G.W.N. Co. and had sold it to the U.S.L. Co. of Portland,
Oregon.
The lumber shipped from Prince Rupert, B.C. to Minneapolis by the G.W.N. Co., consigned to itself, to be carried by respond- INDE
CARRIER-Continued.
ent's line of railway to Winnipeg and thence to destination by that of the
Canadian
Pacific
The bills of lading were in the standard form known as a "straight bill of lading"
approved by the Board of Railway
Commissioners for Canada. Each bill was indorsed as follows: "Deliver to
Premier Lumber Company, (sgd.) the
G.W.N. Co."
The bills of lading were held in Vancouver by the Standard
Bank of Canada, from whom the appellant had borrowed money, to be handed over to the purchaser on payment being made. The C.P. Ry. Co. without requiring or obtaining surrender of the bills of lading, allowed possession of the lumber to be taken by, or on behalf of, the U.S.L.
The appellant company, not having been paid by the U.S.L. Co. for the lumber seeks to recover the price of it from the respondent company, the original carrier, as being responsible under the conditions of the bills of lading for the fault or misfeasance of the second carrier in wrongfully handing over the lumber.
The main defence was the failure of the appellant company to give notice of loss which by the bills of lading was made a condition of the respondent's liability.- Held that the respondent company was not fiable.-Per Davies, C.J. and Duff and Brodeur JJ.-Upon the evidence, the U.S.t. Co. obtained delivery of the lumber, without presenting the bill of lading, to the knowledge and with the consent of the appellant company.-The second section of the conditions indorsed on the bills of lading provided that "the carrier
* shall be liable for the loss * caused by, or resulting from, the act, neglect or default cf any
* * * carrier * * *."-Per Duff J.- Loss by reason of misdelivery is "loss"
within the meaning of section 2 for liability by the initial carrier. Anglin J contra.-The 4th section of the conditions indorsed on the bills of lading provided that "notice of loss, damage or delay must be made to the carrier at the point of delivery, or to the carrier at the point of origin, within four months after the delivery of the goods, or in the case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed.
Unless notice is so given the carrier shall not be liable."- Per Davies C.J. and Idington, Brodeur
Mignault JJ.-The absence notice of loss is fatal to the appellant's claim.-Per Duff J.-The notice clause although applicable in the circumstances of the case would afford no defence because after the carrier under a certain clause in the bill of lading had become liable as warehouseman, any "failure to make delivery" could only be a failure after demand by or on behalf of the
CARRIER-Concluded.
consignee, and "a reasonable time for delivery" could only mean a reasonable time after demand; there is no evidence of any demand having been made except by the persons to whom delivery was made and consequently the time prescribed never began to run.-Per Anglin J.-"Loss" in sections 2 and 4 means physical loss of the goods as by accident during transit, or through negligence, or by theft, but does not cover nondelivery due to an intentional parting with the goods by the carrier amounting to a wilful misfeasance.
The second carrier having wilfully handed over the goods to a party not entitled to receive them, the respondent cannot assert any right to the protection of the notice clause in respect to such an act of misfeasance which did not cause a "loss" within section 2 of the conditions.- Judgment of the Court of Appeal ([1922] 2 W.W.R.
affirmed.
CO. GRAND TRUNK CASES
Booth v. Ottawa Electric Ry. Co. (63 Can. S.C.R. 444) ref.................... See 9.
2--Canada'SS. Lines v. The Margarett Hackett ([1923] Ex. C.R. 167) aff.... 3-Canadian Bank of Commerce v. Cudworth Rural Telephone Co. ([1922 2 W.W.R. 1211) aff ..............
4--Canadian Pacific Ry. Co. v. Smith (62 Can. S.C.R. 134) dist .......... See 9. 5--Canadian Northern Ry. Co. v. Holditch ([19161 1 A.C. 526) ref ..... 6--Canadian Pacific Ry. Co. v. Department of Lands and Forests (58 Can. S.C.R. 189) expl......................... 155 7-Canadian Vickers Ltd. v. Smith (Q.R. 32 K.B. 443) aff ............. 8---Church, in re ([1922] 3 W.W.R. 1207) rev......................... 9---Clarke v. Canadian National Railways (1923] 1 W.W.R. 1419) aff ..... 10--Colonsay Hotel Co. v. Canadian National Fire Ins. Co. (16 Sask. L.R. 146) rev.......................... CASES-Continued.
11-Costanza v. Dominion Canners
(51 Ont. L.R. 166) ref. back ........
12-.-Cowper-Essex v. Acton Local Board
(14 App. Cas. 153) ref .............
13-Curtis's and Harvey v.
North
British and Mercantile Ins. Co. ([1921]
1 A.C. 303) dist................
14-Dawson 'v. Bedard (Q.R. 32 K.B.
246) aff..........................
15-Earl v. Grand Trunk Ry. Co.
([1922] 3 W.W.R. 406) rev.........
See 5.
16-Fullerton v. Crawford (59 Can.
S.C.R. 314) ref...................
17-George Hall Coal Co. v. SS. Maplehurst ([1923] Ex. C.R. 167) aff ......
18-Glace Bay v. Royal Bank of Canada
(56 N.S. Rep. 120) aff..............
19---Guimond v. Fidelity-Phenix Ins.
Co. (47 Can. S.C.R. 216) dist.......
20-Home Appliances Mfg.
Oneida Community ([1923] Ex. C.R. 44)
af ...............................
21-Hutton v. Dent (58 Ont. L.R.
105) aff..........................
22-Hood v. Campbell (50 Ont. L.R.
387) all......................
23- Johnson v.
Yake;
Moose Jaw
Election Case ([1922] 3 W.W.R. 328)
af..........................
24- King, The, v. City of Hull (23 Ex.
C.R. 27) rev...................
25-King, The, v. Manitoba Grain Act
(32 Man. R. 52) Leave ref ..........
26--King, The, v. Sisters of Charity
([1922] 2 A.C. 315) ref .............
27- Landels v. Christie (55 N.S. Rep.
353) aff.......................
CASES-Concluded.
28-Lethbridge, City of, v. Canadian Western Natural Gas, L., H. and P. Co. ([1923] W.W.R. 838) .......... 29- Linnell v. Reid ([1923] 1 W.W.R. 30- Mondor v. Willits (32 Man. R. 31-Montreal, City of, v. Lesage (Q.R. 33 K.B. 458) aff................... 32- Montreal, City of, v. Watt & Scott ([1922] 2 A.C. 555) fol......... 203, 355 See 2, 4. 33-MacDonald v. Pier ([1922] 1 W. W.R. 1208) aff ..................
34-McClelan v. Downey (45 N.B. Rep. 90) rev..................
See 8.
35-Premier Lumber Co. v. Grand Trunk Pacific Ry. Co. ([1922] 2 W.W.R. 181) aff.......................... 36-Prescott v. Crosby (32 Man. R. 108) aff.......................... Quebec Ry., L., H. & P. Co. v. Vaudry A.C. 662) fol .... 203, 355 38- Smith v. Provincial Treasurer of Nova Scotia (58 Can. S.C.R. 570) rev 578 39---Sowards v. London Guarantee and Accident Co. (52 Ont. L.R. 39) rev... 365 40-St.
Paul Lumber Co. v. British Crown Assur. Corporation ([1922] 1 W. W.R. 1048) rev.................
41-Three Rivers, City of, v. Sun Trust Co. (Q.R. 34 K.B. 351) aff .......... 42-Vaillancourt v. Governor and Company of Gentlemen Adventurers of England (Q.R. 34 K.B. 207) aff ............. 43-Wayagamack Pulp and Paper Co. v. Laroche (Q.R. 34 K.B. 461) aff.... '476 44- Windsor and McLeod, in re (50 Ont. L.R. 305) aff................ See 4. 45-Zornes v. The King ([1922] 1 W. W.R. 90) aff..................
CERTIORARI-Collection of tax-Distress-Secretary-Treasurer of Province- Judicial or ministerial Act-Tax on liquor for export-Direct or indirect taxation- B.N.A. Act, 8. 92 (2)-12 Geo. V., c. 3
(N.B.), Liquor Exporters' Taxation Act.]
By section 3 of the Liquor Exporters'
Taxation Act of New Brunswick (12
Geo. V., c. 3), every person who has liquor for export from the province shall pay to the Crown a tax thereon at a specified rate and, by section 4, within a specified time; by section 6 in default of payment the amount of the tax may be levied by distress under a warrant signed by the Provincial Secretary-Treasurer, or
In a case of distress under these provisions it was not shown how the amount had been determined.-He d, Anglin and Mignault JJ.
dissenting, that the act of the Secretary- Treasurer in signing the warrant is judicial and not ministerial merely and that certiorari will lie to bring the proceedings before the Supreme Court of provinces
Teview.
Co. v. ......
CIVIL CODE
Art. 407 (Ownership)...............
2- Art. 1013 (Obligations)........ 126
3- Art. 1048 (Obligations)......... 459
See 7.
4-Arts. 1053-4 (Fault).203, 255, 414
See 2, 4, 6.
5- Art. 1063 (Obligations) ........ 459
6- Arts. 1473 (Sale) .............
See 7.
7- Arts. 1508, 1511 (Warranty) ...
S- Art. 1526 (Sale) ..............
9- Arts. 1574, 1576 (Sale)...
10-Art. 1589 (Sale) .............
11- Art. 1935 (Suretyship) .......
12- Art. 2013 (Privilege) ..........
CODICIL
COMMISSION-Conditions for earning -Contract as to sale of shares-Payment ................................. COMMISSIONERS - Sewers - Statutory board-Resignations-Majority 522 *
See 8.
I aches-Acquiescence-Company-Purchase from promoters-Consideration-Payment for services-Resolution of directors.] An action was brought by individual shareholders against a joint stock company and its president for rescission of an agreement to purchase the assets of the business formcarried on by the president (promoter), worth some $1,500, for 500 shares of the common stock (par value $50,000) of which 200 were to be held in trust and given to purchasers the preferred; also to have struck from the minutes a resolution of the board of directors providing payments to the president for future services manager and a return of the money received by him pursuant to said resolution.-He affirming the judgment of the Appellate Division (50 Ont. L.R. 387) Duff and Brodeur JJ. dissenting as to the first-mentioned cause of action, that whether or not the proceedings of the company are open to attack no fraud was proved and the plaintiffs are debarred, by laches and acquiescence in all that was done for several years, from maintaining action.-Per Duff J.-It is clear that the 500 shares were alloted to the vendors of the assets at a discount and the allotment was ultra vires. The agreement should, therefore, be set aside.-Per Anglin J.-The appellants, suing as individuals, cannot have such allotment set aside. Fullerton v. Crawford (59 Can. S.C.R. 314) referred to.-Held also, Anglin and Mignault JJ. dissenting, that the respondents should not be given the costs of this appeal or of any proceedings below.
1922,
The respondent company was organized under the provisions of the "Rural Telephone Act" and, pursuant to those provisions, was duly registered and incorporated under the Saskatchewan "Companies Act."- Held that the respondent company had no power to make a promissory note the "Rural Telephone Act."-Held, Idington J. dissenting, that it has no such power under section of the "Companies COMPANY-Concluded.
Act."-Per Idington, Brodeur and Mignault JJ.-Section 14 applies to the respondent company, Duff J. contra;
Davies C.J. and Anglin J. expressing no opinion, although Anglin J. semble in the affirmative.-Held, Idington J. dissenting that, on the assumption that section 14 did apply, there is nothing in it to extend the limited and clearly defined powers of the respondent company under "The
Rural Telephone Act."-Per Davies C.J.
and Mignault J.-The word "capacities"
in the second part of section 14 does not mean "powers."-Per Duff J.-The effect of section 14 as regards the extraprovincial capacities of companies to which it applies is to establish as a rule of construction the rule laid down by Blackburn J. in the A 8hbury Company's Case
(L.R. 7 H.L. 653) but held by the House of Lords in that case not to be applicable to companies incorporated under "The
Companies Act" of 1862, the rule being that companies affected by it have prima faie all the capacities of a natural person but subject to all restrictions created expressly or by necessary implication by any statutory enactment by which such companies are governed. Section does not apply to companies incorporated for the purpose of working a rural telephone system under "The Rural Telephone Act," since tle memorandum of association of such a company must by read as incorporating the restrictiors upon the capacities of such a company to be found in "The Rural Telephone
Act" which by necessary implication exclude the operation of section 14 in relation to such companies.-Per Anglin
J.-Under the provisions of "The Rural
Telephone Act," the respondent company already possessed for the purposes for which it was incorporated all "actual powers and rights"
and the fullest
"capacity" which the legislature could bestow (Honsberger v. Weyburn Townsite
Co., 59 Can. S.C.R. 281); and section
14 did not add anything to such "capacity."-Per Idington J. (dissenting).- The corporate powers and capacity of the respondent company rest upon "The
Companies Act" entirely, and section 14 impliedly gives to it the capacity and power to make promissory notes.- Judgment of the Court of Appeal ([1922]
2 W.W.R. 1211) affirmed, Idington J.
3---Shares-Sius-Bank stock .....
See DUTY.
CONSTITUTIONAL LAW - Provincial legislation-tax-Liquor for export.]- Held, Anglin and Mignault JJ. expressing
CONSTITUTIONAL LAW-Concluded. no opinion, that the imposition of a tax on liquor kept for export is indirect taxation and ultra vires of the provincial HETHERINGTON.................... 2 - Constitutional law - Disorderly houses-Provincial statute ordering their closing-Intra vires-(Q.) 10 Geo. V., c. 81.1 The Quebec statute entitled "An Act respecting the owners of houses used as disorderly houses," 10 Geo. V c 81, authorizing a judge to order the closing of a disorderly house, is intra vires the provincial legislature, as it deals with matter of property and civil rights by providing for the suppression of a nuisance and not with criminal law by aiming at the punishment of a crime.
DAwsoN...................... 3-Assessment and taxes-Trustee under will-Income to be accumulated- Unknown beneficiaries-Constitutional law-Direct or indirect taxation-Assessment Act R.S.O. (1914) c. 195, ss. 13 (1) and 83.] section 5 of the Ontario Assessment Act "all income derived either within or without Ontario by any person resident therein" is assessable and by section (1) "every agent, trustee, or person who collects or receives, or is in any way in possession or control of, income for or on behalf of a person who is resident out of Ontario shall be assessed in respect of such income."-Held, Duff J. Sec. 13 (1) provides for indirect taxation and is ultra vires of the Ontario Legislature. McLEOD CITY WINDSoR ..... Commission - Sale shares-Commission dependent on payment-Insolvency of buyer-Purchase of assets by seller-Payment or equivalent.] W. having agreed to sell shares in the capital stock of the Orr Gold Mines Co. to the Kirkland-Porphyry Gold Mines Co. entered into a contract to pay C. a commission for services in effecting the sale. The purchase price of the shares was to be paid as follows: $100,000 on transfer to the purchaser and the balance by instalments at specified dates and the commission was to be paid out of the respective instalments.
A clause in the contract provided that if the payments were not made by the purchaser W. would be under no liability to pay the commission.
The initial payment of $100,000 was made and the commission thereon paid to C.
When the next payment fell due the purchaser defaulted and shortly after was placed in liquidation under the Winding-Up Act.
The liquidator offered the assets for sale and accepted the joint tender of W. and H.W., a creditor who had advanced money to the insolvent company for its operations.
The success- CONTRACT-Continued.
ful tenderers received all the assets of the estate including the stock sold by C. and other stock in the Orr Co. and paid the claims of the other creditors.
In an action by C. for the balance of his commission there was no evidence that the assets had a cash value equivalent to the amount of the unpaid purchase price of the shares.-Held, Idington J. dissenting, that W. had not received payment for the shares sold to the Kirkland Co. and the commission was not earned.-Per Duff
J. By the transaction with the liquidator the contract sale of the shares to the
Kirkland Co. was virtually rescinded and the evidence fails to show that what C.
received in purchasing the assets was received or given in the performance by the Kirkland Co. of its obligation under the contract of sale of shares.-He d also that there is nothing on the record to show that C. did anything to prevent the contract for sale of the shares from being carried out.-Per Idington
J.
There should be a reference to ascertain the value of the assets purchased from the liquidator.
.....
2 - Partnership - Dissolution - Profits - Art.
C.C.]
In 1909, the respondent, carrying on on his own account the practice of a civil engineer, employed the appellant as his assistant.
On the 1st September
1912, the respondent entered into a contract by private writing with the appellant and one Heroux to carry on the same undertaking under the name of
"Marius Dufresne."
The agreement provided inter alia that the profits realized
("b6n6fices r6alisds") at the expiration of each year should be divided, 80 per cent to the respondent and 10 per cent to each of the others.
The agreement was silent as to what was to become of the fruits of work done during the term of the partnership that should remain uncollected upon its expiration. On the 31st of December, 1912, all moneys received during the four months of the existence of the partnership, including those paid on account of work done by the respondent before the 1st September, 1912, were distributed between the partners. At the date of the dissolution of the partnership, on the 31st December, 1916, a new agreement was passed between the appellant and the respondent by which the former was hired by the latter for the year 1917 at a salary of $150 a month plus 10 per cent of the "b6n6fices r6alis6s"
during that year. The appellant, over two years after the first agreement had terminated, claimed 10 per cent of the moneys collected by the respondent after the dissolution of the partnership for work done during its. existence.- CONTRACT-Continued.
Held, that, as the meaning of the provisions of the written agreement is not free from obscurity, the intention of the parties may be ascertained by taking mto consideration the surrounding circumstances and by examining the conduct of the parties themselves in so far as it throws light on the interpretation they have placed upon their contractual rights. The contract so interpreted shows that for the annual division of profits only the net receipts for the year should be considered and therefore the appellant was not entitled to the moneys claimed.
DUFRESNE.... 3 - Sub-contract - Default of contractor-Rescission-Arrangeme ntwith subcontractor- New contract or guarantee- Statute of frauds.] A lumber company gave G. a contract to cut and drive logs and a sub-contract for part of the work was given to M.
Before his contract was completed G. absconded and the company treated his contract as abandoned and took possession of the logs cut. M., to whom nothing was due by G. at that time, had an interview with the president of the company, who said to him: "You will keep on with the work exactly as you were to do with G; you will finish your contract. Put your wood where you expected to put it with G. I will pay you. You are not dealing with G. any more, you are dealing with us. Make your drive and I will pay you. I will pay you your contract as G. was supposed to pay you."
M. completed his contract but payment was refused.- Held, that the undertaking by the company to pay M. was not a contract to answer for a debt of G. which the Statute of Frauds required to be in writing but was a new and independent contract entailing liability on the company when performed.
4- Specific performance - Fraud - Money paid under contract-Right to rescission.] The court will not decree specific performance of a contract obtained by fraud of the plaintiff even when the defendant has not offered to return money received under the contract.-Per Duff J. In this case the money was paid on account of an admitted debt and the debtor could not impose conditions.
V. MASSON...... 5 - Breach - Party wall- Narrowing of wall contrary to Proper remedy - Injunction -Specific performance.] A party wall agreement between appellant and respondent provided that respondent might build the wall two feet or more in thickness, half on each property, the middle line to coincide with the boundary line. The respondent built a wall the founda- CONTRACT-Continued.
tion, basement and first story of which were in accordance with the agreement, but he narrowed the second story by four inches on his own side of the wal, and the third story by a further four inches, keeping the wall on the outside
(appellant's side) perpendicular.
After it had been erected for some years and formed a wall of respondent's building, the appellant, alleging he had recently discovered the breach of agreement, sued for a mandatory injunction to compel the respondent to pull down that part of the wall not erected in compliance with the agreement and for specific performance of same.-Held, that these facts did not constitute merely a breach of contract for which recovery of damages would be a proper remedy, but a trespass, and that the appropriate remedy is to grant a mandatory injunction as prayed for by appellant.-Per
Idington J. The appellant has also the right to ask for specific performance of respondent should be ordered to rebuild the wall of the same thickness of two feet.-Judgment of the Court of Appeal ([19221
2 W.W.R. 1028) reversed.
WRIGHT .........................
- Pulpwood - Agreement by employer for re-sale- Knowledge contractor-Measure of damages- Monies retained until completion.] W.
entered into a contract to supply a paper company with 3,000 to 5,000 cords of pulpwood at eight dollars per cord with permission to continue cutting on the same terms up to a specific date.
W. had previously made a contract with
M. who agreed to deliver 4,000 cords to be cut on the limits of the Paper Co. at six dollars.
M. was informed of the first-mentioned contract though not of all its terms. At the end of the season
M. was more than 1,400 cords short of the quantity he agreed to deliver.- Held affirming the judgment of the
Court of Appeal (32 Man. R. 383) that as no default by W. was proved he is entitled to recover from M. damages for non-performance by the latter of his contract to deliver 4,000 cords and the measure of those damages is the profit he would have made under his contract with the paper company.-Held, also,
Brodeur J. (dissenting)
, that W. can recover the drawback from the price of the wood actually delivered witheld by the paper company because of failure to deliver the whole 3,000 cords contracted
MoNDo v. WILLIS ..........
7-Franchise-Supply of gas-Right to discontinue-Public Utilities Act-Remedies under.....
...............
CONTRACT-Concluded.
8- Sale of goods-Warranty as to quality-Delivery-Defect in quality- Right of rejection.................. CRIMINAL LAW - Criminal law Reserved case-Insufficiency of the stated case-Authority to order copy of evidence- Arts. 1017, 1024 Cr.
By virtue of the combined effect of sections 1017 and 1024 of the Criminal Code, the Supreme Court of Canada, when it deems it necessary, may require the trial judge to supplement the material submitted by him as a reserved case stated pursuant to an order of the court of appeal, by furnishing a copy of such parts of the evidence at the trial as are material to the disposition of the questions directed to be submitted. THE KING............... 2-2
Geo. V., c. 27, s. 215 (Man.)- Contravention-Appeal-Leave....... 37 3-Provincial statute-Disorderly houses -Constitutionai aw-Property and civil rights............................ CROWN - Liability of - Government Telephone System-Person injured by driving into loose wire-Negligence of Crown's servants-"The Public Utilities Act" (Alta.) S. (1915) c. 6-"Interpretation (Alta.) S. (1906) c. 3-Alta. S. (1917) c. 3, s. 30.]
Section 2 (b) of the Alberta Public Utilities Act provided that "the expression 'public utility' means and includes every corporation and in 1917, the following words were added by the legislature (c. 3, s. 30): "also the Alberta Government telephones, now managed and operated by the Department of Railways and Telephones."
Section 31 (2) of the same Act provides that "the public utility shall be responsible for all unnecessary damage which it causes in carrying out, maintaining or operating any of its said works."-Held, Davies C.J. and Mignault J. dissenting that the Crown, as represented by the overnment of Alberta is liable in damages, upon proceedings by petition of right, for personal injuries sustained by reason of the negligence of its servants in allowing a loose wire forming part of the Government Telephone System to fall and lie upon a public highway.-Judgment of the Appellate Division ([1922]
1 W.W.R. 907) affirmed, Davies C.J. and Mignault J. THE v. 2-Secretary-Treasurer of
Province- Judicial or Ministerial Act-Tax-Liquor for export-Distress................ Pulpwood - Agreement by employer for re-sale-Knowledge of contractor-Measure of damages- Monies retained until completion.] W.
entered into a contract to supply a paper company with 3,000 to 5,000 cords of pulpwood at eight dollars per cord with permission to continue cutting on the same terms up to a specific date.
W. bad previously made a contract with M. who agreed to deliver 4,000 cords to be cut on the limits of the Paper Co. at six dollars.
M. was informed of the firstmentioned contract though not of all its terms. At the end of the season M. was more than 1,400 cords short quantity be agreed to deliver.-Held, affirming the judgment of the Court of
Appeal (32 Man. R. 383) that as no default by W. was proved be is entitled to recover from M. damages for nonperformance by the latter of his contract to deliver 4,000 cords and the measure of those damages is the profit he would have made under his contract with the paper company.-Held also, Brodeur J.
dissenting, that W. can recover the drawbach from the price of the wood actually delivered witheld by the paper company because of failure to deliver the whole
3,000 cords contracted for.
MoNDoR
WILLITS..........................
ELECTION LAW - Candidate - Official agent - Corrupt and illegal practices - Election expenses - Payment - Untrue return-False declaration-"Dominion Controverted Elections Act," R.S.C. [1906], c.
7.-"Dominion Elections Act,"
(1) (3),
(9)].
The appellant, being a candidate at a federal election, appointed one McR. as his official agent.
An association, organized for the purpose of financing his candidature, received moneys which were deposited in a bank account under the control of its president and secretary.
Certain election expenses were paid by cheques issued by the association without the knowledge of McR. The agent, with the approval of the appellant, declared in his return that he had authorized these payments.
Two accounts, one of $20 for lunches supplied to the scrutineers and another for 868 for the services of a band on the night of the election day were sent to the agent and paid by him befor e his return was filed, but were not included in it. The appellant, pursuant to section 79 (3) of "The
Dominion Elections Act," transmitted to the returning officer a sworn declaration that to the best of his knowledge and belief the return of election expenses made by his agent was correct.-Held that the appellant and his official agent were guilty of corrupt and illegal practices
ELECTION LAW-Concluded. within the meaning of "The Dominion Elections Act," [1920] c. 46, section 78 (3) enacting that the payment of all election expenses should be made "by" or "through" the official agent and section 79 (3), (9) declaring to be a "corrupt practice" any untrue return or false declaration knowingly made by a candidate or his agent. Consequently the election is void: "The Dominion Controverted Elections Act," R.S.C. [1906], c. 7, s. 51 as amended by [1921] c. 7, s. 4 and s. 55 as amended by (1921] c. 7, s. 9.- Held, also, that on the present appeal from a judgment merely declaring the election void, it was no part of the duty of this court to decide whether or not the parties in fault were liable to the penalties and disqualifications provided by "The Dominion Elections Act."-Held, further that upon the evidence the appellant was not entitled to the benefit of the relief clause
("The Dominion Controverted Elections Act," R.S.C. [1906], c. 7, s. 56 (a) as amended by [1921] c. 7, s. 7) which provides for cases where the corrupt act of the parties arises through inadvertence, accidental miscalculation or other similar causes.-Judgment of the Election Court ([19221 3 W.W.R. 328) affirmed. EXPROPRIATION
OF LAND--Subdivision lots-Five lots taken for municipal sewage plant-Damages to remaining lots- Compensation- Nuisance-Fees of counsel and expert witnesses-Art. 407, 1589 C. C.-Montreal City Charter, 62 V, c. 58, s. 421.] In 1911, the respondent bought a block of land, 347 arpents in superficies, which it laid out as a residential building subdivision containing about fifteen streets and over 3,300 lots, which was treated as one holding. For the benefit of this subdivision the respondent, in contracts of sale or agreements to purchase lots, imposed conditions prohibiting uses of the lots which might depreciate adjoining parts of the property and, with the exception of one street, restricting the buildings to be erected thereon to residential buildings constructed at least ten feet from the front of the lots. During 1912, 1913, and 1914, about a third of the lots were disposed of subject to these restrictions. In February, 1916, the city of Montreal gave public notice of the expropriation of five of these lots required for the construction of an Imhoff tank, which is a sewage filtration plant.
A board of arbitrators having been named in accordance with the provisions of the city charter, the respondent claimed before it compensation in respect of, first: the actual value of the lots taken; and secondly damages arising from the expro- EXPROPRIATION OF LAND-Cont'd.
priation because consequent reduction in the selling value of the other lots unsold. The allowance of $896.66 for the value of each of the five lots was not contested; but the arbitrators having declined to recognize the claim under the second head and also having refused to allow the respondent what it has paid for counsel fees and expert witnesses, the respondent brought action to set aside the award.-Held, that the respondent was entitled, over and above the actual value of the five lots expropriated, to compensation for consequent depreciation in the value of its adjacent lands.
Although there was as much connection between the lots taken and those still owned and controlled by the respondent as existed between the lands taken and those left in the hands of the expropriated owners in the Cowper Essex Case (14
App. Cas. 153) and the Sisters of Charity
Case ([1922] 2 A.C. 315), (the Holditch
Case ([1916] 1 A.C. 536) being therefore quite inapplicable), the decision in the present case should not rest upon these decisions owing to differences in language between the relevant clauses of the governing statutes.
(Brodeur J., however, expressing no opinion on such differences).
The respondent's right to compensation for injurious affection of land must be decided by applying the principles of the general law of the province of Quebec contained in article
407 C.C. which carries that right unless it is excluded by special laws (Art. 1589
C.C.); and such right is assumed by
Article 421 of the Montreal City Charter, paragraph 1 of which confers the right to expropriate lands
"required for any municipal purposes whatsoever," paragraph 2 authorizing the arbitrators to take into consideration any increased value of the lands still remaining with the owner and setting the same off against
"inconvenience, loss or damages resulting from expropriation," and paragraph 3 prescribing the rule or measure by which indemnity for expropriation is to be ascertained and providing that the compensation shall include "damages resulting from the expropriation."- Held, also, that in view of the provisions of the city charter, s. 436, as amended by (Q)
4 Edward VII c 49, s. 21, the respondent was not entitied to claim, as part of its compensation, counsel fees and the costs of expert witnesses.
MONrREAL v. McANuLTY Co.................
FOREIGN JUDGMENT-Sale of land- Agreement-Assignment-Action on enant-rder for sale-Action on judgment in another province.................
GUARANTEE
See7PRINCIPAL HABEAS 'CORPUS - Habeas corpus-Applicant in custody under provincial Act
"B. N.A. 11867] s. 92 (14), s. 101-"Supreme Court Act," (D.) 38 V., c. 11; R.S.C. 1906, c. 139, 8s. 3, 35, 62-(Q.) 13 Geo. V., c. 18.] The appellant in custody in the city of Quebec under the authority of a special Act of the legislature for an alleged offence against the privileges, honour and dignity of the provincial legislature of Quebec asked, pursuant to section 62 of the "Supreme Court Act," for the issue of a writ of habeas corpus.-Held, that, owing to the absolute limitation imposed by the concluding words of section 62 "under any Act of the Parliament of Canada," the judge of the Supreme Court of Canada is without jurisdiction to grant the application. In re HIGHWAY - Railway company-Highway crossing-Cost of construction and maintenance--Seniority-Existing and potential highways.] The Dept. of Lands and Forests, Ont., applied to the Board of Railway Commissioners for orders directing the C.P. Ry. Co. to construct at its own cost an overhead crossing over its right of way at a point in the Township of Eton and a highway crossing in the Township of Aubrey.
The board granted both applications and gave leave to the company to appeal to the Supreme Court of Canada. The order for leave stated that the title of the company was obtained under authority of the Provincial Act, 59 Vict., c. XI, and was expressly made subject to the provisions of sec. 2 thereof, namely, "such transfer not be to affect or prejudice the rights of the public with respect to common and public highways existing at the date hereof within the limits of the land hereby intended to be conveyed."
It stated that when the Act was passed there were existing common and public highway across the lands intended thereby to be conveyed but none at either of the points in question and none laid out in the area covered by the Townships of Eton and Aubrey. Further that by an order in council passed in 1866 in respect to lands on the northerly shores of Lakes Huron and Superior an allowance of five per cent of the acreage should be reserved for roads and the right was reserved to the Crown to lay out roads where necessary.-Held, per Davies C.J. and Duff, Brodeur and Mignault JJ., that the phrase "rights of the public with respect to common and HIGHWAY-Concluded public highways existing at the date hereof"
should receive its ordinary grammatical construction, namely, rights of the public in existing highways; and that as there were highways existing on the right of way the rights of the public were only protected in respect thereto.
Canadian Pac. By. Co. v. Dept. L. and F.
(58 Can. S.C.R. 189) expl.-Per Duff J.
The lands transferred being occupied by a railway constructed by the Dominion
Government, the transfer of the latter was not one of the kind contemplated by the order in council which primarily related to patents granted under the
Ontario
Land Acts.-Per Anglin J.
The legislature could not have intended that sec. 2 of 59 Vict., c. XI, would only protect public rights in the scattered trails over the hundreds of miles covered by the right of way in question and must have meant to protect such rights which were in posse under the order in council when the Act was passed; but as the order in council only applies to lands on the northerly shores of lakes Huron and
Superior, and the townships of Eton and Aubrey are not so situated, there is no reservation of rights in respect to the highways in question on this appeal and the province of Ontario has no right reserved to construct crossings over the railway.-Idington J. did not deal with the merits of the appeal, being of opinion that the order of the board did not present such a stated case as required by law to give this court jurisdiction.
INJUNCTION - Contract-Party wall- Breach-Proper remedy ........ . .. .
See 3.
INSURANCE, ACCIDENT-Insurance, accident-Automobile-Collision with other automobile, vehicle or object-Contact with highway-Excessive speed-Motor vehicles
Act, R.S.O. [1914] c. 207 7 Geo V c 49 s. 14 (0.)]
An automobile was insured against loss or damage by "being in accidental collision
*
*
* with any other automobile, vehicle or object."- Held, reversing the judgment of the
Appellate Division (52 Ont. L.R. 39)
that the automobile, coming into contact with the earth by being capsized after striking a rut in the road, was not in
"collision" within the meaning of that term in the policy.-Effect of speed beyond the legal rate, the car not being driven by the insured, discussed.
LON- INSURANCE,
Lumber-Statutory conditions-Variation-Condition or description-Inpection of lumber-Knowledge of insurer-Estoppel.] A policy insuring lumber against loss or damage by fire contained the following clause: "Warranted by the insured that a clear space of 300 feet shall be maintained between the property hereby insured and any standing wood, brush or forest and a sawmill or other special hazard." Hel that this clause was not merely descriptive of the property but was a condition of the contract of insurance and void as not being in the form required for an addition to, or variation of, the statutory conditions contained in the Fire Insuirance Policies Act of New Brunswick (3 Geo. V, ch. 26.) Curtis's & Harvey v. North British and Mercantile Ins. Co. ([1921]
1 A.C. 303), and Guimond v* Fidelity-Phenix (47 Can. S.C.R. 216) dist.-Prior to the issue of the policy an expert in that class of insurance in the insurer's employ examined the lumber and the locality in which it was piled and reported to the insurer that none of it was within 300 feet of standing wood, brush or forest. On the trial of the action on the policy the jury found that some of it was within that distance at the time of the inspection but none was so placed afterwards.-Held, that the policy was issued and accepted in the belief that the inspection truly represented the fact and the insurer was estopped from maintaining the contrary.
AssUR. Co...................335
2-Description of insured property- Warranty-Statutory conditions-Agency -Non-disclosure.]
To the face of a policy of fire insurance on sawn lumber there was attached a sheet of paper typewritten in black and containing the following provision:
"It is understood and agreed that this insurance covers loss or damage arising from or traceable to prairie fires, it being warranted by the assured that the several locations named herein on which lumber is piled shall be entirely surrounded by ploughed ground and in no way exposed to bush hazard." policy was indorsed with the statutory conditions in compliance with "The Alberta Insurance Act."
In an action on the policy.-Held, Davies C.J. dissenting, that, as against the appellant, the warranty as to the character of the surroundings of the property insured is its the be part that policy.-Held also,
Davies C.J. (dissenting)
, that upon the evidence no mis- INSURANCE, FIRE-Concluded.
representation by the assured, or by any one in a position to bind him, had been shown and that he or his representative had disclosed all material facts of which they had knowledge bearing on the risk.-Judgment of the Appellate
Division 1 W.W.R. 1048) reversed,
Lmi- CORPORATION.....................
3- Extent of loss-"Actual value"- Replacement value-Statutory conditions- "The Saskatchewan Insurance Act," R.S.
S. (1920), c. 84, s.
One of the part section 82 The Saskatchewan Insurance
Act, R.S.S. 1920, c. 84, is that a fire insurance company is not liable "for loss beyond the actual value destroyed by fire."- Held, reversing the judgment of the Court of Appeal (16 Sask. L.R. 146), that "actual value" means the actual value of the property to the insured at the time of the loss and not its replacement value.
INS. V.
INTEREST-Appeal-Amount in controversy.......... ... . .........
.....
JUDGMENT-Action to set aside-Procedure-Possibility of new evidence... 107
MASTER AND SERVANT-Negligence
-Assault by employee-Liability of employer - 1053, 1054 C.C.]
appellant company, known as the Hudson's Bay maintained a trading post in the far northern part of the province of Quebec.
The post was in charge of one Wilson as manager, with two other employees appellant under his control, the respondent as general helper and his mother as housekeeper, all three living together.
One morning, at 6.30 Wilson came out of his room half naked and drunk, to inquire about some noise heard in the upper part of the building. The respondent, coming down, saw Wilson and, knowing his mother was near, told him to kindly go back to his room and get dressed.
A few minutes later, the respondent being in the kitchen, Wilson went there and shot at him, injuring his leg so severely that it had to be amputated.-Held, Duff and Anglin JJ. dissenting, that the appellant company was liable under article 1054 C.C., as the damages were caused by Wilson "in the performance of the work for which (he)
was employed."-Per Idington and Brodeur JJ. Upon the evidence, the appel- MASTER AND SERVANT-Concluded. lant company is also responsible under Court of King's Bench (Q.R. 34 K.B. 207) affirmed, Duff and Anglin JJ. dis- GoVERNOR v. VAILLANCOURT.................. And See NEGLIGENCE MORTGAGE - Discharge - Receipt other mortgage-Warranty-Forfeiture.. 3 MUNICIPAL CORPORATION-Municipal Corporation - Water pipes-Damages to property--Onus-Art. 1054 C.C.] Upon an action brought by the owner of an immovable for damages caused by flooding due to the bursting of water pipes, a municipal corporation is liable under article 1054 C.C., unless it establishes that it was "unable by reasonable means to prevent the act (le fait) which caused the damage."
Quebec R.L. H. & P. Co. v. Vandry ([1920] A.C. 662) and The City of Montreal v. Watt & Scott ([1922] 2 A.C. 555) followed; and in order to bring itself within the exculpatory clause of article 1054 C.., it is not sufficient for the appellant to prove that the cause of the bursting is unknown.-Judgment of the Court of King's Bench (Q.R. 33 K.B. 458) affirmed.
CrrY LESAGE...................... 2-Statute-Construction-Municipal law -Hull city charter-Interpretation (Q.) 1908 8 Edw. VII., c. 88, s. 392a.] With a view to the beautification of the cities of Ottawa and Hull, the Dominion Government passed an order in council providing that a commission be constituted consisting of at least six members, including the mayors of both cities, charged with the details of taking all necessary steps to perfect such plan, the cost of the plan to be borne by the government for onehalf and by the cities of Ottawa and Hull proportionally to their population for the other half. This was communicated to the city appellant with a request that it state whether it was willing to pay its share of the expenses, and the city council at a special meeting passed a resolution approving of the project submitted and appointing a committee to confer with the government and the other bodies interested. Subsequently the city appellant passed another resolution that having heard the report of its representatives, it approved project as submitted.
This was communicated to the government thereupon by order in council appointed the commission, the mayor of Hull becoming a member. He was present at most meetings and copies of plans pre- INDI
MUNICIPAL'CORPORATION-Con.
pared by the commission were sent to the city which obtained leave to use parts thereof to advertise the city. The appellant's charter, as amended by 8 Edw.
VII, c. 88 provides (s. 392a) that "no resolution of the council authorizing the expenditure of money shall be adopted or have any effect until
*
*
* and also that "the city shall not be liable for the price or value of work done ficate of the city treasurer is produced establishing that there are funds available appropriated for the particular object for which payment is sought; and no right of action shall exist against the city unless the foregoing formalities are strictly observed, notwithstanding that the city may have benefited by any other services rendered."
By the present action, the government seeks to recover the city appellant's share, $6,500.32.- Held, Idington and Brodeur JJ. dissenting, that in the absence of such a certificate by the city treasurer, no right of action exists in favour of the government to recover from the city appellant the amount claimed.-Judgment of the
Exchequer Court ([1923] Ex. C.R. 27), reversed, Idington and Brodeur JJ. dis- Crr 666
3-Negligence-Act of employee-Presumption-Breach of by-law....... 235
NEGLIGENCE-Negligence-Loss by fire
-Finding of trial judge-Inference from facts-Concurrent judicial findings-Interference on appeal. In an action claiming damages for loss of property by' negligence the trial judge held that "the facts proved are more consistent with negligence * * * than with a mere accident."
His judgment for the plaintiffs was affirmed by the full court.-Held, that the circumstances disclosed on the trial were such that the courts below were justified in drawing the inference they did and this second appellate court should not disturb the conclusion they reached.
2 - Master and servant - Liability-Machine throwing off steel particles - Guard - Goggles - 1053, 1054 C.C.-Art. 1384 C. N.]
respondent, a skilled and experienced workman, employed by the appellant company, was in charge of a lathe for paring down steel rods. From machine, when normally operated, particles of steel dangerous to the eyes flew in different directions.
A steel shaving having struck respondent's right eye and ruptured the eye-ball, necessitating the extraction of the eye, the respondent brought action for $5,000 that as the injury had been caused by a thing under the appellant's care without human agency intervening, the case fell within the purview of article 1054 C.C.; the consequent prima facie liability was defeasible only by the appellant "establishing that it was unable by reasonable means to prevent the act (le fait) which had caused the damage;" and, upon the evidence, the appellant had failed to do so. Quebec R.L. H. & P. Co. v. Vandry ([1920] A.C. 662) and City of Montreal v. Watt & Scott ([1922] 2 A.C. 555) followed. -Per
Davies
C.J.
dissenting. The respondent had the onus of affirmatively establishing that a guard upon the machine was feasible and practicable having in view the efficiency of the machine and therefore was a reasonable means of preventing the injury, which he failed to discharge.-Per Duff J. Any physical object handled or directed can be a cause of damage within the meaning of article 1054 C.C.; an automobile, for example, containing within itself its own forces of propulsion causing harm by impact is a "thing" causing "damage" within the-meaning of that article.-Per Duff J. As between the appellant and the respondent, it cannot be assumed under article 1054 C.C., but must be proved, that the machine which the respondent was operating was a thing in the care of the appellant.-Per Brodeur J. The appellant is also liable under Court of King's Bench (Q.R. 32 K.B. 443) affirmed, Davies C.J. dissenting. VICKERs Municipal corporation originating in fire hall-Damage to adjoining property-Liability-Presunption of negligence-Onus-Misdirections of jury- Part of fire hall occupied by fire chief- Breach of municipal by-law in constructing chimney-Directions at a new trial in compliance with a judgment of an appellate court and not appealed from-Res judicata or acquiescence.] The appellant municipality owned a wooden building described as a fire hall, in which a fire broke out which spread and destroyed property belonging to the respondents. The appellant, in preparing rooms for one McK., its chief of police and fire chief, had employed a plumber and paid the cost of installing a stove pipe, bought by the appellant, extending from the kitchen stove, which was the property of McK. The pipe passed through a wooden ceiling, thence through an attic and thence out of the building through awooden roof.
A municipal by-law required that in such a case the pipe should be "enclosed in brick or tile walls with a space of at least three inches between the enclosing walls and the smoke pipe from bottom to top."
Noncompliance with this by-law and that compliance would have prevented the escape of fire were admitted.
Some time before the fire occurred the stove had been removed by MCk. and another substituted, and one of the sections of the pipe was shortened in a manner which, it was alleged, added to the risk of fire. The trial judge directed the jury that the fact that a fire first broke out in appellant's premises was prima facie evidence of negligence and that the onus was on the appellant to acquit itself of liability by showing that the fire began accidentally; but he refused to direct that the appellant municipality was not liable for anything resulting from the act of McK. in making the pipe less safe.
The verdict of the jury involved a finding that the fire originated from cinders or sparks escaping from the stove pipe into the attic.-Held, Mignault J. dissenting, that the appellant municipality was liable.-Held, also, Mignault J. contra, that there had not been misdirection as to the appellant's liability for the act of its servant McK. The appellant being responsible for the setting up in the first place of the stove, it was within the normal scope of McK.'s duty as appellant's servant to take notice of anything calculated to make the use of it a source of danger; McK.'s knowledge of what was done when the stove was changed was the knowledge of the municipality because his occupation was their occupation, and therefore McK.'s negligence was appellant's negligence.- Held, further, that owing to the jury's finding as to the cause of the fire, in view of the existence of its own by-law and of the fact that the fire would not have occurred if the by-law had been complied with, the appellant was prima facie liable for not having taken reasonable means to prevent harm to its neighbours by the escape of the fire it had authorized and that the charge of the trial judge, if textually open to criticism, was in substance unassailable.
Mignault J. contra.-Per
Idington and Mingault JJ. The fact that directions given to the jury conformed to views expressed by the Court of Appeal in setting aside a former judgment dismissing this action ordering a new trial does not prevent their correctness being challenged on appeal from the judgment based on the verdict at such new trial. PoRT CoQuIT- V. .................
- Municipal corporation - Negligence-Water pipes-Damages to property-Onus-Art. 1054 C.C.]
Upon an action brought by the owner of an immovable for damages caused by flooding due to the bursting of water pipes, a municipal corporation is liable under article 1054 C.C., unless it establishes that it was "unable by reasonable means to prevent the act (le fait) which caused the damage."
Quebec R.L. H. & P. Co. v. Vandry ([19201 A.C. 662) and The City of Montreal v. Watt & Scott ([19221 2 A.C. 555) followed; and in order to bring itself within the exculpatory clause of article 1054 C.C., it is not sufficient for the appellant to prove that the cause of the bursting is unknown.-Judgment of the Court of King's Bench (Q.R. 33 K.B. 458) affirmed.
5 -Negligence- Railways-Accident- Level
Switching operations- Breach of order of Railway Commissioners- Contributory negligence-Defence available.] In an action for damages brought by a person struck by a moving train when using a level crossing on a highway, the trial judge found that the railway company, in causing one of its switching trains to pass over the crossing, had acted in contravention of an order of the Board of Railway Commissioners; but he also found the injured person guilty of contributory negligence.-Held, Brodeur J. dissenting, that the railway company was not liable; its disregard of the board's order did not preclude its setting up as a defence the contributory negligence of the respondent, and it was not proved that the railway company's servants by the exercise of ordinary care and caution could have avoided the consequences of the respondent's negligence.-Judgment of the Appellate Division ([1922] 3 W.W. R. 406) reversed, Brodeur J. dissenting. TRuNK PAcIFIC Ry. Co. v. 6-Master and servant-Assault by employee-Liability of employer-Arts. 1053, 1054 C.C.]
The appellant company, known as the Hudson's Bay Company, maintained a trading post in the far northern part of the province of Quebec. The post was in charge of one Wilson as manager, with two other employees of the appellant under his control, the respondent as general helper and his mother as housekeeper, all three living together.
One morning, at 6.30, Wilson came out of his room half naked and drunk, to inquire about some noise heard in the upper part of the building. The respondent, coming down, saw Wilson and, knowing his mother was near, told him to kindly go back to his room and get dressed.
A few minutes later, the respondent being in the kitchen, Wilson went there and shot at him, injuring his leg so severely that it had to be 7 54 amputated.- Held, Duff and Anglin JJ.
dissenting, that the appellant company was liable under article 1054 C.C., as the damages were caused by Wilson
"in the performance of the work for which (he) was employed."-Per Idingi on and Brodeur JJ. Upon the evidence, the appellant company is also responsible under article 1053 C.C.-Judgment of the Court of King's Bench (Q.R. 34
K.B. 207) affirmed, Duff and Anglin JJ.
or
7 - Admiralty law - Collision-Vessel having barge in tow-Absence of regulation lights-Possibility of avoiding accident- Liability of both vessels.] The lake eteamer
Maplehurst, having in tow the barge
Brookdale both the property of the
Canada Steamship Lines, Ltd., left the city of Montreal for the city of Quebec on the evening of July 15, 1920. The
Maplehurst was not equipped for towing as she did not have the regulation towing lights required by article 3 of the "Regulations for preventing collisions."
barge Brookdale had the regulation red and green side lights. While the Maplehurst was proceeding down the channel through Lake St.Peter, a collision cecurred between the Brookdale and the tug
Margaret Hackett upbound with a barge in tow both the property of the George
Hall Goal Company of Canada. As a result of the collision, the tug foundered barge
Brookdale sustained damages.
The plaintiffs, as their respective owners, sued for damages, each imputing fault and blame to the other.
The trial judge held that the officers of the Maplehurst had been guilty of negligence which was a direct and efficient cause of the collision; and he also found that the accident could have been avoided by the exercise of skill and promptitude on the part of those in charge of the tug
Margaret Hackett. The owners of the
Maplehurst were condemned to pay three-quarters of the loss suffered by the owners of the tug Margaret Hackett and the latter were held answerable for onequarter of the damages sustained by the barge Brookdale.-Held that the Maplehurst had by her negligence contributed to the collision to the extent to which the trial judge found her owners answerable. Mignault J. dubitante.-Per Duff
J. Where the negligence of the plaintiff and the negligence of the defendant are in sequence, the question whether the collision could "have been avoided by the exercise of ordinary care and skill on the part of the defendant," depends upon the circumstances; and the conduct of the plaintiff may have been such in its bearing and effect upon the conduct of the defendant as to form a very important element in the delermination of that question.- Per Anglin J. The fault of the officers of the Maplehurst continued operative until the collision was, if not inevitable only to be avoided by great skill and extraordinary alertness on the part of those in charge of the Margaret Hackett. Co.; SS. LINEs v. THE HACKETr......................... 8- Excavation in adjoining land up to border line-Person falling into from his own land-Absence of warning or protection-Liability.] The appellant Reid, intending to build upon his lot no. 17, let a contract to the appellant Campbell who in turn let the work of excavation to the appellant Fisher.
The respondent was a sub-lessee of certain premises situate on the adjoining lot no. 18. excavation was made at the back of buildings already existing, up to the lane and extended to the border line of the two lots; but it was not shored up and was left without fence, or railing, or warning lights.
The respondent, while passing at night through the yard back of his house, fell into the excavation, of which he was not aware, was injured and sued the appellants for damages. action was tried as one of negligence and was submitted as such to the jury who brought in a general verdict for the respondent.-Held, Davies C.J. dissenting, that the appellants were liable.- Per Duff J. Having regard to the course of the trial, it is not open to the -appellants now to ask for a new trial, and they could only succeed in the appeal by shewing that the evidence adduced is sufficiently complete conclusive to negative the appellant's liability. The fact that the fence on the dividing line between the two properties was removed is in itself a complete answer to the appellant's contention that what was done by them was done solely in the ordinary exercise of the proprietor's rights in respect of his own land.-Per Anglin and Mignault JJ. Although there was no absolute duty to guard independent of negligence, the exercise by the appellants of their rights to excavate entailed an obligation to do for the protection of those who they knew might be expected to make use of the adjoining yard what a prudent and reasonable man would regard as requisite, or usually sufficient, to prevent a person using ordinary care from falling into the excavation while moving about the yard as was customary; and the verdict of the jury implies both the existence of this duty and the omission to discharge it, constituting actionable negligence.-Per Brodeur and Mignault JJ. The contract NEGLIGENCE-Concluded.
between the appellant Reid and his contractors provided specifically for lights and railings in order to avoid accidents, thus showing that this was a reasonable precaution that should have been taken, and their failure to provide same renders them liable.-Per Davies C.J. (dissenting). The excavation was made by the appellant Reid, or with his authority, on his own land in the exercise of his rights to the ordinary enjoyment of his land; and there was no evidence of negligence which could justify the verdict of the jury.-Judgment of the Court of
Appeal ([1923] 1 W.W.R. 900) affirmed,
Davies C.J. (dissenting)
.
9 - Railways -Level
Automobile struck by train-Statutory warnings not given-Driver not looking more carefully-Contributory negligence.] Respondent's automobile was struck by appellant's train at a railway crossing.
statutory signals (ringing bell and blowing whistle)
were not given.
Owing to bluffs and shrubbery intercepting his view, the respondent was unable to see down the railway in the direction of the approaching train until he had reached the right-of-way.
The respondent had listened for the whistle and looked for smoke.
When he reached the right-ofway, he took a hurried glance along the track which did not disclose any danger.
He then gave his attention to his automobile as it went up a grade towards the track and did not again look along the track, until too late to avoid the accident.
In an action for damages, the jury negatived contributory negligence on the part of respondent and he recovered that the respondent's failure under the existing circumstances to make a more careful and complete observation, which would have disclosed the approaching train, did not so incontrovertibly amount to contributory negligence that no jury could reasonably find otherwise.-Wabash
Railway Co. v. Misener (38 Can. S.C.R.
94), Booth v. Ottawa Electric Railway
(63 Can. S.C.R. 444) and Dublin, Wicklow & Wexford Ry. v. Slattery (3 App.
Cas. 1155) ref. Canadian Pacific Ry.
Co. v. Smith (62 Can. S.C.R. 134) distinguished.-Judgment of the Court of
Appeal
Saskatchewan
W.W.R. 1419)
affirmed,
Davies C.J.
........
- Collision - Death employee-Contributory negligence.
orow,
NOTICE-Railway-Carriage of goods- Misdelivery- Notice of loss......... PARTNERSHIP - Partnership - Dissolution - Profits - Art. 1013 C.C.]
In 1909, the respondent, carrying on on his own account the practice of a civil engineer, employed the appellant as his assistant. On the 1st Septtember 1912, the respondent entered into a contract by private writing with the appellant and one Heroux to carry on the same undertaking under the name of "Marius Dufresne."
The agreement provided inter alia that the profits realized ("b6n6fices r6alis6s") at the expiration of each year should be divided, 80 per cent to the respondent and 10 per cent to each of the others. The agreement was silent as to what was to become of the fruits of work done during the term of the partnership that should remain uncollected upon its expiration.
On the 31st of December, 1912, all moneys received during the four months of the existence of the partnership, including those paid on account of work done by the respondent before the 1st September, 1912, were distributed between the partners. At the date of the dissolution of the partnership, on the 31st December, 1916, a new agreement was passed between the appellant and the respondent by which the former was hired by the latter for the year 1917 at a salary of .150 a month plus 10 per cent of the "b6ndfices r6alis6s" during that year. The appellant, over two years after the first agreement had terminated, claimed 10 per cent of the moneys collected by the respondent after the dissolution of the partnership for work done during its existence.-Held, that, as the meaning of the provisions of the written agreement is not free from obscurity, the intention of the parties may be ascertained by taking into consideration the surrounding circumstances and by examining the conduct of the parties themselves in so far as it throws light on the interpretation they have placed upon their contractual rights. The contract so interpreted shows that for the annual division of profits only the net receipts for the year should be considered and therefore the appellant was not entitled to the amount claimed. DUFRESNE.............. PRACTICE
PROCEDURE - Workmen's Compensation Act-Injury by accident-Right of action-Exclusive jurisdiction of Compensation Board-Want of jurisdiction not pleaded-Judicial notice of statutory provisions.] By the Workmen's Compensation Act of Ontario the right to compensation for injury by accident is to be in lieu of any action against an employer and the Compensation Board has exclusive jurisdiction to determine all matters arising under the part of the Act containing such provision.]-Held, Duff J. dissenting, that where such an action is brought the court is free, if not obliged, proprio motu if want of jurisdiction is not pleaded, to take cognizance of the provisions of the Act and stay the proceeding until the right to maintain it is determined by the board.-Per Duff J. The question whether or not the plaintiff can maintain his action must be raised by way of defence or exception.
If the defendant does not plead it or does not ask for a stay he is bound by the judgment given.-The court in an action by a workman will not take cognizance of a decision of the board that the plaintiff's injury did not result from "accident" and did not entitle him to compensation under the Act when such decision is given on an ex parte application in the ordinary course and not under sec. 15.
Evidence of such decision, if admitted, would not be conclusive.
Idington and Duff JJ. contra.-Where in such an action the defendant submits to the trial judge the question of the right to maintain it and does so in the belief that the court has jurisdiction to deal with such question the decision of the trial judge is not that of a quasiarbitrator and so non-appealable as it would be if the issue was submitted with knowledge of the lack of jurisdiction and the parties assent to the judge acting virtually as an arbitrator.
2-Action to set aside judgment-Statement of claim-Allegation of perjury- New evidence.] In an ac ion to set aside a judgment obtained in the same court, the statement of claim merely alleged that the judgment "was obtained by the false and untrue statements made by the defendant" on material matters of fact at the former trial. In dismissing the action, the trial judge said "that to hear evidence would only leave me in the position that the judge was in when he tried the first action."
Counsel for the appellant in this court declined to give any assurance, or even to state, that any evidence materially different from that given at the original trial would or could be adduced.
The trial judge dismissed the action and the Appellate
Division affirmed his judgment.]-Held
Duff J. (dissenting)
, that a new trial should be refused.-Per Davies C.J. and Anglin
J. The dismissal of the action may be regarded as equivalent in effect to an order perpetually staying it as frivolous and vexatious and an abuse of the process of the court, which under the circumstances, should not be interfered with.- Per Idington and Brodeur JJ. The statement of claim does not sufficiently disclose a cause of action. Duff J. contra.- Per Idington J. The trial judge rightly refused to rehear substantially the same evidence and to review the judgment rendered upon it at the former trial.- Per Idington and Brodeur JJ. The sufficiency of the allegations in a statement of claim is a matter of practice and procedure and the jurisprudence of this court is not to interfere in such matters.- Per Duff J. (dissenting).
Where the plaintiff's statement of claim sufficiently alleges a cause of action and the plaintiff appears at the trial ready to proceed with his evidence in support of his claim, the trial judge could not properly dismiss the action except upon some admission on behalf of the plaintiff shewing his claim to be unfounded or unenforceable. To dismiss the action as an abuse of the process without hearing the evidence in such circumstances would be unprecedented and contrary to the course of the court. The trial judge did not so proceed but dismissed the action on the ground that the statement of claim shewed no cause of action, and as he erred in this, there should be a new trial.- Per Mignault J. When it became evident to the trial judge at the second trial that no other evidence than that offered at the former trial would be tendered he was justified in dismissing the action.-Judgment of the Appellate Division ([1922] 1 W.W.R. 1208) affirmed, Duff J. dissenting.
PIER - Breach - Party wall-Narrowing of wall contrary to agreement-Proper remedy-Injunction -Specific performance.] A party wall agreement between appellant and respondent provided that respondent might build the wall two feet or more in thickness, half on each property, the middle line to coincide with the boundary line. The respondent built a wall the foundation, basement and first story of which were in accordance with the agreement but he narrowed the second story by four inches on his own side of the wall, and the thid story by a further four inches, keeping the wall on the outside (appellant's side) perpendicular. After it had been erected for some years and formed a wall of respondent's building, the appellant, alleging he had recently discovered the breach of agreement, sued for a mandatory injunction to compel the respondent to pull down that part of the wall not erected in compliance with the agreement and for specific performance of same.-Held, that these facts did not constitute merely a breach 758' of contract for which recovery of damages would be a pr oper remedy, but a trespass, and that the appropriate remedy is to grant a mandatory injunction as prayed for by the appellant.-Per Idington J. The appellant has also the right to ask for specific performance of the agreement, and the respondent should be ordered to rebuild the wall of the same thickness of two feet.-Judgment of the
Court of Appeal ([1922] 2 W.W.R. 1028)
reversed.
Cnoss v. WRIGHT.......
4 - Stay of proceedings - Extension credit by unsecured creditors- Approval by Bankruptcy Judge-Privileged claim-Action to enforce-Right of judge to grant stay-C.C. Art. 2013 et seq.- "The Bankruptcy Act," as amended by
(D.) 11-12 Geo. V., c. 17, a. 2 (g.g.), 6, 7,
9, 10, 13 (15), 13a, 42, 45, 46, 51, 52.]
The appellant company, being financially embarrassed, but before any assignment made) submitted to its unsecured creditors a proposal for an extension of credit of one year, pursuant to section 13 of the
Such proposal accepted by the majority of the unsecured creditors and duly approved by a judge in bankruptcy according to the provisions of the Act.
The respondent, having a claim against the appellant for work done and materials supplied, caused to be registered a privilege, under articles
2013 et seq. C.C., upon the property on which work had been performed and, within the delay mentioned in the code, brought action to realize its security.
The appellant then petitioned the court in bankruptcy for a stay of proceedings in such action until the expiry of the extension of credit.-Held, that the judge in bankruptcy had no jurisdiction under the provisions of the Bankruptcy
Act to grant such stay.-Per Duff,
Anglin and Brodeur JJ. The court in bankruptcy had no inherent power to stay action.-Held, also, that the respondent company was a "secured creditor"
within the meaning of section 2, subsection gg. of the Bankruptcy Act.
RIonDAN
Co. v. Co..............
-- Statute - Franchise - Supply of natural gas to municipality- Right to discontinue-Injunction to enforce continuance - Declaratory judgment - Mandatory order-Public Utilities Act- Remedies available thereunder- (Alta.)
1915, c. 6, s. 20, 21, 23e, 27, 39, 40, 52 and seq., 64, 69 (2), 70-(Alta.) 192c6 c. 53, s. 54 (2).] On July 30, 1912, the city appellant passed a by-law under which the respondent company obtained exclusive power to lay pipes in the streets of the city for the purpose of supplying natural gas at a certain price and for a period of fifteen years.
Its terms and
PRACTICE AND PROCELURE-Con. provisions were accepted by the respondent. On the 5th of April, 1922, the respondent company notified the city appellant that it would cease in the month of May to sell gas owing to the impossibility of continuing to sell it at the price fixed in the by-law and in view of the refusal by the city to grant any increase in rates.
The city appellant then asked for an injunction to restrain the respondent from discontinuing the sale of gas and for a declaration that the respondent was bound to supply gas at the price and for the period stipulated. The judgment of the trial judge, maintaining the appellant's reversed by the Appellate Division; and the appeal to this court was dismissed on equal division.-Per Davies C.J. and Anglin and Mignault JJ. Although the courts may not have been denuded of to entertain the present action, they should decline to exercise it and should relegate the parties to the Board of Public Utilities which the legislature has constituted to deal with such cases and has clothed with powers adequate to enable it to do full and complete justice.-Per Idington, Duff and Brodeur JJ. On the construction of the agreement between the parties, their reciprocal obligations were of a contractual character.-Per Idington and Brodeur JJ. The case is one for remedy by injunction without the city appellant beng obliged to submit the question of rates to the Board. Per Davies, C. J. and Anglin and Mignault JJ. Under the circumstances, a merely declaratory judgment should not be rendered. Duff J. contra.-Per Duff J. In view of the existing circumstances, the respondent is not entitled to raise before this court any question as to the propriety of a declaratory judgment.-Per Davies C.J. and Duff, Anglin and Mignault JJ. It is not convenient, as it might otherwise have been just as between the parties, to grant appellant's claim for a mandatory order, as other interests may be affected by it.-Per Duff and Brodeur JJ. No provision in the Alberta "Public Utilities Act" deprives the Supreme Court of authority to deal with the questions raised in this case, Davies C.J. and Anglin and Mignault JJ. expressing no opinion as to whether the effect of that Act was to oust the jurisdiction of the ordinary courts.-Judgment of the Appellate Division ([1923] 1 W.W.R. 838) affirmed on equal division of the court.
CITY GAs, L., H. & P. Co ...... 6- Vendor and purchaser-Agreement for sale-Assignment-Covenant by assignor -Foreign action by assignee-Consent judgment-Order for sale of land-Liberty to assignee to bid-Purchase by assignee- Action on foreign judgment-Alternative claim for original debt.] D. sold land in
Saskatchewan by agreement of sale, the purchaser paying cash, assuming a mortgage on the land and undertaking to pay the balance of the price by instalments. D. assigned this agreement to
H. and entered into a covenant to pay, on demand, any moneys as to which the purchaser made default. D. did not pay an amount as to which there was such default and H. brought action in
Saskatchewan claiming the whole amount due him under the assignment, a declaration that he had a lien on I he land and an order for sale in case the debt was not paid. D. filed a consent to judgment in these terms being entered and as entered it provided that on sale of the land H.
should have leave to bid and the purchaser should receive a certificate of title "free from all right, title and equity of redemption" on the part of D. The judicial sale took place and H. became the purchaser. Later the land was sold to satisfy the mortgage against it and the title passed from H. who had taken an action in the Supreme Court of Ontario on the Saskatchewan judgment and also claiming on D's. covenant the amount due on said judgment.-Held, affirming the judgment of the Appellate Division
(53 Ont. L.R. 105) that such action could be maintained and H. was entitled to recover the amount claimed less the full amount of the purchase money at the judicial sale-Held also that D. could not claim that the leave to H. to bid at the sale was beyond the consent to the
Saskatchewan judgment; that the consent to the order for sale covered all that could follow in the ordinary course of practice.-Per Mignault
J.
H.
estopped from raising this question by failing to appeal from the Saskatchewan judgment.-Held further that the finality of the foreign judgment could not be raised by D. in this action.
HUTrON..........................
7 - Criminal law-Reserved case - Insufficiency of the stated case-Authority to order copy of evidence-Arts. 1017
1024 Cr.C.1 By virtue of the combined effect of sections 1017 and 1024 of the
Criminal Code, the Supreme Court of
Canada, when it deems it necessary, may require the trial judge to the supplement the material submitted by him as a reserved case stated pursuant to an order of the Court of Appeal, by furnishing a copy of such parts of the evidence at the trial as are material to the disposition of the questions directed to be submitted.
............
8-Findings at trial-Inference-Concurrent findings-Interference on appeal .. .. PRINCIPAL AND SURETY-Suretyship-Bond issue-Acceleration clause- Default by principal debtor-Liability of guarantor-Art. 1092, 1935 C.C.] city appellant, authorized by by-law to guarantee and indorse a bond issue of $100,000 to be put out by the Three Rivers Shipyards, Limited, entered into a trust deed in favour of the respondent as trustee for the bondholders.
The bonds were made redeemable and payable in annual instalments on the 1st September from 1919 to 1927, the first to be $12,000 and the others $11,000 each, bearing interest payable semi-annually. They were so described in the by-law. clause 8 of the trust deed, it was stipulated that the total amount of the bond issue then remaining unpaid and interest thereon would become immediately exigible, at the option of the trustee, upon default by the Three Rivers Shipyards Company to pay the bonds or the interest coupons at their respective dates of maturity leurs 6ch6ances respectives") Such default also gave the right to the trustee, under clause 9, to enter into possession the properties, rights, revenues and franchises of the company and it was further stipulated that the city might prevent the operation of that clause by itself paying the bonds or interest coupons due.
By clause 18, which contained the terms of the guarantee given by the city, upon failure by the company to perform the conditions, charges and obligations imposed it by the trust deed, the city obliged itself to pay the bonds and the interest coupons at their respective dates of maturity leurs 6ch6ances respectives") Clause 19 also created in favour of the city a hypothec upon the lands and a charge upon the movables of the company for the total amount of the debenture issue, which were made exigible upon default of payment of interest. The first instalment of $12,000 interest due on the 1st of March, 1920, was paid by the Three Rivers Shipyards, Limited, but the company made default in the instalment of $11,000 due on the 1st of September, 1920, and also in the interest then due on the unredeemed bonds. The respondent then sued the city for the whole amount of the unredeemed bonds and the interest due.- Held, Anglin and Mignault JJ. dissenting, that the respondent, in view of the default of the Three Rivers Shipyards, Limited, had the right to claim PRINCIPAL AND SURETY-Concl'd.
from the city immediate payment of the whole capital amount outstanding of the bond issue, with the interest then due, as the acceleration clause 8, stipulated against the company as principal debtor, was binding also on the city, its surety.-Per Anglin and Mignault JJ.
dissenting.-The obligation of the city was merely to pay the bonds and interest coupons at their respective dates of maturity leurs 6chdances respectives").-Judgment of the Court
King's Bench
(Q.R. 34
K.B.
affirmed, Anglin and Mignault JJ. dis- PROBATE-Right action-Foreign administration - Promissory notes-Situs in Manitoba-Ancillary probate.] C., domiciled in Massachusetts, died there leaving among the assets of her order but not indorsed.
The maker lived in Manitoba. The Probate Court of Massachusetts appointed P. administrator of C's. estate.-Held, affirming the judgment of the Court of Appeal (32
Man. R. 108) that the situs of the notes was in Massachusetts they being trans, ferable by acts done solely there, and the administrator or his transferee alone could sue on them.-Held also, that the administrator could maintain an action against the maker in the Manitoba courts without taking out ancillary administration in that province.
coTr........................
PROMISSORY NOTE-Right of action
-Situs-Foreign administration-Ancillary probate.......................
2-Rural Telephone Co.-Power to make notes.............................
PUBLIC UTILITY - Crown - Telephone system- Negligence-Loose wire 257
Railway company-Highway crossing-Cost of construction and maintenance - Seniority -Existing potential highways.] The Dept. of Lands and Forests, Ont., applied to the Board of Railway Commissioners for orders directing the C.P. Ry. Co., to construct at its own cost an overhead crossing over its right of way at a point in the Township of Eton and a highway crossing in the
Township of Aubrey.
The board granted both applications and gave leave to the company to appeal to the Supreme
Court of Canada. The order for leave stated that the title of the company was
RAILWAYS-Continued.
obtained under authority of the Provincial Act, 59 Viet., c. XI, and was expressly made subject to the provisions of see. 2 thereof, namely, "such transfer not to aflect or prejudice the rights of the public with respect to common and public highways existing at the date hereof within the limits of the land hereby intended to be conveyed." It stated that when the Act was passed there were existing common and public highways across the lands intended thereby to be conveyed but none at either of the points in question and none laid out in the area covered by the Townships of Eton and Aubrey. Further that by an order in council passed in 1866 in respect to lands on the northerly shores of Lakes Huron and Superior an allowance -of five per cent of the acreage should be reserved for roads and the right was reserved to the Crown to lay out roads where necessary.-Held, per Davies C.J. and Duff, Brodeur and Mignault JJ., that the phrase "rights of the public with respect to common and public highways existing at the date hereof"
should receive its ordinary grammatical construction, namely, rights of the public in existing highways; and that as there were highways existing on the right of way the rights of the public were only protected in respect thereto. Canadian Pac. Ry. Co. v. Dept. L. and F. (58 Can. S.C.R. 189)
expl.-Per Duff J. The lands transferred being occupied by a railway constructed by the Dominion Government, the transfer of the latter was not one of the kind contemplated by the order in council which primarily related to patents granted under the Ontario
Land Acts.-Per Anglin J. The legislature could not have intended that sec. 2 of 59 Vict., c. XI, would only protect public rights in the scattered trails over the hundreds of miles covered by the right of way in question and must have meant to protect such rights which were in posse under the order in counci when the Act was passed but as the order in council only applies to lands on the northerly shores of lakes Huron and Superior, and the townships of Eton and Aubrey are not so situated, there is no reservation of rights in respect to the highways in question on this appeal and the province of Ontario has no right reserved to construct crossings over the railway.- Idington J. did not deal with the merits of the appeal, being of opinion that the order of the board did not present such a stated case as required by law to give this cou t
RAILWAYS-Concluded.
2 - Bankruptcy-Authorized assignment-Railway Co.-Prior assignment of book debts-(D.) 9-10 Geo. V., c. 36, s. 30
(1); 10-11 Geo. V., c. 34.]
A company incorporated as a railway and mining company entered into an agreement with the purchaser of the property of a similar company under which it operated, for a few months, the short line of railway covered by the purchase. The purchaser having, then, made default in his payments, the former owners resumed possession of the property.
Shortly after the company which had so operated made a voluntary assignment under the Bankruptcy Act.-Held, Idington and Brodeur JJ. dissenting, the said company was not a "railway company"
within the meaning of sec. 2 (k) of the
Bankruptcy Act and its assignment was authorized under the provisions of that
3-Carriage of goods-Misdelivery- Notice of loss....... RI'R............8*
,
Notce f lssSee
4- Negligence-Order of Railway Board
-Non-observance-Defence to action- Contributory negligence..............
SALE OF GOODS-Maple sugar-Warranty as to quality-Delivery-Payment by sight draft attached to bill of lading- Part of shipment not of quality specified- Right to recover price of sale-Articles
1048, 1063, 1473, 1492, 1526 C.C.]
the 27th May, 1920, the appellants agreed to buy from the respondent
"30,000 pounds of pure maple sugar
*
*
* guaranteed free of burnt and soft sugar
*
*
* to be packed good clean bags."
On the 8th of June, the appellants ordered and received a shipment of 10,066 pounds and paid for it by accepting a sight draft attached to the bill of lading. Fifty-four pounds having been found below the guaranteed quality, the respondent on being notified reimbursed a sum representing their value. On the 31st of July, the appellants sent another order for 10,000 pounds and paid for them in like manner without having had the opportunity to inspect the goods.
On the 16th August, they transferred the sugar to their warehouse in Montreal and then began to empty the bags. Out of the first 24 bags, the appellants found that between
30 and 40 per cent of the shipment were not of the quality guaranteed and complained to the respondent. The latter arrived in Montreal on the 20th of
August, did not agree with appellants' finding and offered to replace any small quantity of sugar which according to him
SALE OF GOODS-Concluded. might be burnt or soft. The parties not being able to effect a settlement, the appellants on the 23rd of August took an action to resiliate the whole contract and to be reimbursed the amount of the draft paid for the second shipment, not having then received a letter sent on the same day by the respondent, in which he offered to replace any part found unsatisfactory in the 70 bags left unemptied. The respondent, with his defence, made a tender of $80 representing the value of the sugar which was not, according to him, of standard quality.-Held, Idington J. dissenting, that the appellants had the right to reject the second shipment of sugar and to recover the price paid for it.-Per Duff and Brodeur JJ. As the words "guaranteed free of burnt and soft sugar" are words describing the sugar sold, the goods contracted for have not been delivered.
(Articles 1063, 1473 C.C.)-Per
Mignault
J. Since these words constitute a warranty of quality relief must be given to the appellants under article 1526 C.C., as the defect in the goods was latent for the appellants who were obliged to make payment before it could be discerned by inspection. Duff and Brodeur JJ. contra.-Per Anglin
J. Whether the words "guaranteed free of burnt and soft sugar" should be regarded as words of description or as a warranty of quality, the appellants are entitled to recover the price paid for the second shipment.- Per Anglin and Mignault JJ. Relief under article 1526 C.C. is not confined to cases of legal warranty, but it extends to breaches of conventional warranty.- Per Duff and Brodeur JJ. The appellants' action can also be maintained under the provisions of article 1048 C.C., as they paid the price of sale believing themselves by error to be debtors.-Per Idington J. dissenting. The appellants' action was premature as, the time of delivery having been extended by mutual agreement, the respondent under the circumstances of this case had the right to have an opportunity of replacing the goods not up to the standard in the same method adopted on the first shipment.
SALE OF LAND-Vendor and purchaser for sale-Assignment-Covenant by assignor-Foreign action by assignee-Consent judgment-Order for sale of land-Liberty to assignee to bid- Purchase by assignee-Action on foreign judgment-Alternative claim for original debt.] D. sold land in Saskatchewan by agreement of sale, the purchaser paying cash, assuming a mortgage on the land and undertaking to pay the balance of the price by instalments.
D. assigned SALE OF LAND-Concluded.
this agreement to H. and entered into a covenant to pay, on demand, any moneys as to which the purchaser made default.
D. did not pay an amount as to which there was such default and H. brought action in Saskatchewan claiming the whole amount due him under the assignment, a declaration that he had a lien on the land and an order for sale in case the debt was not paid.
D. filed a consent to judgment in these terms being entered and as entered it provided that on sale of the land H. should have leave to bid and the purchaser should receive a certificate of title "free from all right, title and equity of redemption" on the part of D. The judicial sale took place and H. became the purchaser.
Later the land was sold to satisfy the mortgage against it and the title passed from H.
who had taken an action in the Supreme
Court of Ontario on the Saskatchewan judgment and also claiming on D's.
covenant the amount due on said judgment.-Held, affirming the judgment of the Appellate Division (53 Ont. L.R.
105) that such action could be maintained and H. was entitled to recover the amount claimed less the full amount of the purchase money at the judicial sale.- Held also that D. could not claim that the leave to H. to bid at the sale was beyond the consent to the Saskatchewan judgment; that the consent to the order for sale covered all that could follow in the ordinary course of practice.-Per
Mignault J. H. was estopped from raising this question by failing to appeal from
Saskatchewan judgment.- Held further that the finality of the foreign judgment could not be raised by D. in this action.
HUTTON
.................................
2-Will-Deise of land-Subsequent sale-Appropriation of proceeds .....
See WILL 2.
SPECIFIC PERFORMANCE-Action- Specifc performance - Contract-Fraud- Money paid under contract-Right to rescission.] The court will not decree specific performance of a contract obtained by fraud of the plaintiff even when the defendant has not offered to return money received under the contract.- Per Duff J. In this case the money was paid on account of an admitted debt and the debtor could not impose conditions.
- Proper remedy - Contract -Party wall-Breach...................
STATUTE - Habeas corpus-Applicant in custody under provincial Act "B. N.A. Act,"
s. 92 s.
101-"Supreme Court Act," (D.) 38 V., c. 11; R.S.C. 1906, c. 139, 3, 35, 62-(Q.) 13 Geo. V., c. The appellant in custody in the city of Quebec under the authority of a special Act of the legislature for an alleged offence against the privileges, honour and dignity of the provincial legislature of Quebec asked, pursuant to section 62 of the "Supreme Court Act," for the issue of a writ of habeas corpus.1-Held that owing to the absolute limitation imposed by the concluding words of section 62 "under any Act of the Parliament of Canada,"
the judge of the Supreme Court of Canada is without jurisdiction to grant the application. In re 2 - Construction - Shortly before going into bankruptcy a company made an assignment of its book debts which under see. 30 (1) of the Act was void if the assignor did not comply with the requirements of provincial legislation as to registration, notice and publication thereof.-Held, that the assignment was void as against the trustee in bankruptcy though there was no such provincial legislation. - Master and servant- Liability-Machine throwing off steel particles--Guard
- 1054 C.C.-Art. 1384 C.N.] The respondent, a skilled and experienced workman, employed by the appellant company, was in charge of a lathe for paring down steel rods.
From the machine, when normally operated, particles of steel dangerous to the eyes flew in different directions. A steel shaving having struck respondent's right eye and ruptured the eye-ball, necessitating the extraction of the eye, the respondent brought action fbr $5,000 that as the injury had been caused by a thing under the appellant's care without human agency intervening, the case fell within the purview of article 1054 C.C.; the consequent prima facie liability was defeasible only by the appellant "establishing that it was unable by unreasonable means to prevent the act (le fait) which had caused the damage;" and, upon the evidence the appellant had failed to do so.
Quebec R.L. H. & P. Co. v. Vandry (11920] A.C. 662) and City of Montreal v. Watt & Scott ([192212 A.C. 555) followed- Per Davies C.J. (dissenting). respondent had the onus of affirmatively establishing that a guard upon the machine was feasible and practicable having in view the efficiency of the machine and therefore was a reasonable means of preventing the injury, which he INDE failed to discharge.-Per Duff J. Any physical object handled or directed can be a cause of damage within the meaning of article 1054 C.0.; an automobile, for example, containing within itself its own forces of propulsion causing harm by impact is a "thing" causing "damage"
within the meaning of that article.-Per
Duff J. As between the appellant and the respondent, it cannot be assumed under article 1054 C.C., but must be proved, that the machine which the respondent was operating was a thing in the care of the appellant.-Per Brodeur
J. The appellant is also liable under
Court of King's Bench (Q.R. 32 K.B.
affirmed, Davies C.J. (dissenting)
443) .
VIcERs LTD. SmiTH... 203
4 - Crown -Liability of -Government
Telephone System-Person injured by driving into loose wire- Negligence of
Crown's servants-"The Public Utilities
Act" (Alta.) S. (1915) c. 6-"Interpretation Act" (Alta. S. (1906) c. 3-Alta. S.
(1917) c. 3, s. 30.]
Section 2 (b) of the
Alberta Public Utilities Act provided that "the expression 'public utility' means and includes every corporation
* *
* * and in the following words were added by the legislature
(c. 3, s. 30): "also the Alberta Government telephones, now managed and operated by the Department of Railways and Telephones."
Section 31 (2) of the same Act provides that "the public utility shall be responsible for all unnecessary damage which it causes in carrying out maintaining or operating any of its said works."-Held, Davies C.J. and
Mignault J. (dissenting)
, that the Crown, as represented the Government
Alberta, is liable in damages, upon proceedings by petition of right, for personal injuries sustained by reason of the negligence of its servants in allowing a loose wire forming part of the Government Telephone System to fall and lie upon a public highway.-Judgment of the
Appellate Division ([1922] 1 W.W.R. 907)
affirmed, Davies C.J. and Mignault J.
ZoRNEs... 257
5-Assessment and taxes-Assessment on income-Industrial company-Distribution of funds-Assessment for current year-Consideration of previous year's income-Assessment Act, R.S.O.
c. 195, s. (2).]
Section 11 of the
Ontario Assessment Act provides for taxes on income and by subsection 2
"where such income is not a salary or other fixed amount capable of being estimated for the current year the income of such person for the purposes of assessment shall be taken to be not less than the amount of his income during the year ending on the 31st day of December then last past."
In 1921 the shareholders of an industrial company were assessed in respect of moneys received from the company in 1920.
On appeal it was established that no similar amounts were paid them in 1921 and the Appellate Division deducted said amount from the assessable income for that year.-Held, that the income to be taxed is that of the current year; that the income of the preceding year is only a basis from which to estimate the former when subsection 2 applies; and that the income to be assessed for 1921 was properly reduced. Crrr or OTrwA v. .......... 6- Sale of goods-Warranty--Conventional warranty-Art. 1526 C.C.]-Held, per Anglin and Mignault JJ. Relief under Art. 1526 C.C. is not confined to cases of legal, but extend to breaches of Conventional Warranty.
7 - Workmen's Compensation Act - Claim by ascendant-" Principal support" Interpretation-Art. 1053 et seq. C.C.- R.S.Q. (1909), s. 7323, asmended by 8 Geo. V., c. 71, s. 3 and 9 Geo. V., c. 69, s. 1.] Section 7323, R.S.Q. (1909) "Workmen's Compensation Act," as amended by 9 Geo. V., c. 69, s. 1, provides that "when the accident causes death, the compensation (mentioned in the section) shall be payable
*
*
* to ascendants of whom the deceased was the principal support (principal soutien) at the time of the accident."-Held that, in order to determine whether the victim was in fact the principal support of the ascendant, the personal earnings or other income of the latter must be taken into consideration.
It must be found that more than fifty per cent of the total subsistence of the ascendant came from the victim. It is not sufficient for the ascendant merely to show that the contribution made by the victim to the ascendant's support exceeded that received from members of the family.
LARocE PULP Co. 476 8 - Statutory powers - Commissioners of sewers-Constitution of board-Refusal to act or resignation-Rate-Majority.] In Albert County, N B under the Act respecting Sewers and Marsh Lands, the parish of Hopewell is divided into districts each of which may elect a commissioner, all the persons so elected to be "Commissioners of Sewers" for the parish. Section 8 of the Act provides that "if the proprietors of any district fail to elect a commissioner, the remaining commissioners shall act and shall be "the Commissioners of Sewers."
By section 18 "no rate shall be made without the consent of a majority of the commissioners, STATUTE--Condinued.
but one commissioner so elected may superintend work in progress and employ workmen for that purpose."
Three commissioners were elected for the parish, one of whom refused to act and another tendered his resignation accepted by the third.
Work having been done on the marsh lands the single commissioner made a rate for payment of the cost by the several districts. In an action for moneys due in respect to such work.-Held, reversing the judgment of the Appeal Division (45 N.B. Rept. 90),
Idington and Brodeur JJ. (dissenting)
, that the one commissioner, though constituting the board for other purposes, had no authority to make such rate as he could not be a majority of the commissioners which was necessary under section
18 to do so.]-Per Anglin J. It is doubtful that the third commissioner had authority to accept the resignation of his colleague and if not there were two on the board and the rate was not made by a majority.
McCLELAN
DOWNEY.....................
9 - Assessment - Annual income of bank-Validating Act-Appeal.1-Held, per Idington and Brodeur JJ., Anglin J.
contra, than an Act of the .legislature validating assessment roll for 1921 and omitting the provision in former Acts of the kind that it would not apply to pending cases, takes away the bank's right to appeal in this case which was pending when the Act came into force.
BAY ...................
10---Company-Bills and notes-Rural telephone company-Power to make promissory notes-"The Rural Telephone Act,"
(3); R.S.S. 1920, c. 76, s. 14; R.SS.
1922, c. 76.]
The respondent company was organized under the provisions of the
"Rural Telephone Act" and, pursuant to those provisions, was duly registered and incorporated under the Saskatchewan
"Companies
Act."-Held, respondent company had no power to make a promissory note under the provisions of the "Rural
Telephone
Act."-Held, also, Idington J. dissenting, that it has no such power under section
14 of the "Companies Act."-Per Idington, Brodeur and Mignault JJ. Section
14 applies to the respondent company.
Duff J. contra Davies C.J. and Anglin J.
expressing no opinion, although Anglin J.
semble in the affirmative.-Held, Idington J. dissenting, that, on the assumption that section 14 did apply, there is nothing in it to extend the limited and clearly defined powers of the respondent company under "The Rural Telephone Act."- Per Davies C.J. and Mignault J. The word "capacities" in the second part of section 14 does not mean "powers."- Per Duff J.
The effect of section 14 as regards the extraprovincial capacities of companies to which it applies is to establish as a rule of construction the rule laid down by Blackburn J. in the Ashbury Company's Case (L.R. 7 H.L. 653) but held by the House of Lords in that case not to be applicable to companies incorporated under "The Companies Act" of 1862, the rule being that companies affected by it have prima facie all the capacities of a natural person but subject to all restrictions created expressly or by necessary implication by any statutory enactment by which such companies are governed.
Section 14 does not apply to companies incorporated for the purpose of working a rural telephone system under "The Rural Telephone Act," since the memorandum of association of such a company must be read as incorporating the restrictions upon the capacities of such a company to be found in "The Rural Telephone Act" which by necessary implication exclude the operation of section 14 in relation to such companies.- Per Anglin J. Under the provisions of "The Rural Telephone Act," the respondent company already possessed for the purposes for which it was incorporated all "actual powers and rights" and the fullest "capacity" which the legislature could bestow.
(Honsberger v. Weyburn Townsite Co., 59 Can. S.C.R. 281); and section 14 did not add anything to such "capacity."-Per Idington J. (dis- The corporate powers capacity of the respondent company rest upon "The Companies Act" entirely, and section 14 impliedly gives to it the capacity and power to make promissory notes.-Judgment of the Court of Appeal 2 W.W.R. 1211) affirmed, Idington J. dissenting.
11-.-Construction-Will-Specific devise of land-Effect of subsequent sale-Proceeds falling into residue-"Land Titles Act" (Alta.) c. 24, s. 41-"An Ad respecting the transfer and descent of land," (Alta.) [1906] c. 19, a. 2.] Where a testator in his will makes a specific devise of land but subsequently sells same under agreement for sale, the devise is rendered inoperative; the devisee is not entitled to any part of the unpaid purchase money, which falls into residue.-Per Davies C J and Idington, Duff, Anglin and Mignault JJ This effect is not altered by the provisions of sect. 2 of c. 19 of "The Transfer and Descent of Land Act," (Alta.) [1906] which assimilate the course of descent of real estate to that of personality.-Per Idington, Anglin and
Mignault JJ. The settled jurisprudence in this matter applies notwithstanding the provisions of section 41 of "The
Land Titles Act," (Alta.) [1906] c. 24.- Per Duff J. The amendment to "The
Land Titles Act" made by s. 7 of c. 39
[1921] in regard to executions does not affect the application of such juris- HILL......
Franchise
Supply natural gas to municipality-Right discontinue-Public Utilities Act-Remedies available thereunder-(Alta.) c
6, 20, 21, 23e, 27, 39, 40, 52 and seq.,
64, 69 70-(Alta.) 1923, s.
(2)].
On July 30, 1912, the city appellant passed a by-law under which the respondent company obtained exclusive power to lay pipes in the streets of the city for the purpose of supplying natural gas at a certain price and for a period of fifteen years. Its terms and provisions were accepted by the respondent.
the 5th of April, 1922, the respondent company notified the city appellant that it would cease in the month of May to sell gas owing to the impossibility of continuing to sell it at the price fixed in the by-law and in view of the refusal by the city to grant any increase in rates. The city appellant then asked for an injunction to restrain the respondent from discontinuing the sale of gas and for a declaration that the respondent was bound to supply gas at the price and for the period stipulated. The judgment of the trial judge, maintaining the appellant's action, was reversed by the Appellate Division; and the appeal to this court was dismissed on equal division.- Per Davies C.J. and Anglin and Mignault
JJ. Although the courts may not have been denuded of jurisdiction to entertain the present action, they should decline to exercise it and should relegate the parties to the Board of Public Utilities which the legislature has constituted to deal with such cases and has clothed with powers adequate to enable it to do full and complete justice.-Per Duff and Brodeur JJ.
No provision in the Alberta "Public
Utilities Act"
deprives the Supreme
Court of authority to deal with the questions raised in this case, Davies C.J.
and Anglin and Mignault JJ. expressing no opinion as to whether the effect of that Act was to oust the jurisdiction of the ordinary courts.
GA, L., H.&P. Co...............
Construction
Municipal
Hull city charter-Interpretation 1908,
8 Edw. VII., 88, 392a.]
With a view to the beautification of the cities of
Ottawa and Hull, the Dominion Government passed an order in council providing that a commission be constituted consisting of at least six members, including the mayors of both cities, charged with the details of taking all necessary steps to perfect such plan, the cost of the plan to be borne by the government for one-half and by the cities of Ottawa and Hull proportionally to their population for the other half. This was communicated to the city appellant with a request that it state whether it was willing to pay its share of the expenses, and the city council at a special meeting passed a resolution approving of the project submitted and appointing a committee to confer with the government and the other bodies interested.
Subsequently the city appellant passed another resolution having heard the report of its representatives, it approved of the project as submitted.
This was communicated to the government which thereupon by order in council appointed the commission, the mayor of Hull becoming a member.
He present at most meetings and copies of plans prepared by the commission were sent to the city which obtained leave to use parts thereof to advertise the city. The appellant's charter, as amended by 8 Edw. VII., c. 88 provides (s. 392a) that "no resolution of the council authorizing the expenditure of money shall be adopted or have any effect until
*
*
* -- and also that "the city shall not be liable for the price or value of work done
*
*
* unless *
*
*
" 1-a certificate of the city treasurer is produced establishing that there are funds available appropriated for the particular object for which payment is sought; and no right of action shall exist against the city unless the foregoing formalities are strictly observed, notwithstanding that the city may have benefited by any such
*
* * work done
*
*
* or other services rendered."
the present government seeks to recover the city appellant's share, S6,500.32.-Held Idington and Brodeur JJ. dissenting, that in the absence of such a certificate by the city treasurer, no right of action exists in favour of the government to recover from the city appellant the amount claimed.-Judgment of the Exchequer Court ([1923] Ex. C.R. 27) reversed, Idington and Brodeur J.J dissenting. - Constitutional law - Disorderly houses-Provincial statute ordering their closing-Intra vires-(Q.) 10Geo. V., The Quebec statute entitled "An Act respecting the owners of houses, used as disorderly houses,"
10 Geo. V., c. 81 STATUTE-Concluded.
authorizing a judge to order the closing of a disorderly house, is intra vires the provincial legislature, as it deals with matter of property and civil rights by providing for the suppression of a nuisance and not with criminal law by aiming at the punishment of a crime.
DAWSON..........................
15 - Application-9-10 Geo. V., c. 32,
36 and 40-Leave to appeal.......
STATUTE OF FRAUDS - Sub-contract-Default of contractor - Recission-Arrangement with sub-contractor-New contract or guarantee-Statute of frauds.] A lumber company gave
G. a contract to cut and drive logs and a sub-contract for part of the work was given to M.
Before his contract was completed G. absconded and the company treated his contract as abandoned and took possession of the logs cut.
M., to whom nothing was due by G. at that time, had an interview with the president of the company, who said to him: "You will keep on with the work exactly as you were to do with G.; you will finish your contract. Put your wood where you expected to put it with G. I will pay you.
You are not dealing with G.
any more, you are dealing with us. Make your drive and I will pay you. I will pay you your contract as G. was supposed to pay you."
M. completed his contract but payment was refused.-Held, that the undertaking by the company to pay
M. was not a contract to answer for a debt of G. which the Statute of Frauds required to be in writing but was a new and independent contract entailing liability on the company when performed.
CO.... 140
STATUTES-(Imp.) B. N.A. Act, 1867, e. 92 (2).....................
2- B.N.A. Act, 1867, as. 92 (14) and
101..............................
See CORPUS.
3-(D.) 38 V., c. 11 (Supreme Court
Act)............................. 152
4- (D.) 55-56 V., c. 29, as. 10, 17, 10,
24 (Criminal Code).................
5- R.S.C. [1906] c. 7, a. 56 (Election
6- R.S.C. [1906] c. 139, e. 62 (Supreme
Court Act).......................
See CORPUS.
STATUTES-Continued.
7-(D.) 2 Geo. V., c. 27, 8. 215 (Manitoba Grain Act).................... 8-(D.) 9-10 Geo. V., c. 36, s. 30 (Bankruptcy Act)....................... 9-(D.) 10-11 Geo. V., c. 32, -8. 40 (Supreme Court Act)............... 10- (D.) 10-11 Geo. V., c. 32, ss. 36 and 40 (See Supreme Court Act) ...... 11-(D.) 10-11 Geo. V., c. 34 (Bankruptcy Act)....................... 12-(D.) 11-12 Geo. V., c. 7, as. 7 and 9 (Election Act)................... 13-(D.) 11-12 Geo. V., c. 17, 8. 2 (gg.) & R.S.O. [1914] c. 25, es. 60 (1) and 64 (4) (Workmen's Compensation Act. 15-R.S.O. [1914] c. 195, a. 11 (2) (Assessment Act).................. 16-R.S.O. [1914] c. 195, as. 13 (1) and 83 (Assessment Act) ............ See TAXES 4. 17-R.S.O. [1914] c. 207 (Motor Vehicles).................365
18- (0.) 5 Geo. V., c. 24, e. 8 ...... 19-(0.) 7 Geo. V., c. 49, a. 14 (Motor Vehicles....................... 20- 62 c. 58, e. 421 (Charter of M ontreal)......................... 21-R.S.Q. Arts. 1375-6 (Succession Dutics).................... See SuccEssIoN
22- R.S.Q.
[1909] Art. 7323 (Workmen's Compensation) .............. 23-(Q.) 8 Edw. VII., c. 88, s. 392a (Charter of Montreal).............. See 13.
4 Geo. V., c. 9 (Succession Duties).......
..........
STATUTES-Concluded.
25-(Q.) 9 Geo. V., c. 69, 8. 1 (Workmen's Compensation)...............
26-(Q.) 10 Geo. V., c. 81 (Disorderly houses)...........................
27-(Q.) 13 Geo. V., c. 18 (Powers of
Legislature)..................... 152
See CORPUS.
28-(N.S.) 8-9 Geo. V. (Assessment
29- (N.B.)
12 Geo. V., c. 3 (Liquor
Exporters' Taxation Act) ...........
See TAXES 3.
30 -(Alta.)
s. 1906, c. 3 (Interpretation
.............
See 4.
31-(Alta.) s. 1906, c. 19, a. 2 (Transfer of Land)...............
.......
31-(Alta.) S. 1906, c. 24, s. 41 (Land
Titles Act).........
...........
See WiLL 2.
32- (Alta.) S. 1915, c. 6 (Public Utilities Act)..................
257, 652
See 4.
33-(Alla.) S. 1917, c. 3, s. 20 (Public
Utilities Act).....................
See 4.
34- (Alta.) S. 1923, c. 5, 8. 64 (2)
(Public Utilities Act)...............
35- (Sask.) 5. 1912-3, c.
33, 4. 43
(Rural telephones) .................
36- (Sask. S. 1917, c. 34, e. 4 (Companies Act).....................
See 10.
37-(Sask.) S. 1918-9, c. 46, 8. 48
(Rutal Telephones).................
38-R.S.S. [1920] c. 76, s. 14 (Companies Act)........................
R.S.S. [1920] s. 84, s. 82 (Insurance
See 3.
40-R.S.S. [1920] c. 96 (Rural Telephones]...........................
41-(Sask.) S. 1922, c. 76 (Companies
Ad............................. 618
See 10.
SUCCESSION
DUTY - Bank stock- Company shares-Head office-Situs of property-"Succession Duty Act," R.S.Q. (1909), Arts. 1375 and 1376, as amended by 4 Geo. V., c. 9-Art. 6 C.C.] respondent, acting on behalf province of Quebec, claimed from the appellants, executors estate of the late W. Smith, domiciled at his death in Halifax, succession duties following:
first
2,076 shares of the Royal Bank of Canada having its head office in Montreal but having established at Halifax a local registry under section 43 of the "Bank Act;" and secondly on 100 shares of the Montreal Trust Company, incorporated by the Quebec Legislature and 175 shares of the Abbey Fruit Salts Company incorporated under a Dominion charter, both having their head offices in Montreal.-Held that the executors were not liable to pay succession duty on the shares first mentioned which have already been declared by a judgment of this court to be situate in the province of Nova Scotia. Smith v. The Provincial Treasurer for the Province of Nova Scotia (58 Can. S.C.R. 570).-As to the shares secondly described, this court was equally divided: Davies C.J. and Idington and Anglin JJ. holding that these shares were not liable to Quebec succession duty as they were not "actually situate within the province."
Duff, Brodeur and Mignault JJ. contra. TRADE-MARK - Refusal to register - General trade-mark-Application to register for use as to goods not manufactured by holder-"Calculated to deceive or mislead the public."] A manufacturing company had registered the word "Community" as a general trade-mark descriptive of the goods which it made and another company applied to have the same word registered as a specific trade-mark to be used in connection with the sale of washing machines which were not made by the former company.-Held, affirming the judgment of the Exchequer Court ([1923] Ex. C.R. 44) Duff J. dissenting, that such use of the word "Community" as a specific trade-mark was calculated to "deceive or mislead the public" and its registration was properly rejected.-Per Brodeur J., Duff J. contra.
A general trade-mark protects the registered owner not only in respect to goods which it makes but also as to those which it is authorized to make by its charter. HORNE Co. CoMuMNITy....................... WARRANTY - Hypothec - Discharge -Consideration-Transfer of another hypothec-Second hypothec forfeited-Warranty as to its existence-Error-Arts. 992, WARRANTY-Continued.
1013, 1015, 1020, 1085, 1508, 1511, 1574,
1576, 1693 C.C.-Art. 1110 C.N.]
respondents, being the owners of a hypothec of $5,000 on a certain lot belonging to appellant, gave the latter a discharge of this hypotbec and accepted in lieu thereof a transfer from appellant of part of a $22,000 mortgage, being the balance of the purchase price of three other properties. The transfer of the mortgage by appellant to respondents was made "sans autre garantie que celle de l'existence de la crdance," the respondents also declaring themselves satisfied with the hypothcc securing the 'sum transferred "aux risques des dites cessionnaires qui d6clarent 6tre contentes et satisfaites de l'hypotheque garantissant la somme prdsentement transport6e sans s'en rapporter en aucune fagon sur la solvabilit6 du c6dant."
Afterwards, two of the above-mentioned properties were taken back by a prior owner by forfeiture proceedings under a resolutory clause and the third sold for taxes. As a result, both the appellant and the respondents lost their entire claim as mortgagees on these properties.
The respondents then brought action against the appellant to annul the above-mentioned deeds of discharge and transfer.-Held that, under the circumstances the warranty of the existence of the debt comprised that of the existence of the mortgage, and as this mortgage was destroyed by the retroactive effect of the resolutory condition and of the sale for taxes, the respondents were entitled to recover the amount for which they had given a discharge when they accepted the transfer made them by the appellant.-Per Duff and Brodeur JJ. and semble, per Anglin
J. The transaction is also annullable as being infected by error in substantia.
JOUBERT..............
2-Insurance, fire - Description of insured property-Warranty - Statutory conditions-Agency-Non-disclosure.] To the face of a policy of fire insurance on sawn lumber there was attached a sheet of paper typewritten in black and containing the following provision: "It is understood and agreed that this insurance also covers loss or damage arising from or traceable to prairie fires, it being warranted by the assured that the several locations named herein on which lumber is piled shall be entirely surrounded by ploughed ground and in no way exposed to bushhazard."
The policy was indorsed with the statutory conditions in compliance with "The Alberta Insurance
In an action on the policy.- Held, Davies C.J. dissenting, that, as against the appellant, the warranty as to
WARRANTY-Concluded.
the character of the surroundings of the property insured is restricted in its application to the risk from prairie fires and cannot be regarded as part of the description of that property for the general purposes of the policy.-Judgment of the Appellate Division (11922] 1 W.W. R. 1048) reversed, Davies D.J. dissenting. ST. v. 3-Sale of goods-Warranty as to quality-Delivery-Defects in quality- Conventional warranty-Art. 1526 C.C. 459 WILL-Codicil-Legacies in both to same persons-Whether additional or substitutional.] By his will, J. N. Henderson gave, amongst other legacies, to the respondent Fraser $20,000 and to the respondent Henderson $10,000. The testator later made a codicil. The first clause was as follows: "I hereby ratify and confirm the said will in every respect save in so far as any part is inconsistent with this codicil."
In the two other clauses, he bequeathed to each of the respondents a sum of $25,000.-Per Idington, Duff and Anglin JJ. The two bequests in the codicil are additional to, and not substitutional for, the gifts made to the same legatees by the will. Davies C.J. and Brodeur and Mignault JJ. contra.-Judgment of the Court of Appeal affirmed on equal division of this court. FRASER............ 2--Construction-Speciic devise of land -Effect of subsequent sale-Proceeds falling into residue-"Land Titles Act" (Alta.) [1906] c. 24, s. 41-"An Act respecting the transfer and descent of land," (Alta.) c. 19, s.
Where a testator in his will makes a specific devise of land but subsequently sells same under agreement for sale, the devise is rendered inoperative; the devisee is not entitled to any part of the unpaid purchase money, which falls into residue.-Per
Davies
C.J. and Idington, Duff, Anglin and Mignault JJ. This effect is not altered by the. provisions of sect. 2 of c. 19 of "The Transfer and Descent of Land Act," (Alta.)
[19061, assimilate the course of descent of real estate to that of personality.-Per Idington, Anglin and Mignault JJ. The settled jurisprudence in this matter applies notwithstanding the provisions of section 41 of "The Land Titles Act," (Alta.) [1906] c. 24.- Per Duff J. The amendment to "The Land Titles Act" made by s. 7 of c. 39 [1921] in regard to executions does not affect the application of such jurisprudence.
CuncH HILL... .... - Exclusive jurisdiction of board-Injury by accident-Action against employer-Jurisdiction of court-Acquiesence in proceedings-Evidence-Certificate of board-Ex parte application R.S.O. [1914] c. 25, es.
60 (1) and 64 (4)-5 Geo. V., c. 24, a.
8 (0).]
Sec. 60 of the Ontario Workmen's Compensation Act gives the Compensation Board "exclusive jurisdiction to examine into, hear and determine all matters and questions arising under this part (Part I)
*
*
* and the action or decision of the Board thereon shall be final and conclusive and shall not be open to review in any court." Sect.
15 in Part I as enacted by 5 Geo. V., s.
8, provides that the right of compensation shall be in lieu of any action by a workman against his employer in respect of injury by "accident" and that "no action in respect thereof shall hereafter lie."
By sec. 15 (2) any party to an action may apply to the Board for a decision as to whether or not the right of action is taken away by the Act "and such adjudication and determination shall be final and conclusive."-Held, that the Board is the only tribunal competent to decide whether or not a common law action can be maintained by a workman against his employer in respect to personal injury sustained in the course of his employment.-Held, also, Duff J. dissenting, that where such an action is brought the court is free, if not obliged, proprio motu if want of jurisdiction is not pleaded, to take cognizance of the provisions of the
Act and stay the proceeding until the right to maintain it is determined by the board.-Per
Duff
J.
question whether or not the plaintiff can maintain his action must be raised by way of defence or exception.
If the defendant does not plead it or does not ask for a stay be is bound by the judgment given.- The court in an action by a workman will not take cognizance of a decision of the board that the plaintiff's injury did not result from "accident"
and did not entitle him to compensation under the
Act when such decision is given on an ex parte application in the ordinary course and not under sec. 15.
Evidence of such decision, if admitted, would not be conclusive.
Idington and Duff JJ. contra.- Where in such an action the defendant
WORKMEN'S COMPENSATION--Con. submits to the trial judge the question of the right to maintain it and does so in the belief that the court has jurisdiction to deal with such question the decision of the trial judge is not that of a quasiarbitrator and so non-appealable as it would be if the issue was submitted with knowledge of the lack of jurisdiction and the parties assent to the judge acting virtually as an arbitrator.-Judgment of the Appellate Division (51 Ont. L.R. 166), not dealt with.
2 - Workmen's Compensation - Claim by ascendant-"Principal support" -Interpretation-Art. 1053 et seq. C.C.- R.S.Q.
Section
7323,
R.S.Q. "Workmen's
Compensation as amended by 9 Geo. V., c. 69, s. 1, provides that "when the accident causes death, the compensation
(mentioned in the section)
shall be payable
* * to ascendants of whom the deceased was the principal support (principal soutien) at the time of the accident."-Held that, in order to determine whether the victim was in fact the principal support of the ascendant, the personal earnings or other income of the latter must be taken into consideration.
It must be found that more than fifty per cent of the total subsistence of the ascendant came from the victim. It is not sufficient for the ascendant merely to show that the contribution made by the victim to the ascendant's support exceeded received from other members of the family.
............... WORDS AND PHRASES
1."Accident"... ................... "Calculated to deceive" ..............
"Collision"..... ............... "L oss"... ........................
Cases cited
- 3 W.W.R. 1207 3 W.W.R. 1207
- 3 W.W.R. 406 3 W.W.R. 406
- 3 W.W.R. 328 3 W.W.R. 328
- 2 A.C. 315 2 A.C. 315
- W.W.R. 838 W.W.R. 838
- 1 W.W.R. 30 1 W.W.R. 30
- 2 A.C. 555 2 A.C. 555
- 1 W.W.R. 1208 1 W.W.R. 1208
- 2 W.W.R. 181 2 W.W.R. 181
- 1 W.W.R. 1048 1 W.W.R. 1048
- 1 W.W.R. 90 1 W.W.R. 90
- 1 A.C. 536 1 A.C. 536
- A.C. 662 A.C. 662
- 1 W.W.R. 900 1 W.W.R. 900
- 2 W.W.R. 1028 2 W.W.R. 1028
- 1 W.W.R. 838 1 W.W.R. 838
- 1 W.W.R. 907 1 W.W.R. 907
Statutes and regulations cited
-
- s. 215
-
- sections 1017
- 1024
- s. 30
- Section 31
- s. 51
- s. 56
- ss. 78
- s. 79
- section 79
- section 78
- s. 55
-
- s. 421
- s. 436
- s. 21
- s. 101
- s. 1906
- s. 84
-
- s. 7323
- s. 1
- Section 7323
- Section 8
- section 18
- s. 41
- section 41
-
Unresolved citations
- s. 40
- section 3 of the Liquor Exporters' Taxation Act
- section 5 of the Ontario Assessment Act
- section 13 of the Bankruptcy Act
- section (1)
- s. (2)