Majority
sary to establish the company's liability to pay the tax. smN
That obligation, as we have said, involved proving that the company had manufactured the beer sold, and we are of opinion that the Crown failed to prove it. The parties were always at arms' length.
On behalf of the Crown we were asked to receive further evidence of manufacture if the court should be of opinion that it had not been sufficiently proved.
Section 3 of chapter 9 of the Statutes of 1928 (Can.) authorizes this Court, in its discretion, on special grounds, and by special leave, to receive further evidence on a question of fact. In this case, however, we are unable to find the existence of any special ground which would justify the receiving of further evidence.
The appeal, in our opinion, should be allowed and the action dismissed. The appellnt is entitled to the costs in the court below but, as it raised no question there as to the absence of proof of manufacture, there will be no costs of this appeal.
Appeal allowed. Solicitors for the appellant: Slaght & Cowan.
Solicitor for the respondent: W. Stuart Edwards.
REGENT TAXI & TRANSPORT COM- PANY
LA CONGREGATION
DES
PETITS
FRERES DE MARIE, DITS FRERES
MARISTES ...............
being injured while travelling in an omnibus belonging to the appellant. The action was brought more than a year, but within two years, after the time of the accident.
The claim consisted of $4,780 for RMNT & expenses incurred by the community in medical and hospital care; TAsroav of $118 for the value of clothing, etc., destroyed in the accident, alleged to be the property of the community; and of $10,000 for damages due to the loss of services of the injured brother. The trial judge DNMMAassessed the respondent's damages at $4,000, of which $2,236.90 was allowed for out-of-pocket expenses, and the balance on account of the claim for other damages; and this decision was affirmed by the appellate court. It was also found by the trial judge and unanimously upheld on appeal that the injury was attributable to fault and negligence of an employee of the appellant for which it was responsible;
and no appeal was taken to this court against that finding. The questions arising on this appeal are, (a) whether the respondent has, or ever had, the right of action which it asserts; and, (b) whether its claim is barred in whole or in part by the limitation provision of par.
2 of art. 2262 C.C.
Held, (affirming in part the decision of the Court of King's Bench (Q.O.R.
46 K.B. 96) ), that the respondent has a right of action against the appellant company, but that it is entitled to recover only the sum of
$2,236.90 for the expenses incurred by it as a result of the injuries sustained by the member of the community. Mignault and Rinfret
JJ. (dissenting)
.
Held, also, Mignault and Rinfret JJ. (dissenting)
, that the plaintiff was within the purview of the word " another " (" autrui ") as used in article 1053 C.C., and therefore entitled to maintain this action.
Article 1053 C.C. confers on every person, who suffers injury directly attributable to the fault of a third person as its legal cause, the right to recover from the latter the damages sustained.
The suggestion that the right of recovery under that article should be restricted to the " immediate victim " of the tort involves a departure from the golden rule of legal interpretation (Beal, Legal Interpretation, 3rd ed., p. 80) by refusing to the word " another " (" autrui ") in article 1053
C.C. its ordinary meaning; and such interpretation would be highly dangerous and would result in the rejection of meritorious claims.
Moreover, it is not necessary so to restrict the scope of article 1053
C.C. in order to give full operation to the terms of article 1056 C.C., as nothing in this latter article suggests an intent to narrow the scope of article 1053 C.C., save " where the person injured * * * dies in consequence" and the claim is for " damages occasioned by such death."
Held, also, that the respondent's action is not prescribed. The action is
"for damages resulting from * * * (a) quasi-offence " and is prescribed by two years only (article 2261 (2) C.C.), and is not one for
"bodily injuries" prescribed by one year (article 2262 (2) C.C.).
Mignault and Rinfret JJ. not expressing any opinion.
Per Anglin CJ.C. and Smith J.-The provisions of article 1056 C.C. may not be necessary to support the actions for which it provides; but their presence cannot justify narrowing the purview of the clear terms in which article 1053 C.C. is couched, except so far as may be necessary to exclude from it the special cases for which article 1056 C.C.
provides. The respondent is entitled to be adequately compensated on the footing of loss of benefits reasonably to be expected from a continuance of the services of the injured member. The appeal.should be dismissed with costs.
Per Mignault and Rinfret JJ. (dissenting)
.-The respondent had no status to bring the action, which should have been dismissed by the trial REEN judge. Article 1056 C.C., together with article 1053 C.C., covers the whole ground of liability in cases of bodily injuries and both articles must be construed together. Article 1053 C.C. establishes the foundation upon which such liability will rest, and article 1056 C.C. enacts in what circumstances and in favour of what persons the liability will DES exist. Therefore, it follows that the word "autrui" ("another") in FnRES article 1053 C.C. connotes " la partie contre qui le ddlit ou quasi-ddlit a commis" ("the person injured by the commission of an offence or a quasi-offence ") contained in article 1056 C.C.; and that person cannot be any other than the " immediate victim." In the province of Quebec, in cases of bodily injuries caused by fault, the right of action belongs solely to the " immediate victim " during his lifetime and, after his death, exclusively to the persons enumerated in article Per Mignault and Rinfret JJ. (dissenting).-The respondent might have had a right to recover the amount of expenses incurred by it for medical and hospital care, by means of the action de in rem verso; but, as such, it would be prescribed, by the expiry of one year under article 2262 (2) C.C. Anglin C.J.C. and Smith J. dubitantibus.
Per Lamont J.-The respondent cannot succeed as to its claim for loss of services. To be entitled to maintain such an action, a legal right to such services, and the loss thereof, must be established. The contractual relation of master and servant did not subsist between the respondent and the injured brother and., upon the evidence, neither the brother nor the Congregation ever considered they were creating any legal relationship between them.
Therefore, the fault of the appellant company did not deprive the respondent of the brother's services, to which it had no legal right. Anglin CJ.C. and Smith J. contra.
APPEAL from the decision of the Court of King's Bench, appeal side, province of Quebec (1), affirming the judgment of the trial judge, Surveyer J., and maintaining the respondent's action in damages for $4,000.
The material facts of the case and the questions at issue are fully stated in the above head-note and in the judgments now reported.
A. Geoffrion K.C. and L. Faribault K.C. for the appellant. J. Cartier for the respondent.
ANGLIN C.J.C.-The plaintiff (respondent) is a religious community incorporated by statute of the province of Quebec (50 Vic., c. 29) and possesses, as an incident of its corporate entity, the capacity to sue and be sued (s. 4). The defendant (appellant) is a common carrier engaged in the (1) (1928) Q.O.R. 46 K.B. 96.
business of furnishing transportation for passengers by taxicab and omnibus.
Brother Henri-Gabriel, a member of the plaintiff community, sustained serious injury, while travelling in an omnibus of the defendant, on the 14th of August,
CoN- It was found by the trial judge, and unanimously affirmed by the Court of King's Bench (1), that the injury sustained by Brother Henri-Gabriel was attributable to fault and negligence of an employee of the defendant for which it was responsible; and against that finding no appeal has been taken here.
The present action was brought to recover damages sustained by the community in consequence of Brother Henri- Gabriel being so injured. The claim consists of three parts: first, the sum of $4,780 expended by the community in medical and hospital care for the injured brother and in providing him with such necessaries as spectacles, etc.; second, the sum of $118 for the value of clothing and other personal effects, the property of the community, destroyed in the accident; and, third, the sum of $10,000 for other actual damages due to loss of services of Brother Henri- Gabriel, etc.
The learned trial judge (Surveyer J.) assessed the plaintiffs damages at $4,000, of which amount the sum of $2,236.90 was allowed for out-of-pocket expenses, admittedly incurred by the plaintiff as a necessary result of the injuries sustained by Brother Gabriel, and the balance on account of the claim for other actual damages.
This judgment was confirmed by the Court of King's Bench (1), although two members of that court, Mr. Justice Greenshields and Mr. Justice Cousineau (ad hoc), would have reduced the recovery-the latter to the sum of $2,236.90 allowed for out-of-pocket expenses, to which Mr. Justice Greenshields would, however, add the sum of $900 to cover an expenditure of the respondent in replac- ,V* Brother Henri-Gabriel on its teaching staff.
Two questions arise on the present appeal, viz., (1) whether the plaintiff has, or ever had, the right of action which it asserts; and (2) whether its claim is barred in whole or in part by the limitation provision of paragraph (2) of article 2262 of the Civil Code, which reads a& followS:
The plaintiff being endowed, as a body corporate, with the capacity to sue, the question on the first branch of the 'MAIE appeal is whether it has a right of action to recover the damages it now claims.
'C.
Articles 1053 and 1054 C.C. read as follows:
Is the present plaintiff, under the circumstances in evidence, within the purview of the word "another" ("autrui") as used in article 1053 C.C.? Such is the issue on this branch of the appeal.
A plaintiff has a right of action for all damages sustained by him against any person guilty of fault which caused such damages.
(S. 1924.1.160; Zach., vol. 4 (Mass6 et Verg6, 1858) nos. 625-7; Canadian Pacific Railway Co. v. Robinson) (1).
Article 1053 C.C. says so in terms so explicit that to deny the existence of such a right as that set up in the present action involves placing a restriction upon the prima facie generality of the language in which it is couched (8 De Lorimier, Bib., C.C., pp. 203-14), and which formulates the common law theretofore existing. Ravary v. Grand Trunk Ry. Co. (2).
The only alternative view suggested is that the right of recovery under art. 1053 C.C. should be restricted to " the immediate victim " of the tort of the defendant.
(I use the phrase " immediate victim " for lack of a better-M. Demogue (Obligations, t. 4, no. 528) refers to " la victime matirielle "). Indeed, there can be no logical half-way position between so restricting the application of the article and admitting that, standing alone, it confers on every person, who suffers injury directly attributable to the fault of a third person as its legal cause, the right to recover from the latter the damages sustained. It must not be forgotten that on the principle enunciated in arts. 1053-4-5 C.C. depends practically the whole law of tort in Quebec, covering alike wrongs against person, property, honour and & reputation, article 1053 C.C. embodying the general common law of the province on this subject. Articles 1054 and coV.IEGA- 1055 C.C. provide for vicarious responsibility, cover particular cases and create certain liabilities conditionally de- nQMSDE feasible. Quebec L.H. & P. Co. v. Vandry (1).
Accordingly, to narrow the prima facie scope of art. 1053 C.C. is highly dangerous and would necessarily result in most meritorious claims being rejected; many a wrong would be without a remedy. To those who urge the danger and inconvenience in multiplicity of actions and other evils which might result from giving to the word "another" ("autrui") in art. 1053 C.C. its ordinary and unrestricted meaning, I reply, adapting the words of Lord Sumner in Vandry's case (2).
To all this the plain words of the article, if they are plain as their Lordships conceive them to be, are a sufficient answer. In enacting the Code the Legislature may have foreseen cases of the kind now in question many years before any of them arose
* * * The positive words of the article stand and must have effect.
See, too, Fuz-Herm. III, Cod. Civ. Ann., arts. 1382-3, no. 694 (infra). The courts may be trusted to discourage unmeritorious claims.
As Sir Frangois Langelier says, in his well known work on the Civil Law of Quebec, vol. III, at p. 468,
Pour qu'un d6lit ou un quasi-difit donne lieu A une action en dommages, i1 n'est pas ncessaire que ces dommages (sic) soient caus6s A Ia personne m&me qui les rbclame: il suffit que la cons~quence en rejaillisse sur chle, alors que le dslit ou le quasi-d6lit a portd sur une autre. C'est ainsi, par exemple, qu'une compagnie d'assurance a une action en dommages contre Pauteur de Iincendie d'une propii&6 qu'elle avait easurbe. Le mani a une action en dommages -pour les dommages caus6s J sa femme. Le phre a une action en dommages pour les dommages caus68 A 6es enfants. II a mame 6td d6cid6, i1 y a une trentaine d'ann6es, par la Cour de Cassation, que les parents mgme collat&raux de quelqu'un qui est ont une action en dommages contre ceux qui ont attaqub sa m46moire.
Mgr. Dupanloup, le c6l6bre 6vique d'Orlians, fut condamn6 A payer des dommages A la famille de Mgr. Rousseau, un de ses pr6dicesseurs d6c6d6 depuis longtemps, parce qu'il avait outrag6 sa m6moire. En un mot, pour que celui qui n pas soufert directement de la faute d'un autre ait une action en dommages, il sufet qu'il ait eu un intr6t actuel, moral ou mat~riel, A ce que cette faute soit pas commise. (1) [1920] A.C. 662, at pp. 673-7.
(2) [1920] A.C. 662, at pp. 677-8. Mignault, in his work, " Droit Civil Canadien," vol. 5, at pp. 333-4, says:
Quiconque, par as faute, cause un dommage 1 autrui, est oblig6 de le r6parer. * * * La faute est tout ce qui blesse injustement le droit d'autrui. Elle peut, done, consister dans une action ou dans une omission d'action. La faute est un d6lit lorsque l'agent du dommage l'a caus6 avec intention; quasi-d6lit, dans le cas contraire. *
*
* Le quasi-d6lit est I'acte volontaire et illicite d'une personne qui, par imprudence ou negligence, cause du dommage I autrui.
- The present action is founded on a quasi-dglit.
An instance of the broad application of art. 1053 C.C. occurs in the judgment of Mathieu J., in Larrivg v. Lapierre (1), in an action by a father to recover damages personally sustained by him because of an injury to his son. We find, at pp. 4, 5, the following considgrants:
Consid6rant que, par P'article 1053 du Code Civil, toute personne capable de discerner le bien du mal est responsable du dommage caus6 par sa faute A autrui, soit par son fait, soit par son imprudence, n6gligence ou inhabilit6 et que, par 1Particle 1054, est responsable non seulement du dommage qu'elle cause par sa faute, mais encore de celui caus6 par les choses qu'elle a sous sa garde;
Considbrant que Je demandeur allbgue, dans sa d6claration, que l'accident dont il est question a eu lieu par la faute du d6fendeur, qui serait servi dans sa manufacture d'une machine impropre
I'usage duquel il l'employait;
Consid6rant que le dernandeur allfgue que, par suite de cet accident, il est priv6 du salaire de son fils qui le faisait vivre, et qu'il 6prouve des dommages directs au montant de deux cents piastres;
Consid6rant que les dommages-intirfts doivent comprendre, non seulement la rparation du prbjudice 6prouv6 par la partie 16s~e, mais aussi celui que souffre la famille, lorague le fait dommagEable rejaillit elde, et que tous ceux auxquels le fait a causg un dommage sont admis a rdclamer;
Considdrant que demandeur allbgue qu'il a 6prouv6 un pr6judice personnel de ]'accident arriv6 b son enfant qui l'a emp~chi de travailler, et qu'iI est ainsi priv6 du b6n~fice qu'il retirait du travail de son dit enfant;
Consid~rant qu'entre le phre et le fils, il y a obligation, de la part de ce dernier, de fournir des aliments au premier, et que, tant en raison de cette obligation, qu'en raison des circonstances particulibres all6gu6es dans la dbclaration, et, spicialement du fait qu'il vivait du salaire de son fils, cet accident dui a caus6 un prbjudice r6el.
Again, in Sheehan v. Bank of Ottawa (2), reversed on another ground (3), although the judgment should probably have been rested on art. 1056 C.C., a similar right under art. 1053 C.C. was recognized for a father whose son had been shot by a young man to whom the bank had (1) (1890) 20 RL. 3.
(2) (1920) Q.O.R. 58 S.C. 349. (3) (1923) Q.O.R. 35 K.B. 432.
negligently entrusted a revolver.
Fault causing damage entails delictual responsibility; without fault, actual or presumed (except in the case of damage caused by things under defendant's care), such responsibility does not exist: Allard v. Frigon (1).
In both the above instances the right of recovery under art. 1053 C.C., was not restricted to " the immediate victim " of the defendant's fault.
Moreover, with the utmost respect for those who think that the words "to another" ("a autrui") of art. 1053, C.C., should be construed as embracing only " the person injured " (la partie contre qui le dilit ou quasi-d6lit a 6t6 commis), i.e., "the immediate victim " of a tort of the defendant, to the exclusion of others who also suffer damages directly attributable to such tort (e.g. the master who loses the benefit of the services of his injured employee, (Demogue, Obligations, t. 4, no. 530)-the husband, separate as to property, whose affections have been outraged by the ravishment of his wife), this suggested restriction on the purview of these words involves a departure from the golden rule of legal construction, applicable to all writings, that
The words "to another" ("a autrui") of art. 1053 C.C. are clear and present no ambiguity.
But, it is said, the decision of the Privy Council in the Vandry case (2), and Article 1018 C.C., applicable by analogy, require us to read art. 1056 C.C. with art. 1053 C.C., and it is urged that, in order to give to art. 1056 C.C. some operation, the scope of the words under discussion in art. 1053 C.C. should be so restricted as to cover only "the immediate victim " of the tort-at least where the claim arises out of bodily injuries. I shall proceed at once to consider the argument based on the presence of art. 1056 in the Civil Code, as it was practically the sole ground urged for the restriction of the purview of art. 1053 C.C. and the rejection of all the French authorities which give to the word " autrui " its prima facie meaning, the Code Napoleon containing no provision corresponding to art. 1056 C.C. No doubt, " the plainest words may be controlled by a reference to the context" (Beal, Ibid., pp. 83, 84); noscuntur a sociis; but not only must the words to be so conohs trolled be consistent with the suggested limitation, Garbutt v. Durham Joint Committee but
Bentley v. Rotherham and Kimberworth Local Board (2), These principles of legal interpretation, being founded on common sense, apply equally under the civil and the common law systems.
(De Chassat, Interpretation des Lois, (1822) pp. 100, 205 et seq.; Langelier, Droit Civ., vol. 1, pp. 20, 22 and 91; art. 12 C.C.
A difference between the two authentic versions of the text of art. 1056 C.C.-the words " ascendant and descendant relations " of the English version (which would include grand-parents and grand-children) being translated in the French text " phre, mire et enfants "-is not here material. (See s. 6 of c. 78 of Con. Stats. (1859) of Canada; and Bonin v. The King (3). There is nothing in art. 1056 C.C. that suggests an intent to narrow the scope of art. 1053 except "where the person injured
* *
* dies in consequence" and the claim is for " damages occasioned by such death "; and the chief purpose of art. 1056 may well have been to preclude such claims, which would often be preferred on flimsy grounds, by persons other than those designated in art. 1056 C.C., who might otherwise regard them as within the purview of art. 1053 C.C. Hunter v. Gingras (4).
Given that effect, art. 1056 C.C. has a distinct and useful office; and, so treating it, there is no infraction of the provision of the golden rule, that the grammatical and ordinary sense of plain and unambiguous terms is not to be modified to a greater extent than is necessary to avoid absurdity, repugnance or inconsistency. Notwithstanding any apparent violence to logic in excluding claims by persons other than those named in art. 1056 C.C., when the immediate victim of the tort dies, for damages occasioned by his death, while allowing all who sustain direct loss to claim, if the immediate victim survives, there is not here such inconsistency, repugnance or absurdity as requires the courts to deny their plain meaning and effect to the words of article 1053 C.C., Abley v. Dale (1). Moreover, it seems to me not improbable, although article 1056 C.C. differs in some important respects from Co Lord Campbell's Act of 1846 (Miller v. Grand Trunk Ry. Co.) (2), that its predecessor, viz., chapter 6 of the Statutes of Canada (1847), 10-11 Vic. (c. 78 of the Con. Stats. of . Can., 1859), was imported into the law of Quebec from the English Statute (Robinson v. Canadian Pacific Railc .. way Co. (3) ), either in order to forestall defences. based on the maxim " actio personalis moritur cum persona" or, rather, on the quaint (Lord Sumner outlined its history in Admiralty Commissioners v. S.S. " Amerika," (4) ), and, in the view of ardent civilians, probably the crude, if not semi-barbarous, doctrine of the English common law (See observations of Farwell, L.J., in Jackson v. Watson (5) ) -ex morte hominis non oritur actio; Baker v. Bolton (6); Admiralty Commissioners v. S.S. " Amerika" (7), which might be invoked by some defendant to an action within the scope of that article, or to assimilate in this particular the law of Upper and of Lower Canada, Canadian Pacific Ry. Co. v. Robinson (8). In English law, as clearly appears in the two English cases last cited, damages sustained by the plaintiff before the death of the immediate victim are recoveraible, although his death in consequence of the injury should subsequently ensue. The actions for which it provides art. 1056 C.C. itself expressly styles "independent" (a) i.e., personal (Miller v. Grand Trunk Ry. Co. (2) ), and without effect, whether by way of assistance or of defeasance, on other rights of action (except actions by persons other than those named in art. 1056 C.C. " for damages occasioned by such death," which its terms no doubt preclude), the maxim " expressio unius est exclusio alterius " being applicable and the words of art. 1056 C.C. " all damages " being given due effect.
To support the actions for which it provides article 1056 C.C. may. have been unnecessary; and we are not unfamiliar with otiose provisions in legislation. The presence of such a provision, whether introduced per incuriam or ex majore cautela, cannot, I think, justify cutting down the purview of the liA clear terms in which article 1053 C.C. is couched, except so far as may be necessary to exclude from it the special cases for which article 1056 C.C. provides. (Art. 2613 C.C.) Had the legislature intended to exclude from the application of art. 1053 C.C. other cases so plainly within its ex facie purview, as is that at bar, a more direct method would assuredly have been found to effectuate that purpose. The suggestion that, because the damages claimed could not reasonably have been foreseen by the defendant, they cannot be recovered, seems to indicate a confusion of the bearing of such considerations on the determination of the question of the existence of negligence or fault on the part of the defendant, where they may often be of moment, with their application to the measure of compensation, where, responsibility having been admitted or established, they are quite immaterial. Here the negligence or fault of the defendant and its responsibility to those thereby injured, who are within the scope of art. 1053 C.C., is no longer in question. Merely as illustrative of this view reference may be permissible to the very recent judgment of the Appellate Division (Ontario) in Harding v. Edwards et al (1), and to an English case therein discussed: In re Polemis and Furness, Withy & Co. (2), since the decision in which, says Mr. Justice Middleton, at p. 105 of the report of the Ontario Weld-Blundell v. Stephens (1): What a defendant ought to have contemplated as a reasonable man is material when the question is whether or not he was guilty of negligence.
This, however, goes to culpability, not to compensation; and by Sir Samuel Evans in H. M. S. London (2): The court is not concerned in the present case with any inquiry as to the chain of causes resulting in the creation of a legal liability from which such damages as the law allows would flow. The tortious act -i.e.
the negligence of the defendants which imposes upon them a liability in law for damages-is admitted. This gets rid at once of an element which requires consideration in a chain of causation in testing the question of legal liability, namely, the foresight or anticipation of the reasonable man. * * * When it has been once determined that there is evidence of negligence, the person guilty of it is equally liable for the consequences, whether he could have foreseen them or not.
I would refer to an earlier decision of Lord Sumner, when he was Lord Justice Hamilton, in Latham v. R. Johnson & Nephew, Ltd., (3) where he says, at p. 413: "Children acting in the wantonness of infancy and adults acting on the impulse of personal peril may be and often are only links in a chain of causation extending from such initial negligence to the subsequent injury. No doubt each intervener is a causa sine qua non, but unless the intervention is a fresh, independent cause, the person guilty of the original negligence will still be the effective cause.
See too Great Lakes SS. Co. v. Maple Leaf Milling Co. (4). While judgments resting on English law are not authoritative in determining Quebec cases of which the decision rests upon the principles of the civil law, there would seem to be no good ground for excluding from consideration in a Quebec case the reasoning on which rest the conclusions reached in England and in Ontario, respectively, in the two decisions cited. Moreover the Court of Review expressed the like opinion in 1916 in Makkinge v. Robitaille (5)-a case of liability ex contractu. So, too, while arrits of the French courts are not binding authority in our courts (Maclaren v. Att. Gen. for Quebec (6); McArthur v. Dominion Cartridge Co. (7), nevertheless they are entitled to the most respectful consideration at our hands where, as here, the texts of law which they expound (art. 1382-1383 C.N.) are substantially the same as, and are the prototypes (1st Report of the Codification Commissioners, (1865) vol. 1, p. 16) of that of the Civil Code of Quebec (art. 1053 C.C.), Shawinigan Carbide Co. v. Doucet (8), per Fitzpatrick, C.J.; Quebec L., H. & P. Co. v. Vandry (9).
(1) [1920] A.C. 956, at p. 984.
(6) [1914] A.C. 258, at p. 279. (2) [19141 P. 72, at p. 76.
(7) [1905] A.C. 72, at p. 77. (3) [19131 1 K.B. 398.
(4) (1924) 41 T.L.R. 21.
(8) Can. at (5) (1916) Q.O.R. 51 S.C. 17, at pp p. 21.
(9) [1920] A.C. 662, at pp. 671-2. That, excluding such contingencies as Brother Henri- Gabriel's premature death or abandonment of his religious vocation, the plaintiff had a reasonable expectation, amounting to a moral certitude, that it would enjoy the full benefit of his services during the two years immediately following his injury, admits of no doubt; and that such expectation of gain or advantage (whether the legal character of the relationship borne by the injured brother to the respondent should be regarded as that of an employee or as that of an associg (Rev. Trim., 1902, p. 904, n. 44) ) having been unlawfully interfered with by the act of the defendant (Beullac, C. C. P. Ann., art. 77, nos. 5 and 15), suffices to create the interest requisite to give a status to sue (art. 77 C.C.P.) for damages caused by such harmful interference, is, I think, in the Civil Law equally clear. Contra spoliatorem omnia praesumuntur.
Any difficulty that might be suggested because of the fact that the plaintiff is a religious congregation is fully met by the statutory incorporation of the Quebec community to which Brother Henri-Gabriel belonged.
(See Fuzier-Herman, Rep., vbo. Comm. Relig., nos. 119, 234). The contract, or arrangement, under which he became a member of the community and undertook'to place his services entirely at its disposal in return for the dbligation on its part to maintain him and provide him with all necessaries, etc., gave to the plaintiff an interest in his health and welfare sufficient to justify its claim for damages oocasioned by inability on his part to render to it the services stipulated for caused by fault of the defendant. (Ibid., 190 bis, 191). Indeed that right seems to be a necessary correlative of the civil responsibility of religious communities for delicts or quasi-delicts of one of their members " dans l'exercise des fonctions auxquelles elles l'ont pr6pos6."
(Ibid., no. That a plaintiff, holding towards another, who is injured by the fault of a third party, relations such as those which his community had with Brother Henri-Gabriel, has a cause of action against such third party for damages sustained by him through the fault of such third party seems to be very clearly the opinion of leading French textwriters. In 20 Laurent, no. 534, we read:
A des termes d l'article 1382; est consacr6 par la jurisprudence. La cour de cassation l'a formul6 dans les termes suivants, A l'oceasion de la mort instantande d'une personne par suite d'un acident de chemin de fer: Le fait dommageable ouvre une action en dommages-int6rits au profit TRANSPORT de toute personne qui a souffert un prbjudice direct r6sultant de ce fait" (Rejet, 21 juillet 1869, D. 72, 5, 386, n. 1.)
Hue thus states the same principle in vol. 8, at no. 420: Selon la formue de da cour de cessation: " Le fait dommageable ouvre une action en dommages-intrts au profit de toute personne qui a souffert un prbjudice direct Tsultant de ce fait " (Cass. 21 juillet 1869, D. 72, 5, 386, n. qu'elle soit ou non hiritibre de la victime.
(Alger, 23 mai 1892, S. Angin 94, 2, 62.)
c.J. In 2 Planiol, 9e 6d., at no. 890, we read:
Quand la faute est dommageable, el1e produit b la charge de son auteur une obligation d'indemniser la victime. Cette obligation de payer des dommages-intr&ts est, en matibre civile, l, sanction n6cessaire de toutes les obligations l6gales, aussi bien que de toutes les obligations conventionnelles. La faute est done ua fait productif d'une obligation nouvelle.
and, at no. 892:
Toute personne 16se par la faute a le droit d'&tre indemnis6e. doit done y avoir en principe autant d'indemnit6s distinctes qu'il y a de personnes lis6es: toutefois, cela n'est pas toujours nucesaire.
See also, 1 Sourdat, Responsabilit6, nos. 103, 659, 690, 691, 692.
Commenting on articles 1382 and 1383 C.N., Larombibre, in his Treatise on Obligations (1857), vol. V, at no. 36 (p. 713), says:
Quant au droit qui appartient N la partie 16s6e, de poursuivre la r6paration du dommage qui lui a fti caus6,
'action qui en r6sulte existe 6galement en sa faveur, soit que le d6lit ou quasi-d6lit lui ait fait 6prouver un dommage matbriel ou un tort moral, d'une manibre directe on indirecte. Mais elle doit, dans tous les cas, commencer par 6tablir que ce dommage existe, et qu'll existe par la faute de i'auteur du fait.
Lorsqu'elle a 6t directement et individuellement atteinte dans sa fortune, sa personne, sa consid6ration et son honneur, la r~aiit6 du pr6judice est plus manifestement sensible et plus ais6ment appr6ciable. Mais il n'en est plus moins vrai qu'dlle peut 8tre indirectement ls6e dans les biens, dans la personne d'un tiers, et 6prouver le contrecoup des atteintes portees aux droits de ce dernier.
suffit alors que le dilit on quasi-ddlit nit 6t la cause d'un dommage quelconque A son 6gard, sans qu'elle e'y soit elie-mime volontairement et imprudemment exposbe, pour qu'elle ait une action ipersonnelle en r6paration.
See also no. 27 and Domat's (Euvres Complites (1830), vol. I, p. 480, no. 1; p. 483, no. 10.
As to what is " indirect " damage not recoverable, see 43 Rev. Crit. de Leg. (1914), pp. 229 et seq. and S. 1911, 1, 545. It is damage of which the fault (fait) of the defendant has been merely the occasion, not the cause.
The jurisprudence fully supports the views thus expressed by "the authors," and is by no means wholly & modern. To quote a few reports of decisions, selected from many: In Ragon v. Chanfrault (1), we read:
L'action civile en r6paration d'un crime ou d6lit appartient A tous ceux qui, directement ou indirectement, en ont souffert un pr6judice r6el; il n'est pas n6cessaire pour que aeur action soit recevable, que des obligations naturelles et ligales les rattachent 6 la victime.
MARE.
Nos. 441-2, Pandectes Belges (1889), vol. 32, vbo. Domm.-Ints., read as follows:
441. La loi donne I'action en dommages-intrfts h tous ceux qui sont 96sis par le fait dommageable. Oe principe r~sulte des termes m~mes de Part. 1382, et il a 6t6 consacr6 par la jurisprudence.
442. Un intirit quelconque ne suffit pas, toutefois: i1 faut que le dommage soit personnel A. ]a personne qui se pr6tend 16s6e, c est--dire it faut qu'elle soit atteinte dans des 'droits ou des int6rts individuegs.
In no. 1010, Sirey, Codes Ann. (Civ.), vol. 3, arts. 1382-3, we find:
I)6id6, dans le m~me sens, que s'il ne suffit pas pour autoriser une action civile en dommages-int&ts qu'il soit justifi d'un lien de parent6 ou d'affection entre la victime d'un crime ou d'n d6lit et ceux qui r6clamert reparation, i1 n'est pas non plus n~cessaire que des obligations naturelles et 16gales les rattachent l'un & l'autre; i1 suffit qu'il y ait pr6judice rdel pour donner droit & r6paration. * * *
(Bourges, d6c. 1872, S. 74, 2,
In S. 1894. 2. 22, we have a decision of the Court of Appeal at Lyons indicating that it is of slight importance in the case of a claim by a brother or sister that there did not exist on the part of the injured person any alimentary obligation towards the plaintiffs.
Again, in Pandectes Belges, 1881, vol. 5, vbo., Act. Civ., at no. 51, we read:
Bien que le dommage 6prouv6 doive 6tre personnel au demandeur, il n'Est pas nicessaire que 1infraction ait 6t6 dirigbe contre lu-mame; il suffit que, en frappant directement d'autres personnes, elle ait port6 en mgme temps atteinte & son honneur ou & sa fortune.
See Chemins de fer de l'Est c. Lucioni (2).
Demolombe says (vol. 31 (1882), par. 675), at p. 579:
Une seule question se pose: ce demandeur, en responsabilit6 civile, a-t-il 6prouv6 un dommage r6sultant du ou du quasi-d61it, imputable au d6fendeur? Si Pon r6pond affirmativement. cela suffit; or, 'associ6 priv6 de son associ6, le chef peut-9tre et l'Ame de I'entreprise commune, peut avoir 6prouv6 un dommage consid6rable; done, il a droit A une rdparation.
Finally, from Fuzier-Herman, III Cod. Civ. Ann., arts. 1382-3, nos. 686 et seq., I take the following summary: (2) Gaz. du Palais, 1926, 1, 262. (1)
686. L'action en dommages-int6rts appartient b toute personne qui, soit directement, soit indirectement, 6prouve un prdjudice & raison du d6lit ou du quasi-dlit commis par le d6fendeur Aubry et Rau, t. 4, p. 748; REIN no 445; Reuter, Cours de 16gisl. crim., t. 2, p. 444; Hue, t. 8 no 420; Laurent, t. 20, no 534; Larombibre, sur les arts, 1382-3, no 36; Demolombe, t. nos 673 et seq.
V* 686 bia. Comme faction en dommages-int6rits appartient A ceux qul indirectement 6prouvent un prbjudice, ii faut admettre que la compagnie Prrrs d'assurances qui, i la suite de meurtre d'un assuri, a verser I ses h6ri- DE tiers le montant de 1'assurance stipulde en cas de d6cs, est en droit de * r6clamer des dommages-int~rits A l'assassin, & raison du prbjudice que lui a fait 6prouver le palement pr6matur6 de I'assurance.
Cour d'ass., Jura, 28 juin 1884, S. 85, 2, 219.
686 ter. De m~me, l'assureur qui a indemnis6 1'assur6 des suites de l'incendie a une action en dommages-int6r~ts contre V'auteur de Iincendie pour le pr6judice qu'il lui a caus6 en donnant lieu par son faith l'exercice de Faction de 'assur6 contre 1'assureur.
Cass. 22 d6c. 1852, 8. 53, 1, 109.
688. L'action en Trparation du prbjudice caus6 par un accident (sp&cialement par accident suivi de mort) n'appartient done pas seulement h la victime de l'accident ou & ses h6ritiers, mais encore h quiconque, h6ritier ou non de la victime, se trouve directement par les cons6quences de l'accident. Alger, 23 mai, 1892 (S. 94, 2, 62; D. 94, 2, 47). 694. Vainement l'auteur de l'accident objecterait qu'il pourrait 8tre ainsi expos6 A l'infini A des actions successives de la part de tous ceux qui, & titre quelconque, tiraient avantage de la vie ou du travail de la victime; 'action en responsabilit6 n'est ouverte qu'd celui qui prouve Fexistence d'un dommage, et & la condition de justifier d'un pr6judice personnel et direct. Alger, 23 mai 1892, prbait.
695. Le b6nkfice des r6parations peut 6tre ainsi 6tendu mme h des parents & 1'6gard desquels n'existe pas 1'obligation de se founir arciproquement des aliments. Cass. 20 f6vr. 1863 (S. 63, 1, 321.)
699. En r6sum6, 1action civile en dommages-intrQts pour r6paration d'un crime ou d6lit, appartient & tos ceux qui, directement ou indirectement, en ont souffert un pr6judice T6el, sans qu'il soit n6cessaire que des obligations naturelles et 16gales les rattachent A la victime. Bourges, 16 ddc. 1872 (S. 74, 2, 71), 706.
Au surplus, si tout individu peut r6clamer Ia r6paration du prbjudice h. lii caus6 par la faute d'un tiers, soit & ce dernier, soit aux personnes sur lesquelles phse une responsabilit6 l6gale, il faut qu'il justifie de 1'existence actuelle et certaine de ce prdjudice. Et c'est au juge du fond h appr6cier en fait si cette justification a t6 ou non rapport6e. Cass. 15 avr. 1890 (S. 90, -1, 501).
See too Demogue " Obligations," t. 4, nos. 528, 530-1-3-5-7. That the .interest of the present plaintiff depends upon its relation, contractual or other, with the injured person, it is said presents a difficulty. But, apparently, all that it is required to prove, under art. 1053 C.C., is that, as the result of an interference with that relation attributable in law to fault of the defendant, it has sustained damage, which it becomes the duty of the jury (or of the judge discharging its functions) to assess.
I find it impossible to distinguish in principle from the case at bar that of Cedar Shingles Co. v. Comp. d'Ass. de Rimouski (1), cited by Greenshields, J., where, not as the result of any subrogation, but solely because it was held to be directly within art. 1053 C.C., the loss sustained by a fire insurance company, obliged by contract to indemnify FR the owner of the property destroyed, was held to give it a right of action against the defendant, a third party, who was responsible for the fire.
L'assureur qui a payi le montant de 'assurance A l'assur6, a, pour se faire rembourser, contre l'auteur du sindistre, le recours en dommages de l'art. 1053 CE.
So reads the fifth paragraph of the head-note to the report of that case.
Boss6, J., delivering the judgment of the court, after stating that the claim of the plaintiff was based on art. 1053 C.C., and depended upon the soundness of its contention that, having been obliged to pay because of the fault of the defendant, the latter was bound to reimburse it, said, at p. 382:
Cette doctrine a 6t aocept6e par Pardessus, vol. 2, nP 595, cit6 par lee codifloateurs sous 'art. 2584, et Pardessus rapporte, dans ce sens, un arrat de la cour de cassation du 18 d6cembre 1827, D. 28, 1, 63. Depuis lors, Ruben de Couder, no 252, 252 (sic) et DuHai, no 176, cit6s par Dalloz, ont adopt6 cette opinion, et elle a t6 sanctionnie par la cour de cassation dans I'affaire de La Prudence, D. 53, 1, 9, et par la cour d'Appel de Chamb6ry, dans 1'affaire de la Compagnie L'Europe, D. 82, 2, 238. See, also, Alauzet, " Assurances," vol. 2, pp. 388-9. This decision of the Quebec court finds full support in French and Belgian jurisprudence of long standing. D. 1882. 2. 238, mentioned by Boss6, J., the following notable paragraph occurs in the report of Compagnie L'Europe c. Gruffart et al.
Attendu, en effet, que 1es dispositions des arts. 1382 et 1383 sont aussi g~n6rales dans Jeurs termes qu'6tendues dans aleur application; qu'elles ne font aucune distinction ni aucune rdserve et constituent en quelque sorte un droit commun, applicable b, tous les citoyens, quelles que soient leur situation, ou leurs entreprises partiolibres:-Que, ds lors, il n'y a aucune raison d'exclure une compagnie d'assurances de ce droit commun et de la cantonner exclusivement dans ses droite respectife avec ses assur6s, en 1Pexcluant des droits et actions qui peuvent lui cornp6ter personnellement & l'Sgard des tiers.
See, also, D. 1853. 1. 93; D. 1859. 1. 429; D. 1872. 1. 293; -D. (J. du R.) 1828. 1. 62-3; D. Rep. de Leg., Supp. 15, vbo. (1) (1893) Q.O.R. 2 Q.B. 379.
" Responsabilit6," nos. 215-6, 218, 220; Lyon-Caen et
Renault, Tr. de Dr. Comm., vol. 6, nos. 1312 et seq.
Modern French jurisprudence, however, denies a right of action under arts. 1382-3 C.N. to a life or accident insurance company against a wrong-doer who has killed or injured the assured and thus subjected the company to immediate liability on its contract. It has been suggested that the fact that such insurance is not by way of indemnity distinguishes it from fire insurance and takes the case out of the operation of arts. 1382-3 C.N. See L'Abeille c.
May, (1); Juris-Classeur Civ., arts. 1382-3,
D61its et quasi-d4lits, Div. Al, no. 138; Phoenix Assur. Co. c. Chemin de fer du Midi (2); S. 1903. 2. 257n., 259; S. 1911. 2. 171;
Gaz. des Trib., 1913. 1. 182.
Compare Merchants' and
Employers' Guarantee & Accident Co. v. Blanchard
(Rev.) (3); Merchants' and Employers' Guarantee & Accident Co. v. Brunet (Rev.) (4); Lloyd's Plate Glass Ins.
Co. v. Pacaud (5); Animals' Insurance Co. v. Montreal
Tramways Co. (Rev.) (6); and Motor Union Ins. Co. v.
Sacks et al (7).
Recovery by life or accident insurance companies against third parties, who, by their fault, have injured the assured, thus entailing liability on such companies, is made in modern cases to depend on the presence in the contracts of insurance of a clause which can be treated as a cession by the assured to the company of his ultimate rights.
See La Mutuelle Gin6rale Frangaise c.
Antoniotti (8).
Whether there is a sufficient logical basis for this distinction (Lefort, " L'Assurance sur La Vie, vol.
2, pp. 5-20) does not presently concern us; and it may be that the view expressed by Martineau, J., against recovery under art. 1053 C.C., was, in the Blanchard case (3), correct in principle, although his deductions from the judgment of the Privy Council, delivered by Baron Parke, in
Quebec Fire Insurance Co. v. Molson (9), seem quite unwarranted. But the right of a fire insurance company to recover under article 1053 C.C. from a third party whose fault occasioned the loss for which, under its contract, it has been obliged to indemnify its assured, seems to be well recognized in the jurisprudence of the province of Quebec. & Stemus decisis. In principle there can be no distinction for the purpose of art. 1053 C.C. between the position, quoad the third party tort-feasor, of the fire insurance company and that of the master whose loss is caused by the defendant having tortiously injured his servant, or that of a religious community similarly damnified by an injury gin inflicted upon one of its members. In each case alike, the U..
plaintiff must shew (a) fault of the defendant; (b) that such fault was in law the cause of the damage for which it seeks to recover; and (c) that such damage was actually suffered by it.
The existence of the relation between the respondent and Brother Henri-Gabriel is in no sense the equivalent of a novus actus interveneins such as would break the causal connection between the appellant's fault and the injury sustained by the respondent from it. That relation was, at the most, a causa sine qua non, or condition of the defendant having damnified the respondent. It was the occasion, not the cause of its being injured. 43 Rev. Crit. de L6g. (1914), pp. 230-1.
Moreover, while in cases of responsibility for breach of contract the degree of fault, and foreknowledge of the probability of its affecting the plaintiff adversely, intent and even motive may be material (Art. 1074 C.C. et seq.), comparative slightness of the fault shewn affords no answer even in mitigation of damages, nor can the absence of foreknowledge, intent or motive be invoked to support a defence based on remoteness of damage in cases of quasid6lit entirely independent of any breach of contract by the defendant; Ortenberg's case (infra) affords an illustration. See also Loranger v. Dominion Transport Co. (1); Leclerc v. Montreal (2).
As the slightest degree of fault or negligence (culpa levissima) (S. 1927. 1. 201; S. 1924. 1. 105) suffices to entail liability in cases of quasi-d6lit, so the damage must, as far as practicable, be assessed in such cases under the civil law at a figure adequate to give complete compensation to the injured plaintiff.
Juris-Class. Civ., art. 1382-3, D6lits et quasi-d6lits, Div. A 1, nos. 2, 8. The presence in the Civil Code of arts. 1074-5, which impose explicit limitations on the measure of damages recoverable for breach of contract, sharply contrasts with the utter absence of any such textual restriction in cases where d6lits or quasi-d6lits form the basis of action under art. 1053 C.C. In cases of contractual obligation the presumed intention of comthe parties affords the basis for restricting or extending the damages to what they may reasonably be supposed to have contemplated.
See Jackson v. Watson (1); and Griffiths v. Harwood (2).
In the ordinary case of a d6lit or quasi-ddlit causing damage, there is no such ground for thus confining or restricting the recovery against the wrong-doer.
There can, therefore, be no justification for the application by analogy of restrictions, similar to those imposed by articles 1074-5 C.C., to cases of dslits or quasid6lits. The very suggestion seems to me heretical. But see 1 Sourdat, Responsalbilit6, nos. 105, 107. In 5 Larambikre (1857), arts. 1382-3, nos. 26 and 37, we read: & This is well pointed out in Juris-Classeur Civil, arts. 1382-3, div. A, nos. 3 and 4.
Perhaps the best known, if not the only kind of tort in respect of which lack of foreknowledge of the interest of the plaintiff, actual or reasonably possible, may be invoked as a defence is that of inducing a person to act in contravention of the contractual rights of another. Quinn v. Leatham (3).
A., who, in ignorance of the obligations of a servant to B., induces him (the servant) to undertake a service inconsistent therewith, merely exercises his own right and commits no fault. Therefore the case is not within article 1053 C.C. But intent to defeat the rights of the former employer, importing malice, may render such conduct actionable. Girard v. Wayagamack Pulp & Pape- Co. (1).
Compare Pruneau v. Fortin (2), a case where the defendant exercised his legal right, not in order to injure the plaintiff, but to advance what he conceived to be his own interest. English law admits this departure from the usual rule, that where there is question of actionable responsibility for tort (d6lit or quasi-d6lit) the motive and intent of the tort-feasor are immaterial.
An act which does not amount to a legal injury cannot be actionable Ca.C.
because done with bad intent. Allen v. Flood (3).
An interesting observation upon the juridical basis of the two notable decisions of the House of Lords above cited, from the point of view of the civilian, may be found in Grard's work " Les Torts ou D61its Civils en Droit Anglais," at pp. 426 et seq. Most of the discussion in the French cases (S. 1925. 1. 249) and in the works of the French text-writers, however, bears upon the much-debated question whether, when the victim of an accident caused by the defendant's fault has a claim against him for breach of contract, he may, either concurrently or alternatively, prefer a claim based on quasi-d6lit under arts. 1382-3 C.N. See Robillard v. Wand (4). There is, of course, no such aspect of the case at bar. That is common ground. Another case illustrative of the wide scope of art. 1053 C.C. is Ortenberg v. Plamondon (5), where, at p. 388, Mr. Justice Cross, holding the defendant liable to the plaintiff for damages for slander in the course of a public lecture, although it would seem certain that reference to the plaintiff had not been intended by the lecturer, said:
The plaintiff's right of action to recover on its claim for $118 for loss of its own property, which Brother Gabriel had with him when injured, admits of no question. Although this item is not specifically mentioned in the judgment, it was probably taken into account by the learned trial judge in fixing the damages at $4,000.
The plaintiff's recovery of the portion of its claim for outof-pocket expenses ($2,236.90), as fixed by the trial judge, can be supported, in the opinion of the majority of the learned judges of the Court of King's Bench, upon another and distinct basis, suggested by Mr. Justice Greenshields, c viz., that the negligence of the defendant being proved to have been the cause of the injuries of Brother Henri- Gabriel, it incurred an obligation to furnish to him all care necessary to alleviate his sufferings, and, as far as possible, to bring about his recovery, or at least to pay for such care. c . The expenses incurred by the plaintiff for doctor's bills, and hospital care, etc., for Brother Henri-Gabriel may well be regarded as outlay made by it in the discharge of an obligation of the defendant and for its benefit. On similar grounds, in Paquin v. Grand Trunk Rly. Co. (1896) (1), cited by Greenshields, J., the defendant railway company was held liable to the plaintiff, who had rendered medical services to persons injured in an accident caused by its negligence, although such services had not been requested or sanctioned by anyone authorized on its behalf. Reference may also be made to the authorities cited by Larue, J., at p. 338; and to La Citg de St. Hyacinthe v. Brault (2). Subject to the question of the application of art. 2262 (2) C.C., the right of the plaintiff to maintain an action on the basis de in rem verso for the sum of $2,236.90 would seem to be reasonably clear.
As to the amount of the total damages, assessed at $4,000, even if the practice of this court permitted a revision thereof, I agree with Mr. Justice Cannon that and with Mr. Justice Bernier that the amount allowed for actual damages beyond the out-of-pocket expenses, viz., $1,767.10, was " not exotitant-lbien loin de
Reference may again be made to 5 Larombisre, Obligations, 1857, arts. 1382-3, no. 26 (p. 704) quoted above; to Fuz.-Herman, III Code Civ. Ann. Arts. 1382-3, nos. 699, 688; and to Juris-Class. Civ., Arts. 1382-3, D61its et quasid6lits, Div.
The accident to Brother Henri-Gabriel happened on the 14th of August, 1923. The present action was begun on the 8th of August, 1925. More than one year and less than two years had elapsed in the interval.
The defendant, claiming that this is an action " for bodily injuries " within art. 2262 (2) C.C. above quoted, asserts that it is prescribed. The plaintiff, on the other hand, argues that the action falls within art. 2261 (2), by which actions and contends that the action was begun in time and is not prescribed.
These provisions of the Civil Code are found in section 5 of chapter 6, of Tit. XIX, that section being headed, " Of certain short prescriptions."
In the province of Quebec, as in France, the general rule is that
These short prescriptions are exceptions to this general rule and, as is pointed out in 32 Laurent, at no. 373, they are subject to the principles which govern all exceptions: " on ne peut pas les 6tendre, mime par voie d'analogie." Baudry-Lacantinerie Droit Civil (De la, prescription), vol. 28 no. 24, citing Cass. 26 juin 1859, S. 59. 1. 858), says: An illustration of the application of this rule is to be found in 32 Laurent, no. 377, where it is pointed out that, although " la loi sur 1'impft foncier de 3 frimaire, an VII (Art. 149)" establishes a special prescription of three years in favour of contributories, that prescription does not apply to a third person who has paid the impost for the debtor, and the author gives as a reason that the action is entirely different:
And he makes reference to a decision of the Court of Cassation of 15th March, 1841, reported in Dalloz, Rep., vbo. Prescription, no. 1046 1' and to Pasicrisie (1829), p. 342. The author proceeds:
In volume IX of Mr. Justice Mignault's work " Droit Civil Canadien," at p. 518, we find the statement:
That the limitation of one year imposed by art. 2262 (2) C.C. applies to all actions by a person who has sustained bodily injury to recover damages therefor, or for the consequences thereof, and that such prescriptive period runs from the date when the injury was suffered admits of no doubt in view of the decision of this court in City of Montreal v. McGee (1); by which the decision in Caron v. Abbott (2), cited by Dorion J., was impliedly overruled. See Versailles v. Dominion Cotton Co. (3).
But an action brought, as is that now before us, not by the person who has suffered bodily harm, but by someone else who has sustained damages distinct from his by reason of the fault of the defendant, although such damages be a consequence of the bodily injuries, is certainly not the same action which the person so injured might himself have brought. For instance, in it the plaintiff can recover nothing for the pain and suffering which the injuries caused to the victim, but is strictly limited to such damages as he can prove he has himself actually sustained.
The cause of action before us is not " for (the) bodily injuries " suffered by Brother Henri-Galbriel as the immediate result of the fault, by him " actionable per se;" it is rather for the loss sustained by the community owing to the expense to which it was put and to its having been deprived of the services of one of its members through the fault of the defendant; per quod only is such fault actionable by it. Robert Mary's case (4). Its cause of action for damages other than out-of-pocket expenses would have been the same had the defendant illegally detained Brother Henri- & Gabriel for the period in question, or had it wrongfully induced him to absent himself from the community. each case alike the plaintiff would claim for " damages caused (to it) by (the) fault " of the defendant (Art. 1053 0.C.), or by that of "persons under its control" (Art. 1054 C.C.).
This leads us to a brief consideration of the precise terms ' in which art. 2262 (2) C.C. is couched. In the first place, the words " for bodily injuries " of the English version are very inaptly rendered in the French version by the words " pour injures corporelles," the meaning of the latter as intended, no doubt, being " pour 16sions ou blessures corporelles." While not of present importance, it is, perhaps, not out of place here to suggest legislative action in regard to the French versions of articles 2262 (2) C.C. and of article 1056 C.C. above referred to. What, however, is of moment at present is the contrast between the language of art. 2261 (2) C.C. " for damages resulting from offences or quasi-offences"
pour dommages r~sultant de d6lits et quasi-d6lits ") and the terms of art. 2262 (2) " for bodily injuries." - The latter paragraph is grouped with no. (1) " for slander or libel " (" pour injures verbales ou 6crites ") and no. (3) "for wages of domestic or farm servants" ("pour gages des domestiques de maison ou de ferme") and no. (4) " for hotel or boarding-house charges " (" pour d6penses d'hotellerie ou de pension"). This context seems to make the contrast between art. 2262 (2) and art. 2261 (2) even more significant, the words " damages resulting from " being introduced into the latter (art. 2261 (2) ) although other provisions of the same article, nos. (1) and (3), read: (1) " for seduction and lying-in expenses " pour s6duction et frais de g6sine ") and (3) " for wages of workmen, etc." (pour salaires des employ6s, etc.").
There can be no justification in my opinion for reading art. 2262 (2) C.C. as if its terms were " for damages resulting from bodily injuries." To do so would involve a distinct extension of its application.
In introducing into the Code art. 2262 (See Codifiers' 4th Report, p. 194, no. 103a), the legislature probably had in mind only the right of action of the person suffering such injuries (" the immediate victim "), who alone can sue to recover for them. Had it intended to cover by the very short prescription of one year, which art. 2262 (2) C.C. enacts, all actions for "damages resulting from, or arising out of" bodily injuries, having before it the language of art. 2261 (2) C.C., it is CV inCONGREGAscarcely possible that terms similar to those therein employed would not have been used.
The statement of Lacoste, C.J., in Griffith v. Harwood (1), is obiter, and is, no doubt inadvertently, too broad-in fact distinctly broader than the authority cited justifies, viz., Canadian Pacific Ry. Co. v. Robinson (2).
There the question was as to the effect of art. 2262 (2) C.C. on the right of recovery of " the immediate victim," as it was in the later case of City of Montreal v. McGee (3).
The plaintiff does not seek to affect the defendant by its understanding with Brother Henri-Gabriel.
It complains that the defendant has unlawfully deprived it of the benefit which it would otherwise have derived from its arrangement with its member and, for the damage thus done to it, it seeks compensation. Compare S. 1925.
The prescription of one year imposed by art. 2262 (2) C.C. could only apply by analogy, or by implication from its mention of art. 1056 C.C. For such a case as that now before us this prescription has not been "express6ment d&cr6t6e par la 16gislature." A fortiori is this so in so far as the claim for out-of-pocket expenses incurred by the plaintiff on account of Brother Henri-Gabriel's injuries is concerned, if that claim be regarded, not as based on art. 1053 C.C., but as resting on art. 1046 C.C.; whether, if the action be TAm & regarded as de in rem verso, the prescription of art. 2262 (2) C.C. applies, I find it unnecessary to determine. My coV. _ learned brothers Mignault and Rinfret think it does; and from their considered opinion on this point I am not at FR present prepared to dissent. But see 32 Laurent, no. 377 (supra). Of course, to the claim for destruction of clothing and personal effects, the property of the plaintiffs, art. 2262 caTC.
(2) C.C. can have no application. As to this latter item of the plaintiff's demand, it is, in my opinion, beyond question that art. 2261 (2) C.C. applies. Indeed, I am of the opinion not only that the entire cause of action, so far as it rests on arts. 1053-4 C.C., is maintainable, but that it falls within art. 2261 (2) C.C. rather than within art. I, accordingly, accept the following consid6rants of Mr. Justice Surveyer:
Considdrant que 'action qui compftait au frdre Henri-Gabriel 6tait une action pour injures corporelles (bodily injuries), prescriptibles par un an (C.C., art. 2262, par. 2);
Considdrant, cependant, que la demanderesse ne poursuit pas pour le frbre Henri-Gabrisi et en son lieu et place, mais qu'elle r~lame un droit qui lui est personnel, et qui est distinct de celui qu'avait le frbre Henri- Gabriel; que ce droit ne r6sulte pas des injures corporelles subies par ce dernier, mais des ddpenses auxquelles la demanderesse a 6t6 contrainte et des dommages qui lui ont 6t0 caus6s par la privation des services dudit frbre Henri-Gabriel;
Consid6ract que la demanderesse cherche la r6paration civile d'un quasi-d41it qui lui cause un pr6judice reel et lui fait 4prouver un dommage positif et mat6riel;
Consid&ant que l'accident arriv6 au frbre Henri-Gabriel s'est produit le 14 aofit 1923, et que la demande a 6t6 signifiie le 8 aofit 1925, par cons6quent dans les deux ans du quasi-dalit (C.C. art. 2261).
For the foregoing reasons, which are substantially the same as those of the learned trial judge and of Greenshields, J., I would affirm the judgment a quo and would dismiss the appeal with costs.
MIGNAULT, J. (dissenting).-L'appel est d'un jugement de la cour du Bane du Roi (1), confirmant 'a l'unanimit6 le jugement de la cour superieure, Surveyer, J. Il n'y a eu diff6rence d'opinion que quant au montant de la condamnation.
(4) QD.R. 46 K.3. 96.
La compagnie appelante exploite des automobiles de louage (taxis) ainsi que des autobus, pour le transport des voyageurs, surtout dans la r6gion de Montrial. Elle existe
Tm& en vertu de lettres patentes de la province de Qubbec.
La congr6gation intim6e est une congr6gation religieuse d'hommes, qui a 6t6 constitude civilement par une loi de la province de Qu6bec de 1887, 50 Vict., c. 29. Cette loi lui Ahw permet de s'agr6ger des membres, et d'adopter des rigle- ^. ments non incompatibles aux lois de cette province. Elle a J. plusieurs maisons dans la province de Qu6bec oii elle se voue A l'enseignement. Ses membres prononcent des vceux perp6tuels de pauvret6, de chastet6 et d'ob6issance, mais il n'est pas question de ces voeux dans la loi constitutive de
1'intim6e. Les frbres maristes ont des maisons ailleurs que dans la province de Qu6bec, et notamment A New-York.
L'Acte 50 Vict., c. 29, se. borne naturellement aux 6tablissements que les frbres maristes ont faits ou feront en cette province.
Le frdre Henri-Gabriel, dont il sera question plus loin,
4tait membre de cette congr6gation lors de 1'accident qui a donn6 lieu au procks, et il enseignait h la maison des frbres maristes A Iberville, province de Qu6bec. II avait prononc6 des voeux perpituels, et aussi ce qu'on appelle des voeux de stabilit6, dont l'objet est d'obliger le religieux (en conscience, bien entendu) A demeurer membre de la congr6gation pendant toute sa vie.
Au mois d'aofit 1923, les frbres maristes 6tablis A New- York, et qui ne font pas partie de la corporation 6tablie par la loi 50 Vict., c. 29 (il n'appert pas s'ils ont obtenu une constitution civile de l'Etat de New-York), avaient un campement d'6t6 pour leurs 6lives sur File Lamothe, dans
1'Etat du Vermont, pris de Rouses Point, New-York, et A une cinquantaine de milles de Montr6al. Ils avaient organis6 une excursion pour les enfants de leur camp jusqu'A
Montr6al, et avaient contract6 avec la compagnie appelante pour transporter les enfants et les frdres qui les accompagnaient A travers cette dernibre ville, et de lI A
Rouses Point. L'appelante leur fournit deux autobus avec chauffeurs, contenant chacun une vingtaine de personnes.
Le contrat de transport n'6tait done pas entre l'intimie et
I'appelante, mais entre cette dernibre et des frdres maristes qui ne faisaient pas partie de la corporation intim6e. Il s'ensuit qu'aucune question de responsabilit6 contractuelle at ou de faute contractuelle ne peut se soulever entre l'intim6e et l'appelante.
L'excursion se fit le 14 aofit 1923.
L'appelante avait promen6 les excursionnistes dans la cit6 de Montr6al, et vers la fin de l'apris-midi elle les ramenait dans la direction de Rouses Point. Le frbre Henri-Gabriel 6tait du voyage, probablement sur l'invitation des frbres maristes de New- York, et il prit place sur la premibre banquette d'une des voitures. Entre lui et 1'appelante, pas plus qu'entre l'intim6e et l'appelante, il n'y avait aucun contrat de transport. Pendant le trajet entre Montreal et Rouses Point, la voiture oit se trouvait le frbre Henri-Gabriel fit arrit A Saint-Philippe de Laprairie pour prendre de la gazoline. Le chauffeur en demanda cinq gallons h un garage au bord de la route. avait cependant mal calcul6 la quantit6 de gazoline qui pouvait entrer dans le r6servoir place sous les premibres banquettes. Il s'en r6pandit done dans la voiture, et la pr6sence d'un tuyau surchauff6 de la machine causa un incendie. Le frbre Henri-Gabriel fut trbs gribvement brfil6, et il est hors de question que ses brfilures furent caus6es par la faute du chauffeur de la voiture, faute dont l'appelante 6tait civilement responsable. Ii avait done une action de ce chef contre 1'appelante, et il me parait clair qu'on n'aurait pu invoquer comme fin de non-recevoir contre cette action son vceu de pauvret6, ni son consentement, qui en d6coulait, que tous ses biens fussent la propri6t6 de la congr6gation dont il faisait partie.
Le frbre Henri-Gabriel ne fit jamais de r6clamation contre l'appelante A raison de l'accident dont il avait t6 victime. L'intim6e l'a-vait fait soigner, et elle paya tous les frais des traitements m6dicaux et chirurgicaux qu'on dut lui donner. Elle en r6clame maintenant le coat h l'appelante et elle demande en sus une indemnit6 pour privation des services du frdre bless6, ainsi que pour les frais de son entretien alors qu'il 6tait dans l'impossibilit6 de travailler. Elle base son droit d'action sur la faute d6lictuelle dont elle tient l'appelante responsable.
Le premier juge lui accorda $2,236.90 pour frais m6dicaux et autres d6penses, et $1,763.10 pour la privation des services du bless6. La cour du Bane du Roi (1) confirma ce jugement, mais deux des juges (Greenshields J. et Cousineau J. ad hoc) auraient restreint 1'indemnit6 au premier item, sauf que le juge
& Greenshields, apris une nouvelle 6tude du dossier, ajoute qu'il aurait 6t0 dispos6 h donner h 1'intim6e $900 qu'elle CoNEmavait pay6s h un remplagant du frbre Henri-Gabriel.
La d6fense de l'appelante doit maintenant nous occuper. Elle oppose deux moyens h Faction: L'intime n'a pas le droit d'action qu'elle pritend exercer; cette action, 6tant pour "injures corporelles ", est 6teinte, vu qu'elle n'a 6te intentie que le 7 aofit 1925 et signifide le lendemain, pres de deux ans apris l'accident (art. 2262 C.C.).
Si le deuxibme moyen est bien fond6, le premier importe peu.
Cependant, il parait difficile de les s6parer, et il me semble plus avantageux de les 6tudier ensemble.
En effet, sur cette question de prescription, tout d6pend du fondement juridique de faction. Si nous 6tions en presence de la violation d'un contrat, c'est-h-dire de la faute contractuelle, je crois que Particle 2262 C.C., que l'appelante invoque, serait sans application.
Mais j'ai dit qu'il n'y a pas eu de contrat entre les parties en litige. Le frbre bless6 n'a rien pay6 pour son passage et l'intim6e n'a rien d6bours6 pour son transport. Il n'en est pas moins certain qu'on ne peut se prononcer sur la question de prescription que lorsqu'on sera fix6 sur la nature du recours que peut exercer l'intim6e dans les circonstances d6voil6es par la preuve.
D'autre part, Faction qui comp6tait au frbre Henri
Gabriel-la cour sup6rieure le reconnait express6ment- 6tait une action pour " injures corporelles " prescriptible par un an. Et c'est parce que le savant juge de premibre instance 6tait d'avis que Faction qui appartenait h l'intim6e avait une autre base juridique qu'il a 6cart6 le plaidoyer de prescription.
Q.R.
Et le savant juge ajoute, donnant
' Particle 1053 C.C. une extension qu'il convient de discuter A fond, " que toute personne 16s6e par une faute doit Stre indemnis6e; qu'il y a en principe autant d'indemnit6s distinctes qu'il y a de COE.A- personnes 16s6es (j'omets les autoritis cities par le savant juge); que Demolombe (vol. 31, no 675, p. 579) approuve un arret qui a reconnu r6clamation d'un associ6 pour la mort de son associ6, r6clamation qui serait repouss6e par notre article 1056 C.C., qui est d'origine anglaise, et qui fait exception pour les cas de d6ces, aux principes de notre droit en matibre de responsabilit6."
Avant de citer nos textes de loi, je suis bien pr~t A reconnaitre que la jurisprudence frangaise moderne a donn6 aux articles 1382 et 1383 du Code Napol6on une extension absolue, et qui est bien telle que la repr6sente le savant juge. Ainsi, quoique le Code Napol6on n'ait pas une disposition semblable A notre article 1056 C.C., la jurisprudence reconnait 1'existence d'un droit d'action au profit de toute personne qui souffre un pr6judice A cause du d6chs d'un individu qui meurt des suites d'un d6lit ou quasi-d6lit. Ce sont les enfants, le conjoint par mariage, et m~me un tiers, comme dans le cas typique que mentionne Demolombe, qui avait fait un contrat de soci~t6 avec le difunt. Il est digne de remarque que notre code expose toute la loi de la -responsabilit6 civile dans quatre articles d'une r6daction n6cessairement g6ndrale, dont le dernier, Particle 1056 C.C. est, dit-on, d'origine anglaise.
Je vais citer le premier et le dernier de ces quatre articles, qui suffisent pour la discussion de la question de principe, trbs importante, assur6ment, dont il s'agit en cette cause.
II s'agit en cette cause de la responsabilit6 qui incombe 1'appelante raison d'un quasi-d6lit commis par elle, et qui a inflig6 des " injures corporelles " au frbre Henri- Gabriel; c'est le fait g6n6rateur du donmage qu'invoque 1'intim6e.
L'article 1056 C.C. ne peut e'appliquer que Prms lorsque
Il n'est question 1a' encore que d' "injures corporelles ". L'article 1053 C.C., il est 6vident, envisage les d6lits et quasi-ddlits de tout genre, et non pas seulement ceux qui occasionnent des injures de cette sorte. Oependant, en interpritant cet article, je ne veux pas sortir de 1'espice que nous avons devant nous, et tout ce que j'en dirai se bornera au cas oii le d6lit ou quasi-d6lit a cause de ces injures. J'envisage donc une esp~ce qui entre, ou qui peut entrer, si la mort s'ensuit, dans le cadre et de 1'article 1053 C.C. et de l'article 1056 C.C.
Envisageant maintenant Particle 1053 C.C., je puis dire qu'il ne diffire gubre des articles 1382 et 1383 du Code Napol6on. C'est le fait " qui cause autrui un dommage ", pour me servir de l'expression du code frangais, qui engendre la responsabilit6 de celui par la faute duquel il arrive. On peut admettre que l'expression " autrui ", si elle n'est pas restreinte par le contexte (et si on ne doit pas la regarder comme 6tant 6quivoque, surtout dans un texte 16gislatif, et partant comme se plagant dans la cat6gorie des expressions que 1'interprkte doit restreindre plut6t qu'6tendre), est d'une port6e tris g6ndrale. Elle comprendrait, suivant la pritention de l'intim6e, non seulement " la partie contre qui le d6lit ou quasi-d6lit a 6ti commis " (c'est 1'expression qu'emploie Particle 1056 C.C.), mais aussi toute personne qui souffre, je pourrais dire par ricochet, un pr6judice comme cons6quence du dommage 6prouv6 par cette partie elle-m~me.
Sauf h discuter plus loin les arr~ts que cite l'intimbe, la jurisprudence de la province de Qubbec n'a jamais donn6 une telle extension h 1'article 1053 C.C. Le principe qui me parait dominer en matibre de dommages-int6rats, c'est que seuls les dommages directs, A 1'exclusion des dommages indirects ou 6loign6s, peuvent faire la base d'une action en justice. Le code en a une disposition expresse quand il S'agit de 1'inex6cution des obligations. Dans le cas inme ou l'inex6cution de l'obligation r6sulte du dol du d6biteur, les dommages-int6rits ne comprennent que ce qui est une suite imm6diate et directe de cette inex6cution (art. Si le d6biteur a agi sans dol-c'est le cas du quasid6lit qui est un dommage caus6 ill6galement, mais sans intention de nuire-il n'est tenu nie des dommages qui ont 6t pr6vus et qu'on a pu pr6voir (art. 1074 C.C.). est vrai qu'il s'agit lh surtout, mais non pas uniquement, cependant, de l'inex6cution d'une obligation contractuelle, mais il n'y a pas plus de raison d'accorder des dommages indirects ou 41oignis, surtout A des tiers, lorsque 1'obligation d6coule d'un d6lit ou quasi-d6lit, que lorsqu'elle provient d'un contrat.
Sur ce point j'accepte pleinement le principe que le juge Mathieu a formul6 dans la cause de Kimball v. City of Montreal (1), savoir, que pour pouvoir se plaindre d'un quasi-ddlit, il ne suffit pas que le fait imput6 ait 6t6 1'une des causes premibres et 6loignbes du dommage, mais il est n6cessaire que ce fait ait lui-m~me d~termin6 directement le dommage, et qu'il n'en ait pas 6t seulement l'occasion indirecte et pour ainsi dire de seconde main.
Le savant juge a d6clar6 aussi que les principes 6nonc6s dans l'article 1075 C.C. sont applicables aux donmages r6clamis en vertu de l'article 1053 C.C.
L'article 1056 C.C. nous fournit i l'appui de cette solution un argument de texte. Il y est bien question de dommages indirects et 6loignis, mais le code accorde ces dommages par une disposition expresse et par exception h la rigle de Particle 1053 C.C. qui, sans cette disposition, les exclurait. Si Particle 1053 C.C. comporte l'interpr6tation qui a pr6valu en cette cause, c'est-h-dire s'il faut suivre la faute jusqu'A ses dernibres cons6quences et accorder autant d'indemnit6s qu'il y a de personnes l6s6es directement ou indirectement, l'article 1056 C.C. est une disposition inutile. Il sharmonise au contraire avec Particle 1053 C.C., si 1'expression " autrui " doit 6tre restreinte A " la partie contre qui le d61it ou quasi-d6lit a 6t6 commis ", et alors l'article 1056 C.C. admet une exception h la rbgle g6n6rale de Particle 1053 C.C. ainsi comprise.
On a beaucoup discut6 au sujet de 1'origine de Particle 1056 C.C. II vient des statuts refondus du Canada, 1859, chap. 78, qui reproduit le statut 10-11 Victoria, chap. 6 D'apris le pr6ambule de cette dernibre loi, L'article 1056 C.C. est entr6 au code sans avoir passe par les Rapports des codificateurs, et sans avoir figur6 parmi les amendements que la 16gislature fit au projet du code par la loi 29 Vict., c. 41. Cependant, il se trouve dans l'dition officielle du code imprim6e en 1866 par l'imprimeur de la Reine, et on a d6clar6 que cette 6dition avait toujours eu force de loi dans la province (disposition formelle du statut 31 Vict. (Qu6.), c. 8, art. 10).
Dans la cause de Robinson v. Canadian Pacific Ry. Co. (1), Lord Watson dit que cet article diffbre " substantially " du Lord Campbell's Act, et il est aussi beaucoup plus restreint, quant aux personnes qui peuvent en b6n6ficier, que le chapitre 78 des statuts refondus du Canada qui s'6tendait aux alli6s aux mimes degr6s que les pare et mare et enfants.
Peu importe, d'ailleurs, 1'origine de 'article 1056 C.C.; il a force de loi tout autant que 1'article 1053 C.C.
L'article 1056 C.C. donne, contre 1'auteur du d6lit ou quasi-ddlit dont meurt la victime, un recours en indemnit6 au conjoint, aux phre et mbre et aux enfants de cette dernibre, indemniti qui comprend, non pas les dommages 6prouv6s par la victime et qu'on r6clamerait h titre de succession, mais ceux que leur cause son d6chs.
Cette indemnit6, que les int6ress6s doivent r~clamer dans l'annie du d6chs, et par une seule et mime action, est accordie A la condition que la victime n'ait pas elle-m~me obtenu " indemnit6 ou satisfaction ". Si, done, I'auteur du d61it ou quasi-d6lit a indemnis6 la victime, aucun recours n'est ouvert A son conjoint, ses phre et mire et enfants, quel que soit le pr6judice qu'ils 6prouvent par suite du d6c~s. En d'autres termes, le paiement de la cr6ance en indemnit6 de la victime 6teint 1'action de ses proches. Cette constatation est d'une grande importance pour montrer que de droit & commun " la partie contre qui le dilit ou quasi-d6lit a 6 commis" est celle qui posshde l'action en indemnit6 contre 1'auteur du fait d61ictueux.
Si done le d6lit ou quasi-d61it est assez grave pour causer la mort de la victime, et si celle-ci n'a pas obtenu avant son dicks " indemnit6 ou satisfaction ", les personnes mentionn6es en l'article 1056 C.C., et pas d'autres, peuvent recourir contre l'auteur du fait d6lictueux, et lui r6clamer les dommages qui leur r6sultent du d6chs.
Leur action, lorsqu'il y a ouverture, est ind6pendante de celle de la victime, sa prescription court a partir du d6cks, et il importerait peu que l'action de la victime efit 6t6 6teinte par prescription avant son d6chs (Robinson v. Canadian Paci- Ry. Co. (1).
Or, d'apr~s le jugement frapp6 d'appel, si la victime ne d6cide pas des effete du d6lit ou quasi-d6lit, si m~me elle a obtenu elle-mame " indemnit6 ou satisfaction ", les personnes mentionn6es en l'article 1056, et non seulement ces personnes, mais tous autres intbress6s, tels que l'associ6 de la victime, peuvent r6clamer, contre l'auteur du d6lit ou quasi-d6lit, les dommages qui leur r6sultent par contrecoup de ce d6lit ou quasi-dblit.
Si je comprends bien le raisonnement sur lequel s'appuie la jurisprudence en France, et qui rend inutile une disposition dans le code Napol6on semblable A notre article 1056, il repose sur la consid6ration suivante: Toute faute, qu'elle soit d6lictuelle ou contractuelle, trouble l'ordre social, et une indemnit6 doit 6tre pay6e h tous ceux qui en souffrent. Ainsi un ouvrier est bless6 et rendu incapable de travailler par la faute de quelqu'un. Cet ouvrier perd le salaire qu'il aurait pu gagner, ses proches perdent le soutien qu'ils auraient regu de lui, le maitre qui l'employait perd ses services, et si le travail de l'ouvrier 6tait essentiel h 1'entreprise du maitre, celui-ci ne pourra pas tenir ses engagements envers ses cr~anciprs, et ainsi de suite ad infinitum. (Voyez Demogue, Obligations, tome IV, p. 13, 525 et suivants.)
On se perd k suivre le lien de causalit aussi loin.
Cependant, oii peut-on s'ariter dans le systme adopt6 par le savant juge de premiere instance? Toute personne R.NT 16s6e par une faute, dit-il, doit 6tre indemnis6e, et il ya autant d'indemnit6s distinctes qu'il y a de personnes lisies. Si on ne se borne pas A indemniser la partie contre C qui le d6lit ou quasi-ddlit a 6t6 commis, il faut suivre la faute jusqu'en ses plus lointaines cons6quences, et c'est la dernibre alternative qui r6sulterait de l'interpr6tation extensive de l'article 1053 C.C.
Cette dernibre alternative, je le dis sans hesitation mais avec toute d6f6rence possible, n'a jamais 6t6 admise, avant ce litige, par une jurisprudence digne de ce nom dans la province de Qubbec. Les complications de la vie moderne sont telles que cette doctrine aurait chez nous les cons6quences les plus graves. On ne peut 16ser un membre de la soci~t6 sans porter pr6judice, par ricochet, A un grand nombre de personnes qui ont avec lui des relations, soit de famille, soit d'affaires. Un individu bless6 et rendu incapable de travailler peut se trouver dans l'impossibilit6 de payer ses dettes. Ses crbanciers pourraient-ils pritendre que la perte de leur cr~ance est directement attribuable A la blessure caus6e par la faute d'un tiers, et partant A cette faute mime? Un grand peintre ne peut plus exercer son art h la suite d'un accident occasionn6 par l'imprudence d'un conducteur d'automobile. Le peintre indubitablement a droit A une indemnit6, mais les membres de sa famille, le marchand qui lui avait command6 un tableau, le client de ce marchand A qui ce tableau avait t6 vendu avant sa confection, le propri6taire de la galerie oii cet ceuvre d'art devait 6tre expos6, ne diront-ils pas qu'ils subissent un pr6judice directement attribuable A l'imprudence du conducteur?
Je ne puis concevoir que le 16gislateur, en r6digeant en termes generaux I'article 1053 C.C., ait voulu admettre une responsabilit6 s'6tendant ainsi ind6finiment, et presque A l'infini, A travers les rouages si compliquis de 1'existence moderne.
C'est toujours A la jurisprudence frangaise de nos jours que reviennent les partisans de l'interpritation extensive de cet article. Pour me contenter d'une seule autorit6, cit6e du reste sans commentaires par le pr6sident de cette cour, Fuzier-Herman, Code Civil annot6, art. 1382- 1383, n 686, enseigne que l'action en dommages-int~rits appartient h toute personne qui, soit directement, soit indi- & rectement, 6prouve un pr6judice h raison du d6lit ou quasid6lit commis par le d6fendeur. Cette jurisprudence ne nous lie pas, et dans une espbce on l'invoquait comme r6gissant notre article 1054, et l'6tendant aux actes du pr6pos6 faits h 1'occasion de 1'exercice de ses fonctions, cette cour a refue6 de la suivre: Curley v. Latreille (1).
On a g6ndrais6 tellement les r~gles de la responsabilit6 civile en France, qu'on n'est pas tris loin du systime pr6conisi par certains auteurs, savoir que toute activit6, mame sans faute, engage la responsabiliti de celui qui s'y livre.
Je crois qu'on serait bien en peine de trouver de semblables doctrines dans les vieux jurisconsultes, tels que Pothier et Domat. Et il est possible que la jurisprudence frangaise moderne ait 6t6 influenc6e, h son insu, par des consid6rations d'ordre social.
Je ne puis accepter ce systime. I rendrait, je 1'ai d6jit dit, I'article 1056 C.C. inutile, et cette disposition serait de plus diraisonnable, puisque, dans un cas grave, celui de la mort de la victime, le recours des int6ress6s serait strictement limit6 h certains proches, et une personne dans la situation de I'intim6e serait exclue; tandis que dans un cas moins grave oi la victime survit h ses blessures, toute personne qui pourrait -attribuer un pr6judice personnel h la faute primitive, aurait, en vertu de l'article 1053 C.C., un recours contre l'auteur de cette faute.
Le juge Dorion objecte que Particle 1056 C.C. ne privoit que le cas de mort. Et il ajoute:
Il me semble qu'un raisonnement qui se resigne aussi facilement au reproche d'illogisme perd beaucoup de sa force persuasive.
Dans le cas d'une loi comme le Code civil, surtout dans une matibre oa le l6gislateur s'est montr6 si sobre de formules, ii faut assur6ment suivre la r~gle d'interpr~tation de 'article 1018 C.C. qui s'applique aux lois comme aux contrate et dire que les articles du code s'interpritent les uns par les autres, en donnant h chacun le sens qui rbsulte de 1'ensemble de ses dispositions. C'est bien 1 ce que reconnaissait Lord Sumner dans la cause de Quebec Railway, Light and Power Co. v. Vandry (1):
Et en d6finitive raisonnement qu'on nous oppose s'appuie moins sur les textes-car on 6tablit une varitable antinomie entre 1'article 1053 C.C. et 1'article 1056 C.C.que sur l'autorit6 qu'on attribue A des arr~ts des tribunaux frangais qui ne nous lient en aucune fagon. Du reste, ces tribunaux font l'application d'un code qui ne contlent aucune disposition de la port6e de 1'article 1056 C.C. Je crois aussi que l'interpr6tation constante qu'on a donn6e dans la pratique h larticle 1053 C.C. en matibre d' " injures corporelles ", en indemnisant uniquement la partie contre qui le ddlit ou quasi-d6lit a t6 commis, quand d'autres considdrations ne s'appliquaient pas, s'y oppose nettement. On dit aussi que l'article 1056 C.C. d6clare " ind6pendantes " les poursuites qu'elile autorise, et on en tire la conclusion que (le droit d'action en vertu de i'article 1053 C.C. en faveur de toute personne 16s6e par le d6lit n'est pas affect6 par le recours sp6cial et " ind6pendant " de l'article 1056 C.C. Qu'on me permette de faire observer que c'est mal lire larticle 1056 C.C., dont le dernier alin6a dit seulement que ces poursuites sont ind6pendantes " de celles dont les parties peuvent 6tre passibles au criminel ". L'emploi de 1'expression " poursuites ind~pendantes " n'a donc pas la port6e que lui pr~te cet argument. J'ajoute qu'il s'agit tant dans 'article 1056 C.C. que dans l'article 1053 C.C. d'un recours purement civil, et le recours donn6 par larticle 1056 C.C. est si loin d'6tre " ind6pendant " du recours accord6 par 'article 1053 C.C. qu'il exclut absolument ce dernier recours dans les cas qui entrent dans le champ d'application de l'article 1056 C.C.
L'intimbe invoque certaines d6cisions des tribunaux de la province de Qu6bec. Elle n'a trouv6 cependant que trois arrats qu'elle croit 6tre favorables h sa th~se.
La premiere dicision est celle de la cour du Bane de la Reine dans la cause de Cedar Shingle Co. v. La Cie d'Assurance de Rimouski (1).
L'appelante 6tait locataire d'un moulin qui fut incendi6 par son imprudence. Le proprietaire du moulin l'avait fait assurer dans la compagnie intim6e, et celle-ci dut lui payer l'indemnit6 convenue. La compagnie poursuivit alors l'appelante, invoquant subrogation aux droits de 1'assur6, qui avait une action contre son locataire en vertu de Particle 1629 C.C. Elle se basait egalement sur I'article 2584 C.C., qui permet h 1'assureur, lorsqu'il paie 1'indemnit6, d'exiger la subrogation aux droits de l'assur6 contre la personne responsable du sinistre. Elle invoquait de plus l'article 1053 C.C. La cour du Bane de la Reine fut cependant d'avis qu'il n'y avait ni subrogation 16gale, ni subrogation conventionnelle, car toute 1'indemnit6e n'avait pas 6t6 paybe lors de la quittance. Mais elle fut d'opinion que 1'article 1053 C.C. justifiait le jugement de la cour de premibre instance contre 1'appelante. J'ai lu bien attentivement ce jugement. Le juge Bosse, qui parla au nom de la cour du Banc de la Reine, ne discute pas la question de principe et d'interpritation que j'ai envisag6e plus haut, mais cite certaines autorit6s frangaises en matibre d'assurances, qui donnent effet, dans un cas semblable, aux articles 1382 et 1383 du Code Napoleon. Je ne crois pas qu'une semblable d6cision puisse clore le d6bat. Le deuxibme arr~t est celui d'Ortenberg v. Plamondon, cour d'appel (2).
L'intim6 Plamondon avait fait A Qu6bee une conf6rence publique oii il accusait les juife g6ndralement de pratiques criminelles. Ortenberg, un juif de Qu6bee, pr~tendit que de telles d6elarations 1'exposaient au m~pris du public et lui causaient des dommages dans ses affaires. On appliqua l'article 1053 C.C., dicidant qu'Ortenberg, bien qu'it n'efit pas 6t nomm6, avait raison de se plaindre des accusations g6n6rales de Plamondon. Le juge Carroll exprima 1'avis que comme il s'agissait d'une collectivit6 peu nombreuse, 75 familles juives A Qubbec sur une population de 80,000 ames, l'accusation ne se perdait pas dans le nombre, et que le demandeur pouvait Stre consid6r6 comme suffisamment vis6 par les propos diffamatoires.
Mais en tout cela on ne donnait aucune extension A I'article
1053 C.C., car Ortenberg, en tant que juif, 6tait une des victimes du fait d6lictueux.
Le troisibme arr~t, Paquin v. Grand Trunk Ry. Co.
(Cour de Revision (1), n'autorise certainement pas l'interpr6tation extensive qu'on donne A 1'article 1053 C.C. Un accident 6tait survenu sur le chemin de fer de la d6fenderesse, et le Dr Paquin, avec d'autres m6decins, avait donn6 des pansements aux bless6s le jour de 'accident.
Dans
1'espice, la cour a appliqu6 les r6gles qui r6gissent Faction dite de in rem verso, trouvant que la d6fenderesse, qui aurait 6t6 oblig6e de faire soigner les personnes bless6es par son imprudence, avait b6n6fici6 des traitements donnis par le demandeur. Il n'y avait pas lieu d'invoquer 1'article
1053 C.C., et, de fait, il n'en a pas 6t0 question dans le jugement du juge Larue qui parlait au nom de la cour de revision.
Je crois done que l'intim6e n's pas rbussi A 6tablir le bien-fond6 de sa r60lamation en la basant, ainsi qu'elle le fait, sur 1'article 1053 C.C. Cela ne me parait souffrir aucun doute quant au chef de sa demande qui se rapporte
A la privation, par suite de 1'accident, des services du frbre
Henri-Gabriel.
L'autre chef de la demande, ia r6clamation du cofit des soins m6dicaux et chirurgicaux que l'intim6e a fait donner au frbre Henri-Gabriel, A premibre vue, semble rentrer dans la ratio decidendi de la cause de Paquin v. Grand Trunk
Ry. Co. (1) que j'ai cit6e plus haut. L'intimbe, dans son factum, invoque cet arr~t par voie d'analogie, mais elle s'en tient toujours A sa pr6tention que son droit d'action d6coule du quasi-d6lit commis contre le frbre Henri-Gabriel, ce dernier ayant eu droit, dit-elle, de recevoir ces soins de
1'intimde en vertu du contrat qui existait entre eux.
L'arr~t dans Paquin v. The Grand Trunk Ry. Co. (1), je l'ai dit, est base sur les rigles qui regissent 1'action de in rem verso. J'ai done voulu examiner la question que sou- Jhve cette d6cision, afin de voir si l'intimbe aurait pu justifier sa r~olamation du cofit des soins donnis au frbre Henri- Gabriel par les principes d'6quit6 sur lesquels se fonde le recours que donne cette action.
Dans le champ d'op6ration des quasi-contrats, nous rencontrons d'abord la gestion d'affaires, et ensuite l'action de in rem verso qu'on aurait tort de confondre avec 1'action que donne cette gestion.
L'action de in rem verso n'est pas nomm6e dans notre code, pas plus que dans le Code Napolion; elle existe pourtant dans notre droit comme dans le droit frangais qui la tiennent tous deux du droit romain. Son fondement juridique est le grand principe d'6quit6 que nul ne doit s'enrichir au d6triment d'autrui.
On la compare quelquefois l'action qui d6coule de la gestion d'affaires, mais j'ai dit qu'il ne faut pas la confondre avec elle. Des diff6rences essentielles, en effet, existent entre les deux actions.
Il y a gestion d'affaires, negotiorum gestio, qiiand quelqu'un assume volontairement la gestion de l'affaire d'un autre, sans la connaissanoe de ce dernier (art. 1043 C.C.). La gestion doit done 6tre volontaire et intentionnelle (Baudry-Lacantinerie et Barde, Obligations, t. 4, 2792), et elle s'exerce pour le compte du maitre, avec les mimes effets, si l'affaire a 6 bien administr6e, que s'il y avait eu mandat entre le g6rant et le maitre (arts. 1043, 1046 C.C.). Autre chose est 1'action de in rem verso. Elle suppose que le demandeur a fait une dbpense d'argent ou d'activit6 dont r6sulte 1'enrichissement du d6fendeur. Ainsi, comme dans 1'esp&ce de Paquin v. Grand Trunk Ry. Co. (1), un m&decin a donni des soins h des personnes bless6es par la faute du d6fendeur, et celui-ci a b6n6fici6 de ces soins. Le demandeur a une action, dite de in rem verso, dont la mesure est le montant du b6n6fice, existant la date de l'action, que le d6fendeur a retird de la d~pense ou de l'activit6 du demandeur.
Nous pouvons 6carter ici 1'hypothbse de la gestion d'affaires. L'intimbe n'a jamais eu l'intention de g6rer aueune affaire de l'appelante. Ele a fait traiter m6dicalement le frdre Henri-Gabriel, et elle a pay6 tous les frais du traitement, parce qu'elle consid6rait qu'elle en avait l'obligation, soit en vertu d'un contrat, soit parce que le frbre bless6 6tait membre de sa congr6gation.
Mais i1 pouvait bien y avoir lieu A Faction de in rem verso en faveur de 1'intim6e, si les conditions qui r6gissent ce recours se trouvaient & accomplies.
La principale de ces conditions est l'existence de 1'enrichissement-c'est le terme dont se servent les auteurs-au moment de la demande.
Ainsi nous lisons dans Fuzier- Herman, vo Gestion d'affaires, no 163, ofi il est question de l'action de in rem verso, ce qui suit:
Mignault J. Cette action se distingue de f'action negotiorum gestorum en ce que pour celle-ci il suffit que I'acte du g6rant ait 6t6 utile au moment oii il a 6t6 entrepris, tandis que pour celle-IA (faction de in rem verso), quand il a'agi-t de d6terminer la somme a payer par le propridtaire qui s'est enrichi par le fait du g6rant, ii faut se placer au moment de la demande et ne consid6rer que l'utilit6 finage.
Il y a un eas-et cela nous rapproche de 1'espice-oii il y a ouverture a Faction de in rem verso. C'est lorsqu'un tiers paie au cr6ancier la dette du d6biteur, commne 1'article 1141 C.C. lui permet de faire. Le recours du tiers contre le d6biteur (je suppose qu'il n'y a pas mandat expr&s ou tacite entre eux et que le tiers a pay6 en son nom) est par voie de 1'action de in rem verso. Mais observons avec Baudry-Lacantinerie et Barde, Obligations, t. 2, no 1399, p. 505:
Si le tiers non int6ress6 (Fintrft h faire le paiement n'a aucune importance ici) a pay6 en son propre nom, d1 pourra, en principe, agir contre le d6biteur par 1'action de in rem verso, car on ne doit pas supposer qu'il y a eu donation de la part du tiers. Cette action a sa source dans ce principe d'6quit6 que nul ne doit s'enrichir au detriment d'autrui, mais elle ne permet d'agir que dans la mesure de PenriohissEment procur6 A celui contre qui elle est dirig6e. Ainsi, dans notre cas, s'il est prouv6 que le cr6ancier efit accord6 au d~bitEur des remises partielles on des d6lais, il faudrait en tenir compte.
De m~me, si Ia prescription 6tait sur le point d'8tre-aciquise au d6biteur, l'action de in rem verso se preserirait par le laps de temps qui aurait suffi pour parfaire la prescription de la dette payee.
Pour compl6ter la pensbe des auteurs que je viens de citer, je dois dire qu'avant ce passage, ils avaient envisag6 le cas ot le tiers a pay6 la cr6ance au nom du d6biteur, et allors, disaient-ils, il y a lieu l 'action de gestion d'affaires. Rien de tel n'existe en cette cause.
Je puis encore citer Hue, t. 8, no 10, p. 20:
Si le paiement a Wt fait dans les conditions ordinaires, sans protestations de la part du d~biteur, le recours du solvene se traduira, selon le cas, soit par Faction de mandat, soit surtout par Iaction de gestion d'affaires (arts. 1375, 2001 C.N.), soit, si le solvens a pay6 en son propre nom, par Il est inutile de multiplier les citations. Elles indiquent que Ia condition du d6biteur poursuivi par voie de l'action de in rem verso ne doit pas 6tre rendue pire parce qu'un tiers a pay6 sa dette A son creancier.
Sp6cialement, si la prescription 6tait en cours lors du paiement, elle ne sera pas interrompue, et Faction de in rem verso se prescrira par le laps de temps qui aurait suffi pour parfaire la prescription de la dette pay6e.
Appliquons cette doctrine a 1'espbee.
Si, comme je le crois, la v6ritable action qui appartenait a l'intimbe A cause de son paiement des soins m6dicaux et chirurgicaux donnis au frbre Henri-Gabriel, 6tait laction de in rem verso, comme dans le cas de Paquin v. Grand Trunk Ry. Co. (1), l'intimbe devait, A peine de d6ch6ance, l'intenter dans l'ann6e de l'accident (art. 2262 C.C.).
Car le frbre Henri- Gabriel 6tait, A raison des " injures corporelles " qu'il avait subies par la faute de l'appelante, crbancier de celle-ci, et en payant le cofit des soins necessit6s par ces " injures ", I'intim6e a pay6 la crdance qu'il avait de ce chef contre 1'appelante.
Je conclus done que la r6olamation de l'intim6e ne peut se justifier par l'article 1053 C.C. L'intimbe aurait bien pu, en temps utile, se pourvoir contre 1'appelante par 1'action de in rem verso pour r~clamer le cofit des soins qu'elle a fait donner-sans aucun mandat A cet effet, et sans pr6tendre exercer aucune gestion d'affaires pour le compte de l'appelante-au frbre Henri-Gabriel; mais la poursuite ayant 6t6 intentie apris 1'expiration de l'ann6e, et alors que le droit d'action du frbre Henri-Gabriel 6tait 6teint, cette poursuite n'est plus recevable par les tribunaux.
J'ai examin6 avec soin les nombreux arrits de la province de Qubbec que cite le president de cette cour. Aucune de ces d6cisions ne nous lie, et les plus extremes sont absolument isoldes. Beaucoup d'entre elles se rapportent au recours de 1'assureur contre le feu contre, les auteurs fautifs du sinistre. Les plus r6centes s'inspirent du jugement de la cour du Banc de la Reine dans Cedar Shingle Co. v. La Cie d'Assur. de Rimouski (1) que j'ai cit6 plus haut. J'aime mieux 1'ancienne decision de Quebec Fire Insurance Co. v. Molson et at (2), sur laquelle les codificateurs basent l'article 2584 du code civil. Quelle est 'utilit6 de cet article si l'assureur, sans subrogation, peut fonder son recours sur l'article 1053 C.C.?
Encore une fois, nous n'avons pas chez nous une jurisprudence digne de ce nom qui nous autoriserait A admettre l'interpr6tation extensive de 1'article 1053 C.C., avec ses cons6quences d'une telle gravit6 pratique. Pour ma part, je ne puis accueilhir cette interpr6tation. L'espice est sans doute int6ressante, ce ne serait pas une raison de faire fl6chir les principes dans une matibre qui est d'ordre public. J'ai d6montr6 d'ailleurs que l'intimbe n'6tait pas sans recours pour recouvrer les sommes qu'elle a d6pens6es pour faire soigner le frbre Henri-Gabriel.
Son malheur est de n'avoir pas exerc6 ce recours en temps utile.
Il s'ensuit que l'appel doit 6tre accord6, et que l'action de l'intim6e doit Atre renvoy6e avec depens dans toutes les cours contre l'intim6e.
RINFar, J. (dissenting).-Nous ne sommes pas appelds, pour la solution de cette cause, a interpreter l'article 1053 du code civil dans son application g6n6rale.
II s'agit ici d'un cas que, pour employer les expressions du code, il me faut d6signer sous le nom d' "injures corporelles
En France, tout le sujet des ddlits et des quasi-d6lits est rigi par les articles 1382, 1383, 1384, 1385 et 1386 du code civil, qui correspondent aux articles 1053, 1054 et 1055 du code de la province de Qu6bec. Mais le code frangais ne contient pas d'article 6quivalent a l'article 1056 du code de Qu6bec.
C'est une diffirence extremement importante, car elle a pour effet et pour r6sultat, dans une question comime celle qui nous est soumise, de rendre inapplicable la doctrine exposbe par les auteurs frangais et la jurisprudence 6tablie par les tribunaux frangais.
Dans la province de Qu6bec, en effet, alors que tous les autres cas de d6lits et de quasi-d6lits sont r6gis uniquement par Particle 1053 C.C. (avec les additions qui y sont apportees par les articles 1054 et 1055 C.C.) les cas d' " injures corporelles " sont, en plus, subordonn6s h l'artiole 1056 C.C., qui les concerne exclusivement.
Le l6gislateur a manifest6 son intention d'envisager ces cas d'une fagon particulire en 6dictant ce dernier article et en leur imposant la prescription sp6ciale d'un an prevue par Particle 2262 C.C. II faut donner effet h cette intention.
Le jugement de notre colligue, M. le Juge Mignault, n'entend pas sortir du cadre d'un d6lit ou quasi-d6lit causant des " injures corporelles ". Tout ce qu'il dit de 1'artidle 1053 C.C., modifi6 en pareil cas par Particle 1056 C.C., se borne A une esphce de ce genre. Je suis d'accord avec ses vues sur ce point; et comme, par ailleurs, j'accepte 6galement l'opinion qu'il exprime sur le recours de in rem verso, j'en arrive done aux m~mes conclusions que les siennes.
est important de pr&ciser d'abord que la demanderesse, du vivant de " la partie contre qui le *
* * quasid6lit a 6t6 commis " (c'est le texte mime de P'article 1056 C.C.) avait r6olsm6 h titre de dommages-int6rits une somme de $4,780
$10,000 pour dommages g6n6raux; et $118 parce que Le tribunal de premibre instance lui a accord6 la somme de $2,236.90 pour les suivant des chiffres qui sont soigneusement d6taill6s dans le jugement.
II a accord6, en outre, une somme de $1,763. 10 (soit: la diff6rence entre le montant de $2,236.90 et celui de $4,000 qui reprbsente le total de 1'adjudication) parce que
Le jugement aecorde done une indemnit6 pour des dommages spcifis qui n'incluent pas la somme de $118 qui avait 6t6 r~clam6e pour les habits que le frbre portait lors de 1'accident, " ainsi que les effets qu'il avait avec lui." Il me faut signaler cela, car les habits et les effets du frbre appartenaient A la demanderesse; et si la Cour Sup6rieure lui en avait accord6 la valeur h titre de dommages, cet item devrait probablement faire l'objet de consid6ration toutes diff6rentes de celle qui s'appliquent aux dommages r6sultant des " injures corporelles ". Je tiens done h 6tablir le fait que mon jugement, non plus que celui de M. le Juge
Mignault (comme je le comprends), ne s'adresse en aucune fagon h cette r6clamation de $118.
Pour d6cider si l'action de la demanderesse 6tait recevable pour r6clamer les dommages-int6r~ts qui lui ont 6t6 accord6s, il faut examiner non pas une doctrine et une jurisprudence 6difides uniquement sur une l6gislation correspondant A notre seul article 1053 C.C.; mais il faut d6terminer jusqu'A quel point la g6n6ralit6 de cet article est, en matibre d' injures corporelles ", modifide par Particle
La Cour Sup6rieure a r~sum6 dans le " Consid6rant"
suivant la doctrine des auteurs et des tribunaux frangais ou belges sur laquelle elle a appuy6 son jugement:
C'est ce principe qui a 6galement servi de base au jugement de la Cour du Banc du Roi. Or, il me semble trbs respectueusement que l'article 1056 du Code civil de Qu6bec dit pr6cis6ment le contraire. De toute 6vidence, il n'y a pas, en vertu de cet article, " autant d'indemnitis distinctes qu'il y a de personnes 16s6es ". L'action appartient exclusivement aux personnes mentionn6es dans 1'article, qui est restrictif et doit 6tre interpr6t6 h la lettre. St- Laurent v. La Compagnie de T6l6phone de Kamouraska
(1); Gohier v. Allan (2).
I est sans doute pr6f6rable de mettre sous nos yeux le texte des articles qui font l'objet de la discussion:
I est suffisant de reproduire le premier et le troisibme paragraphe de Particle 1056 C.C., vu que le second paragraphe n'a trait qu'au duel et que le quatribme paragraphe &
Rinfret J.
s' occupe seulement de l'effet criminelle:
1056. Dans tous les cas oii la partie contre qui le d6lit ou quasi-d& lit a 6t0 commis d6c&de en cons6quence, sans avoir obtenu indemnit6 ou satisfaction, son conjoint, ses pere, mire et enfants ont, pendant Fann6e seulement, , compter du d6cs, droit de poursuivre celui qui en est Pauteur ou ses reprbsentants, pour es dommages-intirats r6sultant de tel d6cs.
En tout cas il ne peut Stre port6 qu'une seule et mime action pour tous ceux qui ont droit & Findemnit& et le jugement fixe la proportion de chacun dans Findemnit.
J'ai reproduit la version frangaise et la version anglaise pour qu'on puisse tenir compte, s'il y a lieu, des divergences qui existent entre elles.
Il me parait suffisant de lire ce texte pour constater qu'on ne saurait lui appliquer la doctrine sur laquelIe on s'est appuy6 en Cour Suphrieure et en Cour du Banc du Roi, comme par exemple 4celle-ci (Hue, vol. 8, no 420): Selon la formule de la Cour de Cassation: "Le fait dommageable ouvre tne action en dommages-intirgts au profit de toute personse qui a souffert un pr6judice direct r~sultant de ce fait qu'elle soit ou non h&itibre de la victime, ou encore celle-ci que l'on extrait de Laurent (vol. 20, no 534) :
La loi donne Faction pour le dommage caus6 4 tous ceux qui sont 16s6s par le fait dommageable.
Ce principe r6sulte de la g6n6rallit6 des termes de l'article 1382; il est consacr6 par la jurisprudence. La Cour de Cassation Pa formul6 dans les termes suivants, A docoasion de la mort instantan6e d'une personne par suite d'un accident de chemin de fer: "Le fait dommageable ouvre une action en dommages-intkrfts au profit de toute personne qui a souffert un pr6judice direct rTsultant de ce fait."
(Reje', 21 juillet 1869, D. 72, 5, 386, n. 1.)
ou encore celle-ci, qu'on nous cite de la part de l'intim6e et qui est tir6e de Fuzier-Herman, III, Code civil annot6, sous les articles 1382 et 1383:
de 1action civile sur laction 1056. In all cases where the person injured by the commission of an offence or a quasi-offence dies in consequence, without having obtained indemnity or satisfaction his consort and his ascendant and descendant relations have a right, but only within a year after his death, to recover from the person who committed the offence or quasi-offence, or his representatives, all damages occasioned by such death.
In all cases no more than one action can be brought in behalf of those who are entitled to the indemnity and the judgment determines the proportion of such indemnity which each is to receive. J'ai choisi ces citations simplement comme exemple pour mieux d6montrer le danger qu'il y aurait de s'inspirer de la doctrine et de la jurisprudence frangaises pour interpreter la loi de la province de Qu6bec dans la cause qui nous est soumise.
Comme l'a d6ja' dit M. le Juge Taschereau dans la premire cause du Canadian Pacific Railway v. Robinson (1), et tel que l'a r6p6t6 M. le Juge en chef Lamothe dans la cause de Hunter v. Gingras (2), if faut bien remarquer que Particle 1056 C.C. n'a pas accord6 un droit nouveau aux personnes qui y sont 6num6r6es. a, au contraire, restreint et limit6 le recours qui pouvait appartenir ant6rieurement au code ceux qui subissaient des dommages raison d"' injures corporelles " infligbes a une personne. En effet, M. le Juge Taschereau et M. le Juge Lamothe soulignent quatre restrictions apport6es par 1'article 1056 C.C.:
Je ne crois pas que 1'article 1056 C.C. ne prbvoit que le "cas de mort ", comme on le pr6tend. Cet article, combin6 avec larticle 1053 C.C., couvre 1'ensemble de la responsabilit6 en matibre d' "injures corporelles ". L'on ne saurait d6cider cette cause uniquement en vertu de l'article 1053 C.C. sans tenir compte de Particle 1056 C.C.
L'article 1053 C.C. 6tablit la base de la responsabilit6, l'article 1056 C.C. d6clare dans quels cas et vis-h-vis de quelles personnes cette responsabilit4 existera pour des dommages resuItant d' " injures corporelles ".
La riolamation de l'intim6e est pour les dommagesint6rits qu'elle alligue avoir soufferts par suite des " injures corporelles " inflig6es au frbre Henri-Gabriel. n'y a pas de distinction d'ordre juridique entre la base, le caractbre et la nature de cette r6clamation et ceux de la reclamation qui appartiendrait aux " conjoint, phre, mre et enfants" de la victime imm6diate de 1'accident.
Que les " injures corporelles " soient, ou non, suivies de mort, la responsabilit6 vis-h-vis des personnes autres que la victime est, du point de vue l6gal, absolument du m~me ordre. Le lgislateur a indiqu6 express6ment que ce genre de r6clamation est class6 dans la cat6gorie des actions r6sultant d' " injures corporelles " puisque, par Particle 2262 C.C., il excepte sp6cialement de la prescription 6dict6e contre ces actions "les dispositions contenues en Particle 1056 C.C." Pour d6cider s'il y a lieu d'admettre la r6clamation de l'intime, il faut donc lire et analyser ensemble les articles 1053 et 1056 C.C. et les interpreter L'un par L'autre. Pour les fins de cette interpr6tation, nous ne pouvons mettre de c~t6 la rgle pos6e par le Conseil priv6:
S'il faut appeler h l'aide de cette rbgle, 1'apport que peut ajouter le c6t6 historique d'une 16gislation, nous savons d6jh par les jugements de M. le juge Taschereau et de M. le juge Lamothe que Partkle 1056 C.C. n'introduit pas un droit nouveau, mais qu'il vient modifier, pour le cas particulier des " injures corporelles ", le principe g6ndral pose par l'art. 1053 C.C. IL s'ensuit qu'i n'a eu pour but d'accorder aux parents d'une victime d6c6d6e un recours qu'ils n'auraient pas eu autrement, puisqu'il est conc6d6 que ce recours a toujours exist6 dans le droit du Qu6bec et que la rigle: " Actio personalis moritur cum persona" n'y a jamais 6t6 accept6e.
L'article 1056 C.C. n'est done que pour modifier 1'article 1053 C.C.
Ni M. le Juge Taschereau, ni M. le Juge Lamothe ne me paraissent avoir eu l'intention, dans les jugements pricitis, de limiter A celles qu'ils ont 6num6r6es les restrictions apport6es a 'article 1053 C.C. par Particle 1056 C.C. La combinaison de ces deux articles indique que le mot "autrui"
dans 1053 C.C. correspond A "la partie contre qui le d6lit ou quasi-d&lit a 6t6 commis " (person injured) dans 1056 C.C. Ces derniers mots sont limit6s h la victime imm6diate, puisque 1'article se lit:
Cela ne peut s'appliquer qu'h la victime imm6diate des "injures corporelles ".
Or, ce n'est que dans ce cas: lorsque la victime imm6diate " d6c&de en cons6quence " et, en outre, " sans avoir obtenu indemnit6 ou satisfaction ", que certaines autres personnes, parmi lesquelles ne figure pas l'intim6e, ont droit A un recours en dommages-int6rits.
Ces personnes seules ont le " droit de poursuivre "; les autres sont 61imindes. M~me elles n'ont ce droit que si la victime imm6diate " d6cide en consiquence, sans avoir obtenu indemnit6 "; et alors, seulement " pour les dommages-int6rfts r6sultant de tel d6chs "; et ils doivent les r6clamer par " une seule et mime action ".
II ne s'agit pias de nier le droit d'action. Ii s'agit de le concentrer dans la personne de la victime tant qu'elle vit. Nul ne conteste que le frbre Henri-Gabriel efit eu le droit, en I'espce, de recouvrer les $2,236.90 qui ont 6t6 octroyds h l'intim6e pour d6penses m6dicales, mais ce droit appartenait h lui seul. L'intim6e ne peut prtendre avoir subi ces d6penses que parce qu'elle les a pay6es; mais elle les a pay6es pour le frbre Henri-Gabriel et en ses lieu et place. On ne subit pas des dommages, au sens 1 gal, parce qu'on juge h propos d'acquitter les comptes de m6decin d'une autre personne. Et, en tout cas, on ne les subit pas par la faute de l'auteur du d6lit.
On peut les payer h titre de lib6ralit6 et alors il n'en r6sulte aucun recours en remboursement.
On peut le faire pour le compte du malade ou du bless6. Dans ce cas, il n'y a certainement pas subrogation 16gale. II pourrait peut-6tre y avoir subrogation conventionnelle dans les droits de la victime contre l'auteur du d6lit. Mais alors le recours n'existera que par suite de cette subrogation et, comme cons6quence, ce recours se bornera aux droits que la victime elle-mgme aurait pu exercer. En fait, ce seront les propres droits de la victime que celui qui a paye pourra exeroer.
On peut encore supposer le cas le tiers a pay6 les frais m6dicaux et les r6clame par voie de 1'action de in rem verso. Ce point est discut6 au long dans le jugement de M. le juge Mignault.
Dan6 aucun cas, le tiers qui paie les frais m6dicaux d'un J. autre ne peut r6clamer ces frais A titre de dommages subis par lui-mime. L'action par laquelle il les rbelame ne peut done 6tre baste sur les articles 1053 et 1056 du code civil. I en est de mime des autres sommes accord6es l'intimee
Tous ces dommages eussent t couverts par une indemnit6 au frbre Henri-Gabriel pour perte de temps et incapacit6 r6sultant du quasi-d6lit commis contre lui. C'est la manidre ordinaire de r6clamer ce genre de dommages-int6r~ts et c'est sous cette forme qu'ils sont toujours octroy6s. En 1'espce, on les a prbsentbs sous une autre forme et on leur a donn6 un autre nom, pour tenter d'obvier h l'objection de prescription qui frappait 1'action personnelle du frdre. J'6prouve une difficult6 insurmontable a admettre que 1'on puisse ainsi obtenir indirectement ce que 1'on ne peut plus r6clamer directement.
Si l'on y r6fl6chit bien, 1'indemnit6 que la victime est en droit de r6olamer couvre tous les dommages qui r6sultent directement des " injures corporelles " qu'elle a subies. Les tiers ne sont affectis que par les cons6quences qui en dcoulent indirectement par suite de l'incapacit6 de la victime. L'indemnit6 que la victime a le droit de recevoir de l'auteur du d6lit ou du quasi-d6lit est pr6sumbe 6tre une compensation entibre et ad6quate pour cette incapacit6. Tant que survit la victime imm6diate, le recours pour r6clamer les dommages qui r6sultent de ses " injures corporelles " appartient done h elle seule.
C'est par cette interpretation seulement qu'on empche l'illogisme qui existerait autrement--et qui est signal6 par M. le juge Dorion-que l'art. 1056 " accorderait dans le cas de survie l'indemnit6 qu'il refuse dans le cas de mort Il y en a d'autres:
1. La prescription serait d'un an contre l'action de la victime (art. 2262-2 C.C.); elle serait de deux ans contre
1'action de l'6tranger (art. 2261-2 C.C.).
2. Si 1'on admet que les parents n'ont droit & une indemnit6 que dans les cas pr6vus h 1'art. 1056 C.C., le code accorderait A n'importe quel 6tranger le recours g6n6ral de I'article 1053 C.C. et le refuserait aux parents, except6 dans les cas limitis mentionnis dans 1'article 1056 C.C.
P J 3. Si 1'on pr6tend que 1'art. 1056 C.C. n'enleve pas aux parents le " droit de poursuivre ", du vivant de la victime,
A quel moment cette action pourra-t-elle 6tre intentie? II est clair qu'en cas de mort de la victime, les parents ne peuvent poursuivre que si elle n's pas obtenu satisfaction et indemnit6, et seulement " pour les dommages r6sultant du d6c~s ". Si les parents veulent intenter une action, du vivant de la victime, comment d6cidera-t-on si cette dernibre va d6c6der, ou non, " en cons6quence " du d6lit? Et tant que la victime n'a pas intent6 sa propre action, de quelle fagon va-t-on s'y prendre pour savoir si elle mourra sans obtenir " indemnit6 ou satisfaction "? Et cependant comment, en vertu de Particle 1056 C.C., pourrait-on accueillir 'action des parents, du vivant de la victime, sans que ces conditions-14 soient d6termin6es? A tout 6v6nement, si toutes les autres r6clamations de ce genre ne sont pas 6limin6es tant que la victime immediate survit, le droit de poursuite des parents et des autres, pour leurs dommages r6sultant imn6diatement des " injures corporelles " de la victime, d6pendrait uniquement de la hite qu'ils mettraient A intenter leur action avant que la victime n'en meure, puisque, *aprbs sa mort, le seul droit qui subsiste est ceui des plus proches parents pour r6dlamer " les dommages-int6r~ts r6sultant de tel d6cs ".
Une citation de Demogue, sur laquelle on s'appuie, fait voir la difficult6 d'appliquer la doctrine frangaise moderne, m~me en vertu d'une 16gislation qui ne contient pas l'art.
La voici (Demogue, Trait6 des Obligationsvol. 4, no 528):
A Ainsi, m~me sous la loi frangaise, la thborie qu'on pr6conise entraine presque ndcessairement le double emploi des indemnit6s. Il y a danger qu'on accorde aux proches une indemnit6 que la " victime mat6rielle " aura dbjh reque. C'est tellement l4 que peut conduire cette doctrine que Demogue 6crit:
Je n'ai pas h me demander en vertu de quel raisonnement juridique, si la thborie est bonne, l'action des proches pourrait 6tre d6clarde irrecevable en pareil cas. 1i me suffit de constater que les auteurs frangais modernes, qui pr6conisent cette th6orie, sont contraints de lui assigner des limites, mame en 1'absence de 'article 1056 C.C. dans le code qu'ils commentent. A plus forte raison doit-on conclure, en vertu de la loi du Qu6bec, que ces actions sont irrecevables du vivant de la victime et que le l6gislateur a voulu 6viter ainsi les cons6quences d'une interpr6tation de Part. 1056 C.C. diff6rente de celle que nous soumettons. Qu'arriverait-il, dans le cas que suppose M. Demogue, si l'action des proches avait anticip6 cele de la victime et s'ils avaient d6jA obtenu indemnit6? On ne saurait d6clarer irrecevable 1'action de la victime et, dbs lors, 1'auteur du ddlit serait-il appel6 h payer double indemnit6?
La v6ritable solution impos6e par notre article 1056 C.C., c'est que, en dernibre analyse, les dommages-int6rfts r~sultant d' "injures corporelles " appartiennent seulement h la victime " contre qui le d6lit ou quasi-d6lit a 6t6 commis ", et qu'il n'y a pas de responsabiliti vis-h-vis des autres. Ce n'est que si la victime d6cde sans avoir obtenu ces dommages, qu'une responsabilit6 limit6e existe h 1'6gard de certains proches mentionn6s dans Particle.
Ni dans l'un, ni dans l'autre cas, H1 n'y a place pour l'intim6e. Si l'on pr6tend que 1'art. 1056 C.C. ne pourvoit qu'au cas de mort de la victime, va-t-on ajouter que le conjoint, le phre, la mare ou les enfants, pourvu qu'ils soient -en degh des d6lais de prescription, pourront r6clamer h la fois les dommages subis par eux du vivant de cette victime et les dommages r6suitant de sa mort, comme, par exemple: le temps qu'ils ont conacr6 h la soigner ou le gain qu'elle a perdu et dont ils ont, en consiquence, 6t6 priv6s pendant son invalidit6 d'une part; et, d'autre part, la perte du soutien et des aliments r6sultant de son d6chs? L'article dit qu'ils ont droit aux seuls dommages r6sultant du d6chs. Et si leur droit est subordonn6 A la mort de la victime et au fait qu'elle n'a pas obtenu indemnit6, il faut bien qu'ils attendent pour exercer leur action que ces deux conditions se soient produites.
Ii est d'ailleurs tris significatif que depuis que ces deux articles sont en vigueur (1867),-comme les procureurs des parties Font d6dlar,-il n'y a pas d'exemple d'action semblable h celle de l'intimbe dans la province de Qu6bec.
La revue aussi compl~te que possible que nous avons pu faire des rapports judiciaires ne nous a r6v6l6 que l'arr~t de Larrivg v. Lapierre (1) oil il s'agissait d'un phre qui r6clamait les dommages personnels qu'il avait subis par suite d'un accident h son fils, qui lui remettait son salaire.
Le d6fendeur avait soulev6 le point " qu'en loi il n'y a pas en faveur du phre ouverture h laction qu'il a intent6e ".
Apr~s la production de cette d6fense en droit, le demandeur a prbsent6 une motion demandant qu'il lui fit permis d'amender sa d6claration, en ajoutant que son fits 6tait mineur.
Il s'agissait done d'un cas oii ces m~mes dommagesperte du salaire du fils-eussent pu 6tre r6clam6s par le phre comme tuteur.
C'est peut-6tre la raison pour laquelle le jugement, qui accorda ces dommages (d'ailieurs au montant minime de $200), ne parait pas avoir t6 port6 en appel.
Le souci du idgislateur de limiter le droit de poursuivre en matibre d'injures corporelles ne se trouve pas d'ailleurs que dans le code civil. II est 6galement dans la Loi concernant les Accidents du Travail (Stat. de Qu6. (1928). c. 79), en vertu de laquelle seuls ont un recours la victime, le conjoint survivant, les enfants, et les ascendants et descen- RENT dants dont la victime 6tait le principal soutien.
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On peut trds raisonnablement supposer que, dans cette matibre, le 16gislateur a voulu emp&her la possibilit6 de la multiplicit6 ou de i'enchainement d'actions dont parle notre coll ue, M. le Juge Mignault, et que signalait, en PErrrs
FRiRS semblable eas, Lord Cairns rendant jugement A la Chanbre MAIE.
des Lords dans ia cause de Simpson v. Thomson (1), que Rinfret J. je cite h, titre d'exemple:
This proposition virtually affirms a principle which I think your Lordships will do well to consider with some care, as it will be found to have a much wider application and signification than any which may be involverd in the incidents of a contract of insurance. The principle involved seems to me to be this-that where damage is done by a wrongdoer to a chattel not only the owner of that chattel, but all those who by contract with the owner have bound themselves to obligations which are rendered more onerous. or have secured to themselves advantages which are rendered less beneficial by the damage done to the chattel have a right of action against the wrongdoer although they have no immediate or reversionary property in the chattel, and no possessory right by reason of any contract attaching to the chattel itself, such as by lien or hypothecation. This, I say, is the principle involved in the Respondents' contention. If it be a sound one, it would seem to follow that if, by the negligence of a wrongdoer, goods are destroyed which the owner of them had bound himsdlf by contract to supply to a third person, this person as well as the owner has a right of action for any loss inflicted on him by their destruc- But if this be true as to injuries done to chattels, it would seem to be equally so as to injuries to the person.
An individual injured by a negligently driven carriage has an action against the owner of it. Would a doctor, it may be asked, who had contracted to attend him and provide medicines for a fixed sum by the year, also have a right of action in respect of the additional cost of attendance and medicine cast upon him by that accident? And yet it cannot be denied that the doctor had an interest in his patient's safety. In like manner an actor or singer bound for a term to a manager of a theatre is disabled by the wrongful act of a third person to the serious loss of the manager. Can the manager recover damages for that loss from the wrongdoer? Such instances might be indefinitely multiplied, giving rise to rights of action which in modern communities, where every complexity of mutual relation is daily created by contract, might be both numerous and novel.
My Lords, I have given these illustrations because I fail to see any distinction in principle between them and the right asserted by the underwriters in the present case; and if II am right in so regarding them, they shew at least how much would be involved in a decision by your Lordships wherrby th-rt right shorld be affirmed.
De ce passage on pourrait rapprocher ce que dit notre coll~gue, M. le juge Duff, rendant le jugement du Conseil (1) [1877] 3 App. Cas. 279, at p. 289.
priv6 dans la cause de McColl v. Canadian Pacific Ry.
Co. (1).
Quoi qu'il en soit, pour les raisons que j'ai donnies au cours de ce jugement, je suis d'avis que les r6clamations faites par 1'intim6e et pour lesquelles on lui a accord6 une indemnit6 ne repr6sentent pas des dommages subis par l'intim6e, mais plut~t des dommages soufferts par le frbre Henri-Gabriel. Quant aux frais de m6decin et d'h6pitaux, ce sont ceux du frbre Henri-Gabriel et non pas ceux de J. I'intim6e.
Quant aux autres dommages r6clamis, d'apris leur v6ritable caractbre, ils ne reprbsentent pas une perte pour l'intim6e, mais une perte pour le frbre Henri-Gabriel r6sultant de son incapacit6.
Par sureroit, its sont indirects et sont trop 6loign6s (arts. 1074 et 1075 C.C.).
Je r6p6te que je concours avec M. le juge Mignault pour faire droit A i'appel et rejeter l'action avec d~pens.
J.-In this case I will briefly state the conclusions at which I have arrived. The facts and circumstances as disclosed by the evidence have been set out in the judgments of my learned brothers and need not be repeated here.
Two questions are involved in this appeal: (1) Did a right of action against the appellant (defendant) accrue to the respondent (plaintiff) by reason of the injuries received by Brother Henri-Gabriel? and (2) If so, was the respondent's claim barred at the time it commenced these proceedings?
The point really involved in the first of these questions, which is one of considerable practical importance, is this:
Does art. 1053 C.C., on its true construction, when read with art. 1056 C.C., limit the right of action therein provided for to the immediate victim of the fault, or does it give a right of action to any one who, although not the immediate victim, has suffered damage as a direct result of that fault?
Arts. 1053 to 1056 of the Civil Code embody practically the whole law of the province of Quebec relating to the subject of torts. On their construction therefore depend the rights of a person against whom a wrong has been committed whether the wrong was committed against his person, honour, or reputation.
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Arts. 1053 and 1056 C.C. read as follows:
1053. Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of o
1056. In all cases where the person injured by the commission of an FRtRES offence or a quasi-offence dies in consequence, without having obtained indemnity or satisfaction, his consort and his ascendant and descendant relations have a right, but only within a year after his death, to recover Lamont J. from the person who committed the offence or quasi-offence, or his representatives, all damages occasioned by his death.
1n the case of a duel, action may be brought in like manner not only against the immediate author of the death, but also against a'll those who took part in the duel, whether as seconds or as witnesses.
In all cases no more than one action can be brought on behalf of those who are entitled to the indemnity and the judgment determines the proportion of such indemnity which eadh is to recEive.
These actions are independent and do not prejudice the criminal proceedings to which the parties may be subject.
In construing these articles we must bear in mind two rules of interpretation. The first is that laid down by the Privy Council in Quebec Railway L.H. & P. Co. v. Vandry The head-note of that case states the rule, which is as follows:
The Civil Code of Quebec should be interpreted in the first instance solely according to the words used, the Code, or at least cognate articles, being read as a whole forming a complete scheme.
It is only if the meaning is not plain that light should be sought from exterior sources, such as decisions in Quebec earlier than the Code, or the exposition of similar articles of the Code Napdl6on.
See also the judgment of Lord Herschell in Bank of England v. Vagliano (2).
The other rule applicable is the well-known rule of interpretation of statutes, namely, that we are to construe legislative provisions according to the ordinary sense of the words unless such construction would lead to some unreasonable result or be inconsistent with, or contrary to, the declared intention of the framers of the law, in which case the grammatical sense of the words may be extended or modified.
of very wide import. It is, unless restricted by the context, wide enough to include not only the immediate victim of the fault but also all those who have suffered damage as the direct result of that fault.
Taken by itself there is nothing in the language of art. 1053 C.C. which would indicate a legislative intention of limiting the liability, for fault causing damage, to the immediate victim of such fault only. The wording of the section clearly gives a right of action for indemnity to every person to whom the fault caused damage. This view has found support in a number of judicial decisions in the province of Quebec:
Larrivg v. Lapierre (1); Paquin v. Grand Trunk Ry. Co.
It is contended, however, that arts. 1053 and 1056 C.C.
must be read together and that as the " person injured by the commission of the offence or quasi-offence " in art.
1056 C.C. is clearly limited to the immediate victim, the same restrictive meaning should be given to the person who suffered damage by the fault of another within the meaning of art. 1053 C.C. That these two articles should be read together is clear. When read together, however, what are the rights which they have secured, and the obligations which they have imposed? Art. 1053 C.C. deals generally with the rights of persons who have suffered damage when that damage was caused by the fault of another person who was capable of discerning right from wrong. It provides for the enforcement of those rights by imposing liability on the one guilty of the fault. To be entitled, therefore, to maintain an action under this article against a defendant capable of discerning right from wrong
(and liability is imposed only upon such a defendant) the plaintiff must establish (1) that he has suffered damage, and (2) that such damage was caused by the fault of the defendant. Art. 1056 C.C. does not in any way deal with these general rights and has no application unless and until the
When that situation arises art. 1056 C.C. becomes operative and determines who may sue; the cause of action upon which, and the time within which, suit may be brought; and, by declaring that only one action shall be brought on behalf of all those who are entitled to indem- & nity, it limits the right of action for damage, occasioned by the death, to those relatives mentioned in the article. In the case of a duel resulting in the death of one of the parties thereto, a similar action may be brought against the author of the death and against all those who took part in the duel whether as seconds or witnesses. Art. Lamont J. 1056 C.C. was designed to give special rights and to impose special obligations in those cases in which the fault caused the death of the immediate victim. That, in my opinion, is the effect, and the whole effect, of that article. It limits, it is true, the effect which art. 1053 C.C. otherwise would have, but the limitation it imposes is a limitation of the field within which art. 1053 C.C. would otherwise operate by excluding therefrom all cases in which the commission of the offence or quasi-offence is followed by the death of the person injured as a consequence thereof, before such person has obtained indemnity or satsifaction. In France under the Code Napoleon the rights of those damnified by the death of the immediate victim of the fault are governed by the general law which corresponds to our art. 1053 C.C., while in the province of Quebec these rights have been given special and exclusive treatment by art. 1056 C.C. The language of the first part of the latter article is descriptive of the circumstances required to bring the article into operation, but beyond that I cannot see that it has any bearing on the problem before us. With deference, therefore, to those who take the opposite view, I am of opinion that there is nothing in the context of these articles to limit the meaning which the word " another " in art. 1053 C.C. would ordinarily bear, or restrict its meaning to the immediate victim of the fault. There being nothing in the articles referred to which would deprive the respondent of its right to sue, it is necessary to see if the articles relating to prescription had barred the respondent's claim before this action was brought. The pertinent articles read as follows:
The prescriptive period in arts. 2261 (2) and 2262 (2) C.C. being exceptions to the general rule are to be strictly construed.
This is stated in Mignault's " Droit Civil Canadien," vol. 9, page 518, in the following language: In order to determine within which of these articles relating to prescription the respondent's claim falls it is necessary to inquire just what it is that is claimed and the ground upon which the claim is based. As I read the statement of claim the respondent claims to be entitled in its own right to recover damages which it alleges it has suffered and which were caused by the fault of the appellant These damages are claimed under three headings: (1) Sums disbursed for medical treatment and attention in an effort to relieve the sufferings and bring about the recovery of Brother Henri-Gabriel.
(2) $118 damage done to the clothes that the injured brother had on, and the effects he had with him at the time of the accident. (3) For loss of his services. Such a claim, in my opinion, is a claim for damages resulting from a quasi-offence and is based upon art. 1053 C.C. The prescriptive period of the action would, therefore, be two years, unless some other provision applies. It was contended that art. 2262 (2) C.C. applies and that this is really an action for bodily injuries and, as the action was not begun for almost two years after the accident occurred, the respondent's right of action was prescribed before the action was brought. An action for bodily injuries, in my opinion, implies, prima facie at least, that the action is brought, by one who has suffered injury to his person, to recover compensation therefor and indemnity for the loss resulting therefrom. It was however argued that the saving clause in art. 2262 (2) C.C. shewed that the term "'bodily injuries" must be given a wider construction in that article, as, in view of that clause, an action under art. 1056 C.C. would impliedly be an action for bodily injuries, although the persons for whose benefit the action was brought had not suffered any & injuries to their persons. Whether upon a true construetion of art. 1056 C.C., an action brought thereunder would be held to be an action for bodily injury, we need not inquire, for, even if it were, that construction would apply only where the statute expressly so provided and would not be extended by analogy to actions under art. 1053 C.C. and thus cut down the time within which an action under that article might be 'brought. In this case the respondent who brought the action being a corporation could not, and did not, receive any bodily injury. If, therefore, it had a right of action in its own right-and I think it had-it is difficult to see how that action can be said to be for bodily injuries. An action to recover for the damage done to a suit of clothes is clearly an action for damage to property. So also is an action for loss of services. In Clerk & Lindsell on Torts, 8th ed., at p. 201, the learned author says: So far, therefore, as these two claims are concerned the action cannot be said to be an action for bodily injuries. A more plausible argument may be made for the moneys paid out for medical treatment. Had the injured brother brought an action for compensation for the injuries he received, and had he claimed therein for medical treatment the sums claimed under that heading in this action, he would, in my opinion, provided he had made himself liable for those sums, be entitled to recover them in his action for personal injuries. But that would be because the treatment, and therefore the payments made on account thereof, would be the natural and probable consequence of the injuries received, and would be incidental thereto. Here, however, the action is for those claims only which would 'be incidental to an action for bodily injuries. To those claims the respondent could not add a claim for bodily injuries, since it has not received any such injuries. my opinion art. 2262 (2) C.C. has no application to the present case. The respondent's claim was, therefore, not prescribed when it brought its action.
There remains only to ascertain if the evidence established that the respondent suffered the damage claimed and if such damage was occasioned by the fault of the appellant.
I will consider the items in the order above mentioned.
(1) That the respondent paid out the sum of $2,236.90 for medical treatment and attention in an effort to alleviate the sufferings of Brother Henri-Gabriel is not disputed. Was that expenditure caused by the default of the defendant?
The word "caused"
as used in art. 1053 C.C. means "brought about," " that from which something proceeded." The word, in my opinion, implies not merely that the fault is a sine qua non of the damage, but that it is the causa causans-the efficient cause thereof.
The fault of which the appellant was guilty was negligence on the part of its servant for which, under art. 1054 C.C., it is responsible. That negligence caused an explosion of gasoline which very severely injured Brother Henri- Gabriel. That injury, in my opinion, rendered necessary expenditures for his relief which would not otherwise have been made. The injury and the expenditures may therefore be considered as cause and effect. For this reason I agree with the unanimous view of the court below affirming the judgment of the Superior Court that these expenditures were caused by the fault of the appellant and that the appellant is liable therefor.
(2) The $118 claimed as damage done to the clothes and effects of Brother Henri-Gabriel were not, as I read the judgments, allowed either by the Superior Court or the Court of King's Bench. In my opinion this item was properly disallowed.
The clothes and effects were given to the brother by the respondent in recognition of his services to the congregation and the relationship existing between them, and there is no evidence of any intention on the respondent's part to retain any property in them. Had the brother himself sued for the damage claimed in this item, he could, in my opinion, have recovered on the ground that the articles were his own.
(3) As to the claim for loss of services. This is a wellestablished form of action. If the relationship of master and servant existed between the respondent and Brother Henri-Gabriel, the respondent should recover on this claim, for it is a tort actionable at the suit of the master to so injure the servant that the master is deprived of the servant's services. Martinez v. Gerber (1).
To be entitled to maintain an action for loss of services a legal right to such services, and the loss thereof, must be established. In Admiralty Commissioners v. SS. Amerika (2), Lord Sumner said:
In 20 Halsbury, p. 276, the law is stated as follows: In some cases, however, it is sufficient for the master to shew a de facto service, that is service rendered in fact but not under any binding contract. In an action for loss of the services and society of his wife of which he had been deprived by the wrongful act of the defendant, it is sufficient if the husband establishes loss of service.1' And the same applies to a father who brings an action for loss of the services of a child living with him and under age who is not under a binding contract to serve another exclusively. That, however, is because the law recognizes that the husband has a legal right to the services of his wife and the father a legal right to the services of his child. Blut, where no legal right to the services of another is presumed by law from the relationship of the parties, the existence of a valid 2ontract must be established.
The relationship existing between the respondent and Brother Henri-Gabriel was not that of the family tie. It arose from the fact that the brother joined the congregation and took the vows of perpetuity and stability. Joining the congregation rendered him subject to its constitution, of which art. 48 reads as follows:
By his vows the brother engaged himself to remain with the congregation for the rest of his life, and to maintain its object, spirit and constitution. On its part the congregation considered that the obligation of maintaining him devolved upon it. In his evidence Frbre Gabriel-Marie testified as follows:
A Brother Henri-Gabriel performed his vows for many years and worked faithfully as a member of the congregation, and, but for his accident, would doubtless have continued to do so. The question, however, is: Can it reasonaibly be inferred from the fact of the brother's joining the congregation and taking the vows and from the congregation's recognition of its obligation to maintain him, that the parties intended to create, and did create, the contractual relation of master and servant?
I am very clearly of opinion that such never was the intention of either of the parties, nc- did they effectuate such a result. I am unable to see anything in the evidence which justifies the conclusion that either the brother or the congregation ever considered they were creating a legal relationship between them. The obligations undertaken were, no doubt, considered as binding on the conscience, but the vows were not taken by the brother in consideration of any agreement on the part of the congregation to maintain him, nor was the obligation of maintenance incurred in consideration of the vows. The attitude of both parties, as disclosed by their acts and the nature of the transaction, seems to me to repel any idea on the part of either of creating contractual obligations. So far as I can see Brother Henri-Gabriel might legally have ceased at any time to give his services to the congregation.
As the legal relation of master and servant was not created, and as the respondent did not obtain a legal right to the services of the brother the respondent cannot succeed on this item; for it cannot be said that the fault of the appellant has deprived the respondent of the brother's services when, in fact, the respondent never had any legal right to those services.
Counsel for the respondent called our attention to certain decisions of French tribunals and certain opinions of French text writers which indicated that, under an article in the Code Napol6on similar to our art. 1053 C.C., it was not necessary to establish a contractual relationship to be entitled to recover for loss of services. In the Vandry case (1), the Privy Council, in addition to the rule quoted above, said, at p. 671:
Under art. 1053 C.C., the legislature has imposed liability where the damage suffered was caused by the fault. It is a question of causation. The right to service gives the master a property in the labour of his servant. Smith's Law of Master and Servant, p. 86.
In the present case the respondent did not suffer the damage claimed unless he had a property in the brother's services. For the reasons I have given I think it had not. It had, therefore, nothing of which it could be deprived. The appeal, therefore, should be dismissed as to the $2,236 awarded for medical treatment and attention, and allowed as to the claim for damage for loss of services. I would not allow any costs of appeal.
J.-I concur with the Chief Justice.
Appeal dismissed with costs. Solicitors for the appellant: Elliott & David.
Solicitors for the respondent: Cartier & Barcelo.
See Lzs 1.
ACCOUNTING - Claim against company for indebtedness - Accounts - Reference-Attack on Referee's report- Claims for salary and bonus as manager- Compound interest-Appeal from judgment of Appellate Division, Ont., 62 Ont. L.R.
dismissed. Asso- 2-Accounting to deceased's estate as to estate-Findings on the evidence-Corroboration-Mingling of funds of trustee and cestui que trust-Presumption as to funds of unidentified origin-Mingling authorized by cestui que trust........
ACTION DE IN REM VERSO
ADMIRALTY LAW
ADOPTED CHILD
See WILL 2.
AGENCY - Agreement - Mandate
Exclusive agency for the sale of goods- Revocation-Art. 1756 C.C.] When in an agreement a person binds himself to buy and advertise the goods of a proprietor of patent medicines for a certain period and within a defined territory and is also appointed his sole agent and representative, such an agreement cannot be revoked at the will of the proprietor without the consent of the other party, article
1756 C.C. respecting the termination of mandate not being applicable in such a case.-Judgment of the Court of King's
Bench (Q.R. 44 K.B. 453) af.
2 - Ostensible authority - "Holding out"- Negligence..................
3-Sale of goods-Statute of Frauds
(now s. 5 of Sale of Goods Act, R.S.O., 1927, c. 163)-Revocation of agent's authority before signing by agent of memorandum.
..................
4- APPEAL - Judgment an appellate court quashing appeal to that court for want of jurisdiction-Matter in controversy to exceed $2,000-Supreme
Court Act, s. 39.]
The matter in controversy in this appeal is whether there exists a right of appeal to the Court of
APPEAL-Continued
King's Bench from the decision of the Quebec Public Service Commission refusing to allow an expropriation.
The right to have that body entertain an application for authority to expropriate is not appreciable in money and still less so is the right of appeal to the appellate court. The consequence of authorization by the Commission might result in a proceeding in which the amount involved would exceed two thousand dollars; but the ultimate award on the expropriation cannot be taken as the matter in controversy in this appeal.
CRoss................ 2- Leave to appeal-Jurisdiction-Order of the Board of Railway Commissioners- Leave of Board for operating railway- Jurisdiction of the Board-Railway Act [1927), R.S.C., c. 170, ss. 52 (2), 276. The Canadian National Railways applied for leave to appeal from an order of the Board of Railway Commissioners, made upon an application of the Canadian Pacific Railway Company under s. 276 of the Railway Act, by which that company was "authorized to open for the carriage of traffic that portion of its Swift Current north-westerly branch from
* * * Willingdon
*
*
*
Stratheona." Willingdon is the north-western terminus of the Cut Knife branch of the Canadian Pacific Railway Company, a branch constructed and operated under Parliamentary authority independently of that company's principal Act of 1881. 1919, the respondent company secured the approval by the Minister of Railways for the construction of a branch line to be known as the Swift Current branch, extending from a point near Galihead, in a northerly direction to Willingdon and thence in a westerly direction to Strathcona. On the 30th of July, 1928, when the Board made an order approving of a revised general location of this route, parts only of the line had been constructed leaving extensive gaps where the building of the line had not yet proceeded. The points of jurisdiction raised by the Canadian National Railways are stated thus: the authority of the Canadian Pacific Railway Company to operate branch lines under the Act of 1881 is a single indivisible authority applying only to a branch line in its entirety, as defined by the approved route map and consequently section 276 of the Railway Act invests the Board with no jurisdiction to sanction the opening for traffic of a part of any such branch line; and, alternatively, the appellant contended that in effect the order of the Board will enable the respond- APPEAL-Continued ent company to work that part of the
Swift Current branch, from Willingdon to
Strathcona, as an extension of the Cut
Knife branch, this not being permissible under the Railway Act.- Held, that leave to appeal should not be granted, as the intending appellant has not advanced any arguable objection to the jurisdiction of the Board of Railway Commissioners.
(Railway Act, s. 52 (2) ). As to the first of the alternative contentions: there is no doubt that, under the provisions of sections 4 and 15 of the schedule to the contract between the respondent company and the Parliament of Canada, that company stands in an exceptional position with regard to unspecified branches thereby authorized and it cannot be contended that the authority to operate, any more than the authority to construct, any part of the "line of railway"
to be known as the Canadian Pacific
Railway under the direction of section 15, is conditioned upon the working of the system as a whole or of any integral part thereof. Moreover, by section 17 of the schedule, the enactments of the Consolidated Railway Act of 1879 when applicable have been incorporated in the respondent's contract; and section 37 of that Act, which seems to be the parent of the present section 276, presupposes authority in the respondent company, in the absence of an order to the contrary under section 39, to proceed with the working of a portion only of the railway.
As to the second alternative point: the
Board has jurisdiction under section 276 to make orders authorizing the opening for traffic of part of a railway; this contemplates, as the sequence of such an order subject to the control of the
Board, the working of the particular part of the railway to which the order applies under no greater restrictions than those which would affect the operation of it if the branch were in operation as a whole.
CAN. RYs. v. C.P.R. Co.;
3-Jurisdiction-"Amount or value of the matter in controversy in the appeal"- Supreme Court Act, R.S.C. 1927, c. 35,
41, cl. (f).] For the purposes of appeal to the Supreme Court of Canada, "the amount or value of the matter in controversy in the appeal" depends, not on what is claimed in the action, but on what may be contested in the proposed appeal (Dreifus v. Royds, 64 Can. S.C.R.
Where a plaintiff seeks to appeal against the dismissal of his action by a provincial appellate court, after he had recovered at the trial a pecuniary judgment for an amount' (with allowable interest) less than $1,000, but from which he had not cross-appealed, the
Supreme Court of Canada has no juris- APPEAL-Concluded diction to grant special leave to appeal under clause (f) of the proviso to s. 41 of the Supreme Court Act, as the utmost relief which he can possibly obtain on the appeal is the restoration of the trial judgment, in which, by not appealing against it, he has acquiesced. (Monette v. Lefebvre, 16 Can. S.C.R. 387, and other cases, referred to.)
4- Habeas Corpus - Imprisonment under The Collection Act, R.S. N.S., 1923, c. 232-Fraud-Evidence........... 38 5-- Amount in controversy - Jurisdiction-Quashing of appeal ......... 6-Probabilities and inferences from evidence-Position of appellate court. 117 7-Leave to appeal to Supreme Court of Canada, under s. 174 of the Bankruptcy Act, refused............. 8-Appeal from order of Board of Public Utility Commissioners, Alta.-"Question of law".... ....................... See Puanc 9- Interference with decision of provincial court-Adjudication upon inscription in law........................ 10-Application to Supreme Court of Canada to receive further evidence under s. 3 of c. 9, of 1928 (Dom.) .......... 11-See
APPOINTMENT UNDER STATUTE ARBITRATION-Action by member of Wheat Pool against the Pool-Whether statutory arbitration provisions applied to matters in question-Stay of action-C. 7 of 1924, Alta. (the Special Act), s. 18; Co-operative Associations Act, R.S.A., 1922, c. 160, s. 20; Arbitration Act, R.S.A., 1922, c. 98, 8. 5.]
Plaintiff entered into a "marketing agreement" with the defendant "Pool" (Alberta Co-operative Wheat Producers, Ltd.).
It recited that plain. tiff desired to co-operate with other growers in producing and marketing wheat, that the Pool had been formed with power to act as the agent of its members as to marketing, that plaintiff desired to become a member and to enter, with other growers, into the agreement, that the agreement, although individual in expression, was one of a series between the Pool and the growers of wheat in Alberta and should constitute ARBITRATION-Continued one contract between the several growers signing it and the Pool. In the agreement plaintiff applied for a share of the capital stock of the Pool, which covenanted to allot same to him. Plaintiff agreed to deliver his wheat for certain years and the Pool agreed to market it.
Provision was made for retention by the
Pool, out of the returns for sale of the wheat, of its expenses, of 1% as a commercial reserve to be used for any of its purposes, and of an amount for investment in shares of an elevator company.
After expiration of the agreement plaintiff brought action, claiming that he had not been given a proper accounting, nor payment of his proper proportion of the proceeds of the wheat sold, that certain excess earnings had been inequitably distributed among the Pool members, and that shares in an elevator company purchased with his money had not been put in his name; and he claimed an accounting, payment of his proper share, transfer into his name of said elevator shares, and damages. The
Pool moved to stay proceedings on the ground that the matters in controversy must be decided by arbitration. The
Pool was incorporated under the Alberta
Co-operative Associations Act, which provided for appointment of trustees, whose duties should be to conduct and manage all the business of the association, and
(s. 20) that "every dispute between any member or members of an association
*
*
* and the trustees, treasurer or other officer thereof, shall be decided by arbitration in manner directed by the rules or by-laws of the association."
Special Act (1924, c. 7) the Pool's incorporation and existing by-laws were confirmed, and it was provided that the provisions of the Co-operative Associations
Act should (except as superseded) continue to apply to it. Under its by-laws the trustees had power to conduct and manage all its business, and to enter into and carry into effect the marketing agreement.
By-law 57 provided that "every dispute between any member
*
*
* and the trustees, treasurer or other officer"
of the Pool should be decided by arbitration (with a proviso that this provision should not apply as between the Pool and any member who failed to fulfil any covenant in the marketing agreement).- Held: (1) Existence of a "dispute" was shewn by the allegations and demands in the statement of claim.
Although it would have been better practice to allege, in the affidavits supporting the Pool's motion, that a dispute had existed prior to the commencement of the action, failure to do so was not fatal, provided the allegations in the statement of claim were consistent only with the existence of such a dispute. The issue of a writ to
ARBITRATION--Concluded enforce a right claimed is, of itself, some evidence of the existence of a dispute.- (2) As to plaintiff's contention that any dispute was with the Pcol, and not with its "trustees, treasurer or other officer" within the meaning of said arbitration provisions:-As it was the trustees' duty to carry into effect the provisions of the marketing agreement, a dispute as to the proper manner of carrying out those provisions was properly termed a dispute with the trustees. But, in any case, in view of the purposes of the Pool and the whole scheme and purpose shewn in the Pool legislation (Municipal Bldg. Soc. v. Kent, 9 App. Cas., 260, at pp. 284-5) it must be taken that the legislative intention was that the arbitration provisions should apply to all disputes arising under the marketing agreement, unless expressly excepted in the by-laws.
(This conclusion received support from the proviso of by-law 57.
It was unnecessary had it not been intended that the arbitration provisions should apply to the marketing agreement. By c. 7 of 1924, the by-laws including by-law 57 with its proviso, had received legislative sanction, the legislature thus impliedly declaring that the arbitration provision should apply to disputes under the agreement except those covered by the proviso).-Judgment of the Appellate Division, Alta., 1 W.W.R. 413, affirmed, except that it was varied so as to stay proceedings instead of dismissing the action. v. PRO- ASSESSMENT
Income tax-Income War Tax Act, 1917, c. 28 (Dom.)-Liability for income tax by company incorporated under Agricultural Associations Act, R.S.B.C. 1911, c. 6- Purpose and operations of company-- Manner and basis of distribution of moneys to shareholders-Co-operative Associations Act, B.C., 1920, c. 19.]
It was held, affirming judgment of Audette J., [1928] Ex. C.R. 215, that the appellant, incorporated under the Agricultural Associations Act, R.S.B.C. 1911, c. 6, and through which was marketed the milk and cream produced by its shareholders, was liable to pay income tax under the Dominion Income War Tax Act, 1917, upon the balance (less certain allowances) shown by its financial report for the year 1923 in respect of that year's operations and distributed among its shareholders as dividends or interest on paid-up capital. PRODUCERs' ASSN. REVENUE 435 2 - Municipal income tax-Assessment made in one year adopted as assessment for following year-Removal of person from municipality-Assessment Act, R.S.O. 1914, -Continued c. s. 57, a. (2) (as enacted by 12-13
Geo. V, c. s. 95 (3) (as enacted by 7
Geo. V, c. 45, s. 9)-Consolidated Municipal Act, 1922, c. 72, as. 249 (1), 297 (1).]
Plaintiff removed from the city of Toronto to the township of York on December 14, 1923.
He paid an income tax to the City of Toronto in 1923 and to the
Township of York in 1924.
An assessment roll for the City of Toronto was repared and settled in 1923, pursuant to by-law under s. 57 of the Assessment Act,
R.S.O. 1914, c. 195, and plaintiff, then resident in Toronto, was entered on this roll for income.
This assessment of 1923 was, pursuant to subs. 5 of said s. 57, adopted by the city council of 1924, by by-law passed February 28, 1924, and the City levied on plaintiff an income tax in 1924, which he paid under protest.
He now sought repayment.- Held (reversing judgment of the Appellate Division,
Ont., 63 Ont. L.R. 397, which, by equal division, sustained the judgment
Widdifield, Co. C. J., dismissing the action), that plaintiff should succeed.
The income assessed in 1924 was the income for 1924 (City of Ottawa v. Egan
[1923] S.C.R. 304) notwithstanding 12-13
Geo. V, c. 78, s. 11, changing subs. 2 of s.
11 of said Assessment Act.
That subsection, as so changed, merely made the amount of the previous year's income conclusive as to the amount of income to be assessed in the current year, instead of
(as formerly) a mere basis for estimating the amount for the current year.
income to be assessed was still the income for the current year. Therefore, under its by-law of February 28, 1924, the city council was assessing and levying on plaintiff's income of 1924; and in doing so was attempting to exercise jurisdiction outside the municipality, contrary to s. 249 of the Consolidated Municipal Act, 1922, was going beyond the jurisdiction given it by s. 297 of said Act to "levy on the whole rateable property within the municipality," and was attempting to assess plaintiff in respect of income in a mumcipality in which he did not reside, contrary to s. 12 of said Assessment Act.
Subs. 3 of s. 95 of said Assessment Act, as enacted by 7 Geo. V, c. 45, s. 9, did not give power to the City to collect from plaintiff a tax on his -income of 1924;
that subsection only applies to rates properly assessable, and not to rates levied on an income not assessable at all.
The fact that the assessment roll of 1923 was finally revised and settled without an appeal by plaintiff, then resident in
Toronto, did not make the matter res judicata (Hagereville v. Hambleton, 61
Ont. L.R. 327, distinguished).
Crrr ToRONTO..............
ASSESSMENT AND TAXATION 3-Asessability of gantry crane - Assessment Act, Ont., R.S.O. 1927, c. 238, ss. 1 (h), 4 (19)-"Real Property"- Exemption of "machinery used for manufacturing"-Exception from exemption, of "machinery used for the production or supply of motive power."] The judgment of the Appellate Division, Ont., 63 Ont. L.R. 410, holding that the gantry crane on the respondent's premises was not assessable or liable to taxation under the Ontario Assessment Act, R.S.O. 1927, c. 238, was affirmed, it being held that the subject of assessment clearly fell within subs. 19 of s. 4 of said Act, and was not taken out by the exception; the movable part of the crane, if it should not be regarded as a chattel and not within s. 1 (h) was "machinery used for manufacturing?' not
"machinery used for the production or supply of motive power." TowN 4- Land Settlement and Development Act, R.S.B.C., 1924, c. 128-Proceedings of Land Settlement Board under 46-55- Penalty tax (s. 53)-Direct or indirect taxation-Legislation attacked as ultra vires-Board's capacity to be sued.... 5 - Statutes - Priorities of taxes, rates or assessments imposed by federal and provincial laws- The Special War Revenue Act (1915), 5 Geo. V, c. 8, as amended by 12-13 Geo. V, c. 47, s. 17-Bankruptcy Act, 9-10 Geo. V, c. 36, a. 51
(6) -Interpretation R.S.C., 1906, c. 1, s. 16-R.S.Q. (1909), s. 1357-Art. 1985 C.C............... ATTORNEY GENERAL - Status of Attorney General of Quebec to intervene in the interests of undefined beneficiaries of charitable disposition............... AUTOMOBILE
S. 64 (1) of the Bankruptcy Act, R.S.C., 1927, c. 11, provides that a transfer made by an insolvent person "with a view of giving" a preference, shall, if the insolvent makes an authorized assignment within three months thereafter, be deemed fraudulent and void as against the trustee in bank- BANKRUPTCY-Concluded ruptcy; and s. 64 (2) provides that if a transfer by the insolvent has the effect of giving a preference "it shall be presumed prima facie to have been made"
with such view.
S. 3 (2) of the Fraudulent Preferences Act, R.S.B.C., 1924, c. 97, provides (subject as therein stated) that a transfer made by a person in insolvent circumstances which has the effect of giving a preference shall "if the debtor, within 60 days after the transaction, makes an assignment for the benefit of his creditors, be utterly void" as against the assignee, etc.-Held: There is a conflict between said enactments, and the Dominion enactment prevails; so, in the case of a transfer by an insolvent person having the effect of giving a preference, where the fraudulent intent
(prima facie presumed under s. 64 (2) of the Bankruptcy Act) has been rebutted, the transfer, though made within 60 days before the assignment in bankruptcy, cannot be attacked.-Att. Gen.
of Ontario v. Att. Gen. of Canada, [1894]
A.C. 189, at p. 200; La Compagnie Hydraulique de St. FranCois v. Continental Heat &
Light Co., [1909] A.C. 194, at p. 198;
Royal Bank of Canada v. Larue, [1928]
A.C. 187, referred to.-Judgment of the
Court of Appeal of British Columbia,
[1929] 1 W.W.R. 557, to above effect, held to be clearly right, and leave to appeal therefrom (applied for under s.
174 of the Bankruptcy Act)
refused.
Assov. LTD.......
2--Constitutional law - Statutes - Priorities of taxes, rates or assessments imposed by federal and provincial laws- The Special War Revenue Act (1915), 5
1906, 1, s. 16-R.S.Q. (1909), e. 1357
- Art. 1985 C.C...................
3-Proceedings without leave of bankruptcy court-Proceedings not "against the property or person of the debtor"- Bankruptcy Act, s. 24...............
BANKS AND BANKING-Defalcations by employee of company-Drafts, payable to himself, obtained by employee from the bank in exchange for cheques signed by company-Liability of the bank-Ostensible authority - "Holding out" - Negligence-Action against bank by insurer of company by guarantee policy.] The appellant company sued the respondent bank for the recovery of the sum of $7,565.61
(85,000 being the amount of a guarantee
BANKS AND BANKING-Continued policy and $2,565.61 for legal costs), which the appellant was condemned to pay to the insured, Willis, Faber & Co., m respect of the defalcations of one Rogers, chief accountant of the latter company. The frauds committed by Rogers began in September, 1919, and were not discovered until the 10th of January, 1922, and during that period Rogers procured from the respondent bank drafts on New York, payable to his own order, in exchange for cheques payable to the bank drawn by himself and another of the properly authorized signing officers Willis,
Faber amounts of these drafts, plus exchange, were charged by the bank against the latter's account.
The appellant company contended that the respondent was not entitled to do so, the appellant exercising in this action the rights of the insured, to which it was subrogated by the latter. In 1912, a resolution of the directors of the insured company, a copy of which was in possession of the respondent bank, directed that any two of four officers therein designated, Rogers being one of them, were "authorized to make, draw, sign, accept or endorse, bills of exchange, promissory notes, cheques orders for payment or other commereal paper on behalf of the company." respondent bank submitted that what Rogers did was within his ostensible authority; and it also argued that the insured was negligent in not sooner discovering Rogers' frauds and through this negligence the officers of the bank misled. The judgments of the trial judge and the Court of King's Bench were in favour of the respondent bank.-Held, Rinfret J. dissenting, that, upon the evidence, the respondent bank was not entitled to charge against the insured company's account the drafts obtained from it by Rogers. . The respondent's contentions cannot be upheld in view of the evidence as to the actual course of business followed in the bank and of the terms of the resolution of 1912; and the doctrine of "holding out" has no application in this case: the bank in acting on Rogers' directions was not acting under any belief in the existence of Rogers' assumed genera authority and was not misled by any such belief or by any act of negligence of the insured company.-Per Rinfret J. (dissenting).- There is a well established rule that the question "whether or not the evidence establishes that a person acts without negligence is a question of fact." ([1920] A.C. 683, at p. 688); and, in this case, both the trial judge and the appellate court unanimously found that the bank acted without negligence. The bank followed towards the insured company the procedure the latter had established BANKS AND BANKING-Concluded for many years, and no positive acts of negligence were proven.
Moreover, the cheques charged against the insured company's account were in accordance with the resolution of 1912 and properly charged against that account; the foreign drafts were not charged to the insured, but they were really sold and delivered to
Rogers for the insured in consideration of the respective cheques, and the respondent bank cannot be held responsible for the subsequent misappropriation of those drafts by Rogers.
& CO. v. BANK
MONTREAL.......................
BARRISTERS AND SOLICITORS
BILLS OF EXCHANGE
BULK SALES-Stock in trade-Sale in bulk- Non-compliance with Bulk Sales
Act-Assignment of the vendor-Resale by the transferee to a bona fide purchaser- Right of the trustee in bankruptcy to compel the transferee to account-Bulk
Sales Act,
R.S. N.S.
(1923), c. 202- Assignments Act, R.S.N.S.
(1923),
CASES
Abbott v. Fraser (20 L.C.J. 197) disc.. 234
Aberdeen Ry. Co. v. Blaikie Bros. (1
MacQueen, 461) ref...............
Admiralty Commissioners v. SS. Volute
([1922] 1 A.C. 129) ref .............
"American"
(The) and The "Syria"
(L.R. 6 P.C. 127) ref ..............
Armand v. Carr ([1926] S.C.R. 575)
Atty. Gen. for Canada v. Atty. Gen. for
Alberta ([1916] 1 A.C. 588) disc. and expl.......
Atty. Gen. of Manitoba v. Atty. Gen. of
Canada ([1925] A.C. 561) dist ......
Atty. Gen. of Ontario v. Atty. Gen. of
Canada A.C. ref .......
Atty. Gen. for Ontario v. Hamilton Street
Ry. Co. ([1903] A.C. 524) ref .......
Atty. Gen. for Ontario v. Reciprocal Insurers ([1924]
A.C.
328) disc. and expl............................. 409 Batt (John) & Co. v. Dunnett ([1899] A.C. 428) dist.................... Board of Commerce case ([1922] 1 A.C. 191) disc. and expl................. Brassard v. Smith ([1925] A.C. 371) ref. See DTIES. Brosseau v. Dore (Q.R. 13 K.B. 538; 35 Can. S.C.R. 307) disc............. Broughton v. Broughton (5 De G. M. & G., 160) ref......................
Cinq-Mars v. Atkinson (Q.R. 24 K.B. 534; Q.R. 46 S.C. 226) disc............. Clarke's Design, In re ([1896] 2 Ch. 38) ...........
...
Commissioners of Taxation v. English, Scottish and Australian Bank Ltd. ([19201 A.C. 683) ref ..................
Compagnie Hydraulique de St. Francois v. Continental Heat & Light Co. ([1909] A.C. 194) ref...................... Craig v. M. & L. Samuel, Benjamin & Co. (24 Can. S.C.R. 278) dist.......... Desrivibres v. Richardson (Stuart K.B. 218) disc..... .......
....... Devonshire (The) ([1912] P. 21; [1912] A.C. 634) ref...................... Dominion Trust Co. v. New York Life Ins. Co. ([1919] A.C. 254) ref. & dist. 117 Dover, Ltd. v. Nfirnberger Celluloidwaren Fabrik Gebrigder Wolff ([1919] 2 Ch. 25) ..
.................... Dreifus v. Royds (64 Can. S.C.R. 346) .
,;P E ..
ref......See 3.
Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge & Co. Ltd. ([1915] A.C. 847) ref. 288 Edwards v. Dennis (30 Ch. D. 454) dist. ...... .......... ....... See TRADE-AAR.
Farmer v. Robinson (2 Camp., 339n) ref.
.................................
Forsyth v. Forsyth (13 N.S. Rep. 380)
Freligh v. Seymour (5 L.C.R. 492) disc..
..
.....
..........
Graham v. Public Wks. Commr8. ([19011
2 K.B. 781) ref....................
See CoNsTrrrIONAL LAw
Grant v. Scott (59 Can. S.C.R. 227) ref.
See PnomissoR
NOTE.
Great Western Ry. Co. v. Owners of SS.
"Mostyn" ([1928] A.C. 57) applied...
Hagersville v. Hambleton (61 Ont. L.R.
Halifax (City of) v. Fairbanks ([1928]
A.C. 117) applied..................
Hastings v. Macnaughton (Q.R. 51 S.C.
174) disc.........................
Inche Noriah Binte Mohamed Tahir v.
Shaik Allie Bin Omar Bin Abdullah
Bahashuan (45 T.L.R. 1) ref .......
Johnson v. Martin (19 Ont. A.R. 593)
Jones (R. E.) Ltd. v. Waring & Gillow
Ltd. A.C. 670) ref. and explained
See PRomissoiy
Juggomohun Ghose v. Manickchund (7
Moo. Ind. App. 263) ref ...........
Kearney v. Oakes (18 Can. S.C.R. 148)
King (The) v. Canadian Northern Ry.
Co. A.C. 714) applied ......
Lands Allotment Co., In re ([1894] 1 Ch.
616) dist.........................
Latulippe v. La fabrique de l'dglise m~thodiste de Mhgantic (Q.R. 43 S.C. 380)
Laurie v. Dudin (65 L.J.K.B. 191) ref.
.................................
See CoNrAcT
Lingle v. Knox ([1925] S.C.R. 659) disc. .................................
Liquor Prohibition case ([1896] A.C. 348) Lyman v. The Royal Trust (Q.R. 50 S.C. 480) disc......................... 234 McCarthy v. The King (62 Can. S.C.R. 40) disc. and ex 1. ..............
McGibbon v. Abbott (8 L.N. 267) disc. 234 WILL 1.
Molsons Bank v. Lyonnais (3 L.N. 82; 26 L.C.J. 278; 10 Can. S.C.R. 535) disc.. See WILL
Monette v. Lefebvre (16 Can. S.C.R. 387) See APPEAL 3.
Morgan v.
Avenue
Realty Company (46 Can. S.C.R. 589) dist .......... Morton v. Brighouse ([1927] S.C.R. 118) Municipal Bldg. Soc. v. Kent (9 App. Munn & Shea Limited v. Hogue Limitee ([1928 S.C.R. 398) disc. and dist... 587 Nadan v. The King ([1926] A.C. 482) Nireaha Tamaki v. Baker ([1901] A.C. North-West Transportation Co. v. Beatty Ottawa (City of) v. Egan ([1923] S.C.R. 304) ref.......................... Quickstep (The) (15 P.D. 196) ref.... 359 R. v. Canadian Northern Ry. Co. ([1923] A.C. 714) applied................ R. v. Forseille (35 Can. Crim. Cas. R. v. Nat. Bell Liquors, Ltd. ([1922] 2 R. v. Shea (14 Can. Cr. Cas. 319) commented on or overruled ............
See CRIMINAL LAW 1.
R. E. Jones Ltd. v. Waring & Gillow Ltd.
([1926] A.C. 670) ref. and explained.. 288
See NOTE.
Read & Greswell's Design, In re (42
Ch.
Reynolds v. C.P.R. ([1927] S.C.R. 505)
River Wear Commissioners v. Adamson
(2 App. Cas. 743) ref ..............
Robinson v. Mann (31 Can. S.C.R. 484)
NOTE.
Rosenbaum v. Belson ([1900] 2 Ch. 267)
Ross v. Ross (25 Can. S.C.R. 307)
explained..................... 234
Royal Bank of Canada v. Larue ([1928]
A.C. 187) ref......................
Royal Institution for the Advancement of
Learning v. Desrivieres (Stuart K.B.
224) disc..........................
Rylands v. Fletcher (L.R. 3 H.L. 330)
dist..............................
Scheuerman v. Scheuerman (52 S.C.R.
625) dist.........................
See PARENT
Smith v. Kay (7 H.L.C. 750) ref ....
Steele v. McKinley (5 A.C. 754) ref. . 288
Stevens v. Coleman (Q.R. 16 K.B. 235)
disc..............................
Sturgis v. Boyer (24 How. 110) ref ...
Tate v. Williamson (L.R. 2 Ch. App. 55)
Toronto Electric Commissioners v. Snider
([1925] A.C. 396) disc. and explained 409
Turner v. Collins (L.R. 7 Ch. App. 329)
See CHILD.
"Utopia" (The) ([1893] A.C. 492) ref. 359
CASES-Concluded
Walker, Hunter & Co. v. Falkirk Iron Co. (4 R.P.C. 390) dist............... See INDUSTRIAL Warwick v. Slade (3 Camp. 127) ref. . 625 Weidman v. Shragge (46 Can. S.C.R. 1) Xenos v. Wickham (L.R. 2 H.L. 296) CHARITABLE BEQUEST
CHURCH CONGREGATIONS- United Church of Canada-Congregational meetings-Authority to call-Session-Whether meeting regularly called-Validity of proceedings-The United Church Of Canada Act, (D) 14-15 Geo. V, c. 100; (N.S.) (1924) c. 122.]
The St. Luke's Presbyterian Congregation of Salt Springs in the County of Pictou, was a congregation connection with the Presbyterian Church in Canada. Under the provisions of "The United Church of Canada Act" (Can.) it voted on December 22, 1924, not to concur in union. minister, Rev. S. C. Walls, who was in the minority, resigned.
On May 5, 1925, the Presbytery of Pictou (the appellant congregation being within its bounds), appointed one Rev. Robert Johnston of New Glasgow, N.S., interim (pro tempore) moderator of its session, and until after July 27, 1925, no minister was inducted to the charge. In that month, requisitions were signed by a large number of the members of the congregation asking the elders to convene a congregational meeting for the purpose of taking a second vote under the provisions of "The United Church of Canada Act" (N.S.). Some of the elders called a meeting for the 27th of July.
One hundred of those who attended voted to become part of the United Church; none opposing. Members opposed to union then brought this action for a declaration inter alia that the meeting and proceedings so taken were null and void; that the congregation is a Presbyterian congregation and not a congregation of or in connection with the United Church of Canada.-Held, Duff J. dissenting, that, under the circumstances of tis case and in view of the enactments of the federal and provincial Acts respecting the United Church of Canada the vote given at the meeting of the 27th of July, 1925, was ineffective to carry either the congregation or its property into the Union.-Per Newcombe, Rinfret and Smith JJ.-The power of non-concurrence which the appellant congregation duly exercised under the Dominion Act, having beep ES.C.R. -Continued invoked with affirmative consequences was exhausted and could not be reviewed by the congregation.
Moreover, a meeting of non-concurrence is held under the authority of "The United Church of
Canada Act," and should be held before the union comes into force.
It is, for the purposes of this case, a meeting of a congregation of the Presbyterian Church in Canada, and, in the absence of any express statutory provision, the regulations of that church applicable to holding a congregational meeting in like circumstances were apt to regulate the meeting for which the statute provides.
Rule 19 of the Rules and Forms of Procedure of the Presbyterian
Church in Canada requires that meetings of the congregation shall be called by the authority of the
Session, which may act of its own motion or on requisition in writing of the Deacons' Court or Board of Managers, or of a number of persons in full communion, or by mandate of a superior court, and rule
50 reiterates that it is the duty of the
Session "to call congregational meetings."
These rules were not followed as to the meeting of 27th July, and there was no antecedent meeting of the Session but, moreover, by s. 10 (d), the United
Church of Canada Act specially provides that a meeting of the congregation for the purposes of expressing non-concurrence may be called by authority of the
Session of its own motion, and shall be called by the Session on .requisition to it in writing of twenty-five members entitled to vote, in congregations, such as this, having over 100, and not more than 500 members.
There was no compliance with these provisions, and in consequence the meeting of 27th July was not regularly called or held, and consequently, if for no other reason, it failed of its purpose.-Per Anglin C.J.C.
and Smith J.-The meeting of the 27th of
July, 1925, was professedly called under the last sentence of clause (a) of s. 8 of the Nova Scotia Act. There is no corresponding provision in the Dominion
Act. The resolution for concurrence passed at that meeting could not bring about the entry of the congregation into the incorporated body known as "The
United Church of Canada," since that body is a Dominion corporation. While the property of the congregation might possibly be affected, the congregation did not thereby become part of The
United Church of Canada.
Under the constating Act of that body corporate
(s. 10) the congregation of Sa tsprings had definitely, and apparently irrevocably, voted itself out of the Union on the 22nd of December, 1924.
But assuming that, by virtue of the Nova Scotia
Act of 1925, the vote for non-concurrence
CHURCH CONGREGATIONS taken in December,
1924, should be deemed for all purposes of the Nova Scotia Act of 1924 to be a vote taken under and in conformity with the earlier provisions of s. 8 (a) of the latter Act, nevertheless the resolution voted on the 27th of July, 1925, being ineffective to bring the Saltsprings Congregation into the Union, its only avowed purpose, it could not operate indirectly to affect the F roperty held by the defendant trustees or such congregation. If it did, that property would thereafter be held by the trustees for a body legally non-existent, i.e., The Presbyterian Congregation of Saltsprings in connection or communion with the United Church of Canada. That the legislature contemplated intended any such anomalous result is inconceivable.
Moreover, the only decision at which the last sentence of clause (a) of s. 8 purports to authorize the meeting, for which it provides, to arrive is "to enter the Union and become part of the United Church."
The application of the Act "to the congregation and all the property thereof' is manifestly dependent on such
"decision" being effectively made. Inefficacious to cause the congregation to become part of the United Church, the resolution for concurrence could not bring about the application of the Nova Scotia Act either to the congregation or to its property.- Judgment of the Supreme Court of Nova Scotia en banc, (59 N.S. Rep. 272) aff., Duff J. dissenting.
ST. V. ...... CHURCH PROPERTY
IP
CIVIL CODE-Art. 376 (Immoveables) ................................. 2-Art.
412 (Ownership; possessor in good faith).....................
3- Art. 417 (Ownership; improvements made by possessor; rights of proprietor). 29 4-Arts. 510,
512, 532 (Servitudes; division walls)..................... 5- Art. 754 (Gifts).............. 6-Art.
776 (Gifts; form of gifts and of their acceptance) .. 19 7-Arts. 804, 806, 808 (Gifts inter vivos; registration)....................... See GwFr.
CIVIL CODE-Continued
&-Art.
831 (Will; capacity to give and receive 234
9-Art.
840 (Will; form of dispositions by will)...........................
10-Arts. 857, 858 (Probate and proof of wills)............................
11- Art. 869 (Will; legacies) ......
12-Arts. 916, 921 (Will; testamentary executors).........................
13- Art.
(Contracts; causes of nullity)........................... 313
14-Art. 992
(Contracts; causes of nullity; error).....................
15- Art. 993
(Contracts; causes of nullity; fraud).....................
Arts. 1053, 1056 (of offences and quasi-offences)..................
17-Art. 1065 (Obligations) ........
18-Arts. 1074, 1075 (of the damages resulting from the inexecution of obligations)........................
19-Art. 1203 (Proof)............
20-Art. 1507 (Obligations of seller;
warranty)........................ 390
See SALE 2.
21-Art. 1535 (Obligations of buyer) 390
22- Art. 1756 (Termination of mandate)
.................................
Art. 1985 (Privileged claims) . 557
24-Arts. 2013, 2013 e (Privileges upon immoveables)...................
25-Art. 2098 (Registration of real rights)............................
26--Arts. 2167, 2168 (Registration of real rights)........................
27-Arts. 2172, 2173, 2176 (Registration of real rights).................
CIVIL CODE-Concluded
28- Art. 2261
(2) (Prescription for actions for damages resulting from offences or quasi offences).................. Art. 2262 (2) (Prescription for action for bodily injuries) .......... 30-Art. 2468 (Insurance; nature and form of the contract) ................ 31-Arts. 2485, 2487, 2489 (Insurance; representation and concealment) ..... .I 32-Arts. 2490, 2491 (Insurance; warranties)........................... CODE OF CIVIL PROCEDURE-Art. 50 (Powers and jurisdiction of the Courts; Superior Court).................... 2- Art. 110 (Pleading)........... 3-Arts. 211,
(Contestation of action; defences)................... 4-Art.
217 (Incidental proceedings; cross-demands) .................... 5- Art. 469 (Trial by jury; proceedings before the jury).................
6-Art.
495 (Trial by jury; appeals from judgments)......... .. ........... 7- Art. 1177 (Petitions in revocation of judgment)......................... 8-Art.
1248 (Appeals to the Court of King's Bench)................... 598 COLLISION OF SHIPS
COMBINE-Restraint of trade-Injury to the public-Business interests-Sections 496, 497, 498 Cr. C................ 2-Validity of the Combines Investigation Act, R.S.C., 1927, c. 26, and of s. 498, Cr. Code............................ 409 3-See
COMMON WALL
Claim against company for indebtedness-Accounts-Reference- Attack on Referee's report-Claims for salary and bonus as manager-Compound interest-Appeal from judgment of Appel- COMPANY-Concluded late Division, Ont., 62 Ont. L.R. 620, dismissed. AssocurroN
Iro. WOOLLAT................
2-Director of company acting as its solicitor-Claim for payment for legal services-Whether a "trustee" within s. 56 of the Trustee Act, R.S. N.S., 1923, c. 212.
..................
See SOLICITOR.
3-Banks and banking-Defalcations by employee of company-Drafts, payable to himself, obtained by employee from the bank in exchange for cheques signed by company
-Liability of the bank-Ostensible authority-" Holding out"- Negligence-Action against bank by insurer of company by guarantee policy...................
COMPOUND INTEREST
See COMPANY 1.
Settlement and Development Act,
R.S.B.C.,
1924, c. 128--Proceedings of
British Columbia Land Settlement and
Development Act, took proceedings under ss. 46-55 of the Act (R.S.B.C., 1924, c.
128) with respect to lands of which plaintiff was the registered owner, and penalty taxes provided for by s. 53 were imposed.
Plaintiff sued defendant, attacking said legislation as ultra vires as providing for indirect taxation, and claimed damages, an injunction, etc.- Held that, as the notice which defendant had given under s. 53 contained no reference to appraisal of "interests" in land or of any interest separate from that of the owner, and said nothing as to persons claiming any estate or interest in the land, or any charge or encumbrance thereon, and as no taxes, charges, etc., other than those imposed upon the land itself, were notified to the owner, and there was nothing in the notice to indicate or suggest any intention or project to impose a tax upon any person, other than the owner, having any estate or interest in the land, the taxation effected could not, on giving the proper interpretation and effect to the provisions of ss. 51 and 53 of the Act, extend beyond the land and the owner thereof; and that the taxation effected upon the land and the owner was direct, and intra vires of the legislature.-City of Halifax v. Fairbanks, [1928] A.C. 117, at pp. 124-126, cited and applied.-Att. Gen. of Manitoba v. Att. Gen. of Canada [1925] A.C. 561, distinguished, having regard to the nature of the statutory provisions in
I )EX question. In the present case, while the statute provides imperatively for the appraisal of the land, and for the taxation of the land and of the owner, it is left to the Board's discretion (except where the fee is still in the Crown) to appraise interests other than that of the owner; and no taxation is intended, or can be effected, of any estate or interest which is not appraised and described in the notice issued by the Board, by means of which notice the taxation is effected the legislature itself has, therefore, piainly provided for the "partition"
which was lacking in the Manitoba case, by confiding a discretion to the Board to tax or not to tax persons, other than the owner, claiming any estate or interest in the lands or any charge or encumbrance thereon. In the present case the defendant Board did not include persons interested other than the owner, and there was no evidence that it had, in any case, ever availed itself of the power; it was unnecessary, therefore, to consider what would be the nature of a tax imposed on other persons. Even assuming that such a tax would be indirect, a good tax is not to be held bad merely because the legislature had mistaken its powers so far as in terms to confer upon the Board an ultra vires power which the Board did not exercise.-Ss. 51 (1) and 53 of the Act discussed at length, with regard to their interpretation and effect.-Since persons claiming any charge upon the land are specially provided for in subs. 2 of s. 53 (the provision imposing the tax), that special provision may be regarded as a "requirement of the context" which, in relation to that subsection, excepts the definition of "owner" in the Land Registry Act (R.S.B.C., 1924, c. 127, s. 2) from the application to that subsection provided for in subs. 6 (a) of said s. 53.- Held further (per Mignault, Newcombe and Rinfret JJ.; Anglin C.J.C. and Lamont J. not passing upon the question) that the defendant Board had capacity to be sued in respect of the claim for an injunction with regard to the alleged ultra vires proceedings.
By reference to its powers and duties provided by the Act and the business in which it is directed or empowered to engage, there is ample evidence of the convenience and necessity of a power to sue and be sued; such a power may be inferred or implied like any other power which is necessary or incidental to the due execution of the powers expressed.
(Graham v. Public Wks. Commrs., [1901] 2 K.B. 781, at p. 791; Interpretation Act, R.S.B.C., 1924, c. 1, s. 23 (13), cited).
While it is true that the revenues of the Crown cannot be reached by judicial process to satisfy a demand against an officer or servant of the Crown in any capacity, whether incorporated or not, it is common practice, founded upon general principle, that the court will interfere to restrain ultra vires or illegal acts by a statutory body, and, when it is charged, as in this case, that the proceedings in question, though authorized by the letter of the statute, are nevertheless incompetent, by reason of defect in the enacting authority of the legislature, the court has jurisdiction so to declare, and to restrain the ultra vires proceedings, although directed by the statute and in strict conformity with the legislative text (Nireaha Tamaki v.
Baker, A.C., 561, at pp. 575-6, cited).-Judgment of the British Columbia Court of Appeal (39 B.C. Rep.
523) affirmed in the result.
Buly
- Navigable river - Public right of navigation-Right of the
Dominion as to the use of the bed of a river and as to expropriation of provincial property-Relative rights of the Dominion and provinces over water-power created by works done by the Dominion-Boundary waters- Interprovincial and provincial rivers - B.N.A. Act, ss. 91, 92, 102 to 126.]
questions referred to this court by the
Governor
General
Council answered as follows:-Question 1 (a).
Where the bed of a navigable river is vested in the Crown in the right of the province, is the title subordinate to the ublic right of navigation?-Question 1
). If not, has the Dominion the legislative power to declare that such title is subordinate to such right?-Answer: The questions as framed postulate the existence of a public right of navigation in the rivers to which they refer, as well as their navigability.-The title to the bed of the river is subject to that public right, except in so far as, at the date of the
Union, the Crown possessed by law or has since acquired, under Dominion legislation, a superior right to use or to grant the use of the waters of the river for other purposes, such for example, as mining, irrigation or industry.-Question
2. Where the bed of a navigable river is vested in the Crown in the right the province, has the Dominion power, for navigation purposes, to use or occupy part of such bed or to divert, diminish, or change the flow over such bed (a) without the consent of the province; (b) without compensation?--Question
3. Has the
Parliament of Canada the power, by appropriate legislative enactment, authorize the Dominion Government to expropriate the lands of the Crown in the right of the province for the purposes of navigation with provision or without provision for compensation?-Answer:
These questions cannot be answered categorically either in the affirmative or
EX in the negative.-The conditions controlling the exercise of Dominion legislative powers for purposes embraced within the comprehensive phrase, "navigation purposes," depend in part upon the nature of the "purpose," in part upon the nature of the means proposed for accomplishing it, and in part upon the character of the particular power called into play. Reference is respectfully made to the observations in the accompanying reasons indicating the governing principles with as much definiteness as is safe or practicable.-Question section 108 of the British North America Act, 1867, and the first item of the Third Schedule thereto, the following public works and property of each province, amongst others, shall be the property of Canada, namely "Canals with lands and water-power connected therewith." Has the proyince any proprietary interest in or beneficial ownership of or legislative control over the water-power which, though connected with the said canals, is created or made available by reason of extensions, enlargements replacements of said canals made by the Dominion since Confederation and which is not required from time to time for the purpose of navigation?-Question 5. Where the bed of a navigable river is vested in the Crown in the right of the province, has the province any proprietary interest in or beneficial ownership of or legislative control over the water-power created or made available by works for the improvement of navigation constructed thereupon in whole or in part by or under the authority of the Dominion since Confederation which is not required from time to time for the purposes of navigation?-Answer: Whatever subjects are comprehended under the phrase "Water-Power" in the 1st item of the third schedule, by section 106 passed to the Dominion, there was left to the provinces neither proprietary interest in, nor beneficial ownership of such subjects; and under section 91 (1) legislative control over them is exclusively committed to the Dominion.-As to water-powers (and these of course, are not comprised within that item) "created or made available by reason of extensions, enlargements or replacements made by the Dominion since Confederation" or "by works for the improvement of navigation constructed
*
*
* in whole or in part since Confederation," it is impossible to ascertain the respective powers or rights of the Dominion and the provinces in relation thereto, in the absence of a more precise statement as to the character of the works, as to the legislative authority under which the works were executed, and as to the circumstances pertinent to the question whether or not the conditions of such authority were duly observed.--Question
6 (a). Has the Dominion exclusive proprietary interest in or beneficial ownership of or legislative control over waterpowers created or made available by works authorized by Parliament to be erected in any boundary waters for the purpose of carrying out a treaty between
His Majesty and a foreign country providing for the erection of joint works for (1) the improvement of navigation in such waters, or (2) for the development of power, or (3) for both?-The expression
"boundary waters" in this question means the waters defined by the preliminary article of the Treaty dated 11th January,
1909, between His Britannic Majesty and the United States of America.- Question 6 (b).
If the Dominion has not the exclusive proprietary interest in or beneficial ownership of or legislative control over such water-powers, has the province the exclusive proprietary interest in or beneficial ownership of or legislative control over such
Answer: The nature and extent of the respective powers, rights and interests of the Dominion and the provinces in, and in respect of such water-powers, would depend upon a variety of facts, including, inter alia, the terms of the
Treaty, and the respective rights of the
Dominion and the provinces in, and in relation to, the waters affected. In the absence of information as to such facts, it is impracticable to give an intelligible answer to the questions propounded.- Question
7. Has the
Parliament
Canada legislative power to authorize the construction and operation by the
Dominion Government of works wholly for power purposes and the acquisition by purchase or expropriation of the lands and property required for the purposes of such works including lands of the
Crown in the right of a province (a) in interprovincial rivers; and (b) in provincial rivers?-"Interprovincial rivers"
in this question means rivers flowing along or across the boundaries between provinces.-Answer: As to both "provincial rivers" and "interprovincial rivers,"
Parliament has jurisdiction in respect of such works, if they fall within the ambit of see. 92 (10a). With reference to the expropriation of provincial Crown lands
"for the purposes of such works," the answer to the question would, to some extent, depend upon the particular purpose for which such lands were required.
In answering this question, sec. 92 (10c)
is not taken into account.
Reference is respectfully made to what has been said upon that subject in the accompanying reasons.-Question 8. May a province notwithstanding the construction by the
Dominion for the purposes of navigation of works in a river the bed of which is within such province, control, regulate and use the waters in such river so long as such control, regulation and use does not interfere with navigation? In the case of a river flowing between two provinces may such provinces jointly control, regulate and use the water in the same manner?-Question 9. Has a province the right to control or use the waters in provincial rivers and to develop or authorize the development of waterpowers within the province provided that in so doing navigation is not prejudiced and that the province complies with Dominion requirements as to navigation?-Answer:
These two questions mutually overlap, and it is convenient to deal with them together.
If there is no valid conflicting legislation by the Dominion under an oveiriding powerthe power for example bestowed upon the Dominion by sec. 92 (10a)-the several provinces have the rights which are the subject of interrogatory number 9. to the first branch of the eighth question.
The authority of the provinces to "control, regulate and use" such waters, in the circumstances mentioned, is subject to the condition that, in the exercise thereof, the provinces do not interfere in matters the control of which is reserved exclusively for the Dominion, and that all valid enactments of the Dominion, in relation to the navigation works, or in relation to navigable waters, be duly observed.-This condition is not necessarily identical with the condition expressed in the question by the words "so long as such control, regulation and use does not interfere with navigation." The question therefore, in the form in which it is put, cannot be answered in the affirmative; and, as the exercise of legislative jurisdiction, in the comprehensive terms of the question, might encroach upon the exclusive jurisdiction of the Dominion, the proper answer seems to be in the negative.-As to the second branch, considering the variety of meanings which might attach to the phrase "jointly control, regulate and use," no precise or useful answer is possible.- The answers to these questions, conformably to the views adverted to above, also proceed upon the assumption that the questions have no reference to any jurisdiction which might be acquired by the procedure laid down in sec. 92 (10).- Question 10. (a) If question 4 is answered in the affirmative, what is the nature or extent of such interest or ownership or control?-(b) If question 5 is answered in the affirmative, what is the nature or extent of such interest or ownership or control?-(c) If the answers to both questions 6 (a) and 6 (b) are in the negative, what are the respective rights and interests of the Dominion and the provinces in relation to such water-powers?- Answer: In view of what has already been stated in response to the 4th, 5th and
6th interrogatories, no answer to this question is called for.
3-Validity of the Combines Investigation
Act, R.S.C., 1927, c. 26, and of s. 498, Cr.
Code-Dominion jurisdiction as to criminal law, trade and commerce, etc.-Provincial jurisdiction as to property and civil rights, matters of merely local or private nature in the province, imposition of punishment, etc.-B.N.A. Act, 8s. 91, 92.]
The Combines Investigation Act, R.S.C.,
1927, c. 26 (providing for investigation of alleged combines, creating and punishing the offence of assisting in the formation or operation of a combine, providing for reduction or abolition of customs duties which facilitate disadvantage to the public from an existing combine, and providing for revocation of patents in certain cases, etc.) and s. 498 of the Criminal
Code (creating and punishing offences for combining, etc., to limit facilities for transportation, production, etc., restrain commerce, lessen manufacture or competition, etc.) are intra vires the Parliament of Canada.-The B. N.A.
Act, s. 91
(especially heads 27, 2) and s. 92 (especially heads 13, 15, 16) discussed as to their bearing and effect on the question.- Atty. Gen. for Ontario v. Hamilton Street
Ry. Co., [1903] A.C. 524; Liquor Prohibition case, [1896] A.C. 348; Rex v.
Nat Bell Liquors Ltd., [1922] 2 A.C. 128;
Nadan v. The King, A.C. 482; and other cases, referred to and considered.
Atty. Gen. for Canada v. Atty. Gen. for
Alberta, [1916] 1 A.C. 588; Board of Commerce case, 1 A.C., 191; Atty. Gen.
for Ontario v. Reciprocal Insurers, [1924]
A.C. 328; Toronto Electric Commissioners v. Snider, [1925] A.C. 396, discussed and explained, and legislation therein dealt with distinguished.
VALIDITY COMBINES
8.498
CODE........................
4 - Priorities of taxes rates or assessments imposed by federal and provincial laws - Bankruptcy-The Special War Revenue Act
(1915), 5Geo. V, c. 8, as amended by 12-13
Geo. V, c. 47, s. 17-Bankruptcy Act,
9-10 Geo. V, c. 36, s. 51 (6)-Interpretation
Act, R.S.C., 1906, c. 1, s. 16-R.S.Q.
(1909), s. 1357-Art. 1985 C.C.]
Section
1357, R.S.Q. (1909), states that "all sums due to the Crown in virtue of this section
(the section dealing with taxes on commercial corporations) shall constitute a privileged debt ranking immediately after law costs."
The Dominion Bankruptcy
Act, s. 51 (6), enacts that "nothing in this section shall interfere with the collection of any taxes, rates or assessments now or at any time hereafter payable by or levied or imposed upon the debtor or upon any property of the debtor under any law of the Dominion, or of the province wherein such property is situate, or in which the debtor resides, nor prejudice or affect any lien or charge in respect of such property created by any such laws." In 1922, by an amendment to the Special War Revenue Act, 1915, being s. 17 of c. 47 of 12-13 Geo. V (D), the Dominion Parliament declared that "notwithstanding the provisions of The Bank Act and The Bankruptcy Act, or any other statute or law, the liability to the Crown of any person, firm or corporation, for payment of the excise taxes specified in The Special War Tax Revenue Act, 1915, and amendments thereto, shall constitute a first charge on the assets of such person, firm or corporation, and shall rank for payment in priority to all other claims of whatsoever kind heretofore or hereafter arising save and except only the judicial costs, fees and lawful expenses of an assignee or other public officer charged with the administration or distribution of such assets."-The debtor was owing to the Quebec Government the sum of $527.42 for taxes imposed under ss. 1345 et seq. R.S.Q., 1909, on commercial corporations.
It was also indebted to the Dominion Government in the sum of $3,707.07 for sale taxes under The Special War Revenue Act, 1915, and amendments.
After payment of law costs and the expenses of the trustee, there remained only $2,453.51 available for distribution.
The trustee, confirmed by the trial judge, Panneton J., gave priority to the Dominion claim. The Court of King's Bench (Guerin J. dissenting) decided that the two claims should rank concurrently under article 1985 C.C.]-Held, reversing the judgment of the Court of King's Bench (Q.O.R. 43 K.B. 234), Duff and Rinfret JJ. dissenting, that the Dominion claim is entitled to preference over the claim of the province.-Held, also, that s. 16 of the Interpretation Act (R.S.C., 1906, c. 1), which enacts that "no provision or enactment in any Act shall affect, in any manner whatsoever, the rights of His Majesty, his heirs or successors, unless it is expressly stated herein that His Majesty shall be bound thereby," does not operate to preserve the right asserted by the province to rank coneurrPntly' with the Dominion.
Duff and Rinfret JJ. contra.-Held, also, that the language of s. 17 of c. 47 of 12-13 Geo. V (D)- "notwithstanding provisions the Bankruptcy Act or of any other statute or law"-excludes from operation here s. 51 (6) of the Bankruptcy Act as well as s. 1357, R.S.Q., 1909.- The King v. Canadian Northern Railway
Co. ([1923] A.C. 714) applied.
Duff and
Rinfret JJ. contra.-Held, further, that s. 17 of c. 47 of 12-13 Geo. V, (D) is intra vires of the Dominion Parliament.-Per
Anglin C.J.C.-In so far as there may be conflict between priority created by the
Dominion statute and that which the
Quebec statute purports to give, each keing within the legislative jurisdiction conferred by the B.N.A.
Act on the legislature which enacted it, it is well established that the former must prevail;
and this must be so whether the provision for priority-substantially same in each Act-is attributable to the exercise of a jurisdiction which should be regarded as an integral part of that conferred by an enumerated head, or as ancillary thereto.-Per Duff and Rinfret
JJ. (dissenting)
.-The decisions of the
Privy Council, which give preference to
Dominion claim in case of conflict between
Dominion and provincial legislation, have no application in this case, as these statutes do not cover the same field.-Per
Duff and Rinfret JJ. (dissenting)
.-The reference in s. 17 of c. 47 of 12-13 Geo. V.
to the Bank Act (which would appear to contemplate the liens constituted by section 88 of that enactment) seems to reveal the intention that the "charge"
brought into being by section 17, in order to secure the payment of the "excise taxes" there named, should, when it takes effect, have priority over liens of like character with those arising under the Bank Act; including of course (if the primacy established affects other Crown debts) liens of a similar character created for the purpose of securing the payment of provincial taxes, or other pecuniary obligations owing to the provincial
Crown, numerous examples of which are evidenced in the statutory law of the provinces. Section
17, so construed, would have the effect, the direct effect, of entitling the Dominion to deal with a subject of provincial taxation or other private property in which the province olds a jus in re as such security, in such manner as to obliterate that jus in re, if necessary to give priority to the Dominion charge.
"Property," in section 125 of the British North America Act, should be construed in its widest sense, and, in its widest sense, it would embrace such a jus in re. As other Crown debts are not mentioned, section 17 ought, especially in view of the Interpretation Act, to be construed as excluding such debts from its purview.-Per Duff and Rinfret JJ. (dissenting).-If the Dominion Parliament, in enacting the above section 17, has intended to constitute "a first charge"
having priority even over a "privileged debt" of the province of Quebec (R.S.Q.
CONSTITUTIONAL LAW-Concluded 1909, s. 1357), such legislation would be ultra vire.-Per Newcombe J.-Section 17, for the purposes of this case, is bankruptcy legislation under item 21 of the Dominion powers (B.N.A. Act, s. 91); and in enacting that section, it was the intention of Parliament, in the distribution of assets in a bankruptcy, to accord priority to the excise taxes specified in The Special War Revenue Act, 1915, and its amendments. Am. CAN- 5-Imposition of duty under Succession Duty Act, R.S.B.C. 1924, c. 244 as to shares of British Columbia company owned by deceased domiciled abroad-" Property situate within the province"-Taxation within the province-Direct or indirect taxation ................................. See DUTIES. 6- Bankruptcy-Conflict between Dominion and provincial enactments-Dominion enactment prevailing-Bankruptcy Act, R. S.C., 1927, c. s 64; Fraudulent Preferences Act, R.S..C., 1924, c. 97, s. 3 (2) ......... CONTEMPT OF COURT
Agreement - Mandate- Exclusive agency for the sale of goods- Revocation-Art. 1756 C.C.]
When in an agreement a person binds himself to buy and advertise the goods of a proprietor of patent medicines for a certain period and within a defined territory and is also appointed his sole agent and representative, such an agreement cannot be revoked at the will of the proprietor without the consent of the other party, article 1756 C.C. respecting the termination of mandate not being applicable in such a case.-Judgment of the Court of King's Bench (Q.R. 44 K.B. 453) aff. 2 - Resiliation - Fraud - Error - Exchange of debentures for stocks of minor value.-Arts. 991, 992, 993 C.C. LLOYD..................... 3-Landlord and tenant-Action for rent under alleged lease-Whether relationship of landlord and tenant constituted, or any contract made between the parties-Mere negotiation-Offer by signing draft lease as lessee not accepted within reasonable time.- Plaintiff sued defendant for arrears of rent under an alleged lease.-Held, affirming the result the judgment the Appellate Division, Ont., 62 Ont. L.R. 364, that defendant was not liable. The relationship of landlord and tenant had not been constituted between the CONTRACT-Continued parties. On the evidence of what took place, they never got beyond the stage of mere negotiation.
While a draft lease was signed by defendant (the findings below to this effect being sustained) and the signed copy received by plaintiff, this, under the circumstances, evidenced nothing more than an offer to become lessee upon the terms set forth, and plaintiff could not rely upon that offer beyond a reasonable time; and plaintiff did not itself sign or deliver the lease, or agree to do so except upon a condition never fulfilled, until after such lapse of time and material change of circumstances as rendered it too late for plaintiff to be entitled to make the lease effective and engage defendant's liability by executing and forwarding a copy.
Defendant had never entered or exercised any possession;
and it was a certain company (contemplated to be the actual occupier of the property, and originally proposed as lessee) and not the defendant, who was at all times recognized by plaintiff as having the use and occupation of the property.
HEUGHAN.......................
4-Sale of land-Option of purchase in lease-Terms of purchase-Cash payment and "balance to be arranged"-Attempted exercise of option-Want of complete enforceable agreement.] A contract dated
October 30, 1926, for lease of premises for one year from November 1, 1926, gave to the lessee (appellant) an option to purchase the premises "for a period of one year from the date hereof at a price of
$45,000 with a cash- payment of $15,000 and balance to be arranged."
Before the end of the year some discussions took place as to terms of payment of the balance but no further agreement was reached.
On October 29, 1927 (a Saturday evening), the lessee, stating his intention to purchase (without reference to terms for the balance), tendered
$15,000 (accompanied by a letter) as being the first payment under the option, which was not accepted, the lessor
(respondent) requiring terms that the balance be "practically cash" or be placed in escrow in the bank pending delivery of title.
On October
31 (Monday) the lessee had decided to pay the whole price in cash, but could not find the lessor who was out of town, and, on his return, notified him on November 3 that $45,000 was on deposit in a certain bank and would be paid out in accordance with the terms required. The offer was refused, and the lessee claimed damages for breach of contract.- Held (affirming judgment of the Court of Appeal of British Columbia, 40 B.C. Rep. 403), Newcombe J.
dissenting, that the lessee could not succeed.
By the option terms the balance of the price was left to be determined by
CONTRACT-Continued a further understanding between the parties, which did not take place; the lessor's terms not having been accepted on October 29, there was no enforceable agreement; acceptance on November 3 was too late.-Per Newcombe J., dissenting: The expression "balance to be arranged," having regard to the context, was unilateral, and intended only to evidence an obligation of the purchaser, the word "arranged" having the sense of "provided."
To convert the option into a contract of sale it was not necessary for the lessee (purchaser) to do more than he did. It involved him in the obligation to provide $30,000 more, to be paid when the lessor (vendor) made out his title and the passing of the conveyance apd payment of said balance should ordinary course, take place simultaneously.
The lessee had fortified himself with the money; in other words, he had "arranged" the balance, and it would have been paid but for the lessor's default in rejecting the tender and ignoring the 5--Sale of goods-Statute of Frauds (now 5 of Sale of Goods Act, R.S.O., 163)-Revocation of agent's authority before signing by agent of memorandum.]
claimed counterclaim)
damages for breach of contract of sale of goods from respondent to them. They alleged an oral contract made by G. for respondent.
G. for respondent. They also set up a subsequent written agreement of settlement made by G. for respondent, fixing the damages.- Held, that at the time G. signed the confirmation he was not respondent's "agent in that behalf" within the requirement of the Statute of Frauds. Assuming the oral contract, and that on its date G. had authority to sell and that this included authority to sign a memorandum evidencing such sale (Rosenbaum v. Belson, [1900] 2 Ch. 267), his authority could be effectively revoked at any time before he signed the memorandum (Farmer v. Robinson, 2
Camp., 339n; Bowstead, Agency, 7th Ed., p. 470; Warwick v. Slade, 3 Camp. 127; Xenos v. Wickham, L.R. 2 H.L. 296, at p. 314, referred to); and the evidence established such revocation and notification thereof to appellants before G. signed the confirmation.- Held, also, that, upon the evidence, G. had no authority, actual or ostensible, to make with appellants the agreement for settlement.-Judgment of the Appellate Division, Ont., 63 Ont. L.R. 388, dismissing appellants' counterclaim, affirmed A. & Smra & CONTRACT-Continued
6 - Railway construction - Method of doing work-"Extra haul" and "overhaul" - Meaning - Usage-When it forms an ingredient of the contract-Finding of the trial judge-Document filed at trial without objection-Exception to its admissibility taken on appeal.]
appellant had a contract with the respondent for a work on the respondent's line of railway, which work consisted of a cut and fill where the line crossed a deep ravine. The old line was carried on a trestle, and the new line was to be supported by a fill on a site adjacent to the trestle, which was to be made with the earth excavated from a bluff on the northerly side of the ravine through which the cut was to pass.
The contract stipulated for unit prices including
"overhaul per yard 1 cent"; and contained this clause:
"12. The contract prices for the several classes of excavation shall be taken to include the cost of depositing the material in embankments, crib work, and all other expenses connected therewith except extra haul, which will only be paid for where it exceeds five hundred (500) feet, at so much per yard per additional one hundred feet
*
*
*.'
The appellant in excavating the cut proceeded from the foot of the northerly slope of the bluff, and by a circuitous route encircling the bluff on its westerly, southwesterly and southerly sides carried the earth to the site of the embankment.
The appellant contended that it was entitled to be paid for "overhaul" at the rate mentioned, that is to say, at the rate of 1 cent per cubic yard for every 100 feet of haul calculated by reference to the length of the route actually followed in excess of 500 feet.
The view of the contract advanced by the respondent was that the contract phrases
"extra haul" and "overhaul" have, by usage, in construction contracts, or at all events in railway construction contracts, a special and specific meaning; and that they signify that the length of the haul in respect of which the contractor was entitled to charge for overhaul, was to be ascertained by taking the distance (measured along the centre line of the railway in process of construction) between the projections, first, of the centre of mass of earth, to be excavated in making the cut, and second, of the embankment, and deducting therefrom 500 feet; the projections being for this purpose the several points on the centre line nearest the respective centres of mass. The trial judge (40 B.C. Rep. 81) held that the usage alleged had not been established, and that the proper construction of the contract was that contended for by the appellant.
The Court of Appeal ([1928]
3 W.W.R. 466) disagreed with this conclusion and accepted the view advanced
CONTRACT-Concluded by the respondent.- Held, reversing the judgment of the Court of Appeal ([1928] 3 W.W.R. 466), that the alleged usage had not been proven.
It had been established that there was a practice widely followed of inserting in railway construction contracts a clause providing for the computation of payment for overhaul according to the method contended for by the respondent; but in the text books, engineering manuals and writings by engineers produced, there was no basis for the view that the effect of the words used in the present contract is, apart from such special stipulations, what is contended by the respondent. Uage, of course, where it is established, may annex an unexpressed incident to a written contract; but it must be reasonably certain and so notorious and so generally acquiesced in that it may be presumed to form an ingredient of the Juggomohun Ghose v. Manickchund (7 Moore's Indian Appeals 263, at p. 282).-Held, also, that in substance, the question presented to the trial judge was whether there was evidence to satisfy him judicially that the alleged usage was to quote the language of Banks L. J., in Laurie v. Dudin (95 L.J K.B. 191, at 193), "so all pervading and so reasonable and so well known that everybody doing business". in railway construction "must be assumed to know' it, and to contract subject to it; and the finding of the trial judge should not have been disturbed by the appellate court.- At the trial, a report by the Deputy Minister of Railways and the Chief Engineer of the respondent, approving the appellant's system of handling the works, tendered counsel, was admitted and no exception to its admissibility was taken at any stage of the proceedings prior to the oral argument in this court. According to the record, counsel for the respondent was aware that the document could have been excluded if he had pressed an objection against it, and, moreover, he did not call either of the gentlemen who signed the report as a witness. If the objection had been pressed, the appellant's counsel would no doubt have felt obliged to call them as witnesses himself, as counsel for the respondent must have realized; but the latter seemed to have elected deliberately not to press the obvious objection to the document.- Held, that, in these circumstances, an exception to the admissibility of the report taken by the respondent's counsel before this court should be considered as being raised too late. Ry. Co......................
7 - Sale of land - Misrepresentation - Rescission. ..... 174 COVENANT-Liability of transferee to mortgagee under implied covenant under
Land Titles Act, Alta., R.S.A., 1922, c.
133, 8. 54-Period of limitation for bringing
CRIMINAL LAW - Indictment containing three counts, charging: manslaughter
(Cr. C., s. 268); causing grievous bodily injury (Cr. C., a. 284); and causing bodily harm by wanton or furious driving, etc.
of motor vehicle (Cr. C., s. 285)-Acquittal on first two counts, and conviction on third count-Joinder of counts-Right of jury to find guilty on third count while finding not guilty on other counts.] The appellant was tried on an indictment containing three counts (referring to the same occurrence), viz., (1) manslaughter (Cr.
C., a. 268); (2) causing grievous bodily injury (Cr. C., S. 284); and (3) causing bodily harm by wanton or furious driving, etc., of a motor vehicle (Cr. C., s. 285).
The jury found him not guilty on the first and second counts, but guilty on the third count.
From the affirmance by the Appellate Division, Ont., of his conviction on the third count, he appealed, on the ground that, as the facts upon which the three counts were based were the same as to each of the three offences charged, it was not open to the jury, after acquitting him upon the first two counts, to convict him upon the third.-Held
It was open to the jury to find as they did. It was permissible to join the other counts to the first one charging manslaughter (Cr. C s. 856).
Whether the three counts should be tried together was in the discretion of the trial judge (Cr.
C. s. 857)
Had appellant been charged only with manslaughter, but so described as to include the offences charged in the said second and third counts, then, under s. 951, Cr. C., he could properly have been convicted of either of these latter offences, as "other offences" the commission of which was included in the offence "as charged in the count," if, in the jury's opinion, "the whole offence charged was not proved."
(R. v. Shea,
14 Can. Cr. Cas. 319, if it implies the contary, overruled).
In the case at bar, that the jury had found that the whole offence charged either in the first count or in the second count had not been p roved was an intendment which must be mae in support of the verdict; and it was within the jury's province so to find, while finding that the offence charged in the third count was proved; and it was not open to this Court to consider the evidence for the purpose of determining whether upon it the jury, as reasonable men, could have negatived the existence of any element necessary to constitute
CRIMINAL LAW-Continued either of the offences charged in the first and second counts, consistently with their finding of guilty on the third count. -R. v. Forseille, 35 Can. Crim. Cas. 171, overruled.-Judgment of the Appellate Division, Ont.,
(35 Ont. W.N. 172; Middleton J.A. dissenting) affirmed.- Smith J. dissented, agreeing with the dissenting judgment of Middleton J.A., in the Appellate Division, and with the judgment in R. v. Forseille, and holding that, where injuries have been caused by the accused to a deceased person (as found in this case) and these injuries have caused the death, as was unquestionably so in this case, counts under ss. 284 and 285, Cr. C., should not be allowed to go to the jury; an acquittal on the charge of manslaughter is necessarily a finding that there was no criminal negligence, which negligence is necessary to constitute a crime under ss. 284 and 285.
THE KING..................... 2---Conviction under Customs Act, R.S.C. 1927, c. 42, s. 217-Harbouring goods unlawfully imported into Canada-Summary jurisdiction under s. 217 (2)-Value of goods not shown to be under $200.] Appellant was convicted before a stipendiary magistrate (the conviction being affirmed, on appeal, by the County Court Judge) for harbouring spirits unlawfully imported into Canada whereon duties had not been paid, contrary to s. 217 of the Customs Act, R.S.C. 1927 c. 42.
The warrant of commitment did not show that the value of the goods was under $200 and was on that ground, attacked as bad on its face, as not showing jurisdiction in the convicting court.- Held (Mignault J. dubitante): In not showing such value to be under $200 the warrant of commitment did not fail to show jurisdiction.-Per Anglin C.J.C., Newcombe and Smith JJ.: Subs. 3 of said s. 217, introduced by amendment in 1925 (c. 39), does not impliedly limit the summary jurisdiction to cases where the value of the goods is less than $200. special jurisdiction conferred by subs. 3 to proceed, alternatively, by indictment, for a more rigorous penalty, where the value is $200 or over, does not, so long as the procedure by indictment is not invoked, detract from the power exerciseable by magistrates under subs. 2, interp reted independently.-Per Rinfret J.: The warrant recited a conviction of an offence described in terms strictly following those of subs. 1 of s. 217; then subs. 2 enacts that "every such person" guilty of the offence so described is 'liable on summary conviction," etc. Therefore it could not be said that, on its faces the warrant did not show jurisdiction.
It may be that subs. 3 makes the offence indictable when the goods are CRIMINAL LAW-Continued of the value of $200 or overi but there was nothing in the proceedings before the court or on the face of the commitment to show they had that value; moreover, the presumption is that the jurisdiction was rightly asserted. IN
MANUEL......................
3 - Combine - Restraint of trade - Injury to the public-Business interests- Sections 496, 497, 498Cr. C.]
The proper test in a prosecution under section 498 of the Criminal Code, which deals with
"restraint of trade," is the injury to the public by the hindering or suppressing of free competition, notwithstanding any advantage which may accrue to the business interests of the members of the combine.
Weidman v. Shragge (46 Can.
S.C.R. 1) foll.
Co. THE ..........
4--Charge of negligence in performance of duty, causing grievous bodily injury- Cr. Code, ss. 284, 247-Momentary diversion of attention-Conduct not amounting to criminal negligence.] Respondent was in charge of hoisting machinery in a mine shaft.
When a descending cage was nearing the bottom he was required to arrest it and give warning to workmen below (a precaution required by the mining regulations).
A dial enabled him to follow the cage's descent. There was also a buzzer which operated at a certain point to warn him, but on the occasion in question it was out of order. His attention to the dial was momentarily diverted by a violent noise behind him
"clapperboards"
(any defective working of which it was his duty to report), and when his attention was restored it was too late to arrest the cage and it struck a workman below. Respondent was experienced and conscientious in his duties.
He was convicted under s.
284,.Cr. Code, of causing grievous bodily injury "by doing negligently or omitting to do an act which it was his duty to do."
While the arresting of the cage was indisputably one of those duties contemplated by ss. 247 and 284, Cr.
Code, yet the respondent's act, almost involuntary, in yielding, in the special circumstances, to the impulse to turn his eyes to the source of the disturbance behind him, was not an act of such culpability as falls within the category of criminal negligence.-McCarthy v. The
King, 62 Can. S.C.R. 40, discussed and explained.
The decision therein did not attempt to lay down an abstract rule for determining the incidence of criminal responsibility for negligence.-Judgment of the Appellate Division, Ont., (63 Ont.
L.R. 275) setting aside the conviction, affirmed.
THE v. .....
DEX
CRIMINAL LAW-Concluded
5--Suicide as a crime-Presumption against suicide-Presumption against crime-Evidence-Establishment of crime ....... 6- Validity of the Combines Investigation Act, R.S.C., 1927, c. 26, and of s. 498, Cr. Code.......................... CROWN-Negligence-Lease of property by the Crown-Clause denying any claim by the lessee against "His Majesty, His servants or agents"-Contractor performing government work on leased property- Damages suffered by the lessee-Liability .... 2-Liability to for taxes-Priorities 557 3- CUSTOMS ACT-Conviction under 109 See CRIMINAL LAW 2.
DAMAGES - Bodily injuries-Member of religious community injured-Loss of services-Disbursements-Right of action in damages by the community against negligent party- Whether right of action is limited to the "immediate victim"-Action de in rem verso-Quantum of damages-Prescription -Arts.
1053, 1056, 1074, 1075, 2261 (2), DESCENT OF LAND-Construction of statute-Public Lands Act, R.S.O., 1914 c. 28, s. 47-Locatee's interest to "descend to, and become vested in, his widow during her widowhood"- Nature of estate taken widow.
DESIGN (INDUSTRIAL)
See DESIGN. DEVOLUTION OF ESTATES - -Descent-Construction of statute-Public Lands Act, R.S.O., 1914, c. 28, s. 47- Locatee's interest to
"descend to, and become vested in, his widow during her widowhood"- Nature of estate taken by widow.
DIVISION WALL
DONATION-Transfer of shares-Certificate remaining with transferor-Consideration-Services rendered-Remuneratory donation-Amount transferred exceeding value of services- Nullity-Arts. 754, 776, 804, 806, 808 C.C.............. ESTOPPEL-Recital in document-Presumption and onus arising from relationship and other circumstances........ 153 EVIDENCE-Foreign law-Proof of- Competent and qualified witness-Art.
110 C.C.P.]
In order to prove the law of a foreign country it is not necessary that the witness should be a lawyer actually practising his profession in that country; but, inasmuch as foreign law is a question of fact which must be proved as any other fact by a competent and qualified witness, any person whose occupation makes it necessary for him to ave knowledge of the law of such foreign country may be a competent and qualfied witness, the competency and qualification of such witness being a matter for the appreciation of the court.-Observations as to construction and effect of pleadings; surprise.
(Art. 110 C.C.P.)
Judgment of the Court of King's Bench
(Q.R. 45 K.B. aff.
REIN- 2- Expert witnesses-Value of their evidence before the courts-Workmen's
Compensation Act-Changes between earlier and existing law-Onus upon the injured to prove accident and its connection with his sickness or incapacity.] The law makes no distinction between the evidence given by experts and that given by ordinary witnesses: the testimony of experts must be appreciated and weighed by the courts in the same manner as that of any other witness. A judgment would therefore be wrong, if based upon the sole fact that the successful party had a greater number of experts testifying on his behalf.- Notwithstanding the enactment of the
Workmen's Compensation Act, the evidence, in actions for accidents to workmen under that Act, remains subject to art.
1203 C.C. The element of fault alone has been eliminated from the earlier law and the theory of the professional risk has been substituted for it. The onus is still upon the claimant to prove that the accident occurred by reason of, or in the course of, the work and to establish the connection between the accident and his sickness or incapacity.
3-Presumption against suicide - Motive-Presumption against crime-Establishment of crime................
4- Probabilities and inferences from evidence-Position of Appellate Court.. 117
5-Conflic-Findings at trial-Appeal
-Estoppel-Presumption and onus arising from relationship and other circumstances
.................................
See PARENT
- Finding of negligence by jury-Sufficiency of evidence to justify finding-Sufficiency of corrobora- EVIDENCE-Concluded
7- Public Utilities Act, Alta.-Hearings and investigations by Board of Public Utility Commissioners-Powers ofBoard- Obtaining of evidence-Absence of evidence ..........
....
8- Accounting to deceased's estate as to estate-Findings on the evidence-Corroboration-Mingling of funds of trustee and cestui que trust-Presumption as to funds of unidentified origin-Mingling authorized by cestui que trust............. 9- Burden of o
.oof
SeeWILL 3.
10-Document filed at trial without objection-Exception to its admissibility taken on appeal................... 11-Revenue by Crown to recover excise tax and sales tax under ss. 19B1 (b) and 19BBB (1) of The Special War Revenue Act, 1915 (Dom.), and amendments-Evidence failing to prove manufacture by defendant-Application to receive further evidence (Dom. Statutes, 1928, c. 9, s. 3)............................ See REVENUE.
EXCISE TAX
EXEMPTION FROM EXECUTION EXEMPTION FROM TAXATION FIDELITY INSURANCE
FIDUCIARY LEGATEE
FIRE-Negligence-Escape of fire from defendant's premises to plaintiffs building -Liability of defendant-Origin of fire- Unauthorized act of third person-Findings of fact.
v. ...... 2-Escape of fire-Destruction of timber servant-Liability of master-Scope of employment ....... FOREIGN JUDGMENT - Exemplification of judgment obtained in another province-Defence raised in that province- Cross-demand in this province based on similar grounds-Inscription in law- Arts. 211, 212, 217 C.C.P.]
Where, upon action brought in the province of Quebec for exemplification of a judgment obtained in another province, the grounds set up FOREIGN JUDGMENT-Concluded in a cross-demand are in substance those of a defence raised, or which could have been raised, by the defendant in the original action, such cross-demand will be dismissed on inscription in law.-The
Supreme Court of Canada will not interfere with the decision of the provincial court to the effect that, in order to adjudicate upon the inscription in law, the
Court may take into consideration all the documents filed in support of the statement of claim.-Comments upon the case of Lingle v. Knox ([1925] S.C.R. 659)
where art. 217 C.C.P. had to be interpreted, while this case requires the interpretation of arts. 211 and 212 C.C.P.
judgment appealed from is not in contradiction with the above decision, but is rather in conformity with it.- Judgment of the Court of King's Bench
(Q.R. 45 K.B. 129) aff.
RAmINovrrCH v.
CHECHIK.........................
FOREIGN LAW - Proof of - Competent and qualified witness-Art. 110 C.C.P.
.................................
2-ill-Construction, as to beneficiaries-Share of person predeceasing testator to go to such person's "children"- Adopted child-Effect of foreign law declaring rights of child adopted under that law ..............................
See WILL 2.
FRANCHISE
See UTILITIES.
FRAUDULENT
CONVEYANCES
- Sale of goods-Stock in trade-Sale in bulk
-Non-compliance with Bulk Sales Act- Assignment of the vendor-Resale by the transferee to a bona fide purchaser-Right of the trustee in bankruptcy to compel the transferee to account-Bulk Sales Act, R.S. N.S.
(1923), c. 202-Assignments Act, R.S.NS
(1923), c. 200.] In January, 1928, one C. sold all the stock in trade and assets of his business to the appellants for $1,600.
March 17, 1928, C. made an authorized assignment his statement showed liabilities amounting to
$4 395.55 with cash assets of $706.
sale of the stock in trade to the appellants was a sale in bulk under the Bulk Sales
Act, but there was no compliance whatever with the provisions of that Act.
At the time of the sale the appellants paid the purchase money to C. in cash and they resold the goods for $2,000 before the respondent, as trustee in bankruptcy, moved to set aside the sale to them from C. The $2,000 were not ear-marked and have been disposed of by them in the ordinary course of their business.-Held that the respondent, on behalf of the creditors, was entitled to have the appellants account for the $2,000
FRAUDULENT CONVEYANCES received by them on the resale of the goods. The creation in the Bulk Sales Act of a presumption of fraud on the part of both purchaser and vendor as against the vendor's creditors, indicates a legislative intention to put a sale in bulk made without compliance with that Act in the same category as sales made with an intention to defraud the vendor's creditors. This presumption of fraud has the effect of bringing into play all other statutes passed for the protection of creditors against a fraudulent sale of his goods by a debtor to the prejudice of his creditors, and the right to recover from a fraudulent transferee the proceeds of goods coming into his possession by an invalid transfer, and resold by him, is given by s. 21 (1) of the Assignments Act (R.S.N.S. (1928), c. 200).
CREDIT MEN'S TRUST Asso- 2- Alleged attempt, by conveyance, to defeat. creditors, as disentitling to relief of re-conveyance-Circumstances of conveyance-Exemptions Act, Alta ......... See CHILD. 3- See BANKRUpTcy 1.
4-See HuSBAND
FRAUDULENT PREFERENCES See BANKRuPTcy 1.
GAS
GIFT - Transfer of shares - Certificate remaining with transferor-Consideration -Services rendered - Donation - Remunatory donation - Amount transferred exceeding value of services-- Nullity - Arts. 754, 776, 804, 806, 808 C.C.] respondent is a broker dealing in bonds and industrial securities and for some years had business transactions with one P.D. by way of exchanging, selling or buying bonds for him.
Some time before his death, P.D. signed a blank form generally known as a "Power of Attorney for transfer of bonds," thus transferring to the respondent 180 shares of a certain industrial company valued at $18,000; and, on the same date, the respondent "accepted the
*
*
* shares (therein) mentioned and so transferred." P.D. retained possession of the certificate of shares until his death. The respondent then claimed, by an action in revendication, from the appellants, the testamentary executors of the estate of P.D., the ownership and possession of the certificate. , In his pleadings as well as in his testimony at the trial, the respondent alleged that he had attended to the business of P.D. for many years and had never been paid for his services; that in GIFT--Concluded acknowledgment and in payment of the services thus rendered, P.D. made several wills in which he favoured the respondent but which were revoked owing to the influence of M., one of the appellants that, in lieu of the legacies, P.D. had transferred the above shares to respondent, the whole transaction to be kept secret in order to avoid any intervention from M.; and that it was for that reason that P.D. did not hand over to the respondent the certificate of shares to be registered.- Held, that the transfer of shares to the respondent fell within the category remuneratory donations
(donations remuneratoires), i.e., donations having for their object the compensation for services rendered by the donee to the donor. As the amount of the transfer to the respondent exceeded the value of the services rendered by him to P.D., the transfer was subject to the same formalities as those prescribed in the case of a gift inter vivos which are of public order and prescribed by the code under pain of nullity.
These formalities not having been fulfilled by the respondent, the gift must be declared null, reserving to the respondent any right he may have to smake a claim for the value of his services.
v. BilQUE ................
GUARANTEE INSURANCE
See GUARANTEE.
HABEAS CORPUS - Jurisdiction of
Judge of Supreme Court of Canada- Supreme Court Act, R.S.C., 1927, c. 35, e.
5Y-Commitment by Commissioner for contempt of order made under 8. 22 of Combines Investigation Act, R S C
1927, c.
The jurisdiction of a judge of the
Supreme Court of Canada, under s. 57 of the Supreme Court Act, R.S.C., 1927, c. 35, to issue a writ of habeas corpus, held not to extend to the case of a commitment by a commissioner appointed under the Combines Investigation Act,
R.S.C., 1927, c. 26, for contempt of an order made by the commissioner under s. 22 thereof.
IN SINGER.......
HIGHWAYS
See 1, 2.
HOUSE - Petitory action - House erected on land not owned by builder - Consent or knowledge of the owner-Possession-Good or bad faith-Sale of house by the sheriff and right of purchaser to keep it on land-Arts. 412, 417 C.C...
2- HUSBAND
WIFE - Alleged attempts to defeat husband's creditors- Alleged payment of husband's moneys in
HUSBAND AND WIFE-Concluded purchase of, or for benefit of, property standing in name of wife-Whether property exigible to satisfy claims of husband's creditors-Claim on behalf of creditors as to policies of insurance on husband's life payable to wife.
ROBIN- SON.............................
IMPRISONMENT
- The Collection Act, RS NS
1923, c. 232-Habeas Corpus-Appea3.................38 See STAuTrES 1.
INCOME TAX - Income War Tax Act, 1917, c. 28 (Dom.)-Liability for income tax by company incorporated under Agricultural Associations Act, R.S.B.C. 1911, c. 6-Purpose and operations of company-Manner and basis of distribution of moneys to shareholders-Cooperative Associations Act, B.C., 1920, c. See AssEssMENT 1. 2 - Municipal income tax - Assessment made in one year adopted as assessment for following year-Removal of person from municipality - Assessment Act, R.S.O. 1914, c. 195, s. 57, s. 11 (2) (as enacted by 12-13 Geo. V, c. 78), s. 95 (3) (as enacted by 7 Geo. V, c. 45, s. 9)- Consolidated Municipal Act, 1922, c. 72, 249 (1), 297 (1)................ INDUSTRIAL DESIGN - Invalidity of registered design-Want of originality- Anticipation in article of analogous character-Trade-Mark and Design Act, R.S.C. 1906, c. 71-Attack on validity of registered design in action against alleged infringer.] An industrial design, to be entitled to registration under the Trade-Mark and Design Act (The Act in question was R.S.C. 1906 c. 71), must be original. The originality required involves the exercise of intellectual activity so as to suggest for the first time the application of a particular pattern, shape or ornament to some special subject matter to which it had not been applied before. (Dover, Ltd. v. Nirnberger Celluloidwaren Fabrik Gebrider Wolff [1919] 2 Ch., 25, at p. 29). To constitute an original design there must be some substantial difference between it and what had theretofore existed as applied to articles of an analogous character.-Appellant's registered design, which related to a rack for display of garments in a retail store, held not to have fulfilled above requirements (and therefore not to have been proper subject matter for registration) but to have been anticipated bedside table, whose function was held analogous to that of a garment rack. (In re Clarke's Design, 11896] 2 Ch. 38, at p. 44; In Re Read & Greswell's Design, 42 Ch. D., 260, at p. 262, referred to. INDUSTRIAL DESIGN-Concluded
Walker Hunter & Co. v. Falkirk Iron Co.,
4 R.P.6., 390, distinguished on the facts.)
attack on the validity of registration of a design is not limited to proceedings under s. 42 of said Act (R.S.C.
1906, c. 71), but may be made by an alleged infringer when sued by the registered owner.
(In re Clarke's Design, supra, at p. 42).-Judgment of Maclean
J., Ex. C.R. 159 affirmed in the result.
&
FIxTUREs LTD. .....
INSURANCE, ACCIDENT
INSURANCE,
GUARANTEE-Fidelity or guarantee bond-Employer's declaration
- Warranty - Representation - Material concealment-Statements by employer not mentioned in the policy-Arts. 2468, 2485,
2487,
2489,
2490,
2491 C.C.-R.S.Q.
1909, es. 7027, 7028.]
The respondent's action was brought to recover $7,035.29 on two policies or fidelity guarantee bonds issued in 1922 and renewed in
1923, by each of which the appellant undertook to indemnify the respondent up to $10,000 for any loss sustained as the result of any act of fraud or dishonesty on the part of two of its employees, the cashier and his assistant. At the time of the issuance of the policies and of their renewals, the respondent, through its secretary, declared, in answer to written questions put by the appellant, that these employees were not then in default, that .all moneys or property in their control custody had been accounted for, and that the means of ascertaining the correctness of their accounts would be, in the case of the cashier, their checking by auditors every month and, in the case of the assistant cashier, a daily accounting by him to the cashier.
It was agreed that "the above answers (were) to be taken as conditions precedent and as the basis of the bond applied for or any renewal or continuation of the same."
But these statements were not mentioned or set out in the policies or in the renewal certificates.
At the time of the application for the policies and of their renewals, the assistant cashier was already a defaulter, but not to the knowledge of the respondent.- Held, that, in cases under the law of
Quebec, where the insurance company denies its responsibility on the ground that some answer or statement was untrue or that some term or condition was not respected or observed by the insured, the first inquiry is whether such term, condition, answer or statement is set out in full on the face or back of the policy, and if it is, it must of course be given effect to; but if it is not, the term, condition, answer or statement cannot be regarded as a warranty or a condition
INSURANCE, GUARANTEE precedent.-Held also, that the answers and statements of the respondent were not warranties or conditions precedent, but merely representations which fairly and reasonably interpreted according to the evidence, were substantially true and involved no material concealment. Moreover, these answers and statements, not being mentioned or even referred to in the policies, did not legally form part of the contract and could not affect or control the terms and conditions of the policies.-Judgment of the Court of King's Bench (Q.R. 45 K.B. 311) aff. Co. v. THE FRUIT REAL............................. 2- INSURANCE, LIFE - Death of insured -Recovery under policies-Allegation of suicide - Circumstances of death-Motive - Presumption against suicide - Presumption against crime-Policy providing for insurance in case of death and for further insurance if death results from accident-"Contract of accident insurance"-Application of s. 179 of Ontario Insurance Act, 1924, c. 50-Bodily injury happening "without the direct intent of the person injured, or as the indirect result of his intentional act"-"Bodily injuries effected solely through external, violent and accidental means"-"Internal injuries" revealed by autopsy.] The defendant insurance companies appealed from the judgment of the Appellate Division, Ont. (62 Ont. L.R. 83) which (reversing judgment of Meredith C.J.C.P., 60 Ont. .R. 476) held that the deceased's death was not from suicide, but was an accident within the meaning of the insurance policies in question, and that plaintiffs were entitled to recover on the policies.- Held: On the facts and circumstances in evidence, and the question being one of probabilities and inferences, as to which an appellate court was in as good position to decide as the trial judge, and having regard to the presumption against suicide, the finding of the Appellate Division that the death was an accident within the meaning of the policies was affirmed; and the appeals were dismissed.-Per Anglin C.J.C., Mignault and Rinfret JJ.: Under the criminal law of Canada suicide is a crime (Russell on Crimes, 8th ed., vol. 1, p.
618;
Blackstone,
Commentaries, Lewis's ed., vol. 4, marg. p. 189; discussion of the point by Riddell J.A., in this case, 62 Ont. L.R. 83; Cr. Code, ss. 10, 269, 270, referred to).
Moreover, in this case, the contention of suicide was coupled with the suggestion that deceased planned to give his death an appearance of death by accident, to enable recovery INSURANCE, LIFE-Concluded of insurance moneys, thus committing a fraud, and such fraud would be a crime.
Before crime can be held to be established, there is required proof of a more cogent character than in ordinary cases where crime is not imputed; and it is a rule, although it may not be so strict in civil cases as in criminal, that when a right or defence rests upon the suggestion that conduct is criminal or quasi-crunmal the court should be satisfied not only that the circumstances proved are consistent with the commission of the suggested act, but that the facts are such as to be inconsistent with any other rational conclusion than that the evil act was in fact committed
(Rule as stated by
Middleton J.A. in this case, 62 Ont. L.R.
83, at p. 93, adopted).-The regard to be paid to evidence of existence of motive to commit suicide discussed; reference to
Dominion Trust Co. v. New York Life
Ins. Co., [1919] A.C., 254, at p. 259.
(That case distinguished on the facts.)
It was held that here the evidence did not establish such an impelling motive as would warrant the assumption that deceased contemplated taking his life, if, indeed, proof of motive, however potent, can, without more, ever justify such an inference.-S. 179 of the Ontario Insurance
Act, 1924, c. 50, notwithstanding its collocation, is applicable to every contract of accident insurance, including contracts, such as were here in question, where there is insurance in the event of death generally, irrespective of its cause, and also further insurance made payable only when the death results from an accident; this second species of insurance is a "contract of accident insurance" to which s. 179 applies.- Held, further, that the deceased's death, which was caused by carbon monoxide poisoning, through his having started his motor engine in his garage, happened "without the direct intent of the person injured, or as the indirect result of his intentional act"
within the reasonable intendment of those words in said s. 179; further, that his death was the result of "bodily injury effected solely through external, violent and accidental means" within the terms of policies in question; also, that an autopsy had revealed "internal injuries,"
within the terms of a policy in question, when the internal tissues, and the blood, were found to have the cherry red colour characteristic of carbon monoxide poisoning. THE
Co. LTD.; LIFE
INs. Co. v. MOORE; LIFE INS.
v. M OORE.........................
2-Claim on behalf of creditors as to policies of insurance on husband's life payable to wife.....................
See HusBAND WIFE.
INTEREST
JURY
- Descent - Construction statute-Public Lands Act, R.S.O., 1914, c. 28, s. 47-Locatee's interest to "descend to, and become vested in, his widow during her widowhood"- Nature of estate taken by widow.
2- Title to...................... See PAREr LAND SETTLEMENT BOARD (B.C.) LANDLORD AND TENANT-Actionfor rent under alleged lease-Whether relationship of landlord and tenant constituted, or any contract made between the parties- Mere negotiation-Offer by signing draft lease as lessee not accepted within reasonable time.........................
LEGACY
See 1, 2.
LIEN-By supplier of materials ..... LIMITATION OF ACTIONS - Mortgage-Transfer of land subject to mortgage of transferee to mortgagee under implied covenant under Land Titles Act, Alta., R.S.A., 1922, c. 133, s. 54- Period of limitation for bringing action- Limitation of Action Act, R.S.A., 1922, c. 90, s. 3; Real Property Limitation Act, 1874 (Imp), c 57 s
M., by mortgage under seal and registered, mortgaged land in the province of Alberta to plaintiff, and subsequently, by transfer, not under seal, made pursuant to the Alberta Land Titles Act, and registered, transferred the land to B., who thereby became liable to plaintiff, under the covenant implied by virtue of s. 54 (1) of said Act, to pay the mortgage money.
More than six years (the period of limitation applicable to a simple contract debt) but less than 12 years after registration of the transfer or any payment on account or written acknowledgment of liability by B., the plaintiff sued B. in Alberta for payment. (reversing judgment of Appellate Division, Alta., 23 Alta. L.R. 565) that B.'s liability to plaintiff was not statute barred. The period of limitation in Alberta for bringing action to recover money secured by mortgage made under the Alberta Land Titles Act is
12 years. (Limitation of Action Act,
R.S.A. 1922, c. 90, s. 3; Real Property
Limitation Act, 1874 (Imp.), c. 57, s. 8;
and other statutes, considered); and that was the period applicable to the implied covenant m question.-Per Duff, Newcombe, Rinfret and Smith JJ.: The covenant implied under s. 54 is not a simple contract, but a covenant in its ordinary and primary sense, that is, an agreement under seal.-Per Lamont J.: Whether or not the implied covenant is a covenant in the sense of an agreement under seal, in view of the language in which it is couched
(in s. 54) the transferee's liability upon it is co-extensive with the mortgagor's liability on the mortgage; and an action thereon may be brought within the same period of limitation as applies to the mortgagor's liability. TRusTs & GuAn- Co. v. BUXTON.........
- Bodily injuries-Member of religious community injured-Loss of services-Disbursements
-Right of action in damages by the community against negligent party-Whether right of action is limited to the "immediate victim"-Action de in rem verso-Quantum of damages--Prescription-Arts.
1053, 1056, 1074, 1075, 2261 (2), 2262
MASTER AND SERVANT-Negligence of servant-Liability of master-Scope of employment-Failure to extinguish fire started in wilderness for cooking purposes- Contract providing that the servant was to board himself-Mining.] The respondents had a licence to cut timber on certain lands in British Columbia.
The appellant company had also a licence to prospect for phosphate on the same lands and employed two brothers, John and Robert
Ewan, as members of one of their prospecting parties. Prior to May, 1926, the
Ewan brothers were each receiving a wage of five dollars for an eight hour day and were paying the appellant one dollar per day for their meals. In May, 1926, they became dissatisfied with the boarding arrangements at the appellant's camp and at their request they were permitted to "board themselves."
On June 4, they were directed to work at a certain place about three miles distant from the camp; and, on arriving there, they pitched their tent and built a small fire-p lace, in which, each morning and evening, they kindled a fire to cook their food.
June 7, an engineer of the company directed the Ewan brothers to commence work the next morning at a trench two thousand feet further on. On the morn- MASTER AND SERVANT-Conluded ing of June 8, about 6.15 a.m., John Ewan kindled a fire to boil the breakfast coffee; and then he and his brother, after pouring water over the fire, left the place.
Some time between ten o'clock and noon, smoke was observed in the vicinity of the place where the Ewan's tent had stood; and, before any one could reach the spot, fire overran the lands on which the respondents had the licence to cut timber and burned not only the standing timber but also a quantity of posts and poles.
The respondents brought this action to recover damages.- Held that the appellant cannot be held liable on the ground that the Ewan brothers were acting in the course of their employment when they lighted the fire which escaped and did damage to the respondent's property, it having been shown that the lighting of that fire was an act which they were under no contractual obligation to perform as a duty to their employer, or which their employer had ordered them to do. Although their contract with the appellant called upon them to board themselves, this did not constitute a contractual obligation on their part as a duty to the appellant to cook their meals.
In cooking their food, these employees were doing something for themselves rather than discharging a duty towards the appellant.-Held lso that the appellant was not liable ('uder the rule laid down in Rylands v. Fletcher (L.R. 3 H.L. 330) ), because, although it was by virtue of its licence an occupier of the land from which the fire escaped, that escape was due not to any act or negligence of the appellant or anyone under its control, but was due to the negligence of the Ewan brothers at a time when their negligence must be deemed the negligence of a stranger.- Judgment of the Court of Appeal ([1928 1 W.W.R. 578) reversed.
MINING & V. MURDOCH........................ 2-Employee or independent contractor .. . . ....
3-See
MINING-Destruction of timber by fire- 2-Injury in mine-Employee or independent contractor.................. 3-Charge of negligence in performance of duty, causing grievous bodily injury 354 MITOYENNETE (OBLIGATION OF) Limitation of actions - Transfer of land subject to mortgage- Liability of transferee to mortgagee under implied covenant under Land Titles Act,
Alta., R.S.A., 1922, c. 133, 8. 54-Period of limitation for brnging action-Limitation of Action Act, R.S.A., 1922, c. 90, s. 3; Real Property Limitation Act, 1874
(Imp.) c. 57, .8..................
gee 1.
MOTOR VEHICLES - Collision- Highway Traffic Act,
R.S.O.
1927, 251-Law as to civil liability under as. 9 (1) and 41 (1), assuming tail light to have gone out shortly before collision without knowledge or negligence of driver- Misdirection to jury- New trial-Amount in controversy on appeals-Jurisdiction - Quashing of appeals.]
imposed by as. 9 (1) and 41 (1) of the
Highway Traffic Act, Ont. (R.S.O. 1927, c. 251), exists even in absence of negligence; the failure to have a tail light burning and visible on a motor vehicle in accordance with s. 9 (1) is a violation of the Act, and if a cause of a collision resulting in damages, may involve civil liability under s. 41 (1), even though the light was burning until shortly before the accident and went out without the knowledge or personal fault or negligence of the driver of the vehicle.
(Great Western
Ry. Co. v. Owners of SS. "Mostyn?
[1928] A.C., 57, applied).-In the case in question (an action for damages resulting from a collision of motor vehicles) it was held that the trial judge's direction to the jury to an effect contrary to the law as above stated was a misdirection, and that it affected the jury's findings to such an extent that they should not stand, and a new trial was ordered.-Judgment of the
Appellate Division, Ont. (34 Ont. W.N.
216), affirming the judgment at trial in favour of defendants, reversed.
As the claims of two of the plaintiffs were each for an amount less than $2,000, their appeals were (at the opening of the argument) quashed for want of jurisdiction
(Armand v. Carr, [1926] S.C.R. 575; Reynolds v. C.P.R referred to), the 6ourt refusing an application to allow the case to stand over to permit of leave to appeal being asked from the Appellate Division.
&
ToRorro ExPREss Co .....
MUNICIPAL CORPORATIONS - Negligence-Action against municipality for injuries sustained by fall upon an icy sidewalk-Dismissal of appeal from judgment of Appellate Division, Ont. (63 Ont.
L.R. 247) sustaining judgment at trial for damages against municipality. Crry orF
MURPHY...............
2-See
See RAIwAYs 2.
NAVIGATION
Asbestos mine - Dynamite - Explosion - Injury-Liability-Whether injured is an employee or an independent contractor.] The respondent had charge of the mining operations in the appellant's mine. The appellant supplied the dynamite, the tools and accessories. The respondent hired the men, paid them, controlled them, and discharged them. He was allowed to do the work as he pleased, except that he was indicated where the mining should take place.
He was not in any way the subordinate of the company, his whole obligation towards the latter consisting in supplying a sufficient quantity of mineral rock of a given size for the run of the mill.
He was responsible in damages if he failed in this respect. He was paid twenty cents per wagon; and in addition, the appellant paid the insurance premiums required by the Workmen's Compensation Board to cover accidents to the respondent's employees; but this was done as the result of an express condition of the agreement between the respondent appellant. The respondent had to deliver rock of the required size. The rock was loaded into small wagons and carried to the mill. The loading was done by means of a steam shovel operated by one of the employees of the appellant company. When the rock was found too large, it was laid aside and it became the respondent's duty to reduce it to the required size. The respondent, one day, while performing the latter operation and while engaged in drilling a hole in one of the rocks, was seriously injured by an explosion of dynamite.
It was generally admitted that the cause of the accident was the fact that the drill had come into contact with an unexploded charge previously placed in the rock by the respondent or his employees in the course of the former operations and which had failed explode. respondent brought an action in damages against the company.-Held that, under the circumstances of his engagement, the respondent was an independent contractor- that the appellant company was not liable, as the respondent was not its employee and it did not have towards him the responsibility of an employer; and that the accident was due to the fault or negligence of the respondent himself or that of his employees and he could not recover against the appellant QUEBEc U. CoUTURE......................... 2 -Evidence
- Finding of negligence by jury-Sufficiency of evidence to justify finding-Sufficiency corroboration.] The judgment of the Appellate Division, Alta.,
1 W.W.R.
815, which reversed the judgment at trial on the findings of a jury, and held that plaintiffs NEGLIGENCE-Continued were not entitled to recover damages for injury to the infant plaintiff, who was run over by defendant's street car, on the ground of want of the requisite corroboration of the evidence given by infant witnesses not under oath, to show that the accident was caused by negligence of defendant's motorman, was set aside, and the judgment at trial was restored, the Court holding that, apart altogether from the question of corroboration, there was sufficient in the evidence of the motorman himself, under the circumstances, to justify the jury in drawing the inference that he was negligent; that there was, in any case, corroboration of the infant plaintiff's story of what happened just before the accident, sufficient to enable the jury to say that a proper watch was not kept; that the jury's finding that there was not sufficient lookout should not have been disturbed.
CITY
3--Crown-Lease of property by the
Crown-Clause denying any claim by the lessee against "His Majesty, His servants or agents"-Contractor performing government work on leased property-Damages suffered by the lessee-Liability.] The respondent company entered into a contract with the Minister of Railways and
Canals, as representing the Crown, for the enlargement of the Lachine Canal, near Montreal. The appellant company had obtained under a lease from the
Government the right to lay and maintain a gas main across the solum of the canal. Clause 6 of the lease stipulated that, in the event of its gas main being from any cause injured, the appellant company was to have no claim or demand against "His Majesty, His servants or agents."
During the execution of the contract, a break occurred in the gas main; and the appellant company claimed damages alleging respondent company in dredging the bed of the canal.-Held, reversing the decision of the Court of King's Bench (Q.R. 44
K.B. 230), that the respondent company was not a "servant" or an "agent" within the contemplation of clause 6 of the lease and was therefore liable in damages.
Kearney v. Oakes (18 Can. S.C.R. 148)
MoNrREAL &
Co. v. QunfLAN &
4-Fire-Escape of fere from defendant's premises to plaintifs building-Liability of defendant-Origin of fire- Unauthorized act of third person-Finding of fact.
V. MCNEILL............
5 - Bodily injuries - Member of religious community injured- Loss of services-Disbursements-Right of action in damages by the community against
NEGLIGENCE-Continued negligent party-Whether right of action is limited to the "immediate victim"-Action de in rem verso-Quantum of damage- Prescription-Arts. 1053,
1056, 1074, 1075, 2261 (2), 2262 (2) C.C.] respondent, a Montreal religious community, sued the appellant company to recover damages alleged to have been sustained by the community, as the result of one of its members, Brother Henri-Gabriel, being injured while travelling in an omnibus belonging to the appellant. The action was brought more than a year, but within two years, after the time of the accident.
The claim consisted of $4,780 for expenses incurred by the community in medical and hospital care; of $118 for the value of clothing, etc., destroyed in the accident, alleged to be the property of the community; and of $10,000 for damages due to the loss of services of the injured brother. The trial judge assessed the respondent's damages at $4,000, of which $2,236.90 was allowed for out-of-pocket expenses, and the balance on account of the claim for other damages; and this decision was affirmed by the appellate court. It was also found by the trial judge and unanimously upheld on appeal that the injury was attributable to fault and negligence of an employee of the appellant for which it was responsible; and no appeal was taken to this court against that finding. The questions arising on this appeal are, (a) whether the respondent has, or ever had, the right of action which it asserts; and, (b) whether its claim is barred in whole or in part by the limitation provision of par. 2 of art. 2262 C.C.1 (affirming in part the decision of the Court of King's Bench (Q.O.R. 46 K.B. 96) ), that the respondent has a right of action against the appellant company, but that it is entitled to recover only the sum of $2,236.90 for the expenses incurred by it as a result of the injuries sustained by the member of the community. Mignault and Rinfret JJ. dissenting.- He , also, Mignault and Rinfret JJ. dissenting, that the plaintiff was within the purview of the word "another" ("autrui") as used in article 1053 C.C., and therefore entitled to maintain this Article' 1053 C.C. confers on every person, who suffers injury directly attributable to the fault of a third person as its legal cause, the right to recover from the latter the damages sustained. The suggestion that the right of recovery under that article should be restricted to the "immediate victim" of the tort involves a departure from the golden rule legal interpretation
(Beal, Legal Interpretation, 3rd ed., p. 80) by refusing to the word "another" ("autrui") in article 1053 C.C. its ordinary meaning; and such interpretation would be highly NEGLIGENCE-Continued dangerous and would result in the rejection of meritorious claims.
Moreover, it is not necessary so to restrict the scope of article 1053 C.C. in order to give full operation to the terms of article 1056
C.C., as nothing in this latter article suggests an intent to narrow the scope of article 1053 C.C., save "where the person injured
*
*
* dies in consequence"
and the claim is for "damages occasioned by such death."-Held, also, that the respondent's action is not prescribed.
The action is "for damages resulting
*
*
*
(a) quasi-offence"
is prescribed by two years only (article
2261 (2) C..), and is not one for "bodily injuries" prescribed by one year (article
Mignault and Rinfret
JJ. not expressing any opinion.-Per
Anglin C.J.C. and Smith J.-The provisions of article 1056 C.C. may not be necessary to support the actions for which it provides; but their presence cannot justify narrowing the purview of the clear terms in which article 1053
C.C. is couched, except so far as may be necessary to exclude from it the special cases for which article 1056 C.C. provides.
The respondent is entitled to be adequately compensated on the footing of loss of benefits reasonably to be expected from a continuance of the services of the injured member. The appeal should be dismissed with costs.-Per Mignault and
Rinfret JJ. (dissenting)
.-The respondent had no status to bring the action which should have been dismissed by the trial judge.
Article 1056 C.C., together with article 1053 covers the whole ground of liability in cases of bodily injuries and both articles must be construed together. Article 1053 C.C. establishes the foundation upon which such liability will rest, and article 1056 C.C.
enacts in what circumstances and in favour of what persons the liability will exist.
Therefore, it follows that the word "autrui" ("another") in article
1053 C.C. connotes "la partie contre qui le ddlit ou quasi-ddit a i commis" ("the person injured by the commission of an offence or a quasi-offence") contained in article 1056 C.C.; and that person cannot be any other than the
"immediate victim."
In the province of Quebec, in cases of bodily injuries caused by fault, the right of action belongs solely to the
"immediate victim" during his lifetime and, after his death, exclusively to the persons enumerated in article 1056 C.C.- Per Mignault and Rinfret JJ. (dissenting).
-The respondent might have had a right to recover the amount of expenses incurred by it for medical and hospital care, by means of the action de in rem verso;
but, as such, it would be prescribed by the expiry of one year under article 2262
Anglin C.J.C. and Smith J.
NEGLIGENCE-Concluded dubitantibus. - Per Lamont
J. respondent cannot succeed as to its claim for loss of services.
To be entitled to maintain such an action, a legal right to such services, and the loss thereof, must be established.
The contractual relation of master and servant did not subsist between the respondent and the injured brother and, upon the evidence, neither the brother nor the Congregation ever considered they were creating any legal relationship between them. Therefore, the fault of the appellant company did not deprive the respondent of the brother's services, to which it had no legal right. Anglin
C.J.O. and Smith J. contra.
& MARIE.................... 6-Municipal corporations against municipality for injuries sustained by fall upon an icy sidewalk-Dismissal of appealfrom judgment of Appellate Division, Ont. (63 Ont. L.R. 247) sustaining judgment at trial for damages against municipality. CrrY or v. MuRPHY ....... 7-Master and servant- Negligence of servant-Liability of master-Scope of employment-Failure to extinguish fire started in wilderness for cooking purposes -Contract providing that the servant was to board himself-Mining.............. S-Street railways-Tramcar at night overtaking and striking sleigh on track- Degree of care required of railway company -Duty as to power of headlight ...... 9-Street railways-Person waiting on platform on street to board approaching street car injured through the car striking the platform-Platform provided and maintained and kept in repair by municipality- Liability of street railway company... 538 10---Criminal negligence,
11-See
12-See 1.
NEW TRIAL
NOTARY - Agency - Representations to obtain renunciation to a privilege - Unpaid creditor-Liability of the notary. 2-Drawing of will-Clause directing his employment to execute the will-Impropriety- Notary receiving instructions from beneficiary-Consent given by testator after reading of the will-Serious possible diffi- NOTARY-Concluded culties arising out of such action.] There is impropriety, to say the least, for a notary to insert in a will passed before him a clause by which the testator directs that the executors and the heirs shall employ him for the execution of the will.
It is consonant to sound legal principle and even to public order, that a deed passed before a notary do not contain any stipulation in his favour.-Comments upon the serious difficulties that may be created through the action of a notary who, after receiving instructions for the drawing of a will from the wife of the testator, she being favoured by its terms, merely registers the consent of the testator given after the reading of the will to him.-Judgment of the Court of
King's Bench (Q.R. 44 K.B. 207) aff.
ST.-DENIs v.
OPTION
See CONTRAcT 4.
PARENT AND CHILD-Title to land- Father claiming right to property standing in son's name-Conflict of evidence- Findings at trial--Estoppel-Presumption and onus arising from relationship and other circumstances-Alleged attempt, by conveyance, to defeat creditors, as disentitling to relief of re-conveyance--Circumstances of conveyance-Exemptions Act,
Alta.] Plaintiff claimed that his homestead which he had conveyed to defendant, his son, was held by defendant in trust for him and should be reconveyed;
also that he was entitled to an interest in two other parcels of land standing in the defendant's name. The trial judge
(Boyle J.) held, on the evidence, in plaintiff's favour as to the homestead, and against him a§ to the other parcels. The
Appellate Division, Alta., reversed his judgment as to the homestead, and affirmed it as to the other parcels. Plaintiff appealed.-Held, that, on the evidence and the circumstances of the case, the findings at trial should not be varied by an appellate court; and that the judgment at trial should be restored plaintiff's favour as to the homestead, and should stand as to the other parcels.
further, as to a certain document signed by plaintiff reciting the ownership of the homestead to be in defendant and purporting to give plaintiff certain rights thereon, that, in view of all the circumstances under which it was signed, the plaintiff was not estopped from asserting his claim. A presumption arose from the relation of the parties, the nature of the document, and the other circumstances, which cast upon defendant the duty to explain and satisy the court that plaintiff realized what he was doing and acted as a voluntary agent; and there was no satisfactory evidence to overcome or rebut that presumption.
The law as stated in
PARENT AND CHILD-Concluded Pollock's Principles of Contract, 9th ed., p. 648 et seq., quoting from Smith v. Kay, 7 H.L.C. 750, at p. 779, and from Tate v. Williamson, L.R. 2 Ch. App. 55, at61 approved. Turner v. Collins, L.R. 7 Ch. App. 329, at p. 338, and Inche Noriah Binte Mohamed Tahir v. Shaik Allie Bin Omar Bin Abdullah Bahashuan, 45 T.L.R. 1, also referred to.-Held, further, that there was not shown, in the circumstances of the conveyance of the homestead by plaintiff to defendant, any attempt to defeat creditors, so as to disentitle plaintiff to the relief claimed. Scheuerman v. Scheuerman, 52 S.C.R. 625, distinguished on the facts, and commented on as follows: "The facts in the Scheuerman case were special; that decision depends upon its own facts, and there does not seem to be that unanimity in the reasons handed down by the judges constituting the majority that is necessary for a ruling Further, under the Exemptions Act of Alberta, the homestead is exempt from seizure under execution, and therefore, if there be any creditors of plaintiff, the conveyance does not prejudice them. KnYs v. K s..................... PARTY WALL
PATENT - Validity - Invention - Novelty-Manufacture and importation- Patent Act, R.S.C., 1906, c. 69, s. 38- Patent Act, 1923, c. 23, ss. 40, 41 66 1 The judgment of the Exchequer Court of Canada, [1928] Ex. C.R. 112, holding that the patents in question (for improvements in trainmen's lanterns), relied on by plaintiffs, were valid, and had been infringed by defendant, was affirmed. It was held that, in the combination patented, there was invention, novelty usefulness and commercial value- and that (in regard to the patents' vaidity) no violation was shown of any statutory provision as to manufacture and importation.-All matters of manufacture and importation prior to the coming into force of The Patent Act of 1923 (c. 23) are governed by the provisions of the earlier Act which it replaced.
After the Act of 1923 came into force, questions of manufacture and importation were governed by its provisions; and under them the Commissioner of Patents is curia designata to determine such questions; as to which, therefore, the Exchequer Court of Canada, in an action brought in that court, has no jurisdiction. E. T. LTD. THE ADAus 2-Refusal by Commissioner of Patents of application for patent-Want of invention-Improvements in coke ovens. PATENT-Concluded
3 - Promissory note - Consideration for note-Consideration alleged to be purchase money for interest in patent right- Bills of Exchange Act, R.S.C., 1927, c. 16, s. 14-Endorsement operating as an "aval"
-Bills of Exchange Act, s. 131 ......
-- Royalties for license to manufacture under patent not purchase money of a patent right....................
See PRouIssoRY
PETITORY ACTION-House erected on land not owned by builder-Consent or knowledge of the owner-Possession-Good or bad faith-Sale of house by the sheriff and right of purchaser to keep it on land- Arts. 412, 417 C.C.................
PLEADINGS - Observations as to construction and efect of pleadings; surprise
(Art. 110 C.C.P.).................
2- "Dispute," existence of shewn by allegations and demands in statement of claim..........
.........
POSSESSION-House erected on land not owned by builder-Consent or knowledge of the owner-Possession--Good or bad faith-Sale of house by the sheriff and right of purchaser to keep it on land-Arts.
412, 417 C.C......................
See REAL
PRESBYTERIAN CHURCH IN
CANADA
PRESCRIPTION
PRINCIPAL AND AGENT
PRIVILEGE-Claim to, by supplier of materials-Houses built on different lots of land at the same time and by the same builder-Registration of single or separate privileges-Arts. 376, 2013, 2013e, 2167,
2168 C.C.-Bankruptcy Act, s.
appellants, Gadbois and Coll6, were owners of nine lots bearing subdivision numbers 185 to 193, inclusive, of lot No.
37, in the parish of Montreal.
They entered into a contract in writing with the builders, now defendants, Boileau and Cordeau for the construction of nine duplex houses (one detached and the other eight semi-detached) on the above mentioned lots. The plan prepared by the architect shewed that each house should be wholly situate on one of the subdivision lots. The builders made arrangements with the respondent company for the purchase of materials to be used in the construction of these houses
PRIVILEGE-Continued and obtained materials from it to the amount of $18,288.53.
Before the builders had completed their contract, the appellants became bankrupt and trustees in bankruptcy were appointed; as a result, the builders were also compelled to make an assignment and a trustee was appointed.
Before the completion the last house, the respondent, to preserve the privilege given by law to a supplier of materials, registered against the above mentioned lands its account for all the materials supplied to the builders for the construction of the nine houses, showing a balance of $12,193.30 still unpaid; and within three months thereafter the respondent brought action against the builders personally and their trustee in bankruptcy and impleaded the appellants (mis-en-cause) as owners of the property burdened with the privilege and also their trustees in bankruptcy.- Held, reversing the judgment appealed that the respondent was not entitled to claim any privilege as supplier of materials.
His notice of registration had not been given in conformity with the enactments of the civil code, if one considers the provisions which give to the supplier of materials a privilege on the immovable of the proprietor on whose lot or lots a building is erected (art. 2013e C.C.) in conjunction with the provisions of the law relating to the registration of titles to land according to the cadastral numbers of the lots into which it is subdivided (art. 2167-8 C.C.). -Munn & Shea Limited v. Hogue Limite S.C.R. 398) discussed and distinguished.-The principle laid down in that case that a supplier of materials may register, under certain circumstances, a single privilege for the full amount of his claim against several lots as a whole, must be limited, in its application to the present case, to each pair of semi-detached houses, i.e., the respondent here, provided he registered a proper memorial, was entitled to a privilege on each pair of semi-detached houses for the unpaid price of its materials entering into the construction of each pair respectively; but it was not entitled to a single privilege on all the lots and houses for the balance of its claim for materials supplied which entered into the different buildings erected on the nine lots.-Held, also, that the respondent was not obliged to obtain leave of the bankruptcy court (s. 24 of the Bankruptcy Act) before taking its action against the appellants (owners of the lots), as the present proceedings so far as they relate to the enforcement of the privilege against the appellants' immovable are not proceedings "against the property or person of the debtor," the defendants being in this the "debtors."
fact that PRIVILEGE-Concluded judgment has been irregularly rendered against the "debtors" defendants without leave of the court does not constitute a defence by the appellants to the enforcement of the privilege.
v. SrIM- CO.... 587
PROCLAMATION
PROMISSORY NOTE - Consideration for note-Consideration alleged to purchase money for interest in patent right- Bills of Exchange Act, R.S.C., 1927, c. 16 a. 14-Endorsement operating as an "aval'
-Bills of Exchange Act a. 131.]
G. owed
T. Co. $2,000 for royafties accrued under an agreement by which T. Co. had granted G. certain rights to manufacture under a tube patent owned by T. Co.
Being pressed for payment, G. got M. to sign and hand to him a promissory note for $2,000 payable to T. Co., which G.
endorsed and delivered to T. Co., which accepted it, reserving its rights for payment of the royalties if the note was not paid. After maturity T. Co. transferred the note for value to plaintiff who sued
M. and G. upon it. Defendants, among other things, pleaded s. 14 of the Bills of
Exchange Act.
At the trial it was disclosed (neither T. Co. nor plaintiff having had any previous knowledge thereof)
that M. had purchased from G. an interest in a certain tire patent (in which
T. Co. had no interest).
It was held by the Appellate Division, Ont., that the money owing by M. to G. on said purchase was the consideration for which the note was given, and, as the words
"Given for a patent right" were not written across it, the note was void under s. 14 of said Act.-Held (Lamont J.
dissenting): The note was not void.
The consideration was not purchase money for a patent right or interest therein.
Consideration must move from the payee (Forsyth v. Forsyth, 13 N.S.
Rep. 380; Dunlop Pneumatic Tyre Co.
Ltd. v. Selfridge & Co. Ltd. [1915] A.C.
847); the consideration for M.'s promise by the note to pay T. Co. could not be a debt due by M. to G., although that debt might have been the motive inducing
M. to hand it to G.
Nor, in the circumstances, could it be said that the consideration consisted in the royalties due by G. to T. Co.; the note was not taken in satisfaction of that claim; there was no novation.
The real consideration given by the payee was the extension of time to G. for payment of the royalties due by him.
The fact that M.
who owed nothing to T. Co., made tie note to it, must have conveyed to him that, at G.'s request, he was undertaking to pay T.
Co. for some consideration moving from it (even if unknown to him) in which G.
PROMISSORY NOTE-Concluded was interested, and to enable G. to obtain which he was accommodating G., and implied a request from M. to T. Co. to accord such consideration.
(Craig v. M. & L. Samuel, Benjamin & Co., 24 Can. S.C.R. 278, dist.)-Royalties for a license to manufacture under a patent are not purchase money of a patent right. (Johnson v. Martin, 19 Ont. A.R. 593, explained).- Held also (as to G.'s contention, invoking s. 131 of said Act, that he was not really an endorser of the note because he was not the holder when he signed it and did not sign it for the purpose of negotiation, and that plaintiff could recover against him only if he was a holder in due course) that G.'s endorsement on .the note before T. Co. took it had the effect of an "aval" and made G. liable to T. Co. and its' assignee, the plaintiff-Robinson v. Mann 31 Can. .C.R. 484; Grant v. Scott, 59 dan. S.C.R. (Moreover, pointed out Steele v. McKinley, 5 A.C. 754, "it is not a collateral engagement, but one on the bill " this disposing of any contention of 6. under the Statute of Frauds). R. E. Jones Ltd. v. Waring & Gillow Ltd., [1926] A.C., 670, which laid down the general proposition that "holder in due course" does not include a payee, had not the effect of overruling Robinson v. Mann. It cannot be said that, by force of s. 131 of the Bills of Exchange Act, one who signs a bill otherwise than as drawer or acceptor incurs liability only towards a holder in due course.
The concluding words of s. 131, "and is subject to all the provisions of this Act respecting endorsers," distinguish it from the corresponding English section, and make clear the intention to introduce into our law the principle of the "aval."-Judgment of the Appellate Division, Ont., (34 O.W.N. 204) reversed (Lamont J. dissenting). GiLROY. 288 PUBLIC UTILITIES-Public Utilities Act Alta.-Hearings and investigations by hoard of Public Utility Commissioners -Powers of Board-Obtaining of evidence -Absence of evidence-Order of Board fixing rates for gas supply in municipality by franchise holder-Return on investment -Inclusion in "rate base" of discount on sale of bonds-Appeal from Board's order- "Question of law.'] The Board of Public Utility Commissioners of Alberta made an order in 1922 fixing rates chargeable for gas proposed to be supplied in the city of Edmonton by the predecessor of the appellant company. The Board fixed the rates on the basis of an allowance of 10% as a fair return on the investment in the enterprise, and in determining the "rate base" (the amount to be considered as invested in the enterprise) it included as a capital expenditure a sum which was PUBLIC UTILITIES-Continued the discount on the sale of the conpany's bonds.
The rates were to continue in force for three years from the date on which gas was first supplied. In
1926 the appellant company applied for continuation of the rates. On this application the city objected to such a high rate of return and to the inclusion in the rate base of the item for bond discount.
The Board continued said item in the rate base, but reduced the return to 9% "in view of the elements which go to make up the rate base, and in view of the altered conditions of the money market."
parties appealed leave) to the Appellate Division, Alta., and then to this Court, the company against the reduction of the rate of return, and the city against the inclusion of the bond discount item in the rate base. The company contended that no evidence was adduced before the Board of
"altered conditions of the money market,"
and that, without hearing evidence upon the point and giving the company opportunity to establish that the conditions of the money market had remained unaltered since 1922, the Board acted without jurisdiction in making the reduction.
Under s. 47 of The Public Utilities Act,
1923, Alta., c. 53, as amended 1927, c. 39, an appeal lies from the Board upon a question "of jurisdiction" or "of law,"
upon leave obtained.-Held 1. The company's last mentioned contention involved a "question of law," and therefore it had a right to appeal.-2. The city's appeal failed; the question raised thereon was not one of jurisdiction or law.-3. The company's appeal failed.
The Board had power to reduce the rate of return, notwithstanding that at the hearing before it no witnesses testified as to altered conditions of the money market. The company's contention that to alter the rate of return would be unfair to its shareholders who had invested in the enterprise after the order fixing the rates in 1922, was not a matter open for consideration upon the appeal, as it did not involve a question of jurisdiction or law.
-Per Rinfret and Lamont JJ.: A consideration of ss. 21 (4) (5), 25, 43, and 44 of the said Act, the purposes of the Act, and the extent of the powers vested in the Board, leads to the conclusion that the intention of the legislature was to leave it largely to the Board's discretion to say in what manner it should obtain the information required for the proper exercise of its functions; it was not to be bound by the technical rules of legal evidence, but was to be governed by such rules as, in its discretion, it thought fit to adopt. An inference that it had not the proper evidence before it as to the altered conditions of the money market could not be drawn from the fact that no
PUBLIC UTILITIES-Concluded oral testimony in respect thereof was given at the hearing.
The company had notice that a reduction was sought and that the city was attacking the methods and principles adopted in fixing the rate of return in 1922. This put the whole question of a fair return at large and informed the company that it would have to establish to the Board's satisfaction every element and condition necessary to justify a continuation of the 10% rate; and there was nothing in the record to justify the conclusion that the company had not the opportunity of making proof at the hearing as to the conditions of the money market.-Per Smith J.: The Board has power to reduce the rate of return without evidence; the question of a fair rate of return is largely one of opinion, hardly capable of being reduced to certainty by evidence, and appears to be one of the things entrusted by the statute to the judgment of the Board.
LTn. CIY EDMONTON............. RAILWAY
COMMISSIONERS - ............... RAILWAYS-Leave of Board of Railway Commissioners for operating railway- Jurisdiction of the Board-Railway Act, R.S.C., 1927, c. 170, ss. 52 (2), 276.. 135 2-Contrat-Railway construction- "Extra haul" and "over-haul"-Meaning - Usage........
..............
REAL PROPERTY-House erected on land not owned by builder-Consent or knowledge of the owner-Possession-Good or bad faith-Sale of house by the sheriff and right of purchaser to keep it on land- Arts. 412, 417 C.C.]
P. built a house on land owned by the respondent, his mother in law, to the knowledge and with the consent of the latter.
A judgment creditor of P. subsequently brought both the house and the land under execution. Upon an opposition to the seizure filed by the respondent, judgment was rendered declaring the latter the owner of the land, and P. the owner of the building. The house alone was sold by the sheriff and bought by the appellant who subsequently forced P. to vacate the premises. The respondent then brought an action asking that the appellant should be ordered to remove the building within a certain delay.
The appellant contested the house under the sheriff's deed. He further claimed that he was not bound to vacate the premises unless reimbursed REAL PROPERTY-Concluded his expenses.
The trial judge decided that under these circumstances appellant could keep the house on the respondent's land as long as it subsisted, but he gave the respondent the option to purchase the house for $1,800, the amount at which he valued it. This judgment was set aside by the Court of
King's Bench which held that the appellant was a possessor in bad faith within the meaning of articles 412 and 417 C.C., but allowed him a delay of 15 days to remove the house, failing which removal the house would belong without compensation to the respondent. The appelant having a ppealed from this latter judgment.-Held, reversing the judgment of the Court of King's Bench (Q.R. 44 K.B.
536), that articles 412 and 417 C.C. have no application to this case, nor can the appellant be treated as a possessor in bad faith of the house. The appellant, on the contrary, being the owner of the house by virtue of the sheriff's deed and the judgment on the opposition, can, under all the circumstances, keep it on the respondent's land. The court, however, in view of the appellant's offer in his plea, granted the respondent a delay of six months to purchase the house from the appellant at the amount at which it was appraised by the trial judge.
TREMB- GUAY......................
2-See
RELIGIOUS COMMUNITY-Member of, injured-Negligence-Right of action in damages by the community against negligent party-Loss of services-Disbursements-Whether right of action is limited to the "immediate victim"-Action de in rem verso-Quantum of damages- Prescription-Arts.
1056,
1074,
1075, 2261 (2), 2262 (2) d.C....
RELIGIOUS SOCIETIES
REMUNERATORY DONATION
REQUETE CIVILE
RES JUDICATA
REVENUE-Action by Crown to recover excise tax and sales tax under ss. 19B1 (b)
and 19BBB(1) of The Special War Revenue
Act, 1915 (Dom.), and amendments-Evidence failing to prove manufacture by defendant-Application to receive further evidence (Dom. Statutes, 1928, c. 9, s. 3).]
The judgment of Maclean J., President of the Exchequer Court of Canada, [1928]
Ex. C.R. 219, holding the Crown entitled to recover from the defendant certain
REVENUE---Concluded sums claimed for excise tax and sales tax, under ss. 19B 1 (b) and 19BBB (1) of The Special War Revenue Act, 1915, and amendments, was reversed, on the ground that the evidence although showing that defendant had soid the beer in question, failed to show that defendant had manufattured it. The refused application by the Crown to receive further evidence, under s. 3 of 9 of the Statutes of 1928 (Dom.), holding that no special ground existed to justify it. Co. v. THE SALE OF GOODS-Sale of stock-in-trade of wholesale business-Consideration - Construction of contract-"Cost landed price to the vendor."
2- Stock in trade-Sale in bulk- Noncompliance with Bulk Sales Act-Assignment of the. vendor-Resale by the transferee to a bona fide purchaser-Right of the trustee in bankruptcy to compel the transferee to account-Bulk Sales Act, R.S. N.S. (1923), c. 202-Assignments Act, R.S. N.S. (1923), c. 200.................... 3--Statute of Fraude (now s. 5 of Sale of Goode Act, R.S.O., 1927, c. 163)-Revocation of agent's authority before signing by agent of memorandum............... SALE OF LAND - Misrepresentation- Rescission. HowsoN v. ..... 2-Deed with warranty of "franc et quitte"-Description of the lot-Error as to the cadastral number-Clear title-Rights of the buyer-Arts. 1065, 1507, 1535, 2098, 2172, 2173, 2176 C. C.] The respondent sold to the appellant, with warranty of franc et quitte, a lot of land erroneously described in the deed of sale as the northwest part of lot no. 107 instead of as lot no. 107A. The appellant, alleging such error and also that the property was not clear of encumbrances, brought an action for the resiliation of the sale and the reimbursement of the purchase price and damages.-Held that, seeing the stipulation of warranty of franc et quitte contained in the deed of sale, the appellant had the right to have a property free of all encumbrances that may appear in the entry books of the registry office (page blanche) and that, owing to encumbrances registered upon lot no. 107, the appellant had not a clear title to the property sold to him. But the Court gave the option to the respondent, upon condition of paying all costs, to rectify the titles and have them registered, a certificate of search to be filed with the registrar on or before the 1st of May, showing due performance of this obligation; and, in case SALE OF LAND-Concluded of his failure to do so, the sale would be annulled and the purchase price reimbursed to the appellant.
3-Option of purchase in lease-Terms purchase-Cash payment and "balance arranged"-Attempted exercise of option
-Want of complete enforceable agreement
.................................
SALES TAX
SERVITUDE-Obligation of mitoyennetd
-Exercise of party rights-Contribution towards party wall-Plea of non-mitoyennetd-Acquisition way of prescription- Inscription-in-law-Arts. 510,
512, 532
In an action by the appellant to have the respondent condemned to reconstruct, at his own expense, a wall alleged to be situated on the boundary line between their respective properties.- Held that. upon the the annellant can only charge the respondent and his predecessors with a neighbourly tolerance of his own very slight acts of trespass; and this, in itself, is not sufficient to entitle the Court to impute to them a recognition of the rights of mitoyennetd set up by the appellant.- Morgan v. Avenue Realty Company
Can.
distinguished.
SHIPPING - Collision-Ship in tow colliding with and damaging a moored ship-Whether tow in fault-Liability for fault of tug.]
The steamship P., in winter quarters in Owen Sound harbour, with its engines and steering gear laid up, while being moved (under contract) by a tug to an elevator dock for unloading, went past the dock and collided with the moored steamship S.
The owners of the S. and her cargo brought action in rem against the P. for damages sustained.-Held (1): Upon the facts and circumstances as disclosed by the evidence there was not, during the progress of the towing, any act or omission by those on board the P. constituting a fault causing or contributing to the accident.-(2): Although the S. might not have sustained the damage which occurred if the P's anchor had not been in the position in which it was, and although the P.'s ship-keeper had encouraged the tug's captain to leave it in that position, yet the position of the anchor, if it were a fault, was not the fault of the P.'s owners;
they had put the tug in charge, and their ship-keeper had no authority to direct the stowage of the anchors, for the purposes of the tug; and, moreover, the
SHIPPING-Continued anchor did not cause or contribute to the collision, and its position did not create liability on the part of the owners, upon well-known principles discussed in Admiralty Commissioners v. SS. Volute [1922] 1 A.C. 129.-(3): Assuming, as was justified on the evidence and the course of the trial, that the tug was competent to the service for which it was engaged, the owners of the P. were justified in permitting it to be moved from its moormgs to the elevator under the power, direction and control of the tug, and, being not otherwise guilty of any fault, had incurred no personal liability. Further, having regard to the facts (as found by this Court) that, in the towing, the governing and navigating authority was solely with the tug, that the P. had nopower to assist either in the way of furnishing power or directing her course, that no one on the P. had any authority or duties which were unfulfilled with regard to the navigation, and all orders from the tug were duly executed, the P. was not liable to the plaintiffs for the damage which, in the circumstances, was sustained by reason of the negligence of the tug.
The Devonshire, P. 21, at p. 49; [1912] A.C. 634, at p. 647; Sturgis v. Boyer, 24 How. 110, at pp. 121-123; The Quickstep, 15 P.D. 196, at p. 201; Marsden on Collisions at Sea, 8th ed., p. 195; River Wear Commissioners v. Adamson, 2 App. Cas. 743, at pp. 767-8, referred to. It could not be said that, although the tow was innocent of any fault in itself, a maritime lien nevertheless attached to it, as being the instrument which, by reason of the tug's negligence, caused the injury (The "American" and The "Syria," L.R. 6 P.C. 127; The " Utopia", [1893] A.C. THE J. LINES LTD.............. 34-Collision of ships in fog-Liability-- Breach of rules and 22 of the rules adopted Order in Council of February 4 for the navigation of the Great Lakes.j The steamships Glenross, upward bound and Glenledi, downward bound, collided in a thick fog on Lake Superior, about 7.24 a.m. on June 17, 1926.-Held, that both ships should be held equally liable for the damages caused; the Glenross, on the ground that, on hearing the Glenledi's fog signals, it did not reduce its speed to bare steerageway in accordance with rule 19 (of the rules adopted by Order in Council of February 4, 1916, for the navigation of the Great Lakes); the Glenledi, on the ground that, when the Glenross blew its first one-blast signal (indicating, under rule 21, that it was directing its course to starboard), and the second mate and watchman on the SHIPPING-Concluded
Glenledi reporting to its captain that they thought they heard such a signal, and the captain being in doubt, it failed to sound immediately the danger signal in accordance with rule 22 (instead of giving, as it did, the usual fog signal); even if it were at a standstill at the time of the collision
(which the evidence did not seem to establish), that fact would not be an answer to a charge of breaking rule 22 which required it to give a warning to the other ship; and it was impossible, under all the circumstances, to say that the absence of a warning did not contribute to the collision.
The fact that the captain of the Glenross, when hearing fog signals from the other ship, changed its course one point to starboard (immediately indicating this by signal), was not, of itself, under the circumstances, a ground of liability against the Glenross.
TEw
SOLICITOR-Director of company acting as its solicitor-Claim for payment for legal services-Whether a "trustee" within s. 56 of the Trustee R.S. N.S., c. 212.1 Plaintiff, who was a director and vice-president of defendant company, acted as its solicitor (although not formally appointed as such) in a great number of matters, and was consulted, and his advice sought, by his co-directors and the officers of the company.
His co-directors were aware of his so acting, and he was paid substantial amounts on account of the legal services rendered from time to time. He sued on an account for legal services rendered.-Held, reversing judgment of the Supreme Court of Nova
Scotia en banc ([1929] 2 D.L.R. 519), that he could not recover; his position as director of the company incapacitated him from engaging as its solicitor, on principles of law laid down in Aberdeen
Ry. Co. v. Blaikie, Bros., 1 MacQueen,
461, at p. 471; North-West Transportation
Co. v. Beatty, 12 App. Cas., 589, at p. 593;
Broughton v. Broughton, 5 De G. M. & G.,
160, at p. 164. He was not a "trustee"
within the meaning of the enabling s. 56 of the Nova Scotia Trustee Act, R.S.N.S.,
In re Lands Allotment Co.,
[1894] 1 ch. 616, distinguished.
ROWLINGs........................
STATUTE OF FRAUDS
STATUTE OF LIMITATIONS
STATUTES-Act to come into force day to fixed proclanion-Proclamation fixing day-Appointment made under the Act before it came into force- Validity of appointment- Nova Scotia Acts, 1923, 30; 1924, 54; R.S. N.S. 1, s. 23 (44)-Imprisonment under The Collection Act, R.S. N.S., 232-Habeas corpus.] The were imprisoned under The Collection Act, R.S.N.S.,
1923, c. 232, for fraudulently contracting a debt which formed the subject of a judgment in the Supreme Court of Nova Scotia, they "intending at the time of the contracting of said debt not to pay the same."
Their appeal to this Court was from the judgment of the Supreme Court of Nova Scotia en bane affirming (on equal division) the judgment of Mellish J. refusing, return a discharge them from custody. The appellants attacked the committing order, mainly on the ground that M., the Examiner who committed them (and whose adjudication was, appeal, affirmed by Harris C.J., who, however, set aside the warrants issued and directed the issue of a new warrant), had no jurisdiction, as his appointment was void. S. 1 of c. 30, 1923, provided for the appointment of one or two Examiners for the city of Halifax. The Act was to come into force on a day to be fixed by proclamation.
On the same day-May 23, 1924-M. was appointed as an Examiner for the city of Halifax. Appellants contended that his appointment was void, because made under the authority of a statute that was not in force at the time of his appointment.- Held (affirming the judgments below) that the proclamation that c. 30, 1923, as amended, should come into force on June 1, 1924, had the same effect as if that date had been fixed by the statute itself as the date when it should become effective as law; and it was common ground that in the latter case appointments could be made in anticipation of the statute coming into force; the proclamation made that certain which had been contingent; it must be presumed that everything was done regularly unless the contrary was shown; the proclamation and order of appointment bore the same date and were gazetted the same day; and it must be presumed that the proclamation preceded the appointment; the appointment was, therefore, valid, and this ground of appeal failed.-Held, also, that the appeal failed on the other grounds taken; as to the contention that the evidence before the Examiner and, on appeal, before Harris C.J., did not disclose any fraud within the meaning s. 27, subs. 1 (a) and (d) of The Collection
Act, it was held that the evidence could not be gone into for the purpose of ascertaining whether there was anything in it to warrant the finding of fraud; the principle of the decision in R. v. Nat.
Bell Liquors,Ltd. [192212 A.C. 128, applied.
HUYBERS.............
2 - Priorities of taxes, rates or assessments imposed by federal and provincial laws-Conflict- Preference-Bankruptcy-The Special War
Revenue Act (1915)
5 Geo. V, c. 8, as amended by 12-13 deo. V, c. 47, .
17- Bankruptcy Act, 9-10 Geo. V c 36, a. 51
(6)-Interpretation Act, R.S.C., *1906, c. 1, s. 16-R.S.Q. (1909), s. 1357-Art. 1985
3--Construction-Looking at whole scheme and purpose of legislation-Effect of proviso-Implied declaration of legislature.........................
4- (Imp.) B.N.A. Act, 1867.200, 409,
See 2, 3, 4.
5- (Imp.) Real Property Limitation
Act, 1874, c. 57, s. 8...............
6- R.S.C. [1906] c. 1, s. 16 (Interpretation Act)......................
7-R.S.C. [19061 c. 69, 38 (Patent
8- R.S.C. [1906] c. 71 (Trade-Mark and Design Act) ...................
9- R.S.C. [1927] c. 11, 8. 64, s. 174
(Bankruptcy Act)..................
10- R.S.C. [1927] c. 11, 24 (Bankruptcy Act)....................
11-R.S.C. [1927] c. 16, as. 14, 131
(Bills of Exchange Act) .............
12-R.S.C. [1927] c. 26
(Combines
Investigation Act)..................
13-R.S.C.
(Combines
Investigation Act)..................
R.S.C. [1927] 35, 39 (Supreme
Court Act)........................
15-R.S.C. [1927 c. 35, s. 41, cl. (f) (Supreme Court Act)............. R.S.C. [1927] c. 35, s. 57 (Supreme Court Act)........................ See CORPUS.
17-R.S.C.
c. 36
18- R.S.C. [19271 c. 42, 217 (Customs ...........
....... R.S.C. [1927] c. 170, es. 52 (2), 276 (Railway Act)................. 20- R.S.C. [1927] c. 201, s. 4 (Trade- Mark and Design Act) ............. See TRADE-MARK.
21-(D.) 42 Vict., c. 9, ss. 37, 39 (The Consolidated Railway Act, 1879).... 22-(D.) 44 Vict., c. 1 (An Act Respecting the Canadian Pacific Railway)... 135 23-(D.) 3-4 Geo. V, c. 9 (The Bank 24-(D.) 5 Geo. V, c. 8 (as amended by 12-13 Geo. V, c. 47, 8. 17) (The Special War Revenue Act)................ 25-(D.) 5Geo. V, c. 8 (as amended), ss. 19 B 1 19 BBB (1) (The Special War Revenue Act, 1915) ................. (D.) 7-8 Geo. V, c. 28 (Income War Tax Act, 1917).................... .27-(D.) 9-10 Geo. V, c. 36, 8. 51 (6) (Bankruptcy Act).................. (D.) 13-14 Geo. V, c. 23, s. 40, 41, 66 (Patent Act).................... (D.) 14-15 V, 100 (The United Church of Canada Act) ...... 30- (D.) 18-19 Geo. V, c. 9, 3 (An Act to amend the Supreme Court Act). 646 31-R.S.O. [19141 c. 28, 8. 47 (Public Lands Act).....................
(as enacted by 12-13 Geo. V, c. 78), s. 95
34- R.S.O. [1927] c. 163, s. 5 (Sale of
Goods Act)........................
35-R.S.O. 238, s. 1 4
(Assessment Act) .............
R.S.O. [1927] c. 251 ss 9, ( 1),
41 (1) (Highway Trafic Act.......
37-(Ont.) 12-13 Geo. V, 72, ss. 249
(1), 297 (Consolidated Municipal Act,
1922)............................
38- (Ont.) 14 Geo. V, c. 50, s. 179
(Ontario Insurance Act) ............
39- R.S.Q. [1909] s. 1357 (Taxes on
Corporations, etc.; Privilege for taxes). 557
40- R.S.Q. [1909] ss. 7027, 7028 (Insurance contracts).....................
41-R.S.Q. [1925] c: 16, s. 5 (Attorney General's Department Act) ......
42-R.S.A. [1922] c. 90, s. 3 (Limitation of Action Act).....................
43-R.S.A. [1922] c. 95 (Exemptions
44- R.S.A. [1922] c. 98, s. 5 (Arbitration A ct)..........................
45-R.S.A. 54 (Land
Titles Act)........................
46-R.S.A. [1922], c. 160 (Co-operative
Associations Act) ..................
17-(Alta.) Geo. V, 53 (as amended by 17 Geo. V, c. 39) (Public Utilities Act)
.
.
..................
48-(Alta.) 14 Geo. V, c. 7 (An Act respecting The Alberta Co-operative Wheat
Producers, Ltd.) .................
R.S.B.C. [1911] c. 6 (Agricultural
Associations Act)..................
STATUTES-Concluded
50-R.S.B.C. 1, 23 (Interpretation Act) ................
51-R.S.B.C. [1924] c. 82, 8. 11 (Evidence 52-R.S.B.C. [1924] c. 97, 8. 3 (2) (Fraudulent Preferences Act) ....... 53-R.S.B.C. [1924] c. 127, s. 2 (Land Registry Act)...................... 54- R.S.B.C.
Settlement and Development Act) .... 55-R.S.B.C. [1924] c. 244 (Succession Duty Act)......................... (B.C.) 10 Geo. V, c. 19 (Co-operative Associations Act).................. 57-R.S.N.S. [1923] c. 1, s. 23 (44), (The Interpretation Act)............ 58-R.S. N.S. [1923] c. 200, s. 21 (1), (Assignments Act) ...
..........
59-R.S.N.S. [1923] c. 202 (Bulk Sales 60-R.S.
N.S.
212, s. 56 (Trustee A ct)...................... 61-R.S.N.S. [1923] c. 232 (The Collection A ct)....................... 62-(N.S.) 13 Geo. V, c. 30 (Act to amend The Collection Act) .......... 63-(N.S.) 14-15 Geo V c. 54 (An Act to amend c. 30 of 1923 and The Collection . . . .. .. ........ . . . .. 38 64- (N.S.)
14-15 Geo. V, c. 122 (The United Church of Canada Act) ...... STAY OF ACTION
STREET RAILWAYS - Tramcar at night overtaking and striking sleigh on track-Degree of care required of railway company-Duty as to power of headlight.] Defendant operated a street railway between Winnipeg and Selkirk, its line running along the west side of a highway. Between the railway and the STREET RAILWAYS-Continued main travelled road there was a ditch.
The ties and rails were above the ground level.
There were built up crossings across the ditch and railway.
Plaintiff was driving along the road after dark on
January 2, 1926, when his horses ran away.
They turned over one of said crossings on to the prairie, made a circuit and came back to the crossing and turned and ran along the railway where they were, further on, overtaken and struck defendant's tramcar, motorman, who was going at 30 miles an hour, not having seen them in time to stop before hitting them.
Plaintiff sued for damages. The headlights used on defendant's cars standard equipment of similar cars on this continent. But the motorman testified that he had had trouble on his trip that evening from Winnipeg to Selkirk with dimness of the light; he had changed the carbon at
Selkirk, but still had trouble with dimness on the trip back to Winnipeg, on which the accident happened; when the light was working with full efficiency he ahead; he had made emergency stops in about three pole lengths; he did not see plaintiff's outfit until he was about one pole length away.
Evidence was given that after the accident the light was tested and found in good condition.
expert testified that in all arc lights there is a variation in brightness, due to automatic adjustment in the carbon, causing momentary dimness, and to the light being affected by line voltage.
The jury found defendant negligent in "not having any man on duty at Selkirk capable of making adjustments to the lights or other equipment to the car before leaving
Selkirk on the night of the accident"; but this finding being deemed unsatisfactory in view of the pleadings, the jury, after further directions, added: "as the evidence submitted shows the headlight was not sufficiently powerful to illuminate the track for the motorman to see an object far enough ahead to avoid the
Plaintiff recovered judgment, which was sustained by the Court of
Appeal (37 Man. R. 320).-Held (Anglin
C.J.C. and Lamont J. dissenting):
judgment below should be reversed, and the action dismissed.-Per Newcombe and Smith JJ.: Defendant had no obligation to keep a man on duty at Selkirk;
moreover, plaintiff had not alleged failure to do so as a ground of negligence.
As to the added clause, it did not, view of the evidence and the judge's charge, imply a finding of excessive speed; nor did it imply that the headlight in question had some particular defect causing it to function less effectively than defendant's headlights ordinarily functioned-there was no evidence on which a jury could
STREET RAILWAYS-Continued reasonably so find, and they had not found any such defect in terms; the only negligence found was failure in a duty which, in the jury's opinion, as indicated by their finding, was on defendant, to have a headlight sufficiently powerful to enable the motorman to see plaintiff in time to stop before hitting him; and defendant's duty in law did not go that far; it was bound to operate its cars with the care that a reasonably prudent person would exercise under the circumstances: in view of the position and construction of the railway it had no reason to anticipate that a person might be going along on the railway with his team; and it was not bound to use such a degree of care as to insure against accident under such extraordinary circumstances as had placed the plaintiff in such a situation. Its duty to use reasonable care required it to have a headlight of reasonable efficiency, having regard to the state of the art, and such duty was complied with.-Per Rinfret J.: The added clause indicated no intention of introducing a new and independent finding of iL the verdict as it stood formerly, except that it disclosed the reason for the original answer. It did not improve the unsatisfactory finding.
But, looking upon it as a separate finding of negligence-if it meant that defendant was under the duty to have on its cars headlights of sufficient power to illuminate the track so as, under all circumstances, to avoid an accident, the verdict was without legal grounds to maintain it; if it meant that the headlight on this particular car was insufficient, the answer was twofold: (1) the uncontradicted evidence was that it was the best type of light to be found' (2) there was no evidence that the headlight was out of order. The dimness which, for some reason not explained, temporarily existed, and which was not common to the type nor due to any defect in the particular light, might have been a reason for finding the motorman at fault in driving at that rate of speed under the circumstances; but that was not the finding; moreover, the question of speed had been withdrawn from the jury. In view of the position and construction of the railway defendant could not reasonably be held to have been bound to anticipate what occurred.-Per Anglin C.J.C. and Lamont J. (dissenting): The jury found, in effect, that, under the circumstances, defendant was negligent in not having on the car a headlight functioning with sufficient power to enable the motorman to see objects on the track in time to stop before hitting them. Whether defendant's common law duty to exercise "that care which a reasonably prudent man would exercise under the circumstances" was complied with, was a question of fact; and there STREET RAILWAYS-Continued was evidence to justify the jury in finding that it was not complied with; that the particular headlight in question was inadequate, considering the hour, place, and speed of the car. Plaintiff had a right to be on the track (having regard to the relevant statutes and the agreement between defendant and the municipalities through which its line ran), subject only to obligation to give right of way. Defendant had reason to anticipate that the public might go on its track. The supplying by defendant to its cars of headlights of such power, when at full efficiency, as it did supply, was most cogent evidence against it as to what a proper headlight should do, and this standard of care established by defendant itself might well have been taken by the jurty to be that which a reasonably prudent man would have adopted under the circumstances.
Also, the statutory requirement to "provide adequate equipment" for the
"efficient working and operation of the railway"
would include an effective headlight. The jury's finding that the headlight would not illuminate the track far enough ahead for safety, was sufficient, without a finding of any particular defect.
Also, it could not be said that defendant discharged its full duty by equipping the car with a standard healight, if that headlight, for some reason or other, did not function; its duty was to supply an adequately functioning headlight.
(Anglin C.J.C. held also that, should the jury's finding be deemed insufficient to support a judgment for plaintiff, there should be a new trial, because of misdirection on the issue of excessive speed and insufficiency of a
Suestion put to the jury.)
Ry. Co.
PoNEK ...
..................
2- Negligence-Person waiting on platform on street to board approaching street car injured through the car striking the platform-Platform provided and maintained and kept in repair municipality- Liability of street railway company.]
Plaintiff, while standing on a platform or
"island" at a city street corner in order to board an approaching street car of the defendant, was thrown off her feet and injured by the car striking the platform.
The platform was provided and maintained and kept in repair by the city.
Plaintiff claimed damages against the defendant street railway company.- Held, reversing judgment of the Manitoba
Court of Appeal, 37 Man. R. 412, that defendant was not liable. It could not be said that defendant owed a duty to plaintiff to see that the platform was maintained " at a safe distance from the rail", or "to take care that it could be used in safety by the persons who went
STREET RAILWAYS-Concluded upon it " waiting for and entering defendant's cars. The platform was one of the appurtenances of the public street. It was,-as such, under the care of the municipality, and persons using it, as a stopping place while crossing the street, or for waiting for a street car or other public conveyance, were doing so under such guarantees of safety as the municipal control and the duties incident to that control might provide.
In no pertinent sense could it be said that such persons used the platform "at the invitation of the defendant."
The fact that defendant made the platform one of its stopping places involved no assurance by it that the municipality had discharged its duty in respect maintenance repair. ZEIDEL.. 3-See 2.
SUCCESSION DUTIES - Succession Duty R.S.B.C. 1924, 244-Valuation of mining company shares-"Fair market value" at date of death-Method determining-Price on stock exchange- Question as to allowance for market depression if large block placed for sale-Constitutional law-Imposition of duty under said Act as to shares of British Columbia company owned deceased domiciled abroad-" Property situate within the province"-Taxation within the province- Direct or indirect taxation.] U. died domiciled in the State of New York and owning a large block of shares in a British Columbia mining company.
Shares of the company were dealt with on several stock exchanges.
The executors of his estate appealed from the judgment of the Court of Appeal for British Columbia (39 B.C. Rep. 533) affirming the finding of a commissioner, appointed under s. 30 of the Succession Duty Act, R.S.B.C. 1924, c. 244, as to the "fair market value," for succession duty purposes, of U.'s shares at the date of his death.-Held: The value found below should stand, as it could not be said to exceed the fair market value.-In such cases, where the market price has been consistent and not spasmodic or ephemeral, that price should determine the "fair market value"; no deduction should be made on the assumption that all the deceased's shares would be placed on the market at once, thus depressing the market value, as no prudent stockholder would pursue that course.-Held, further, that the shares in question were "property situate within the province" within the meaning of said Act (Brassard v. Smith, A.C., at p. 376, referred to), and that the taxation imposed under said Act in respect of the shares was direct taxation, and intra vires.
ArORNEY BRITISH Presumption against - Motive-Evidence..................
TIMBER-Destruction of by fire-Liability.............................
TRADE-MARK-Suit to vary registration of specific trade-mark by restricting its use-Class merchandise of a "particular description"
(Trade-Mark and Design
R S C
1927, c. 201, s. 4)-Distinc'ion in th trade-Nature and uses of and course of trading in, the goods-Refusal of registration of proposed trade-mark- Alleged resemblance to existing trade-mark
-Possibility of deception-Onus in attacking decision of departmental tribunal- Use on goods of name of predecessors in title.]
Appellant had a registered specific trademark "Cameo Soap" to be used in connection with the sale of soap, and for many years had manufactured and sold a yellow bar soap under that name.
There is a distinction broadly observed in the soap trade between "laundry soap"
"toilet soap,"
depending largely upon shape, dimensions, and convemence or indication for use; but some soaps classified as "laundry soaps"
are extensively used for toilet purposes, and laundry soaps and toilet soaps are largely sold by the same dealers. Appellant's said soap, although listed in its catalogues and price lists, and known in the trade, as a "laundry soap," was extensively used also for toilet purposes.
In February, 1927, appellant decided to produce and sell a white soap in cake form suitable for toilet purposes, and to use in connection therewith said trademark. This soap was first announced in its catalogue in January, 1928. Respondent had, in 1926, applied for, and in January, 1927, obtained, in the United
States, registration of the word "Camay"
as a specific trade-mark for "toilet soap"; and in May, 19271 applied in
Canada to register "Camay' as a specific trade-mark to be used in connection with the sale of a "toilet and bath soap,"
which application was refused because of appellant s registered trade-mark. In an application and an action by respondent in the Exchequer Court, orders were made for registration of its trade-mark and for restricting appellant's trademark to laundry soap.- Held (1): Appellant's trade-mark should not be so restricted. Considering the nature of the goods, the uses to which they were put, and the course of the trade in them, it could not be said that "laundry soap"
and "toilet and bath soap" are each a
"particular description" of goods, within the meaning of the Trade-Mark and
TRADE-MARK--Concluded
Design Act.
The use by other traders of the same trade-mark m respect of any soap would be likely to give rise to deception or confusion, against which the law was intended to give protection. Edwards v. Dennis, 30 Ch. D. 454, and John Batt & Co. v. Dunnett, [1899] A.C. 428, distinguished.-(2): The refusal by the departmental tribunal to register the word 'Camay" as a specific trade-mark should not be disturbed, it not being demonstrably wrong.
One challenging its decision must establish affirmatively that if the proposed word is registered deception will not result. On this question it is the ultimate purchasers who are to be considered.
That the word "Camay,"
when vocalized, has a strong similarity to the French word "cam6e, was, in view of conditions in this country, a fact to be cons'dered.-(3): Appellant should not be held to have lost its rights by using on its yellow bar soap the name of its predecessors in title, whose assets it had purchased.-Judgment of Maclean J., Ex. C.R. 207, reversed. PusG- DINGMAN & urD. v. PROC- TRADE-MARK AND DESIGN ACT See DESIGN. TRIAL-Withdrawal of case from jury- Action for damages for alleged negligence, as being responsible for death of defendant's employee-Plaintiff non-suited at trial- Judgment of Court of Appeal ordering new trial, affirmed.
2-Trial by jury-Motion to withdraw the case before verdict-Sufficiency of the evidence adduced-Proper order as to a new trial. Arts. 469, 495, 1248 C.C.P. 3-Misdirection to jury-New trial.... 92 TRUSTS AND TRUSTEES - Accounting-Accounting to deceased's estate as to estate-Findings on the evidence-Corroboration-Mingling of funds of trustee and cestui que trust-Presumption as to funds of unidentified origin-Mingling authorized by cestui que trust.] By the judgment of this Court, [1927] S.C.R. defendant was held accountable for all moneys of the late S. B. received by him since February 6, 1907 (except as to gifts completed within S. B.'s lifetime) and was held entitled to all just and proper allowances for expenditures made, and for costs, charges and expenses incurred TRUSTS AND TRUSTEES-Continued by him in or in relation to or in connection with S. B.'s affairs.
On the accounting, disputes arose as to certain items, which, by the judgment now reported, were decided by this Court as follows:-(1) As to certain payments by defendant to discharge a liability of S. B. for money borrowed from a bank for which a demand note was given, it being contended that the money was used for a business given by S. B. to defendant, and that, as between defendant and S. B., the note was a liability of defendant rather than of
S. B.; held that there was no evidence that the money was received by defendant after February 6, 1907, or at any time, and therefore it was not money for which defendant was accountable by the said former judgment of this Court, upon which the accounting must proceed; and, moreover, the payments were expenditures or charges incurred by defendant
"in or in relation to or in connection with the affairs" of S. B.; and the items should be allowed to defendant.-(2) As to sums charged by defendant as paid to his brother W., deceased, for W.'s wages for work on B.'s S. farm, as to which it was contended that there was no proof or presumption that the services of W. (who was S. B.'s nephew and lived with him on his farm) were to be paid for, and that the payments were not really for wages but on account of the sale price of land which defendant and W. had sold and in which each had a half interest, and that there was no corroboration of defendant's evidence that he appropriated the payments to wages or that W. was entitled to wages; held, that the sums should be allowed to defendant; on the evidence, and with due regard to the rule requiring corroboration in such cases (Evidence
Act, B.C., s. 11) there was ample proof of the payments and of their imputation on account of wages, and there was no evidence to the contrary beyond an inference sought to be drawn from certain circumstances, but which was negatived by the evidence; as to W. having an enforceable claim against S. B. on a presumed or implied agreement, the circumstances possibly justified the inference of a legal demand, but, in any event, the payments to W. constituted expenditures by defendant in relation to S.B.'s affairs, there was no reason to doubt that they were made honestly and within the scope of defendant's authority as proved, and therefore they should not be disallowed on the ground that possibly W.
could not have established his claim for wages by strict proof of a contract for payment; the situation, under the circumstances, was one as to which defendant was entitled to exercise his judgment in the administration of his authority with relation to S. B.'s affairs.
(Lamont J.
TRUSTS AND TRUSTEES-Concluded dissented as to this allowance, holding that, on a consideration of all the evidence, there was no corroboration of defendant's statement that S. B. told him to pay wages to W. or that the sums were paid as wages.)-(3) As to certain sums deposited by defendant in his bank account, the origin of which sums he was, after the long time elapsed, unable to identify, and as to which it was contended that, since defendant admittedly deposited moneys of S. B., along with his own, in his individual account, he was responsible for an unlawful mingling of funds, and moneys not shown to have belonged to defendant must be taken to have belonged to S. B.; held, that the reason underlying the principle invoked by such contention did not apply in this case, where it was found that S. B. himself had authorized and encouraged defendant to dispense with a separate account and to keep the entries in the manner in which the account appeared; it would be inequiable, and also inconsistent with the judgment which regulated the accounting, that defendant should be held accountable for deposits not admitted or identified as belonging to the estate; as to the contention that defendant could not plead the authority derived from S. B. because S. B. became insane, held, that, on the evidence in this regard, no revocation or suspension of authority at the material time was established.-Judgment of the Court of Appeal of British Columbia, 40 B.C. Rep. 278, reversed on the above questions.
2 - Solicitor - Director company acting as its solicitor--Claim for payment for legal services-Whether a "trustee" within s. 56 of the Trustee Act, R.S.N.S., 1923, c. 212.............. UNITED CHURCH OF CANADA USAGE-When it forms an ingredient of the contract-Finding of the trial judge- Railway construction contract-"Extra haul" and "over-haul"-Meaning... 630 WARRANTY
"FRANC ET QUITTE"........................ WATERS AND WATERCOURSES - Navigable river-Public right of navigation-Right of the Dominion as to the use of the bed of a river and as to expropriation of provincial property-Relative rights of the Dominion and provinces over waterpower created by works done by the Dominion-Boundary waters-Interprovincial and provincial rivers-B. N.A. Act, ss. 91, 92, 102 to 126........................ WILL-Action to annul-Residuary legacy
-Whether vague, uncertain and not susceptible of enforcement-Legacy for charitable purposes- Validity - Fiduciary legatee- Discharge releasing him from rendering account-Jurisdiction of the Superior Court to supervise execution of will-Power of the
Attorney General to intervene in the interest of undefined beneficiaries-Arts. 831, 840,
916, 921 C.C.-Art. 50 C.C.P.- R.S.Q. [1925], c. 16, s. 5 (1).]
Dame
Philombne Valois, widow of the late Paul
Lussier, died at Montreal on September
26, 1920, without issue, leaving an estate amounting to $925,825.55.
According to the terms of her last will, dated May 8,
1913, she devised that part of her property derived from the estate of her father among the members of the Valois family.
As for the residue of her property, estimated at $497,436.79, the testatrix, under clause 15 of her will, directed that it be liquidated by the testamentary executors and the proceeds handed over by them to the respondent ciary legatee for the purpose of distributing the same as he may deem advisable,
"pour 6tre par lui seul employds et distribu6s comme il le jugera opportun en oeuvres de charit6, en oeuvres pies, au soulagement des souffrances de l'humanit6, a l'6ducation de jeunes gens pauvres."
The testatrix also stipulated in the same clause that the fiduciary legatee would be accountable to his own conscience only in the fulfilment of his trust "sans qu'aucume personne puisse lui en demander compte ou explication."
The appellant, a next of kin of the testratix, brought an action attacking the validity of the residuary legacy made to the respondent de Boucherville as being null, illegal and irregular because it was too vague, uncertain and not susceptible of enforcement, and also because the real legatees were not designated.-Held that since the coming into force of the Civil Code, as well as under the old law anterior to the Code, the law of the province of Quebec has always been that public charitable bequests should, not be set aside for want of certainty, provided it is at all possible to carry out the intention of the will.-Held also, that clause 15 of the will was valid and that the disposition therein contained was for charitable purposes within the meaning of article 869 C.C. The terms of the clause: "en oeuvres de charit6, en oeuvres pies, au soulagement des souffrances de l'humanit4, a l'6ducation de jeunes gens pauvres" fell sufficiently within the terms "fins de bienfaisance ou autres fins permises" contained in article 869 C.C., specially if those terms are read in conjunction with the comments of the Commissioners of
Codification (4 & 5 Rep., 180) on that
WILL-Continued article.-Held, also, that the disposition in the will, by which the fiduciary legatee was dispensed with rendering an account of his administration, was not in contravention with the civil law of Quebec, being on the contrary in conformity with articles 831, 840, 916, 921 C.C.-Held, further, that the Superior Court had no jurisdiction, under article 50 C.C.P. or any other provision of the law of the province, to supervise the carrying out of the charitable bequest of the testatrix, or to itself proceed to the distribution of the funds.-The majority expressed no opinion on the question whether the Attorney General of Quebec had, under s. 5 R.S.Q. 1925, c. 16, or otherwise, a status to intervene in this case in order to protect the interests of the undefined beneficiaries of the charitable disposition of the testatrix, and whether he was under an obligation to do it, similar to that which attaches, under like circumstances, to the office of the Attorney General of England. C.J.C. and Smith J. dubitantes; Mignault J. expressing the opinion that the Attorney General of Quebec has not that power.-Observations upon the decision of this court in Ross v. Ross (25 Can. S.C.R. 307): It was not held that the word "poor" was "too vague and uncertain to have any meaning attached to it" as contained in the head-note. majority of the court, in that case, expressly declared that the construction of the provisions of the will as to the legacies to "poor relations" and charities was left "open for future consideration"; and the dissenting judge, Fournier J. stated that the terms 'poor relations' were vague and uncertain not on account of the word "poor" but owing to the difficulty in ascertaining what "relations" the testator had in mind.-The Royal Institution for the advancement of learning v. Desrivibres (Stuart K.B. 224); Desrivibres v. Richardson (Stuart K.B. 218); Freligh v. Seymour (5 L.C.R. 492); Abbott v. Fraser (20 L.C.J. 197); Brosseau v. Dord (Q.R. 13 K.B. 538; 35 Can. S.C.R. 307); Molsons Bank v. Lyonnais (3 L.N. 82; 26 L.C.J. 278; 10 Can. S.C.R. 535); McGibbon v. Abbott (8 L.N. 267); Stevens v. Coleman (Q.R. 16 K.B. 235); Latulippe v. La fabrique de l'eglise mdthodiste de Mgantic (Q.R. 43 S.C. 380); Cinq-Mars v. Atkinson (Q.R. 24 K.B. 534; Q.R. 46 S.C. 226); Lyman v. The Royal Trust (Q.R. 50 S.C. 480); Hastings v. Macnaughton (Q.R. 51 S.C. 174) also discussed.-Judgment of the
King's Bench (Q.R. 42 K.B. 319) aff. VALOIs BOUCHERVILLE....... 2 - Construction, as to beneficiaries - Share of person predeceasing testator to go to such person's "children"-Adopted child -Effect of foreign law declaring rights of WILL-Continued child adopted under that law.] A testator, who died April 17
1922, domiciled in
Saskatchewan, by his will provided for division of part of his estate equally among seven persons, including S., and directed that "should any of the parties mentioned
*
*
* predecease me the share which such party would have received had he or she survived me is to be divided equally between the children of the party who would have received said share."
who was domiciled in the
State of Washington, predeceased the testator, leaving only a child whom he and his wife had adopted under the laws of Washington, by which laws such child is declared to be to all intents and purposes the child and legal heir of his adopter, entitled to all rights and privileges and subject to all the obligations of a child of the adopter begotten in lawful wedlock.-Held: The child did not take under the will.
No principle was applicable from the rule applied to determine the legitimacy of children born before their parents marriage.
The question was not one of status, but was whether the adopted child was a person such as described in the bequest.
There being nothing in the will or the circumstances to indicate its use otherwise than in its
Ordinary sense, the word "children"
(under Saskatchewan law as it stood at the time in question) did not include an adopted child.-Judgment of Bigelow J.
(23 Sask. L.R. 111; appealed from per saltum) affirmed.
OONEY.........................
3 - Probate - Validity - Onus probandi-Res judicata-Object and effect of probate-Requdle civile-Arts. 857 and 858
C.C.-Art. 1177 C.C.P.]
In an action in contestation of a holograph will which had been probated, the burden of proof still lies upon the beneficiary to establish the genuineness of the writing or of the signature of the testator, the probate not having the effect of shifting to the party repudiating the will the burden of proving that the writing or the signature were forged.-The judgment ordering the probate of a holograph will does not constitute res judicata. The main object of the probate is to give publicity to holograph wills and to those made in the form derived from the laws of England; and the practical effect of the probate is to enable "parties interested" to "obtain certified copies of the will
*
*
* which are authentic."
Then the will takes effect "until it is set aside upon contestation"
(Art. 857 C.C.).-Semble that, in the absence of Art. 858 C.C., a requdte civile would have been a proper remedy to attack the validity of the probate now in question (Art. 1177 C.C.P., par. 6); but Art. 858 C.C. entitled the
WILL-Concluded respondents to do it by way of defence to an action taken by the appellant to enforce the probate.-Judgment of the Court of King's Bench (Q.O.R. 45 K.B. 85 ) aff. AmIOT................... 4 - Notary - Drawing of will - Clause directing his employment to execute the will-Impropriety- Notary receiving instructions from beneficiary - Consent given by testator after reading of the will- Serious possible difficulties arising out of such action....................... WORDS AND PHRASES - "Agent" (within clause in contract) .......... 2-"Agent in that behalf" (Statute of Frauds, s. 17; Sale of Goods Act, R.S.O. 1927, c. 163, s. 5)................. See CoNrACT 5.
3-"Amount or value of the matter in controversy in the appeal" (Supreme Court Act, s. 41, cl (f).................... 4- "Another" (Art. 1053 C.C.).... 5 - "Arranged"
("Balance be arranged;" terms of purchase of land) 542 6--"At the invitation of" ......... 538 7-"Autrui" (Art. 1053 C.C.) .... "Aval"................... 288 See NOTE. 9- "Balance to be arranged" (Terms of purchase of land).................. See COwrRacT 4.
10--' "Bodily injuries" (Action for; prescription; art. 2262 (2) C.C.)........ "Bodily injury effected solely through external violent and accidental means" 12-Bodily injury happening "without the direct intent of the person injured, or as the indirect result of his intentional act" (Ontario Insurance Act, s. 179) ...... 13-"Canals, with lands and waterpower connected therewith" (B. N.A. Act, s. 108; and 1st item of 3rd schedule). 200 See LAw 2. 14- "Charitable purposes" (C.C., art. 869)............................. WORDS AND PHRASES-Continued
15-"Children" (in bequest; whether including adopted child) ...........
"Constitute a first charge" (12-13
Geo. V c. 47, s. 17..............
17-"Context otherwise requires" (Land
Registry Act, R.S.B.C., 1924, c. 127, s. 2)
. ... ..
S CoNsTITUTIONAL LAW 1.
18- "Contract of accident insurance"
(Ontario Insurance Act, s. 179) ......
19-"Cost landed price to the vendor"
..........
......................
See GOODS
20-"Descend to, and become vested in, his widow during her widowhood" (Public
Lands Act R.S.O., 1914, c. 28, s. 47).
21-"Dispute" between member association and its "trustees, treasurer other whether existence of shewn
0...........
22-"Donations rbmunbratoires". . .
"Employee" or "independent contractor".... .......................
24- "Extra haul" (in railroad construction contract).................
25- "Fair market value" (Succession
Duty Act, B.C)....................
"Fins de bienfaisance ou autres fins permises" (C.C., art. 869) ....... 234
27- " Holder in due course" ......
28-"Independent contractor" or "employee"......
.................
"Internal injuries revealed by an autopsy"......................
See Li.alF 1.
30- "Machinery used for manufacturing"
(Assessment Act, Ont.) .............
31-"Machinery used for the production or supply of motive power" (Exception from exemption from taxation of) (Assessment Act, Ont.)...................
WORDS AND PHRASES-Continued 32-"Matter in controversy in appeal" (Supreme Court Act, s. 39) ... 33-"Other offence" (Cr. C., s. 951). 34-"Over-haul" (in railway construction contract)..................... 35-"Owner" (Land Registry Act, B.C., and s. 53 (6) of Land Settlement and Development Act, B.C.)............. 36- " Particular description" (Class merchandise of) (Trade-Mark and Design Act, s. 4).....................
37-"Poor", "poor relations" (In legacies in will) ....................
38-"Possessor in bad faith" (Arts. 412, 417, C.C)......................... 39- "Privileged debt" (R.S.Q., 1909, s. 1357)........................... 40- "Property" (B. N.A. Act, s. 125) ........... 41- "Property situate within the province" (Succession Duty Act, B.C.).. 42-"Provide adequate equipment" for the "efficient working and operation of the railway" (Manitoba Railway Act, s. 40) .. . . . . . . . ....
See STREET RAILWAYS 43-"Purchase money of a patent right" (Bills of Exchange Act, s. 14) ........ 44- "Quasi-offence" (Action for damages resulting from; prescription; Art. 2261 45- "Question of law;" "Question of jurisdiction" (Public Utilities Act, Alta., s. 47)............................ 46-"Real Property" (Assessment Act, Ont.)............................ 47- "Remuneratory donations"... 48- "Servant" (within clause in con- WORDS AND PHRASES-Concluded
"Trustee" (Trustee Act, R.S.N.S.,
1923, c. 212, s. 56)..............
"Trustees, treasurer or other officer".
(See "Dispute" supra).
51-"Value of the matter in controversy in the appeal" (Supreme Court Act, s. 41, cl. (f)........................... 503
"Water-power" (B.N.A.
s.
108; and 1st item of 3rd Schedule) ...
WORKMEN'S
COMPENSATION - Workmen's Compensation Act (Quebec)- Evidence-Onus.]
Notwithstanding the enactment of the Workmen's Compensation Act, the evidence, in actions for accidents to workmen under that Act, remains subject to art. 1203 C.C. The element of fault alone has been eliminated from the earlier law and the theory of the professional risk has been substituted for it. The onus is still upon the claimant to prove that the accident occurred by reason of, or in the course of, the work and to establish the connection between the accident and his sickness or incapcaity.
......................
Cases cited
- A.C. 662 A.C. 662 pp 673-7, pp 677-8, pp 671-2
- A.C. 956 A.C. 956 p 984
- A.C. 258 A.C. 258 p 279
- A.C. 72 A.C. 72 p 77
- A.C. 107 A.C. 107 pp 144
- The City of Ottawa v. Egan scr-1923-304
- A.C. 194 A.C. 194 p 198
- 1 W.W.R. 557 1 W.W.R. 557
- A.C. 683 A.C. 683 p 688
- 1 A.C. 129 1 A.C. 129
- Armand v. Carr scr-1926-575
- 1 A.C. 588 1 A.C. 588
- A.C. 561 A.C. 561
- A.C. 524 A.C. 524
- A.C. 428 A.C. 428
- 1 A.C. 191 1 A.C. 191
- A.C. 371 A.C. 371
- A.C. 634 A.C. 634 p 647
- A.C. 254 A.C. 254
- A.C. 847 A.C. 847
- A.C. 57 A.C. 57
- Lingle v. Knox Bros Ltd. scr-1925-659
- A.C. 348 A.C. 348
- Morton v. Brighouse scr-1927-118
- A.C. 482 A.C. 482
- A.C. 714 A.C. 714
- A.C. 670 A.C. 670
- Reynolds v. C.P.R. scr-1927-505
- A.C. 396 A.C. 396
- A.C. 492 A.C. 492
- City of Halifax v. Fairbanks A.C. 117 pp 124-126
- 2 A.C. 128 2 A.C. 128
- 3 W.W.R. 466 3 W.W.R. 466
- Clarke's Design Clarke's Design, supra, at p. 42 p. 42
- 2 D.L.R. 519 2 D.L.R. 519
Statutes and regulations cited
-
- s. 4
- s. 6
- section 5
- s. 39
- ss. 52
- s. 52
- sections 4
- 15
- section 15
- section 17
- section 37
- section 276
- section 39
- s. 41 of the Supreme Court Act
- s. 3
- s. 18
- s. 20
- s. 57
- s. 95
- s. 9
- s. 11
- ss. 1
- s. 1
- s. 53
- s. 17
- s. 16
- s. 1357
- s. 64
- s. 174
- s. 51
- s. 24
- s. 10
- s. 8
- Sections 496
- 497
- 498
- s. 498
- ss. 46
- ss. 51
- 53
- s. 2
- Section 17
- s. 5
- s. 21
- s. 57 of the Supreme Court Act
- s. 22
- ss. 10
- 269
- 270
- s. 179
- s. 54
- s. 41
- 41
- ss. 21
- s. 27
- ss. 37
- 39
- 8
- s. 12
- ss. 249
- ss. 7027
- 7028
- s. 108
- s. 125
-
- s. 23
- ss. 91
- 92
- 102
- 126
- section 106
- section 91
- s. 91
- s. 92
- s. 16 of the Interpretation Act
- s. 268
- s. 285
- ss. 284
- 285
- 284
- s. 16
-
- ss. 1345
- section 88
- s. 856
- s. 857
- s. 951
-
- s. 217
- s. 217 of the Customs Act
-
Unresolved citations
- Section 3
- s. 5 of Sale of Goods Act
- s. 276 of the Railway Act
- section 276 of the Railway Act
- s. 174 of the Bankruptcy Act
- s. 57 of the Assessment Act
- s. 249 of the Consolidated Municipal Act, 1922
- s. 297 of said Act
- s. 12 of said Assessment Act
- s. 95 of said Assessment Act
- s. 4 of said Act
- s. 8 of the Nova Scotia Act
- s. 56 of the Trustee Act
- section 108 of the British North America Act, 1867
- section 125 of the British North America Act
- s. 42 of said Act
- s. 179 of Ontario Insurance Act, 1924
- s. 24 of the Bankruptcy Act
- s. 14 of said Act
- s. 131 of said Act
- s. 47 of The Public Utilities Act
- s. 5 of Sale of Goode Act
- s. 56 of the Nova Scotia Trustee Act
- s. 30 of the Succession Duty Act