Majority
the circumstances of this case to misdirection, and constituting a miscarriage of justice within subs. 1 (c) of s. 1014 of the Criminal Code. Upon the whole case, and taking into consideration the entire charge, the majority of the Court, with respect, finds itself unable to accept the view expressed by the learned judge who delivered the majority judgment in the Appellate Division that " no substantial wrong or miscarriage of justice can have occurred " at the trial. Solicitors for the appellant: Smith, Rae & Greer.
Solicitor for the respondent: Edward Bayly, Deputy Attorney-General for the Province of Ontario.
IN THE MATTER OF A PETITION OF RIGHT THE BOARD OF TRUSTEES OF THE
ROMAN
SCHOOLS FOR SCHOOL SECTION
NUMBER TWO IN THE TOWN- SHIP OF TINY, AND THE BOARD
OF TRUSTEES OF THE ROMAN
CATHOLIC SEPARATE SCHOOLS
FOR THE CITY OF PETERBOR- OUGH, ON BEHALF OF THEM- SELVES AND ALL OTHER BOARDS
OF TRUSTEES OF ROMAN CATHO- LIC SEPARATE SCHOOLS IN THE
PROVINCE
(Sur- HIS MAJESTY THE KING
The suppliants claimed:
(1) The right to establish and conduct courses of study and grades of education in Roman Catholic separate schools in Ontario such as are conducted in continuation schools, collegiate institutes and high schools; and that all regulations purporting to prohibit, limit, or in any way prejudicially affect such right are ultra vires; (2) The right of Roman Catholics in Ontario to exemption THE KING.
from taxation for the support of continuation schools, collegiate institutes and high schools not conducted by their own boards of trustees; (3) A share in public moneys granted by the Ontario legislature for common school purposes computed in accordance with what they asserted to have been their statutory rights at the date of Confederation; and asked for a declaration that certain Ontario statutory enactments prejudicially affected their rights as granted by the Separate Schools Act, 26 Vic. (1863), c. 5, and secured by s. 93 of the B.N.A. Act, and, in so far as they affected such rights, were ultra vires. The Appellate Division of the Supreme Court of Ontario (60 Ont. L.R. 15), affirming judgment of Rose J. (59 JOnt. L.R. 96), held against their claims. On appeal to this Court, three of the six judges hearing the appeal held it should be dismissed, and it was dismissed accordingly.
Anglin C.J.C. and Rinfret J. held in the suppliants' favour on all said claims.
Mignault J. held in their favour except, in part, as to their claim in regard to legislative grants. Duff, Newcombe and Lamont JJ. held against them on all claims.
As to a certain sum sued for, the Court unanimously held that the appeal failed.
The Separate Schools Act. 26 Vic. (1863), c. 5; the Common Schools Act, C.S.U.C. 1859, c. 64; the B.N.A. Act, s. 93; and other statutes, and official reports and documents, extensively reviewed and discussed.
Per Anglin CJ.C., Mignault and Rinfret JJ.: Any statute or regulation that would materially diminish or curtail the scope of the education which denominational schools were, at Confederation, legally entitled to impart, or that would tend to restrict the period during which supporters of such schools were then legally entitled to have their children's education subject to the influence of denominational control and instruction, would "prejudicially affect a right or privilege with respect to denominational schools" within s. 93 (1) of the B.N.A. Act. The remedy is to invoke the ordinary tribunals; the right of appeal to the federal executive under s. 93 (3) does not apply. S. 93 (3) has to do with acts of provincial authorities which, although not ultra vires, so affect rights and privileges theretofore enjoyed by a religious minority as to constitute, in the opinion of the Governor in Council. a grievance calling for federal intervention (Brophy v. Att. Gen. of Manitoba [1895] A.C. 202).
The effect of the legislation in force at Confederation, construing it without the aid of any extraneous evidence, was to confer on all separate school trustees, as part of, or incident to, the management and control of the schools entrusted to them, the right to determine the subjects of instruction in, and the grading of, such schools. They had the legal right to provide therein for secondary education. Curtailment of such rights was not within the regulative powers of the Council of Public Instruction. The above view as to the effect of the legislation is prima facie supported by the fact that it was the view accepted and acted upon by the educational authorities, as indicated by the official reports and documents in evidence. (Clyde Navigation Trustees v. Laird, 8 App. Cas. 658, at p. 670).
By virtue of the exemption to separate school supporters under s. 14 of the Separate Schools Act of 1863, and from the fact that the Ontario continuation schools, high schools and collegiate institutes are now doing work which formed part of that formerly legally done, or SCooOL which might have been so done, by the common schools, it follows that separate school supporters are entitled to exemption from rates for the support of such continuation schools, etc. To compel Catholic KING. separate school supporters to support the last-mentioned schools, and to use them, if they would give their children up to 21 years of age a secondary education, is prejudicially to affect the right or privilege enjoyed by Roman Catholics as a class at the Union of having such education given to their children under denominational influence and in separate schools managed by their own trustees (Barrett v. Winnipeg, 19 Can. S.C.R. 374, at p. 424, referred to).
Per Anglin CJ..
and Rinfret J.:
Every Ontario legislative enactment involving a departure from the principle of apportionment between common and separate schools pro rata on the basis of average attendance, as provided by s. 20 of the Separate Schools Act of 1863, of all legislative and municipal grants of public moneys for any purpose that was, under the law at Confederation, a common school purpose, (saving grants to high schools in continuation of former grammar school appropriations), would, if valid, prejudicially affect a right or privilege with respect to their denominational schools which Roman Catholics bad by law at the Union and is, therefore, ultra vires. Every grant for a common school purpose, whether made for a particular school or schools, or made subject to some restrictive term or condition, is covered by s. 20 of the Separate Schools Act, 1863, and therefore comes within the ambit of the protection of s. 93 (1) of the B.N.A. Act, and cannot be made so as to preclude the right of separate schools to share therein unless compensation to them for their proportion thereof is otherwise provided. The Common and the Separate Schools Acts alike were continued in force after the Union by s. 129 of the B.N.A. Act as provincial legislation of Ontario, subject to repeal and amendment by the legislature, as to common schools without restriction, and as to separate schools within the limitations imposed by s. 93 (1) of the B.N.A. Act (Dobie v. The Church Temporalities Board, 7 App. Cas. 136, at p. 147; Att. Gen. for Ontario v. Att. Gen. for Canada, 118961 A.C. 348, at pp. 336-7).
The presence of the words " this Province " and " the Province " in a. 20 of the Separate Schools Act of 1863 did not render that provision inapplicable after Confederation. Those terms meant after Confederation the new province of Ontario. The words " and not otherwise appropriated by law," appended in s. 106 of the Common Schools Act, C.S.U.C. 1859, c. 64, to the description of the legislative grants to be apportioned, do not present a formidable difficulty.
S. 20 of the Act of 1863 is subsequent legislation, and, so far as there may be inconsistency, its terms must prevail over those of s. 106 of the Act of 1859. S. 20 of the Act of 1863 precludes an appropriation by law of any grants made for common school purposes which would prevent the separate schools sharing proportionately in them.
Quaere, whether the legislature could validly formulate a scheme or impose conditions for the distribution amongst the separate schools themselves, other than on the basis of average attendance, of the proportion of the total grants for common school purposes, as understood at Confederation, to which the separate schools as a whole are entitled.
Per Duff and Newcombe JJ.: Under the legislation existing at Confederation, Roman Catholic separate schools were subject to regulation by the Council of Public Instruction for Upper Canada.
Giving their natural sense to the words of s. 26 of the Separate Schools Act of 1863, the Council had a general power of regulation. This power would be subject only to relevant enactments of the separate school law and to the limitations necessarily implied in the fact that the power was given for the purpose of enabling Roman Catholics to carry on more satisfactorily their system of denominational schools. Subject as aforesaid, there is no good reason for restricting the natural sense of the words of s. 26. Another possible view is that s. 26 subordinated separate schools to regulation by the Council in respect of all subject matters which might from time to time fall within the ambit of its jurisdiction in relation to common schools, under the existing Common School Acts or subsequent amending legislation.
In any case, and even assuming (but not accepting) that the Council's regulative powers as to separate schools could be taken as confined to the subject matters which were within the field of its authority in relation to common schools at the date of the passing of the Separate Schools Act of 1863, those powers (even if so confined as last mentioned) covered regulation as to scope and conduct of instruction, including courses of study and text-books. Not only does this appear on a proper construction of the common school legislation itself, but it was the view which, as shown by the documents in evidence, dictated the practice of the Council in exercising its functions under the Common School Acts of 1850 and 1859, in which practice, carried out under circumstances of the greatest publicity, the legislature, in view of its re-enactments without pertinent change in the Act of 1859, and the unqualified language of ss. 26 and 9 of the Act of 1863, must be presumed to have acquiesced.
In scope of instruction common schools or Roman Catholic separate schools were not, at Confederation, on the same footing as collegiate institutes, high schools or continuation schools to-day. Viewing the school legislation as a whole as it stood at Confederation, its history, and the official acts of those charged with administration of the school law, as shown by official documents in evidence and having regard especially to the required qualifications of teachers, the provision made for training them, the programs of studies officially promulgated, and the character of the authorized text-books, it is plain that such schools were intended to be elementary schools only.
The principle of division laid down by s. 20 of the Separate Schools Act of 1863 assumed the existence of a fund which had been appropriated for the benefit of the common schools generally in each municipality. It was upon this fund, so appropriated for a given municipality, that the section operated; it operated only after the fund for each municipality had been ascertained under the distribution provided for in ss. 106, 120, 121 and 122 of the Common Schools Act of 1859. The legislature did not intend to tie its hands by s. 106 (1) of the Act of 1859 in such a way as to necessitate the apportionment of all moneys voted for common schools, according to a fixed arithmetical ratio.
The qualification "not otherwise expressly appropriated " sufficiently manifests its intention to reserve its freedom of action. Assuming s. 20 to have created a legal " right or privilege " within s. 93 (1) of the B.N.A. Act, it was not a right " by law " to TIE y require the legislature to refrain from granting appropriations for special purposes or for the aid of schools reaching a certain standard of excellence or of school sections conforming to a certain standard of expenditure. There has been no deprivation of anything to which any "right or privilege" under e. 20 or under s. 20 combined with s. 106 could attach. Nor is there any evidence that the alleged right or privilege has been rendered less valuable by the impeached legislation (assuming that to be a legitimate ground of complaint under s. 93 (1) ). There is no reason for supposing that the existing grants, if distributed according to the arithmetical ratios of as. 106 and 20, would yield a larger sum for Roman Catholics as a whole. But, more important still, it is impossible to know, if under compulsion of a constitutional limitation the legislature were obliged to follow an unwise and wasteful plan of distribution, whether the grants would be as generous as they now are. There is no suggestion that by the statutes now in force Roman Catholics are placed upon a footing of inequality with the public schools. Grants are shared by all schools alike, upon identical conditions.
Quaere as to suppliants' right by petition of right to obtain a declaration that certain Ontario statutes are ultra vires.
Per Mignault J.: The legislative grant which the Chief Superintendent was to apportion under s. 106 (1) of the Common Schools Act of 1859, and of which he subsequently was to pay a share to the trustees of each separate school, was a general grant for the support of common schools or for common school purposes.
A special grant, say for the rebuilding of a particular school destroyed by fire, would be "otherwise appropriated by law," and he could not deal with it in his apportionment.
Such special grants could not be said to be grants "for common school purposes " within the meaning of s. 20 of the Separate Schools Act of 1863.
Conditions in excess of those laid down by a. 20 cannot be imposed on the separate schools to entitle them to share in the grants to which it applies. Any statute purporting to impose such conditions, as well as all statutes and regulations contravening the suppliants' first two claims, are ultra vires.
Per Newcombe J.: The powers of regulation which, within the scope of the Acts of 1859 and 1863, the province possessed at the Union were not reduced by the B.N.A.
Act. The denominational schools to which s. 93 (1) refers, so far as they were Roman Catholic separate schools of Upper Canada, were regulated schools, and the provisions to which the suppliants object are within the powers of regulation which the province had in 1863, and continued to possess at and after the Union.
There is nothing in the B.N.A. Act to compel the legislature to make a grant, or to avoid conditions prescribed for earning it, or to prevent a specific appropriation.
Per Lamont J.: At Confederation the Council of Public Instruction had authority to make regulations, including the prescribing of the courses of study, for the common and separate schools. This appears on the proper construction of the Separate Schools Act of 1863 and the Common Schools Act of 1859, from the history of the legislation, and from the accepted practice carried on. It was the trustees' right to manage their separate schools subject to the Council's said regulative powers, that was confirmed by s. 93 (1) of the B.N.A. Act. TRusTErs
The Council's powers would not enable it to make regulations which would wipe out, wholly or partially, the common or the separate THE KING.
schools. The common schools, at Confederation, had a distinct and definite place in the educational system of Upper Canada. They were intended to be the primary schools, furnishing elementary instruction, with the grammar schools as intermediate between them and the University; and the Council's duty was to make regulations prescribing courses of study which would enable the schools to provide effectively instruction covering the field which the legislature intended they should occupy.
The separate schools, as to secular education, were intended to be simply common schools under denominational management, and covered the same field as the common schools. The line of demarcation between the primary and intermediate schools may not always have been definitely drawn or closely adhered to; there may have been some overlapping in instruction, due to the exigencies of particular localities; but the legislature's intention as disclosed in the various Acts, and not the manner in which the system worked out in actual practice, should be the guide in determining the sphere of operation.
It cannot be said that, under the impeached legislation, the separate schools of to-day have lost their status as primary schools of the class to which the Act of 1863 intended them to belong.
The " public grants * * * for common school purposes " in which, under s. 20 of the Act of 1863, every separate school was entitled to share, were general or unconditional grants in which all schools were to share. They did not include moneys appropriated by the legislature to specific purposes, or to grants for apportionment among schools attaining a certain standard of efficiency or equipment, or made payable upon the performance of a condition. " Grants * * * for common school purposes" meant "grants for the purposes of all These would include conditional grants for the same purpose once the condition had been performed. But, as the legislature's authority to say whether or not any grant at all shall be made, or to specify the conditions upon which public moneys shall be devoted to school purposes, is supreme, the only limitation imposed by s. 20 upon the legislature's exercise of its authority, so far as conditional grants are concerned, is that the separate schools must be given the same right as the common (now public) school% to perform the conditions and earn the grant.
APPEAL (by leave of the Appellate Division of the Supreme Court of Ontario) from the judgment of the Appellate Division of the Supreme Court of Ontario (1) dismissing the suppliants' appeal from the judgment of Rose J. (2) dismissing the petition of right.
(2) (1926)
59 Ont. L.R. 96. (1) (1926) 60 Ont. L.R. 15.
The original suppliant was the board of trustees of the Roman Catholic separate schools for school section no. 2 in the township of Tiny, on behalf of itself and all other boards of trustees of Roman Catholic separate schools in Ontario. At the hearing in the Appellate Division leave was given to the original suppliant to add as a party suppliant the board of trustees of the Roman Catholic separate schools for the city of Peterborough, an urban board, the latter's consent being filed; the petition of right and statement of defence were amended; and the fiat of the Lieutenant-Governor was granted to the amended peti- The petition of right (as amended) set out, in effect, as follows:
2. Under and by virtue of s. 20 of 26 Vic. (1863), c. 5, being an Act of the then Parliament of Canada entitled " An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools " each of the suppliants is entitled to receive from and be paid by the respondent a share in the fund annually granted by the Legislature of Ontario for the support of common schools and is entitled also to a share in all other public grants investments and allotments for common school purposes then made or thereafter to be made by the province according to the average number of pupils attending such school during the twelve next preceding months, as compared with the whole average number of pupils attending school in the township of Tiny, and in the city of Peterborough respectively.
3. (Said s. 20 of 26 Vic. c. 5 is set out).
4. (S. 22 of 26 Vic. c. 5 is set out).
5. (S. 106 (1) of c. 64 of C.S.U.C., 1859, an Act entitled "The Upper Canada Common School Act" is set out). 6. That this Act of 1859 including s. 106 was in full force and effect in the year 1863 and in the year 1867 and continued to be the law applicable to the matters referred to therein for several years subsequent to 1867; and the grants annually made by the Legislature were so apportioned down to and including the year 1907.
93 (1) of the B.N.A. Act is set out).
.
8. That the right of each of the suppliants under and by virtue of the Act of 1863, c. 5, ss. 20 and 23 thereof, and further secured to it by the B.N.A. Act, 1867, c. 5, s. 93, (1), to a share in the fund annually granted by the Legislature of Ontario according to the average number of pupils attending its school as compared with the whole average number of pupils attending school in the said township of Tiny and in the said city of Peterborough respectively was prejudicially affected by the following Acts of the Legislature of Ontario:
(a) 6 Edward VII (1906), chapter 52-The Department of Education Act, section 23.
(b) 7 Edward VII (1907), chapter 50, an Act entitled " An Act to amend the Department of Education Act," section 4, subsection 3.
(c) 9 Edward VII (1909), chapter 88, an Act entitled " The Department of Education Act," section 6. (d) 10 Edward VII (1910), chapter 102, section 1. (e) R.S.O. 1914, chapter 265, section 6-an Act entitled "The Department of Education Act." (f) 12-13 George V (1922), chapter 98, sections 2 and 3-an Act entitled "The School Law Amendment Act, 1922."
(g) 14 George V (1924) chapter 82, section 2-an Act entitled "The School Law Amendment Act, 1924."
9. That so far as the said Acts purport to enact a different method for apportioning the share of the fund annually granted for common school purposes to which the separate schools conducted by the suppliants are or may be entitled other than the average attendance basis as enacted in the Separate School Act of 1863, c. 5, and such different method results or may result in a smaller share of said annual fund being paid to the suppliants than would be payable on the basis of average attendance of pupils, the said Acts are ultra vires of the Legislature of 10. That in and for the year 1922, out of the fund granted by the Legislature of Ontario for common school purposes -n", for the year 1922 there was paid to the various school boards or schools in Ontario, according to the report for the year 1923 of the Minister of Education, the amount of . $3,401,818 under various titles as follows:
(1) To Public and Separate Schools
(p. 87 of report) ..............
$2,976,712 00 (2) To Continuation Schools (p.. 90 of report) ....................
148,217 00 (3) To
Collegiate
Institutes
High Schools (p. 91 of report).
276,889 00 $3,401,818 00 That the said total sum of $3,401,818 was a fund granted by the Legislature for the support of common schools and for common school purposes within the meaning of s. 20 of 26 Vic. (1863), c. 5, and that the schools conducted by the suppliants were entitled to share in such fund according to the provisions of said Act, 26 Vic. (1863), c. 5.
12. That as to continuation schools and collegiate institutes and high schools above referred to in par. 10, the same are common schools within the meaning of c. 64 of C.S.U.C., 1859-an Act entitled " The Upper Canada Common School Act " and of c. 5 of 26 Vic. 1863-an Act entitled " An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools." 13. That under and by virtue of the Act of 26 Vic. (1863), c. 5, s. 14, and of the B.N.A. Act of 1867, c. 3, s. 93 (1), the class of persons being separate school supporters represented by the suppliants are exempted from payment of all rates imposed for the support of common schools, and that it is ultra vires of the Legislature of Ontario to impose or attempt to impose upon such persons payment of rates for the support of common schools now known and designated as either continuation schools, collegiate institutes or high schools and which are not established and conducted by the suppliants.
14. That in so far as the Act of 34, Vic. (1870-1871), c. 33, entitled " an Act to improve the Common and Grammar Schools of the Province of Ontario ", and subsequent Acts respecting high schools, including c. 268 of R.S.O., 1914, ss. 33, 34, 37, 38 and 39, an Act entitled " The High Schools Act," purport to impose upon the class of persons being separate school supporters represented by the suppliants payment of rates for the support of high schools and collegiate institutes not established and conducted by the suppliants, the same are ultra vires of the Legislature of 15. That each of the suppliants is, and in any event the board of trustees of Roman Catholic separate schools in every city, town and village in Ontario is entitled as of right to establish and conduct in its separate schools the courses of study and grades of education that are carried on in such so-called continuation schools and collegiate institutes and high schools, and the fact is such courses of study and grades were established and conducted by certain boards of trustees of the Roman Catholic separate schools from in or about the year 1841 up to and including the year 1915 when certain regulations were enacted by the respondent under which the respondent claimed and still claims the right to limit the range and grade of the courses of study and grades of education, all of which said regulations are in derogation of the rights of the suppliants and are invalid and ultra vires.
16. That the respondent has no right nor authority as claimed to limit or confine the common school courses of study or grades of education which may be established and carried on by either of the suppliants in the schools conducted by the suppliants respectively.
17. That according to the last census of Ontario made in 1921, the population of the province as of the year 1921 was 2,933,622 persons, and according to the same census the population of the township of Tiny for the year 1921 was 4,026 persons.
18. That the share of the fund mentioned in par. 10 which should have been allotted to the common schools of the said township of Tiny on the basis of the proportion of the population of the said township as compared with the total population of the province was $4,669.00. 19. That the average attendance of the common schools including both common public schools and common separate schools of the said township of Tiny for the year 1922 was 629 -pupils, and the average attendance for the same period of pupils of Roman Catholic school section no. 2 of the said township, being the school conducted by one of the suppliants, was 159 pupils.
20. That under and by virtue of the right granted the suppliants by the Act of 1863, s. 20, the suppliant, the board of trustees of the Roman Catholic separate school for school section no. 2, township of Tiny, was entitled in and for the year 1922 to such a share of the said sum of $4,669 mentioned in par. 18 as the average number of pupils attending the suppliant's school, namely, 159 pupils, compared with the whole average number of pupils attending school in the said township of Tiny, namely, 629 pupils;
21. That by reason of the facts referred to in par. no. 20 the said suppliant was entitled as of right to be paid the amount of $1,116 out of the said sum of $4,669.
22. The said suppliant was unlawfully held to be entitled only to and was paid the amount of $380 only out of the said sum of $4,669 and thereby suffered for the year 1922, a pecuniary loss of $736.
23. If, notwithstanding said suppliant's submission and contention as set out above, it should be held that it is not entitled to a share of the sums of $148,217 and $276,889 paid respectively to continuation schools and collegiate institutes and high schools as set out in par. 10, but is entitled only to its proportion of the sum of $2,976,712 also referred to in said par. 10 (which said suppliant does not admit but denies), then, and in such event, the said suppliant submits that on the said basis of average attendance as referred to in par. 19 it was entitled to receive from and be paid by the respondent for the said year 1922 the sum of $1,027 instead of only the said sum of $380, whereby it suffered a pecuniary loss for the year 1922 of $647. The suppliants therefore pray:
(1) That there be paid the sum of $736 to the board of trustees of the Roman Catholic separate schools for school section no. 2, township of Tiny. (2) That it may be declared that the Acts or parts of Acts following:
(a) Sections 36 (subsection 1) and 40 of 34 Victoria (1870-1871) chapter 33-an Act entitled "An Act to improve the Common and Grammar Schools of the Province of Ontario."
(b) Section 23, subsection 6, of 6 Edward VII (1906), chapter 52-an Act entitled " The Department of Education Act."
(c) Section 4, subsection 3 and 4, of 7 Edward VII (1907), chapter 50-an Act entitled " An Act to amend the Department of Education
(d) Section 6 of 9 Edward VII (1909), chapter 88-an Act entitled " The Department of Education Act."
(e) Section 1 of 10 Edward VII (1910), chapter 102-an Act entitled "An Act to amend the Department of Education Act."
(f) Section 6 of chapter 265 of the Revised Statutes of Ontario, 1914-an Act entitled " The Department of Education Act."
(g) Sections 33, 34, 37, 38 and 39 of chapter 268 of the Revised Statutes of Ontario (1914) and amendments thereto-an Act entitled "The High Schools Act."
(h) Sections 2 and 3 of 12-13 George V (1922), chapter 98, an Act entitled " The School Law Amendment Act, 1922."
(i) Section 2 of 14 George V (1924), chapter 82an Act entitled
School Law Amendment Act, 1924."
prejudicially affect the suppliants' rights as granted by 26 Vic. (1863), c. 5, and secured by the B.N.A. Act, 30-31 Vic. (1867), s. 93 and are ultra vires in so far as they affect the rights of the suppliants.
(3) That it may be declared that the suppliants and each of them have the right to establish and conduct courses of study and grades of education such as are now conducted in what are designated as continuation schools, collegiate institutes, and high schools, and that any and all regulations purporting to prohibit, limit or in any way prejudicially affect such right are invalid and ultra vires.
(4) That it may be declared that the class of persons being separate school supporters represented by the suppliants are exempt from payment of rates imposed for the support of so-called continuation schools, collegiate institutes and high schools not established or conducted by the suppliants or by other boards of trustees of Roman Catholic separate schools.
(5) (Further or other relief).
In the statement of defence (as amended) the Attorney- General for the Province of Ontario, in answer to the Petition of Right and on behalf of His Majesty the King, said, in effect, as follows:
1. He admits the allegations contained in par. 1 of the
Petition of Right, but except as hereinafter expressly admitted denies all other allegations in the Petition of Right contained and puts the suppliants to the proof thereof.
2. He denies that any right of either of the suppliants within the meaning of s. 93 of the B.N.A. Act, 1867, as claimed in par. 8 of the Petition of Right, has been, or is, prejudicially affected by any of the several Acts of the
Legislature of Ontario as in the said par. 8 alleged.
3. He denies that any of the said Acts in said par. 8 prejudicially affects any right or privilege with respect to denominational schools which any class of persons had by law in the said Province on 1st July, 1867, when the B.N.A.
Act, 1867, went into effect (hereinafter referred to as "at the Union") within the meaning of s. 93 of the said
B.N.A. Act, or that any of the said Acts or any part thereof is ultra vires the Legislature of the Province as alleged in par. 9 of the Petition of Right.
4. By a series of legislative acts from 1843 to 1863 inclusive, the law relating to the establishment, maintenance, regulation and control of common schools, including separate schools, in Upper Canada was from time to time altered; and at the Union the law governing the establishment, maintenance, regulation and control of Roman
Catholic separate schools was contained in an Act of the
Parliament of Canada passed in 1863 (26 Vic., Canada, 5) and in an Act of the said Parliament entitled " The Upper Canada Common School Act " (C.S.U.C., 1859, c. 64) together with the Regulations in force made pursuant to the last-named Act.
5. In and by the said Act of 1863 relating to Roman Catholic separate schools, which recites that it is just and proper to bring the provisions of the law respecting separate schools more in harmony with the provisions of the law respecting common schools, it was, among other provisions for that purpose enacted that:
(a) The trustees of separate schools should perform the same duties and be subject to the same penalties as trustees of common schools (s. 9); (b) The teachers of separate schools should be subject to the same examinations and receive their certificates of qualification in the same manner as common school teachers generally (s. 13); (c) All judges, members of the Legislature, the heads of the municipal bodies in their respective localities, the Chief Superintendent and Local Superintendent of common schools and clergymen of the Roman Catholic Church, should be visitors of separate schools (s. 23); and- (d) The Roman Catholic separate schools (with their registers) should be subject to such inspection as may be directed from time to time by the Chief Superintendent of Education, and should be subject also to such regulations as may be imposed from time to time by the Council of Public Instruction for Upper Canada (s. 26).
6. The duties and penalties of trustees of separate schools, the qualification of teachers, and the rights and obligations of supporters of Roman Catholic separate schools in respect of the general conduct, management and control of the said separate schools, were determined and prescribed at the Union by the said " The Upper Canada Common School Act " (C.S.U.C., 1859, c. 64) and by the Regulations made and imposed in pursuance thereof by the Council of Public Instruction for Upper Canada then in force.
7. The only distinction in the law governing common schools in general at the Union and that governing the Roman Catholic separate schools related to religious instruction. In all other respects the law and regulations were the same. Any part of a legislative grant to which any school would otherwise be entitled which was not earned or was forfeited because the school was not conducted according to the School Law and Regulations remained the property of the Province.
8. In 1896 the functions formerly vested in the Council of Public Instruction and in the Chief Superintendent of Education were suspended by an Act of the Legislature of Ontario (39 Vic. 16) and vested in a Department of the Provincial Government called the Department of Education and the Minister of Education of the said Province respectively.
9. Subject to the limitation provided by s. 93 of the B.N.A. Act, the Legislature of Ontario may exclusively make laws in relation to education, and the several Acts referred to in the Petition of Right and alleged by the suppliants to be ultra vires of the Legislature are amendments to the school law made from time to time in the interests of primary education in the Province.
10. All of the said Acts are within the competence of the Province and none of the said grants authorized by or made pursuant to any of the said Acts mentioned in par. 8 of the Petition of Right are legislative grants within the meaning of s. 20 of the Separate Schools Act of Upper Canada of 1863 (26 Vic., c. 5).
He denies that the total sum of $3,401,818 mentioned in pars. 10 and 11 of the Petition of Right was or is a fund granted by the Legislature for the support of common schools and for common school purposes within the meaning of s. 20 of the above-mentioned Act (26 Vic., c. 5) as claimed in par. 11, or that the schools conducted by the suppliants were entitled to share in such fund according to the provisions of the said Act, or that the continuation schools or collegiate institutes or high schools, referred to in par. 10 thereof, are common schools within the meaning of the said Act or of the Upper Canada Common School Act (C.S.U.C., 1859, c. 54) as claimed in par. 12 of the Petition of Right.
12. The high schools of the Province are in substitution for the grammar schools of the late Province of Upper Canada as re-organized and modified by Ontario legislation from time to time. The said grammar schools were not common schools " or schools within the meaning of the Upper Canada Common School Act, but were secondary Collegiate institutes are high schools having a prescribed number of teachers and pupils which, on complying with the Regulations of the Department of Education with respect thereto, may be raised to the rank of a collegiate institute.
13. Continuation schools, which were inaugurated in Ontario by an Act entitled " An Act respecting Continuation Schools " (1909, 9 Edward VII, c. 90) are not common schools, within the meaning of either the Upper Canada Common Schools Act or the Act relating to Separate Schools of 1863, but are intermediate schools for secondary education designed to give instruction in the courses of study prescribed for high schools in order to relieve congestion or to provide high school education where not otherwise available.
14. He denies that under and by virtue of the abovementioned Act of 1863 (26 Vic., c. 5, s. 14) and of the B.N.A. Act, 1867 (s. 93) the separate school supporters represented by the suppliants are exempted from payment of the rates imposed for the support of common schools or that it is ultra vires of the Legislature of Ontario to impose on such persons payments and rates for the support of continuation schools, collegiate institutes or high schools as alleged and claimed by the suppliants in pars. 13 and 14 of the Petition of Right. He submits that none of the said schools are " common schools " within the meaning of s. 14 of the said Act of 1863 (26 Vic., c. 5).
15. He further denies that either of the suppliants or the boards of trustees of Roman Catholic separate schools (urban) is or are entitled to establish and conduct in separate schools the courses of study and grades of education that are carried on in continuation schools, collegiate institutes and high schools, or any of them, as alleged in par. 15 of the Petition of Right, and also denies that such courses of study and grades of education were ever established by law in connection with Roman Catholic separate schools prior to 1st July, 1867, as in said paragraph alleged. 16. He submits that the suppliants are not entitled to any of the declarations or other relief as prayed in the Petition of Right and that it should be dismissed.
I. F. Hellmuth K.C. and T. F. Battle for the appellants. W. N. Tilley K.C. and McGregor Young K.C. for the respondent.
C.J.C.-This proceeding was instituted in order to determine the validity of three claims of " Roman Catholics" in the province of Ontario with respect to Educa, (A) Their claim " to establish and conduct courses of study and grades of education in Catholic separate schools such as are now conducted in continuation schools, collegiate institutes and high schools "; and that " all regulations purporting to prohibit, limit or in any way prejudicially affect such right or privilege are invalid and ultra (B) Their claim to exemption from taxation for the support of continuation schools, collegiate institutes and high schools not conducted by their own boards of trustees; (C) Their claim to a share in public moneys granted by the Legislature of the province of Ontario " for common school purposes " computed in accordance with what they assert to have been their statutory rights at the date of After a long and somewhat bitter struggle, the Separate Schools Act of 1863 (26 Vic., c. 5) was enacted by the Legislature of the province of Canada. That statute, the appellants maintain, re-established the rights and privileges now in question. It was intituled: "An
Act to restore to the Roman Catholics in Upper Canada certain Rights in respect to Separate Schools," and remained in force at Confederation.
Whatever rights and privileges the Catholics of Upper Canada enjoyed under it in respect to their separate schools were made permanent by s. 93 (1) of the British North America Act, 1867.
That section, authoritatively designated a code of legislative jurisdiction on the subject of Education for the older provinces of Canada (Brophy v. Att. Gen. of Manitoba (1) ), reads, in SEPRAT part, as follows:- TnusTEEs
93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following THE KINo. Provisions:- (1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union;
(2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec;
(3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen's Subjects in relation to Education * * *
As put by Magee J.A., in the present case, the safeguarding provisions of s. 93 " should be interpreted and effectuated in abounding good faith." (2)
It is well established that the " class of persons " whose legal rights and privileges are thus safeguarded is to be determined according to religious belief and that " Roman Catholics together " form such a class. As trustees, vested in their representative character with rights and privileges of members of that class, vindication of which is sought in these proceedings, the status of the appellants to maintain their petition of right was conceded at bar. Ottawa S.S. Trustees v. Ottawa Corporation (3); Ottawa S.S. Trustees v. Mackell (4).
It is, no doubt, also abundantly clear that only " rights or privileges " which existed " by law " at Confederation are protected by s. 93 (1).
The statute expressly so states; (1) [18951
202, at pp.
(3) [19171 A.C., 76, at p. 222-3.
(2) 60 Ont. L.R., at p. 24.
(4) [19171 A.C., 62, at p. 69. and it has been so determined by the highest authority. Maher v. Portland (1).
TiNm Any practice, instruction or privilege of a voluntary character, which, at the date of the passing of the Act, might be in operation is not a " legal right or privilege " (2).
On the other hand, the rights or privileges " within s. 93 (1) are not only those "in respect to denominational teaching," as some casual expressions of Lord Buckmaster in the Mackell case (3) might suggest. There is no allusion in the Separate Schools Act of 1863 to religious instruction. There may be an invasion of a " right or privilege with respect to denominational schools " which, although most prejudicial to those schools, does not directly affect them in their " denominational aspect."
The decision in Ottawa S.S. Trustees v. Ottawa Corporation (4), likewise delivered by Lord Buckmaster, makes this abundantly clear. A statute substituting a commission composed of Catholics, but nominated by the Government, to manage the Ottawa separate schools in lieu of the elected board of trustees was there held ultra vires as prejudicially affecting the right or privilege of the supporters of Catholic separate schools to have them managed by their own elected trustees.
The rights in respect of denominational schools, generally speaking, were the establishment and conduct of them by and under the immediate supervision of the Church which desired them, either in Quebec or Ontario, subject to regulations made pursuant to statute law. Rights and privileges in such schools, so far as they were " in relation to education " (as carried on by them), if affected, were to be dealt with by the Legislatures of the Provinces, subject to an appeal, not to the Courts, but to Federal authority, which was to correct any infringement of those rights and privileges.
These belonged not to a denomination as the creator and guardian of separate schools, but to the schools themselves, as part of a system of education.
It was to the Provinces that education was committed and it is right that the systems of education established by them and the rights flowing therefrom, should be governed by their Legislatures and not by the Courts.
(1) (1874) Wheeler's Confedera- (3) [19171 A.C., 62.
tion Law, 338, at p. 367.
(4) [1917] A.C., 76.
(2) [1917] A.C., at p. 69.
(5) 60 Ont. L.R. at p. 30. The appellants point out that there is no reference in the statute of 1863 to " immediate supervision of the Church " and contend that the view that the redress of separate school supporters against provincial legislation adversely affecting their pre-Confederation legal rights and privileges is confined to an appeal to the federal authority ignores the provisions of sub-s. 1 of s. 93 of the B.N.A. Act. The idea that the denominational school is to be differentiated from the common school purely by the character of its religious exercises or religious studies is erroneous. Common and separate schools are based on fundamentally different conceptions of education.
Undenominational schools are based on the idea that the separation of secular from religious education is advantageous.
Supporters of denominational schools, on the other hand, maintain that religious instruction and influence should always accompany secular training.
Any statute or regulation that would materially diminish or curtail the scope of the education which denominational schools were, at the date of Confederation, legally entitled to impart, or that would tend to restrict the period during which supporters of such schools, Catholic or Protestant, were then legally entitled to have the education of their children subject to the influence of denominational control and instruction, would " prejudicially affect a right or privilege with respect to denominational schools " enjoyed by the class of persons of which such supporters form a section.
Catholics deem it of vital importance that denominational influence over, and instruction of, their children should continue during the period of their secondary education.
Any attempted interference with such educational rights or privileges, whether by statute or by regulation purporting to be made under statutory authority, contravenes sub-s. 1 of s. 93; the remedy is to invoke " the jurisdiction of the ordinary tribunals of the country "; the right of appeal to the federal executive under sub-s. 3 does not apply. This latter subsection has to do with acts of the provincial authorities, which, although nof ultra vires, so affect rights aind privileges theretofore enjoyed by a religious minority, Protestant or Catholic (it may be under post-Confederation legislation), as to constitute, in the opinion of the Governor in Council, a grievance calling for Federal intervention. (Brophy v. Att. Gen. of Manitoba (1) ).
It was held by Rose J. (3), with the approval of the Appellate Divisional Court, that, because the rights or privileges of the separate schools at Confederation in regard to legislative money grants depended upon legislation of the former province of Canada and such grants were therein (26 Vic., c. 5, s. 20) described as " the fund annually granted by the Legislature of this Province " and " all other public grants, investments and allotments for common school purposes now made, or hereafter to be madA by the Province," the Province of Ontario, newly created in 1867, was unaffected by any obligation in regard thereto and Catholic separate school supporters were not assured of a legal right to share in any appropriations or grants to be made by Ontario for common school purposes. This view is utterly at variance with the spirit and intent of s. 93 (1) of the B.N.A. Act. Unless the legislatures of Ontario and Quebec are debarred from prejudicially affecting the rights and privileges of the respective religious minorities in regard to maintenance and support which their denominational schools enjoyed at Confederation under legislation of the former Province of Canada, the protection of such rights and privileges afforded by sub-s. 1 of s. 93 becomes illusory and the purpose of the Imperial legislation is subverted.
Moreover, by s. 129 of the B.N.A. Act, the Separate Schools Act of 1863 was continued in force " as if the Union had not been made," subject only to a power of repeal or alteration " according to the authority * * * of the Legislature under this Act." That power of repeal or alteration is, like all other provincial legislative jurisdiction over education, subject to the restriction imposed by sub-s. 1 of s. 93. That the deprivation or diminution of a right to share in financial aid out of public moneys assured by law to their denominational schools at Confederation would prejudicially affect a privilege of Roman rmy
Catholics in regard to those schools seems incontrovertible. is also urged that inherent in the conception of a legislature is the untrammelled right to make or withhold grants of public moneys and to attach thereto such conditions as it may see fit. That is, no doubt, true of every sovereign Parliament whose powers are unrestricted; it was true of the Legislature of the Province of Canada up to 1867; and it is likewise true since Confederation of a Canadian Provincial Legislature, save as otherwise provided in the B.N.A. Act. But, as Lord Herschell said, speaking for the Judicial Committee, in Brophy v. Att. Gen. of Manitoba (1):
To impugn the efficacy of a restriction placed by s. 93 of the B.N.A. Act on the control of a provincial legislature over rights in regard to aid out of public moneys for denominational schools existing by law at Confederation would be to challenge the power of the Imperial Parliament, when creating a legislature, to impose on the exercise of one or more of its functions such limitations as, in its discretion, it may deem advisable.
(A) While the right of the trustees to determine the courses of study in separate schools rests primarily on the duty of management expressly imposed on them, a much discussed issue on this branch of the case was whether, in affording the secondary education undoubtedly imparted, as will presently appear, at and prior to Confederation, by schools established under the Common Schools Act and conducted as common schools (and not improbably in some Catholic separate schools), trustees were exercising powers conferred on them by law, or whether their doing so was merely a practice lacking legal sanction, but tolerated by the educational authorities.
The Trustees of a Catholic separate school, under the Act of 1863, were elected
Ta and had and they were required (s. 9) to
It is, therefore, abundantly clear that, if, in 1867, trustees of common schools in Upper Canada had, by law, the right to provide in their schools for the secondary education now in question, Catholic trustees had, in the management of their separate schools, the same legal right.
Turning to the Common Schools Act in force in 1867 (C.S.U.C., 1859, c. 64), we find that it contains no limitation upon the scope of the education to be imparted or upon the courses of study to be conducted in the common In rural school sections school trustees were required inter alia (s. 27) to provide school premises; to contract with, employ and pay teachers; to permit all residents between the ages of 5 and 21 to attend their schools (sub-s. 16).; to exclude unauthorized text-books; and to report the number of children over 5 years of age and under 16 years of age in the school section and the number of " children and young persons " taught (distinguishing the sexes and those over and under 16 years of age), the average attendance, the branches of education taught with the numbers in each branch, and the text-books used.
By s. 32 provision was made for the inclusion of all the school sections of a township under a single board of five trustees, who shall be invested with the same powers and be subject to the same obligations as Trustees (of schools) in Cities and Towns. by the seventy- THE KING. ninth section of this Act.
Urban school trustees were required, inter alia, (s. 79 (8))
to determine (a) the number, sites, kind and description of schools to be established and maintained in the City, Town, or Village; also (b) the Teacher or Teachers to be employed; the terms of employing them, the amount of their remuneration, and the duties which they are to perform; (and) also (c) the salary of the local Superintendent of Schools appointed by them, and his duties;
Every common school teacher employed by the trustees (s. 27 (8) ), on terms and for a remuneration and to perform duties to be determined by them (s. 79 (8)), was obliged to teach diligently and faithfully all the branches required to be taught in the School according to the terms of his engagement with the Trustees and according to the provisions of this Act (s. 82 (1) ).
The same obligations were imposed on teachers of separate schools (26 Vic., c. 5, s. 9).
Local superintendents were required to see that the common schools were conducted according to law (s. 91 (6) ) and to report to the Chief Superintendent (sub-s. 12) the branches taught, the number of pupils in each branch, the text-books used, the average school attendance, etc. County and Circuit Boards were also provided for and were empowered to select (if deemed expedient) from a list of text-books recommended or authorized by the Council of Public Instruction, such books as they may think best adapted for ue in the Common Schools of the County or Circuit (s. 98 (3) ).
and (sub-s.
Ti It is noteworthy that these powers were conferred in the - Common Schools Act; and sub-s. 4 of s. 119 of that Act appears to have been the only statutory provision giving jurisdiction to the Council of Public Instruction to make regulations affecting common (or separate) schools. The language of sub-s. 4 may be compared with the wider terms in which the Board of Education, the predecessor of the Council of Public Instruction, had been empowered by the statute of 1846 (9 Vic., c. 20, s. 3)
By s. 26 of the Separate Schools Act of 1863 separate schools were declared to be
These regulations were, no doubt, such as the Council of Public Instruction might legally make in exercising the power conferred upon it by s. 119 (4) of the Common Schools Act (the only provision which purports to confer, and define the subjects of, its jurisdiction to regulate), without derogating from the rights of management and control conferred on trustees by the iSeparate Schools Act. The Separate Schools Act, 1863, contained nothing corresponding to sub-s. 5 of s. 119 of the Common Schools Act which expressly gave supervision over text-books for common schools to the Council of Public Instruction.
Such appear to be the relevant statutory provisions on this branch of the appeal.
The trustees of all separate schools were elected for their " management."
The trustees of urban common schools were explicitly required to determine the kind and description of schools to be carried on under their charge since 1847 (10-11 Vic., c. 19, s. 5 (3) ), when the Legislature appears to have thought it advisable to make some distinct provisions for cities and towns, which were extended to villages in the C.S.U.C. of 1859, c. 64, s. 79 (8).
In our opinion the effect of the legislation in force at Confederation, construing it without the aid of any extraneous evidence, is that it conferred on all separate school trustees, Tmy as part of, or incident to, the management and control of the schools entrusted to them, the right to determine the subjects of instruction in and the grading of such schools. .
In the cases of urban trustees, and of township boards, constituted under s. 32 of the C.S.U.C., 1859, c. 64, this right is expressly conferred.
(C.S.U.C., 1859, c. 64, s. 79 (8); 26 Vic., 5, s.
There is, moreover, no doubt, as appears from the following extracts, that this view of the scope of the trustees' powers and duties was acted upon from 1847 by the provincial authorities. Indeed most of the official statements to be quoted were made after 1850, when the respondent asserts that the duty of school trustees to determine the courses of study and the books to be used in the schools under their charge, imposed by the statutes of 1841 (4-5 Vic., c. 18, s. 7 (4) ) and of 1843 (7 Vic., c. 29, s. 44 (7) ), was transferred to the Council of Public Instruction under the power to regulate common schools then given to it. (13-14 Vic., c. 48, s. 38 (4); C.S.U.C., 1859, c. 64, s. 119 (4) ). Following a suggestion of their Lordships of the Privy Council in Citizens' Insurance Co. v. Parsons (1), we make of the official reports and documents in evidence the use indicated by Lord Blackburn in Clyde Navigation Trustees v. Laird (2).
See, too, Assheton Smith v. Owen (3); Goldsmiths' Company v. Wyatt (4); and Dunbar v. Roxburghe (5).
Reference may also be made to Van Diemen's Land Co. v. Table Cape Marine Board (6), and to some observations of the Lord Chancellor in delivering the report of the Judicial Committee in the recent Labrador Boundary Case (7).
Dr. Egerton Ryerson, from whose reports and official circulars the extracts about to be quoted are taken, had been assistant superintendent prior to 1846 and was chief superintendent bf the schools of Upper Canada from that time until 1876.
His statutory duties were, inter alia, (C.S.U.C., 1859, c. 64, s. 106)
(5) To prepare suitable forms, and to give such instructions as he may judge necessary and proper, for making all reports and conducting all proceedings under this Act, and to cause the same, with such general regulations as may be approved of by the Council of Public Instruction for the better organization and government of Common Schools, to be transmitted to the officers required to execute the provisions of this Act; (6) To cause to be printed from time to time, in a convenient form, THE so many copies of this Act, with the necessary forms, instructions, and Agln regulations to be observed in executing its provisions, as he may deem CJ.. sufficient for the information of all officers of Common Schools, and to cause the same to be distributed for that purpose;
Dr. Ryerson would appear to have used the Journal of Education, constituted by His Excellency the Governor General in Council for that purpose (Ex. 34, p. 100, n. 4.), as a medium of communication with trustees and teachers. In his report to the Governor for the year 1847, at p. 118 (Journal of Education, 1849, Vol. II), the Chief Superintendent said, referring to conditions existing prior to the legislation of that year (10-11 Vic., c. 19):- The statistics afford a clear but painful proof of the very elementary character of the Common Schools, and the absolute necessity of employing every possible means of elevating it.
In enumerating the number of pupils in the different branches, he said that the 1,773 reported as pursuing "other studies" seem to have been pursuing " higher studies," for under this head in Abstract C will be found 41 Common Schools in which Latin and Greek were taught, 60 in which French was taught, and 77 in which the elements of Natural Philosophy were taught;
and, citing a New York report shewing the schools of that State to be more advanced in.their studies, he proceeded- The introduction of these studies into our Common Schools has been sanctioned by the Legislative department of the Government.
In his Circular of 1848, explaining the objects of the Act of 1847 in regard to cities and towns and suggested general regulations, the Chief Superintendent said, at p. 197 (Exhibit 6):- The Board of Trustees will, of course, determine the age at which pupils will be admitted in each kind, or class, of schools, or in each department of a School comprising more than one department; the particular School which pupils in the different localities of a City, or Town, shall attend; the condition of admission and continuance in each School; the subjects of instruction and the text-books to be used in each School, and in each department;
*
*
*
Page 6, paragraph V of the Chief Superintendent's report of 1849, dealing with the " Classification of Pupils, and Subjects taught in the Schools " shews that these subjects included:
Mensuration, Algebra, Geometry, Elements of Natural Philosophy, Vocal Music, Linear Drawing, and other Studies, such as the Elements of the Latin and Greek Languages, etc.
which are taught in some of the Common Schools.
In the same report, at p. 14, we are told by the superintendent of common schools for the Simcoe District that A i in the schools in seven townships (which he names) including the township of Tiny, the teachers are capable of imparting a thorough English, and, in some instances, a good classical education.
And, at p. 50 of the same report, the Chief Superintendent said:
It is also worthy of remark, that the Board of Trustees in each city and incorporated town in Upper Canada, has authority to establish Male and Female Primary, Secondary and High Schools, adapted to the varied intellectual wants of each city and town; while in each country School Section, it requires the united means of intelligence of the whole population to establish and support one thoroughly good School.
At p. 18 of his report of 1850, the Chief Superintendent said:
The board of trustees in each city, town and incorporated village, having the charge of all the schools in such municipality, is able to establish and classify them in such manner as to meet the wants of all ages and classes of youth. This is done by the establishment of primary, intermediate and high schools.
In some instances, this system of the classification or gradation of such schools has been commenced by establishing a large central school under the direction of a head master, with assistants, having a primary and intermediate, as well as high school department-the pupils being promoted from one department to another according to their progress and attainments.
In other instances the same object is pursued by having one high school and intermediate and primary schools in different buildings and parts of the city or town. These schools can also be male, or female, or mixed, as the board of trustees may judge expedient.
At p. 204 the Chief Superintendent repeated the observations already quoted from p. 50 of his report of 1849. At p. 309 of the same report, 1850, (Exhibit 9), speaking of cities, towns and incorporated villages, he said:
Each Board has the charge of all the Common Schools in the municipality, determines their number and kind, whether primary, intermediate or high schools, whether classical or English, whether denominational or mixed, and, at p. 310:
In regard to the large central school houses in cities, towns, and villages, after the noble examples of the boards of trustees in Hamilton, London, Brantford, Brockville, and Chatham, etc. * * * It may often be found more economical to bring all grades of schools into one building.
In the annual report of 1852, at p. 41, Table B, is given the list of higher subjects taught in the common schools and at p. 43, Table C, the text-books, which include Latin, Greek and Euclid. In 1863 the annual report shews 20,991 pupils over 16 years of age attending the common schools and 12,094 in " other studies ", which, no doubt, included Latin and Greek.V
As has been already stated, the trustees of separate schools were granted the same powers as trustees of common schools (26 Vic., c. 5, s. 7).
In Ottawa Separate Schools Trustees v. Mackell (1), their Lordships of the Judicial Committee, discussing the legal rights and privileges of separate school trustees, say The provisions of the Common Schools Act were generally understood to contemplate that, at all events in cities, towns, and villages, and in rural districts where s. 32 of the Act of 1859 applied, the trustees should determine, according to their conception of local educational requirements, the subjects to be taught and the scope of the education to be imparted in the school or schools under their charge and would appear to confer upon them the legal right to do so. It was a statutory duty in 1867 to provide in all common schools education suitable for pupils ranging from 5 to 21 years of age and of both sexes.
With the law in the state thus indicated it is not surprising that in many of the larger centres, where higher educational standards were necessary to meet local requirements, common schools, at and prior to Confederation, were carrying on, with the approval and encouragement of the provincial educational authorities, courses in practically all the branches of learning now included in the curricula of high schools as well as public schools and were imparting to their pupils the education requisite to enable them to matriculate into the University, to enter the Normal School, and to take up the studies prescribed for the " learned professions ".
From the official documents in evidence we learn that such secondary education-apparently a ,complete high school course-was being given before Confederation in the central common schools of the cities of Hamilton and London, that similar courses for girls were recommended TwT for the city of Toronto, and were contemplated for the cities of Kingston and Guelph by the common school Tausnes trustees of each of those three cities--all with the endorsation and active encouragement of the Chief Superintendent of Education and, presumably, with the knowledge and sanction of the Legislature, to which his annual reports were submitted. I
In the annual report of 1852 (already referred to) in Appendix A, at p. 132, the Chief Superintendent, referring to the city of London, says:
The board of trustees deeming it proper to place within the reach of every class of the community. and of every child who might evince a taste and talent for a more extended range of studies than are generally pursued at common schools, facilities for the acquisition of literary and scientific attainments, equal to those afforded by the higher order of academies, directed the principal to introduce, in addition to the other studies, that of classics, and during the past year about twenty-five pupils have availed themselves of the advantages thus offered in the abstract sciences.
In the annual report of 1855 (Exhibit 12) the local superintendent of schools at Hamilton says, at p. 282:
Any child under twenty-one years of age, whose parents reside within the city limits, and who is qualified for admission into the junior class, can, by applying, gain an entrance into the Central School, and can remain there, free of charge, until he has passed through the various classes, and, if desirous, qualify himself for matriculation at the University. The course of instruction includes reading, writing, arithmetic, geography, grammar, history (Canadian, English and general), history of English literature, linear drawing, vocal music, book-keeping, human physiology, astronomy, elements of natural philosophy and chemistry, algebra, Euclid and mensuration, natural history, botany and geology, and the Latin, Greek and French languages. * * * The teachers at present engaged in the city schools number thirty, and include a principal, a classical master, a French master, a writing master, a music school master, thirteen division teachers in the Central School, and thirteen primary teachers.
And, in the annual report of 1863, the Honourable Mr. Justice John Wilson, who had been local superintendent at London, at p. 154, reporting on the London common schools, says:
The board was unwilling to be connected with the County Grammar School. At the date secondly mentioned (1855), which I look upon as a turning point in our educational affairs in this place, something was added to the English course, with a few boys in the elements of the Latin language, forming merely a classical nucleus. * * * Now the English course is at once extensive and thorough, embracing every subject of importance to the mechanic, the merchant or the professional man. The classical department has been extended so as to embrace Latin, Greek and French, and made comprehensive enough to qualify students for entering upon the study of any of the learned professions, or to matriculate in any college or university in the province.
The annual report for 1867 (p. 89), showed in the counties, cities, towns and villages 31,132 common school pupils TV.s over 16 years of age, 72,987 doing high school work and THE KINa. 8,019 in the "higher studies ".
While our attention Was not drawn o any explicit evidence to that effect, there is little room for doubt that the attendance of pupils at the common schools who were taking the courses of high school work was included in the returns made for the purpose of ascertaining the proportion of the legislative grants to which the several school sections in which such schools were carried on were entitled (C.S.U.C., c. 64, ss. 106 (1) and 91 (1) ); and also in determining the amount of public moneys to be apportioned to the separate schools (26 Vic., c. 5, s. 20). That could properly be done only if the trustees of common schools had the legal right to conduct the classes in which high school or classical education was given.
In the Journal of Education for September, 1865, (Exhibit 37), commenting on the new Grammar Schools Act, Dr. Ryerson (at p. 132) says:
The Common School law amply provides for giving the best kind of a superior English education in the High Schools, in the cities, towns and villages, with primary ward schools as feeders (as in Hamilton); while to allow Grammar Schools to do Common School work is a misapplication of Grammar School funds to Common School purposes; Common Schools are already adequately provided for. * * * Again, in the issue of the same Journal for May, 1867, at p. 81 (Exhibit 38)-only two months before Confederation, Dr. Ryerson writes:
And according to the best opinions any course of studies which would attempt to be equally excellent for the higher education of both boys and girls, would be simply worthless for either. * * *
It therefore becomes advisable to discourage the present unusual attendance of girls at the Grammar Schools.
But it is often urged that "if our girls do not go to the grammar school there is no other provision made for their receiving an advanced education in our public schools."
This is a mistake. The Consolidated Common School Act, section 79, subsection 8, authorizes the Common School Trustees of every city, town, or incorporated village "to determine (a) the number, sites, kind and description of schools to be established and maintained in the city, town or village (whether they be high schools for boys and girls, or infant schools, etc.), also (b) the teacher or teachers to be employed; the terms of employing them; the amount of their remuneration; and the duties which they are to perform." There is thus every legal facility for the establishment of high schools for girls throughout the country, and it is in such institutions TnY that those pupils ought to find the means of prosecuting the advanced studies which they now seek in the grammar schools. and which if they find there, it is at the expense of not employing their time to the best advantage, and of studying some subjects which are of very little use T
KINo. to them..
(Italics appear in the original.)
The law in force at Confederation was continued by s. 129 of the British North America Act and remained practically unchanged until 1871.
In the Journal of 1868, p. 84 (Exhibit 24), Dr. Ryerson says:- I regret to observe that the evil of inducing girls to enter the Grammar Schools, with the apparent object of umduly swelling the number of pupils, has not diminished but has increased, although there are still several schools which are not open to this reproach. It therefore becomes the duty of the Department, in its administration of the law, to take care that no encouragement is offered to a' course of action which is contrary to the intention of the Grammar School Law and Regulations, and injurious to the best interests of the schools and pupils. The law invests School Trustees with ample powers for the establishment and maintenance of schools or departments of schools in which girls, who have passed through the elementary Common School studies, may obtain that higher culture and instruction which they may require. But the organization and studies of the Grammar Schools are not adapted for mixed classes of grown up girls and boys, nor is it desirable that such mixed classes should exist.
The matter is of so serious an aspect, that I felt it my duty to consult the Principal Law Officer of the Crown in this province as to the proper interpretation of the Law, and the following is the opinion he has given:- "My interpretation of the Grammar School Act in relation to the question submitted by you is that boys alone should be admitted to those schools, and that consequently, the Grammar School Fund was intended for the classical, mathematical and higher English education of boys."
It therefore became my duty, as thus instructed, to apportion the grant of 1868 on the basis of the boys' attendance.
As against all this evidence indicative of the view current and acted upon by the provincial educational authorities about the time of Confederation, that trustees of common and separate schools had the legal right to provide for the secondary education of pupils attending their schools up to matriculation, the only document in the printed record on which the respondent relies shews the adoption by the Council of Public Instruction in 1858 of a regulation prescribing the courses of study for common schools, which was declared in the Separate School Manual of 1863, issued by the provincial educational authorities, to be applicable to Roman Catholic separate schools (Exhibit 5A).
These " prescribed studies" may be regarded as those " required to be taught " in the common schools (Exhibit 34 (1864), p. 75), i.e., as a minimum and not exclusive.
While the curriculum of studies so prescribed was comparatively restricted, it included the first . six books of Euclid and mensuration of surfaces and solids, and, for boys, trigonometry, and other matters in the disa cretion of the trustees. Indeed it comprised most, if not all, that is obligatory in the curriculum prescribed for high schools to-day.
Our attention has been drawn to extracts (not printed in the Record) from a letter of the Chief Superintendent, published in The Globe newspaper of the 27th of March, 1866, copied in the Journal of Education and reprinted in Exhibit 33, intituled " Grammar School Manual " (compiled by J. George Hodgins, LL.B., Deputy Superintendent), at pp. 73-4. The main purpose of this letter was, as indicated by its heading in the Manual, to emphasize " The Necessity for Uniform Text-books in all Common Schools." Incidentally the writer alludes to the power and duty of the Council of Public Instruction
It is then pointed out that
The Statute (C.S.U.C., 1859, c. 64, s. 79 (8) ) declares it to be the duty of the trustees " to determine
* * the duties which (teachers) are to perform " and (s. 82 (1) ) of the teacher
If, upon a proper construction of the statutory law (C.S.U.C., 1859, c. 64, ss. 27 (8) and (16), 79 (8) and 82 (1), and s. 32, and 26 Vic., c. 5, ss. 3, 7, 9), separate school trustees were given the right, as part of the management of the schools entrusted them, to determine that secondary education should be given in their schools, the power of regulation conferred on the Council of Public Instruction could not be utilized to prevent or restrict the exercise of that right. The subjects of that power were confined (C.S.U.C., 1859, c. 64, s. 119 (4) ) to " the organization, government, and discipline of Common Schools" and " the classification of Schools and Teachers.
* *
We assume a like power of regulation over separate schools. The Council was not empowered to curtail the courses of studies TB to be pursued or to determine the extent of the education to be imparted in the schools.
" Organization, government and discipline " are not apt terms to confer such jurisdiction; and " classification " does not imply anything of the kind. It had reference rather to the distribution of the pupils in classes according to the degree of advancement each had attained in his education and to the due arrangement of the courses of study so as to provide for the teaching which the several boards of trustees might deem suitable for local requirements and to ensure that the time of both teacher and pupil might be utilized to the best advantage, that there should be no overlapping in the work and that for each class and for each term of the course there should be provided a sufficient, but not an excessive, amount of work.
The system was voluntary; local self-determination was fundamental in it; there was the minimum of governmental control.
It is significant that while the cognate matter of the recommendation and disapproval of text-books for use in common schools is entrusted to the Council (s. 119 (5) ), the delimitation of courses of study in those schools is not mentioned in the enumeration of its functions. When the Legislature intended to give the Council the right to determine the courses of study it readily found language apt for that purpose, as in the case of the grammar schools, for which the Council was empowered to " prepare and prescribe a list of text-books, programme of studies, etc. *
(C.S.U.C., 1859, 63, s.
More noteworthy still is the fact that the recommendation and disapproval of text-books is treated as something not comprised within the power of regulation.
While the Act of 1863 subjected the separate schools to regulations to be imposed by the Council of Public Instruction (s. 26), it contained no provision committing to that body any supervision over the text-books to be used in those schools.
In the selee- KIG. tion of text-books, as in the determination of the courses of study to be pursued in each separate school, the discretion of the trustees elected for its management was untrammelled.
The statutes which entitled pupils up to the age of 21 years to attend the common and separate schools were certainly not designed to enable the Council of Public Instruction, under the guise of regulation, so to restrict the courses of studies for which the trustees might provide that they would be suitable only for pupils up to the age of, say, 12, or even 16 years.
As was forcibly pointed out during the argument, that would be to prohibit, not to regulate. (Corporation of City of Toronto v. Virgo (1).
If the power of regulation of the Council of Public Instruction could' be so exercised, the work of the schools could be indefinitely cut down. No doubt, in the case of common schools, that might since Confederation be done directly by provincial statutes, or by regulations authorized by them, because as to schools other than denominational schools legally established no limitation is imposed on the jurisdiction of the Legislature. But that an emasculation of the courses of study which Catholic separate school trustees were at the Union entitled to provide in their denominational schools for pupils up to 21 years of age would prejudicially affect a right or privilege with respect to such schools legally enjoyed by them is indisputable; and it would also affect the privilege of denominational teaching in separate schools, because parents desirous of having their children receive such training in those schools up to the age of 21 years would be obliged to submit to the hardship of their obtaining only an inferior secular education.
Legislation purporting to authorize such an injustice would contravene s. 93 (1) of the British North America Act; and it is obvious that what the legislature cannot do by direct action its creature may not do by regulation.
For the respondent it is contended that in the pre- Triy
Confederation public school system of Upper Canada the legal right to give secondary education was vested solely TaRsS in the grammar schools-that they were designed to be Kio. the intermediate schools between the common schools and the university; and that if the common schools carried on "high school" work it was only by toleration and not by legal right.
The latter part of this argument has already been dealt with.
The grammar schools were classical schools, Latin and Greek being compulsory subjects in their courses; but, while they were, no doubt, designed to impart secondary education, they also did primary and elementary school work. They were not really a part of the public school system. In 1867 they were governed by the provisions of the C.S.U.C., 1859, c. 63, which embodied, without material change, the Acts of 1853 (16 Vic., c. 186) and of 1855 (18 Vic., c. 132).
children - of separate school supporters could not attend them (C.S.U.C., 1859, c. 64, s. 27 (16) )-and there was no provision for the union of grammar schools and separate schools.
The more advanced common schools refused to unite with the grammar schools and themselves carried on "high school"
work with official approval. Unions were discouraged. Grammar schools were departmentally controlled as to their courses of study (16 Vic., c. 186, s. 6); there was no statutory right to attend themthey were in fact select schools; and in many localities in Upper Canada, where secondary education was necessary, grammar schools were not accessible, and, if such education was to be available in those places, the common schools must impart it-as in fact they did.
Matters continued in that position for several years after Confederation, the changes complained of by the appellants having begun only in 1871. The common schools and the grammar schools then disappeared nominatim and there came into existence high schools (including collegiate institutes) for secondary education and public schools for primary and elementary education solely. It is now very generally assumed by "the man in the street" that the public school of to-day has replaced the common school and that the high school is the successor of the grammar school. But that is only partially true. At Confederation the common schools were by law unrestricted in their A courses of study and were obliged to provide for pupils up to 21 years of age, and in many cases, furnished secondary education suitable for pupils proceeding to matriculation. The public schools, when created in 1871 (34 Vic., c. 33), were obliged to provide education only for children up to the age of 12 years (s. 3) and were required to comply with regulations (s. 37), which restricted the courses of study to primary or elementary education.
The high schools (including collegiate institutes) since 1871 do not engage in primary or elementary work; on the other hand Latin and Greek are not compulsory subjects in them (59 Ont. L.R., at p. 126, and Exhibit 21; Document No. 4, "Book of Pamphlets ", pp. 7, 8, 9); boys and girls alike have a statutory right to attend them (R.S.O., 1914, c. 268, s. 24 (c)); they are not select schools, but are common schools in the proper sense of that term.
From this brief statement it is clear that, while the public schools of to-day do that part of the work formerly done in the lower classes of the common schools, i.e. the work of primary or elementary education, and the high schools (including collegiate institutes) have taken over the work of secondary education formerly done by the grammar schools, they have also taken over the same class of work which was concurrently done in the upper or high school classes of the more advanced pre-Confederation common schools, in which 72,987 pupils were being trained in 1867, of whom 8,019 pursued " the higher studies ". (Ex. 14 pp., 88-9).
In many particulars the high schools of to-day have the characteristics of the old common school. They are in fact quite as much the successors of those schools as they are of the superseded grammar schools. so far as the legislation and the regulations governing high schools may interfere prejudicially with the rights and privileges legally enjoyed in 1867 by the Roman Catholic separate schools they are ultra vires.
is not surprising that the Chief Superintendent Education, when transmitting to trustees, inspectors and teachers, in 1872, the regulations made under, and his in- Tasms structions for the carrying out of, the Act of 1871, warned K
. them that the
The rights and privileges of Roman Catholic separate school supporters and the scope, intent and effect of the perpetuation of them by s. 93 (1) of the B.N.A. Act were probably better understood and appreciated by the provincial educational authorities in 1872 (five years after Confederation) than they are now. Emphasis was given to the above-quoted warning by its repetition in 1873 (Exhibit 23, p. 80); and the Minister of Education expressed the same view in 1876.
(Exhibit 49).
Inasmuch as continuation schools were the outgrowth of the continuation classes provided for long after Confederation in connection with the public schools, they do not call for any special consideration.
It would, therefore, seem to be abundantly clear that in 1867 the trustees of Catholic separate schools, charged with their management and clothed with the powers of trustees of common schools, had the right by law to provide in them the secondary education requisite to enable the children of their supporters to matriculate, to enter the Normal School, or to take up the study of any of the " learned professions ". Such education, then imparted by many common schools, included most, if not all, of the obligatory work now done in the Ontario high schools and was designed to meet the requirements of ordinary pupils up to the age of 21 years. While the obligation of the trustees to provide for pupils up to that age is set forth in the current Ontario Separate Schools Act (R.S.O., 1914, c. 270, s. 45 (d)), the present law and regulations would restrict the teaching to be given in Catholic separate schools to what is prescribed for the public schools of to-day, which are not required to provide for pupils over the age of 16 years. (R.S.O., 1914, c. 266, s. 73 (d)).
(Under the Act of 1871 the public school obligatory age limit was 12 years of age). In other words, the present law and regulations of Ontario forbid Catholic separate schools to impart the high school education which they were legally entitled to furnish at Confederation. Under them, if Catholic pupils T.. are to remain subject to the religious control and influence of their denominational schools, as in pre-Confederation ca.c. days, until they reach the age of 21 years, it must be at the cost of acquiring in those schools only such education as is deemed suitable for pupils not over 16 years of age attending the public schools.
(59 Ont. L. R. p. 133).
It would seem to be very plain that a right or privilege enjoyed at Confederation by the Roman Catholics of
Ontario in respect of their denominational schools is thus prejudicially affected.
(B) The exemption of the separate school supporters under s. 14 of the Act of 1863 (26 Vic., c. 5) was
From the fact that the Ontario continuation schools, high schools and collegiate institutes are now doing work which formed part of that formerly legally done, or which might have been so done, by the common schools, it follows that separate school supporters are entitled to exemption from rates for the support of such continuation schools, high schools and collegiate institutes.
To compel Catholic separate school supporters to support the Ontario high schools, etc., and to use them, if they would give their children up to 21 years of age a secondary education, is prejudicially to affect the right or privilege enjoyed by Roman
Catholics as a class at the Union of having such education given to their children under denominational influence and in separate schools managed by their own trustees. As put by Patterson, J., in Barrett v. Winnipeg (1).
(C) Sections 20, 21 and 22 of the Separate Schools Act of 1863 (26 Vic., c. 5) read as follows:
20. Every Separate School shall be entitled to a share in the fund annually granted by the Legislature of this Province for the support of Common Schools, and shall be entitled also to a share in all other public grants, investments and allotments for Common School purposes now TausEmEs made or hereafter to be made by the Province or the Municipal authorities, according to the average number of pupils attending such school THe KING' during the twelve next preceding months, or during the number of months which may have elapsed from the establishment of a new Separate School, as compared with the whole average number of pupils attending School in the same City, Town, Village or Township. 21. Nothing herein contained shall entitle any such Separate School within any City, Town, Incorporated Village or Township to any part or portion of school moneys arising or accruing from local assessments for Common School purposes within the City, Town, Village or Township, or the County or Union of Counties within which the City, Town, Village or Township is situate.
22. The Trustees of each Separate School shall, on or before the thirtieth day of June. and the thirty-first day of December of every year, transmit to the Chief Superintendent of Education for Upper Canada, a correct return of the names of the children attending such school, together with the average attendance during the six next preceding months, or during the number of months which have elapsed since the establishment thereof, and the number of months it has been so kept open; and the Chief Superintendent shall. thereupon, determine the proportion which the Trustees of such Separate School are entitled to receive out of the Legislative grant, and shall pay over the amount thereof to such Trustees.
Section 33 of the Separate Schools Act in the C.S.U.C., 1859, c. 65, which embodied the material parts of s. 13 of the Tach6 Act of 1855 (18 Vic., c. 131), was in these terms: 33. Every such Separate School shall be entitled to a share in the fund annually granted by the Legislature of this province for the support of Common Schools, according to the average number of pupils attending such School during the twelve next preceding months, or during the number of months which may have elapsed from the establishment of a new Separate School, as compared with the whole average number of pupils attending School in the same City, Town. Village or Township.
There is a striking difference between this provision and s. 20 of the Act of 1863. The basis of division remained the same-pro rata according to the average attendance. But the Tach6 Act of 1855 and the C.S.U.C., 1859, c. 65, both gave the right to share only in " the fund annually granted by the Legislature of this Province for the support of Common Schools " (i.e. the fund known as "The Common School Fund "), while by the Act of 1863 the like right is given to share in all other public grants, investments and allotments for Common School purposes now made or hereafter to be made by the Province or the Municipal authorities.
All three statutes pointedly distinguish legislative and 1W municipal grants of public moneys (which belonged to TN supporters of common schools and separate schools alike) from moneys raised for common school purposes by local Tausms assessments, to which separate school supporters did not contribute because they were exempt. In the former only were separate school supporters given the right to share. The policy of the Legislature up to Confederation plainly was to put both kinds of schools on an equal footing in regard to sharing in the appropriation of public money.
The language of s. 20 of the Act of 1863 is most comprehensive in describing the public grants in which the right to share was assured to the separate schools. Formerly restricted to a right to share in " The Common School
Fund " (a well-defined annual grant of long standing, which had been the subject of much legislation, and as to the distribution of which no complaint is made by the appellant), separate school supporters were in 1863 given the added right to "share in all other public grants," etc. There is no allusion to " general grants " or " special grants "-" grants for urban schools " or " grants for rural schools "-" conditional grants " or " unconditional grants."
All such grants are " public grants," i.e., grants of public moneys, in which common and separate school supporters have identical interests. Legislative and municipal grants for common school purposes differ widely from the annual legislative grant of " The Common School Fund."
latter is, to a substantial extent, a vote of the income of public moneys already set aside for educational purposes, while the former are wholly gratuitous grants of public moneys not so earmarked. In s. 20 of the Separate Schools Act, 1863, instead of merely adding the words " and in all other public grants," etc., immediately after the words in the Tach6 Act " shall be entitled to a share in the fund annually granted by the Legislature of this Province for the support of Common Schools," the Legislature made the additional grants, to which the right of sharing was then extended, the subject of a distinct clause in these words:
Not only are the words " shall be entitled to a share " unnecessarily repeated, if the additional benefits conferred be restricted to grants ejusdem generis with the grant of " The Common School Fund," but an intention to exclude the application of that rule of construction, or of the kindred maxim " noscitur a sociis " (which would, if applicable, cut down the comprehensive words " all other Anli public grants," etc., to mean only " general grants," i.e., C.f.c,.
grants for common school purposes generally), is further evidenced by the fact that the added clause deals with investments and allotments as well as grants and with municipal as well as provincial grants, etc. A distinction is also made, no doubt advisedly, in regard to the expressed purposes of the respective grants, the object of the earlier grant of " The Common School Fund " being designated " for the support of common schools," while that of the latter is stated in the broader terms " for common school As observed by Lopes L.J., in Anderson v. Anderson (1):- In the same case Lord Esher, M.R., said, at p. 753:- To exclude from the additional monetary benefits in which the right to "a share" was conferred on the separate schools in 1863 grants "for a common school purpose," made to particular schools, or otherwise' restricted, and conditional grants for any such purpose, would defeat the apparent intention of the Legislature in 1863 to put separate schools on a footing of absolute equality with common schools in regard to all grants, municipal or legislative, of public moneys.
Given such an application, the doctrine ejusdem generis would indeed be "a dangerous master."
The only qualifications which the Legislature attached to the educational grants, legislative and municipal, in which it gave the separate schools the right to share, were that they should be " of public moneys" and should be made " for common school purposes."
But, it is said, if the Legislature of Ontario should see fit to restrict a grant to a particular common school or schools, or to make a grant for a particular purpose-such as, to aid schools in which " Darwinism " shall be taught apportion a share of any such special grant, in the former case to separate schools, and in the latter to schools in which " Darwinism " is not taught, would be to make a grant which the Legislature had not made. No doubt moneys so granted cannot be appropriated otherwise than as the Legislature directs; but the consequence is that any grant of that kind which prejudicially affects the right of separate schools under s. 20 of the Separate Schools Act, 1863, is ultra vires-whether it be provincial or municipal.
Since Confederation for the purposes of s. 20, no distinction can be made between the powers of municipal councils and the powers of the Provincial Legislature. Section
93 (1) of the B.N.A. Act admittedly forbids any invasion of the legal rights of denominational schools as existing at
In regard to the particular matter now being dealt with, the situation thus created is precisely the same as if the British North America Act had contained a provision in these words:
If, therefore, a grant of public moneys is made by the Legislature or by a municipal authority to aid or assist in the carrying out of what would in 1867 have been deemed a common school purpose, either it must be so made that it is apportionable between the common schools (or their present day successors) and the separate schools, or compensation to the latter for their proportion of such grant must be provided for.
It may be that under s. 20 of the Separate Schools Act of 1863 there was no assurance that any grants other than that of " The Common School Fund " would be made in the future for common school purposes; but a definite right to share pro rata in such other grants, if and when made, was thereby assured to the separate schools.
After 1863 municipal authorities in Upper Canada could not grant public moneys for any common school purpose except on the basis provided by s. 20 of the Separate Schools Act. They were absolutely bound by its provisions. Of course until Confederation the Legislature of Canada retained full power to repeal or amend s. 20 of the Separate Schools Act. It could, either expressly or by implication, direct that s. 20 should not apply to any grant which it, or a municipal council, might make to a particular school, or for any common school purpose or purposes, or subject to any condition. But the Ontario Legislature cannot do so since 1867 if the consequence would be to affect prejudicially the right of separate schools to share, on the basis prescribed by s. 20, in all provincial or municipal grants of public moneys for common school purposes. The Ontario Legislature may deal as it pleases with the proportion of its grants for " common school purposes " in which separate schools are not interested. It may divide or dispose of that " proportion " in any way it sees fit amongst "public schools " and " high schools " etc.; but every dollar appropriated by it to aid those schools or the work done in them, whether by way of general grant or special grant, (saving moneys granted to high schools in continuation of former grammar school appropriations) must be taken into account and treated as a payment to them " for common school purposes " in determining the share of " public grants " to which the separate schools are entitled. The protection assured to separate schools by s. 93 (1) of the B.N.A. Act in regard to public aid is that their right to share pro rata on the basis of average attendance in all public moneys devoted to common school purposes should not be prejudicially affected by provincial legislation. Assuming the utmost good faith, and excluding any idea of a design to circumvent the provision of s. 20 of the Act of 1863, every grant for a common school purpose, whether made for a particular school or schools, or made subject to some restrictive term or condition, comes within the ambit of the protection of s. 93 (1) of the B.N.A. Act. The right to share in all such grants is given by s. 20 of the Act of 1863 in the plainest possible terms; and the power of the Provincial Legislature to defeat that right or to affect it to the prejudice of the supporters of such schools has been categorically negatived by the Imperial Parliament. The question is purely one of legislative power.
The Common and the Separate Schools Acts alike were continued in force after the Union by s. 129 of the B.N.A. Act as provincial legislation of Ontario, subject to repeal and amendment by the legislature, as to common schools without restriction, and as to separate schools within the TINr limitations imposed by s. 93 (1) of that Act. Dobie v. The Church Temporalities Board (1); Attorney-General for TRus Ontario v. Attorney-General for Canada (2). The presence THU KiN. of the words " this Province " and " the Province " in s. 20 of the Separate Schools Act of 1863 did not render that provision inapplicable after Confederation to the changed conditions which it brought about, as is argued for the respondent. Those terms meant after 1867 the new Province of Ontario which, as erected by s. 6 of the B.N.A. Act, comprises that part of the Province of Canada which had, prior to 1841, constituted the Province of Upper Canada and to which alone the Common Schools Act (C.S.U.C., 1859, c. 64) and the Separate Schools Act (26 Vic., c. 5) applied.
Indeed it might be contended with equal force that, because " the Legislature " mentioned in s. 106 of the Common Schools Act (C.S.U.C., 1859, c. 64) had meant the legislature of the Province of Canada when that section was enacted, it could not after Confederation mean the legislature of the Province of Ontario, and that common schools in Ontario after the Union (1867-1871)
were no longer the " Common Schools in Upper Canada" for the purposes of s. 106, since Upper Canada had ceased to exist. As is truly stated in the appellants' factum (pp. 28-9): Confederation was the result of a compromise wherein the religious minority in both Upper and Lower Canada were guaranteed protection for their denominational or separate state-aided schools, and it would -have startled and shocked the statesmen of that day had it been suggested that the obligations resting upon the then Province of Canada in respect to such state aid could be ignored by the Provinces to be established in place of the old Province, or, in other words, of the division of the Province of Canada into two Provinces, with the result that in Upper Canada or the Province of Ontario and in Lower Canada or the Province of Quebec, there was no guarantee of the Separate Schools sharing in state aid from annual grants for Common School purposes, but that after the Union the Legislature of Ontario and that of Quebec could make grants for Common School purposes without the Separate Schools being entitled to a share.
It may be reasonably assumed that there was then no intention or desire by the Province of Ontario to evade the obligation that in that respect rested upon the Province of Canada, and that it was assumed that this obligation did continue is evidenced by the Separate Schocls (1) (1882)
7 App. Cas., 136, at
(2) [1896]
at pp. p. 147.
366-7.
Nor do the words, " and not otherwise appropriated by ,
,T law ", appended in s. 106 of the Common Schools Act (C.S.U.C., 1859, c. 64) to the description of the legislative grants to be apportioned by the Chief Superintendent, 'j~c.
present a formidable difficulty. Section 20 of the Act of 1863 is subsequent legislation and, so far as there may be inconsistency, the terms of that section must prevail over those of s. 106 of the Act of 1859.
Section 20 of the Act of 1863 precludes an appropriation by law of any grants made for common school purposes which would prevent the separate schools sharing proportionately in them. Whether the legislature could validly formulate a scheme or impose conditions for the distribution amongst the separate schools. themselves, other than on the basis of average attendance, of the proportion of the total grants for common school purposes, as understood in 1867, to which the separate schools as a whole were entitled, is, perhaps, a debatable question. The facts that s. 20 of the Separate Schools Act of 1863 gives the right to share " to every separate school " and that s. 22 requires that payment be made by the Chief Superintendent directly to the trustees of each separate school of its proportion of the legislative grant, should not be lost sight of in considering this aspect of the matter. Having regard to the primary apportionment amongst the municipalities of moneys to be granted by the legislature for the support of common schools, directed by s. 106 of the Common Schools Act (C.S.U.C.,
1859, c. 64) to be made "according to the ratio of population in each " municipality, it would seem probable that where there is but one separate school in the municipality it is entitled absolutely to its entire pro rata share on the basis of average attendance of the moneys appropriated to such municipality and that the question suggested can arise only where there are several separate schools in the same municipality. But in no event may the share of any grant to which the separate schools of the Province are entitled be entirely or partly withheld from them so that the total amount payable to them as a whole will be lessened.
With the rights of separate schools inter se in the distribution of the grants of public moneys, however, we are TrY not presently concerned.
That the separate schools throughout the province, taken as a whole, have the right to receive annually a share in all public moneys validly granted for common school purposes (as understood in 1867) proportionate to the average . attendance at such schools and that any such grants so made as to preclude the separate schools so sharing therein and without compensation being otherwise provided, are void, are, in our opinion, the certain consequences of the perpetuation by s. 93 (1) of the B.N.A. Act of the rights and privileges conferred by s. 20 of the Separate Schools Act of 1863. To hold otherwise would be to render illusory in a most material particular the substantial protection to religious minority rights in regard to education which the Imperial legislation of 1867 was designed to assure.
The parties agreed that in the event of the original suppliants being entitled to any proportion of the grants for common school purposes in the year 1922 (to which the suppliants' monetary claim is presently confined), payment of which was withheld for non-fulfilment of some conditions attached to them, their recovery should be for the sum of $736 demanded in the petition. Possibly for that reason no particulars were given as to the items of which this sum is composed. We are, therefore, unable to determine whether the grants of which portions were withheld from the original suppliant were or were not so made as to prevent " every separate school " from sharing in them. If so made, -they were void and no part of them is recoverable. The claim for $736, therefore, cannot succeed. . We are, for the foregoing reasons, of the opinion that the appellants are entitled to the following declarations for which they pray, to wit:- 1. Every board of trustees of the Roman Catholic separate schools has the right to establish and conduct in the school or schools under its jurisdiction courses of study and grades of education such as are conducted in what are now described as continuation schools, collegiate institutes and high schools and any and all such regulations purporting to prohibit, limit, or in any way prejudicially Tray affect that right are invalid and ultra vires.
2. Supporters of Roman Catholic separate schools are exempt from the payment of rates imposed for the support of any continuation school, collegiate institute or high school not conducted by the board of Roman Catholic %.* separate school trustees for the municipality or school section in which they reside. Section 39 (1) of the High Schools Act (R.S.O., 1914, c. 268) is invalid as to supporters of separate schools.
3. Every statutory provision enacted by the Legislature of the Province of Ontario, which involves a departure from the principle of apportionment between common and separate schools pro rata on the basis of average attendance at such schools, as provided by s. 20 of the Separate Schools Act of 1863 (26 Vic., c. 5), of all legislative and municipal grants of public moneys for any purpose that was, under the law as it stood in 1867, a common school purpose, (saving grants to high schools in continuation of former grammar school appropriations), would, if valid, prejudicially affect a right or privilege with respect to their denominational schools which Roman Catholics had by law at the Union and is, therefore, ultra vires. Each of the statutory provisions enumerated in paragraph (2) of the prayer of the Petition of Right falls within this category.
The appeal should accordingly be allowed to the extent indicated.
J.-The claims of the appellants reduce themselves to two. The first concerns the right, which they allege the Roman Catholics in Ontario possess, to establish and conduct, free from control or regulation by the Legislature as respects the scope of instruction, denominational schools of the character of those known as " common schools " in 1867, which designation would include, it is contended, schools of the type and status of the present high schools, collegiate institutes and continuation schools; coupled with a consequential exemption from all taxation for the support of such last mentioned schools.
The second concerns the rights of such denominational schools in relation to public grants in aid of education. It is important, first of all, to state, succinctly, but with some precision, the propositions of law and fact which the appellants advance in support of these claims. As to the first, it is said that at the date of Confederation J. Roman Catholics, in Upper Canada, enjoyed, by law, the right to establish denominational schools and to conduct them by boards of trustees chosen by themselves; that, as respects text-books and courses of study, free and unfettered control of such schools was vested, by law, in the several boards of trustees, whose authority was sufficient to enable them to sanction courses of study coextensive in scope with those now pursued in high schools, collegiate institutes and continuation schools.
That by force of s. 93 (1)., Roman Catholics of Ontario now enjoy these same autonomous rights coupled with the consequential right of exemption from taxation above indicated; that these rights are constitutional rights, and that any legislation is void, which, if valid, would prejudicially affect them.
As to the second claim, it is said that, by the Separate Schools Act of 1863, which remained in force at Confederation, every separate school, that is to say, every Roman Catholic denominational school established pursuant to law, was entitled to receive a part of every sum of money granted by the Legislature for " common school purposes " (which phrase included, by the appellants' construction of it, the maintenance of schools of the types of the present secondary as well as elementary schools), and that this part was determined (without regard to the purpose or conditions of the grant) by an arithmetical ratio, based upon the number of pupils attending the school and having no relation to the subjects taught, the text-books used or the efficiency of instruction-every separate school being entitled to its part, calculated according to the alleged statutory ratio, however advanced, however rudimentary, the nature of the education imparted might be. This right to share in the public grants, it is said, is now also a constitutional right, guaranteed by s. 93 (1) of the British North America Act.
It will be convenient to consider these two sets of propo- 'Tm sitions separately; but before proceeding to do so, it is well to observe that they seem to entail this consequence: that every supporter of a separate school, however elementary the character of the education may be, which is imparted by the denominational school or schools in his section or municipality, is exempt, not only from taxation for the support of public schools, but from all taxation also for the support of secondary schools; an exemption that was valid fifty years ago, if valid to-day.
The appellants' propositions also involve this further consequence, that every separate school, as to courses of study and text-books, is under the independent dominion of its board of trustees, who may prescribe only the most rudimentary studies; and yet each separate school, however rudimentary the studies pursued, is entitled to its part of all sums granted by the Legislature for " common school purposes ", which purposes include, I repeat, as the appellants contend, the maintenance of schools of the type of the present collegiate institutes.
We are concerned only with rights protected by s. 93 (1) of the British North America Act, rights relating to denominational schools existing at the date of the Union and established by law; rights, that is to say, which could be maintained, as the trial judge observes, " in face of opposition ", rights which the courts would be bound to enforce or protect; and which were, moreover, declared in some statutory enactment in operation at that date.
I shall first consider the appellants' propositions touching the character of the schools they were entitled to maintain and the extent to which they were under an exclusive denominational control; the question of the public grants will be examined separately. The Attorney-General takes his stand upon the conclusion unanimously adopted in the Ontario Courts, that the rights bestowed upon Roman Catholics by the statutes in force -at the relevant date in relation to their denominational schools were no wider than this: they were entitled to establish schools of the class known as " common schools ", to manage them by boards of trustees nominated by themselves, but with respect, inter alia, to the courses of study to be followed, it was stheir duty to proceed in obedience to such regulations as might be promulgated by the central educational authority of the province, the Council of Public Instruction.
Tm It will be observed that the appellants' propositions divide themselves into two branches: first, schools known as " common schools " were intended to provide, where T-. that was desirable in the view of the local authorities, DJ. courses of study sufficiently advanced to enable the pupils to obtain the necessary preparation for entrance to the provincial university or the learned professions; to provide, it is said, let me repeat, a programme of studies not inferior in scope to the programmes now defining the courses of study in the secondary schools of to-day.
Second, within the superior limit, thus indicated, each board of trustees had supreme discretionary power as to the courses of studies to be pursued in the schools within its jurisdiction, and, in the case of separate schools, this authority extended to the use of text-books.
The appellants, in order to succeed, must make good their propositions on both these branches; they must establish that the legislation on the subject of common schools contemplated schools of the advanced character mentioned, and they must also establish that, in the conduct of such schools, boards of trustees were, as regards text-books and programmes of study, independent of the regulative authority of the Council of Public Instruction. Obviously, if such schools were in these respects subject to an over-riding authority in the Council, the appellants have no legal ground for inpeaching legislation upon these subjects, or regulations upon them, of a character which could lawfully have been put into force by the Council of Public Instruction in exercise of its controlling powers.
Primarily, we must look to the Separate Schools Act of 1863 to ascertain the measure of control Roman Catholics were entitled to exercise over their denominational schools;
and also the degree in which such schools were subordinated to the dominion of the Council of Public Instruction.
Four sections of ithe statute (the 4th, 9th, 13th and 26th)
require attention here, but of these we are at present chiefly concerned with the 26th.
The language of that section is this:
The view of this section, which naturally first presents itself, regards it as investing the Council with a comprehensive authority to pass general regulations governing the management and conduct of separate schools.
The first member, dealing with inspection, purports, independently of any other legislation upon the subject, to entrust the Chief Superintendent with complete discretionary power. So, also, in this view, the second member, ex proprio vigore, imports the bestowal upon the Council of the fullest authority to formulate regulations, which it is the duty of the separate school authorities to observe- "such regulations as may be imposed from time to time." Two other views suggest themselves as.to the effect of the second branch of s. 26.
First, that the authority thereby given does not include control by the Council over separate schools in matters other than those in relation to which jurisdiction may, from time to time, be entrusted to the Council, under the Common Schools Acts or other legislation; that the section envisages the Council as a body charged with public duties and endowed with powers of regulation in respect of defined subject matters under the existing Common School Acts or under subsequent amending legislation, and that in all such matters (but only such) the separate schools are subordinated to the Council. According to the other view (and subject to one qualification, this construction is adopted in Mr. Hellmuth's argument), the office of the section is merely to declare that the Council's functions, as affecting separate schools, have relation to the subject matters (and those only), which, at the date of the statute, were within the field of its authority under the Common School Acts-so that in exercising those functions, it would always remain subject to the limits fixed by those Acts at that date.
The appellants' argument adopts this last mentioned construction, with the qualification that the Council's authority does not, by force of s. 26, extend to the subject of text-books.
Either the first or second of these three interpretations, as it seems to me, is preferable to the third. The section places separate schools under the dominion of regulations put into force from time to time; in terms there are no limits as to subject matter or otherwise. In fulfilling its duties under the section, the Council would, of course, be bound to observe any limitations governing it by force of the pertinent enactments of the Separate School law, as well as those necessarily proceeding from the nature of the subject niatter; the duty being a duty to regulate only, must be performed in good faith for the purpose for which it is imposed, and, especially, with a vigilant eye to the fact that the purpose of the legislation was to make better provision for a system of Roman Catholic denominational schools. But, subject to this, there appears to be no very potent reason for restricting the natural sense of the words.
Resort to other legislation seems unnecessary. And if the section is said to contemplate the Council, in exercising its powers thereunder, as acting within the field marked out by the Common School Acts, the words, on the more natural reading of them, would seem to direct us, for our guidance, to the provisions of those Acts at the time of the exercise of the power, rather than at the date of the
Separate Schools Act.
In my own view of the Common School Acts, further discussion of the relative merits of these three readings would be superfluous. I shall proceed, for the present, upon the footing that the construction advocated by the appellants (except as touching the subject of text-books) is the right construction. Even on this assumption, it will sufficiently appear from a strict examination of the provisions of the Common School Acts, invoked by the appellants, that they furnish no reliable ground for overturning the conclusion of the Ontario judges as to the scope of the Council's powers; a view which, it will appear, dictated the practice of the Council itself in exercising its functions under the statutes of 1850 and 1859-a practice, which was, it will further be seen, acquiesced in by the
Legislature itself.
The relevant provisions of s. 119 of the Common Schools
Act of 1859 are to be found in clauses 2, 3, 4 and 5, which are in these words:or more Model Schools for the instruction and training of Teachers of Common Schools in the science of Education and the art of Teaching; To make from time to time the rules and regulations necessary for the management and government of such Normal School; to pre- TausTEEs scribe the terms and conditions on which students will be received and instructed therein; to select the location of such school, and erect or THE procure and furnish the building therefor; to determine the number and Duff J.
compensation of teachers, and of all others who may be employed therein; and to do all lawful things which such Council may deem expedient to promote the objects and interests of such school;
4. To make such regulations from time to time, as it deems expedient, for the organization, government and discipline of Common Schools, for the classification of Schools and Teachers, and for School Libraries throughout Upper Canada;
5. To examine, and at its discretion, recommend or disapprove of text-books for the use of schools or books for School Libraries. Clause 4, if alone, could hardly be susceptible of debate. There are two subject matters for regulation, or rather perhaps, two phrases designating a group of subject matters: " the organization, government and discipline of common schools," and the " classification of schools and teachers.". These phrases in their unstrained meaning denote subject matters of regulation which include branches of instruction; and " classification of schools," in the ordinary purport of the words, embraces the function of determining the different classes and their several typical characteristics.
Various reasons are propounded by the appellants for ascribing to these phrases a narrower compass. I shall first consider those reasons which derive any substance they possess from the terms of the common school legislation itself.
The provision of the Common Schools Act to-which the appellants appear to ascribe the greatest force is clause 8 of section 79, which defines the powers of urban boards of By that clause such trustees are authorized and required to determine the several kinds and descriptions of schools which shall be maintained under their jurisdiction. This clause, it is argued, is incompatible with the attribution to the Council of supreme control over courses of study and " classification of schools."
To each board of trustees the task, it is said, is committed of classifying the schools under its charge, and this clause, it is argued, empowers the board to do this by reference to the character of the instruction in them; and this, it is further said, conveys the right to prescribe the branches of study. And again, the argument runs, in fulfilling this mandate, the trustees are invested with an independent discretion, untrammelled by superior authority. I have searched the statute without success for something to justify this version of sections 79 and 119. The intention to subordinate boards of trustees to the Council in matters over which the Council has the power of regulation is positively declared by clause 16 of section 79, which directs such boards to see that the schools under their care are " conducted according to the authorized regulations." In light of this provision, clause 8 of section 79, and clause 4 of section 119 must not be read as conflicting or mutually exclusive but as complementary enactments. We need not stop to discuss the precise effect of clause 8.
This seems beyond dispute; it is the duty of trustees, in " classifying " (to quote the phrase of the Chief Superintendent) the schools within their jurisdiction, to observe the regulations upon that subject proceeding from the Council. If, as the appellants argue, they are entitled, in performing their duty under that clause, to act according to a canon based, as suggested, upon subjects of instruction-then, they are, it cannot be doubted, subordinate to the paramount jurisdiction of the Council in relation to the subject " classification of schools."
The argument of the appellants virtually deletes the phrase " classification of schools " from clause 4. The phrase can hardly, in this context, be read as denoting the classification of pupils; which seems rather to fall under the wider subject " government and discipline of schools." As this reading, however, is the only alternative reading suggested by the appellants, it is proper to observe that, if adopted, it would not at all advance the argument. "Classification of pupils," if these words have any substance at all, includes the arrangement of classes by reference to thesubjects of instruction and the stages of advancement which the pupils have reached.
It would not be easy toreconcile the possession by the Council of final authorityin relation to the subject so described with the possession by the boards of trustees of completely autonomous jurisdiction in relation to subjects of instruction and " classification of schools " in the proper sense of the words. Indeed, there seems little room for doubt that the ordinaryand natural reading of clause 4 is the true reading. " Classification," as applied to " schools " in the sentence in which it here occurs, can have no other force than that which it has when applied to " teachers "-grouping them into classes and ascribing its appropriate qualifications to each class.
Furthermore, this argument which attributes to clause 8, section 79, the effect of so limiting the natural meaning of clause 4 of section 119 as to exclude courses of study from the regulative jurisdiction of the Council, seems to ignore the fact that no such clause as clause 8 forms any part of s. 27, in which the powers of rural boards of trustees are enumerated. The nearest approach to clause 8 to be found in that section is clause 6 by which such trustees are empowered to establish a female as well as a male school.
If the argument be sound and the subject matter of courses of instruction be not within the scope of s. 119,, then the Act is silent upon the regulation of that subject matter in rural schools. It is nothing to the purpose to say, as appears to have been contended in the courts below by the appellants, that, by force of s. 7 of the Act of 1863. all the powers of urban trustees, under s. 79 of the Common Schools Act, are entrusted to rural as well as to urban boards of separate school trustees. Even if this proposition could be accepted, it leaves untouched the difficulty, just mentioned, as to the regulation under the Common Schools Act of the conduct of instruction in rural schools. But the proposition itself is inadmissible. By s. 7 of the Act of 1863, trustees of separate schools are to have as respects separate schools the powers that trustees of common schools " have and possess, under the provisions of the Act relating to Common Schools."
There is nothing in the Common Schools Act investing any board of trustees with authority to direct the conduct of instruction in rural Assuming clause 8 to have the meaning put forward, it confers no jurisdiction on anybody, over any rural school; and there is nothing in s. 7 of the Separate Schools Act, which can properly be read as endowing the board of trustees of such schools with authority to ignore, in the exercise of their powers, the limits necessarily imposed, by the terms in which such powers are defined in the Common Schools Act.
Another argument must be noticed, which is derived from the form of s. 6 of the Grammar Schools Act of 1853, where the powers of the Council, as touching such schools, are set forth. By that section the Council is required to "prescribe a list of text-books, programme of studies and general rules and regulations for the organization and government of the County Grammar Shools." In this context, it is argued, the general words " Organization and government " as applied to schools cannot include text-books and programmes of studies, which are specifically mentioned. And the use of the phrase " organization and government " in this sense, supplies a reason, it is urged, for similarly restricting the meaning of the same phrase in the clause we are considering. This argument, by which we are invited to resort to a statute passed in 1853, for the construction of an enactment, passed in 1850, I do not find convincing. It is always unsafe to construe the general and unambiguous language of one enactment by reference to phrases found in another. McLaughlin v. Westgarth (1). Phrases and even clauses are so often introduced into Bills on their passage through Parliament in response to importunities from various quarters, that such discrepancies can seldom be safely relied upon as furnishing a clue to the intention of the legislature.
The history of grammar schools in Upper Canada, disclosed in the material before us, suggests an adequate explanation of the explicit mention of text-books and studies.
The common school legislation provides other much more apposite and useful contrasts. The system of common schools was instituted by a statute of 1841; and, by that statute, the regulation of courses of study and textbooks was committed to the local authorities (the School Commissioners) who, in townships and parishes, were annually elected, and, in incorporated cities and towns, were appointed by the several corporations. The Act provided for a Superintendent of Education, who was invested with no regulative authority over text-books or studies of any kind in respect of the conduct of schools; but (s. 4, sub-s. 5) was required to address to the persons employed in carrying out the provisions of the Act "such- suggestions as may tend to the establishment of uniformity in the conduct of the Common Schools throughout this Province." Section 7, subsection 4, of this statute may usefully be quoted in full.
By it the Commissioners were entrusted with a duty
Complete local autonomy in relation to studies, textbooks and generally in the management and conduct of the schools was a dominant principle of the common school system as first established. But, in 1850, this system has undergone a striking transformation.
Local authority to regulate studies, to regulate text-books, " to establish general rules for the conduct of the schools and communicate them in writing to the respective teachers " finds no place in the statute of that year. For this local control there is substituted the central authority of the Council of Public Instruction to pass regulations under the terms of clause 4, section 119, and to deal with the subject of text-books as provided in clause 5; coupled with the enactments requiring local authorities to see that the regulations of the Council are observed.
These changes point to an intention to improve the efficiency of the common schools by subjecting them to an over-riding central control. The progress of legislation in these years, at all events, gives little countenance to the surmise that it was the design of the legislature in 1850 and later to leave each school to exclusive control of the local board of trustees in the primary essentials of education.
I come now to a branch of the appellants' argument to which the appellants themselves attach a high degree of importance. The argument is that the provision of section 119 (clause 5 of that section), entrusting the Council with certain functions therein defined, in respect of the use of text-books in schools, justifies, by reason of the frame of it, an inference that the subject matters of regulation designated in clause 4 were not intended to include programmes of study. The presence of clause 5, according to the argument, containing, as it does, a special disposition upon the subject of text-books, requires us to read clause 4 as excluding that subject from its purview; and, it is said that if the general language of clause 4 does not embrace that subject, it must also exclude the kindred matter, programmes of study. When the structure of section 119 is examined, and in particular the structure of clause 5, and especially when the history of the two clauses is also taken into account, it will be seen that there is little substance in this contention.
Clause 4 is concerned with a power of regulation which ex facie is an unrestricted power, or restricted only by reference to the designated subject matters; it is a power to make "such regulations, from time to time" as the Council "deems expedient".
This power extends to subject matters defined by comprehensive, general terms, " organization, government and discipline of schools ", " classification of schools and teachers ".
While ex facie, the various matters comprehended under these general expressions are all within the ambit of the clause, no emphasis is laid upon any particular matter, nor is any duty imposed in terms to deal with any particular matter in any special way or at all. The Council are given the fullest discretion as to the time and manner in which they shall discharge any particular branch or phase of the responsibilities committed to them. Clause 5, on the other hand, is concerned with a particular subject-text-books, and, in connection with that matter, a duty is imposed upon the Council; the duty to examine text-books. And then the Council is invested with a discretion to recommend or to disapprove of text-books examined with a view to the use of them in Of all matters which ex facie are comprehended within the general words in clause 4, one matter is singled out for special treatment, under clause 5.
This clause does not, as clause 4 does in itself, endow the Council, simpliciter, with a general authority to make regulations. to the subject with which it is concerned, the functions of the Council are stated with much greater particularity: to examine; to recommend; to disapprove, under a sanction nominated in another section. The draughtsman has carefully avoided any words which might be construed as imparting a general authority to regulate. This clause, then, treats the subject matter with which it deals as standing in a special category; the Legislature, in order to express its .intention has selected language which shows that the object of clause 5 would not have been attained, had that clause been omitted, and the subject of text-books left at large, under the general jurisdiction of the Council under clause 4. The presence of such a clause would appear to justify no inference leading to any restriction of the applicability of the general words of clause 4 in relation to any subject other than text-books.
This conclusion becomes even less doubtful when one looks at the origin and history of the two clauses. Provision was first made in the Act of 1846 for the Council of Public Instruction (under the name of the Board of Education), and in that Act clause 5 of the statutes of 1850 and 1859 first appeared as clause 2 of section 3-the subject of textbooks having been, as already mentioned, by the earlier statute of 1841, committed to the independent control of the local authorities.
Before the passing of the statute of 1846, the Chief Superintendent, and others concerned for the welfare of the recently established popular schools, had come to realize some of the evils arising from a diversity of text-books, which are discussed at length in the reports of the Chief Superintendent during the twenty succeeding years. It was then determined that some authority over the subject must be vested in a central body. It was considered that, at the beginning, at all events, it would be sufficient to give that body a power of recommendation only; and the Act of 1846, when it took the form of law, contained a clause corresponding with that which appears in the Act of 1859, except that in the clause itself the sanction attached to the use of a disapproved text-book (loss of the government grant) appears in the clause itself, and not in a separate section, as in the later Act of 1859. The policy which inspired this clause did not go into effect without vigorous opposition. This subject of school books had aspects other than the educational aspect. There were numerous interests, as -appears from the material before us-some of them, no doubt, powerful-which did not welcome the views of the Chief Superintendent and Council, who, shortly after the Act of 1846, published a list of recommended books. Indeed, notwithstanding the recommendations of the Council, and the provisions of the law designed to bring about the observance of such recommendations, unrecommended text-books continued to be used for many years; and it was not until twenty years after the passing of the Act of 1846 that the Council, being satisfied that the policy of uniformity of text-books had won a " common consent " in the province, felt itself warranted in declaring that all books other than those recommended were disapproved.
As late as 1866, a most determined effort was made by a well known publishing house in Great Britain, represented by Canadian publishers and backed by most powerful Canadian influences, to bring about the abrogation of this system, and a reversion to the old plan of. the Acts of 1841 and 1843, by which the choice of text-books for each school was left to the local board of trustees.
It is hardly surprising, therefore, that when, in 1850, a Bill to consolidate and re-enact the School Law was introduced into the Legislature, the clause in the earlier statute of 1846, defining in carefully selected words the special r6le of the Council, in the matter of text-books, was left unaltered, or that it remained unaltered down to the date of Confederation.
In view of all these considerations I can perceive little to recommend it in the argument that the presence of clause 5 justifies the inference contended I am not suggesting that under clause 5 there is no authority to regulate. In disapproving of a text-book or list of text-books, the Council executes a power of disallowance under the sanction of a grave penalty, and is, of course, exercising a power of regulation; a power to make a rule, of a defined character, it is true, but still a rule, governing the use of text-books in schools.
In recommending, also, the Council, by naming a book or books recommended, creates a situation from which, by force of other sections, duties arise that are incumbent upon the local authorities and officials responsible for the execution of the Act. Sections 27 (18), 79 (15), 91 (6), 98 (3). The recommendations of the Council, once made, become, by force of these other sections, rules binding on local authorities and officials in the sense that their discretion is thereby limited; although s. 119 does not, in entrusting the Council with the duty of recommending. confer, ex proprie vigore, a power to prescribe; and, as already observed, the power to disallow is a power to regulate which can be executed only in a limited specified way. And here we may conveniently examine the contention the appellants that s. 26 of the Act of 1863 does not oft extend to the subject of text-books. I will not for this purpose dwell upon the view sketched above, according to which this section gives a general power of regulation, subject only to relevant enactments of the separate school law, and to the limitations necessarily implied in the fact that the power is given for the purpose of enabling Roman Catholics to carry on more satisfactorily their system of denominational schools; and that, at least, that section subordinates such schools to regulation by the Council in respect of all subject matters, which may from time to time fall within the ambit of its jurisdiction in relation to I shall assume, for the present, that section 26 authorizes only such regulations as the Council might, at the date of the Act of 1863 have put into force under their existing powers in relation to common schools-but assuming that, I can discover no satisfactory reason for denying that such an authority would embrace the power to make recommendations as to text-books, and to disallow such text-books under clause 5 of the Act of 1859. I shall not repeat what I have said as to clause 5, I can think of no reason for excluding-under the construction contended for-the authority given by that clause from the power of regulation which is the subject of section 26.
Section 9 of the Separate Schools Act must not be overlooked.
By that section trustees of such schools " shall perform the same'duties and be subject to the same penalties as the trustees of Common Schools."
There is no exception of the duties incumbent upon common school trustees under sections 27 (18) and 79 (15).
I have said that the view above stated as to the jurisdiction of the Council under the statutes of 1850 and 1859 (and incidentally, of the argument of the appellants that under those statutes the local boards of trustees were invested with completely autonomous powers in relation to the courses of study to be pursued in their several municipalities and school sections) was the view which dictated the practice adopted by the Council and the Chief Superintendent in executing their duties under those statutes. This is demonstrable from the documents in evidence. In 1855, a manual was published under the authority of T the Council for the guidance of " trustees, teachers and local superintendents," giving the statutes of 1850 and 1853 (the Grammar Schools Act), " together with the forms, general regulations and instructions " for executing the provisions of those statutes. The publication was issued, no doubt, pursuant to the duty of the Chief Superintendent under section 35 (3) of the Act of 1850, which required him to " cause forms, instructions and general regulations of the Council to be printed from time to time," and distributed for the information of the officers of common schools; and the manual included " general regulations for the organization, government and discipline of the common schools of Canada " as well as a programme of studies entitled " The Order and Classification of Studies for the Common Schools in Upper Canada."
Again, in a similar publication, issued under the authority of the Council, in 1861, and edited by the Deputy Superintendent of Schools, there appears the same programme, which is described as the " Order and Classification of Studies Prescribed for the Common Schools of Upper Canada, as observed in the Upper Canada Model Schools, Toronto," and it is stated that this programme had been adopted by the Council on the 31st December, 1858.
This programme directs, or at all events assumes, that the pupils are to be classified in three divisions, and it is stated that, in the Model Schools, pupils in these divisions are arranged in five classes, corresponding to the five reading books of the Irish National Series of Readers, which had been recommended by the Council. In the manual of the same description, published in 1864, compiled by the same editor, this programme again appears. It is not without importance to notice that certain subjects--trigonometry and some of the physical sciences-are given in this curriculum as " extra " subjects, which may be taught at the discretion of the school authorities, but not more than one in any single term. Still again, in a manual printed for the Council in 1863, after the enactment of the Separate Schools Act of that year, this same programme is repro-duced and it is there said to be applicable to separate No inconsiderable weight attaches to these publications,. issued successively under the authority of the Council, in the years 1856, 1861, 1863 and 1864, as indicating the view accepted by the Department as to the powers of the Council, and carried out with circumstances of the greatest publicity.
It is impossible to suppose, moreover, that those responsible for the legislation of 1859 were ignorant. of the proceedings of the Council. We have already seen that the enactments of the Act of 1850 touching the powersof the Council were reproduced without pertinent change in the Act of 1859; and it seems to be a fair inference from this, taken together with the unqualified language of s. 26 of the Act of 1863, as well as of s. 9 of that statute, that the Council had not misunderstood the scope of the powers with which it was intended to invest them. The Council, in professing to prescribe this programme of studies for the direction of those responsible for the conduct of the common schools, was assuming in the most public manner an. over-riding authority in relation to such matters. In this the Legislature must be presumed to have acquiesced. - The appellants have not, I conclude, established their contention as to the autonomous jurisdiction of boards of trustees, and they fail equally, I think, in adducing satisfactory reasons for holding that, in scope of instruction, the common schools of 1867 were on the same footing as collegiate institutes, high schools or continuation schools to-day.
The system of public instruction, at Confederation, included a provincial university, grammar schools, a normal school with model school attached, common schools and separate schools, which, admittedly, for the present purpose, may be grouped with common schools.
On behalf of the appellants, it is argued that it was one of the functions of the common schools, at that date, to train pupils for entrance to the university and the learned professions, and for that purpose to provide the necessary instruction in Greek and Latin, mathematics and what were called the " higher branches of English "; that, in this respect, they were, in truth, co-ordinate with the grammar schools.
The Common Schools Act of 1859 nowhere defines in terms the scope of the instruction to be imparted in such schools, but the type of school contemplated by the common school legislation may be inferred with confidence from the school legislation as a whole, and the official acts DfJ of the Council of Public Instruction and the Chief Superintendent, who were mainly charged with the administration of the school law.
Obviously, for our present purpose, the qualifications of teachers, the provision made for training them, the programmes of studies, officially promulgated, the character of the authorized text-books, may supply useful indicia. The Council of Public Instruction, which was entrusted with the office of regulating the conduct of the grammar schools and with the management of the Normal School, was also charged with duty, as we have seen, of regulating the programmes of study and prescribing text-books for common schools, and of prescribing the qualifications of teachers of such schools.
The programmes of study promulgated by the Council are in evidence, so, also, are the regulations prescribing the qualifications of teachers. The programmes are not framed with the view of fitting pupils for the university, as at once appears from a comparison of the list of subjects taught with requirements for matriculation; the qualifications for teachers are just as plainly not designed to provide instruction for any but the most elementary schools, and of the Normal School training, it is sufficient to say that Latin and Greek find no place in the curriculum. But, most important of all, are the lists of 'text-books recommended by the Council of Public Instruction for the I have already mentioned that it was the duty of the local authorities to provide the schools with authorized text-books, and to see that no unauthorized books were used. It is true, as already observed, that there was, for years, much laxity in the enforcement of these rules, but it is beyond doubt that the school books necessary for effective instruction of pupils reading for matriculation in the university or for entrance into the learned professions, could not, if the law were observed, be used in common schools, at any time after 1847, when the first list of recommended books was sanctioned; and, after the year 1866,. the use of a text-book in Latin or Greek, in a common school, would, by force of the regulation passed in that year, have entailed the loss of the government grant. The position of the grammar schools in the system is also of considerable significance.
The Grammar School Act of 1853 required each grammar school to make provision for instruction in the higher branches of a " practical English Education " in Latin, Greek and mathematics, so as to prepare students for the University of Torohto.
Grammar schools had been established long before, but the object of* this Act was to cause them to take theirproper place as intermediate schools between the common schools and the University.
The Chief Superintendent repeatedly emphasizes the relative status of the twosystems of schools. " The Grammar School should be a connecting link between the common schools and the University; the common schools should be the feeders of the grammar schools, and these should be the feeders of the University" (Report for 1850, p. 22).
Such expressions occur frequently in the reports in evidence. In 1865, after the enactment of the Grammar School Act of that year, Dr. Ryerson addressed a number of circulars to local authorities explaining the object of the new statute, 19 Doc. History, pp. 41, 42, 43 and 44 (Exhibit 46). object of the Act is to make Grammar Schools what they were intended to be *
* *
* intermediate schools between the Common Schools and University College prepare pupils for matriculation in the university-to impart to others the higher branches of an English education, including the elements of French." These schools. are not, he says " in any way the rivals of common schools, nor permitted to do common school work *
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*
* but a higher educational work which can be done by neither the common school on the one hand, nor by the College on the other." " The object of the Act," he says, " is to make your grammar school what it ought to be, a High School for your City-an intermediate school between .common schools and the University", and providing a higher " English " education for those not desirous of studying Greek and Latin. " They are," he says, not to "poach upon common school ground," but to provide instruction supplementary to the "elementary"
of the common schools. The Act of 1865 and the new programme of studies under it, together with the regulations already mentioned, disallowing for common schools all text- J. books not recommended by the Council (a regulation having the effect of excluding grammar school subjects from the common schools, under penalty of loss of the government grant) finally marked in a decisive way the distinction between the respective rbles of the two classes of schools. The high schools and collegiate institutes of to-day are the decendants of the grammar schools, the " public schools " of the common schools.
It seems necessary to refer to the mass of quotations from the Chief Superintendent's reports adduced by the appellants for the purpose of shewing that common schools were subject in the matter of courses of study to the exclusive control of the boards of trustees, and in support of the contention, I have just been considering.
In reading these extracts, it is important, first of all, to remember that local autonomy was the rule for some years, and that it was only in 1850 that the Council received general powers of regulation; and, most important of all perhaps, that even in the vital matter of text-books it took years to bring the practice into conformity with the regulations.
Then extracts, separated from the context, are apt to mislead.
I shall mention only a few of the passages quoted. In his report for the year 1847, Dr. Ryerson states that there were, in that year, in Upper Canada, forty-one common schools in which Latin and Greek were taught, seventy, French, and seventy-seven, the elements of natural philosophy; 1847 being the year in which the first list of recommended books was published, a list not including a text-book in any of these subjects. The figures produced are in themselves of little value, but the change which occurs in a few years is important. By 1852, the last year for which the figures are available, seven schools were teaching Latin and two Greek. In the report of the year 1867, there is a significant statement. In that year, it appears from a table in the appendix, that in none of the cities (and these include Hamilton and London) were any text-books but authorized text-books in use-the result, perhaps, of the regulation, above mentioned, of 1866. Mr. Hellmuth, naturally enough, dwelt with some emphasis upon the report of the local Inspector for Hamilton for and that for London in 1863, as giving two conspicuous instances of common schools engaged in training pupils for matriculation in the University, and maintaining efficient clases in Latin, Greek and French. In 1867, as the report shews, this had ceased. I refer to one more extract. It is from a circular of the .Chief Superintendent in the year 1847. In this circular, addressed to mayors of cities and towns, he appears to say that the local board of trustees is to determine (inter alia) " The subjects of instruction and the text-books to be used in each school " and this.passage is adduced as supporting the appellants' contention as to the powers of boards of trustees. A circular issued a month later shews that, as to text-books, the Chief Superintendent only meant to say that trustees were.entitled to select text-books from a list recommended by the Provincial Board of Education.
As to subjects of instruction, this circular was issued before the Act of 1850, in which clause 4 of section 119 of the Act of 1859 conferring on the Council, for the first time, general powers of regulation, first appeared.
My conclusion, after examining these extracts, with some attention, is that when read with due regard to date and context, and to the circumstances in which they were published, they afford little support to the appellants. As against the argument the appellants seek to found upon these passages from a communication of 1847, may be set the official acts of the Council is prescribing programmes of studies, and the following passage from a- letter published in March, 1866:
On the first branch of the appeal, therefore, the appellants fail.
The appellants' claim in relation to the public grants rests upon s. 20 of the Act of 1863.
rhe principle of division laid down by that section assumes the existence of a fund, which has been appropriated for the benefit of the common schools generally in each municipality. It is upon this fund, so appropriated for a given municipality, that the section operates. The Act of 1863 contains no provision for the distribution among municipalities of public moneys granted for school In the absence of some specific appropriation it is necessary to resort to the provisions of the Act of 1859 to ascertain the fund in which, under s. 20, a given separate school is to share.
That statute deals with the distribution of moneys voted for common school purposes in sections 106, 120, 121 and 122. These sections enact, in effect, that moneys annually granted, in aid of common schools, shall, after providing for certain specific appropriations set forth in s. 120, and for any other express appropriations, be divided among the municipalities, according to population. The fund for each municipality having been thus ascertained, s. 20 comes into play.
It seems quite clear that the Legislature did not intend to tie its hands by s. 106 (1) in such a way as to necessitate the apportionment of all moneys voted for common schools, according to a fixed arithmetical ratio. The qualification " not otherwise expressly appropriated " sufficiently manifests the intention of the Legislature to reserve its freedom of action.
A special appropriation directing the disbursement of moneys voted for the common schools on a different principle would, therefore, have involved in point of law no departure from or inconsistency with 106 or s. 20, and this applies to the methods of distribution now attacked. The fact that they are laid down in a general Act is, of course, immaterial.
Assuming s. 20 to have created a legal " right or privilege " within the meaning of 93 it was not, and in the nature of things could not be, a right " by law " to require the Legislature to refrain from granting appropriations for special purposes or for the aid of schools reaching a certain standard of excellence or of school sections conforming to a certain standard of expenditure.
To none of the appropriations affected by the rules of apportionment, to which the appellants object, could a claim have been made under that section, or under that section combined with s. 106. The appellants have been deprived of nothing to which any " right or privilege," under those sections, could attach.
It may be said that although strictly the " right or privilege " in itself is not prejudiced by the legislation impeached, it is nevertheless rendered less valuable thereby. But, assuming that to be a legitimate ground of complaint, under s. 93 (1), there is no evidence of such prejudice, as affecting either the Roman Catholics as a whole or the representative plaintiffs. There is not the slightest reason for supposing that the existing grants, if distributed according to the arithmetical ratios of s. 106 and s. 20, would yield a larger sum for Roman Catholics as a whole. But, more important still, it is impossible to know (if under compulsion of a constitutional limitation, the Legislature were obliged to follow an unwise and wasteful plan of distribution) whether the grants would be as generous as they now are, under a system designed to ensure a fruitful expenditure. There is, of course, no suggestion that by the statutes now in force, separate schools are placed upon a footing of inequality with the public schools. Grants are shared by all schools alike, upon identical conditions.
During the argument it was suggested that it was not competent to the appellants by means of a Petition of Right to obtain (as they are attempting to do) a declaration that certain statutes of the Ontario Legislature are ultra vires. The question is important, and the appellants' right to maintain their petition in its present form is not at all free from doubt. The Attorney-General, however, is content to have the questions raised passed upon in the present proceedings, and no such objection has been taken by him at any stage. A speedy determination of those Tausns questions is, moreover, obviously desirable in the wider public interest, and, in the circumstances, it would appear that the Court is not under a duty to consider the technical question, upon which no opinion is pronounced.
The appeal should be dismised.
J.-Three claims, which are thus summarized by the Chief Justice, are advanced on behalf of the appellants:- (A) Their claim " to establish and conduct courses of study and grades of education in Catholic separate schools such as are now conducted in continuation schools, collegiate institutes and high schools "; and that " all regulations purporting to prohibit, limit or in any way prejudicially affect such right or privilege are invalid and ultra (B) Their claim to exemption from taxation for the. support of continuation schools, collegiate institutes and high schools not conducted by their own boards of trustees;
(C) Their claim to a share in public moneys granted by the Legislature of the Province of Ontario " for common school purposes " computed in accordance with what they assert to have been their statutory rights at the date of
As to claims (A) and (B), I fully accept the judgment of the Chief Justice, and I feel that I cannot usefully add anything to what he has said in allowing these two claims.
It seems -to me inconceivable that when it granted to the
Roman Catholics of Upper Canada the privilege of having their own separate schools, the Legislature could have intended to render this privilege valueless by allowing the
Council of Public Instruction of that Province to restrict, by regulations, the scope of the education to be given in these schools. The educational systems both of Ontario and Quebec were established by the same Legislature, and it is a matter of common knowledge that in Quebec the religious minority of that province has always had full control of its own schools, including its high schools.
.To my very great regret, however, I find myself unable to accept in its entirety the decision of the Chief Justice with regard to the third claim. As briefly as possible, I will explain wherein my views differ from those of my Tn Km.
Lord.
Mignault J
The appellants' case must be that a right or privilege Jwith respect to denominational schools which the class of persons whom they represent had by law in the province at the Union has been prejudicially affected by the legislation of which they complain.
The crucial question therefore is: what was the right or privilege which this class of persons had by law at the Union to claim for their separate schools a share of public moneys granted by the Legislature for the support of common schools or for common school purposes? To answer this question, reference must be had to sections. 20, 21 and 22 of the Separate Schools Act of 1863 (26 Vict., c. 5) which reads as follows:- 20. Every Separate School shall be entitled to a share in the fund annually granted by the Legislature this Province for the support -Common Schools, and shall be entitled also to a share in all other public grants, investments and allotments for Common School purposes now made or hereafter to be made by the Province or the Municipal authorities, acc-ording to the average number of pupils attending such school during the twelve next preceding months, or during the number of months which may have elapsed from the establishment of a new Separate School, as compared with the whole average number of pupils attending School in the same City, Town, Village or Township. 21. Nothing herein contained shall entitle any such Separate School within any City, Town, Incorporated Village or Township, to any part or portion of school moneys arising or accruing from local assessment for Common School purposes within the City, Town, Village or Township, or the County or Union of Counties within which the City, Town, Village or Township is situate.
22. The Trustees of each Separate School shall, on or before the thirtieth day of June, and the thirty-first day of December of every year, transmit to the Chief Superintendent of Education for Upper Canada, a correct return of the names of the children attending such school, together with the average attendance during the six next preceding months, or during the number of months which have elapsed since the establishment thereof, and the number of months it has been so kept open; and the Chief Superintendent shall, thereupon, determine the proportion which the Trustees such Separate School are entitled to receive out the Legislative grant, and shall pay over the amount thereof to such Trustees.
There is no difficulty, nor is any complaint made, as to the distribution between common (or public) schools and separate schools of the Common School Fund, which s. 20 describes as "the fund annually granted by the Legislature of this Province for the support of common The point on which, with great deference, I have been unable to agree with the Chief Justice is with respect to the character, either general, or both general and special, of " all other public grants, investments and allotments for common school purposes ", of which, under s. 20, "every separate school " is entitled to a share.
In other words, what is the meaning and effect of the following language of s. 20: " Every separate school * *
* shall be entitled also to a share in all other public grants, investments and allotments for common school purposes now made or hereafter to be made by the Province or the municipal authorities "?
Sections 20, 21 and 22 of the Separate Schools Act of 1863, I think, must be read with section 106 of the Common Schools Act of 1859, Consolidated Statutes of Upper Canada, 1859, chapter 64.
Section 106 is a long section, but I need specially refer only to subsection 1, the effect of which is to empower the Chief Superintendent of Education to apportion annually, on or before the first day of May, all moneys granted or provided by the Legislature for the support of common schools in Upper Canada, and not otherwise appropriated by law, to the several counties, townships, cities, towns and incorporated villages according to the ratio of population in each as compared with the whole population of Upper Canada.
Consistently with this enactment, s. 20 of the Separate Schools Act of 1863 states that every separate school shall be entitled to a share in the fund annually granted by the Legislature of the Province for the support of common schools, and shall be entitled also to a share in all other public grants, investments and allotments for common school purposes now made or hereafter to be made by the, Province or the municipal authorities, according to the, average number of pupils attending such school during ther twelve next preceding months
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* as compared with the whole average number of pupils attending school in the same city, town, village or township.
That is to say, the Chief Superintendent, as directed by s. 106 of the Common Schools Act of 1859, having apportioned all moneys granted or provided by the Legislature for the support of common schools in Upper Canada, and not otherwise appropriated by law, to the several coun- ties, townships, cities, towns and incorporated villages ac- MigtJ. cording to the ratio of population in each as compared with the whole population of Upper Canada, every separate school is entitled to share in the amount thus apportioned, according to the average number of pupils attending such school during the twelve next preceding months, as compared with the whole average number of pupils -attending school in the same city, town, village or township.
Consistently also, s. 22 of the Separate Schools Act of 1863, after requiring the trustees of each separate school to transmit twice annually a correct return of the names of the children attending such school, together with the average attendance during the six next preceding months, directs that the Chief Superintendent shall, thereupon, determine the proportion which the trustees of such separate school are entitled to receive out of the legislative grant, and shall pay over the amount thereof to such trustees. The trustees thus receive the share of the legislative grant to which their separate school is entitled from the Chief Superintendent, and the latter, in his apportionment, cannot apportion moneys otherwise appropriated by law.
In my opinion, the legislative grant which the Chief Superintendent apportions, and of which he subsequently pays a share to the trustees of each separate school, is a general grant for the support of common schools or for common school purposes.
A special grant, say for the rebuilding of a particular school destroyed by fire. would be otherwise appropriated by law, and the Chief Superintendent could not deal with it in his apportionment. Section 20 of the Separate Schools Act places legislative grants on the same footing as municipal grants, and I cannot understand how the latter could be apportioned among the common and separate schools of the municipality unless they also are general grants.
Section 20, as I read it, embodies an undertaking, which is now binding on the Legislature of the Province of Ontario by virtue of s. 93, sub-s. 1, of the British North America Act, that there should be then or thereafter no discrimination against the separate schools with regard to the common school fund and " all other public grants, investments and allotments for common school purposes ". The grants, investments and allotments contemplated must have been of a general character, for " every separate school," as explained above, was entitled to claim a share therein.
If the Legislature, after the passing of the Separate Schools Act of 1863, made such a grant, investment or allotment for common school purposes, no new enactment was required to entitle " every separate school " to a share therein, and in that sense there existed, at the Union, a " right or privilege by law " which could have been enforced before the courts. But, in my judgment, nothing in s. 20 would have entitled " every separate school" to claim a share in a grant made in favour of a particular common school. If, for instance, to refer again to the same illustration, the Legislature had granted $10,000 to rebuild a school in the city of Ottawa which had been destroyed by fire, it is to me inconceivable that "every separate school" in Ottawa could have asserted a claim, under s. 20, to a share in such a grant. Such special grants cannot be said to be grants " for common school purposes " within the meaning of s. 20.
The generality of the apportionment contemplated, I think, indicates the generality of the grants which were to be apportioned among the common and separate schools respectively.
The appellants seem to concede this point.
In their factum, they say:
There is indeed an obvious distinction between a particular common school purpose, and common school purposes generally. It may be further observed that the whole context of s. 20 shews that both the Common School Fund and the other public grants referred to were general in their character, and were made in favour of all common and separate schools, since all of them participated therein. This admittedly was true of the Common School Fund, and I see no reason for doubting that the other public grants contemplated were also general grants.
This is further shewn by the extract from the supply bill of 1865, at page 125 of the Appendix of Statutes. The grants for common schools thereby made were general grants. I think we have here an illustration of the contemporaneous practice at or near the time when these statutes were enacted.
It is said that the Legislature of Ontario may evade the obligation which results from s. 20 by the simple device of making special grants to each public school designated by its name. That a power may conceivably be abused is, however, no reason for denying its existence if it be clearly granted by law. But I do not think we should assume that this Dower to make special grants will be abused. obligation undertaken by the Province, and rendered intangible by s. 93 of the British North America Act, is one of the safeguards stipulated by the religious minorities both of Quebec and of Ontario. It is even more than a legal obligation, it is, if I may say so, an obligation binding in honour. And I cannot assume that it will be deliberately evaded in the manner suggested.
In full agreement with the Chief Justice, I may add that conditions in excess of those laid down by s. 20 of the Separate Schools Act of 1863 cannot, in my opinion, be imposed on the separate schools in order to entitle them to obtain a share in the grants to which the section applies. That section is still in force and cannot be changed by the Legislature. I also agree that any statute which purports to impose such conditions, as well as all statutes and regulations which are in contravention of claims (A) and (B) of the appellants, are ultra vires.
J.-The suppliants, the board of trustees of the Roman Catholic separate schools for school section no. 2 in the township of Tiny, and the board of trustees of the Roman Catholic separate schools for the city of Peterboro, on behalf of themselves and the other boards of trustees of Roman Catholic separate schools in the province of Ontario, claim, by their amended petition of right, (1) Payment of the sum of $736 to the first named board, that being the sum to which, under the Act of the former Province of Canada respecting Separate Schools, c. 5, of 1863, s. 20, the board claims to be entitled for the year 1922 in excess of that which it nT has received.
(2) That it may be declared that certain Acts or parts of Acts of the legislature of Ontario respecting education, which are enumerated, and which were enacted in 1871 and subsequently, prejudicially affect the rights or privileges of the suppliants as claimed to have been conferred by the Separate Schools Act of 1863 and secured by s. 93 of the British North America Act, 1867, and that these provincial enactments* are ultra vires in so far as they affect the rights of the suppliants.
(3) That it may be declared that the suppliants have the right to establish and conduct courses of study and grades of education such as are now conducted in the continuation schools, collegiate institutes and high schools of Ontario, and that any and all regulations purporting to prohibit, or in .any way prejudicially to affect, such right are ultra vires.
(4) That it may be declared that the supporters of Roman Catholic separate schools are exempt ifrom the payment of rates imposed for the support of the continuation schools, collegiate institutes and high schools not established or conducted by the suppliants or other boards of trustees of Roman Catholic separate schools.
(5) Such further or other relief as may be requisite.
The petition was dismissed at the trial, and the judgment was affirmed by the Appellate Division, from which it comes to this Court.
I agree that the appeal should be dismissed and with the reasons for that result which are expressed by my brother Duff, but perhaps I may usefully add the following.
I am satisfied that, even if the procedure by petition of right were available for the trial of the issues which the parties have presented, the suppliants' case must fail in all particulars. I shall consider presently the first claim of the petition, by which it is sought to recover the sum of $736. But, as to the other branch of the case, relating to the field within which a right is said to be secured to the trustees of the Roman Catholic separate schools of Ontario to carry on these schools, one cannot read the Statutes of 1859 and 1863 and the earlier Statutes, which must be read together, without realizing that the trustees are not at large, and that there were powers of regulation existing in the legislature at the time of the Union, and were then carried forward, by the exercise of which the separate schools, equally with the common schools, were to be regulated and governed. The Council of Public Instruction had the comprehensive power, conferred by section 119, clause 4, of the Act of 1859,
And, when, by the Act of 1863, provision was made for the establishment and conduct of the Roman Catholic separate schools, it was declared by s. 26 that they
I have examined carefully the post-Union Statutes and Regulations of which the suppliants complain, but I am unable to perceive that any of these operates prejudically .
to affect any right or privilege which the suppliants, or the class of persons they represent, had by law in the province at the Union. If these provisions had been prescribed by the Council of Public Instruction previously to the Union, there could have been no sound objection to their validity, and the powers of regulation which, within the scope of the Acts of 1859 and 1863, the province possessed at the Union were not reduced by the British North America Act. The denominational schools to which s. 93 (1) refers, so far as they were Roman Catholic separate schools of Upper Canada, were regulated schools, and I do not doubt that the provisions to which the suppliants object are within the powers of regulation which the Province had in 1863, and continued to possess at and after the Union. With regard to the $736, that is claimed as part of the appropriations sanctioned by the legislature in aid of the schools for the year 1922.
But the money appears to have been applied in the manner authorized by the Statutes as expressed, and I can find no sanction for diverting any part of it to a different purpose. There is nothing in the British North America Acts to compel the legislature to make a grant, or to avoid conditions prescribed for earning it, or to prevent a specific appropriation. Therefore, to put cases which appear to be very plain and simple, if the grant be for the sole benefit of one of the common schools, or if it be payable only to those schools which comply with a condition, for example, that they have a specified attendance, or a certain standard of efficiency, it is nevertheless an effective grant, and it would require the authority of the legislature to direct that it shall be shared by other schools, or by those which do not comply with the legislative conditions imposed.
It is said in effect, and this branch of the case depends upon the proposition, that, when such a grant is made, the board of trustees of a Roman Catholic separate school has, by force of the legislation as it stood at the Union, and by the effect of s. 93 (1) of the British North America Act, 1867, a legal right or privilege to enforce against the Provincial Government payment of a share of the grant in the proportion of the average number of pupils attending that separate school to the whole average number attending school in the same city, town, village or township; and, strangely enough, that contention is put alongside of another which maintains that the Special Act, or the Act which imposes the condition, is ultra vires of the legislature. I can understand, although I cannot justify, the latter suggestion. It involves the argument that legislative capacity for the grant in question has been with- But I confess I do not see how it is that, if, as must be the case, the authority of the legislature is necessary to the making of a grant, that grant can operate for a purpose which was not authorized by the provisions which sanction it. The court cannot take the place of the legislature to make a grant. The British North America Act has been productive of some results which perhaps were not anticipated, but it has not, I am persuaded, created anything so difficult of conception as a present legal right to share in a future legislative grant, and still less when the grant is by its terms not shareable, nor capable of distribution in the manner claimed. Therefore in this particular also the petition must fail, whether its object be to enforce payment of the $736, or to obtain a declaration of the invalidity of the grants.
J. concurs with Anglin C.J.C.
J.-The question for determination in this, appeal is whether certain legislation enacted by the Legisture of the Province of Ontario was beyond the powerof the Legislature to enact.
For the appellants it is contended that it was; that it amounted to a contravention of s. 93 (1) of the British. North America Act of 1867. That section reads as fol-lows:- The particular respects in which the appellants contend that their rights were invaded by the impeached legislation, are:- 1. That it takes away the right of the Roman Catholics. to have taught in their separate schools all the courses of study and subjects of instruction which are now beingtaught in the continuation schools, collegiate institutes and high schools of Ontario and that as a consequence thereof the Roman Catholic ratepayers are taxed for the support of these institutions, from, which taxation they should beexempt.
2. That it altered the basis of the annual grants made bythe Legislature for public school purposes in a mannerwhich prejudicially affects the share thereof which eachseparate school is entitled to receive.
The argument on behalf of the appellants on the first branch of the case, briefly put, is as follows: That priorto Confederation the Roman Catholics of Ontario had, bylaw, the right to have their denominational schools managed by trustees of their own faith and choosing; that, as part of the management thereof, the trustees of each separate school had the right to prescribe the courses of study to be taught in their school; that this right was confirmed to them by s. 93 (1), above quoted, and, as a. consequence of such confirmation the Legislature after Confederation was powerless to validly impose any restriction or limitation upon their said right, or to prevent the trustees of such schools from causing to he taught therein all the subjects now being taught in the continuation schools, collegiate institutes and high schools. That these institutions are to-day teaching only the subjects taught in the common schools prior to Confederation, and, as by law separate school supporters are exempt from contributing to the support of common schools, they are exempt from contributing to the support of institutions doing common school work. What we have to ascertain in the first place, therefore, is: Did the trustees of the separate :schools at Confederation have an unqualified and unfettered right by law to prescribe the courses of study to be .taught in their schools. If so the legislation impeached in this action is an infringement of that right and, therefore, invalid.
The rights and privileges in respect to denominational -schools which the Roman Catholics of Ontario had by law at Confederation, were those given to them by the Act of 1863 (26 Vict., c. 5). Section 2 of that Act provided that ,any number of persons, not less than five, and being heads of families and Roman Catholics, might convene a public meeting of persons desiring to establish a separate school for Roman Catholics and for the election of trustees thereof. Section 3 provided for the election of three of such persons present to act as trustees " for the management of such separate school ". The trustees were declared to be a body corporate and to have power to impose, levy and collect school rates from persons sending children to or subscribing toward the support of such schools, but persons paying rates to separate schools were declared exempt from contributing to the support of the common In addition the trustees were to have all the powers in respect of separate schools that the trustees of common schools had and possessed under the Act relating to common schools (s. 7).
It was also enacted that the trustees of separate schools should perform the same duties and be subject to the same penalties as the trustees of common schools (s. 9).
There it is expressly stated to be the duty of the trustees to see that the schools under their chargewere conducted according to the authorized regulations and to see that no unauthorized text books were used.
By s. 119 (4) it was expressly declared to be the duty of' the Council of Public Instruction
Does the authority to make regulations for the " organi-zation, government, discipline and classification " of schools, include authority to make regulations prescribing the courses of study to be taught therein?
The language of the section is, it seems to me, sufficiently wide to cover such authority. Furthermore, both before 1859 and afterwards until Confederation, the Council of Public Instruction had not only been in existence with the duty and authority set out in s. 119 (4), but, acting under that authority, had prescribed the courses of study in the common schools. This shows that prior to Confederation it was understood and accepted that the Council's authority to make regulations for the common schools embraced that of prescribing the studies to be taught therein. Then again the history of the legislation is instructive:
Under the Common Schools Act of 1841 (4-5 Vic., c. 18) it was the duty of the trustees (then called commissioners) :
At that date the local authorities had an unrestricted control over the courses of study. Two years later, however, a restriction was placed upon their powers. By 7 Vict. c. 29 (1843), it was declared to be the duty of the This Superintendent was appointed by the council of the township, town or city.
Under this Act the power to prescribe the courses of study could only be exercised by the joint concurrence the trustees and the local superintendent. But although this Act restricted the control of the trustees there was, as yet, no attempt at central control.
In 1846 (9 Vict., c. 20) it was enacted that the Governor might appoint a fit and proper person to be superintendent of schools in Upper Canada, whose duty it was to be
Section 27 of the Act provides as follows:- A comparision of the Acts of 1843 and 1846 shews that in both Acts the duties of the trustees are set out at length, but, while in the Act of 1843 express authority was given to the trustees to prescribe the courses of study, with the consent of the local superintendent, no such authority appears in the Act of 1846; but in that Act it was declared to be the duty of the trustees to conduct their schools in accordance with the regulations therein provided for, which regulations were those authorized to be made by the Superintendent of Schools for Upper Canada for " conducting all necessary proceedings under this
In 1850 a further step was made by the appointment of the Council of Public Instruction with the powers set out in s. 119 (4), above quoted, which council took the place of the Superintendent of Upper Canada so far as the question under discussion is concerned.
Considering the wide language in which the authority of the Council of Public Instruction to make regulations is expressed, the course of the legislation and the practice prevailing over many years, I am of opinion that it was the intention of the Legislature prior to Confederation, in order to secure greater uniformity, to vest in the Council of Public Instruction authority to prescribe the courses of study for the common schools. That being so and the Roman Catholic separate schools being, by s. 26, expressly made subject to such regulations as might from time to ~ time be imposed by the Council of Public Instruction, the trustees of each separate school at Confederation were in duty bound to see that their school carried out such programme of studies as the Council of Public Instruction might, by virtue of the authority vested in them to make regulations, impose.
For the appellants it was argued that, even if that were so, it was incumbent upon the Council of Public Instruction to exercise their authority and actually make regulations for separate schools before the right of the trustees to prescribe the studies would be displaced and that as, up to Confederation, no such regulations had been made, the effect of s. 93 (1) was to confirm the right of the trustees unfettered by any regulation which might afterwards be made.
In my opinion this contention cannot be supported, for even assuming (which is disputed) that up to Confederation no regulation as to the courses of study in separate schools had been -made by the Council of Public Instruction, the authority of the Council to prescribe these courses by regulation was always there, and the right of the trustees was always subject thereto. It was the right of the trustees to manage their separate schools subject to the right of the Council to step in and make regulations relating (inter alia) to courses of study, that was confirmed by s. 93 (1).
The right of the Council to prescribe the subjects to be taught did not mean (as the appellants seem to fear) that in the exercise of the right the Council could, by forbidding the teaching of subjects beyond those required-say for a Kindergarten class-in effect destroy the separate schools. No authority, in my opinion, was ever given, either to the Superintendent of Upper Canada or to the Council of Public Instruction, to make regulations which would wipe out, wholly or in part, either the common or the separate schools. Prior to Confederation the Legislature could have done this, but after Confederation even the Legislature was powerless to abolish separate schools. The power bestowed upon the Council was to make regulations for the Tar organization, government, discipline and classification of common schools. At Confederation the common schools had a distinct and definite place in the system of education of Upper Canada. They were to furnish the elementary instruction for the pupils of their respective school districts; while the grammar schools were to furnish instruc- As was stated by the Chief Superintendent in a circular issued by him in 1866, the object of the Grammar School law was
In the educational system of Upper Canada the common schools were, therefore, intended to be the primary schools, with the grammar schools as intermediate schools between the common schools and the University. These were their respective fields, and the duty of the Council was to make regulations prescribing courses of study which would enable the schools to effectively provide instruction covering the field which the Legislature intended they should occupy, but not to destroy or limit their usefulness by restricting the field of their operations.
In the actual working out of the system no doubt there were common schools which taught subjects that were intended to be taught in the grammar schools, and, no doubt, some grammar schools gave instruction in subjects covered by the primary course, but this over-lapping was, I think, due to the exigencies of the particular localities. It must not be forgotten that at that time the province was young and in process of being settled. Some settlements grew more rapidly than others, with the result that they required educational facilities beyond those which the common schools were intended to supply, before sufficient provision was made in these settlements for secondary education; while in other settlements, whatever may have been the cause thereof, the grammar schools, instead of confining themselves to the work of intermediate schools, were found to be furnishing instruction in subjects some J of which belonged properly to the intermediate course, n Jwhile others belonged to the elementary course of the common schools. It is not, however, to the manner in which the system worked out in actual practice that we must look for guidance in determining the sphere of operation of the primary and intermediate schools, but to the intention of the Legislature as disclosed in the various Acts. Once we know the limits of the field which it was intended the common schools should occupy, we know the field to be covered by the separate schools, for, in my opinion, in so far as secular education was concerned the separate schools were intended to be simply common schools under denominational management.
The right of the Roman Catholics, however, to have separate schools carries with it, in my opinion, the right to have separate schools of the class of the common schools at Confederation, and covering the same field so far as secular education is concerned; that is to say, primary schools furnishing elementary instruction.
The line of demarcation between the primary and intermediate schools may not always have been definitely drawn or closely adhered to, for the reason that it was at times difficult to keep, or to induce the ratepayers to keep, the educational facilities up to the requirements of the respective localities, but I do not think it can reasonably be said that the separate schools of to-day under the impeached legislation have lost their status as primary schools of the class to which the Act of 1863 intended them to belong.
. The appellants also relied upon s. 79 (8) of the Common Schools Act of 1859, which declared it to be the duty of the board of school trustees of every city, town and village
They contended that " kind and description " in this subsection meant the " grade or character " of the school which would necessarily include the courses of study and branches of education taught therein, and they referred to the decision of the Privy Council in Ottawa Separate Schools Trustees v. Mackell (1), as supporting their conten- In that case their Lordships, at page 71, say:- By the examples given their Lordships have indicated that the " kind," " grade or character " of a school which the trustees have a right to determine refers rather to the class of persons for whose education the school was to provide than to the courses of study to be taught in such The term, in my opinion, would also cover the right to determine whether the school should be a central, branch or ward school.
I am, however, unable to find anything in the judgment which lends support to the appellants' contention that the "grade or character" of the school implies a right to grade in the sense of prescribing the courses of study. The examples given, in my opinion, point to the opposite conclusion.
I am, therefore, of the opinion that the impeached legislation so far as this branch of the case is concerned, does not prejudicially affect any right or privilege guaranteed to the separate schools by s. 93 (1) of the British North America Act, 1867.
This conclusion disposes of the further contention of the appellants that the Roman Catholic ratepayers were not liable to taxation for continuation schools, collegiate institutes and high schools.
The only exemption they had under the Act was that they should not be liable to contribute toward the support of common schools, that is, as I have said, schools furnishing elementary instruction.
The continuation schools, collegiate institutes and high schools under the legislation and regulations in force, all furnish instruction in matters pertaining to secondary education and they cannot, in my opinion, be classed as common schools. The Roman Catholic ratepayers are, therefore, not exempt from taxation for the support of these institutions.
On the other branch of the case the contention of the J. appellants is that the impeached legislation has altered to their prejudice the basis of distribution of legislative grants which prevailed at Confederation.
The right of a separate school to share in the legislative grants is governed by s. 20 of the Act of 1863. That section reads as follows:- The object of this section was to enable the separate schools to obtain a share of the legislative grants for It will be observed that there is no obligation on the legislature to make any grant, but the section provides that such grants as the legislature shall make for common school purposes are to be distributed upon the basis set out in the section.
The difficulty, in my opinion, is not with the basis of distribution but in determining what moneys are to be deemed grants within the meaning of the section. As to the " fund annually granted by the Legislature for the support of common schools ", both respondent and appellants appear to be agreed that it relates to a fund known as the " Common School Fund " concerning which no question arises in this litigation. It is as to the construction to be placed upon the words " all other public grants for common school purposes " that the parties differ. To my mind the question involved, stated briefly, is: Are " public *
* * for common school purposes " to be limited to general grants in which all schools are to share, or do they include grants made for a specific purpose or grants made conditional upon their being earned. The respondent contends that a grant for a specific purpose or a grant made conditional upon its being earned, is not a grant for common school purposes within the meaning of s. 20.
TausvEEs The contention of the appellants as set forth in their THE factum is as follows:- Lamont J It may be that a grant by the Legislature towards the rebuilding of a school that has been destroyed by fire, or something of a like nature, might be construed not to be a grant for Common School purposes, but that a grant to Common, now called Public, Schools, dependent upon their attaining a certain standard of efficiency or equipment or raising a sufficient amount of money to pay expensive teachers, is not such a grant as will entitle the Roman Catholic Separate Schools to share in, is denied by the appellants, and it is submitted such a grant is distinctly a grant for Common School purposes, whether called special or general. It will be observed that under s. 20 the distribution is to be made between the common and separate schools in each city, town, village or township.
At the time s. 20 was enacted the statutory provision governing the apportionment of the legislative grants was s. 106 (1) of the Common Schools Act of 1859, which reads as follows:- 106. It shall be the duty of the Chief Superintendent of Education and he is hereby empowered- 1. To apportion annually, on or before the first day of May, all moneys granted or provided by the Legislature for the support of Common Schools in Upper Canada, and not otherwise appropriated by law, to the several Counties, Townships, Cities, Towns and Incorporated Villages according to the ratio of population in each, as compared with the whole population of Upper Canada.
The sum, therefore, which the Chief Superintendent had for apportionment was not the whole of the moneys voted by the Legislature for the support of common schools, but only such portion thereof as remained after deducting the amounts " otherwise appropriated by law."
Having made the apportionment on the basis of population among the counties, townships, cities, towns and villages, it was then the duty of the Chief Superintendent to determine the proportion of the moneys allotted to each city, town and village or township, which the trustees of the separate schools situate therein respectively, were entitled to receive (s. 22 of the Act of 1863).
As the sum total of the moneys apportioned did not include the portion of the grant "appropriated by law ", that is specifically appropriated by the Legislature, the separate schools were not entitled to share in such portion.
That the separate schools cannot rightfully claim a share of the moneys appropriated by the Legislature to specific purposes seems to me to be clear and is, I think, practically admitted by the appellants in their factum. If, for example, the Legislature were to make a grant to assist in rebuilding a certain J school house destroyed by fire, would the trustees of a separate school in the same township be entitled to a share thereof by virtue of s. 20? In my opinion they would not. If the trustees brought an action to enforce such a claim it would be a good answer thereto that the Legislature had voted the money for a specific purpose and that it could not be properly applied to any other purpose. In such a case a court could not properly direct that the moneys be applied in a manner other than that specifically directed by the Legislature. The same reasoning applies to a grant for apportionment among schools attaining a certain standard of efficiency or equipment, or made payable upon the performance of a condition.
Unless the required standard be attained or the condition performed the grant would not be available for distribution.
I am, therefore, of opinion that by " Public grants * * for Common School purposes"
in 20, the Legislature meant general or unconditional grants in which all schools were to share.
In other words, " Grants * * * for Common School purposes" meant "Grants for the purposes of all Common Schools ". These would include conditional grants for the same purpose once the condition had been performed. But as the authority of the Legislature to say whether or not any grant at all should be made, or to specify the conditions upon which public moneys shall be devoted to school purposes, is supreme, the only limitation imposed by s. 20 upon the exercise by the Legislature of its authority, so far as conditional grants are concerned, is that the separate schools must be given the same right as the common (now public) schools, to perform the conditions and earn the grant. I would dismiss the appeal.
Appeal dismissed. Solicitor for the appellants: Thomas F. Battle.
Solicitors for the respondent: Tilley, Johnston, Thomson & Parmenter.
J See 10.
ACQUIESCENCE - Action by workman under common law-Judgment dismissing same-Second action under Workmen's Compensation Act-Statement of claim alleging res judicata-Attorney ad litem-Appealfrom first judgment-Motion to quash.] Acquiescence in a judgment cannot be presumed and must be unequivocal; it must be made by the party himself or by his attorney specially authorized and it is not binding upon the principal if made by an attorney ad litem acting under his general mandate.-Judgment of the Court of King's Bench
(Q.R. 42 K.B. 499) reversed.
DUBUc v.
CORP. MARSTON ..............
ACTION EN BORNAGE - Right of municipal corporation to exercise-Boundary line between street and contiguous lot-Homologated line not equivalent to bornage-Art. 504 C.C .............
ADMIRALTY
AGENCY-Claim for commission-General or special employment-Promise to pay commission on moneys raised for certain project, in consideration of letters of introduction-Project arrived at different from that originally contemplated-Companies- Payment of dividend without regard to claim for commission against company- R.S.C., 1906, c. 79, s. 82.]
G., president of defendant company, was authorized on its behalf to negotiate and conclude arrangements for raising $1,000,000 or such other sum as might be found necessary for the erection and equipment by the company of an elevator, etc. It was contemplated he should go to England for the purpose.
He discussed matter with plaintiff and, before going to
England, gave plaintiff a letter from the company in which he said "Relative to the project of building grain elevators, etc., in Vancouver, concerning which we have had several discussions
* * *.
I shall be pleased to take advantage of the letters of introduction which you have given me to the following persons and concerns [which were here set out].
In the event of my being successful in raising the money required for my project, from or through any of these con- AGENCY-Continued cerns,
*
*
*agree on behalf [defendant company] to protect you to the extent of 2% commission on the amount of money so raised, said commission to be paid to you as and when the money is received.'
G. did not present the letters of introduction but, through a cable sent at plaintiff's instance, he was met in England by an official of one of the concerns mentioned in the letter, who introduced him to an official of S., with whom eventually an agreement was made by which S. should loan the money required up to $2,500,000, to erect an elevator on an enlarged site, but the elevator and site were to be the property of a new company, 70% of the shares of which were to become the property of S. who should elect a majority of the board of directors. Plaintiff commission, but the defendants alleged that the project ultimately arrived at and carried out between G. and S. was so entirely different (particularly, among other things, as to the holding of control) from the project originally contemplated that it did not come within the terms of the commission agreement.
There was conflicting evidence of what G. had told plaintiff was his project when the agreement for commission was made.-eld, reversing judgment of the Court of Appeal of British Columbia (36 B.C. Rep. 512), Idington and Duff JJ. dissenting, that plaintiff could not recover; the agreement for commission constituted a special employment, and its restricted character precluded him from claiming commission in respect to an advance for the carrying out of the project ultimately arrived at, which was essentially different from that contemplated when plaintiff was engaged.-In arranging for the carrying out of the project arrived at, steps were taken for the transfer of defendant company's assets to a new company m consideration of all the capital shares of the new company, and provision was made for distribution of said shares by way of dividend to the shareholders of defendant company. The agreement with S. was not consummated until after the payment of this dividend. Plaintiff sought to hold the directors of defendant company liable, under s. 82 of the Companies Act, R.S.C., 1906, c. 79, for having paid this dividend without providing for payment of his claim for Idington and Duff JJ., dis- AGENCY-Continued senting, who held defendant company liable to plaintiff, held also that the directors were liable; that plaintiff's claim, if not strictly a debt "existing" at the time the dividend was paid, was a debt "thereafter contracted' within the meaning of s. 82.
- Real estate company being agent for both buyer and seller-Purchase by president of company- Action for loss of profit against client of company-Arts. 1484, 1706, 1735 C.C.]
P., a real estate company, was instructed by D., acting for the owner, to sell two apartment houses in Montreal for $175,000, the buyer to assume payment of $140,000 mortgages and make a cash payment of
$20,000 to $25,000.
C., having bad previous dealings with P., was looked for as a prospective buyer and he finally authorized P. as his agent to make an offer for the property at the price asked for, but comprising, instead of cash, mortgages and real estate estimated at $35,000.
This offer was refused by D. who, at the same time, advised P. that he would reduce the purchase price to $160,000, the cash payment being then $20,000.
The refusal of D. and the change in the conditions of sale were not made known to C; but, later on, S., the president of the company, undertook to accept for himself both the offer of C. to buy and the second offer of D. to sell.
C. subsequently refused to purchase on the terms of his offer, and S., having sold the property for $160,000, sued C. for $15,000 as damages or loss of profits.
Held, that
P., having assumed the mandate of buying the property for the benefit of C., could not accept for itself the second offer of D. without notifying C. of the new conditions of sale and could not have any claim against C. for loss of profit;
and that S., as president of the company, was by law bound to act for it in the performance of its mandate towards C.
and could not therefore have more rights than the company itself.
Surra v. Com- 3 - Agency agreement - Construction-Right to discharge agent- Commission on renewal premiums paid after discharge.] The judgment of the of Alberta, 22 Alta. L.R. 360, was reversed, the Court holding, on construction of the agreement in question, that the defendant insurance company had the right to terminate, as it did, the plaintiff's agency under the agreement, and that the plaintiff was not entitled to commission on renewal premiums paid after such termination.
AGENCY-Concluded
4 - Real estate - Agent the efficient cause of the sale effected- Art. 1084 C.C.-Practice and procedure- Principal action and actions in warranty and sub-warranty-Judgment maintaining them-Appeal defendant in sub-warranty-Res judicata-Appellate court reversing judgment-Appeal to this court- Plaintiffs in warranty and sub-warranty not parties to either appeal-Right of the Supreme Court of Canada to restore judgment of trial judge-Supreme Court Act, s. 51].
A real estate agent who brings his principal into relation with the actual purchaser is the effective cause of the sale, although the principal sells "behind the back of the agent and unknown to him" (Burchell v. Gowrie [1910] A.C. 614); and he is entitled to his commission, although the price paid by the purchaser is less than the sum at first demanded by the principal.-Even when actions in simple warranty are joined to the principal action for purposes of hearing and of judgment, they remain distinct from it and are not merged by the joinder; if the defendant in subwarranty, who intervened in the principal action, alone appeals from a judgment maintaining the principal action and the actions in warranty, confining his appeal to his intervention, this judgment becomes res judicata as to the principal defendant and the plaintiffs in warranty and subwarranty, and the judgment of the appellate court, reversing it as to the parties who did not appeal, is ultra vires and quasi non-existent as to them.-Upon an appeal to this court between the same parties who were before the appellate court, although the principal defendant and the plaintiffs in warranty and in sub-warranty were not made parties to it, the whole judgment appealed from is open for discussion and disposal; and this court can deal with that decision as irregular and ultra vires and give the judgment which should have been given by the appellate court, so as to leave its full effect to the judgment of the trial court, thus reversed illegally and without right. (Supreme Court Act, s. 51.) APPEAL-Appeal to Supreme Court of Canada-Jurisdiction-Title to land-Action to set aside tax sale-Seed Grain Act, Municipal Act, Assessment Act, Man. (R.S.M., 1913, 178, 133, 134).] Plaintiff sued to set aside a tax sale of its land by defendant municipality
(in Manitoba), claiming that it was illegal because made for default in payment of notes given to the municipality by the plaintiff's tenant for moneys advanced to the tenant for seed grain, and for the cost of a well bored for the tenant, on the land. APPEAL-Continued
The advances for seed grain and the cost of the well amounted to $530.
The land was worth over $2,000.
Plaintiff's action was begun after one year from the day of the sale.
The action was dismissed by
Mathers C.J.K.B.
(35 Man. R. 331)
whose judgment was affirmed by the
Court of Appeal for Manitoba (35 Man.
R. 551).
Plaintiff (whose application for leave to appeal was refused by the Court of Appeal) appealed de plano to the
Supreme Court of Canada, and defendants moved to quash the appeal for want of jurisdiction.-Held, that the motion to quash the appeal should be refused;
whether plaintiff still retained its right to redeem, and whether, through the effect of the "curative" section of the Assessment Act (Man.) it was precluded from obtaining the relief sought, were questions to be considered and were properly matters in controversy; the application to the case of the relevant sections of the
Municipal Act and the Assessment Act was a point in dispute- it was therefore apparent that, as a result of the litigation, when all questions raised on both sides had been considered and according as the respective contentions were held well or ill founded, plaintiff's title might be affirmed or denied to lands the value of which exceeded the amount required to found jurisdiction for appeal.-Idington
J. held that the right of appeal depended on whether or not the right of redemption still existed, and as this was not settled on the facts before the court the motion should be enlarged to be disposed of on the argument of the appeal.
V. OF
................
2 - Special to appeal Supreme
Bankruptcy Act (D., 1919, c. 36)-Whether hotelkeeper a "trader" within s. 47 of Act
Respecting Landlord and Tenant, N.B.
(C.S. N, B
1903, c. 153, as amended 1924, priorty in New Brunswick under assignment in bankruptcy. IN
HOTEL
3-Leave to appeal to Supreme Court of
Canada-Bankruptcy Act (D) 1919, c. 36.]
The competency of the Supreme Court of
Canada in bankruptcy proceedings is to be looked for exclusively in the Bankruptcy Act and is not controlled by the sections of the Supreme Court Act dealing with its ordinary jurisdiction.-Leave to appeal to the Supreme Court of Canada will be granted from a judgment of an appellate court in proceedings under the
Bankruptcy Act, when) that judgment, affecting the jurisdiction of the courts under that Act, is of great importance and of general interest and there does not
APPEAL-Continued appear to be any jurisprudence on the question.-The question to be decided in the present appeal is one of jurisdiction as to whether the Superior Court of the province of Quebec, sitting in Montreal, is competent to hear and decide a petition for receiving order under the Bankruptcy Act made by a resident of Montreal against a debtor residing and carrying on business in the town of Roberval, thus involving the interpretation of par. (b) of subs. 4 of s. 4 of the Bankruptcy Act.
M cNULTY........................ - Jurisdiction - Election petition - Irregularity-Dismissabby one judge before trial-Dominion Controverted Elections Act, as amended by 5 Geo. V, c. 13.] Supreme Court of Canada has no jurisdiction to entertain an appeal -from a judgment rendered by a judge of the Superior Court in Quebec dismissing an election petition for irregularity upon a motion presented before trial.-Under the Dominion Controverted Elections Act, no appeal lies to the Supreme Court of Canada except from the final judgment or decision of the judges who have tried the petition.
- Jurisdiction - Final judgment - Amount in Controversy-Supreme Court Act, ss. 2 (e), 36, 39 (a).] The insured under a fire insurance policy, alleging that the insurer had elected, under a provision in the policy, to reinstate the property destroyed instead paying money compensation, sued the insurer for $2,255 damages for failure to reinstate, and, alternatively, claimed the same sum as money compensation.
The insurer, denying that it had elected to reinstate, and insisting that the insured's only right was to recover money compensation, applied for the appointment, pursuant to the British Columbia Fire Insurance Policy Act and Arbitration Act, of an arbitrator, by reason of the insured's failure to appoint one. Hunter C.J. B.C. dismissed the application, but his order was set aside by the Court of Appeal ([1927] 2 W.W.R. 456) which directed a reference to appoint an arbitrator and, by a separate order, stayed the insured's action.
The insured appealed to the Supreme Court of Canada, and the insurer moved to quash the appeal for want of jurisdiction.-Held, the judgment of the Court of Appeal was a final judgment within s. 2 (e) of the Supreme Court Act it impliedly negatived the existence of the insurer's obligation to effect a reinstatement and the insured's right to recover damages for its alleged failure to discharge its obligation in this regard; while the judgment stood, those issues were conclusively determined against the insured; it determined a substantive right APPEAL-Continued of the insured in controversy in a judicial proceeding.
Moreover, it was a direct, and not a merely collateral and consequential, effect of the judgment that the insured's right to sue for and recover damages alleged to exceed $2,000 was denied. The Court had, under ss. 36 and
39 (a) of the Supreme Court Act, jurisdiction to entertain the appeal.
The case was within the principle of Shawinigan
Hydro Electric Co. v. Shawinigan Water &
Power Co., 43 Can. S.C.R. 650.
BULGER v. HoME Co ...........
6-Jurisdictson-Matter in controversy- Action for damages for breach of contract- Contract price over
$2,000-Damages claimed below $2,000-Supreme Court Act, s. 37
(b).] The appellants sued for breach of a contract for the delivery of pasteurization machines, the contract price being $2,250, and the appellants claiming the sum of $1,875 as damages for such breach and the annulment of the contract.-Held, that there was no jurisdiction in the Supreme Court of Canada to entertain the appeal, as the only substantial matter in controversy was the appellant's right to recover damages amounting at the most to $1,875. DIONNE
7-Evidence received without objection at trial put aside by appellate court-Letter signed intended to embody terms of deposit of money-inadmissibility of parol evidence to contradict, vary or explain........ .I
8-Appeal case-Failure to print exhibits in chronological order-No costs allowed for preparing and printing case-Rule 12,
- Perjury -Ground of appeal- No evidence as to accused having been a witness-Motion for leave to appeal to
Supreme Court of Canada under s. 1024 a
Cr. Code-Alleged conflict with decision in
Rex v. Drummond (1905) 10 Ont. L.R. 546
-Production at the trial of the judgment in the civil action..................
Trialjudge's estimate of witnesses- Reversal of findings................
See REAL 1.
11-Reversal of concurrent findings of fad - Municipal corpora-.
tion-Highway-Icy condition of sidewalk-Injury to pedestrian-Liability of municipality - "Gross
Consolidated Municipal Act, 1922, Ont.
72, 8. 460 (3)
APPEAL-Concluded
Criminal law-Leave to appeal to Supreme Court of Canada-Court of appeal judgment conflicting with judgment of another court of appeal in like case-- Both judgments not necessarily in similar cases, but upon similar questions of law- Equal division of court of appeal-Section 1024a Cr. 284 Appeal from Exchequer Court- Jurisdiction-Supreme Court Act, a. 38- The Patent Act (D.), 13-14 Geo. V, c. 23, s. 40-Owner of patent ordered to grant license to make and use machine covered by patent, at fixed license fee-Basis in fixing license fee.....................
14-Findings of courts below on oral testimony.........
............
15-Criminal law-Appeal to Supreme Court of Canada-Cr. Code, ss. 1013 (5), 1024-Difference of opinion in Court of Appeal-Absence of requisite direction under s. 1013 (5)-Misdescription of count in judge's charge to jury............ 16-Interference on appeal with jury's findings......................... 17---Criminal law-Leave to appeal- Privileged communication as between solicitor and client-Conflict with judgment of another court of appeal-S. 1024a Cr. C..... 18---Criminal law-Leave to appeal- " Knowingly"-Burden of proof-Conflict of decisions-S. 1024a Cr. C.-Customs Act, (R.S.C. (1906), c. 48, s. 219 (as enacted by 15-16 Geo. V, c. 39), and s. 264)............................. 541 Principal action and actions in warranty and sub-warranty-Judgment maintaining them-Appeal by dependent in sub-warranty-Res judicata-Appellate Court Act, a. 598 20-Criminal law-Conviction on charge of using means to procure abortion (Cr. Code, s. 303)-Judge's charge to jury- Misdirection in a material matter-Appeal -Onus of Crown-Miscarriage of justice (Cr. Code, e. 1014 (1) (c) )........... 21-See 1.
ARBITRATION-Agreement by counsel to refer to arbitration-Counsel's authority- Resulting award not authorized by a reference to which counsel empowered to consent-Power supplied to Hydro-Electric
Power Commission of Ontario-Dispute as to price-Suit against Commission - Attorney General's consent-Power Commission Act, R.S.O., 1914, c. 39, s. 16. 251
See ELECTRIC POWER.
ASSESSMENT AND TAXATION - Sale for unpaid taxes-Defects in-Person interested-Absence of notice to-Effect of curative section 44a, Tax Recovery Act,
1919.]
A sale and transfer of land for unpaid taxes under the Alberta Tax
Recovery Act of 1919, even though made prior to January 1st, 1924, can be successfully attacked on the ground that the notice required by s. 42, (amended by
1921, c. 25, s. 13) had not been sent to a
"person interested" in the land (in this case a mortgagee), as the curative provision in that Act, s. 44a as enacted by
1923, c. 5, s. 26c, does not then apply.- The failure to give this notice is a defect so fundamental that it rendered the transfer ineffectual.
The statute makes the giving of such notice a condition precedent to the exercise of the power to execute and deliver a transfer, and section 44a contains no provision to cover the absence of the notice.-A "person interested" in land sold for taxes has an absolute right to the formal notice prescribed by the Act, even if that person had knowledge, before the expiration of the delay for sending the notice, that the land had been so sold.
Toronto v. Russell, [19081 A.C. 493 dist.- Judgment of the Appellate Division (22
Alta. L.R.
reversed.
2-Mining rights and surface rights acquired and held by same corporation under separate grants and titles-Assessment by township municipality-Sale for taxes- Validity-Title of purchaser-Mining rights, as such, not assessable-Description in tax deed-Lost assessment rolls-Presumption as to description of property assessed - Ambiguous description - Presumption as to what property assessed- Falsa demonstratio-Right of township to assess land including minerals-Acquisition, under tax deed, of land including minerals-Assessment Act, R.S.O., 1914,, c. 195-Land Titles Act, R.S.O., 1914.
c. 126.]
Grantees under two Ontario
Crown grants, one of the mines, minerals and mining rights in certain land, and the other of that land without mines and minerals, transferred their rights in the properties to plaintiff. The mining rights surface rights transferred separately, and were registered separately, under The Land Titles Act, Ont., in plaintiff's name.
The property was
ASSESSMENT AND TAXATIONwithin defendant township's territory, and it imposed municipal taxes in respect thereof, and, certain taxes remaining unpaid, it effected a sale by auction and gave the purchaser a tax deed. This recited that a warrant had issued commanding the treasurer "to levy upon the land hereinafter mentioned for arrears of taxes due thereon," and that the treasurer had sold "that certain parcel or tract of land or premises hereinafter mentioned" on account of arrears of taxes "alleged to be due thereon," etc., and purported to grant "all that certain parcel or tract of land and premises containing 20 acres, more or less, being composed of: the north half of parcel number 2831 in the register
*
*
* and is described as follows: situate in the township of Bucke *
*
* namely: the north half of the north-east quarter of the south half of lot number 14 in the first concession *
*
* containing by admeasurement 20 acres more or less."
Parcel 2831 in the register comprised only the mining rights. The assessment rolls were lost by fire. Plaintiff asserted right of ownership and asked to have the tax deed set aside.- Held, it must be presumed, in the absence of the assessment rolls, that the description in the deed conformed to that of the property assessed (that the property sold was that assessed, was also the clear purport of the deed's recitals); this description was ambiguous, as parcel 2831 mentioned comprised only the mining rights, while the particular description of the land which followed was a description of the land in which such mining rights would, if not excepted, be included; the mining rights, as such, were not assessable; but the township could assess the land, including the underlying minerals; the description of the subject of assessment being ambiguous, the presumption is that the township acted within its jurisdiction and assessed what it had power to assess; while the surface rights and mining rights were severable, and had, since the Crown grants, been dealt with as separate hereditaments, nevertheless, ownership of both having vested in the same corporation plaintiff), there could be valid assessment of the land, including the minerals, which The Assessment Act, s. 40 (5), expressly contemplates; to make such assessment was apparently intended, and the description of the land, without exclusion of minerals, included the minerals therein contained; the assessment should, therefore, be treated as assessment of mineral land, and the words "parcel number 2831", etc., might be disregarded as falsa demonstratio, or as inserted by mistake; without these words, there was sufficient description of the subject of assessment, and it is not material in what part of the description the falsa demonstratio occurs
(Broom's Legal Maxims, 95h Ed., p. 404;
Watcham v. Attorney General of the East
Africa Protectorate, [1919] A.C.
533);
construing the tax deed according to the same rules, and in conformity with its recitals, the purchaser acquired the land including the minerals.-Judgment of the of Ontario (58 Ont. L.R. 453) reversed.,
Quaere, whether merger is an appropriate term to describe the effect of the ownership of what had been separate hereditaments in the same area coalescing in the same person.
TowwsHiP or BucKE
MINING Co., LTn.........
3-Sale of land for taxes-Action to set aside sale -Land admittedly liable for portion of the taxes-Assessment Act,
R.S.M. 1913, c. 134, s. 199, as amended
(as now found in Consolidated Amendments, 1924, c. 134, s. 198)-Alteration of name on collector's roll invoked as irregularity-Onus of proof as to circumstances of alteration.] In an action to set aside a tax sale on the ground that certain amounts (claimed under the Man. Seed
Grain Act for advances of seed grain, and under s. 473 of the Man. Municipal Act for boring a well) were wrongfully added on the rolls to the taxes properly payable, it was held (affirming, in the result, judgment of the Court of Appeal for
Manitoba, 35 Man. R. 551) that the action was rightly dismissed, in view of s.
199 of the Assessment Act, R.S.M. 1913, c. 134, as amended (as now found in s. 198 of c. 134 of the Consolidated Amendments, 1924), over a year having elapsed since the sale and the treasurer's return having been made to the district registrar.
-If the land was liable for some portion of the taxes for which it was sold, the ground, left open for setting aside a tax sale under said s. 199, as amended, "that the land was not liable for the taxes, or any portion thereof, for which the same was sold" is inapplicable.-History of the legislation reviewed; Can. Nor. Ry. v.
Springfield, 30 Man. R. 82, referred to.- Where on the collector's roll it appears that a name has been substituted for that of another, as owner of land, the onus of showing that the change was improperly made rests upon the person invoking it as an irregularity.
HOUGH- CORP. LTD. v. R. M. or RiT- 4- Sales tax-Job printer-Contract- Lease and hire-Sale-Special War Revenue
Act (1915), 5Geo. v, c. 8; (1922) 12-13 Geo. V, c. 47; (1923) 13-14 Geo. V, c. 70.] The transactions of a job printer, who contrats to deliver printed business cards,
ASSESSMENT AND TAXATIONlabels, order forms, price lists and statements, on material supplied by him, constitute sales by a producer within the meaning of the Special War Revenue Act (1915) and its amendments.-Whether a job printer may or may not be styled a manufacturer or a producer according to the conception of these words in the commercial or ordinary sense, intention of Parliament to include a job printer in the class of producers for the purposes of the sales tax is clearly indicated by the wording of the Act and its amendments.-The King v. Crain Printers Ltd. ([1925] 3 D.L.R. 291) approved. ExcIsE THE LTD ......... 5-Action to set aside tax sale-Appeal to Supreme Court of Canada-Jurisdiction - Title to land.................... - Direct indirect taxation - "First purchaser"- Validity of Fuel-Oil Tax Act, (B.C.), 1923, c. 71-B.N.A. Act, 1867, s. 92 (2).. 185 7 - The Mine Owners Tax Act, 1923, c. 33, Alta.-Indirect taxation- Ultra 8 - The Alberta Act 1905, c. 3) s. 17-Constitutional validity-Review of constitutional legislation - Dominion powers - Variation of s. 93 of B. N.A. Act, 1867, in its application to Alberta -Education -Separate schools-Appropriation and distribution of moneys for schools................. 9 - Roman Catholic separate schools in Ontario -Rights as to courses of study and grades of education in such schools-Rights at Confederation-B.N.A. Act, s. 93 (1)- Validity of Ontario statutes and regulations-Taxation for support of continuation schools, Collegiate Institutes and high schools-Rights of separate schools as to share in legislative grants .......... AUTOMOBILES
BANKRUPTCY - Bankruptcy of tenant -Extent of landlord's right to priority over other creditors-Bankruptcy Act (D., 1919, c. 36), s. 52, as enacted 1923, c. 31-New Brunswick Act Respecting Landlord and Tenant, ss 47 48, 49, 51, as enacted 1924, c. 30-"Trader'-"Retail merchant"- "Ostensible occupation."] D. conducted and managed an hotel, and in the outer BANKRUPTCY-Concluded lobby thereof conducted a cigar stand and sold cigars, cigarettes and tobacco, both to guests and to the general public, and at the rear of the premises he sold beer to the general public at a bar. D. made an assignment in bankruptcy. His landlord had previously issued a distress warrant for months rent.-Held, D. was a
"retail merchant" and also a "person who, as his ostensible occupation, bought and sold merchandise ordinarily the subject of trade and commerce," and was, therefore
(under either of such descriptions), a
"trader" within s. 47 of the New Brunswick Act Respecting Landlord and Tenant, as enacted 1924, c. 30, and, therefore, under the application of s. 48 of said Act and of s. 52 of the Bankruptcy Act (D.
1919 c. 36) as enacted 1923, c. 31, his landlord's priority for rent over other debts was limited to three months rent accrued due prior to the date of the assignment.-Judgment of the Supreme Court of New Brunswick, Appeal Division, reversed, and judgment of Barry C.J.
restored.-A person may be held to be a
"trader" although he has, at the time he carries on his trading, another occupation which is his chief means of livelihood;
and, it being shown that D. sold cigars, etc., to the public generally, the quantum of his trading therein was immaterial in determining whether or not he was a
"trader."
Cases reviewed.-An "ostensible occupation" is the employment of a person's time in a certain calling or pursuit so openly and conspicuously that the members of the public coming in contact with him would know that he was following that calling or pursuit.
It does not import an exclusive, nor a chief occupation, but it must be in the generai way of business and not an intermittent or spasmodic employment.
QUINN v. ..........
2 - Special leave to appeal to Supreme
Bankruptcy Act (D., 1919, c. 36)-Whether hotelkeeper a trader within a. 47 of
Act Respecting Landlord and Tenant, N.B.,
(C.S.N.B., 1903, c. 153, as amended 1924, priority in New Brunswick under assignment in bankruptcy................
3-Appeal-Leave to appeal to Supreme
Court of Canada-Bankruptcy Act (D.)
1919, c. 36.....
...............
BANKS AND BANKING - Suspension of payment at head-office-Posterior transactions by local branch-No knowledge of suspension by local officials-Validity.]
Transactions carried on in the ordinary course of business by officials of a local
BANKS AND BANKING-Concluded branch after a bank had suspended payment at its head-office, but before the officials of the branch have had knowledge of such suspension, are valid.- Judgment of the Court of Appeal :[19261 (3 W.W.R. 305) aff.
v. HoME CANADA.................. 2 - Unfinished product - Loan by a bank-Valid lien-Sale-Measuring and stamping by purchaser-Transfer of ownership-Bank Act, s. 88-Arts. 1026, 1027, 1474, 1488, 1489, 1684, 2268 Under section 88 of the Bank Act, a bank, as security for advances made, may acquire a lien on "products of the forest" as defined by section 2, subsection (m) or on goods, wares and merchandise, as defined by section 2, subsection (g), to be manufactured, or in process of manufacture, although the finished product will come into existence only after the process of manufacture is completed.- Therefore, the owner of a timber license, who proposes to go into the forest to cut down the trees and transform them into what is commercially known as pulpwood and who may require financial assistance from a bank before the pulpwood is produchd in its commercial form, can give the bank which assists him a valid lien on the finished product, although not in existence as such at the time of the loan.-In the present case, the measuring and stamping of the wood done in the forest by the purchaser, while the wood remained in the possession of the seller, did not amount to a sufficient determination of the subject matter of the contract or to a taking of actual possession of the wood, so as to enable the purchaser to claim ownership of the wood against a valid lien obtained by a bank for advances made to the seller.-To determine the effect of a lien acquired by a bank under section 88 of the Bank Act, the provisions of that Act, and not those of the Quebec Civil Code, should be looked at.-No opinion expressed whether a purchaser in good faith of particular goods, in the usual course of business, such as a table bought from a furniture manufacturer or dealer, acquires a valid title as against a bank's lien.-Judgment of the Court of of King's Bench (Q.R. 43 K.B. 435) aff. Co. LA CANADENNE NATIONALE............ BARRISTERS AND SOLICITORS - Agreement by counsel to refer to arbitration-Counsel's authority-Resulting award not authorized by a reference to which counsel empowered to consent- Power supplied to Hydro-Electric Power Commission of Ontario-Dispute as to price - Suit against Commission - Attorney-General's consent-Power Commission Act, R.S.O., 1914, c. 39, a. 16 251 DEX
2 - Acquiescence by Attorney ad litera
................
3 - Privileged communication as between solicitor and client.................
BILLS OF EXCHANGE AND
PROMISSORY NOTES
BILLS OF SALE AND CHATTEL
MORTGAGES
BONA VACANTIA.............
BONDS - "Floating charge" created by company to secure payment of its bonds- Requirement of registration under Bills of
Sale and Chattel Mortgage Act, Ont.
(R.S.O., 1914, c. 135) ..............
2- Bonds (Guarantee).
CARNAL KNOWLEDGE - CASES
Adams v. London improved Motor Coach
Builders Ltd. ([1921] 1 K.B. 495) applied
................
See CosTS
Admiralty Commissioners v. SS. Volute
([1922] 1 A.C. 129) ref ......
93, 304, 305
Allen v. The King (44 Can. S.C.R. 331)
.............
437, 633
See CRIMINAL 5, 10.
Anglo- Newfoundland Development Co. v.
Pacific Steam Nay. Co. ([1924] A.C. 406)
Archer v. Hudson (7 Beav. 551) applied
.................................
Atty.-Gen. v. Trustees of the British
Museum ([1903] 2 Ch. 598) ref....... 459
Att.-Gen. of British Columbia v. At.-Gen.
of Canada (14 App. Cas. 295) ref ... .136,
Al.-Gen. for Ontario v. AU.-Gen. for
Canada ([1896] A.C. 348) ref ........
Att.-Gen. of Ontario v. Mercer (8 App. Cas. 767) ref..................... Barrett v. Winnipeg (19 Can. S.C.R. 374) Bentsen v. Taylor ([1893] 2 Q.B. 274) ref. ................................
Black v. Ottoman Bank (6 L. T. N. S. 763) Booth v. McLean ([1923] S.C.R. 243) See WIFE 3. Boys, In re (L.R. 10 Eq. 467) ref.... Brophy v. At. Gen. of Manitoba ([1895] A.C. 202) ref..................... Burchell v. Gowrie ([1910] A.C. 614) ref ......... Burton v. Gray (8 Ch. App. 932) ref. ...... ........... Canadian Bank of Commerce v. Swanson Man. R. 127) ref.............. Canada National Fire Insur. Co. v. Hutchings ([1918]
applied .................................. Can. Nor. Ry. v. Springfield (30 Man. R. 82) ref........................... Can. Pac. Ry. Co. v. Frdchette ([1915] A.C. 871) ref..................... Clyde Navigation Trustees v. Laird (8 App. Cas. 658) ref ................ Cockburn v. Smith ([1924] 2 K.B. 119) Davis v. London and Provincial Marine & Ins. Co. (8 Ch . D. 469) ref .......... Davis v. The King ([1924] S.C.R. 522) ...
..............
Dobie v. The Church Temporalities Board App. Cas. 136) ref ..............
Duncan, Fox & Co. v. North & South Wales Bank (6 App. Cas. 1) ref ...... Dunster v. Hollis ([1918] 2 K.B. 795)
Ehrensperger v. Anderson (3 Ex. 148)
Equitable Fire & Accident Office Ltd. v.
The Ching Wo Hong ([1907]
A.C. 96)
Ewer v. Ambrose (3 B. & C. 746) ref..
See SHIPPING.
Farr v. Motor Traders Mutual Ins. Soc.
Ltd. ([1920] 3 K.B. 669) ref ........
See FIRE
Forman v. Union Trust Co. ([1927] S.C.R.
1) ref..........................
Gouin v. The King ([1926] S.C.R. 539)
ref...........................454,
See LAw 7,
G.T.R. v. Anderson (28 Can. S.C.R. 541)
Graves v. Legg (9 Ex. R. 709) ref ....
Gray v. Smith (43 Ch.
Griffith v. Owen ([1907] 1 Ch. 195) applied
. ..... .
Hargraves v. Hartopp ([1905]
1 K.B.
472) dist.....................
See TENANT 1.
Heartley v. Nicholson (L.R. 19 Eq. 233)
Hillyer v. Governors of St. Bartholomew's
Hospital ([1909] 2 K.B. 820) dist.... 226
Hunter v. Carrick (10 Ont. A.R. 449)
Jacker v. International Cable . Co.
T.L.R. 13) ref....................
Johnston v. Wade (17 Ont. L.R. 372)
exp. and disc.....................
King, The, v.Beaver (9 Can. Cr. Cas. 415)
...................
See LAw 9.
King, The, v. Bellos ([1927] S.C.R. 258)
See LAw 5.
King, The, v. Crain Printers Ltd. ([1925]
3 D.L.R. approved............
King, The, v. Macdougall (15 Can. Cr. Cas. 466) dist..................
King, The, v. Schrobounst ([1925] S.C.R. 458) ref.......................
Knight v. Grand Trunk Pacific Ry. Co. ([1926] S.C.R. 674) disc........... Knowlton v. Hydro-Electric Power Commission of Ontario (58 Ont. L.R. 80) commented on.................... Laporte v. C.P.R. ([1924] S.C.R. 278) Levy v. Green (5 Jur. N.S. 1245) ref. . 326 Lewis v. Hughes ([1916] 1 K.B. 831) Liquidators of the Maritime Bank of Canada v. Receiver General of New Brunswick (11892] A.C. 437) ref ............... Littledale v. Liverpool College ([1900] 1 Ch. 19) ref..................... Lord. Strathcona SS. Co. v. Dominion Coal Co. A.C. 108) ref ....... MacTaggart v. Watson (3 Cl. & F. 525, at 542, 543) applied............... Makin v. Att.-Gen. for New South Wales Manitoba Assur. Co. v. Whitla (34 Can. S.C.R. at 206) not followed..... 481 Manners v. Pearson ([1898] 1 Ch. 581) Maritime Coal, etc., Co., v. Herdman (59 Can. S.C.R. 127) dist .......... Marshall v. Taylor ([1895] 1 Ch. 641) Mash v. Darley
K.B. 1226) McKittrick v. Byers (58 Ont. L.R. 158) commented on.................... Mersey Docks and Harbour Board Trustees v. Gibb (1 Eng. & Ir. App. 93) foll. ........ Mines Case (1 Plowd. 310) ref ..
.458, 460
Newton v. Charlton (10 Hare 646) ref ....
.................................
Pearl v. Deacon (1 De G. & J. 461)
Port Coquitlam (Mun. of) v. Wilson
([1923] S.C.R. 235) ref.............
Prosko v. The King (63 Can. S.C.R. 226)
258, 437
See 3, 5.
Railway Passengers Assur. Co. v. Standard
Life Assur. Co. (63 Can. S.C.R. 79)
R. v. Archbishop of Canterbury ([1903]
1 K.B. 289) ref..................
R. v. Baskerville ([1916] 2 K.B. 658)
R. v. Christie ([1914] A.C. 545) ref.. 442
R. v. Drummond (10 Ont. L.R. 546)
R. v. Feigenbaum ([1919] 1 K.B. 431)
R. v. Gray (68 J.P. 327) ref ......... 442
R. v. Hodgson (3 C. & P. 422) ref.. 166
R. v. Prentice and Wright (7 Alta. L.R.
479) dist........................
See LAW 8.
Richards v. Delbridge (L.R. 18 Eq. 11)
Ryan v. McGregor (58 Ont. L.R. 213)
overruled unless distinguishable....
Rylands v. Fletcher (L.R. 3, H.L. 330)
rule in held not applicable .........
Saluas v. Vassal (27 Can. S.C.R. 68)
See WIFE 3.
Sanitary Commissioners of Gibraltar v.
Orfila (15 A pp. Cas. 400) dist ......
Seddon v. Smith (36 L.T.R. 168) ref. . 149
Severn and Wye and Severn Bridge Ry. Co., In re ([1896] 1 Ch. 559) ref.... 421 Seymour v. Osborne Wallace 516) Shawinigan Hydro-Electric Co. v. Shawinigan Water & Power Co. (43 Can. S.C.R. 650) ref................... Shipwright v. Clements (19 W.R. 599) Smith v. Wheatcroft (9 Ch. D. 223) ref. Socidid des Hdtels le Toquel Paris-Plage v. Cummings ([1922] 1 K.B. 451) ref.. 421 Spaight v. Tedcastle (6 App. Cas. 217) SS. Hontestroom v. SS. Sagaporack et al (136 L.T. 33) ref .................
Strong v. Bird (L.R. 18 Eq. 315) dist.... Tatam v. Haslar (23 Q.B.D. 345) ref. Toronto v. Russell ([1908] A.C. 493) Toronto Railway Co. v. City of Toronto ([1906] A.C. 117) ref .............. Trusts and Guarantee Co. v. The King (54 Can. S.C.R. 107) foll. .......... 136 Volute, The ([1922] 1 A.C. 129) ref.93, 304, Walker v. Midland Ry. Co. (55 L.T.R. 489) disc......................... Watcham v. Att.-Gen. of the East Africa Protectorate ([1919] A.C. 533) ref... . 404 Wayne Mfg. Co. v. Coffield Motor Washer (227 Fed. Rep. 987) ref ........ Western Assur. Co. v. Harrison (33 Can. S.C.R. 473) ref...................
Whitcher v. Hall (5 B. & C. 269) ref. Whittemore v. Cutter (1 Gallison 429) CASES-Concluded
Wilson and Scottish Ins. Corp. Ltd., in re
([1920]2 Ch. 28) ref...............
See FIRE 1.
Woolley v. Att. Gen. Of Victoria (2 App.
Cas. 163) ref....
...............
Wright v. Beckett (1 M. & R. 414) ref. 93
CHATTEL MORTGAGE - "Floating charge" created by company to secure payment of its bonds-Requirement of registration under Bills of Sale and Chattel
Mortgage Act, Ont. (R.S.O., 1914, c. 135.1
A trading company (formed under the
Dominion Companies Act), to secure payment of its bonds, by a "trust deed"
purported
"sell, assign, transfer, hypothecate, mortgage, pledge and set over and charge" unto a trustee, certain land, and all its movable assets for the time being, both present and future, in the province of Ontario, subject to the proviso that the "floating charge" created should not prevent the company, until the security should become enforceable and the trustee should have demanded or become bound to enforce it, dealing with the subject matter of the
"floating charge" in the ordinary course of its business and for the purpose of carrying same.
instrument registered in the land registry office, and was filed with the Secretary of State as required by the Dominion Companies Act, but was not registered under the Ontario
Bills of Sale and Chattel Mortgage Act
(R.S.O., 1914 c. 135), and, for want of such registration, was attacked on behalf of the company's creditors.-Held (Anglin C.J.C. and Rinfret J. dissenting)
that the instrument was a "mortgage"
within the meaning of the said Bills of
Sale and Chattel Mortgage Act, and required registration under it.-Judgment of the Appellate Division, Ont. (59
Ont. L.R. 293) reversed on this point.- The nature and effect of a "floating charge"
discussed, with references to authorities.-Per Anglin C.J.C. and Rinfret J. (dissenting): If the Act had been originally enacted in its present form and terms, a floating charge might be deemed to fall within its operation, as being within the mischief it was designed to meet; but, according the proper consideration to the history and development of the statute, a floating charge (within which term the instrument came) cannot be said to be a "mortgage" or a "conveyance intended to operate as a mortgage" within the meaning of the Act.
History of the legislation reviewed, with references to cases; Johnston v. Wade
(17 Ont. L.R. 372) explained and discussed.
LTD.........
CHILD-Habeas corpus-Minor child in care of third person-Rights of parents- Child 14 years of age-Right to choose where to live-Lack of restraint-Interest of the child-Judicial discretion ........ 2- Presumption of knowledge of the law.......
...................
CIVIL CODE - Art. 504 (Settling boundaries) ........
........
See CORPORATION 2- Art. 540 (Right of way) ........ 3- Art. 599 (Succession).......... 101 4- Art. 779 (Gifts inter vivos) ...... See WIFE 1. 5-Art.
823 (Gifts by contract of marriage)............................. See WIFE 2. 6- Art. 1014 (Interpretation of contracts)......... ..
........... 7-Art.
1025 (Contract for alienation) ...... 8-Art.
1026 (Effect of contract; thing to be delivered uncertain or indeterminate) 605 9- Art. 1027 (Effect of contract).... 605 Art. 1053 (Responsibility for damage).............................. 575 11-Art. 1066 (Breach of obligation; rights of creditor) .................. 12-Art. 1084 (Conditional obligation becoming absolute)................. 13-Art. 1085 (Conditional obligations) ........... 14- Art. 1106 (Joint and several obligations).......................... 68 15-Art. 1117 (Division of joint and several obligation among co-debtors) ... 16-Art. 1118 (Joint and several debt; recovery from others by co-debtor who has paid)........
.....
.......... See COoWN 1.
17-Art. 1138 (Extinction of obligations) ...............
. ..
.
.......... 18-Art. 1265 (Marriage covenants) 193 CIVIL CODE-Concluded
19-Art. 1301 (Obligations contracted by wife).........................193,
See WIFE 2,
Art. 1474 (Sale)............. 605
21-Art. 1484 (Purchasing of property;
agents, etc.)....................
22- Arts. 1488, 1849 (Sale) .......
23-Art. 1550 (Right of redemption) 243
24-Arts. 1571, 1572, 1577 (Sale of debts)............................
25-Art. 1684 (Work by contract; loss before delivery)....................
26-Art. 1691 (Cancellation by owner, of contract for construction of building, etc.)..............................
27- Art. 1706 (Agency)..........
28- Art. 1735 (Broker) ...........
29-Arts. 1958, 1959 (Suretyship). 288
Arts. 1966, 1970 (Pledge) ....
31-Art. 2127 (Registration of transfer) ..........
....
.........
32-Art. 2268 (Possession of corporeal moveable by person as proprietor) ....
CODE OF CIVIL PROCEDURE
1-Arts.
105, (Pleading)..
2-Art. 114
(Pleading; raising of question as to constitutionality of statute
.........
........
3- Art. 191 (Raising issue of law).
4- Art. 192 (Inscription in law)..
5- Art. 747
(Sale under execution;
bidding)..........................
6-Art.
758 (Sale under execution;
obligation of purchaser).............
7-Arts. 761 to 765 (Sale under execution; resale for false bidding) ........ 288
8-Art.
778 (Effect of sherif's sale) 288
Transfer of shares - By-law restricting right of transfer - Alleged agreement of shareholder to observe provisions of by-law--The Ontario Companies Act, 1907, 34.]
A company's by-law purporting to disable any shareholder from transferring his shares to anyone not already a shareholder until the company had had an opportunity of finding a purchaser as in the by-law provided, was held not to be within the company's powers under The Ontario Companies Act, as it stood in November, 1910, when the by-law was passed. Canada National Fire Insur. Co. v. Hutchings, [1918]
451, applied. It was further held that the transfer of the share in question was not shown to be affected by an undertaking to observe the terms of the by-law; and the transferee was entitled to have the share registered in his name. Idington J. dissented.- Judgment of the Appellate Division of the Supreme Court of Ontario (58 Ont. L.R. 97) affirmed in the result, Idington J. dissenting.-Semble, had the company established such an undertaking aforesaid on the part of the registered shareholder in respect of the share in question, the plaintiff, who claimed as transferree from a transferree of such registered shareholder might not (even apart from the principle of Lord Strathcona SS. Co. v. Dominion Coal Co., [1926] A.C. 108) have been able to force the company to register him as the holder of the share. ONTARIO LTD. v. 2-Payment of dividend without regard to claim for commission against company- R.S.C., 1906, c. 79, s. 82............ 3- "Floating charge" created by company to secure payment of its bonds-Requirement of registration under Bills of Sale and Chattel Mortgage Act, Ont. (R.S.O. 1914, 135)...................... 4-Dividends on company shares-Right to receive dividends suspended during the war-Trading with the enemy regulations- Dividends payable in United States currency-Payment after the war-Conversion into Canadian funds-Rate of exchange- Time as to which prevailing rate applied- Right to interest on dividends witheld. . 420 5- Agency-Sale of land-Real estate company being agent for both buyer and seller-Purchase by president of company- Action for loss of profit against client of company-Arts. 1484, 1706, 1735 C.C. 590 CONSTITUTIONAL LAW -Escheats- Bona vacantia-Rights as between Dominion and province of Alberta-The Alberta
Act, es. 109, 102, 126, 92-The Ultimate
Heir Act, Alta., 1921, c. 11.]
Lands in the province of Alberta, granted by the
Crown since 1st September, 1905, when
The Alberta Act came into force, which have escheated for want of heirs or next of kin, escheat to the Crown in the right of the Dominion.
Trusts and Guarantee Co.
v. The King (54 Can. S.C.R. 107) followed.-Lands in Alberta granted by the Crown prior to 1st September, 1905, which have escheated subsequent to that date, also escheat to the Crown in the right of the Dominion.
By s. 21 of The
Alberta Act "All Crown lands, mines and minerals and royalties incident thereto"
are retained by the Dominion.
phrase "Crown lands, mines and minerals" does not necessarily import lands, etc., held by the Crown in sole proprietorship; it should be read as including all interests of the Crown in lands, etc.;
reading it thus, "lands, mines and minerals" may be regarded as the antecedent of the phrase "incident thereto;" accordingly the Dominion retains all interests of the Crown in lands within the province, together with all royalties incident to such lands; any royalty affecting lands, such as the right to escheat, might properly be described as a royalty "incident to"
lands. The above construction is supported, when the section is compared with s. 109 of The B.N.A. Act, and read in light of the judgments in Atty.-Gen. of
Ontario v. Mercer (8 App. Cas. 767) and
Atty.-Gen. of British Columbia v. Atty.- Gen. of Canada (14 App. Cas. 295 at pp.
304, 305).-Personal property situated in
Alberta of persons domiciled in Alberta and dying intestate since 1st September,
1905, without next of kin, go to the
Crown as bona vacantia in the right of the province.
The effect of s. 3 of The
Liquidators of the Maritime Bank of
Canada v. Receiver General of New Brunswick ([1892] A.C. 437 at p. 444) over revenues belonging to the same classes as those over which the original provinces had such power before Confederation, and which, under The B.N.A.
Act, they still possess; subject, of course, to the enactments of The Alberta Act.- The Ultimate Heir Act, Alta., 1921, c. 11 in so far as it purports to affect reai property, is ultra vires; it is legislation disposing of assets designated as belonging to the Dominion by the statute which brought the province into existence and defines its powers and rights, rather than truly an exercise of the provincial legislative authority in relation to the law of inheritance.-Judgment of Alberta (22 Alta. L.R. 186) reversed in part.
2 - Taxation - Direct or indirect - "First purchaser"-Validity of Fuel-oil Tax Act, 1923, c. 71-B. N.A. Act, 1867, s. 92 (2).]
The British Columbia Fuel-oil Tax Act, 1923, c. 71, which imposes a certain tax per gallon on purchasers of fuel oil and defines "purchaser" as meaning "any person who within the province purchases fuel oil when sold for the first time after its manufacture in or importation into the province," is ultra vires. Idington J. dissenting.-Such tax is not a direct tax within s. 92 (2) of the B.N.A. Act, since at the time of payment its ultimate incidence is uncertain.
Idington J. (dissenting)
.-Apart from some special circumstances the presumable incidence and the general tendency of a tax imposed on the "first purchaser" in a province of a commodity susceptible of general use is that it will be passed on to the consumer, who may or may not-and in ordinary cases will not be its "first purchaser," who is required by section 3 of the Act to pay the tax.-Judgment of the Court of Appeal ([1926] 3 W.W.R. 154) aff., Idington J. dissenting.
CAN. RY. 3- The Mine Owners Tax Act, 1923, c. 33, Alta.-Indirect taxation- Ultra vires.] The tax imposed by The Mine Owners Tax Act, 1923, Alta. (c. 33), upon the gross revenue received by every coal-mine owner from his mine, is an indirect tax, and, therefore, ultra vire.-Judgment of Court of Alberta (22 Alta. L.R. 245) reversed.
v. KING................... 4 - The Alberta Act (D., 1905, c. 3), s. 17-Constitutional validity-Review of constitutional legislation - Dominion powers-Variation of s. 93 of B. N.A. Act, 1867, in its application to Alberta- Education-Separate schools-Appropriation and distribution of moneys for schools.] S. 17 of The Alberta Act (D., 1905, c. 3), varying the provisions of s. 93 of The B. N.A. Act, 1867 in their application to the province of Alberta, *and enacted to perpetuate under the Union the rights and privileges with respect to separate schools and with respect to religious instruction in the public or separate schools, as provided under the terms of chapters 29 and 30 of the Ordinances of the North-West Territories passed in the year 1901, and to prevent discrimination in the appropriation and distribution of moneys for support of schools, was within the powers of the Dominion Parliament, and is wholly intra vire.-Constitutional legislation reviewed.
Acr.................
5 - Roman Catholic separate schools in Ontario-Rights as to courses of study and grades of education in such schools-Rights at Confederation- B.N.A. Act, s. 93 (1)-Validity of Ontario statutes and regulations-Taxation for support of continuation schools, collegiate institutes and high schools-Rights of separate schools as to share in legislative grants.] The suppliants claimed: (1) The right to establish and conduct courses of study and grades of education in Roman
Catholic separate schools in Ontario such as are conducted in continuation schools, collegiate institutes and high schools; and that all regulations purporting to prohibit, limit, or in any way prejudicially affect such right are ultra vires; (2) The right of Roman Catholics in Ontario to exemption from taxation for the support of continuation schools, collegiate institutes and high schools not conducted by their own boards of trustees;
(3) A share in public moneys granted by the Ontario legislature for common school purposes computed in accordance with what they asserted to have been their statutory rights at the date of Confederation; and asked for a declaration that
Ontario statutory enactments prejudicially affected their rights as granted by the Separate Schools Act,
Vic. (1863), c. 5, and secured by s. 93 of the B. N.A. Act, and, in so far as they affected such rights, were ultra vires.
Court of Ontario (60 Ont. L.R. 15), affirming judgment of Rose J. (59 Ont. L.R.
96), against their claims.
appeal to this Court, three of the six judges hearing the appeal held it should be dismissed, and it was dismissed accordingly.
Anglin C.J.C. and Rinfret
J. held in the suppliants' favour on all said claims. Mignault J. held in their favour except, in part, as to their claim in regard to legislative grants. Duff,
Newcombe and Lamont JJ. held against them on all claims.
As to a certain sum sued for, the Court unanimously held that the appeal failed.-The Separate
Schools Act, 26 Vic. (1863) c 5; the Common Schools Act, C.S.U.d. 1859, c. 64;
the B. N.A. Act, s. 93; and other statutes, official reports and documents, extensively reviewed and discussed.-Per
Anglin C.J.C., Mignault and Rinfret JJ.:
Any statute or regulation that would materially diminish or curtail the scope of the education which denominational schools were, at Confederation, legally entitled to impart, or that would tend to restrict the period during which supporters of such schools were then legally entitled to have their children's education subject to the influence of denominational control and instruction, would "prejudicially affect a right or privilewe with respect to denominational schools' within s. 93 (1) of the B.N.A. Act. The remedy is to invoke the ordinary tribunals; the right of appeal to the federal executive under s. 93 (3) does not apply. S. 93 (3) has to do with acts of provincial authorities which, although not ultra vires, so affect rights and privileges theretofore enjoyed by a religious minority as to constitute in the opinion of the Governor in Councif, a grievance calling for federal intervention (Brophy v. Att. Gen. of Manitoba [1895] A.C. 202).-The effect of the legislation in force at Confederation, construing it without the aid of any extraneous evidence, was to confer on all separate school trustees, as part of, or incident to, the management and control of the schools entrusted to them, the right to determine the subjects of instruction in, and the grading of, such schools. They had the legal right to provide therein for secondary education. Curtailment of such rights was not within the regulative powers of the Council of Public Instruction.
The above view as to the effect of the legislation is prima facie supported by the fact that it was the view accepted and acted upon by the educational authorities, as indicated by the official reports and documents in evidence. (Clyde Navigation Trustees v. Laird, 8 App. Cas. 658, at p. 670).
By virtue of the exemption to separate school supporters under s. 14 of the Separate Schools Act of 1863, and from the fact that the Ontario continuation schools, high schools and collegiate institutes are now doing work which formed part of that formerly legally done, or which might have been so done, by the common schools, it follows that separate school supporters are entitled to exemption from rates for the support of such continuation schools, etc. To compel separate school supporters to support the last-mentioned schools, and to use them, if they would give their children up to 21 years of age a secondary education, is prejudicially to affect the right or privilege enjoyed by Roman Catholics as a class at the Union of having such education given to their children under denominational influence and in separate schools managed by their own trustees (Barrett v. Winnipeg, 19 Can. S.C.R. 374, at p. 424, referred to).- Per Anglin C.J.C. and Rinfret J. Every Ontario legislative enactment involving a departure from the principle of apportionment between common and separate schools pro rata on the basis of average attendance, as provided by s. 20 of the Separate Schools Act of 1863, of all legis- Continued I CONSTITUTIONAL LAW lative and municipal grants of public moneys for any purpose that was, under the law at Confederation, a common school purpose, (saving grants to high schools m continuation of former grammar school ap propriations), would, if valid, prejudicially affect a right or privilege with respect to their denominational schools which Roman Catholics had by law at the Union and is, therefore, ultra vires. Every grant for a common school purpose, whether made for a particular school or schools, or made subject to some restrictive term or condition, is covered by s. 20 of the Separate Schools Act, 1863, and therefore comes within the ambit of the protection of s. 93 (1) of the B.N.A.
Act, and cannot be made so as to preclude the right of separate schools to share therein unless compensation to them for their proportion thereof is otherwise provided. The Common and the Separate
Schools Acts alike were continued in force after the Union by s. 129 of theB. N.A. Act as provincial legislation of Ontario, subject to repeal and amendment by the legislature, as to common schools without restriction, and as to separate schools within the limitations imposed by s.
93 (1) of the B.N.A. Act (Dobie v. The
Church Temporalities Board, 7 App. Cas.
136, at p. 147; Att.-Gen. for Ontario v.
Att.-Gen.for Canada, [18961 A.C. 348, at pp. - ). The presence of the words
'this Province" and "the Province" in s.
20 of the Separate Schools Act of 1863 did not render that provision inapplicable after Confederation.
Those terms meant after Confederation the new province of
The words "and not otherwise appropriated by law," appended in s. 106 of the Common Schools Act, C.S.U.C. 1859, c. 64, to the description of the legislative grants to be apportioned, do not present a formidable difficulty.
S. 20 of the Act of 1863 is subsequent legislation, and, so far as there may be inconsistency, its terms must prevail over those of s. 106 of the Act of 1859.
S. 20 of the Act of 1863 precludes an appropriation by law of any grants made for common school purposes which would prevent the separate schools sharing proportionately in them.-Quaere, whether the legislature could validly formulate a scheme or impose conditions for the distribution amongst the separate schools themselves, other than on the basis of average attendance, proportion of the total grants for common school purposes, as understood at Confederation, to which the separate schools as a whole are entitled.-Per Duff and
Newcombe, JJ.: Under the legislation existing at Confederation, Roman Catholic separate schools were subject to regulation by the Council of Public
Instruction for Upper Canada.
Giving their natural sense to the words of s. 26 of the Separate Schools Act of 1863, the Council had a general power of regulation. This power would be subject only to relevant enactments of the separate school law and to the limitations necessarily implied in the fact that the power was given for the purpose of enabling Roman Catholics to carry on more satisfactorily their system of denominational schools. Subject as aforesaid, there is no good reason for restricting the natural sense of the words of s. 26. Another possible view is that s. 26 subordinated separate schools to regulation by the Council in respect of all subject matters which might from time to time fall within the ambit of its jurisdiction in relation to common schools, under the existing Common School Acts or subsequent amending legislation.
In any case, and even assuming (but not accepting) that the Council's regulative powers as to separate schools could be taken as confined to the subject matters which were within the field of its authority in relation to common schools at the date of the passing of the Separate Schools Act of 1863, those powers (even if so confined as last mentioned) covered regulation as to scope and conduct of instruction, including courses of study and text-books. only does this appear on a proper construction of the common school legislation itself, but it was the view which, as shown by the documents in evidence, dictated the practice of the Council in exercising its functions under the Common School Acts of 1850 and 1859, in which practice, carried out under circumstances of the greatest publicity, the legislature, in view of its re-enactments without pertinent change in the Act of 1859, and the unqualified language of ss. 26 and 9 of the Act of 1863, must be presumed to have acquiesced.-In scope of instruction common schools or Roman separate schools were not, at Confederaon the same footing as collegiate mstitutes, high schools or continuation schools to-day.
Viewing the school legislation as a whole as it stood at its history, the official acts of those charged with administration of the school law, as shown by official documents in evidence and having regard especially to -the required qualifications of teachers, the provision made for training them, the programs of studies officially promulgated, and the character of the authorized text-books, it is plain that such schools were intended to be elementary schools only.-The principle of division laid down by s. 20 of the Separate Schools Act of 1863 assumed the existence of a fund which had been appropriated for the benefit of the common schools generally in each municipality.
It was upon this fund, so appropriated for a given municipality, that the section operated; it operated only after the fund for each municipality had been ascertained under the distribution provided for in ss. 106,
120, 121 and 122 of the Common Schools
Act of 1859. The legislature did not intend to tie its hands by s. 106 (1) of the Act of 1859 in such a way as to necessitate the apportionment of all moneys voted for common according to a fixed arithmetical ratio.
The qualification "not otherwise expressly appropriated" sufficiently manifests its intention to reserve its freedom of action.
Assuming s. 20 to have created a legal
"right or privilege" within s. 93 (1) of the B. N.A. Act, it was not a right "by law" to require the legislature to refrain from granting appropriations for special purposes or for the aid of schools reaching a certain standard of excellence or of school sections conforming to a certain standard of expenditure.
There has been no deprivation of anything to which any
Nor is there any evidence that the alleged right or privilege has been rendered less valuable by the impeached legislation (assuming that to be a legitimate ground of complaint under s. 93 (1) ).
There is no reason for supposing that the existing grants, if distributed according to the arithmetical ratios of ss. 106 and
20, would yield a larger sum for Roman
Catholics as a whole. But, more important still, it is impossible to know, if under compulsion of a constitutional limitation the legislature were obliged to follow an unwise and wasteful plan of distribution, whether the grants would be as generous as they now are. There is no suggestion that by the statutes now in force Roman
Catholics are placed upon a footing of inequality with the public schools. Grants are shared by all schools alike, upon identical conditions.--Quaere as to suppliants' right by petition of right to obtain a declaration that certain Ontario statutes are ultra vires.-Per Mignault J.:
The legislative grant which the Chief
Superintendent was to apportion under s. 106 (1) of the Common Schools Act of
1859, and of which he subsequently was to pay a share to the trustees of each separate school, was a general grant for the support of common schools or for common
A special grant, say for the rebuilding of a particular school destroyed by fire, would be
"otherwise appropriated by law," and he could not deal with it in his apportionment. Such special grants could not be said to be grants "for common school purposes" within the meaning of s. 20 of the Separate Schools Act of 1863.-Conditions in excess of those laid down by s.
20 cannot be imposed on the separate schools to entitle them to share in the grants to which it applies. Any statute purporting to impose such conditions, as we as all statutes and regulations contravening the suppliants' first two claims, are ultra vires.-Per Newcombe, J.: The powers of regulation which, within the scope of the Acts of 1859 and 1863, the province possessed at the Union were not reduced by the B. N.A. Act. The denominational schools to which s. 93 (1) refers, so far as they were Roman Catholic separate schools of Upper Canada, were regulated schools, and the provisions to which the supphants object are within the powers of regulation which the province had in 1863, and continued to possess at and after the Union.-There is nothing in the B. N.A. Act to compel the legislature to make a grant, or to avoid conditions prescribed for earning it, or to prevent a specific appropriation.-Per Lamont J.: At Confederation the Council of Public Instruction had authority to make regulations, including the prescribing of the courses of study, for the common schools. This appears on the proper construction of the Separate Schools Act of 1863 and the Common Schools Act of 1859, from the history of the legislation, and from the accepted practice carried on. It was the trustees' right to manage their separate schools subject to the Council's said regulative powers, that was confirmed by s. 93 (1) of the B.N.A. Act. The Council's powers would not enable it to make regulations which would wipe out, wholly or partially, the common or the separate schools. The common schools at Confederation, had a distinct and definite place in the educational system of Upper Canada.
They were intended to be the primary schools, furnishing elementary instruction, with the grammar schools as intermediate between them and the University; and the Council's duty was to make regulations prescribing courses of study which would enable the schools to provide effectively instruction covering the field which the legislature intended they should occupy. The separate schools, as to secular education, were intended to be simply common schools under denominational management, and covered the same field as the common schools. The line of demarcation between the primary and intermediate schools may not always have been definitely drawn or closely adhered to; there may have been some overlapping in instruction, due to the exigencies of particular localities; but the legislature's intention as disclosed in the various Acts, and not the manner in which the system worked out in actual practice, should be the guide in determining the sphere of operation. It cannot be said that, under the impeached legislation, the separate schools of to-day have lost their status as primary schools of the class to which the
Act of 1863 intended them to belong.- The "public grants
*
*
* for common school purposes" in which, under s.
20 of the Act of 1863, every separate school was entitled to share, were general or unconditional grants in which all schools were to share. They did not include moneys appropriated legislature to specific purposes, or to grants for apportionment among schools attaining a certain standard of efficiency or equipment, or made payable upon the performance of a condition.
*
*
* for common school purposes"
meant "grants for the purposes of all
These would include conditional grants for the same purpose once the condition had been performed.
But, as the legislature's authority to say whether or not any grant at all shall be made, or to specify the conditions upon which public moneys shall be devoted to school purposes, is supreme, the only limitation imposed by s. 20 upon the legislature's exercise of its authority, so far as conditional grants are concerned, is that the separate schools must be given the same right as the common (now public)
schools, to perform the conditions and earn the grant.
KING............
- Railway - Street railway company
-Originally a provinhcial body-Incorporated by Dominion Act-Provincial public service commission-Board of Railway
CONTRACT-Lease and hire of work- Work by contract-Fixed price-Cancellation at will of owner-Indemnity of the workman-Damages-Art. 1691 C.C.]
Article 1691 of the Civil Code of Quebec gives the owner the right to cancel at his own will a "contract for the construction of a building or other works at a fixed price, although the work has been begun, on imdemnifying the workman for all his actual expenses and labour, and paying damages according to the circumstances of the case."-Held that the obligation to indemnify the workman for all his actual expenses and labour, to wit, to pay him for the work done, is absolute; and the liability for damages depends on the circumstances of each particular case.
But the workman cannot demand, as damages, payment in full as if the work had been entirely performed.
TIDE- TRANSPORTs..............
CONTRACT-Continued
2-Want of consideration- Alleged declaration of trust-Written words of confirmation or acknowledgment-Statute of Frauds, as. 4,
Plaintiff transferred land (including mines and minerals; except coal, which was reserved from his title) to the Soldier Settlement Board, which sold it to defendant. Plaintiff claimed against defendant an undivided one-half interest in the mines and minerals (except coal) in the land, under an alleged oral agreement with defendant, which, he alleged, was subsequently confirmed and acknowledged in writing. This writing was a power of attorney (prepared by plaintiff's solicitor on plaintiff's instructions) whereby defendant on his account authorized plaintiff "to * * * dispose of my undivided one-half interest (the other undivided one-half interest belonging to the said [plaintiff]) in the mines and minerals, including petroleum and natural gas" in said land. Defendant, a man of little education, said he understood that the parenthetical clause referred to plaintiff's interest in another parcel of land and that the project authorized by the power of attorney was the sale by plaintiff of the oil rights in both parcels together, the one belonging to defendant and the other to plaintiff, and defendant denied any agreement such as plaintiff alleged.
Plaintiff, in the alternative, should be deemed to hold in trust his benefit an undivided onehalf interest in the mines and minerals.-Held, plaintiff could not succeed on his alleged contract, as there was no consideration, and s. 4 of the Statute of Frauds was not complied with; the words in parenthesis in the power of attorney did not constitute a sufficient memorandum or note within s. 4; nor did said words operate as a declaration of trust; moreover, s. 7 of the Statute of Frauds was not complied with.-Mere words of confirmation or acknowledgment cannot make a valid contract of that which is ineffective as a contract for lack of consideration, and an incomplete voluntary transfer will not be construed as a declaration of trust unless it appear that there is an intention to declare a trust, and not merely to make a transfer (Heartley v. Nicholson, L.R. 19 Eq. 233, Richards v. Delbridge, L.R. 18 Eq. at p. 15, and other cases, cited).-Judgment of the Appellate Division, Alta. (22 Alta. L.R.
281), affirmed.
L'HImONDELLE.................... 3 - Agency - Claim for commission - General or special employment-Promise to pay commission on moneys raised for certain project, in consideration of letters of introduction-Project arrived at different from that originally contemplated-Comp- CONTRACT-Concluded anie--Payment of dividend without regard to claim for commission against company- R.S.C., 1906, c. 79, e. 82............
4-Alleged uncertainty and insufficiency of terms-Evidence to ascertain what was covered by terms used-Specific performance-Partnership-Sale of partners' interests to remaining partner-Good-will 615
COSTS-Party and party costs-Appellant sued by respondents for damages caused through automobile collision-Appellant insured against liability-Insurer instructing solicitors to act in suit on appellant's behalf-Right of successful appellant to recover costs from respondents.]
Plaintiffs sued A. (the appellant) for damages for injuries suffered through an automobile collision.
Judgment against
A. by the Appellate Division, Ont., was reversed by this Court, which allowed
A.'s appeal with costs S.C.R. 575).
The Registrar declined to tax costs to A., on the ground that the solicitors, who nominally acted for him in carrying on the appeal, were not in fact retained by him or on his behalf, but were employed by an insurance company, which had insured A. against liability, to defend the action and to prosecute the appeal to this
Court, and that A. was under no personal liability to such solicitors for the costs of the appeal, and was, therefore, not in a position to claim indemnification by plaintiffs for such costs.
A. appealed.- Held, A. should recover his costs from plaintiffs; on the evidence, the insurer instructed its solicitors to defend the action on behalf of A., who, from the course of the proceedings, must have employed the solicitors or sanctioned their carrying on of his defence, so as to become personally liable for their costs, unless there was an agreement binding on the solicitors excluding such liability;
no such agreement was established; the fact that there was an obligation by the insurer to pay the solicitors' costs, and that the solicitors would naturally apply in the first instance to the insurer, as being ultimately liable to pay the costs by reason of A.'s right of indemnification against it, would not exclude A.'s liability.-Adams v. London Improved Motor
Coach Builders Ltd., [1921] 1 K.B. 495, applied; Rex v. Archbishop of Canterbury,
[1903] 1 K.B. 289, at 295, referred to;
Ryan v. McGregor, 58 Ont. L.R. 213, unless distinguishable from the present decision, and so far as inconsistent therewith, overruled.
v. CARR..
COSTS-Concluded
2- Appeal case-Failure to print exhibits in chronological order- No costs allowed for preparing and printing case-Rule 12, See Cowis 1.
CRIMINAL LAW-Perjury -Ground of appeal-No evidence as to accused having been a witness-A/otion for leave to appeal to Supreme Court of Canada under s. 1024a Cr. Code-Alleged conflict with decision in Rex v. Drummond (1905) 10 Ont. L.R. 546-Production at the trial of the judgment in the civil action.] The appellant having been found guilty of perjury committed in the trial of a civil action, one of the grounds of appeal to the appellate court was that there had been no evidence that the appellant was a witness in a judicial proceeding.
The conviction having been affirmed, the appellant moved for leave to appeal to this court under s. 10 4a Cr. Code, on the ground that the judgment sought to be appealed from conflicts with a judgment of an Ontario appellate court in a like case: Rex v. Drummond, 10 Ont. L.R. 546.-Held, that the decision in the Drummond Case did not conflict with the judgment in this case: in the former case there was no record whatever produced, while in the present case the copy of the pleadings made use of as a record by the trial judge was put in evidence. The application for leave to appeal was dismissed.- Semble, that, although production, at the trial, of the judgment disposing of the civil action was not necessary, it would have been better practice that it should be put in in order to complete the record. KING............. 2 - Trial judge - Charge to jury-Indirect comment on failure of accused to testify-Canada Evidence Act, R.S.C. (1906), c. 145, s. 4, subs. 5.] The appellant was charged with the murder of his mother. The trial judge, in instructing the jury, made the following remarks: "The doctor who made the autopsy has declared that the death must have occurred at seven o'clock in the morning or even before.
The accused was at that time in the house according to his own declaration police officers. The accused was then alone with his mother when she was killed; and if so, the defence should have been able to explain by whom the murder has been committed, because such a brutal murder could not have been committed without the knowledge of the accused."-Held that, although the language of the charge might be understood as relating to a failure of the accused to give an explanation to police officers or others it is also easily and naturally capable of being understood as relating to the failure of the accused to testify upon that subject at the trial; and therefore such language is obnoxious to the imperative direction of subs. 5 of s. 4 of the Canada Evidence Act which requires the trial judge to abstain from any comment upon the failure of an accused to take advantage of the privilege which the law gives him to be a witness at the trial in his own behalf. The accused is entitled to a new trial.
3 -Evidence
- Statements by accused at time of arrest-Admissibility in evidence.]
At a trial on a charge of committing assault occasioning actual bodily harm, the constable who arrested accused gave evidence for the Crown to the effect that, at the time of the arrest, having cautioned accused, and accused having stated that he had not been out since twelve o'clock that night, he called accused's attention to the condition of his hat, and accused said he had not worn that hat the night the offence was committed; the constable also called accused's attention to a scrape on his arm, and accused said it was an old mark, whereas the constable testified that it was fresh.-Held, reversing judgment of the Court of Appeal for British Columbia ([1927] 1 W.W.R 471) that the evidence was admissible; the Crown discharged its burden of establishing the voluntary character of the statements of accused, who had been given the customary warning; the mere asking of a question by the constable subsequently, or his directing accused's attention to the subject of one of such statements, did not amount to an inducement or persuasion such as would render the statements inadmissible.
Prosko v. The King (63
Can. S.C.R. 226) referred to.
BELLOS........................
4- Appeal-Leave to appeal to Supreme
Court of Canada-Court of appeal judgment conflicting with judgment of another court of appeal in like case-Both judgments not necessarily in similar cases, but upon similar questions of law-Equal division of court of appeal-Section 1024a Cr. C.1
In order to obtain leave to appeal to the
Supreme Court of Canada in a criminal case under section 1024a Cr. C., it is not necessary that the judgment from which it is sought to appeal and that of any other court of appeal should have been rendered in cases in all respects the same; but there should be a conflict between the two judgments upon a question of law similar in both cases.- Quaere whether a judgment rendered upon an equal division of a court of appeal is a
"judgment" which can be appealed from under section 1024a Cr.
BARli
THE KrNG........................
- Unsworn testimony child of tender years- Necessity oj inquiry by trial judge before admitting evidence- Admission in evidence of statement by accused-Proof of its voluntary character- Questioning of accused by police- Necessity disclosure of process leading to accused's statement.] Before receiving the unsworn testimony of a child of tender years under s. 16 of the Canada Evidence Act, tie presiding judge should ascertain by appropriate methods whether or not the child understands the nature of an oath; to do this is quite as much his duty as it is to satisfy himself of the child's intelligence and appreciation of the duty of speaking the truth; on both points alike he is required to form an opinion; as to both he is entrusted with discretion, to be exercised judicially and upon reasonable grounds.
Of no ordinary child over seven years of age can it be safely predicated, from his mere appearance, that he does not understand the nature of an oath.
A very brief inquiry may suffice to satisfy the judge on the point. But some inquiry is indispensable.-The Court (reversing judgment of the Court of Appeal of British Columbia [1927] 2 W.W.R. 265) quashed a conviction for murder and granted a new trial, on the ground that the unsworn testimony of a child ten years old was improperly received (Allen v. The King, 44 Can. S.C.R. 331 cited), there being no material before the judge on which he could properly base an opinion that the child did not understand the nature of an oath.-Questioning of an accused by police, if properly conducted and after warning duly given, will not per se render the accused's statement inadmissible. But the burden of establishing to the satisfaction of the court that anything in the nature of a confession or statement procured from accused while arrest was voluntary, always rests with the Crown (The King v. Bellos [19271 S.C.R. 258; Prosko v. The King, 63 Can. S.C.R. 226).
That burden can rarely, if ever, be discharged merely by proof that the giving of the statement was preceded by the customary warning and an expression of opinion on oath by the police officer who obtained it, that it was made freely and voluntarily; what took place in the process by which the statement was ultimately obtained should be fully disclosed; and, with all the facts before him, the judge should form his own opinion that the tendered statement was indeed free and voluntary, before admitting it in evidence.
Code, s. 301, of carnally knowing girl under 14 years of age.] The corroboration required by s. 1002 of the Criminal Code
(as amended 1925 c. 38, s. 26) must be by evidence independent of the complainant and it must tend to show that the accused committed the crime charged (R. v.
Baskerville, [1916]
2 K.B.
question whether there is any evidence within that description, on which a jury could find corroboration, is one of law;
although, whether corroborative inferences should be dra-wn is a question for the jury (R. v. Gray, 68 J.P. 327).-On a charge of carnally knowing a girl under
14 years of age, under s. 301 of the
Criminal Code, it was held (reversing judgment of the Court of Appeal for
Manitoba, 36 Man. R. 373) that the identification, by its plate number and a certain cushion, by the girl, of accused's motor car as the one driven at the time of the offence by the person committing it, was not, in a proper sense, independent tending to connect accused with the crime, and therefore did not fulfil the requirement as to corroboration of the girl's evidence that accused committed the offence.
But the Court was of opinion that, while the evidence was not explicit that accused maintained silence when charged with the crime on his arrest, and again when confronted with and identified by the girl, his conduct on those occasions, so far as disclosed, and in subsequently voluntarily making two inconsistent statements, was such that a jury, or a judge trying the case without a jury, might infer from it some acknowledgment of guilt; whether such inferences should be drawn was a question of fact;
(R. v. Christie [1914] A.C. 545, at pp. 554,
559-560, -563-564,
565-566;
Mash v.
Darley [1914] 3 K.B. 1226, at pp. 1230- 1231, 1234; R. v. Feigenbaum [1919] 1
K.B. 431, at pp. 433-434, cited); had such conduct of accused been found by the trial judge to be corroborative of the girl's story the conviction could not have been set aside; but, there being no finding by the trial judge as to the inference to be drawn from such conduct of accused, nor any adjudication that it afforded the requisite corroboration, this Court could not, without usurping the exclusive function of the tribunal of fact, make such an adjudication; the trial judge's riding that accused's admission of ownership of the car and its identification by the girl constituted corroborative evidence, was erroneous, and resulted in a mis-trial; the case did not fall within the saving operation of s. 1014 (2) (as enacted
1923, c. of the Criminal Code, and the conviction should be set aside; but the
Court, in the exercise of its discretion under s. 1014
(3), refused to direct accused's discharge, and ordered a new trial. HumN v. THE KING ........ 7-Appeal to Supreme Court of Canada- Cr. Code, as. 1013 (5), 1024-Difference of opinion in Court of Appeal-Absence of requisite direction under s. 1013 (5)- Miadescription of count in judge's charge to jury.] An appeal does not lie to this Court under s. 1024 of the Cr. Code in the absence of the direction of the court of appeal required by s. 1013 (5), which direction must be evidenced by the order of the court and should be plainly expressed (Gouin v. The King, S.C.R. 539); the plain operation and effect of s. 1013 (5) is not only to maintain the restriction of the right of appeal conferred by s. 1024 to questions of law, but also to restrict the cases in which upon questions of law lack of unanimity may be expressed to those in which the court of appeal considers it in the interest of justice that separate judgments should be pronounced by the members of the court (Davis v. The King, [1924] S.C.R. 522).-At the trial on a charge of perjury, the judge, when giving, near the conclusion of his address to the jury, a short recapitulation of each count in the indictment, by a slip of the tongue misdescribed a count (the one on which accused was found guilty), the substance of which he had, just before correctly stated to the jury. An appeaf from the accused's conviction to the Court of Appeal of British Columbia was dismissed ([1927] 2 W.W.R. 300), the majority of the judges holding that, notwithstanding the misstatement, no substantial wrong or miscarriage justice had occurred. Two judges of the court expressed a different view on this point and were in favour of allowing the appeal and granting a new trial. appeal to the Supreme Court of Canada on the ground of misdirection to the jury.-Held, the appeal to this Court was not open to accused, by reason of the absence of the requisite direction under s. 1013 (5); but, its absence not having been brought to this Court's attention, and the appeal having been heard on the merits, the Court expressed the view that, on the merits, the appeal could not have succeeded.
Quaere, whether, even had a dissent been regularly and legally pronounced, a difference of opinion on such a question should be considered as a dissent upon a question of law.
THE KINo.................... 8-Appeal-Leave to appeal-Evidence- Privileged communication as between solicitor and client-Conflict with a judgment of another court of appeal. S. 1024a Cr.
The appellant was con- IS.C.R. victed on an indictment charging him with having, with intent to defraud and by false pretences, obtained from one
Mrs. Falardeau and one Mrs. Cirkel valuable securities of about $404,000, by inducing them to transfer property to appellant's wife in consideration of an annuity of $400 monthly during their lives. At the trial, the appellant sought to prove certain conversations between
Mrs. Cirkel and Mr. R. G. de Lorimier
K.C., his intention being to show that the deeds of transfer were passed at the request and in compliance with the importunities of Mrs. Cirkel with whom the suggestion of an annuity, he claimed, had originated.
The trial judge, having convinced himself by questions put by him to Mr. de Lorinmier that the latter had acted as legal adviser of these ladies, refused to allow the evidence on the ground these communications between client and solicitor were privileged and could not be disclosed without the consent of Mrs. Cirkel, which consent she refused to give. The appellant's conviction was affirmed by the appellate court; and the appellant now moves for leave of appeal to this court under article
1024a of the Criminal Code, on the ground that the judgment to be appealed from conflicts with the judgment of the Alberta appellate court in Rex v. Prentice and
Wright. ( [1914] 7 Alta. L.R. 479.)- Held, that there is no possible conflict between this decision and the one from which the appellant seeks leave to appeal to this court.
The Alberta court fully recognized the rule that relevant communications between solicitor and client are privileged unless the client consents to their disclosure; all that was decided in that case was that the client had agreed to this disclosure when he instructed his solicitor to communicate to the opposite party or his solicitor something prima facie privileged and that, under these circumstances, the communication which the solicitor was instructed to make to the solicitor of the adverse party was not privileged.
HowLEY v. THE KINo.. 529
9 - Appeal - Leave to appeal - "Knowingly"-Burden of proof-Conflict of decisions-S. 1024a Cr. C.-Customs
Act, (R.S.C. [1906], c. 48, s. 219 (as enacted by 15-16Geo. V, c. 39) and s. 264).
The appellant was convicted for having
"knowingly"
harboured and kept an automobile of a value exceeding $200 whereon the customs duty lawfully payable had not been paid (Customs Act, s. 219).
The conviction was affirmed by the appellate court holding, under section
264 of the Customs Act, that the appellant had failed to discharge the onus of proving his innocent possession.
CRIMINAL LAW-Concluded appellant now moves for leave to appeal to this court, on the ground that this decision conflicts with the judgments in The King v. Beaver (9 Can. Cr. Cas. 415) and The King v. Macdougall (15 Can. Cr. Cas. 466) where it was held that when under a statute the crime or offence consists in "knowingly" doing a certain thing, the onus of proof of the knowledge of the accused is upon the Crown.- Held that leave to appeal must be refused. The above judgments are not decisions "in a like case" within the meaning of section 1024a Cr. C., and they are not in conflict with the present judgment which is based on section 264 of the Customs ...... 10---Conviction on charge of using means to procure abortion (Cr. Code, s. 303)-Judge's charge to jury-Misdirection in a material matter-Appeal-Onus of Crown-Miscarriage of justice (Cr. Code, s. 1014 (1) (c).
The judgment of the of Ontario, 61 Ont. L.R. 147, affirming appellant's conviction on a charge of using means to procure abortion, contrary to s. 303 of the Cr. Code, was reversed, and the conviction was set aside and a new trial ordered, on the ground that there was non-direction, tantamount in the circumstances to misdirection, in a material matter, in the trial judge's charge to the jury, in that he cast doubt, unwarranted on the evidence, upon the fact of the girl's menstruation shortly before the time of the acts charged, and failed to direct their attention to its possible significance (as bearing on the appellant's defence that he was never aware of the girl's pregnancy) and also to the motives, consistent with innocence, which might have actuated the girl in consulting one W., a physician and surgeon, rather than the family physician, and in presenting herself to him under an assumed married name.-Misdirection in a material matter having been shown, the onus was upon the Crown to satisfy the court that the jury, charged as it should have been, could not, as reasonable men, have done otherwise than find the appellant guilty (Gouin v. The King, [1926] S.C.R. 539, at p. 543; Allen v. The King, 44 Can. S.C.R. 331, at p. 339; Makin v. Att.-Gen. for New South Wales, [1894] A.C. 57, at p. 70).
That onus was not discharged. Navigation company-Wharf -"Slip"
in bad condition-Accident in landing passengers-Inspection by government employee-Failure to make report- Liability of the Crown-Knowledge by the navigation company-Joint liability - Practice and procedure-Printing of appeal CROWN-Continued case-Failure to print exhibits in chronological order- No costs allowed for preparing and printing case-Rule
Supreme Court Act-Exchequer Court Act, s. 20 (c), as amended by 1917, c. 23, 8. 2- Arts. 1106,1117, 1118C.C.] The respondents seek to recover from the Crown
$65,744.61, being the amount of claims paid out by them for personal injury and loss of property sustained by passengers landing from the ss. Richelieu owing to the collapse of the landing slip on a government wharf at L'Anse Tadoussac on the 7th July, 1923.
The wharf, built in 1910-12, had been but little used.
Early in 1923 the Canada Steamship
Lines applied to the Minister of Public
Works to have it put in condition.
minister assented and estimates for the cost were sanctioned late in June or early in July, 1923.
To the knowledge of the navigation no substantial repairs to, and no thorough inspection of, the wharf had been made. Without further notice to the government, the steamboat .Richelieu began to use the wharf in the latter part of June.
On the fourth trip, 4th July, amongst the passengers disembarked at the wharf was one
Brunet, a government engineer, then on a trip of inspection for his department.
Brunet, seeing the crowd disembarking, had some apprehension as to the safety of the slip and made, the next day, a casual and perfunctory examination of it.
Before leaving Tadoussac that evening,
Brunet, instead of clearing up his suspicions by an immediate personal inspection, or at least promptly reporting his fears to the Department of Public Works at Quebec, or warning the officers of the steamship company of the probable danger of using the slip in its then condition, merely asked one Imbeau, not a permanent or regular employee of the government to examine the slip and to report to the department at Quebec the result of his inspection.
Imbeau's report as to the bad condition of the slip, dated
7th July, was not received at Quebec until the 9th of July.-Held, reversing the judgment of the Exchequer Court of
Canada ([1926] Ex. C.R. 13), that the
Crown was not under contractual obligation to the Canada Steamship Lines to provide at L'Anse Tadoussac a reasonably safe landing place for passengers, the
$2,000 per annum accepted by the Crown
"in payment of commutation of wharfage"
not being the equivalent of a rental for the use of the government wharves between
Quebec and Chicoutimi.-Held also, that Brunet, in allowing continued use of the wharf and slip pending Imbeau's report and in failing to give warning to the steamship company, was guilty of negligence as an "officer or servant of the Crown while acting within the scope
CROWN-Concluded of his duties or employment upon a public work" (The King v. Schrobounst ([1925]
S.C.R. 458); and his neglect entailed liability of the Crown for consequent injuries in person and property sustained by passengers in attempting to land on the slip.-Held, also, that the Canada Steamship Lines was also guilty of negligence, in using the wharf and slip, without making an inspection of their condition and without intimating its intention to use them to the government from which it had demanded repairs that its officers knew had not been made.- Held, therefore, that there was a "common offence or quasi-offence" steamship company and of the appellant resulting in a joint and several obligation on their part to persons who sustained consequential injury (art. 1106 C.C.), with the result that there must be an apportionment of responsibility between these co-debtors (art. 1117 C.C.) and that one of them, the steamship company, having paid the debt in full, can recover from the other only the share and portion (in this case one-third) for which, inter se, such other was liable (art. 118 C.C.). With this right of recovery, subrogation has nothing to do.-Costs of preparing and printing thie appeal case disallowed the appellant on account of flagrant disregard of rule 12 of this court requiring exhibits to be printed in chronological order.
Ns LTD.................. 2 - Real property - Mines and minerals-Crown's prerogative right to precious metals-Law as to title to, and conveyance of, precious metals-Precious metals in lands formerly owned by Hudson's Bay Company under its charter of 1670-Construction and effect of Deed of Surrender of 1869 from the Company to the Crown, and of subsequent proceedings and legislation - Precious metals in such lands as belong to the Company under the terms of its surrender, etc........................ CUSTOMS ACT............... DAMAGES
- Quantum - Wrongful eviction of lessees of farm--Liability of lessor-Measure of damages-Loss of unexpired term-Matters to be considered in assessing damages.] There is no special rule in regard to damages recoverable by a wrongfully evicted lessee; the case is governed by the general rule applicable to all breaches of contract, namely, that the party wronged is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.
Compensation to the lessee will not be confined to the value of DAMAGES-Concluded the unexpired term, but will include all loss naturally resulting from the eviction.
impossibility of assessing with mathematical accuracy the damages to a wrongfully evicted lessee for the loss of the unexpired term of a farm lease does not relieve the lessor from liability for such damages; and the court may award an amount though it may be to some extent speculative.
The actual results from working the land between the date of the eviction and the time of the trial should be taken into account. Estimates of damages as to future years should be based on the assumption, not of unusual but of normal, conditions as they have existed in the past.-Lessees of farm property sued for damages for wrongful eviction. They were awarded at trial,
([1925] 3 W.W.R. 769), $1,217 for summer-fallowing done by them, and $22,500 for loss of the unexpired term (about five years). The Court of Appeal, Sask.
(21 Sask. L.R. 19; [1926] 3 W.W.R.
reduced the $22,500 to $2,500.-Held, on the evidence, and having regard to the actual results from working the land between the date of eviction and time of trial, the average yield for preceding years, the conditions in the district, and the nature of the land (and taking into account the cost of operating, marketing, etc., and other circumstances), that the allowance by the Court of Appeal was insufficient; but that the allowance by the trial judge, who had not given due regard to the uncertainty of the price of wheat or the possibility of the lessees earning on another farm, was excessive; and that the damages should be $15,000, covering both the summer-fallowing and the loss of the unexpired term.
V. 413
2- Lease and hire of work-Work by contract-Fixed price-Cancellation at will of owner-Indemnity of the workman- Damages-Art. 1691 C.C..........
3-Apportionment of responsibility for accident-Arts. 1106, 1117, 1118 C.C...
...............................
See CRowN 1.
DEBENTURES
DEBT-Deed of transfer of-Garantie de fournir et faire valoir-Liability of debtor to transferee...................
2- And see WORDS
DEEDS (CONSTRUCTION OF)
DEMOLITION - Direction of the Court- Art. 1066 C.C.-Watercourses-Dam raising level of water-Action for damages and demolition-Pleadings-Inscription in law DEVASTAVIT
DROITS DE GREVE
See CONswrTrIONAL 4, 5. ELECTIONS-Appeal-Jurisdiction - Election petition - Irregularity - Dismissal by one judge before trial-Dominion Controverted Elections Act, as amended by 5 Geo. V, c. 13.................... ELECTRIC POWER-Power supplied to Hydro Electric Power Commission of Ontario-Dispute as to price-Suit against Commission-Attorney-General's consent- Power Commission Act, R.S.O., 1914, c. 39, s. 16-Agreement by counsel to refer to arbitration-Counsel's authority-Resulting award not authorized by a reference to which counsel empowered to consent.] Plaintiffs supplied power to defendant, the Hydro Electric Power Commission of Ontario, the price not being fixed. Plaintiffs claimed at the rate of $16 per h.p. Defendant paid at the rate of $12. Plaintiffs sued for $8,190.78, as the balance due, at the $16 rate, having obtained, on 30th January, 1922, the Attorney-General's consent, pursuant to s. 16 of The Power Commission Act (R.S. 0., 1914, c. 39), to bring an action "to recover the sum of $8,190.78, being the balance alleged to be due electric power supplied
Before trial counsel agreed to refer the matters in question to an arbitrator, the plaintiffs not to be prejudiced "by any claim made by them in the writ of summons or pleadings in this action." arbitrator awarded plaintiffs $51,861.75 taking into consideration an alleged element of compulsion, and basing his award on his estimate of cost to plaintiffs plus reasonable profit.
Defendant moved to set aside the award, and plaintiffs sued on the award, having obtained the Attorney-General's consent, dated 20th April,
1923, to bring an action "to recover the sum alleged to be due for electric power supplied. * This consent is to be deemed to have been given as of the 30th day of January, 1922."-Held, having regard to s. 16 of The Power Commission Act and the terms of the Attorney-General's consent to the first action, defendant's counsel had not ELECTRIC POWER-Concluded authority to compromise by imposing on defendant, directly or indirectly, any liability greater than $8,190.78, or any liability to be determined otherwise by ascertaining what a fair price would be on the basis (as contemplated by the consent and presented in the pleadings)
of a legal right arising from the supply and acceptance of power under a voluntary agreement; and the award could not be supported as authorized by a reference to which counsel was empowered to consent;
the Attorney-General's consent to the second action did not enlarge retrospectively the scope of the first action and counsel's authority therein.-Judgment of
Court of Ontario (57 Ont. L.R. 603) and of Wright J. (56 Ont. L.R. 35) affirmed in the result.
v. HYDRo-ExacTnic
ESCHEATS...................
ESTATES OF DECEASED PERSONS
ESTOPPEL-Question of estoppel by res judicata-Effect of judgment in overof judge in such proceedings-The Landlord and Tenant Act, R.S.O., 1914, c. 155- Procuring of new lease by former partner- Assignment thereof to those continuing the business on the premises-Covenants in assignment-Rights between the parties as to acquisition of further lease-Implied
EVIDENCE-Letter signed intended to embody terms of deposit of money-Inadmissibility of parol evidence to contradict, vary or explain-Evidence received without objection at trial put aside by appellate court.] Plaintiff deposited with defendant
$20,000 to be held and paid out on certain terms. At an interview between plaintiff defendant's manager there drafted in the latter's handwriting and signed by plaintiff the following letter from plaintiff to defendant, which was intended to embody plaintiff's full instructions to defendant: "There will be paid
This payment is in connection with the
Hayes-Lorrain
Syndicate.
You will please hold these funds until such time as you are instructed by [G.] that it is proper for you to pay same out and you will pay same to such persons, firms or corporations as may direct and this shall be your sufficient authority."
The moneys were (as found by the court) paid out by defendant according to G.'s directions.- Held, that parol evidence was not admissible to show a stipulation, alleged by plaintiff but denied by defendant, that, as
EVIDENCE-Continued a term of the deposit, the moneys were not to be paid out by defendant unless the sum of $50,000 should be received by the defendant under the provisions of an earlier document known as the "Hayes- Lorrain Syndicate agreement." The reference in the letter to the Hayes-Lorrain Syndicate, on its face, merely identified the matter for which the money was to be held and used, and did not cover such a stipulation as alleged by plaintiff; and extrinsic evidence of the intention of the parties in making it was not admissible.- The rule of law that extrinsic evidence is not, in general, admissible to contradict, vary or explain written instruments must be enforced in cases that fairly come within it.-Although the plaintiff's evidence of the antecedent conversation, at said interview, as to the terms of his deposit was received without objection and acted upon by the trial judge, the appellate court, upon being satisfied that a writing had been agreed to which was meant to embody those terms, rightly put that evidence aside and decided the case upon the evidence properly admissible.
(Jacker v. International Cable Co., 5 T.L.R. 13).
2-Inadmissibility of extrinsic evidence as to meaning and effect of general hypothecation to bank.................. 3-Written statement used for purpose for which it was not admissible-No substantial miscarriage of justice ........ 4 - Trial judge-Charge to jury-Indirect comment on failure of accused to testify-Canada Evidence Act, R.S.C. (1906), c. 145, s. 4, subs. 5........................... See CRIMINAL 2. 5-Real property-Title by possession- The Limitations Act, Ont. (R.S.O., 1914, c. 75) s.5- Nature of use and occupation- Nature and extent of enclosure-Evidence as to length of time-Trial judge's estimate of witnesses-Reversal of findings.... 148 6-Bond against embezzlement or theft by city employee-Bond limited to cover only embezzlement or theft committed within 12 months prior to notice of discovery-- Employee's falsification of books to cover previous defalcations-Time of embezzlement or theft-Onus of proof ........ 7- Statements by accused at time of arrest-Admissibility in See CRnaL, LAw 3. EVIDENCE-Concluded
8 - Criminal law- Unsworn testimony of child of tender years- Necessity of inquiry by trial judge before admitting evidence-Admission in evidence of statement by accused-Proof of its voluntary character-Questioning of accused by police
-Necessity of disclosure of process leading to accused's statement..............
Cr. Code, s. 301, of carnally knowing girl under 14 years of age..............
Alteration of name on tax collector's roll invoked as irregularity-Onus of proof as to circumstances of alteration
.......
...........
- Privileged communication as between solicitor and client- Application for leave to appeal- Alleged conflict with judgment of another court of appeal-S. 1024a Cr. C.............
" Knowingly"- Burden of proof-Conflict of decisions-- Application for leave to appeal to Supreme
Court of Canada-S. 1024 a Cr. Code- Customs Act, (R.S.C. [19061, c. 48, s. 219
(as enacted by 15-16 Geo. V, c. 39) and s.
264).........................
Contract - Alleged uncertainty and insufficiency of terms-Evidence to ascertain what was covered by terms used- Specific performance-Partnership-Sale partners' interests to remaining partner- EXCHANGE - Dividends on company shares-Right to receive dividends suspended during the war-Trading with the enemy regulations-Dividends payable in
United States currency-Payment after the
War-Conversion into Canadian funds- Rate of exchange-Time as to which prevailing rate applied-Right to interest on dividends withheld ..............
EXECUTORS AND ADMINISTRAT- ORS-Loss to estate of benefit of asset- Liability for devastavit-Measure of liability-Expenses chargeable to estate- Findings of courts below on oral testimony- Sale of land-Crop-payment agreement- Operation of acceleration clause.] The
Court refused to disturb the allowance by the trial judge, upheld by the Court of
Appeal, to the defendants, executors of an
EXECUTORS AND ADMINISTRAT- * ORS-Continued estate, of certain expenses as a proper charge against the estate, his findings having proceeded upon interpretation of oral testimony and credibility of a witness (as to the terms of an oral arrangement under which the expenses were incurred), and not being clearly shown to be erroneous.-Executors of a deceased's estate held an agreement of sale of land from T. to deceased and an agreement of sale of the land from deceased to K., the amount owing by K. much exceeding that owing to T. Having defaulted in payment to T., who pressed for payment, and having made some unsuccessful efforts to obtain a loan upon the land, they quit-claimed to T., and subsequently assigned their interest in the K. agreement to their mother, who obtained a transfer from T., and paid him off, having borrowed, on the security of the land, sufficient for that purpose.
Creditors of the estate sought to charge the executors for a devastavit.- Held (reversing judgment of the Court of Appeal, Sask.-21 Sask. L.R. 91) that, on the evidence, the disposition by the executors of the K. agreement was not justified, and they should be charged; but not (as directed at trial) with the difference between the amount owing from K. and that owing to T., but only with the value, as of the date of the quit-claim, of the estate asset represented by the K. agreement, including the equity of the estate in the land; and interest.-Executors' duties and liabilities, as to estate assets and collection of moneys, discussed, with references to authorities.- Land was sold, in 1920, under agreement of sale, for $38,280, payable, $5,000 down, and the balance "by crop payments in annual instalments," with nterest payable yearly, "and in the event of default being made in payment of any sums payable hereunder (including taxes and insurance premiums) or any part thereof, the whole purchase money to forthwith become due and payable."
The purchaser covenanted to pay "the said purchase price and interest as herein set forth."
The vendor was to convey "on payment of all the said sum of money with interest as aforesaid in manner aforesaid."
The purchaser agreed to farm and seed each year, to harvest, and to deliver to the vendor his share of the crop each year immediately after threshing. The share so delivered was to be applied, at the then market price of the grain, in payment of interest, any arrears, and on account of the purchase money. The purchase price was to be paid in full on or before 31st December, 1930, and if the crop payments should not by then "have paid all sums payable hereunder, the balance unpaid shall on that date become due and payable
*
* * ORS-Concluded lawful money of Canada."
The purchaser's executors failed to pay certain taxes, and, crippled by crop failure in
1924, abandoned the land.-Held, the acceleration clause applied, and operated to make the whole balance of the purchase price forthwith due and payable currency; if so operated, for default in payment of taxes, or for default in crop payments.
(Judgment of the Court of
Appeal, Sask., 21 Sask. L.R. 91, sustaming, on equal division, judgment of
Brown C.J. on this point, affirmed).
Logging operations - Steel cable snapping and striking another, the friction causing sparks, starting fire-Alleged negligence-Damage to property-Method of operation-Dry season-Pure accident 359
FIRE INSURANCE
FLOATING CHARGE
FRAUDS, STATUTE OF
GIFT - Accounting - Moneys received by nephew of deceased-Evidence of intention to make gift to nephew-Applicability of Strong v. Bird (L.R. 18 Eq. 315).
.................
See TRUSTs TRUSTEES 1.
GRANT-Seigniory-Ownership of lake non-navigable and non-floatable -Banks-- Droits de grve-Right of way-Art. 540
A lake non-navigable and nonfloatable may constitute a separate physical subject of possession independently of the lands which surround it;
but ownership of the lake so separated does not include ipso facto the right of ownership or of enjoyment of the banks
(graves) or a right of way over them at all events without paying an indemnity proportionate to any damage caused in exercising it. (Art. 540 C.C.).-The description of a property in a deed of sale as "une terre" does not exclude from it a small lake comprised totally or in part within the limits of the property sold.- Under the law in force in 1752 in the province of Quebec, then known as New
France, the grant or cession of a fief by the King of France to the seigneur invested him with the ownership of all the lakes non-navigable and non-floatable, situated within the ceded territory; but, in this case, the appellant is not entitled to the ownership of the lake claimed by her
GRANT-Concluded under a deed of sale executed in 1911 by the representative in succession of the original seigneur because that lake had ceased to form part of the seigniory before 1848 when the lands including it had been ceded by the seigneur.-By force of the of July 6, 1711, the seigneurs were bound to concede lots out of their fief, under the system of cens et rentes, to those who requested such concessions.
Any prohibition or substitution contained in a will having the effect of defeating such obligation was illegal and should be "conEidered as not written."
v. DIoTTE.... 261 GUARANTEE - Promissory note endorsed by surety for certain purpose and on certain terms, known to creditor- Surety's right6--Creditor dealing with note- General hypothecation of note by creditor to bank-Inadmissibility of extrinsic evidence as to meaning and effect of hypothecation-Alteration of surety's positioninapplicability of s. 26 (r) of King's Bench Act, Man. (R.S.M., 1913, c. 46)-Surety's obligation undertaken on terms that note to be used only for advances by a bank and for advances to a certain required amount- Non-fulfilment of terms-Release of surety -Creditor's obligation as to application of payments.j
Plaintiff took a promissory note as collateral security for advances by him to L. Co., which note had been endorsed by defendant G. As found by the court, G. had endorsed the note on the terms and conditions, known to plaintiff, that it would be delivered as collateral security to a bank for a loan to be made by the bank to L. Co. of $10,000, in five advances of $2,000 each, to be used for payment of agreed upon instalments to L. Co's. creditors, and that repayment was to be secured by an assignment to the bank of whatever government ditching contracts L. Co. might secure in 1923. Plaintiff hypothecated the note to his bank, by a general hypothecation in the bank's usual form, as collateral to his own account with his bank.-Held, that the case, on the evidence, if not falling within the class of "those in which there is an agreement to constitute, for a particular purpose, the relation of principal and surety, to which agreement the creditor is a party," at least fell within the class of "those in which there is a similar agreement between the principal and surety only, to which the creditor is a stranger.' In a case of the latter class the surety has against the debtor the rights of a surety, and the creditor receiving notice of his claim to those rights, is not at liberty to do anything to their prejudice.
(Duncan, Fox, & Co. v. North & South Wales Bank, 6 App. Cas. 1 at pp. 11, 12).-Held, further, that the effect of the plaintiff's hypothecation to his bank was to expose G. to be held liable to the bank, as holder in due course, to the extent of his ex facie obligation under his endorsement, not merely for whatever indebtedness of L.
Co. he had undertaken to guarantee, but for any indebtedness of plaintiff to the bank; and this obvious alteration in G.'s position involved a substantial extension of his responsibility which released him from liability to the plaintiff. The principle of Archer v. Hudson, 7 Beav.
551, and other cases cited, applied.- Plaintiff's unsupported testimony which he sought to modify or restrict the plain meaning and effect of his general hypothecation to the bank, was wholly inadmissible and ineffectual.
(Forman v.
Union Trust Co. S.C.R. 1).-S.
(r) of The King's Bench Act, Man. (providing that "giving time to a principal debtor, or dealing with or altering the security held by the principal creditor, shall not of itself discharge a surety or guarantor
*
*
*
" did not apply.
The security held by the creditor to which the enactment refers is not the obligation either of the debtor or of the surety, nor the instrument evidencing such obligation, but some other security held by the creditor for its performance.
Here the charge against the plaintiff was not that of having dealt in an unauthorized manner with any such security, but rather that he had so dealt with the very instrument evidencing the surety's contractual obligation itself.-Held, further, that the facts, known to plaintiff, that G. endorsed the note only for use as collateral to a bank, and would not have endorsed it had he known it was to be used for advances to be made by plaintiff, a money lender, vitiated G.'s consent and prevented any obligation arising on his part in favour of the plaintiff. Smith v. Wheatcroft, 9 Ch.
D. 223, at p. 230, and other authorities, cited.- Held, further, that as G. endorsed the note for the sole purpose of being used for a loan of $10,000 to be made in five advances of $2,000 each to L. Co., which advances were necessary to carry out an arrangement with creditors, the plaintiff, who knew these facts, by refusing and failing (as found by the court) to advance final
$2,000 promised, declined to fulfil an essential condition of
G's undertaking of his obligation guarantor, and thereby discharged him from his liability.
(Burton v. Gray, 8 Ch.
App. 932; Whitcher v. Hall, B. &
269, at p. 275).-The burden of proving that the note was to be a general continuing collateral security, as alleged by plaintiff, was on him.
(In re Boys L.R.
10 Eq. 467; Tatam v. Haslar, 23 Q.B.D.
345, at p. 348).-Further, the court was inclined to hold that, assuming that plaintiff could claim against G. for the
$8,000 advanced on the note, the claim was satisfied, partly by certain payments, by his appropriation of which the plaintiff was bound, and partly by a payment on a Government contract obtained by L. Co. and assigned to plaintiff. Though, as against L. Co., plaintiff might have a right to apply the payment received on the Government contract first against other moneys advanced to L. Co. to enable it to carry out that contract, yet he had no such right as against G. who was entitled to have his stipulation as to Government contract moneys (see first paragraph supra) carried out. (Newton v. Chorlton, 10 Hare, 646, at p. 653). Failure to apply these moneys as stipulated for by the surety would amount to a variation in the contract which would release him.
(Can. Bank of Commerce v. Swanson, 33 Man. R. 127; Pearl v. Deacon, 1 DeG. & J., 461).
w.E....................
2-Bond against embezzlement or theft city employee-Bond limited to only embezzlement or theft committed within 12 months prior to notice of discovery - Employee's falsification of books to previous defalcations-Time of embezzrement or theft-Onus of proof-Particulars Renewal-Offence committed before, but discovered after, renewal-Complaint as to city's answers to questions in regard to proposed guarantee-Employee's failure to fulfil, and city's neglect to enforce, statutory requirements-Alleged failure city to notify discovery of judgment against employee.] Defendant, by bond dated 20th June, 1907, agreed to make good to plaintiff city, to the extent of $10,000, pecuniary loss sustained through embezzlement or theft of money by its tax collector in connection with his duties. The bond was renewed yearly, the last renewal being for the year begimning 1st October, 1922. The collector received payment of taxes in currency or cheques. From time to time, usually daily, he handed to a clerk or placed in the cash books for entry such of the receipted tax bills as he desired to account for at that time.
These were in due course entered in the cash books. The total amount of the bills so entered was made up, and the collector then gave the clerk a corresponding amount in cheques and currency, for which the clerk made out a deposit slip, which, with the cheques and currency, was handed to the city treasurer whose duty it was to make the bank deposits.
From the collector's cash books the payments thus recorded were credited in the ledger accounts of the various taxpayers in payment of whose accounts they had been attributed. On 19th September, 1922, R., a taxpayer, paid two cheques which were deposited by or on behalf of the collector with the treasurer on 21st and 28th September.
On 26th
January, 1923, B., a taxpayer, paid a cheque which was deposited with the treasurer on 30th January.
Except as to a portion of B.'s cheque, the collector did not give credit in his books to R. and B.
for these payments, but appropriated the cheques in payment of other taxes which had already been paid, and for which he had issued receipted bills; but the taxpayers' money which the collector received in payment of these other taxes was not credited to their accounts in his cash books; instead, R.'s cheque, and
B.'s cheque in part, were deposited so that it was made to appear that taxes other than those of R. and B. had been paid by their cheques, the collector suppressing the evidence that their taxes had been paid. The city claimed against defendant
(up to the amount guaranteed) for misappropriations by the collector to the amount of the cheques of R. and B. not properly credited.
Notice had been given embezzlements or thefts, on 2nd June, 1923.
The bond provided that no more than one claim, and that only in respect of acts of embezzlement or theft committed within
12 months prior to notice to defendant of discovery thereof should be made.- Held, as to the contention that there was no evidence of embezzlement or theft within said twelve months period, that it should be found or inferred that there was embezzlement or theft of the sums misappropriated on the dates when the cheques of R. and B. were by the collector's direction used and deposited with the treasurer to make up the credits for which they were not intended; that, in the absence of proof to the contrary, it should be found that the city then sustained pecuniary loss to the amount so misappropriated, by reason of embezzlement or theft by the collector in connection with his duties; there was prima facie, if not conclusive, proof of misappropriation at the time of the false accounting; if defendant relied upon an earlier date for the offence than that prima facie proved, it should have adduced evidence of it.- It was the appropriation of the cheques of R. and B. to the payment of the accounts which the collector knew had been otherwise satisfied by money in his hands, that constituted the commission of the crime, and its proof.
Rex v.
Hodgison (3 C. & P. 422 at p. 424) and other cases, referred to.-Held further, as to the contention that the R. and B.
cheques, having been actually delivered to the treasurer and deposited in the city's bank account, thus reaching their intended and proper destination, were not misappropriated, and that, therefore, any charges of default or loss alleged by the particulars of the statement of claim failed, that, although the particulars were lacking in some allegations necessary fully to explain the nature of the case, yet in view of a previous explanatory letter by the city's solicitor to defendant, and the evidence and the course of the trial, the contention should not prevail; an amendment, if necessary, should be allowed.-Held further, that, in view of the terms of the bond, the provision to indemnify as to embezzlement or theft "committed during the continuance of this agreement, and discovered during the continuance of this agreement," covered embezzlement or theft committed before,. but discovered after, the renewal of the bond on 1st October, 1922.-Held further as to complaint respecting certain answers by the city to questions submitted with regard to the proposed guaranty, which answers, along with others, were to be taken as "the basis of the contract," that, taking into consideration that, although the questions were not fully answered, the answers were accepted by defendant, and taking into consideration all the questions and answers made including some made later, in 1918, relative to a renewal of the bond, and under all the circumstances and evidence, the answers complained of, when given a reasonable interpretation, could not be relied on to prevent recovery under the bond.- Held further, as to defendant's contention that it was discharged because the city had dispensed with certain duties of office with which the collector was charged by statute, that the contention failed for lack of proof; that, although there was great neglect in enforcing the statutory requirement of a monthly return, the evidence did not satisfy the condition to the discharge of a surety affirmed in Black v. Ottoman Bank (6 L.T.N.S. 763) that there must be some positive act done by the employer to the surety's prejudice, or such degree of negligence as to imply connivance and amount to fraud; moreover, on the evidence, the statutory requirements did not influence the making of the agreement; and under it their performance was neither represented nor expressly or impliedly undertaken by the city; there was no evidence of fraudulent concealment, or of suppression of any fact which the city was bound to communicate.
Davis v. London and Prorincial Marine & Ins. Co. (8 Ch. D. 469) referred to.-Held further, as to a clause in the bond avoiding it if the city should fail to notify defendant "of the discovery of any writ of attachment, execution issued, or judgment obtained against the salary or property of the employee " as soon as it became known to the city, that the judgment in question did not appear to have been one "obtained against the salary or property of the employee,"
moreover doubt was expressed that the city could be held to have discovered a judgment merely because the city auditor in the course of business heard of it.- Held, generally, as to the effect. of the city's conduct on defendant's liability, the principle affirmed in MacTaggart v.
Watson (3 Cl. & F. 525 at pp. 542, 543)
should be applied.-Judgment of Chisholm J., of the Supreme Court of Nova
Scotia, in favour of the city, affirmed.- Anglin C.J.C. dissented, on the ground that certainly no moneys received from the it. and B. cheques mentioned in the city's particulars of claim were embezzled or stolen or lost to the city; and even on amendment of the particulars to accord with the statements in the city solicitor's previous letter to defendant, the claim so amended being regarded as based upon the embezzlements or thefts which the false entries in the books as to the proceeds of said cheques were designed to cover up, yet the actual embezzlements or thefts should not be taken prima facie to have occurred when said falsification of the books took place, nor did the proof of such falsification cast the burden on to show that the actual embezzlements or thefts occurred at earlier dates; the city was required to establish loss within the terms of the guarantee;
without warranting a finding that the moneys were actually embezzled or stolen within the 12 months period prior to notice of discovery, according to the limitation in the bond, the city could not recover.
& Co. LD.
HALIFAX...................
3 - Insurance against embezilement or theft by employee-Renewal of policy- Statements by insured forming basis of renewal-Statement untrue in fact, though made in good faith and in ignorance of untruth-Conditions of contract-Right of recovery.] Defendant issued a policy insuring plaintiff against pecuniary loss by embezzlement or theft by an employee in connection with his duties.
One of the conditions (expressed to be conditions precedent to plaintiff's right to recover under the policy) was that "This policy may be continued in force by renewal receipt upon the company's form, and, if so continued, the material statements made in writing upon the application for this policy shall be deemed to be repeated at the time of such renewal, and to form the basis of such renewal, together with any further material statements made on the occasion of such renewal."
For the purpose of a renewal, plaintiff certified to defendant that the employee "during the year
*
*
* performed his duties faithfully and satisfactorily.
He is not
GUARANT EE-Concluded at present in arrears or default." employee was in fact in arrears and default at the time, but the certificate was made without knowledge of this and without fraud.-Held, plaintiff could not recover under the policy; it was renewed on the faith of an express declaration, the truth of which was made a condition precedent to liability attaching, and which was untrue in fact; it was no answer to say that the declaration was made in good faith and in ignorance of its untruth.
Railway Passengers Assur. Co. v. Standard Life Assur. Co., 63 Can. S.C.R. 79, referred to.
ITr., v. HOUSING COMMISSION HALIFAX.................. 4--Garantie de fournir et faire valoir in deed of transfer of debt.............. HABEAS CORPUS-Minor child in care of third person-Rights of parents-Child 14 years of age-Right to choose where to live-Lack of restraint-Interest of the child-Judicial discretion.] In the other circumstances of the case as found by the trial judge, the court declined to interfere with his order refusing a writ of habeas corpus to a mother asking for the possession of her daughter, when the latter, then being past 14 years and 8 months of age and not without adequate intelligence to make a reasoiiable choice, expressed her desire to remain with the respondent with whom she had been living happily for seven years.-Judgment of the Court of King's Bench (Q.R. 40 K.B. 391) aff. MARSHALL v. FOURNELLE........... Municipal corporation - Action en bornage-Right to exercise- Boundary line between street and contiguous lot-Homologated line not equivalent to bornage-Art. 504 C.C ...... 2-Icy condition of sidewalk-Injury to pedestrian - Liability of municipality - "Gross negligence" - Consolidated Municipal Act, 1922, Ont., c. 72, s. 460 (3)- Reversal of concurrent findings of fact. 242 Public iustitutions - Injury to patient gence of nurses-Liability of board created by Municipal Hospitals Act, R.S.A., 1922, c. 116-Regulation as to non-liability- Validity-Notice to patient ......... HUDSON'S BAY COMPANY-Right to precious metals in certain lands.... 458 Marriage contract - Mutual donation - Usufruct-To take effect at death of one consort--Stipulation in favour of heirs "du cdte estoc et ligne" -Substitution - Right of "taking back" (droit de retour)-"Biens propres de succession" - Changes effected by the civil code in the law of ab-intestate successions- Arts. 599, 779 C.C.]
A clause in a marriage contract provided for mutual and reciprocal donation between husband and wife of all the property belonging to the consort first dying to be enjoyed by the survivor in usufruct "pour aprhs son extinction retourner les dits biens aux h6ritiers des dits futurs 6poux du c~t6 estoc et ligne d'ot ils procderont."- Held that this clause did not stipulate a right of "taking back" (droit de retour)
within the meaning of art. 779 C.C. (or under the law preceding the civil code)
in favour of the heirs at law of the line of the deceased consort.-Held, also, that a substitution, either vulgar or fiduciary, had not been created by the terms of the clause.-Held, further, that the last part of the clause constituted, under the law preceding the civil code, a stipulation of
"biens propres de succession," but that as to the succession of the last surviving son of the consorts, who died subsequently to the civil code, the new law of succession applied.-Judgment
Court of King's Bench, (Q.R. 39 K.B. 56)
aff.
DUFORT............
2 - Marriage contract - Registration - Rights of the wife after death of husband- Renunciation by the wife-Validity-Arts.
1265, 1301 C.C.]
When in a marriage contract duly registered rights of habitation and usufruct of an immovable belonging to the husband have been granted to the wife to be exercised after the death of the husband, the renunciation by the wife to her rights, contained in a deed of sale of the immovable by the husband, is valid, not being in contravention of article 1265 C.C.-Such a renunciation is not void as being prohibited by the terms of article 1301 C.C., the wife by her act not having bound herself either with or for her husband.- A married woman may validly renounce, in favour of a third party, the hypothec granted by her husband in their marriage contract to assure the payment of a gift inter vivos of money and other advantages contained in the said contract.-Provided the personal liability of the husband remains, such a renunciation by the wife to her hypothec is not in contravention of article 1265 C.C.-Neither is it, by itself and in the absence of special circumstances to the contrary, void as prohibited by article 1301 C.C.-The husband who, in a marriage contract, by what is in fact a gift in contemplation of death, has donated to his wife the enjoyment and usufruct of a certain specific
HUSBAND AND WIFE-Concluded property, may nevertheless dispose of it y onerous title and for his own benefit and in such a case the donation is rendered ineffective (art. 823 C.C.).-Judgment of the Court of King's Bench (Q.R. 40 K.B. 525) rev.
3-Wife separated as to property-Sale of property-Pledge-Debts of the husband- Validity-Art. 1301 C.C.]
R., a married woman separated as to property, sold land and buildings to D. for $8,000 which she acknowledged in the deed of sale as having already been paid to her. But the facts were that the amount of $8,000 was formed by a sum of $6,000 then due to D. by the husband of R. and $2,000 to be advanced in the future by D. and used "in the construction of buildings on the property" sold. In a counter-letter signed on the same date as the deed of sale, R., falsely admitting that she was indebted to D. in a sum of $8,000 on promissory notes, declared that she was selling the above property to D. in payment of that debt; and it was further stipulated that the property would be returned to R. when reimbursed, by R. or her husband, of the moneys advanced by him, including the sum of 88,000.-Held, that the deed of sale was void and of no effect under the terms of article 1301 No sale was ever intended between the parties and R. never had the intention of selling her property and using the proceeds to pay immediately the debts of her husband, as she had the right to do; but she in fact pledged her property in order to obtain delay from the creditor of her husband and was thus binding herself to pay his debts in the future.-Held, although it has been decided that the nature or form of an agreement should be considered by the courts without looking into the motives or purposes which the parties may have had in view (Salvas v. Vassal (27 Can. S.C.R. 68) and Booth v. McLean ([1923] S.C.R. 243) ), that principle of law does not apply to persons incapable of contracting and specially to a married woman binding herself in a contract with or for her husband, as otherwise the parties would be able to evade the prescriptions of article 1301 C.C. by giving an apparent valid title to a transaction forbidden by law.
........ HYDRO-ELECTRIC POWER COM- MISSION OF ONTARIO
See ELECTRIC
Renewal - Description of property-Failure to disclose change in description-Misrepresentation-Character of occupancy - Vacancy - Materiality - Statutory con- INSURANCE, FIRE-Continued ditions-Ontario Insurance Act, R.S.O.,
1914, c. 183.] The effect of the renewal of a policy of fire insurance is that the property is insured subject to the terms and conditions of the policy, and the description of the property in the policy operates with relation to the date of renewal; and if, as the property then stands, it does not answer the description in the policy, there is a misdescription, which, if it be material and to the prejudice of the insurer, will, where the policy is subject to such statutory conditions as were provided in The Ontario
Insurance Act, R.S.O., 1914, e. 183. disrecover.-Mac- Gillivray on Insurance, p. 298, and In re
Wilson and Scottish Ins. Corp. Ltd.
([19201 2 Ch. 28) referred to.-A change material to the risk was held to have occurred in the description of premises with regard to their occupancy.
Court referred to evidence going to establish materiality, but also indicated, referring to Western Assurance Co. v.
Harrison (33 Can. S.C.R. 473), that a representation may be held material although no evidence of materiality be given at the trial except the proof of the representation. - Where the property insured is described as occupied in a particular manner, and occupation in that manner is material to the risk, the insurance does not attach to the risk if the premises, at the date of the contract, be not, and have not subsequently been, so occupied. Farr v. Motor Traders
Mutual Ins. Soc. Ltd. 3 K.B. 669)
referred to.-A change in the property, from occupation as a residential store to vacancy, not being notified to the insurer, and being material, as found, was held to avoid a policy in question within the intent and meaning of no. 2 of the statutory conditions in R.S.O., 1914, c. 183.-A policy of fire insurance, dated 5th January, 1923, was on a building described as
"occupied as general store and dwelling."
The tenant had been notified by the insured to quit on 1st January, and began to move out on 2nd January and completed moving on 5th or 6th January, and the building ceased to be occupied as described. It was held that, either the property at the time of the policy did not answer to the description, or it must have been known to the insured that the building was in process of being vacated, and would immediately cease to be occupied as described, and this, having regard to the evidence and findings, constituted, if not a misdescription, a misrepresentation of, or omission to communicate, a material circumstance, or a change material to the risk, by reason of which, under nos. 1 and 2 of the statutory conditions in R.S.O., 1914, c. 183, the policy was avoided.-Judgment of the
INSURANCE, FIRE-Concluded of Ontario (58 Ont. L.R. 351) which, reversing judgment of Riddell J. (58 Ont. L.R. 351), held plaintiff entitled to recover on certain fire insurance policies, reversed. Roy; Co. v. Roy.......... 2---Statutory condition against effecting subsequent insurance with another insurer- Insured subsequently obtaining policy from another insurer which never attaches by reason of statutory condition therein against prior insurance-Insured's right to recover under first policy.]
statutory condition in a fire insurance policy that the insurer is not liable for loss "if any subsequent insurance is effected with any other insurer, unless and until the insurer assents thereto" contemplates a subsequent insurance which is effective, and is not applicable so as to defeat the insured's claim for loss merely because the insured, without the insurer's assent, subsequently obtains from another company a policy which never attaches by reason of the application of the statutory condition therein that "the insurer is not liable for loss if there is any prior insurance with any other insurer. "-Manitoba Assurance Co. v. Whitla, 34 Can. S.C.R. 191, at p. 206, not followed, in view of Equitable Fire & Accident Office, Ltd. v. The Ching Wo Hong, A.C. 96.- Judgment of the Supreme Court of Nova Scotia en banc (59 N.S. Rep. 70) affirmed. HoME CO. INSURANCE, GUARANTEE
INSURANCE, LIABILITY - Costs Party and party costs-Appellant sued by respondents for damages caused through automobile collision -Appellant insured against liability-Insurer instructing solicitors to act in suit on appellant's behalf- Right of successful appellant to costs from respondents ..............
See CosTs 1.
LIFE - Agency agreement - Construction - Right discharge agent-Commission on renewal premiums paid after discharge................ INTEREST - Dividends on company shares-Right to receive dividends suspended during the War-Trading with the enemy regulations-Dividends payable in United States currency-Payment after the War-Conversion into Canadian funds- Rate of exchange-Time as to which prevailing rate applied-Right to interest dividends withheld.] At the beginning INTEREST--Continued the War the claimant, a British subject, owned shares of stock in C. Co.
these shares were registered in the name of an enemy bank, payments of dividends were withheld during the War, the Custodian becoming entitled to receive them by the trading with the enemy regulations. The dividends were, however, retained by C. Co. After the peace, the claimant established his right to the shares and accrued dividends; the Custodian released them; and on 1st June,
1921, C. Co. registered the shares in the claimant's name and paid him dividends accrued after
1st October,
1917, but still withheld the previous dividends. These were paid in March,
1924, except as to disputed claims to premium of exchange and interest. The dividends were payable in United States currency.
The payment in 1924 was in the Canadian equivalent of the amount in
United States funds, as of February, 1924.
The Custodian, under an arrangement, assumed C. Co.'s liability to the claimant for the balance of his claim, both for premium of exchange and for interest, and the claimant sued the Custodian in the
Exchequer
Court.
Audette J. held
Ex. C.R. 77) that the claimant should be paid at the rate of exchange ruling on the date when each dividend became due and payable to the Custodian, and should be paid interest from
1st June, 1921.
The Custodian appealed, denying the claimant's right to interest;
and the claimant cross-appealed, claiming the difference in exchange as of 1st June,
1921, or, in the alternative, more interest.
the rate of exchange should be that which ruled at the time when each of the dividends became due and payable to the Custodian, who was the lawful recipient during the war, and not that of
1st of June, 1921, when the claimant became entitled to receive them; had there been no war, the conversion to
Canadian money should have been made as at the time when the obligation to pay in foreign currency was incurred, that is, the respective dates when the dividends were declared to be payable
(cases cited); and the fact that, at the times fixed for payment, the claimant's right to receive them was suspended by reason of the war, was not a ground for application of a different rule.-Held, further, that, having regard to s. 34 of the Ontario
Judicature Act, and to its interpretation in Toronto Railway Co. v. City of Toronto
A.C. 117, at pp. 120-121), interest should be paid from 1st June, 1921, as upon a just debt improperly withheld;
the dividends constituted a "debt" within the meaning of the interpretation given to the statute; the right of recovery was in suspense during the war, but the debt nevertheless remained; that the dividends
INTEREST-Concluded were payable in U.S. currency did not alter their character as a debt (In re Severn and Wye and Severn Bridge Ry. Co., [1896] 1 Ch. 559; Ehrensperger v. Anderson, 3 Ex. 148; Socidth des HOtels le Toquet Paris-Plage v. Cummings, [1922] 1 K.B. 451; Manners v. Pearson, [18981 1 Ch. 581, referred to); the claimant's contention that interest should be reckoned from the respective dates when the dividends declared, could succeed, because these were not contractually interest bearing debts, and the withholding of the dividends during the war was lawful, and therefore should not be visited by damages.
Cusv. BLUCHER................ RES
WoRDs JURY - Charge to - Indirect comment failure of accused to testify - Canada Evidence Act, R.S.C. (1906), c. 145; s. 4, subs. 5...........................
2-Misdescription of count in judge's charge to......................... 3-Interference on appeal with jury's .findings.......................... 4 - Judge's charge to-Misdirection 633 LABOUR UNION-Federation of municipal employees-Police employees-Resolution by municipality forbidding membership-Threat of dismissal-Validity - "Municipal Strike and Lock-out Act" 11 Geo. V, c. 46, now R.S.Q. [1925] c. 98, sections 2520 oc, 2520 od, 2520 oj.] The respondent the secretary of a branch the Federation of Municipal Employees, formed by the police employees of the city of Montreal. The municipal council passed a resolution that no member of the police force would be allowed to be a member of the police union and authorized the chief of police to act accordingly.
The latter issued an order that it was "strictly forbidden all officers or men to belong to the police union as constituted and they have eight days from to-day to dispose of all money," etc.
The respondent asked by his action that the resolution and the order be annulled and set aside as being in contravention the provisions the "Municipal Strike and Lock-out Act."-Held that, even if the resolution and the order constituted a threat of dismissal in case non-compliance with them, the city of Montreal did not I)EX
LABOUR UNION-Continued contravene the Act, as the legislative intention was to limit its application to cases in which there had been an actual dismissal of an employee before submitting the dispute to a board of arbitration.-Judgment of the Court
King's Bench (Q.R. 42 K.B. 335) reversed.
LA CTt BPLc.... 535
LAKE-Ownership of lake non-navigable and non-floatable - Banks - Droits de
- Right of way - Grant-Sei gniory
...................
See GRANT.
LANDLORD AND TENANT-Lease of parts building-Bursting of standpipe in leased premises--Damage to lessee's goods- Alleged liability of landlord.] Defendant lessee of a building, sublet parts thereof to plaintiff.
The premises sublet were described as floor spaces, the superficial dimensions being ascertained measurement of horizontal distances along the interior surfaces of the walls and partitions. A standpipe, for conducting through the building water from the city's system for fire protection, which passed through plaintiff's premises, burst thereon, in a part used for storage purposes, and plaintiff's goods were damaged by water. Plaintiff sued defendant for damages, alleging that the pipe froze and burst through defendant's negligence in failing to heat the premises, in failing to turn off the water and drain the pipe during the cold weather, or in failing to take other precautions.
lease to plaintiff contained no provision for heating.
There no means within the building of turning off the water.
There was a valve at the standpipe connection in an area under the street sidewalk and perhaps another at the junction with the city water main, but it was not shown that defendant had control of these.- Held, defendant was not liable; there was no evidence that in fact defendant had possession of, or exercised any control over, those portions of the pipe which were within plaintiff's premises; it could not be said that, by reason of the description of the demised premises as floor spaces of defined areas within walls and partitions, the pipe was not included in the description; Hargroves v. Hartopp ([1905] 1 K.B. 472),
Dunster v. Hollis ([1918] 2 K.B. 795), and Cockburn v. Smith ([1924] 2 K.B. 119), distinguished. There was no room for application of the rule in Rylands v.
Fletcher (L. R. 3 330), either in its general effect or subject to any of its modifications.-The fact that a radiator in plaintiff's office was supplied with heat from a small furnace which defendant operated did not justify an implication that defendant undertook to keep the room where the break occurred free from
LANDLORD AND TENANT-Concluded frost or its consequences.-Anglin C.J.C., while concurring in the reasons above indicated, also agreed with the grounds taken by Macdonald C.J.A. and M.
J.A. in the court below ([1926]
3 W.W.R. 129).-Judgment of the Court of Appeal of British Columbia ([19261 3 W.W.R. 129) affirmed. Scy- TEs & Co., Ltd. v. Grnsow's LTD... 2---Special leave to appeal to Supreme Bankruptcy Act (D., 1919, c. 36)-Whether hotelkeeper a "trader" within s. 47 of Act Respecting Landlord and Tenant, N.B. (C.S. N.B., 1903, c. 153, as amended 1924, priority in New Brunswick under assignment in bankruptcy................ 3-Procuring of new lease by former by res judicata-Effect of judgment in overholding tenants proceedings-Jurisdiction of judge in such proceedings-The Landlord and Tenant Act, R.S.O., 1914, c. 155.......................
4- Wrongful eviction of lessees of farm- Liability of lessor-Measure of damages- Loss of unexpired term-Matters to be considered in assessing damages.... 413 5- Bankruptcy of tenant-Extent of landlord's right to priority over other creditors-Bankruptcy Act (D., 1919, c. 36), s. 52, as enacted 1923, c. 31-New Brunswick Act Respecting Landlord and Tenant, ss. 47, 48, 49, 51, as enacted 1924, c. 30-"Trader"-"Retail merchant"-"Ostensible occupation".... 512 LEASE
LIABILITY INSURANCE
LIFE INSURANCE
See LIFE. LIMITATION OF ACTIONS - Real property-Title by possession-The Limitations Ad, Ont. (R.S.O., 1914, c. 75) s. 5- Nature of use and occupation-Nature and extent of enclosure-Evidence as to length of time-Trial judge's estimate of witnesses- Reversal of findings.............. Damage to property-Method of operation- Dry season-Pure accident..........
MARRIAGE
See WIFE.
MARRIAGE CONTRACT - Mutual donation- Usufruct-To take effect at death of one consort-Stipulation in favour of heirs "du cdt estoc et ligne"-Substitution-Right of "taking back" (droit de retour)-"Biens propres de succession"- Changes effected by the civil code in the law of ab-intestate successions-Arts. 599,
779 C.C ..........................
See WIFE
2-Registration-Rights of the wife after death of husband-Renunciation by the wife-Validity-Arts. 1265, 1301 C.C.
MARRIED WOMAN-Wife separated as to property-Sale of property-Pledge - Debts of the husband-Validity-Art. 1301
MASTER AND SERVANT gence-Injury to farm employee in employer's dwelling-Defective conditions alleged as cause-Alleged negligence of employer- Reasonable efforts by employer to remedy condition-Error of judgment as to cause of trouble-Acceptance by employee of risk..............................
2-Municipal Strike and Lock-out Act
11 Geo. V, c. 46, now R.S.Q. [1925]
c. 98, sections 2520 oc, 2520 od, 2520 oj 535
MERGER
MINES AND MINERALS-Assessment and taxation-Mining rights and surface rights acquired and held by same corporation under separate grants and titles-Assessment by township municipality-Sale for taxes - Title of purchaser - Mining rights, as such, not assessable- Description in tax deed-Lost assessment rolls-Presumption as to description of property assessed-Ambiguous description
-Presumption as to what property assessed
-Falsa demonstratio-Right of township to assess land including minerals-Acquisition, under tax deed, of land including minerals-Assessment Act, R.S.O., 1914, c. 195-Land Titles Act, R.S.O., 1914, c.
126..............................
2---Crown's prerogative right to precious metals-Law as to title to, and conveyance of, precious metals-Precious metals in lande farnerly owned by Hudson's Bay
MINES AND MINERALS-Concluded Company under its charter of 1670-Construction and effect of Deed of Surrender of 1869 from the Company to the Crown, and of subsequent proceedings and legislation- Precious metals in such lands as belong to the Company under the terms of its surrender, etc....................
MOTOR VEHICLES - Contributory negligence-Motor Vehicle Law, 1915 c 43, s. 4, as amended 1925, c. 10 (N.B. -- Liability of owner of motor truck for personal injury caused through servant's negligent driving-Boy injured while riding on running board of truck- Essentials to constitute contributory negligence-Causa proxima, non remota, spectatur-The Contributory Negligence Act, 1925, c. 41, s. 2 (N.B.)-Whether Act would apply to affect claim for damages of father of injured boy............... MUNICIPAL CORPORATION-Action en bornage-Right to exercise-Boundary line between street and contiguous lot- Homologated line not equivalent to bornage- Art. 504 C. C.]-Held that, in the absence of special statutory provisions derogating from the general terms of article 504 of the civil code, a municipal corporation can exercise the action en bornage in order to settle the boundaries between a street and a contiguous private land.-Held also that, when a line shown on a plan approved by a municipal council and duly homologated by the court, fixes the limits between a street and the adjoining lots, even although such plan be declared by the legislature final and binding upon the owners of the lots and the municipal corporation, the latter is not precluded from instituting an action en bornage and is also liable to be sued in a similar action, as the general powers of homologation are not inconsistent with the terms of article 504 of the civil code.- The city of Montreal, under the authority of the statute 1 Gao. V (2nd s.) 1911, c. 60, passed by-law no. 436 which provides that "it shall be the duty of the city surveyor to establish and fix the alignment and level of the streets
* that "every person desiring to erect a building in any street must previously obtain from the city surveyor the alignment and level of such street *."Held that the terms of this by-law do not constitute a special method to settle the boundary line between the streets and the contiguous lots in the city of Montreal, so as to deprive the latter of its right to exercise the action en bornage which is an action accessory to its rights of ownership.
This by-law is a purely administrative regulation passed in favour of those who intend to MUNICIPAL CORPORATION-Conc.
build on these lots and does not possess the essential features of a legal "bornage."
of the Court of King's
Bench (Q.R. 40 K.B. 205) aff.
LEwIs v.
CITY MONTREAL................
- Street accident - Charter of the city of Montreal-Notice under section 536-Insuficiency-Failure to indicate place-Acknowledgment of notice and promise of attention-Silence of city's officers-Prejudice to city-Opportunity to obtain further information.] Where the conduct of the city officials, on the receipt of an incomplete notice of an accident under section 536 of the charter of the city of Montreal, was such as to lull the victim into a sense of security and to give him cause to believe that his notice was accepted as sufficient, the trial court, under the third paragraph of section 536, could come to the conclusion that the conduct of the city officials had prevented the victim from giving a more explicit notice.-But the default of such notice cannot be remedied by the absence of prejudice to the city or by the fact that the city, having been placed in a position to receive information as to the accident, has refused to take advantage of its opportunities.-Judgment of the
Court of King's Bench (Q.R. 41 K.B. 529)
- Icy condition of sidewalk-Injury to pedestrian - Liability of municipality-"Gross
Consolidated Municipal
Act, 1922, Ont., c. 72, s. 460 (3)-Reversal of concurrent findings of fact........ 242
- Labour union-Federation of municipal employees-Police employees- Resolution by municipality forbidding membership - Threat of dismissal - "Municipal Strike and Lockout Act" 11 Geo. V, c. 46, now R.S.Q.
1 1925], c. 98, sections 2520 oc, 2520 od,
2520 oJ...........................
5-and see
NAVIGATION
NAVIGATION COMPANY
Public institutions-Injury to patient- Negligence of nurses-Liability of board created by Municipal Hospitals Act,
R.S.A.,
1922, c. 116-Regulation as to non-liability
-Validity-Notice to patient.]
respondent is an hospital board organized under The Municipal Hospitals Act, R.S.A., 1922, c. 116. Late in the night of April 8th, 1924, the appellant was brought to the hospital by his family physician to be operated on for a ruptured appendix. The latter assisted his partner who performed the operation, the anaesthetic being administered by a third physician. Two qualified nurses were in attendance Mrs. T., the matron of the hospital, and Miss S.
As a part of the treatment and to combat the shock of the operation, the bed in which the appellant was to be placed after the operation required to be heated, and for that purpose two rubber hot water bottles, placed inside flannelette bags, were filled in the kitchen by Mrs. T., the water according to her statement being "quite hot."
The appellant was removed from the operating table and put in the bed which was placed in the hall outside. The next morning, when he recovered consciousness, it was discovered that his left leg had been severely burned near the ankle by one of these hot water bottles which was found lying next to his skin and inside the blanket which was still tucked around his legs and feet and apparently had not been disturbed during the night. The appellant sued damages.
The trial judge gave judgment for $5,182, finding that the proximate cause of the accident was the filling of the bottle with water that was much too hot without any testing of it and the failure to investigate and see if any adjustment was necessary. The appellate court reversed this judgment, holding on the authority of Hillyer v. Governors of St. Bartholomew's Hospital, [1909 2 K.B. 820, that the respondent hospital was not liable in damages.- Held that the respondent hospital cannot claim exemption from liability on the ground that it was "a government agency not liable for the negligence of its servants" or "a public body carrying on work not for profit but for the benefit of the residents of the district." Mersey Docks and Harbour Board Trustees v. Gibb (1 Eng. & Ir. App. 93) foll. Sanitary Commissioners of Gibraltar v. Orfila ( (1890) 15 A.C. 400) dist.-Held, also, Idington and Mignault JJ. dissenting, that the decision in Hillyer v. St. Bartholomew's Hospital K.B. 820) was not applicable to the circumstances of this case. That decision is not authority for non-responsibility of an hospital corporation for neglect by a nurse occurring after the patient has left the operating room and in regard to matters which fall within the scope of her ordinary duties as the heating of a patient's bed and the placing of hot water bottles in it. Even assuming that the placing of the hot water bottle which burned the appellant took place while the appellant was still in the operating room under the orders and control of the operating surgeon and his assistants, it is in evidence that, some time after the appellant had been removed to the hall, the nurse S. noticed a marked reddening of the skin about his chest where another hot water bottle had been placed; and the failure of the nurse to make sure that the other hot water bottle against the leg was not a source of danger is inexcusable and amounts to negligence in her capacity as a servant of the hospital in a matter of ministerial ward duty which entailed responsibility of that body for its consequences.
The obligation undertaken by the hospital was not merely to supply properly qualified nurses but to nurse the appellant; and it was the negligence of its servant in the discharge of that contractual obligation that caused the severe injury of which the appellant complains.-Per Idington and Mignault
JJ. (dissenting)
. The present case falls within the ratio decidendi of the Hillyer
Case. The respondent hospital cannot be held liable for the result of a treatment professionally administered to a patient by physicians and nurses placed under the orders of the physicians when the hospital board have exercised proper care in the employment of the physicians and nurses.-Amongst the regulations enacted for the government of the respondent hospital was regulation no. 9 which provided that "patients accepting such service or treatment, personally assume all risk and responsibility for any accident, injury or casualty of any kind which may happen to befall any patient, visitor or.other person, in the exigencies of such an institution, whether caused by the acts of any of the employees, staff or otherwise."-Held, that the regulation no. 9 invoked by the respondent as relieving it from responsibility to the appellant is ineffectual for that purpose, both because as a regulation it transcends any power of regulation and management conferred by s. 49 of the statute (R.S.,
Alta. (1922), c. 116), and because such notice to the plaintiff of its existence as might, under some circumstances, make it an implied term of a contract between the respondent and a patient, has not been shewn. Idington and Mignault JJ.
expressing no opinion.
PRO- HOSPITAL BOARD..
2 - Municipal corporation - -Icy condition of sidewalk-Injury to pedestrian-Liability of municipality - "Gross negligence"-Consolidated Municipal Act, 1922, Ont., c. 72, s. 460 (3)- Reversal of concurrent findings of fact.
CITY ......
NEGLIGENCF-Continued
3 - Contributory negligence - Motor vehicles-Motor Vehicle Law, 1915 c. 43, s. 4, as amended 1925, c. 10 (N.B.)- Liability of owner of motor truck for personal injury caused through servant's negligent driving-Boy injured while riding on running board of truck-Essentials to constitute contributory negligence-Causa proxima, non remota, spectatur-The Contributory Negligence Act, 1925, c. 41, s. 2 (N.B.)-Whether Act would apply to affect claim for damages of father of injured boy.]
Under the Motor Vehicle Law, 1915, e. 43, s. 4, as amended 1925, c. 10 (N.B.), defendants were held liable in damages to a boy (the infant plaintiff) and to his father, for injury to the boy, while riding on the running board of defendants' motor truck, in an accident caused (according to jury findings sustained) through negligent driving of the truck by defendants' servant.-The benefit of s. 4 (1) of said Act is not confined to persons using the highway other than those in or upon a motor vehicle the operation of which causes injury.-The jury found the driver negligent in allowing the boy on the running board and in lack of proper attention to his duty of driving, but found contributory negligence in the boy "by staying on the car after having been asked to get off, and by standing on the running board of the car when it was moving."
The courts below gave effect to the jury's findings and to The Contributory Negligence Act, 1925, c. (N.B.)
by reducing the damages otherwise recoverable.-Held, the evidence was consistent only with the view that the boy remained on the running board with the driver's tacit consent; and, further, the maxim In lege causa proxima, non remota, spectatur was not sufficiently adverted to in the courts below; there was no evidence on which the jury could find that fault of the boy was, in the legal sense, a cause of his injury; and his counsel's contentions in this respect at the trial should have been acceded to.-To constitute contributory negligence, it does not suffice that there be some fault on plaintiff's part without which the injury would not have been suffered; a cause which is merely a sine qua non is not adequate.
As in the case of primary negligence, there must be proof, or at least evidence from which it can reasonably be inferred, that the negligence charged was a proximate, in the sense of an effective, cause of the injury (Spaight v. Tedcastle, 6 App. Cas. 217, at p. 219; Beven on Negligence-Can. Ed.-at p. 155; Admiralty Commissioners v. SS. Volute [1922] A.C. 129, at p. 136, and other cases, cited).-Damage or loss is "caused" by the fault of two or more persons, within the meaning of s. 2 of The Contributory Negligence Act, only when the fault of each is a proximate or efficient cause thereof; i.e., only when at common law each would properly have been held guilty of negligence which contributed to causing the injurious occurrence (Can. Pac. Ry. Co. v. Frdchette, [1915] A.C. 871, at p. 879). The
Contributory Negligence Act had no application to the case at bar.-Judgment of the Supreme Court of New Brunswick,
Appeal Division, ([19261 3 D.L.R. 918), reversed in part.--Quaere whether, assuming the boy's contributory fault, The
Contributory Negligence Act would apply to affect the father's claim (which was to recover medical and other expenses for which defendants' negligence entailing injury to his son subjected him to legal liability).
Mc Kittrick v. Byers (58 Ont.
L.R. 158), and
Knowlton v. Hydro- Electric Power Commission of Ontario (58
The Maritime Conventions Act,
(Dom.), which Act did not declare a liability where none previously existed, but regulated, as to each of the vessels at fault, the measure of damages in proportion to the degree of fault. Quaere whether the New Brunswick legislature, having gone to the Admiralty provisions for the enunciation of the law, thereby adopts the Admiralty principles of contribution, including that expressed in
Admiralty Commissioners v. &S. Volute
([1922] 1 A.C. 129 at p. 144).
McLAUGH- .......
............
4-Master and servant-Injury to farm employee in employer's dwelling-Defective conditions alleged as cause-Alleged negligence of employer-Reasonable efforts by employer to remedy condition-Error of judgment as to cause of trouble-Acceptance employee risk.] Plaintiff employed by S. as a farm labourer. They lived together in a shack on S.'s farm.
It was heated by a stove which gave trouble by smoking, which assisted by plaintiff, tried to remedy. One afternoon plaintiff, feeling ill, went to bed, S.
sitting up to look after the stove. Plaintiff awoke two days later with his feet frozen.
S. was found dead on the floor.
The cause of his death was matter of conjecture.
The fire in the stove had burned out.
Plaintiff claimed damages from S.'s estate.-Held, plaintiff could not recover; S. did all a reasonable man would have done to render the shack safe;
assuming that S. committed an error of judgment in thinking (as apparently plaintiff thought also) that the cause of the trouble was in the stove (which S. proposed to replace by a new one as soon as weather permitted) and in not suspecting it to be in the "roof-jack" (serving as a chimney), such an error of judgment would not support a charge of negligence under the circumstances; moreover, if there was an obvious danger, it was as obvious to plaintiff as to S.; and plaintiff, with every means of information that S. possessed, voluntarily remained in the shack; on the evidence, it was not merely a case of knowledge by plaintiff of a possible danger, but of free acceptance by imof any risk there might have been in the existing conditions.-Judgment of the Court of Appeal of Saskatchewan (20 Sask. L.R. 468) reversed.
5 - Logging operations - Steel cable snapping and striking another, the friction causing sparks, starting fire- Damage to property-Method of operation- Dry season-Pure accident.] Defendant was carrying on logging operations, using the "Lidgerwood system' for lifting the logs and carrying them through the air to its railway siding.
A steel cable snapped, and a broken end coiled around a steel guy line, the friction causing sparks which ignited the bark of a tree, starting a fire.
Defendant had all the appliances required by law for fighting fires, and its men did all they could to extinguish the flames, but the fire spread and damaged plaintiffs' property. Plaintiffs claimed damages.-Held, plaintiffs could not recover; as to the complaint that defendant should have used a "tree jack" in its system of operations, it could not be said, on the evidence, that defendant's method of operation was defective; and, although the season was drier than usual, it could not be said that operating at all at the time was per se negligence; the fire was a pure accident (Municipality of Port Coquitlam v. Wilson, S.C.R. 235, referred to).-Judgment Court of Appeal of British Columbia (37 B.C. Rep. 525) affirmed.
Comox & RY. Co........ 6 - Railways - Children walking tracks killed by train-Licensees-Duty of railway company-Satutary prohibition to walk on tracks-Nova Scotia Railways Act, R.S. N.S. 1923, c. 180, s. 268 Plaintiff occupied a house belonging to defendant in its railway yard. Defendant's train, while working in the yard, ran over and killed two of plaintiff's children who were walking on the tracks on their way to school.
The train was moving reversely and there was no one on the car in front to look out.
Plaintiff sued for compensation under The Fatal Injuries Act, R.S.N.S. 1923, c. 229.
The jury found, among other things, that the children were on the tracks by defendant's permission, and that the accident was caused by defendant's negligence, and judgment was entered for paintiff for damages which was affirme on appeal to the §upreme Court of Nova Scotia en banc (59 N.S. Rep. 154).
On appeal to this Court it was urged that, by reason of the prohibition in s. 268 (1) of The Nova
Scotia Railways Act (R.S.N.S. 1923, c.
180) to walk upon the tracks, there could be no lawful permission granted by defendant, and, moreover, that, if the permission found in any way effetive, it conferred on the children no rights beyond those of bare licensees, and therefore there was, in the circumstances, no negligence, as defendant did nothing other than to carry on its shunting operations within its yard in the ordinary and usual manner.-Held, that the judgment below should be sustained;
conduct which is negligence does not cease to be so if or because it is ordinary and usual; the children's presence on the tracks by defendant's permission was an element which should have influenced the operation of the train; defendant was bound to use ordinary care not to run over them, and that duty it did not fulfil; s. 268 (1) of The Nova Scotia Railways Act did not affect the case; the decisions in G.T.R. v. Anderson (28 Can.
S.C.R. 541) and Maritime Coal, etc., Co., v. Herdman (59 Can. S.C.R. 127), while governing in identical cases, should not be extended; the statutory prohibition should not be taken to have the effect of relieving a railway company from liability for damages caused by negligent operation to persons who would have been entitled in the absence of the clause; if it applied to the children, and if, as found, they had permission to walk along the tracks, defendant ought not to be allowed to maintain trespass against them contrary to the fact, or to escape the responsibility which it incurred by its agreement to treat them as licensees; moreover, the children being only seven and nine years of age, and there being no finding as to their capacity for crime, the case could not be treated upon the footing that they were bound by the statute, nor could the principle that knowledge of the law is presumed be invoked against them.
v. MACNEIL. 497
7-Railways-Train striking automobile at highway crossing-Question whether statutory signal given by train-Interference on appeal with jury's findings-Maintaining of bank on side of railway-Contributory negligence- New trial.] R. and
C., while in a motor car driven by R., were injured by defendant's train striking the car at a highway crossing, and sued for damages.
jury found defendant was guilty of negligence causing the accident, its negligence being "whistle not blown at whistling post, maintaining banks that obstruct view of train coming from south"; that R. was guilty of contributory negligence, being "partially to blame in neglecting to ascertain the time that train was due at crossing," his degree of fault being 25 per cent; and that C. was not guilty of contributory Judgment was rendered, on the findings, for damages, those of R. being 75 per cent of his total damages assessed.
The Appellate Division, Ont. (59 Ont. L.R. 396) reversed the judgment, holding that the evidence was overwhelming that the whistle was blown, and it was a proper case to interfere with the jury's finding; that the maintaining of the bank in its original or heightened condition was not negligence in law; and that the whole cause of the accident was the negligence of R. and C. and another occupant of the car. R. and C. appealed to this Court.-Held, The evidence was not so overwhelmingly in favour of the view that the whistle was blown at the whistling post that the judgment which set aside the jury's finding to the contrary should be sustained (Loporte v. C.P.R. [1924] S.C.R. 278).
As to the bank, even if its existence along the railway, caused by the cutting made through a hill and any necessary cleaning out of the ditch, and, in normal cleaning, throwing of materials on the side of the bank, increasing its height, could be regarded as negligence in law there was no foundation in fact for the fnding that it obstructed the view of a train coming from the south; what obstructed the view was the hill itself. As the wrongful finding of the latter ground of negligence against defendant (in addition to the other ground, sufficient to import liability, that the whistle was not blown at the whistling post) might have influenced the jury in their apportionment of the damages according to the degrees of fault as between R. and defendant, a new trial of R.'s action was directed. Owing to the unsatisfactory character of the jury's answer as to the nature of R.'s contributory negligence, the new trial should not be restricted to apportionment of damages, but should take place generally on all issues. There was nothing to justify a finding of contributory negligence against C., and the judgment at trial in her favour was restored. REY- C.P.R.; C.P.R.... 8 - Navigation company wharf-"Slip" in bad condition-Accident in landing passengers-Inspection by government employee-Delay in report and failure to give warning-Liability of the NEGLIGENCE-Concluded
See Cnown 1.
9-Shipping---Collision in St. Clair
River-Vessels approaching each other- Duties as to passing and signalling-Rules of navigation in the Great Lakes-Negligence-Contributory negligence-Last act of negligence cause of collision ..........
See SHIPPING.
10-Municipal corporation - Street accident-Charter of the city of Montreal- Notice under section 536-Insufficiency- Failure to indicate place-Acknowledgment of notice and promise of attention-Silence of city's officers-Prejudice to city- Opportunity to obtain further information
..................
- Railways - Railway station - Waiting-room-Door leading to cellar- Unlocked and no sign-Accident-Person falling down-Liability of railway company
-Art.
1053 C.C...................
12-and see TENANT
PARENT
CHILD - Habeas corpus-Minor child in care of third person-Rights of parents-Child 14 years of age-Right to choose where to live- Lack of restraint-Interest of the child- Judicial discretion ................
PARTIES-Principal action and actions in warranty and sub-warranty-Judgment maintaining them-Appeal by defendant in sub-warranty-Res judicata-Appellate
Court Act, s. 51..................
PARTNERSHIP-Sale of partners' interests to remaining partner-Good-will- Contract-Alleged uncertainty and insufficiency of terms-Evidence to ascertain what was covered by terms used-Specific performance.] Where a partner for a specific consideration agrees to retire and assigns all his interest in the partnership business to the remaining partners, that assignment conveys to the remaining partners the retiring partner's interest in the good-will without express mention, and, unless it has been specifically agreed that the remaining partners shall pay for it separately, they cannot be called upon to make any additional payment for the
PARTNERSHIP-Concluded good-will, for it belongs to them by virtue of their ownership of the business. (Gray v. Smith, 43 Ch. D. 208; Shipwright v. Clements, 19 W.R.
599; Lindley Partnership, 9th Ed. 541 referred to).- Plaintiff claimed specific performance of an alleged agreement by defendants to sell to plaintiff their interests in a manufacturing business carried on by plaintiff and defendants as partners.
The agreement was contained in letters between the parties' solicitors, and the consideration was expressed to be "on the basis of taking the valuation of the building, machinery and fixtures at $15,000" and "stock, etc., to be taken at 100 cents on the dollar."
The partnership assets consisted of the factory, including the land on which it stood, the machinery therein, and the articles affixed thereto, the tools, furniture equipment used, two motor trucks, the stock in trade, and the book accounts. Defendants contended that the good-will also was to be considered as an asset.-Held: The letters showed an agreement sufficiently certain and unambiguous in its terms that the obligations of the parties could be clearly ascertained; on the evidence, including the firm accounts, the parties meant by words "building, machinery and fixtures," to cover all the physical assets except the stock and the trucks; and by the words "stock, etc.," to cover the stock in trade, the book accounts, and the trucks; and by the words "100 cents on the dollar" that plaintiff was to pay the full present value, as shown on the books.
language agreement the $15,000 should be taken to include the amount of an existing mortgage on the building.
No allowance should be made for good-will, the letters not mentioning it, and the Court finding, on the evidence, that, when authorizing their solicitor to state their terms, defendants had no intention of asking additional consideration for it.-Judgment of the Court of Appeal for Manitoba (36 Man. R. 193), granting plaintiff specific performance of the agreement, affirmed, with a slight variation increasing the amount payable plaintiff. 2-Procuring of new lease by former by res judicata-Efect of judgment in overof judge in such proceedings-The Landlord and Tenant Act, R.S.O., 1914, c. 155.. PATENT-The Patent Act (D.), 13-14
Geo. V, c. 23, 8. 40-Owner of patent ordered to grant license to make and use machine covered by patent, at fixed license fee-Basis in fixing license fee-Appeal from Exchequer Court-Jurisdiction - Supreme Court Act, a. 38.]
The judgment of the Exchequer
Court of Canada
(Audette J.), Ex. C.R. 143, ordering
(under s. 40 of The Patent Act, on appeal from the Commissioner of Patents) the present appellant to grant a license to the present respondent to make and use a machine (for automatic pastry making)
covered by the appellant's patent, at a license fee fixed by the judgment, was affirmed.-In determining the amount to be paid for such license the Exchequer
Court properly took into consideration the cost of manufacture and repair of the machine, as well as the unexpired term of the life of the patent.-The Supreme
Court of Canada bad jurisdiction to hear the appeal; s. 38 of the Supreme Court Act does not apply to a proceeding brought under a. 40 of The Patent Act.
2 - Alleged material untruth in affidavit verifying petition- Previous issue of patent in foreign country for same invention-Re-issued patent- Patent Act, R.S.C. 1906, c. 69, s. 8, 10, 24,
29-11-12 Geo. V, c. 44, as. 6, 7 (1)- Absence of affidavit in support of petition for re-issued patent.
Plaintiff sued for infringement of a patent granted 25th
November, 1924, as a re-issue, under s. 24 of the Patent Act, R.S.C. 1906, c. 69, of a patent applied for in 1919 and granted to plaintiff (as assignee of the inventor) on
20th January,
1920. Defendant challenged the validity of the patent, alleging material untruth in the affidavit prescribed by a. 10 of the Patent Act in verification of the petition for the original patent, in that the inventor swore that
'the same has not been patented to me or others with my knowledge or consent in any country," which, it was alleged, was untrue in view of the issue of a German patent in 1917 for the same invention;
and claiming that because of such untruth of a material allegation (Patent Act, a. 29)
the original patent was invalid, which rendered the re-issued patent likewise invalid.
Defendant also alleged, as a ground of invalidity, the absence of any affidavit in support of the petition for the re-issued patent.- Held, that, in view of ss. 6 and 7 (1) of 11-12 Geo. V, c. 44 (amending the Patent Act), which were applicable to the case, and their effect with regard to the materiality of the impugned statement, and in the absence of fraudulent intent, the attack on the validity of the original patent
(and, on this foundation, of the re-issued patent) must fail; that, as to absence of
PATENT-Continued an affidavit in support of the petition for the re-issued patent, any insufficiency in the material on which the Commissioner acts, the entire absence of an affidavit or any defect in the form and substance of that which is put forward as an affidavit in support of the claim cannot, in the absence of fraud, avail an alleged infringer as a ground of attack on a new patent issued under s. 24; it is not a "fact or default which, by this Act or by law, renders the patent void" (s. 34); the recital of the patent that the applicant had complied with the requirements of the Patent Act, was conclusive against defendant in the absence of fraud; (Whittemore v. Cutter, 1 Gallison, 429, at p. 433; Seymour v. Osborne, 1lWallace, 516, at p. 541; Wayne Mfg. Co. v. Coffield Motor Washer Co., 227 Fed. Rep. 987 at pp. 990-1; Hunter v. Carrick, 10 Ont. A.R. 449, at p. 468, cited).-Judgment of the Exchequer Court ([19271 Ex. C.R. 107) affirmed, subject to modification of the formal judgment to restrict it to the claims in issue.
EL.caic Co. LTD. ...... 3- Infringement-Patent Act, R.S.C. 1906, c. 69, and amendments-Application for patent within extended period allowed by article 83 of Treaty of Peace (Germany) Order, 1920-Patent issued after amendment to Patent Act in 1921, c. 44-Question whether terms of article 83 or ss. 6 and 7 of c. 44 of 1921 applicable as to parties' rights-"Right of industrial property" (article 83)-Construction of statutes- Repeal by implication-Vested rights.] A. (plaintiff's assignor), a citizen of the United States of America, patented a device there on October 6, 1914. He failed to apply for a Canadian patent within the year allowed by s. 8 of the Patent Act (R.S.C. 1906, c. 69), but applied for it on July 10, 1920, just before the expiry of the extended period allowed therefor by article 83 of the Treaty of Peace (Germany) Order, 1920. The letter accompanying the petition stated it was filed under the provisions of that Order.
The patent was not issued until March 7, 1922.
In the meantime c. 44 of 1921, amending the Patent Act, was passed. The patent recited compliance with the requirements of the Patent Act (R.S.C. 1906, c. 69) and amendments thereto, and was granted "subject to the conditions contained in the Act aforesaid." Defendant, as a private citizen, had manufactured, used and sold the device prior to January 10, 1920, and continued to do so, and was sued for infringement of the patent.-Held, the patent was not "granted or validated under the provisions" of s. 6 or a. 7 of c. 44 of 1921, and, therefore, defendant could not invoke the PATENT-Concluded conditions in subs. 2 of s. 7; the patent issued under authority of said article 83, under the terms of which the defendant was not protected, as he could not claim, by virtue of his manufacture, use and sale of the device prior to January 10, 1920, to have acquired and be in possession of a "right of industrial property" within the meaning of that article; to speak of a right open to be exercised by any person outside the United States as a "right of industrial property" subsisting in an individual who happened to exercise it, involves a wrong conception of "property."-Said article 83 was not repealed by implication by s. 6 or s. 7 of c. 44 of
Moreover, A. had a vested right prior to that Act, by virtue of his application under article 83, to obtain a patent under, and subject only to conditions imposed by that article; and it would require clear language, even were there an express repeal, to warrant the conclusion that A.'s acquired rights under article 83 were thereby so seriously impaired as they would be if defendant and others in a like position should be entitled to the wider protection afforded by s. 7 (2) of c. 44 of 1921 (Interpretation Act, R.S.C.
1906, c. 1. s. 19; Lewis v. Hughes 11916]
1 K.B. 831).-The phrase in the patent
"subject to the conditions contained in the Act aforesaid,"
while no doubt referring to the Patent Act as then amended, imported only that the patent was subject to such of the provisions of the amended Act as were upon their proper construction applicable to it.- Held, further, that defendant did not come within the terms of subs. 2 of s. 8 of the Patent Act.-Judgment of the
Exchequer Court of Canada (Maclean J.)
([1926] Ex. C.R. 164) reversed in part.
Co. LTD.
PERJURY-Ground of appeal-No evidence as to accused having been a witness- Motion for leave to appeal to Supreme
Court of Canada under s. 1024a Cr. Code- Alleged conflict with decision in Rex. v.
Drummond [19051
10 Ont. L.R. 546
Production at the trial the judgment in the civil action. ..................
PETITION OF RIGHT-Quaere as to suppliants' right by petition of right to obtain a declaration that certain Ontario statutes are ultra vires..............
PLEADINGS - Inscription-in-law - Watercourses-Dam raising level of water- Action for damages and demolition- PLEADINGS-Continued
Trial judge-Demolition of a thing- Direction of the court-Art. 1066 C.C.- The plaintiff respondent alleged in her statement of claim that she had been, since 24th July, 1914, owner of a parcel of land situate in the township of Magog and bounded on the west by lake Memphremagog; that the defendant company had been for several years the owner of certain dams and constructions at the outlet of the lake and by reason of their illegal use and maintenance had been interfering with and changing the "normal, usual and natural level" of the waters; that the appellant had created a public nuisance and thus gradually had damaged the respondent's land; and the respondent claimed not only to recover the loss so caused but also that the dam be demolished. The appellant, among other allegations of its defence, pleaded in paragraph 4 that the dam had existed since 1835 and at its present elevation since 1882; and that in 1915 the dam was carried away and replaced by a temporary structure erected in that year, which in turn was succeeded by the present dam in 1920 and 1921; and the appellant pleaded further in paragraph 5 that the appellant's auteurs, far from having caused the waters to rise, had removed obstructions from the outlet of the lake and enlarged the discharge, thereby preventing the water from reaching its normal height during freshets.
The respondent scribed in law against these two paragraphs of the defence, objecting that the facts therein alleged were irrelevant and did not support the conclusions of the defence.-Held that the facts pleaded in these two paragraphs were not irrelevant to the issues between the parties and their proof should not have been excluded as immaterial, upon an inscription in law.-Held also that, under the Quebec "rules of pleading" (Arts. 105, 108, 110, 191,
192 C.C.P.), a paragraph of a defence is sufficient in law if it allege a material fact, even although the proof of other facts, which may be alleged in other paragraphs, be essential to justify the defendant's conclusion.
Moreover a fact pleaded is not immaterial, although it have relation only to the damages claimed, or a part of the damages, as distinguished from the right which the plaintiff alleges to maintain the action. Mignault J. expressing no opinion.- Held, further, that, although by the terms of article 1066 C.C. a court may order demolition of a thing to be effected by its officer, or authorize the injured party to do it at the expense of the other, it seems only consistent with justice, and no doubt is intended, that that power shall be exercised by the court at its discretion.
Mignault J. expressing no PLEADINGS-Concluded
SKAIF
2 - Particulars of claim-Amendment
.................
POLICE UNION-Municipal Strike and
Lock-out Act 11 Geo. V, c. 46, now
R.S.Q.
[1925] c. 98, sections 2520 oc,
2520 od, 2520 oj...................
POSSESSION (TITLE BY)
POWER
PRACTICE AND PROCEDURE-Principal action and actions in warranty and sub-warranty-Judgment maintaining them
-Appeal by defendant in sub-warranty- Res judicata-Appellate court reversing judgment-Appeal to this court-Plaintiffs in warranty and sub-warranty not parties to either appeal-Right of the
Supreme Court of Canada to restore judgment of trial judge-Supreme Court Act,
51.............................
PRECIOUS METALS
PRINCIPAL AND AGENT
PRINCIPAL AND SURETY
PROMISSORY NOTE - Promissory note endorsed by surely for certain purpose and on certain terms, known to creditor-Surety's rights - Creditor dealing with note-General hypothecation of note by creditor to bank- Inadmissibility of extrinsic evidence as to meaning and effect of hypothecation - Alteration of surety's position-Inapplicability of s. 26 (r) of King's Bench Act,
Man. (R.S.M.,
1913, c. 46)-Surety's obligation undertaken on terms that note be used only for advances by a bank and for advances to a certain required amount- Non-fulfilment of terms-Release of surety
-Creditor's obligation as to application of payments.. .........
........
PUBLIC INSTITUTION - Negligence-Injury to patient-Negligence of nurses-Liability of board created by
Municipal Hospitals Act, R.S.A., 1922, c.
116-Regulation as to non-liability - Validity- Notice to patient .........
RAILWAYS-Street railway company - Originally a provincial body-Incorporated by Dominion Act-Provincial public service commission-Board of Railway Commissioners for Canada-Jurisdiction-Constitutional law-B. N.A. Act [1867] s. 91 subs. 29; s. 92, subs. 10-Art. 114 C.P.C. by a provincial legislature but whose undertaking was subsequently declared by a Dominion Act to be a work for the general advantage of Canada, is not subject to the jurisdiction of a public service commission created by the province, but the execution of its powers is, by the provisions of the Railway Act, within the jurisdiction of the Board of Railway Commissioners for Canada.-Per Anglin C.J.C. and Mignault, Newcombe and Lamont JJ.: The Railway Act of Canada applies in the present case notwithstanding an agreement between the railway appellant and the city of Quebec providing for the reconciliation of differences between them by way of appeal to the Quebec Public Service Commission; such a clause cannot be interpreted to confer authority on the commission to regulate and direct works and operations which are within the exclusive powers of the Dominion Parliament.
Rinfret J. expressed the opinion that this point raised the question of the constitutionality of a provincial statute and could not therefore be heard unless a notice has been previously given to the Attorney- General (Art.. 114 C.P.C.)-Per Anglin C.J.C. and Mignault, Newcombe and Lamont JJ.: It was in the exercise of exclusive legislative authority that the Parliament of Canada enacted the provisions of the Railway Act authorizing the Board to regulate the operations of railway companies: this plainly follows from the constitutional distribution of legislative powers by the British North America Act (s. 91, subs. 29, and s. 92, subs. 10).
Moreover, the Quebec legislature has expressly limited the jurisdiction of the Quebec Public Service Commission to matters falling under the legislative authority of the province.-Per Rinfret J.: The intervention of the city of Quebec in support of the land company's complaint against the railway appellant before the Public Service Commission did not confer on the latter a jurisdiction which did not exist ab initio.-Judgment the Court of King's Bench (Q.R. 43 K.B. 338) reversed. R., L. & P. Co, v. - Station - Waitingroom-Door leading to cellar- Unlocked and no sign-Accident-Person falling down-Liability of railway company-Art. 1053 C.C.]
A station owned by the appellant railway company contained a RAILWAYS-Continued waiting-room inside of which were four doors: one leading to, or from, the platform on the track side; a second to the office of the station master from which tickets were sold; a third bearing on a metal sign "Water closet," and a fourth, unmarked, situated at the rear, was giving access to a landing place at the head of the stairs leading to the cellar.
At night, the waiting-room was well lighted while the landing and the staircase were dark. The respondent's husband, after sitting in the waiting-room for some time, was seen to get up, to walk towards the rear and to open the door leading to the cellar stair-case.
He was heard to fall to the floor below and, being found lying unconscious, died the next evening from a fracture of the skull.
respondent took the present action in damages, alleging fault under art. 1053
C.C. consisting in the neglect of the railway company to indicate that ingress through that door was forbidden and in the omission of its employees to keep the door locked.-Held, reversing the judgment of the Court of King's Bench
(Q.R. 43 K.B. 342), that the railway company was not liable.
Besides the accommodation and facilities provided for its passengers in a station, a railway company can also have rooms and offices for the exclusive use of its employees, and the public cannot assume that access is allowed through all the doors opening into or leading out of a waiting-room.
When the doors intended for public use are indicated, failure to put on the other doors notices that ingress through them is forbidden does not amount to negligence; on the contrary, the absence of any notice should put the public upon inquiry whether it should attempt to open these doors and to proceed further into a place where it has no business. But, even if the failure to keep the door locked would amount to legal negligence on appellant's part, the latter is still free from liability, as the cause of the accident was the deceased's own want of caution in proceeding beyond the door in the dark and in a strange place.-Knight v. Grand
Trunk Pacific Ry. Co. ([1926] S.C.R. 674)
Walker v. Midland Ry. Co. (55 L.T.R.
discussed.
Co. v. LEPAGE..........
- Children walking tracks killed by train-Licensees-Duty of railway company-Statutory prohibition to walk on tracks-Nova Scotia Railways
Act, R.S.N.S. 1923, c. 180, s. 268 (1) 497
4- Negligence-Train striking automobile at highway crossing-Question whether statutory signal given by train-Inter- RAILWAYS-Continued ference on appeal with jury's findings- Maintaining of bank on side of railway- Contributory negligence- New trial... 505 REAL PROPERTY-Title by possession -The Limitations Act, Ont. (R,S.O., 1914, c. 75) s. 5- Nature of use and occupation- Nature and extent of enclosure-Evidence as to length of time-Trial judge's estimate of witnesses-Reversal of findings.] It was held that plaintiff had acquired title by possession to a strip of land covered by the paper title of defendants, adjoining land owners; that the planting and care of a hedge which, for a part of its length, encroached on defendants' land, the construction and maintenance of a walk on plaintiff's side of the hedge and partly on said strip, the cultivating with flowers, lawn and terracing up to the hedge, and the continuous general use and enjoyment, by plaintiff or his predecessor in title, of said strip along with the other land occupied by him, there being no fence or other construction (except the hedge) to indicate a boundary, constituted a use and occupation which, if exclusive and continued for the statutory period, established a right by possession under s. 5 of The Limitations Act, R.S.O., 1914, c. 75 (Marhshall v. Taylor [1895] 1 Ch. 641 at p. 646); that the user in question could not be deemed an exercise of a mere right of way; and that, on the continuous exclusive actual occupation by plaintiff or his predecessor in title, for over ten years, was established.-Possession may be none the less sufficient to warrant the application of s. 5 of The Limitations Act, even though there is no real enclosure (Seddon v. Smith, 36 L.T.R. 168 at p. 169). The hedge in question though not continued to the rear boundary of the land, had the strongest evidential value as marking the extent or area of occupation and showing adverse possession.-The trial judge's estimate witnesses loses much of its weight when he gives for such estimate reasons which, upon examination, are found unconvincing and unsatisfactory.-Judgment of Ontario (57 Ont. L.R. reversing budgment of Widdifield, Co. C.J., affirmed, uff and Newcombe JJ. dissenting.-Per Duff and Newcombe
JJ. (dissenting)
: The hedge was not intended to be definitive of any line, or to mark the limit of any occupation; it included nothing and excluded nothing; it had an obvious purpose explaining its existence and use, namely, to buttress a walk along a side hill; in the circumstances it was meaningless as evidence of exclusive possession of the soil; the evidence as to the beginning of construction of the improvements relied on was not clear or definite, and REAL PROPERTY-Continued was unsafe to be regarded as initiating a period of prescription for the title; there was nothing pointing to an intention to exclude, within the principle stated in
Littledale v. Liverpool College
(11900]
1 Ch. 19 at p. 23).
The time of the existence of the hedge was not satisfactorily established, and the trial judge's findings thereon, his estimate of the witnesses forming a substantial part of his reasons, should not have been set aside (SS. Hontestroom v. SS. Sagaporack et al, 136 L.T. 33 at p. 37 et seq.)
2- Mines and minerals-Crown's prerogative right to precious metals-Law as to title to, and conveyance of, precious metals- Precious metals in lands formerly owned by
Hudson's Bay Company under its Charter of 1670-Construction and effect of Deed of
Surrender of 1869 from the Company to the
Crown, and of subsequent proceedings and legislation-Precious metals in such lands as belong to the Company under the terms of its surrender, etc.] Titles to lands evidenced by grants from the Crown to subjects, and estates in fee simple, do not, in the absence of explicit words apt and precise to indicate them, carry the prerogative right to the precious metals.- Mines of gold and silver, while held by the Crown, are not to be regarded as partes soli or as incidents of the land in which they are found, and are not held
(as are the lands of the Crown and the baser metals contained in them)
proprietary title; they may, however, by appropriate and precise words, be severed from the Crown and granted to another.
(The Mines Case, 1 Plowd. 310; Woolley v.
A tty.-Gen. of Victoria, 2 App. Cas. 163;
Atty.-Gen. of British Columbia v. Atty.- Gen. of Canada, 14 App. Cas. 295 at p.
But, while the precious metals and the lands are vested in the one owner other than the Crown, such metals are part of the land, and pass from such owner by a grant in absolute terms of the fee simple estate in the land.- Under the Royal Charter of 1670, the
Hudson's Bay Company, prior to the acceptance on 23rd June. 1870, of its deed of surrender of 19th November, 1869, owned the previous metals in the territories granted to it. The source of its title, alike to the precious metals and to the lands in which they lay, was the grant from the Crown. The precious metals in the land were partes soli while owned by the company.
It held land and precious metals alike by the same proprietary title.-The said deed of surrender from the company to the Crown should be construed, -having regard to the nature and object of the agreement pursuant to which it was made, and to the operative words in the deed itself, as
REAL PROPERTY-Continued carrying, as partes soli, the precious metals in the lands surrendered.-After the execution and acceptance of the deed of surrender, the precious metals in Rupert's Land again belonged to the Crown by prerogative right, and under the Order in Council of 23rd June, 1870, the beneficial interest in, and the right of governmental control over, them was transferred to, and became vested in, the Dominion of Canada.-As to the posts or stations "retained" by the company, excepted from the deed of surrender, the precious metals in the subjacent lands passed under the general terms of the surrender to the Crown.
An exception in a deed of grant should be taken most strongly against the party for whose benefit it is introduced, and should be allowed to control the instrument only in so far as its words extend; and, having regard to this ordinary rule of construction, and to the fact that it was an exception out of property being transferred to the Crown, and to the object of the exception, and to the nature and purpose of the instrument in which it occurred, it must be construed as not including the precious metals.-As to the blocks of land (adjacent to the posts or stations) to be "selected" company, and the areas in the fertile belt of which they might claim grants, the intent to be taken from the deed of surrender is that the lands were to pass under the general surrender, but on the term or condition that, after they had been transferred to the Dominion of Canada and surveys had been made and the right of "selection" or "claim" had matured, the Crown through the Dominion Government would re-grant or retransfer to the company the blocks so to be "selected" and the parcels so to be When the surrendered lands vested in the Crown and all effects of the earlier grant of them to the company had been extinguished (Rupert's Land Act, [18681, s. 4), the precious metals in such lands, which had been granted out of the prerogative, again belonged to the Crown by prerogative right (Atty.-Gen. v. Trustees of the British Museum, 1190312 Ch. 598, at pp. 612-3); whereas its title to the lands surrendered
(exclusive of such metals)
was proprietary.
Upon such re-grants or re-transfers to the company, however effected, precious metals would not pass unless specifically mentioned and covered by apt and precise words. Accordingly. it must be held that the precious metals in all such lands have, since the execution and acceptance of the deed of surrender, belonged to the (If the company's right to the precious metals subsisted as a franchise, its surrender of such, by the terms of the deed of 1869, was complete and without 77()
REAL PROPERTY-Concluded exception or qualification.)-The above construction accords with the nature and purpose of the agreement pursuant to which the deed of surrender was made.
The purpose undoubtedly was to preserve intact the Crown's prerogative rights throughout the new territory acquired by the Dominion of Canada. The construction is also supported by the company's subsequent conduct in accepting from
Dominion
'selected" blocks of land (including in the description of them the lands on which the "retained" posts and stations were actually erected) and in assenting to the provisions of the Dominion Lands
Act of 1872 (ss. 17-21) and of the Canadian
Order in Council of 6th December, 1872, being substituted for those of the deed of surrender of Rupert's Land in all matters pertaining to the company's one-twentieth of the lands within the Fertile Belt. The company must be taken to have implicitly recognized that its deed of surrender had operated to vest all these lands in the
Crown, subject to the company's right to have them re-granted or re-transferred to it in its new capacity as a purely trading corporation.--S.
36 of the Dominion
Lands Act of 1872, providing that "no reservation of gold, silver, iron, copper, or other mines or minerals shall be inserted in any patent from the Crown granting any portion of the Dominion lands"
(repealed, 43 Vic., c. 26; and see declaratory legislation, 46 Vic., c. 17, s. 43) did not necessarily imply that the gold and silver in all Dominion lands (including those reserved for the company) to be granted should pass to the grantees
(The M'ines Case, 1 Plowd. 310; Maxwell on Interpretation of Statutes, 6th ed., pp.
244-5; 31 Vie., c. 1, s. 6 (23)); and it cannot be said that in accepting the provisions of the Dominion Lands Act of 1872 and of the Order in Council of 6th December,
1872, the company was under the impression that it would thereby become entitled to the precious metals underlying the lands for which it might subsequently obtain grants or titles by notification under s. 21 of the statute.
REFERENCE
CERTAIN HUDSON'S BAY
3-and see TAXATION
RES JUDICATA-Question of estoppel by res judicata-Effec of judgment in overof judge in such proceedings-The Landlord and Tenant Act, R.S.O., 1914, c. 155- Procuring of new lease by former partner- Assignment thereof to those continuing the business on the premises-Covenants in assignment-Rights between the parties as
RES JUDICATA-Concluded to acquisition of further lease-Implied 2-Principal action and actions in warranty and sub-warranty-Judgment maintaining them-Appeal by defendant in sub-warranty - Res judicata - Appellate Court Act, 8.51.................... 3-and see RIGHT OF WAY
See REAL ROMAN
4, 5. Right of redemption-Contrelettre - Transfer - Pledge - Collateral security for advances-Construction of agreement. Arts. 1014, 1025, 1550, 1966, 1970 C.C.]
On the 23rd of September, 1920, the respondent and the appellant's auteur, J. R. B., entered into an agreement, by which the respondent undertook to raise out of the water and salve logs known as "dead-heads" belonging to J. R. B., which might be found in a certain definite area on the Ottawa river. The respondent undertook to erect a sawmill at a place called Dow's Bay for the purpose of sawing the logs by him raised and salved. In order to carry out the undertaking the respondent required financial assistance and the appellant consented to lend it. The respondent performed his operations under the contract and the appellant continued to make advances.
On the 8th September, 1921, the amount advanced by the appellant reached the sum of $26,090 and, on that date, an agreement was entered into by which the respondent "hereby bargains, sells, conveys, assigns and makes over unto the (appellant) *
* following property." The concluding clause of the agreement was as follows:
"The present bargain and sale is so made for and in consideration of the price and sum of $26,090 in hand paid by the (appellant) * * *." On the same date the appellant wrote a letter to the respondent as follows: "Upon payment by you to the J. R. Booth Limited of the amount of your indebtedness to it the company will reassign and make over to you the property assigned this day by you to it, provided the contract between you and SALE-Continued the company is still in force."-Held,
Duff and Newcombe JJ. (dissenting)
, that the above agreement was a sale vesting in the appellant the ownership of the property with a right of redemption stipulated in favour of the respondent upon payment by him of the amount of his indebtedness to the appellant.-Per Duff and Newcombe JJ. (dissenting): The agreement between the parties was a transfer or assignment of the property by way of collateral security for the advances made by the appellant to the respondent in the carrying out of the contract.-Judgment of the Court of
King's Bench (Q.R. 40 K.B. 331) aff,
Duff and Newoombe JJ. (dissenting)
.
J. R.
BooTfI MCLEAN ...........
2-Sherif's sale-Resale for false bidding - Loan - Promise of "fournir faire valoir"-Confusion-Arts. 1085,1138,
1571, 1572, 1577, 1958, 1959, 2127 C.C.- Arts. 747; 758, 761 to 765, 778, C.C.P.] The qarantie de fournir et faire valoir stipulated in a deed of transfer of a debt has the effect of suretyship.
Upon failure by the principal debtor to pay, such guarantee gives rise to an action de recours in favour of the transferee against the guarantor.- When a debt is transferred, the debtor is a
"third person" within the meaning of art.
1571 C.C., and the transferee acquires possession available against him only upon service of the transfer being made upon the debtor. Mere registration of the transfer is not sufficient.-So long as the transfer has not been served (or has not been accepted by the debtor) the transferor, with regard to third persons, remains the possessor and the owner of the debt.-As a result, the debtor is liable to the transferee only in so far as he is obligated to the transferor at the time when the transfer is served.
As against the debtor, the transfer must be considered as having taken place only on the date of its signification to him.-Any mode of extinction of the debt (as, for example, compensation)
operating between the debtor and the transferor previous to the service of the transfer upon the debtor has the effect of dischrging the debtor, even as against the transferee.-The adjudication at a sheriff's sale, although not perfect until the price is paid, is nevertheless a sale under suspensive condition and the purchaser becomes the debtor of the price of adjudication.
He is not discharged by the fact that a demand is made for resale for false bidding, but he remains debtor of the amount of his bid (together with interest, costs and damages), saving that he is entitled to credit for the amount of the price brought by the resale.-Upon the record in this case, the respondent was not entitled to succeed.
C., as a false
SALE-Concluded bidder at the sheriff's sale, owed the amount of his bid of $34,000 (less the proceeds of the final resale) at the time of the institution of the action.
Although the appellant, in ordinary circumstances, would have been responsible to C. in virtue of the clause of warranty fournir et faire valoir contained in the transfer by him to C. such responsibility was extinguished when C. himself became liable for the amount so guaranteed, C. being then in fact warrantor of his own creance. Therefore as C could not have recovered against the appellant, the respondent's husband who, by the transfer served on the 27th of March, 1924, acquired only the rights which C. had on that date, was not entitled to recover from the appellant. C. would in fact be liable to the appellant for any amount which the latter might be obliged to pay to the respondent.-The case is remitted to the trial court in order to ascertain whether, if C. had deposited the amount of his bid at the sheriff's sale, $34,000, that sum would, upon a judgment of distribution, have provided for payment in full of the respondent's claim of $5,000 and interest.
Should it prove sufficient, the action should be dismissed; if not, it should be maintained for so much of the claim as would not have been collocated in a judgment of distribution.-Judgment of the Court of King's Bench (Q.R. 41 K.B. reversed.
LAiY v. 288 - Unfinished product - Loan by a bank-Valid lien-Sale- Measuring and stamping by purchaser- Transfer of ownership-Bank Act, s. 88- Arts. 1026, 1027, 1474, 1488, 1489, 1684, 2268 C.C......................... OF GOODS
- Calfskins - Description in contract-Weight - Some skins over stipulated weight-Purchaser's right of rejection. Plaintiffs contracted to sell to defendant calfskins, of certain kinds described.
Defendant refused to accept delivery, objecting as to quality, and plaintiffs sued for damages for breach of contract.
The descriptions of the skins in the contracts contained the words "weight 7 to 15 lbs." or "weight 8 to 15 lbs."
A material number weighed over 15 lbs.-Held, plaintiffs could not recover; defendant was entitled to reject the skins offered for delivery, and was not confined to a remedy in damages for breach of warranty; the stipulations descriptive of the weights were material terms constituting conditions of delivery; there was no evidence sufficient to establish any custom of trade, usage or course of dealing by which defendant became bound to accept overweight skins; and the right to reject such skins involved or carried with it the right to refuse a quantity materially less than SALE OF GOODS-Concluded that ordered, or packages with which substantial quantities of goods which defendant was not liable to accept were intermingled.-Where sellers of goods do not satisfy the stipulated descriptions, the question whether or not this is a cause for rejection or gives rise only to a claim for damages, depends upon the intention of the parties as evidenced by the contract in the light of the surrounding circumstances.-Graves v. Legg (9 Ex. R. 709, at p. 716), Bentsen v. Taylor ([1893] 2
Q.B. 274, at p. 281), Levy v. Green (5
Jur. N.S. 1245), and other cases, referred to.- Held, further, that there was nothing in subsequent agreements between the parties, or elsewhere in the negotiations, whereby defendant became bound to accept goods not of the descriptions required by the contracts of sale, or, by reason of its refusal to accept such goods, to forfeit certain allowances which it had received in accordance with such subsequent agreements.-Judgment of Ontario (58 Ont. L.R. 1) affirmed, with a minor variation.
Co. LTD.
..................
SALE OF LAND - Crop-payment agreement-Operation of acceleration clause 389
2-Married woman-Wife separated as to property-Sale of property - Pledge - Debts of the husband-Validity - Art.
1301 C.C.....................
See HuSBAND 3.
3and see 2.
and see (sale land for taxes),
SALES TAX - Job printer - Contract- Lease and hire-Sale-Special War Revenue
Act (1915) 5 Geo. V, c. 8; (1922) 12-13
Geo. V, c. 47; (1923) 13-14Geo. V, c. 70 583
SHERIFF'S SALE.............
SHIPPING - Collision in St. Clair
River-Vessels approaching each other- Duties as to passing and signalling-Rules of navigation in the Great Lakes gence - Contributory negligence - Last act of negligence cause of collision-Evidence- Written statement used for purpose for which it was not admissible-No substantial miscarriage of justice.
steamship Y., owned by plaintiff, while going down the St. Clair river at night, collided with a barge, in tow of a tug,
SHIPPING-Continued both owned by defendant, going up the river. The barge and tug were going up the south channel formed by Russell Island, and were on the west, or their port, side of the channel. The Y., when approaching the channel, and before perceiving the tug or barge, altered her course somewhat to port. The tug gave one blast indicating her course, and the Y. then perceived that the tug was turning northeasterly to cross the channel and the Y's bow.
The signal conflicted with the Y's intended course and with the right of way which she had under R. 25 (Rules for the Great Lakes, adopted by Order in Council, 4th February, 1916). The Y. gave the danger singal. The tug returned the danger signal and, according to some witnesses, repeated the single blast, and the tug proceeded at full speed across the channel.
The Y. then manoeuvred to get into starboard swing. It cleared the tug but struck the barge a glancing blow with its port bow on the port quarter.
court could ascertain, on the evidence, whether the vessels were more or less than half a mile apart when the tug gave its first signal.- Held; Under all the circumstances, the neglect of the tug was the sole cause of the collision. Unmediately before the tug and tow went to starboard they were either in a position of safety or where a starboard helm would have carried them clear of the Y's course which was then capable of perception.
If the tug's signal were given before the Y. came within half a mile the Y. was relieved of the requirement in R. 25 to signal her intended course; indeed she could not have done so without a breach of the rule forbidding a cross signal. On the other hand, if the Y. passed the half mile limit without signalling her course, the tug was confronted with a situation wherein the down-coming ship, which had the right of way, was on a course which would lead her to, or to the eastward of, midchannel, at the meeting place; and if, in the circumstances, the tug were in doubt about the Y's course her proper signal was danger under R. 22, and she was not justified in giving the starboard signal, which placed her and her tow, with their broad spread, across the channel and in front of the Y.
It might be that the Y. was not required to signal, as it appeared that, by reason of the confusion of the lights on the tug and tow, she was not aware that they were in the channel until she received the tug's signal; but, assuming the Y. passed the half mile limit without notifying her course, and thus broke the rule, that neglect was not only antecedent to, but independent of, the negligence of the tug, which caused the accident.
The case was within the class described by Lord SHIPPING-Concluded
Birkenhead's first category in The Volute
([1922] 1 A.C. 129 at p. 136).
It could not be said that the acts of the navigation of the two ships formed parts of one transaction, or that the second act of negligence that of the tug and tow in crossing the channel in front of the Y., was consequential upon or involved with the first.
Anglo-Newfoundland Development Co. v. Pacific Steam Nay. Co. ([1924]
A.C. 406, at pp. 417,420 421) referred to.
of Hodgins L.J.A. ([1926]
Ex. C.R. 210) affirmed.-A witness for the defendant had previously made a statement to an attorney of the plaintiff, which was reduced to writing and signed.
The witness was cross-examined thereon, subsequently the attorney called to prove the statement and it was put in evidence in reply.-Held, referring to a passage in the trial judge's judgment, that if he held that the statement could be used against the defendant as evidence of the facts stated in it, he was clearly wrong; the statement was admissible only by way of contradiction and to affect the witness's credibility (Ewer v.
Amborse, 3 B. & C. 746; Wright v. Beckett,
1 M. & Rob. 414); but although the statement might have been used for a purpose for which it was not admissible, it did not, on the whole case, result in any substantial miscarriage of justice or affect the decision.
SOLICITOR AND CLIENT
SPECIFIC PERFORMANCE - Partnership-Sale of partners' interests to remaining partner - Contract-Alleged uncertainty and insufficiency of terms-Evidence to ascertain what was covered by terms used ..........
STATUTE (CONSTRUCTION OF) - Repeal by implication-Vested rights- Patent - Infringement - Patent Act,
R.S.C., 1906, c. 69, and amendments- Application for patent within extended period allowed by article 83 of Treaty of
Peace (Germany) Order, 1920-Patent issued after amendment to Patent Act in
1921, c. 44-Question whether terms of article 83 or of sa. 6 and 7 of c. 44 of 1921 applicable as to parties' rights-"Right of industrial property" (article 83) ....
2;
STATUTE OF FRAUDS, as. 4, 7.. 429
STATUTES-(Imp.) B.N.A. Act, 1867, as. 109, 102, 126, 92............... See CoNsTrrorroNAL 1. 2-(Imp.) B. N.A. Act, 1867, 8. 92 (2) ...... . 3-(Im p.) B. N.A. Act, 1867, s. 93. 364 4-(Imp.) B. N.A. Act, 1867, s. 91 (29), 92 (10)..................... 5- (Imp.) B.N.A. Act, 1867, a. 93 (1) .. 637, 638, 639, 641, 642 6-(Imp.) B. N.A Act, 1867, s. 93 (3) .......... 7-(Imp.) B. N.A. Act, 1867, 8. 129. 639 8-(Imp.) Rupert's Land Act, 1868, s. 4..................
... 9- R.S.C. c. 1, a. 19 (Interpretation Act)........................ 10-R.S.C. c. 7 (as amended by 5 Geo. V, c. 13) (Dominion Controverted Elections Act)..................... 11-R.S.C. [1906] c. 48, a. 219 (as enacted by 15-16 Geo. V, c. 39) and s. 264 (Customs Act)..................... 12-R.S.C. [1906 c. 69 (and amendments) (Patent Act)............... 13-R.S.C. [1906] c. 69, e. 8 (Patent A ct).........................625, 14- R.S.C. [1906] c. 69, ss. 8, 10, 24, 29, (Patent Act)................. 15--R.S.C. [1906] c. 79 (Companies See MORTGAGE. 16- R.S.C. [1906] c. 79, a. 82 (Companies Act)....................... R.S.C.
c. 139 (Supreme Court Act)........................ 18- R.S.C. [1906] c. 139 as. 2 (e), 36, 39 (a) (Supreme Court A ct6........ 451 R.S.C. [1906) c. 139, s. 37 (b) 20-R.S.C. [1906] c. 139, s. 38 (Supreme Court Act)........................ STATUTES-Continued
21-R.S.C. [1906] c. 139, s. 51 (Supreme
Court Act).....................
22-R.S.C. [1906]
c. 139; Rule 12
23-R.S.C. 140, 20 (as amended by 7-8 Geo. V, c. 23, 8. 2)
(Exchequer Court Act)..............
24- R.S.C. [1906] c. 145, s. 4 (5) (Canada
Evidence Act).....................
25-R.S.C. [1906] c. 145, s. 16 (Canada
Evidence Act).....................
R.S.C. [1906] c. 146 (Criminal
Code)............................
27-(D.) 31 Vic., c. 1, s. 6 (23) (Interpretation Act)..................
See PROPERTY 2.
28-(D.) 35 Vic., c. 23 (Dominion
Lands
(D.) 43 Vic., c. 26 (Dominion
Lands)...........................
(D.) 46 Vic., c. 17, s. 43 (Dominion
Lads)........ ...................
31-(D.) 4-5 Edw. VII, c. 3, as. 21
(The Alberta Act).................
32-(D.) 4-5 Edw. VII, 8. 17 (The
Alberta Act)......................
33-(D.) 3-4 Geo. V, c. 9, a. 88 (Bank
(D.) 4-5 Geo. V, c. 13 (The Maritime Conventions Act, 1914) ........
35- (D.) 5 Geo. V, c. 8 (Special War
Revenue Act)......................
36-(D.) 9-10 V, 36 (Bankruptcy
37-(D.) 9-10 Geo. V, c. 36, s. 4 (4 (b))
(Bankruptcy Act)..................
38-(D.) 9-10 V, 36, 52 enacted by 13-14 Geo. V, c. 31) (Bankruptcy Act)....................
39-(D.) 9-10 Geo. V, c. 36, 8. 74 (3)
(Bankruptcy Act)..................
)EX
STATUTES---Continued
40- (D.) 9-10 Geo. V, c. 68 (Railway 41-(D.) 11-12 V, 44, 6, 7 (Amending Patent Act) ......... 520, 625 42- (D.) 12-13 Geo. V, c. 47 (Amending the Special War Revenue Act) ...... 43-(D.)
13-14 Geo. V, 23, 40 (Patent Act)...................
44- (D.) 13-14 Geo. V, c. 70 (Amending the Special War Revenue Act) ...... 45-(Can.) 13-14 Vic. [18501, c. 48 (Common Schools Act).................. 46- (Can.) C.S. U.C.
c. 64 (Common Schools Act). .638, 639, 640, 47-(Can.) 26 Vic. [18631, c. 5 (Separate Schools Act). .638, 639, 640, 641,642 R.S.O.
39, s. (Power Commission Act).................. 49-R.S.O. [1914] c. 56. s. 34 (Judicature Act)....................
R.S.O. [1914] c. 75, s. 5 (Limitations 51-R.S.O. 126 (Land Titles 52- R.S.O. [1914] c. 135 (Bills of Sale and Chattel Mortgage Act) .......... 53-R.S.O. [1914] c. 155 (Landlord and Tenant Act)....................... 54- R.S.O.
c. 183 (Ontario Insurance Act).................... See FIRE 55-R.S.O. [1914] c. 195 (Assessment 56-7
Edw. VII, c. 34 (Ontario Companies Act)...'..................
57-12-13 Geo. V, c. s. 460 (3) (Consolidated Municipal Act) ........... 58- R.S.Q.
[1925] c. 98 (Municipal Strike and Lock-out Act) ............ STATUTES-Continued
59-(Q.) 62 Vic., c. 58, 8. 536 (Montreal
City Charter)......................
60-(Q.) 1 Geo. V (2nd c. 60 (An Act to Amend the Charter of the City of Montreal)...... ...........
..
......
61-(Q.) 11 Geo. V, c. 46 (Municipal
Strike and Lock-Out Act )..........535
62-(Q.) 16 Geo. V, c. 32 (Workmen's
Compensation Act).................
63-R.S.A.
c. 116 (Municipal
Hospitals Act).................226
64--(Alta.) V, 20, 42
(amended by V, 25, 13);
44 a (as enacted by Geo. V, s. 26
(Tax Recovery Act)................
65- (Alta.) Geo. V, c. 11 (Ultimate
H eir A ct).........................
66- (Alta.) Geo. V, c. 33 (Mine
Owners Tax Act)..................
67-R.S. B.C. [1924] c. 13 (Arbitration
.................
68-R.S. B.C. [1924]
122- (Fire
Insurance Policy Act) .............
69-(B.C.) 14 Geo. V (1923] c. 71 (Fuel
Oil Tax Act)......................
70- R.S.M. [1913] c. 46, s. 26 (r)
(King'sBench Act)................
71-R.S.M. [1913] c. 133 (Municipal
Act).........................17,
72-R.S.M. [1913] c. 134 (Assessment
73-R.S.M. [1913]
s.
(Assessment Act)..................
74- R.S.M. c. 178 (Seed Grain
A ct).........................17,
75-(Man.) Consolidated Amendments
[1924] c. 134, s. 198 (Assessment Act). 485
76--C.S. N.B. (1903] c. 153 (s. 47) (as amended by 14Geo. V, c. 30) (Act Respecting Landlord and Tenant) ...........
STATUTES-Concluded
77---C.S. N. B. [1903] c. 153, ss. 47, 48, 49, 51 (as enacted by 14 Geo. V, c. 30) (Act Respecting Landlord and Tenant) 512 78- (N.B.) 5 Geo. V, c. 43, s. 4 (as amended by 15 Geo. V, c. 10 (Motor Vehicle Law)...................... 79- (N.B.) 15 Geo. V, c. 41, s. 2 (Contributory Negligence Act) ........... -R.S. N.S. [1923] c. 180, s. 268 (1) (Nova Scotia Railways Act) ......... 81-(N.W.T.) 29 (The School Ordinance), 30 (The School Assessment Ordinance)....................... STREET
TAXATION
TIMBER - Unfinished product-Loan by a bank-Valid lien- Sale-Measuring and stamping by purchaser-Transfer of oumership-Bank Act, s. 88-Arts. 1026, 1027, 1474, 1488, 1684, 2268 C.C. .................. TRUSTS AND TRUSTEES - Accounting-Moneys received by nephew of deceased of intention to make gift to nephew--Applicability of Strong v. Bird (L.R. 18 Eq. 315).
One S. B. was owner of a large tract land and other assets and, being a bachelor and having no relatives in this country, brought out 1888 from England his nephew, the respondent.
The latter lived with his uncle, assisted him in his business and eventually was allowed a very large measure of control over his affairs. 1906, B. made his will leaving the bulk of his estate to the respondent; and in 1907 he executed a power attorney, under which the respondent was formally given powers to act for him in the management of his affairs.
In 1908, B. TRUSTS AND TRUSTEES-Continued went to a hospital, and shortly thereafter left for England where he died in 1913.
While there in
1912, S. B. changed his will in favour of some of his English relatives, but still left a substantial part of his estate to the respondent. In an action by the executor of the will of 1912 to compel the respondent as trustee for the estate of his uncle to account for rentals, profits and moneys received by him during the lifetime of his uncle, for, as alleged, the benefit of the latter, the defence was set up that the deceased evidenced his intention to permit the respondent to retain said moneys free from any condition that he should be regarded as a trustee with respect thereto.
The language of the deceased, as reported by the respondent in his evidence, imports a declaration of a then present intention by the deceased to give -all his real and personal property to the respondent; and that the respondent was to do as he pleased with it and was to be under no obligation to account for it. The trial judge held the respondent was accountable on the ground that there had been a gift to him of these moneys, that the intention to give had remained unaltered down to the time of his death and that his judgment must be governed by the decision in Strong v. Bird (L.R.
18 Eq. 315).
The judgment of the trial judge was affirmed, the Court of Appeal being equally divided.-Held, that the principle laid down in Strong v. Bird was not applicable to the circumstances of this case and that the respondent was accountable for all moneys of the deceased received by him since 1907, excepting those in respect of which the intended gift above mentioned was completed within the lifetime of the deceased.- Judgment of the Court of Appeal (36
B.C. Rep. 231) reversed.
....................
2-Procuring of new lease by former by res judicata-Efect of judgment in overholding tenants proceedings-Jurisdiction of judge in such proceedings-The
Landlord and Tenant Act, R.S.O., 1914, c. 155.] P. and others had, as partners, conducted a laundry business on leased premises.
partnership dissolved, the others continuing the business on the premises.
P. procured from the landlord a new lease dating from the expiry of the existing one. As a result of litigation, P., for a certain sum, assigned to the others the new lease, covenanting that the assignees might "hold and enjoy the said premises for the residue of the
TRUSTS AND TRUSTEES-Concluded term granted by the said lease and every renewal thereof (if any) for their own use and benefit, without any interruption of the assignor."
The lease had no provision for renewal.
Before its expiry P. procured from the landlord a further lease dated from the expiry of the existing one.
Plaintiffs, the aforesaid assignees or their successors in interest, sued for a declaration that P., the defendant, was a trustee of the lease for them and for other relief.-Held, affirming judgment of the Appellate Division, Ont. (56 Ont. L.R. 616) that P. held the lease as trustee for plaintiffs; his obtaining it was a breach of good faith and contravened an implied obligation with regard to renewals; the allusion to renewal in the assignment must be taken to refer to the reasonable expectation of the tenants in possession to obtain a renewal; Griffith v. Owen ([1907] 1 Ch. 195) applied.-Held further, that plaintiffs were not estopped by res judicata by reason of certain overholding tenants proceedings (under The Landlord and Tenant Act, R.S.O., 1914, 155) and judgment therein; in such proceedings the judge had no jurisdiction to adjudicate as to the relations between Pong and QUONG......... 3-Alleged declaration of trust-Written words of confirmation or acknowledgment- Statute of Frauds, ss. 4, 7--Contract - Want of consideration.............. WARRANTY
Actions in........................ WATERCOURSES - Dam raising level of water-Action for damages and demolition - Pleadings - Inscription in law- Trial judge-Demolition of a thing - Direction of the court-Art. 1066 C.C.- WAY, RIGHT OF
WHARF
See CRowN.
WORDS
PHRASES-"and not otherwise appropriated by law" (in s. 106 of the Common Schools Act, C.S.U.C., 1859, c. 64) ............. 639, 640, 641 2 -"Biens propres de succession".. 101 See WIFE 1. 3- "Bornage".........
....... WORDS AND PHRASES-Continued
- "Buildings, machinery and fixtures"
.........
...........
See PARTNERSHIP
5- "Caused" .................
6- "Committed during the continuance of this agreement and discovered during the continuance of this agreement" ......
7 - "Common offence or quasi-offence"
(Art. 1106 C.C.)...................
8-"Conveyance intended to operate as a mortgage" (within Bills of Sale and
Chattel Mortgage Act, Ont.) ........
See UHATTEL
9-"Crown lands, mines and minerals and royalties incident thereto" ........ 136
10-"Debt"..................
Debt "existing"............ 314
12-Debt "thereafter contracted"... . 314
"Du estoc et ligne" .......
See WIFE
14-"Droit de retour" (Art. 779 C.C.)
.... ...
...
...
....
...
...
...
15-"Fact or default which, by this Act or by law, renders the patent void" (Patent
Act, R.S.C. 1906, c. 69, s. 34) ........
1&-"Final judgment"............
"Floating charge" ............
18-"Garantie de fournir et faire valoir"
.
...............
See SALEP 2.
"Grants * * for common school purposes" (in s. 20 of the Separate Schools
Act, 1863)............ 639, 640, 642
20-"Gross negligence".............
21-"If any subsequent insurance is effected with any other insurer" ....... 481
22-"In payment of commutation of wharfage"..................... 69
23- 24-"Judgment obtained against the salary or property of the employee" ...
WORDS AND PHRASES-Continued 25-- "Matter in controversy"...... 525 "Merger"................... 27-"Mortgage" (within Bills of Sale and Chattel Mortgage Act, Ont.) ..... 28--"Officer or servant of the Crown while acting within the scope of his duties or employment upon a public work"... "100 cents on the dollar".... 616 "Ostensible occupation"....... 31-"Possession" (Limitations Act, Ont.)............................. 32-"Prejudicially affect any right or privilege with respect to denominational schools" (B.N.A. Act, e. 93 (1))..638, 639, 33-"Products of the forest" (Bank Act, s.
See BANKS 2. "Property" .................
35-"Purchaser" (as defined in Fuel Oil Tax Act, B.C.)................ 36- "Question of law" (Cr. Code, s. 1013 (5) )..
..............
37- "Retail merchant"........... 512 38--"Right of industrial property" (Treaty of Peace [Germany] Order, 1920, article 83)........................ 39- "Sales
*
*
* manufacturers or producers" (Special War Revenue Act, 1915, as amended) ..... 40- "Stock, etc."................ "Subject to the conditions contained in the Act aforesaid" .............. 42- "Taking back" (droit de retour) (Art. 779, C.C.)................... 43-"That the land was not liable for the taxes, or any portion thereof, for which the same was sold".................... 44-"The Province" (in s. 20 of the Separate Schools Act, 1863) ......... WORDS AND PHRASES-Continued
45---"Third person" (Art. 1571 C.C.)
...... I...........................
46-"This Province" (in s. 20 of the
Separate Schools Act, 1863) .........
See CoNs rrrrIoNAL LAw 5.
47- "Trader"............134, 512
DEX
WORDS AND PHRASES-Concluded -" Une terre"................. .
See GRAr.
WORK AND LABOUR........... WORKMEN'S COMPENSATION. 526
Cases cited
- A.C. 202 A.C. 202
- A.C. 614 A.C. 614
- 2 W.W.R. 456 2 W.W.R. 456
- 3 D.L.R. 291 3 D.L.R. 291
- 1 A.C. 129 1 A.C. 129 p 144, p 136
- A.C. 406 A.C. 406
- A.C. 348 A.C. 348
- S.C.R. 243 S.C.R. 243
- A.C. 871 A.C. 871 p 879
- Davis v. The King scr-1924-522
- Gouin v. The King scr-1926-539 p 543
- The King v. Bellos scr-1927-258
- The King v. Schrobounst scr-1925-458
- Knight v. Grand Trunk Pacific Development Co. scr-1926-674
- Laporte v. Can. Pac. Ry. Co. scr-1924-278
- City of Port Coquitlam v. Wilson scr-1923-235
- A.C. 545 A.C. 545 pp 554
- A.C. 493 A.C. 493
- A.C. 117 A.C. 117
- A.C. 533 A.C. 533
- Lord Strathcona SS. Co. v. Dominion Coal Co. A.C. 108
- A.C. 437 A.C. 437 p 444
- 3 W.W.R. 154 3 W.W.R. 154
- 1 W.W.R. 471 1 W.W.R. 471
- 2 W.W.R. 265 2 W.W.R. 265
- 2 W.W.R. 300 2 W.W.R. 300
- Makin v. Att.-Gen. for New South Wales A.C. 57 p 70
- 3 W.W.R. 769 3 W.W.R. 769
- Harbour Board Trustees v. Gibb (1 Eng. & Ir. App. 93) foll. Sanitary Commissioners of Gibraltar v. Orfila ( 15 A.C. 400
- A.C. 129 A.C. 129 p 136
Statutes and regulations cited
-
- s. 1014
- s. 93
- s. 129
- s. 106
- s. 26
- ss. 26
- 9
- s. 20
- s. 21
- ss. 3
- ss. 20
- 23
- section 23
- section 4
- section 6
- section 1
- sections 2
- 3
- section 2
- s. 14
- ss. 33
- 34
- 37
- 38
- 39
- Sections 36
- Section 23
- Section 4
- Section 6
- Section 1
- Sections 33
- Sections 2
- Section 2
- s. 9
- s. 13
- s. 23
- s. 1
- s. 3
- s. 27
- s. 16
- s. 32
- s. 79
- s. 11
- s. 17
- ss. 17
- 18
- s. 82
- s. 91
- s. 12
- s. 98
- s. 36
- s. 114
- s. 119
- s. 4
- s. 5
- s. 7
- s. 44
- s. 38
- ss. 106
- section 79
- ss. 27
- 7
- ss. 4
- s. 64
- s. 6
- s. 37
- s. 24
- s. 45
- s. 73
- Section 20
- s. 22
- Section 39
- sections 79
- 119
- section 119
- Section 7
- section 3
- Sections 27
- section 26
- sections 27
- section 35
- sections 106
- 120
- 121
- 122
- s. 120
- Section 106
- Section 3
- 79
- Section 27
- s. 51
- ss. 2
- s. 2
- ss. 36
- s. 264
- 21
- section 264
- s. 34
- 51
- 24
- ss. 6
-
- s. 1024
- s. 38 of the Supreme Court Act
- s. 38
-
- s. 40
- ss. 1013
- s. 1013
- s. 219
- s. 303
- s. 42
- s. 199
- s. 198
- s. 473
- s. 92
- s. 52
- s. 88
- s. 40 of The Patent Act
- s. 8
- s. 24 of the Patent Act
- s. 24
- s. 8 of the Patent Act
- ss. 8
- 24
- 29
-
- s. 4 of the Canada Evidence Act
- s. 16 of the Canada Evidence Act
- s. 301
- s. 16
- s. 4
- sections 2520
- ss. 47
- 48
- 49
- s. 49
- s. 47
- ss. 4
-
- s. 460
-
- section 536
- s. 268
- s. 43
-
Unresolved citations
- s. 14 of the Separate Schools Act
- s. 20 of the Separate Schools Act
- s. 20 of the Separate Schools Act, 1863
- s. 106 of the Common Schools Act
- s. 26 of the Separate Schools Act
- ss. 106
- 120
- 121
- 122 of the Common Schools Act
- s. 119 of the Common Schools Act
- s. 129 of the British North America Act
- Sections 20
- 21
- 22 of the Separate Schools Act
- Section 33 of the Separate Schools Act
- s. 13 of the Tach6 Act
- s. 79 of the Common Schools Act
- s. 7 of the Separate Schools Act
- s. 6 of the Grammar Schools Act
- Section 9 of the Separate Schools Act
- section 106 of the Common Schools Act
- s. 22 of the Separate Schools Act
- Section 20 of the Separate Schools Act
- s. 93 of the British North America Act
- s. 93 of the British North America Act, 1867
- s. 82 of the Companies Act
- s. 47 of Act
- (b)
- s. 4 of the Bankruptcy Act
- s. 47 of the New Brunswick Act
- s. 48 of said Act
- s. 52 of the Bankruptcy Act
- s. 16 of The Power Commission Act
- s. 2 of The Contributory Negligence Act
- s. 5 of The Limitations Act