Majority
This, as I see it, is the meaning and intent of the legislation. As the plaintiffs are no longer a part of the congregation in the Union, they have no valid claim to share in its property.
- The appeal should be dismissed.
Lament J. Per Anglin C.J.C. and Newcombe J.-Dominion powers derived under section 132 of the B.N.A. Act should be liberally interpreted to include all such as are necessary or proper for achieving the purposes defined.
The Dominion is, by that section, authorized to exercise these powers for performing its treaty obligations, and equally so for performing those of a province, irrespective of the question as to where the power would have resided if section 132 had not been enacted.
Per Anglin CJ.C. and Smith J.:-Although a province may effectively legislate for the performance of treaty obligations in regard to any matter falling within section 92 of the B.N.A. Act while the field is unoccupied by the Dominion (but not otherwise), Dominion legislation, being paramount, will, when enacted, supersede that of the province about such matters.
Per Anglin CJ.C. and Smith J.-The Dominion Parliament has legislative authority to sanction the making and enforcement of the Air Regulations, respecting the granting of licences to pilots and their suspension or revocation; the regulation, etc., and licensing of all aircraft; and also the licensing, inspection and regulation of all aerodromes and air stations described in the Convention, and, as to others, so far as may be necessary to prevent air navigators being confused or misled in locating and landing at aerodromes and air stations referred to in the Convention, or in reading ground markings made in pursuance of the Convention.
Per Duff, Rinfret and Lamont JJ.-The legislative jurisdiction of the provinces under s. 92 runs through the space above the surface of provincial territory as through the surface itself and the space below; and the matters comprised within the subject of aviation primarily fall within that jurisdiction.-" Navigation and Shipping," within the meaning of Head 10 of s. does not embrace that subject. The Dominion may exercise legislative jurisdiction in relation to aviation in ,the course of executing its authority over various matters which fall within certain of the enumerated heads of s. or within the subject of Immigration (s. 95); it may also exercise such authority under a. 132 where the conditions exist under which that section comes into play. These conditions are, first, that there exists an obligation of Canada or of a province( as part of the British Empire) towards a foreign country arising under a treaty between the Empire and a foreign country, and, second, that the obligation relates to the subject of aviation or in some manner affects it. The powers arising under that section are given for performing such obligations, and can only be validly exercised in the performance of, and for the purpose OF of performing, them.
Legislation enacted in the valid exercise of AEONAUTCS such powers takes effect notwithstanding any conflioting law of a IN province; the Dominion has full competence under s. 132 to give effect by legislation to the rules embodied in the Convention of 1919, and to take measures for the effectual enforcement of them.-Any conflicting or repugnant provincial rules would be superseded by such legislation.
The Heads of s. 91 which come under consideration in answering the questions submitted are no. 5, the Postal Service; no.
7, Military, Militia and Naval Service and Defence; no. Quarantine; no. 25, Naturalization and Aliens; no. 2, the Regulation of
Trade and Commerce; no. 3, Raising of Money by any Mode or
System of Taxation.
Under these Heads, the Dominion is entitled to exercise legislative control over the use of aircraft in carrying mails; over the conditions under which goods, mails or passengers may be imported and exported in aircraft into or from Canada; in respect of (in this case, in conjunction with s. 132) the prohibition of the navigation of aircraft over prescribed areas; over landing places for aircraft entering Canada and -the conditions of such entry;
in relation to the Air Force. The specific question as to the authority of the Dominion to control aerial locomotion between the provinces does not arise under any interrogatory submitted, upon any construction of the interrogatories.
Likewise, no question arises (upon any reasonably possible construction of any of the interrogatories)
in relation to Dominion legislative authority (under Head 29 of s. 91)
in respect of the exceptions defined in Head 10 of s. 92, in their application or possible application to "lines " or regular services of aircraft between two provinces; or in their application to such " lines "
or regular services beyond Canada.
S. 4 of the Aeronautics Act, which is a re-enactment of the statute of 1919, and must not be treated as new law, cannot be regarded as having been enacted under s. 132 for the purpose of giving effect -to the Convention of that year, because the Convention did not come into force until after the passing of the statute. S. 4 proceeds upon the theory that the Dominion has, independently of s. 132, complete control over the subject of aerial navigation in every respect, and by that section the Minister is given unrestricted authority to regulate and control such navigation in all its aspects, and particularly, in relation to certain matters enumerated by way of example.
Parliament herein professes to exercise an authority which it does not possess, and s. 4 is, in its entirety, ultra vires; and consequently, the regulations promulgated under it. Treating, however, interrogatory no. 3 as requiring the court to express its opinion as to the severable matters enumerated in s. 4, as subjects of legislative jurisdiction, and as to the authority of Parliament, in view of the Convention of 1919, or otherwise, to enact s. 4 in relation to such severable matters or any of them, then the answer to interrogatory no. 3 is that, as regards the matters specified above (which are among the severable matters particularized in s. 4) Parliament has jurisdiction under s. 91 or s. 95; as regards identification and inspection of aircraft, and as regards inspection of aerodromes and air stations, Parliament has jurisdiction, in view of REFEaNCE the Convention of 1919, under s. 132. While legislation under s. 132, for performing the obligations of Canada under the Convention of 1919, might properly include regulations in relation to registration and certification of aircraft and licensing of personnel and air harbours, if aptly framed to secure the performance of such obligations, and limited to that, the unrestricted powers in relation to such subjects which Parliament professes to exercise by s. 4 are neither " necessary " nor " proper " for performing those obligations.
Answering question no. 4 on a similar assumption, the regulations on the subjects mentioned are not aptly framed for the purpose of performing the obligations under the Convention of 1919. The vice of the principal regulations (speaking generally) is -that they are too sweeping in character to fall within the category of legislation " proper or necessary " for performing these obligations. The precise answers to questions 3 and 4 are given in the judgment.
Per Newcombe J.-The language of section 132 does not require, either expressly or by necessary implication, nor does it suggest, that a province should thereby suffer diminution of the powers expressed in its enumerations or otherwise conferred, except to admit capacity, on the part of the Dominion, which, in relation to provincial obligations, is no more than concurrent, so long as these are not performed by the province. The case of obligations to be performed for which a province has become bound by treaty to a foreign country, though perhaps difficult to realize, is expressly provided for by section 132; and while, pending provincial non-performance, power is, by that section, conferred upon the Parliament and Government of Canada, the Dominion power cannot be interpreted as meaning to deprive the province of authority to implement its obligations. If that had been the intention it would have been expressed.
Per Newcombe J.-The right of way exercised within a province by a flying machine must, in some manner, be derived from or against the owners of the property traversed, and the power legislatively to sanction such a right of way appertains prima fade to property and civil rights in the province, although it may be overborne by ancillary Dominion powers, where they exist.
Per Newcombe J.-This court ought not to determine under the present procedure question no. 2 which involves the definition of treaty obligations and the ascertainment, judicially, of the interest of foreign sovereign parties to the Convention, who are unrepresented and cannot be convened, especially so, seeing that the interpretation of the Convention is, by its article 37, to be determined by the Permanent Court of International Justice, or, previously to the establishment of that court, by arbitration. The inadvisability of that question being answered should be called to the attention of the Governor General.
Per Cannon J.-The Dominion Parliament may have paramount legislative and executive power for performing the obligations of Canada, or any province thereof, under the Convention, but has not yet found it necessary or proper to exercise such legislative power. If the provinces refuse or neglect to do their share within their legislative ambit with sufficient uniformity to honour the signature of the Dominion, the latter, being compelled to do so, may pass necessary and proper legislation to perform treaty obligations.
Per Cannon J.-Aviation was not foreseen nor considered when the enumeration of section 91 was made; and the words "Property and Civil Rights " in section 92 are wide enough to give power to the provinces to legislate, with the required uniformity, to ensure safe and satisfactory regulation of aircraft throughout the Dominion and conform to the new requirements of international law since the sovereignty of each state over the air space above its territory was proclaimed in 1919.
REFERENCE by the Governor General in Council to the Supreme Court of Canada for .hearing and consideration, pursuant to the authority of s. 55 of the Supreme
Court Act, R.S.C., 1927, c. 35.
The facts and questions, as stated in the Order in Coun- -cil, are as follows:
"The Committee of the Privy Council have had before them a report, dated 27th February, 1929, from the Minister of Justice, submitting that by the Air Board Act, Chapter of the Statutes of Canada, 1919, (1st session), (which, with amendments thereto, is consolidated in the Revised
Statutes of Canada, 1927, under the title of The Aeronautics Act, Chapter
3 of the said Revised Statutes), provision was made by the constitution under the authority thereof of a Board on Aeronautics (called the Air
Board) and the vesting in the Board of the administrative duties and powers -thereby given to it (which duties and powers were by the National
Defence Act, 1922, Chapter 34 of the Statutes of Canada, 1922, vested, by way of transfer, in the Minister of National Defence), and by the
Air Regulations, 1920, and amendments thereto, approved by the Governor in Council under the authority of the said Act, for the regulation and control in a general and comprehensive way of aerial navigation within Canada and over the territorial waters thereof.
" The Minister apprehends that this legislation was enacted by Parliament by reason not only of the expediency of making provision for the regulation of a service essentially important in itself as touching closely the national life and interests, but also of the necessity of making provision for performing the obligations of Canada, as part of the British Empire under the Convention relating to -the regulation of Aerial
Navigation which, drawn up by a Commission constituted by the Peace
Conference at Paris in 1919, was, on 13th October of that year, signed by the representatives of 26 of the Allied and Associated Powers including
" This Convention was ratified by His Majesty on behalf of the British Empire on let June, 1922, and is now in force, as the Minister is informed, as between the British Empire and 17 other States.
"The Minister observes that the Air Regulations, 1920, conform in essential particulars to the provisions of the said Convention, and are designed to give effect to the stipulations thereof in discharge of the obligations of Canada, as part of -the British Empire, towards the other contracting States.
" The Minister states that at the conference at Ottawa between representatives of the Dominion and the several Provincial Governments in the month of November, 1927, the representatives of the Province of Quebec raised a question as to the legislative authority of the Parliament of '
Canada to sanction regulations for the control of aerial navigation generally within Canada, at all events in their application to flying operations carried on within a Province; and it was agreed that the question so raised was a proper question for the determination of the Supreme Court of Canada.
"The Committee, therefore, on the recommendation of the Minister of Justice, advise that Your Excellency may be pleased to refer the following questions to the Supreme Court of Canada for hearing and consideration pursuant to the provisions of section 55 of the Supreme Court Act, R.S.C., 1927, chapter 35:- " 1. Have the Parliament and Government of Canada exclusive legislative and executive authority for performing the obligations of Canada, or of any province thereof, under the Convention entitled ' Convention relating to the Regulation of Aerial Navigation'?
" 2. Is legislation of the Parliament of Canada providing for the regulation and control of aeronautics generally within Canada, including flying operations carried on entirely within the limits of a province, necessary or proper for performing the obligations of Canada, or of any province thereof, under the Convention aforementioned, within the meaning of section 132 of the British North America Act, 1867?
" 3. Has the Parliament of Canada legislative authority to enact, in whole or in part, the provisions of section 4 of the Aeronautics Act, chapter 3, Revised Statutes of Canada, 1927?
" 4. Has the Parliament of Canada legislative authority to sanction the making and enforcement, in whole or in part of the regulations contained in the Air Regulations, 1920, respecting- (a) The granting of certificates or licences authorizing persons to act as pilots, navigators, engineers or inspectors of aircraft and the suspension or revocation of such licences;
(b) The regulation, identification, inspection, certification, and licensing of all aircraft; and
(c) The licensing, inspection and regulation of all aerodromes and Section 4 of The Aeronautics Act, R.S.C., 1927, c. 3, reads as follows:
"4. Subject to approval by the Governor in Council, the Minister shall have power to regulate and control aerial navigation over Canada and the territorial waters of Canada, and in particular, but not to restrict the generality of the aforegoing terms of this section, he may, with the approval aforesaid, make regulations with respect to i(a) licensing pilots and other persons engaged in the navigation of aircraft, and the suspension and revocation of such licences; (b) the registration, identification, inspection, certification and licensing of all aircraft;
(c) the licensing, inspection and regulation of all aerodromes and airstations;
(d) the conditions under which aircraft may be used for carrying goods, mails and passengers, or for the operation of any commercial service whatsoever and the licensing of any such services; (e) the conditions under which goods, mails and passengers may be imported and exported in aircraft into or from Canada or within the limits of the territorial waters of Canada, or may be transported over any part of such territory;
(f) the prohibition of navigation of aircraft over such areas as may be prescribed, either at all times or at such times or on such occasions only as may be specified in the regulation, and either absolutely or subject to such exceptions or conditions as may be so specified;
(g) the areas within which aircraft coming from any places outside of Canada are to land, and the conditions to be complied with by any such aircraft;
(h) aerial routes, their use and control;
(i) the institution and enforcement of such laws, rules and regulations as may be deemed necessary for the safe and proper navigation of aircraft in Canada or within the limits of the territorial waters of Canada; and
(j) organization, discipline, efficiency and good government generally of the officers and men employed in the Air Force. . 2. Any person guilty of violating -the provisions of any such regulation shall be liable, on summary conviction, to a fine not exceeding one thousand dollars, or to imprisonment for any term not exceeding six months, or to both fine and imprisonment.
3. All regulations enacted under the provisions of this Act shall be published in the Canada Gazette, and, upon being so published, shall have the same force in law as if they formed part of this Act.
The Air Regulations of 1920, which are referred to in the judgments now reported, are the following:
3. (1) Except aircraft flown only for the purpose of experiment or test within three miles of an airharbour, kites and fixed balloons, no aircraft shall fly unless it has been registered as herein provided. See I.C., Art. 5.
(2) This paragraph does not apply to aircraft duly registered in some other state or a foreign country with which Canada has made a Convention relating to interstate flying.
4. Subject as hereinafter provided, the Air Board may define the conditions under which, and the mode in which aircraft may be primarily registered in Canada.
5. No aircraft shall be primarily registered in Canada unless it belongs wholly to a British subject or British subjects, or to a company which has been incorporated in His Majesty's Dominions, and of which the president or chairman and at least two-thirds of the directors are British subjects. See I.C., Art. 7.
6. No aircraft shall be primarily registered in Canada while it is so registered in any other of His Majesty's dominions, or in any foreign country, but it may be primarily registered in Canada upon cancellation of an earlier registration in such other Dominion or foreign country. See I.C., Art. 8.
7. No aircraft shall be primarily registered in Canada unless either it has been built or made in Canada or any customs duties which are or would become payable upon the importation of the aircraft into Canada have been paid. New.
8.
(2) In the event of any change in the ownership of an aircraft registered in Canada, then
(a) The registered owner shall forthwith notify the Department of National Defence, and
(b) The registration and certificate thereof shall lapse as from the date of such change of ownership.
9. When a registered aircraft has been destroyed or permanently withdrawn from use, the registered owner shall as soon as possible notify the Department of National Defence accordingly, and the registration and the certificate thereof shall lapse as from the date of such notification. (2) Certificates of registration shall not remain valid unless endorsed by the Minister of National Defence at. intervals not exceeding twelve calendar months.
(Amendment dated January 1924.)
It shall be a condition of the primary registration in Canada of any aircraft that, upon the Governor in Council declaring that a national emergency exists or is-immediately apprehended, every such aircraft shall be subject to requisition in the name of His Majesty by the Air Board or any officer of the Canadian Air Force, and upon being so requisitioned shall become the property of His Majesty, subject to its return or to the payment of compensation or to both as may be provided by law. New. (2) The registration in Canada of any aircraft primarily registered in any of His Majesty's dominions other than Canada shall be subject to the like condition unless, under the law of that one of His Majesty's dominions in which the aircraft was primarily registered, it is subject to a paramount right to be requisitioned on His Majesty's behalf. New. Any certificate of registration of an aircraft may be suspended or cancelled at any -time by the Air Board for cause. New.
(1) No aircraft registered in Canada shall fly beyond Canada unless it has been certified as airworthy by the Department of National Defence.
(2) Except private aircraft flying wholly within Canada, all aircraft registered in Canada shall be certified as airworthy by the Department of National Defence.
(3) Every aircraft entering Canada from abroad shall be in possession of a certificate of airworthiness issued by the proper authority of the foreign country or of the Dominion, Colony or Possession of His Majesty in which it is registered. (Amendment dated January 15, 1924.) No aircraft required to be registered shall fly unless it bears the prescribed nationality and registration marks.
See I.C., Art. 10. .
16. In the case of an aircraft primarily registered in Canada the nationality mark shall be the letter " G " and the registration mark the assigned combination of four capital letters commencing with the letter REFENCE "C." The marks shall be painted in black on a white ground in the following manner:- (a) On flying machines the marks shall be painted once on the lower surface of the lower main planes and once on the upper surface of the top main planes, the top of the letters to be towards the leading edge. They shall also be painted along each side of the fuselage between the main planes and the tail planes.
In case the machine is not provided with a fuselage the marks shall be painted on the nacelle.
(b) On airships the marks shall be painted near the maximum cross section on both sides so as to be visible both from the sides and from the ground and on the upper surface equidistant from the letters on the sides.
(c) On balloons the marks shall be painted on two sides near the maximum cross section so as to be visible both from the sides and ground, and on -the upper surface equidistant from the marks on the sides.
(d) On flying machines and airships the nationality mark shall also be painted on the right and left sides of the lower surface of the lowest tail planes or elevators and also on the upper surface of the top tail planes or elevators, whichever are the larger. It shall also be painted on both sides of the rudder or on the outer sides of the outer rudders if more than one rudder is fitted.
(e) On balloons the nationality mark shall also be painted on the basket.
(f) The nationality and registration marks need in no case exceed eight feet in height, but subject to this provision shall be as hereafter specified.
(g) On flying machines the height of the marks on the main planes and tail planes respectively shall be equal to four-fifths of the chord, and in the case of the rudder shall be as large as possible.
The height of the marks on the fuselage or nacelle shall be fourfifths of the depth of the narrowest part of that portion of the fuselage or nacelle on which the marks are painted.
(h) On airships the nationality marks painted on the tail plane shall be equal in height to four-fifths of the chord of the tail plane and on the rudder the marks shall be as large as possible. The height of the other marks shall be equal at least to one-twelfth of the circumference at the maximum transverse cross section of the airship.
On balloons the height of the nationality mark on the basket shall be four-fifths of the height of the basket, and the height of the other marks shall be equal to at least onetwelfth of the circumference of the balloon.
(i) The width of the letters shall be two-thirds of their height and
-the thickness shall be one-sixth of their height. The letters shall be painted in plain block type and shall be uniform in shape and size. A space equal to half -the width of the letters shall be left between the letters.
(j) Except in state and commercial aircraft, the nationality and registration marks shall be underlined with a black line. The thickness of the line shall be equal to the thickness of the letter and the space between the bottom of the letters and the line shall be equal to the thickness of the line.
(k) Where the nationality and registration marks appear together, a hyphen of a length equal to the width of one of the letters shall be painted between the nationality mark and registration mark.
The nationality and registration marks shall be displayed to the best possible advantage, taking into consideration the constructional features of the aircraft.
The marks must be kept clean and visible. See I.C., Annex A.
17. All aircraft, except kites, shall carry affixed to the car or to the fuselage in a prominent position a metal plate inscribed with the names and residences of the owners and the nationality and registration marks of -the aircraft. See 1.0., Annex A, I (d).
18. No place, building, or work shall be used as an airharbour unless it has been licensed as herein provided. New.
Licences to airharbours may be issued by the Air Board and may be made subject to such conditions respecting the aircraft which may make use of the airharbour, the maintenance thereof, the marking of obstacles in the vicinity which may be dangerous to flying and otherwise, as the Air Board may direct. New.
21. The licence of an airharbour may be suspended or cancelled by the Air Board at any time for cause and shall cease to be valid two weeks after any change in the ownership of the airharbour, unless sooner renewed to the new owner. New.
22. Every licensed airharbour shall be marked by day and by night as may be from time to time directed by the Air Board. See 1.0., Annex F, II.
23. The owner of any licensed airharbour shall be permitted to charge for the use of the harbour or for any services performed only such fees as have been approved by the Air Board for such airharbour. The tariff shall be prominently posted up at -the airharbour. New.
24. (1) No person shall without authority of the Air Board- (a) mark any unlicensed surface or place with any mark or display any signal calculated or likely to induce any person to believe that such surface or place is an airharbour or emergency alighting ground;
(b) knowingly use or permit the use as an airharbour of any unlicensed place;
(c) knowingly use or permit the use of an airharbour for any purposes other than -those for which it has been licensed.
(2) The onus of proving the existence of any authority or licence shall be upon -the person charged. New.
25. No water-craft shall cross or go upon that part of the water area forming part of any seaplane station which it is necessary to keep clear of obstruction in order that flying machines may take off and alight in safety, having regard to the wind and weather conditions at the time, and every person in charge of a watercraft is guilty of a breach of these regulations if such craft crosses or goes upon such area after reasonable warning by signal or otherwise. New.
26. There shall be kept at every licensed airharbour a register in which there shall be entered immediately after the alighting or taking off of an aircraft a record showing the nationality and registration marks of such aircraft, the name of the pilot and -the hour of such alighting or taking off. New.
27.
,he goods therein shall be open to the inspection of any customs or immigration officer or any officer of 6r other person authorized by the Air Board, but no building used exclusively for purposes relating to the construction of aircraft or aircraft equipment shall be subject to inspection except upon the special written order of the Chairman or Vice-Chairman of the Air Board. New.
(2) All state aircraft shall have at all reasonable times, the right of access to any licensed airharbour, subject to the conditions of the licence. (Amendment dated Jan. 1924.) 28. It shall be a condition of every licence to any airharbour that in case the Governor in Council declares that a national imergency exists or is immediately apprehended, the owner of such airharbour shall comply with such directions, if any, with respect -to the use of the airharbour as may be given by the Air Board or an officer of the Canadian Air Force, subject only to the payment of such compensation as may be provided by law. New.
29. At every licensed airharbour -the direction of the wind shall be clearly indicated by one or more of the recognized methods, e.g., alighting tee, conical streamer, smudge fire, etc.
See I.C., Annex D, 40. 30. At every licensed aerodrome and seaplane station, if an aircraft about to land or leave finds it necessary to make a circuit or partial circuit, such circuit or partial circuit shall, except in case of distress, be lefthanded (anti-clockwise).
(Amendment dated Jan. 1924.) At every aerodrome and seaplane station licensed for use by the public at night there shall at night be exhibited a red light to indicate a left-hand circuit or a green light to indicate a right-hand circuit. See I.C., Annex D., 46 (a).
32. Every licensed aerodrome shall be considered to consist of three zones when looking up-wind. The right-hand zone shall be the takingoff zone and the left-hand shall be the alighting zone.
Between these two there shall be a neutral zone.
If the centre of the aerodrome is marked, the taking-off and alighting zones shall commence fifty yards to the right and left respectively of the centre of such mark. I.C., Annex D, 44.
33. No person shall act as pilot of any aircraft or as navigator, engineer or inspector of any commercial aircraft, or of any aircraft primarily registered in Canada when flying outside Canada unless such person holds a certificate issued by the Air Board authorizing him to so act. See I.C.. Art. 12.
(2) This paragraph shall not apply,- (a) to persons under instruction flying over water or, with the consent of the owner or owners, over an airharbour and such additional surrounding area as is approved by the Air Board, or 8.C.R.]
(b) to pilots, navigators and engineers of aircraft registered in another contracting state, or a foreign country with which Canada has made a convention relating to interstate flying, who hold licences authorizing them to act as such, issued by the proper authority in the contracting state or foreign country in which the aircraft is registered.
AssoNAUTIcs
(Amendment dated Jan. 15, 1924.) 34. Certificates to pilots, navigators and engineers may be issued by the Air Board and may be limited in time and to flying only under specified conditions, for specified purposes, in specified types of aircraft, on specified routes or otherwise. New.
(2) Licences issued by a duly competent authority within His Majesty's Dominions, Colonies or Possessions, to a pilot, navigator, or engineer shall for the purpose of these regulations have the same validity and effect as if they had been issued under these Regulations. (Amendment dated Jan. 15, 1924.)
35. Certificates to inspectors may be issued by the Air Board and may be limited in time, to specified types of aircraft, or otherwise. New. 36. A fee not exceeding 85 may be charged for any certificate issued under this Part IV. New.
37. No person who is not a British subject or a subject of a foreign country which grants reciprocal aeronautical privileges to Canadians on equal terms and conditions with subjects of such foreign country shall be issued with a certificate authorizing him to act as pilot, navigator, engineer or inspector of commercial or state aircraft.
38. A certificate issued to any pilot, navigator, engineer or inspector may be suspended or cancelled at any time by the Air Board for cause, including the failure to comply beyond Canada with the provisions of Parts V, VI, VII and VIII of these regulations. New.
116. Every aircraft carrying five persons or more and bound on a flight by night, or on a continuous flight overland between two points more than 300 miles apart, or on a flight over sea between two points more than 125 miles apart, shall have on board a person holding a navigator's certificate.
See I.C., Annex E, IV.
118. Every aircraft in flight shall have on board its certificate of registration, the certificate of airworthiness, if any, the licences of all the members of the crew requiring licences, the authority and licence for the equipment and working of the wireless installation, if any, and a journey log book containing the following particulars:- (a) The category to which the aircraft belongs; its nationality and registration marks; the full name, nationality and residence of the owner; the name of the maker, the description and the carrying capacity of the aircraft.
(b) In addition for each journey:- (i) A record of all signals and wireless communications and observations concerning navigation;
(ii) The names, nationality and residence of the pilot and of each of the members of the crew;
(iii) The place, date and hour of departure, the route followed, and all incidents of the journey, including alightings. (Amendments dated January 15, 1924.)
124. (1) No aircraft of a state with which Canada has not concluded a convention relating to interstate flying and no foreign military aircraft shall fly over or alight in Canada except with the express written permission of the Minister of National Defence.
(2) No aircraft shall engage in rthe carriage of persons or goods for hire between points in Canada unless it is registered as a commercial aircraft in Canada or in some other of His Majesty's Dominions, Colonies or Possessions, nor shall any aircraft carry out any operation for remuneration or reward wholly within Canada unless it is registered as a commercial aircraft in Canada, in some other of His Majesty's Dominions, Colonies or Possessions, or in a contracting State to the International Convention for Air Navigation. (Amendment dated April 12, 1924.)
L. Cannon K.C. and C. P. Plaxton K.C. for the Attor.
ney-General of Canada.
F. D. Hogg K.C. for the Attorney-General of Ontario.
Aim6 Geoffrion K.C. for the Attorney-General of Quebec.
F. H. Chrysler K.C. for the Attorney-General of Manitoba.
ANoLIN C.J.-C.-I have had the advantage of reading the carefully prepared opinions of my brothers Newcombe,
Smith and Cannon.
By s. 55 of the Supreme Court Act (R.S.C., 1927, c. 35), this court is required to " hear and consider"
Important questions of law or fact touching
(a) the interpretation of the British North America Acts, or
(b) the constitutionality or interpretation of any Dominion or provincial legislation; or
(d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments whether or not the particular power in question has been or is proposed to be exercised; or
(e) any other matter, whether or not in the opinion of the court ejusdem generis with the foregoing enumerations, with reference to which the Governor in Council sees fit to submit any such question;
*
*
* and any question touching any of the matters aforesaid, so referred by the Governor in Council, shall be conclusively deemed to be an important question * * *;
and it is declared to be the duty of the Court * * * to answer each question so referred; and the Court shall certify to the Governor in Council, for his information, its opinion upon each such question, with the reasons for each such answer;
* * *
Lord Chancellor Haldane, in the British Columbia Fisheries Case, Attorney-General for British Columbia v. Attorney- General for Canada (1), contrasting the position of this court with that of the Judicial Committee of the Privy trenchantly observed that
While I agree with Mr. Justice Newcombe that the advisability of propounding for the consideration of the court abstract questions, or questions involving considerations of debatable fact, is, to say the least, doubtful; that it is undesirable that the court should be called upon to express opinions which may affect the rights of persons not represented before it, or touching matters of such a nature that its answers must be wholly ineffectual in regard to parties that are not, and cannot be, brought before it (e.g., foreign governments); and that, where the court is asked to hear and determine any such question, it is entirely proper for it to represent to the Governor in Council the undesirability of its being called upon to do so (Attorney-General for Ontario v. Attorney-General for Canada (2), in the present instance I do not find in the questions submitted enough that is objectionable to justify the adoption of that course.
On the contrary, as I understand the questions, they can be, at least partially, answered without going beyond the clear jurisdiction of the court or expressing an opinion upon any debatable matter affecting foreign governments. So far as concerns the interests of private parties in the several provinces, the questions submitted touch them only obliquely, inasmuch as they are directed to the respective legislative powers of the Dominion and the provinces. Such private interests are probably sufficiently represented by counsel for the several provinces concerned; but, if not, by subs. 4 of s. 55, the court is empowered to direct notice to any persons interested, or, where there is a class of persons interested, to nominate one or more persons as representatives thereof, and, by subs. 5, it may, in its discretion request any counsel to argue the case as to any interest which is affected and as to which counsel does not appear. I am, accordingly, unable to accept the view that there is here such absence, or non-representation, of parties interested as would justify our declining to answer the questions submitted.
As I read the opinions of my three learned brothers, they all agree that " the Convention relating to the regulations of Aerial Navigation," dated the 13th of October, 1919, is " a treaty between the Empire and foreign countries,"
within the meaning of s. 132 of the B.N.A. Act. They are also in accord in regarding inl ra-provincial aviation as, prima facie, a matter of provincial legislative jurisdiction and as falling within the purview of s. 92 (13) of the U.N.A.
Act; and I share those-views.
When it comes, however, to the question of how far, and under what circumstances, Dominion legislative power supersedes that of the provinces in regard to aviation, my learned brothers differ, toto coelo. While Newcombe and
Cannon JJ. recognize the power of Parliament, under s.
132, to legislate they are not prepared to admit that that power involves or implies the supersession of provincial by Dominion legislation under the circumstances of the case now before us.
My brother Smith, while of the opinion that the power of Parliament, under s. 132, is not " exclusive ", but merely
" paramount " (so far Cannon J. agrees), holds the view that the circumstances of the present case, as disclosed in the record, justify its exercise regardless of any provincial legislation, existing, or proposed, or possible.
My brother
Cannon, on the other hand, thinks that, in regard to matters of provincial legislative competence, the power conferred on Parliament by s. 132 arises only in the absence of adequate provincial legislation, and that Parliament may not anticipate failure or refusal on the part of any province to pass "necessary or proper" legislation for performing its obligations under the treaty, or that identic legislation
(and regulations) will not be enacted by the legislatures of the several provinces interested.
Mr. Justice Newcombe, I understand, shares the views of my brother
Cannon in this regard.
My brother Newcombe, as I read his judgment, is further of the opinion that questions nos. 1 and 2 cannot be answered without first ascertaining in detail the precise obligations imposed by the treaty on Canada, or any of " its provinces, and that this court should not be called upon to answer these questions because of the fact that the other contracting parties, viz., the foreign governments concerned, are not before it. If I found it necessary to interpret in detail the entire Convention, I would be disposed to accept my brother Newcombe's view; but, in my opinion, it is necessary only to envisage the Convention as a whole, to ascertain its general tenor and to discern its obvious purpose and to determine a very few of the outstanding obligations imposed by it in terms so clear that their meaning admits of no dispute, and, therefore, does not require With regard to the power of Parliament to implement any term of a treaty, it is entirely competent to, and, indeed, it is the duty of this court, explicitly imposed by s. 55 (d) of the Supreme Court Act, to advise the Government of Canada, if duly called upon to do so, as to the meaning and effect of such treaty and as to the right of Parliament to enact legislation necessary to carry it out, whether or not the government proposes to legislate in regard thereto.
I agree with the view taken by my brother Smith as to the obligations of Canada (and its several provinces) created by the treaty in question, so far as he has found it necessary to define them, and with his conclusion as to the powers of Parliament under s. 132 of the B.N.A. Act with respect thereto.
The first question submitted, it will be noted, is framed almost in the language of s. 132, although it omits some significant phrases thereof and inserts words which may be regarded as important. For instance, the word " exclusive " is inserted. The word " exclusive " is not found in the section. Again, for the words " all powers necessary or proper " are substituted the words " legislative and executive authority "; the words of the section " as part of the British Empire, towards foreign countries " are omitted; and for the words of the section " arising under treaties between the Empire and such foreign countries " are substituted the words " under the Convention entitled 'Convention relating to the Regulation of Aerial Navigation
It will be perceived that the word " exclusive " appears to introduce an idea quite foreign to s. 132 and not warranted by anything which that section contains. I agree with the view of my brother Smith that, if the question is to be answered in the affirmative, the word " paramount" must be substituted for "exclusive
It might also be better to insert the words "as part of the British Empire, towards Foreign Countries " immediately after the word " thereof ", so as definitely to limit the question and answer to the very matter dealt with by s. 132.
I fail to appreciate my brother Newcombe's difficulties in regard to the meaning and scope of question no. 2, and as to the right and duty of this court to hear and consider it and to express its opinion to the best of its ability upon the matter thereby submitted to it. While the Judicial Committee is, no doubt, in a position, as it did in the British Columbia Fisheries Case, (1) to decline to answer questions which it thinks cannot conveniently be dealt with, this court has no such discretion.
As to it, the statute is imperative.
Question no. 2 is distinctly directed to the validity of legislation of the character described, under the authority of s. 132 of the B.N.A. Act. The general application of the maxim audi alteram partem is beyond dispute. But, in a question of legislative power as between the Dominion and its provinces, submitted to the court by the Governor General in Council, the provinces are " the other party " they have been heard.
As pointed out by my brother Smith, s. 37 of the Convention provides for the adjudication of disputes between contracting parties to it as to its interpretation. Nothing which this court may do in the present reference can affect any such matter. My three brothers are also in accord with regard to the legislative control of Parliament over aircraft and aerial navigation in connection with various matters assigned by s. 91 of the B.N.A. Act to the Dominion, such as military and naval service, defence, postal service, customs, aliens, regulation of trade and commerce, etc. How far the exercise of powers necessarily incidental to such control may be made effectual, without regulating and controlling aeronautics generally, is, to say the least, questionable; but question no. 2, as I read it, is not directed to that aspect the case, but rather to the bearing of s. 132 of the B.N.A. Act upon Dominion legislative jurisdiction. In this connection, my brother Newcombe very properly observes that My brother Smith also agrees with Newcombe and Cannon JJ. in holding that the control of aeronautics in no sense comes within the subject of " Navigation and Shipping" assigned by s. 91 (10) of the B.N.A. Act to the Dominion. In that view I entirely concur.
While it is quite true that the Dominion Act of 1919 antedated the Convention under consideration, and, consequently, cannot be regarded as having been enacted by Parliament in the exercise of its jurisdiction conferred by s. 132 as legislation under that Convention, as Mr. Justice Cannon points out, the statute which we have to consider, is not the Act of 1919, but c. 3 of R.S.C., 1927, which became law on the 1st of February, 1928, long after the date of the Conven- So far as this legislation implements the Conventional obligations its validity may probably be upheld under s. 132 of the B.N.A. Act.
I understand Mr. Justice Cannon to concur in the view of Mr. Justice Smith that
Mr. Justice Cannon, however, adds that
With deference, I can hardly accede to this latter view. Dealing with s. 4 as giving to the Minister single and complete control over aerial navigation throughout Canada and the territorial waters of Canada in all respects, followed by enumeration of certain matters by way of illustration merely, such enumeration being preceded by the words
" and in particular, but not to restrict the generality of the foregoing terms of this section," I would answer question no. 3 in the negative. But, I agree with my brothers Smith and Newcombe that it is scarcely possible fully to answer question no. 3 if it requires consideration in detail of each enumerated subhead under subs. 4. The regulations adopted by the Governor General in Council, under the provisions of s. 4 of the Aeronautics Act (R.S.C. 1927, c. 3) are so general and comprehensive in their terms that it would require minute and meticulous consideration of each of them before deciding whether or not it is necessary or proper in order to implement some treaty obligation within s. 132 of the B.N.A. Act, or may be defended as an exercise of power necessarily incidental to some one of the enumerated heads of Dominion legislative jurisdiction under s. 91. I cannot, however, think that it was intended by question no. 3 to involve the court in such a detailed and minute examination of each particular regulation enacted under s. 4-still less of the possibilities under all the subheads of s. 4. Adequate argument was not directed to such details either of the section or of the regulations. I, therefore, refrain from further discussion of these matters.
As has been stated, legislative jurisdiction over intraprovincial flying-and there must be a great deal of itprima facie belongs to the provinces under s. 92 (13), and it is only where legislation by the Dominion can be justified, either as falling directly within an enumerated head under s. 91, or as necessarily incidental to such a head, or in so far as the subject of aeronautics can be said to be of such Dominion-wide importance that provincial legislative jurisdiction over it may be regarded as ousted, or because it falls within the purview of s. 132, that such Dominion legislation can be held valid.
In order to avoid possible misapprehension, I should, perhaps, add that, in so far as the questions submitted are directed to legislative capacity of the Dominion Parliament, I am not satisfied that the establishment and maintenance of a line of aircraft covering an international or interprovincial route is not an " undertaking " within the meaning of subs. 10 (a) of s. 92 of the B.N.A. Act. Moreover, it is possible that although lines of air transportation are not physical works, the construction, maintenance and operation of flying machines may be regarded as " works" within the meaning of clause (c) of subs. 10 of s. 92. That aspect of the case, however, was not fully dealt with at bar, and, therefore, I do not give it further consideration. As to question no. 4, I agree with the views thereon expressed by my brother Smith.
I certify the foregoing to be my opinion (and reasons therefor) upon the four questions herein submitted for hearing and consideration of the Court by His Excellency the Governor in Council.
The answers of Mr. Justice Duff (concurred in by Rinfret and Lamont JJ.) to the interrogatories submitted. Question 1
To question 1, the answer is in the negative.
Question 2
To question 2, construing the word " generally " as meaning " in every respect ", the answer is in the negative. Question 3
Reading section 4, as I think it ought to be read, as conferring a single indivisible authority to regulate and control, in every respect, aerial navigation over Canada, with an enumeration by way of illustration of particular matters falling within this authority, the answer to question 3 is in *the negative.
Assuming, on the other hand, as some of my brethren think, that the question requires us to consider the matters mentioned in the enumerated sub-heads as severable fields for the operation of the power, and the section as comprising distinct enactments, in relation to each of these severable matters, enacted in view of the Convention relating to aerial navigation, 1919, the answer to question 3 is partly in the negative and partly in the affirmative. In relation to the matters mentioned in sub-paragraphs (a), (h) and (i), such enactments would be invalid. In relation to the matters within sub-paragraph (b) such enactments would be valid in respect of " identification" and " inspection ", and in other respects invalid.
In relation to the matters within sub-paragraph (c) such enactments would be valid as respects " inspection " and in other respects invalid.
In relation to the matters within sub-paragraph (d) such enactments would be valid as respects the subject the carriage of mails, in other respects invalid.
In relation to the matters within sub-paragraph (e) such enactments would be valid in so far as concerns c . and in so far as concerns the second part, such enactments would, in relation to the subject the transport of mails, be valid, but in relation to other matters, invalid.
In relation to the matters within sub-paragraphs (f),
(g) and (j), the enactments would be valid.
Question 4
Treating this question on the assumption that it requires us to consider whether the regulations referred to, or any of them, (and, if so, which) are susceptible of legislative sanction under section 132 (in view of the Convention of
1919) or under any other power vested in the Dominion
Parliament, the answers are as follows:
Sub-paragraph (a).
The regulations which deal specifically with the subjects mentioned in this paragraph are those numbered 33 to 38.
Regulation 33 would be valid in so far as it relates to flying outside Canada; but invalid in so far as it relates to commercial aircraft generally. Regulations 34 to 38, inclusive, are subsidiary regulations and would be valid if associated with a valid principal regulation.
Regulations 116 and 118 are also subsidiary regulations as to which the answer is the same.
Sub-paragraph (b).
Regulations 3, 4, 124 (2) and 10 would be invalid. Regulations 5 and 6 would be valid. Regulations 7, 8, 9, 11, 15,
16 and 17 are subsidiary regulations which would be valid if associated with a valid principal regulation. Subsections and 3 of regulation 12 would be valid, and subsection 2 of that regulation invalid.
Sub-paragraph (c).
Regulations 18 to 32 deal specifically and substantively with the licensing, inspection, and in some respects with the regulation, of air harbours. The principal provisions are regulations 18, 19, 22, 23 and 24. These regulations would be invalid. Regulations 21 and 26 are subsidiary regulations, which would be valid if attached to a valid principal regulation. Regulations 25 and 29 to 32, inclusive, would be valid. Regulation 27 (1), dealing with inspection of air harbours and construction buildings would be valid. Subsection 2 of regulation 27 would be invalid. Regulation 28 would be invalid.
-
J.-The view presented by the Solicitor General of the questions raised by the interrogatories, which it is our duty to answer, was based primarily upon the proposition that the Dominion possesses authority to legislate upon the subject of aeronautics, in every respect, and that this authority is exclusive, or, at all events, over-rides any law of a province.
This proposition is supported upon a variety of grounds. It is contended that, in their very nature, the matters embraced within that subject cannot be local, in the provincial sense, and that accordingly the subject is beyond the ambit of section 92; that, in the alternative, it falls within one of the enumerated heads of 91, no. 10 Navigation and Shipping; that, as a sort of further alternative, so many aspects and incidents of the subject fall within various enumerated heads of section 91, such as the regulation of trade and commerce, undertakings extending beyond the limits of a province, customs, aliens, beacons and lighthouses, postal service, defence, ferries, or under immigration (s. 95), that the subject must as a whole be treated as within Dominion jurisdiction, that being, it is argued, the only interpretation under which the undoubted authority of the Dominion over the various aspects of the subject can be effectively exercised. Still again, it is said, the authority of the Dominion under section 132, to legislate for the performance of its obligations under the Conven tion relating to Aerial Navigation, 1919, extends over the whole field.
gree
I am unable to agree that " navigation and shipping " would, " according to the common understanding of men," embrace the subject of aeronautics. Nor can I agree that aerial navigation as a subject for legislation is outside the purview of s. 92 of the British North America Act, as not comprising matters which are provincial within the contemplation of that section.
The provincial jurisdiction under heads 10 to 16 extends through the air space above, as well as the soil below; and the control of the province over its own property is as extensive in the case of aerodromes and aircraft as in the case of garages and automobiles.
The employment of aircraft for survey, exploration, inspection and patrolling, in the management of the public domain, for police purposes, and in the interests public health (head 7), is as strictly a provincial matter as the employment of any other local agency for such purposes. Primarily the matters embraced within the subject of aerial navigation fall within section 92.
The argument that because the Dominion has authority to legislate in relation to this subject, in several, it may be many, aspects, it therefore has authority to appropriate the whole subject to itself, is one which in various forms has been often advanced; and always rejected.
It really amounts to this, that it would have been simpler and more convenient if the subject had in terms been committed to exclusive jurisdiction of the Dominion Parliament. As for section 132, the provisions of the Aeronautics Act, and the regulations thereunder, must be considered in relation to the undertakings embodied in the Convention for the pur-pose of testing the Dominion contention.
Section 4 of the Aeronautics Act confers upon the Minister a single, indivisible authority to regulate and control aerial navigation in Canada. What I have just said will indicate my reasons for the conclusion that it is not competent for the Dominion to exercise or authorize the Minister to exercise such a comprehensive control over that subject. In my own view, that is sufficient to dispose of question 3.
S.C.R.j
But it is thought by some of my colleagues that each of the sub-paragraphs of section 4 may be treated as comprising severable fields of legislation, and that the section may be considered as involving distinct enactments in the terms of the principal clause applying to each of the severable matters therein comprised; and that by the question we are directed to say to what extent the Dominion might now authorize the Minister to exercise unrestricted control over these several matters under the powers conferred by section 132 (in view of the Convention of 1919) or under any other powers vested in the Dominion Parliament. The section was originally enacted before the Convention came into effect and could not therefore be treated as passed in execution of any power under section 132. As reproduced in the Revised Statutes, 1927, it does not take effect as the re-enactment of a new law, and to the extent to which it was invalid in 1919, it is invalid to-day. Nevertheless some of my brethren think it is our duty to examine the sub-clauses of section 4 with a view to ascertaining to what extent the section, if enacted to-day, and with reference to the Convention of 1919, could take effect as law.
While I do not agree that this course is in conformity with the purport of the question, the point is not free from doubt, and therefore I shall proceed to discuss the questions raised by the interrogatory when so interpreted. It will be convenient to consider, first of all, some of the matters of primary importance embraced within the subparagraphs of section 4. The most important of all are those falling within sub-paragraphs (a) (b) and (c). An unrestricted power of regulation and control is conferred upon the Minister.
Such a sweeping authority in relation to the matters within these sub-paragraphs could be derived from no section or sections of the British North America Act other than section 132; and it is necessary therefore to consider whether, under that section, Parliament possesses such authority in itself, or can invest the Minister with it, in consequence of the obligations undertaken by the Dominion under the Convention.
The question in concrete form is whether the power to give the force of law to section 4 in relation to such matters is a power necessary or proper for performing the obligations of Canada under the Convention.
One observation should be made here. The powers under that section are given for performing (in the concrete case before us) the obligations under the Convention; and, in this connection, can be validly exercised only in the per- 'N formance of, and for the purpose of performing, these obligations.
The subject of paragraph (a) is the licensing of personnel, which is dealt with by article 12 of the Convention.
Under article 12, when read with Annex E, the obligation of each of the contracting states is to enforce in respect to certificates and licences, the conditions set forth in Annex E as regards international traffic, and, as regards domestic traffic, to enforce such conditions, not more stringent than those stated in Annex E, as the contracting state may deem adequate to ensure the safety of air traffic.
No argument seems to be needed to shew that for performing that obligation the Dominion does not require an unrestricted authority to regulate and control the licensing of personnel in all respects; which would include power to select licensees upon some principle having no relation to the safety of air traffic, or indeed, to any of the conditions laid down in
Annex E.
It is convenient to refer to regulation 33, which seems broadly to require a certificate from the Air Board to entitle anybody to act as pilot, engineer or inspector of any commercial aircraft, or of any Canadian aircraft flying outside
Canada. It would be inadmissible to suppose that regulations 33 to 38 contemplate the issue, upon demand, of a certificate to any applicant; and indeed the enactment of regulations to that effect would constitute a grave departure from the requirements of Annex E.
The regulations appear to leave the conditions upon which licences may be granted to the unlimited discretion of the Air Board, which conditions might be framed without any reference to article 12 or Annex E. Clearly regulations 33 to 38 on any construction of them, could not be validly sanctioned under the powers given under section
132 to legislate for the performance of the obligations mentioned.
Sub-paragraph (b) of section 4 deals with registration, identification, inspection, certification and licensing of aircraft. Let us first consider registration. There is an implied duty to provide for registration in accordance with the provisions of section 1 (c) of Annex A of the Convention. The main purpose of registration under the pro- Duf visions of the Convention is to provide facilities for identification. There is no duty, arising out of these provisions, to impose conditions other than those indicated in the Annex. There is nothing in that part of the Convention requiring legislation in the terms of section 4, or in the terms of regulations 3 and 4, the effect of which is, that aircraft may be registered only on compliance with the conditions defined by the Air Board, and that registration is a condition of the right to fly.
These regulations as they stand could not be validly sanctioned under section 132. As to certification and licensing of aircraft, the Convention imposes no duty as to such certificates, except in relation to international navigation. No duty arises out of the Convention which would enable the Dominion to sanction the sweeping enactment of section 4 in relation to the certification and licensing. Regulation 12 (2) seems to require a certificate of air worthiness in respect of commercial aircraft and provincial aircraft registered in Canada. By regulation 13, such certificates may be issued upon compliance with specified conditions. In the result, such aircraft may not be registered, and consequently will not be permitted to fly, unless certified as air worthy upon conditions prescribed by the Air Board.
These regulations are rather obscurely worded, but this seems to be the practical effect of them. There is no obligation, under the Convention, that is to say, no express obligation, to require such certification as a condition of domestic flying, and it is difficult to discover on what ground the condition imposed by these regulations, which affects all commercial aircraft flying in Canada, and all provincial aircraft, can be justified. The regulation as it stands would not be a valid one.
Sub-paragraph (c) deals with the licensing, inspecting and regulation of aerodromes and air-stations. No obligation arises under the Convention, which requires, for the performance of it, the unrestricted power of regulation in relation to these subjects given by section 4. In truth, the only undertakings on the subject of aerodromes and airstations in the body of the Convention are undertakings against discrimination and as to places fixed for the landing of foreign aircraft; while certain duties respecting aerodromes arise out of the rules in Annex D. But there is no IN obligation under the Convention, the performance of which would require the enactment of sub-paragraph (c) or of regulations 18 and 19.
It seems to be sufficiently clear that neither subsections
(a), (b) and (c) of section 4 which were enacted before the
Convention were concluded, nor the regulations made under that section were framed with a view to providing for the performance of obligations undertaken or to be undertaken by Canada in the Convention. They appear to be framed on the theory, which the Dominion now supports as the true view, that the Dominion Parliament possesses authority to control aerial navigation in all respects. The result is that we have regulations which are framed too broadly to go into effect under section 132 of the
British North America Act; but although these enactments and regulations could not now be validly sanctioned under the powers conferred by section 132, it does not follow that the Dominion may not exercise under that section very considerable powers of regulation in respect to the matters enumerated in sub-paragraphs (a), (b) and (c) of section
4. Indeed there seems to be no room for doubt that for the purpose of procuring the observance of its valid regulations, regulations, that is to say, framed for the purpose of securing the observance of its undertakings under the Convention and regulations put into force under the powers arising under section 91, the objects aimed at by the regulations of 1919 could be very largely, if not entirely, accomplished. For example, article 25 of the Convention imposes upon the Dominion a duty to take measures to insure the observance of the regulations contained in Annex D, and the prosecution and punishment of persons contravening these regulations. I can see no reason to doubt, if the Dominion considered it a suitable measure for implementing its obligations under article 25 to require, as a condition of registration, that aircraft should in design and otherwise be adapted and equipped for the observance of the rules laid down in Annex B, that such a condition might properly be exacted. To exact such a condition or other conditions aptly designed to secure the performance of obligations under the Convention, and limited to that, would of be a vastly different thing from legislation in the form of regulations 3 and 4, which leave the conditions of DuffJ.
the right to register, that is to say, of the right to fly, to the unbridled discretion of the Air Board. So with regard to air harbours, it is competent to the Dominion in order to secure the observance of the rules in Annex D, to require aerodromes to perform the duties expressly or impliedly imposed upon them by that Annex. For this purpose, it would be within the power of the Dominion to prohibit the use of, or suspend the use of, any locality as an aerodrome, where these duties were disregarded, and to take proper measures to maintain such control over such aerodromes as would enable the Government to make its decrees effective; and it would also seem a reasonable and proper measure, for this purpose, to require the licensing of aerodromes under such conditions as to granting licences or as to the suspension or rescission of them as should appear to be calculated to secure this object.
It would, of course, be competent to the Dominion, in licensing aerodromes as landing places for aircraft entering the country, to enact such conditions as it might see fit; as well as to provide for the observance at all aerodromes of the undertakings against discrimination in charges or in facilities under article 24 of the Convention. Furthermore, I do not doubt the power of the Dominion to control the use of aerodromes in such a way as to prevent the frustration of the rules of Annex D, and, for this purpose, to prescribe conditions as to the granting suspension and cancellation of licences. I have already stated my views as to the obligations incurred by the Dominion with respect to the conditions to be imposed in respect of the licensing of personnel. As I have said, the Dominion, in my judgment, is entitled to exact, as a condition of the granting of such a licence, the minimum conditions laid down in article 12 and Annex E. But I do not doubt that the Dominion is also entitled to exact sanctions for the performance of the rules in Annex D by providing for the suspension or cancellation of licences upon a breach of such rules; and furthermore, to take any measures calculated to prevent any person acting as navigator, pilot, or member of the crew of an aeroplane not fully equipped by knowledge of the rules in Annex D, and otherwise, to perform any duty cast upon him by them.
In addition to all this, there are other regulations which could be sustained as enacted in view of the obligations imposed by the Convention in article 25. Regulation 15, for example, requires any registered aircraft to bear the prescribed nationality and registration marks. The Convention provides explicitly for the use of these marks in international navigation though not in domestic navigation. But it would obviously be proper, in order to secure identification for the purposes of enforcing, and punishing breaches of, the rules, to require that all aircraft should bear the marks of identification mentioned in regulation
15. Similar considerations apply to a number of other regulations; those, for example, requiring aircraft to land in response to signals of police officers, representatives of the Air Board, the Immigration and Customs officials, those requiring the possession and production of licences and certificates and other documents by aircraft, and generally those dealing with inspection.
As to " identification " and " inspection," in sub-paragraphs (b) and (c), I do not doubt the authority of the
Dominion to legislate fully and completely on these subjects. The reasons appear to be too obvious to require statement. As to the remaining sub-paragraphs of section
4, little need be said. The Dominion has authority to provide for the carrying of mails, to prescribe the areas in which aircraft entering Canada shall land and the conditions to be observed on such landings, and to provide for the control of the Air Force. Other matters stand in a different situation. For example, the carriage of goods and passengers, the use and control of aerial routes, and those embraced in sub-paragraph (i) which is in the following terms:
In relation to all these last mentioned matters, the vice of section 4 is that its terms are too comprehensive.
Under various heads of section 91, the Dominion, as I have already said, possesses authority to legislate in respect to certain aspects of some of these matters, but section 4 is framed in such a way as to render it impossible to treat the enactment, in its relation to the matters just mentioned, as one falling within the Dominion's authority under, for example, the regulation of Trade and Commerce, undertakings ex- Duf tending beyond the limits of a province, or Defence. Some comment is required upon sub-paragraph (f). The Dominion possesses, I am disposed to think, authority to prohibit the navigation of non-Canadian aircraft over prescribed areas, and by the terms of the Convention, where such a prohibition is put into effect, there is an obligation to treat foreign aircraft on the same terms as Canadian aircraft. In the result, I am disposed to think, section 4 could be validly enacted in respect of sub-paragraph (f). A further comment is required in respect to regulation 33. As affecting flying outside of Canada, I am disposed to think this regulation is valid under the powers of the Dominion independently of the Convention.
No reference was made upon the argument to regulation 133, which among other things provides that the regulations shall not apply to aircraft or to air harbours to the extent to which they have been relieved by the Air Board from compliance therewith.
Every regulation is subject to this declaration; and the existence of this dispensing power exercisable according to the absolute discretion of an administrative board, affecting as it does every order, prohibition and declaration in the regulations, on the subject with which it deals, adds to the difficulty of holding that these regulations could be sanctioned validly in exercise of the powers under section 132, which are given for the purpose of providing for the performance of the obligations under the Convention. There is nothing in the Convention giving any countenance to the idea that the performance by each State of its obligations is, strictly, not obligatory, but within the discretion of the State itself.
Two regulations, 10 and 28, the first classified as relating to the subject of registration, and the second as relating to the subject of air harbours, both within the scope of question 4, cannot be passed over wholly without comment. I shall quote verbatim regulation 10, the form of which is closely followed in regulation 28:
Although two of my brethren would answer question 4 (c) in a sense which recognizes regulation 10 as valid, I must say, with great respect, that neither of these regulations has any sort of relation to anything in the Convention; and that there is no section of the British North America Act other than section 132 under which they could be susceptible of valid sanction.
Under them, the power of the Air Board to requisition aeroplanes and aerodromes in the name of His Majesty comes into play upon a proclamation by the Governor General declaring that a " national emergency " exists or is immediately apprehended. " Emergencies " may possess widely different degrees of gravity and urgency. But this authority is not conditioned upon the existence, in fact, of any conjuncture of the sort loosely and vaguely indicated by the words " national emergency." According to the tenor of the regulation, the condition is fulfilled upon a proclamation that this undefined state of affairs has come into being. These regulations afford instructive examples of the extremes to which an administrative board may allow itself to be carried, even when restrained by the necessity of securing the approval of the Governor in Council. They bring into relief, also, in a striking way, the sweeping character of section 4 of the Aeronautics Act of 1919. For under sub-paragraphs (b) and (c) of that section, (if it had itself been valid) investing, as it does, the Air Board with unlimited authority over the registration and the licensing of aircraft as well as over the licensing and regulation of aerodromes (in all the aspects of these subjects), these regulations could have been effectively put into force. On the argument, there was an extended discussion touching the authority of the Dominion in respect of a regular service (or line) of aeroplanes operating between two provinces. The discussion centred in the scope and effect of the excepting clauses of no. 10 of section 92. But these subjects are not before us for consideration. enactment in the principal clause of section 4, could not in its application to any one of -the severally enumerated matters, be supported as within the ambit of any of the powers contemplated by the excepting clauses of section 92 (10). The subject of lines of aeroplanes, regular services of aeroplanes " ferries " of aeroplanes, is not the subject, or one of the severable subjects, of that section; or of any of the regulations we are asked to consider. It must be understood that I express no opinion, favourable or unfavourable, upon the contentions presented in argument on these points.
The same may be said of head no. 2 of section 91 " trade and commerce."
Except in cases already specifically dealt with, there is nothing in the statute or in the regulations which properly, as subject of legislation, could be assigned to the subject of interprovincial or of foreign trade. Save as to cases specified above, it would be necessary to rewrite these enactments in order to bring them within the ambit of any power possessed by the Dominion under head 2 of section 91.
Before taking leave of the reference, it is desirable, perhaps, to refer to a suggestion that the position taken in these reasons, if made good, would lead to confusion, indeed, to chaos, through the prevalence at one and the same time and place of different, and possibly conflicting, rules of aerial navigation. There is no foundation for such fears.
The Dominion, I repeat, has full authority under section 132, to give effect to the rules embodied in the Convention and to take effective measures for the enforcement of them. It is now settled, if, indeed, there ever was a doubt upon it, that provincial legislation repugnant to valid legislation of the Dominion under section 132 is thereby superseded. The Attorney-General of British Columbia v. Attorney-General of Canada (1).
The course followed in these reasons in examining the regulations in some detail, with a view to answering question 4, has necessitated the consideration of some points in respect of which we had little or no assistance from the argument. That questions 3 and 4 call for such an examination, in the one case, of the matters enumerated in the sub-paragraphs, and in the other, of the regulations, was assumed in the factums, and in the factum of the Dominion, the particular regulations falling under the several divisions of question 4 were indicated.
It was also assumed by counsel, and this assumption to a considerable degree, dictated the course of the argument. The argument for the provinces was addressed in detail to the provisions of the statute and to most of the essential regulations upon each subject. In the argument for the Dominion, although the emphasis was predominantly upon the broader contentions, matters of detail were also the subject of extended discussion. It has seemed right to deal with these questions from the point of view from which they were discussed, especially since that point of view rests upon a construction of those questions which (although I think it is not strictly the right one) is in itself not an unreasonable
Nevertheless, I think it my duty to say that I sympathize with the feeling of my learned brethren as to the extreme difficulty of making what in practice will be regarded as a judicial pronouncement upon such a variety of topics, presenting, not in one or two cases only, but in many cases, points of no inconsiderable importance. While theoretically not impossible, it woild not have been practidable for counsel, to deal adequately in this case with every question presented by the statute and the regulations; and judicial conclusions arrived at without the assistance of argument, are not necessarily exempt from the weaknesses which often attend conclusions, so reached, elsewhere.
We hereby certify to His Excellency the Governor in
Council that the reasons expressed in the paper hereunto annexed, are our reasons for the answers, certified of. this date, to the questions referred herein by His Excellency for hearing and consideration by this Court.
J.-In the British Columbia Fisheries Case, the Lord Chancellor (Haldane) introduced his judgment, disposing of the questions submitted, with the following observations. He referred to the statutory author- ""rs ity under which the questions were, as he said, competently put to the Supreme Court, and he said that
An illustration is to be found in the course adopted by the Privy Council in the Fisheries Case (2), from which it would seem that we should be careful not to declare or advise upon the rights of proprietors of lands in the provinces; they are not parties here, and cannot conveniently be represented in a general statutory reference, although some of these questions necessarily involve the consideration of proprietary rights. See also Lord Haldane's observations in Attorney General for Ontario v. Attorney General for Canada (3).
I shall endeavour, in my answers, to adhere to a course which 'is justified by these precedents.
Under the first question it is contended, on behalf of the Attorney General of Canada, that the convention relating to the regulation of aerial navigation is a treaty within the meaning of s. 132 of the British North America Act, and that the powers possessed by the Parliament and Government of Canada under that section are exclusive of any like powers which might, in its absence, have belonged to the provinces.
It is not denied, and no reason has been suggested to doubt, that the convention is a treaty; but the language of s. 132 does not require, either expressly or by necessary implication, nor, I think, does it suggest, that a province should thereby suffer a diminution of the powers expressed ro. in its enumerations or otherwise conferred, except to admit capacity on the part of the Dominion, which, in relation to provincial obligations, is no more than concurrent, so long as these are not performed by the province. The case of obligations to be performed for which a province has become bound by treaty to a foreign country, though perhaps difficult to realize, is expressly provided for by s.
132; and, while, pending provincial non-performance, power is, by that section, conferred upon the Parliament and
Government of Canada, I am unable to interpret the
Dominion power as meant to deprive the province of authority to implement its obligations. If that had been the intention, I think it would have been expressed.
example, to put a simple case, which perhaps conceivably may be imagined, if a province were bound by treaty between the Empire and a foreign country to pay a sum of money borrowed on the sole credit of the province, and if the province, by direction of its legislature, were in due course to cause the money to be paid, I do not doubt that the obligation would thereby lawfully and constitutionally be discharged, even without any action on the part of the Parliament or Government of Canada.
I have considered question 2 with the utmost solicitude to discover its meaning, and I remain in some perplexity;
but, accepting the view, which seems not unreasonable, that the necessity of legislation to sanction the obligations the enquiry, I am met by an objection which seems successfully to challenge the validity of the reference; and it is this: Granted that under section 132 the Parliament has authority, in excess of its powers elsewhere defined, to authorize the performance of treaties, the language of the section is not the less restricted to treaty obligations towards foreign countries, and it is to such obligations that the question addresses itself. When, therefore, it is considered that the court has no jurisdiction over a foreign sovereign, except by submission, and that the foreign
States, party to the convention, have made no submission, it results, as I am disposed to think, that this court ought not to determine, under the present procedure, a question which involves the definition of the treaty obligations; and, especially so, seeing that the interpretation of the convention is, by Article 37, to be determined by the Permanent Court of International Justice, or, previously to the establishment of that court, by arbitration.
J.
Although the answers of the court upon questions referred are declared by the statute to be advisory only, and although, as said by the Judicial Committee in a passage which I shall quote more fully, they " will have no more effect than the opinions of the law officers," yet the proceedings are judicial, and the questions are referred to the court for " hearing and consideration "; and it is the statutory duty of the court to "hear"
and consider.
In the discharge of this duty, the court, in ordinary course, and necessarily, as I see it, applies the principle of the maxim audi alteram partem, and that, I think, comports with the just intention of the statute. Moreover, Parliament has been careful to provide expressly for this procedure. By subsecs. 4 and 5 of s. 55 of the Supreme Court Act, the court may direct that any person or class of persons interested shall be notified of the hearing, and that such person or class shall be entitled to be heard; also, where there is no appearance, the court may, in its discretion, request counsel to argue the case as to any interest which is affected. These provisions strengthen the view that the section is not intended to apply to the adjudication of interests in support of which the court is not empowered to require argument at the hearing. I am not overlooking the case of the Japanese Treaty Act, Attorney-General of British Columbia v. Attorney-General of Canada (1), where an Act of British Columbia was held ultra vires for conflict with a valid Dominion statute, and which is thus quite distinguishable. And there is also the case, which should be mentioned, of the Reference in the matter of Legislative Jurisdiction over Hours of Labour (2). But I do not think that in either of these cases the reasons or answers were intended to come into conflict with the view which I am now expressing, and which, certainly, was not therein suggested or considered.
If, as would appear, it be desired to know whether Dominion legislation is necessary, one must ascertain what the obligation is, and that cannot judicially be declared without learning or inviting the contentions of the obligees. It may, of course, be suggested that there is no evidence of any controversy; but, on the other hand, we are not informed that the contracting parties are ad idem in their interpretation of the treaty obligations.
It may likewise be said that foreign sovereign powers are not within purview of the Supreme Court Act; that their interests are impliedly excepted and should be disregarded; but, in the
British Columbia Fisheries Case (1), reasons were advanced why their Lordshipg should not answer a cognate question relating to the territorial rights claimed by the
Crown in the shore extending below low water mark to within three miles of the coast, and affecting the pretensions of foreign nations. And, for my part, although I do not mean to suggest that litigation might not arise in which it would be convenient or necessary that the court should construe the treaty, the view which impresses itself upon my mind is that since the foreign sovereign parties to the convention are unrepresented and cannot be convened, a question which looks to the ascertainment of their interests judicially, cannot, upon submission by the Governor in
Council, be determined compatibly with the statutory requirements and procedure.
Dominion powers derived under s. 132 should, I think, be liberally interpreted to include all such as are necessary or proper for achieving the purposes defined. The Dominion is, by that section, authorized to exercise these powers for performing its treaty obligations, and equally so, for of the question as to where the power would have resided if s. 132 had not been enacted. There is ample authority for the view that, if the treaty obligations cannot legally be performed under the domestic law as it exists, legislation is necessary to justify the performance; and, in
Walker v. Baird (2), the Attorney-General of England (Sir
Richard Webster)
But the question remains of ascertaining and interpreting the conventional obligations; and, as to that, I have enrEG deavoured to explain my difficulty as it presents itself. Moreover, even if the jurisdiction were held to persist, AERONAUTICs notwithstanding that the court cannot convoke or summon the parties for hearing, I would have thought that the Newcombe J. inexpediency or liability to miscarriage of a judicial attempt -"
exhaustively to interpret and declare these obligations, when practical differences have not arisen and specific cases are not formulated, rests upon grounds so impressive and obvious as to justify a representation to the Governor in Council against the advisability of requiring an answer to a question possessing the general character and obscurity of no. 2.
It is true that a question as to the power of the Governor in Council to require this court to answer questions of law or fact, in the broad terms provided by s. 55 of the Supreme Court Act, was determined favourably to the legislation in Attorney-General for Ontario v. Attorney- General for the Dominion (1), but, in pronouncing that judgment, the Lord Chancellor (Earl Loreburn) said at pages 588, 589:
- It is difficult to resist the conclusion that the point now raised never would have been raised had it not been for the nature of the questions which have been put to the Supreme Court.
If the questions to the Courts had been limited to such as are in practice put to the Judicial Committee (e.g., must justices of the peace and judges be resworn after a demise of the Crown?) no one would ever have thought of saying it was ultra vires. It is now suggested because the power conferred by the Canadian Act, which is not and could not be wider in its terms than that of William IV, applicable to the Judicial Committee, has resulted in asking questions affecting the provinces, or alleged to do so. But the answers are only advisory and will have no more effect than the opinion of the law officers.
Perhaps another reason is that the Act has resulted in asking a series of searching questions very difficult to answer exhaustively and accurately without so many qualifications and reservations as to make the answers of little value. The Supreme Court itself can, however, either point out in its answer these or other considerations of a like kind, or can make the necessary representations to the Governor General in Council when it thinks right so to treat any question that may be put.
And the course so suggested appears to me appropriate for the present occasion.
Questions 3 and 4 relate to specific legislation, which has been enacted by the Dominion; and, even by all the fore- (1) [1912] A.C. 571.
thought and imagination which we can exercise may possess, they cannot be comprehensively or perfectly pEERNCE answered, if room is to be found, as I think it must be, for the operation of provincial rights. We were told at the argument that no practical difficulties had been encountered; and, obviously, questions could be better considered and more satisfactorily determined when, or from time time as, they practically emerge, and so become capable of being stated with adequate point and precision.
Meantime, in the discharge of our duty under the statute, we have certainly to face a question as to the authority of
Parliament to enact these clauses under s. 91 of the British
North America Act, 1867; and, as to that, I am satisfied that we cannot usefully do more than indicate generally the principles to be applied for the avoidance of controversy, or for the determination of specific differences, should they practically arise.
I would reject the argument urged on behalf of the
Dominion that the subject matter of either of these questions is "navigation and shipping ", within the 10th enumeration of s. 91 of the British North America Act,
1867. I see no evidence of any Parliamentary intention that this was ever intended.
These are the words of Coke's venerable Commentary upon
Littleton (4 a.), and they express, as I have been taught to believe, the common law of England, which applies in theEnlih povncs f Cnaa.Inthe provnc o
Quebec. the law is not materially different, for, by art. 414 of the Civil Code, it is declared that
The principle is thus established, and the courts have no authority, so far as I can perceive, to explain and qualify it so as to admit of the introduction of a public right of way for the use of flying machines consequent upon the demonstrations in recent times of the practicability of artificial flight.
The appropriate legislature may, of course, provide for airways as it has habitually done for roads and highways, notwithstanding the rights of the proprietors;
but the project is legislative, not judicial.
" Navigation and shipping " are words inapt and unauthorized to connote flight or the utilization of atmos- RATIN pheric resistance or buoyancy for the carriage of craft traffic. Flight is one thing, and navigation another. The of a flying machine may in some respects be assimilated to the way of an eagle in the air, but not to that of a ship in the midst of 'the sea, which has been recognized as something different. Navigation consists in the exercise of a right of way, which may be enjoyed in the sea, in tidal and in non-tidal water. (Coulson & Forbes on Waters, 4th edition, by H. Stuart Moore, 437.)
This meaning is emphasized for the purposes of s. 91, where the word is associated with "shipping."
Moreover, as to tidal waters at least, the right is public, not dependent upon property. On the other hand, the right of way exercised within a province by a flying machine must, in some manner be derived from or against the owners of the property traversed; and the power legislatively to sanction such a right of way appertains prima facie to property and civil rights in the province, although, no doubt, it may be overborne by ancillary Dominion powers, where they exist. It was enacted by sec. 9 of the Imperial Air Navigation Act, 1920, 10-11 Geo. V, c. 80, that, subject to its provisions, no action should lie in respect of trespass or in respect of nuisance, by reason of the flight of aircraft over any property at 'a reasonable height; and, if, for example, it were desired to confer similar immunity in the provinces of Canada, I see no reason to doubt that the resort would prima facie lie to the legislatures of the provinces. Therefore, if the subject of "navigation and shipping " is to be extended to what, in the absence of a definitive name, has been described as " aerial navigation," that is a function to be discharged by the enactment of appropriate words, and it belongs to the Imperial Parliament, not to this court. If it be desirable to have uniformity of regulations for the licensing, inspection, etc., of air traffic, an inference may be drawn from the judgment of the Privy Council in City of Montreal v. Montreal Street Railway (1), that the object should be attained by co-operation between the Dominion and the local authorities. The federal system, as it is known in the Dominion, while it has proved its adaptation to local conditions of government, is not with- 1sso out some disadvantages, and one apparently is that an in- REFERENCE convenient situation may arise requiring a legislative REGUTION remedy for which, notwithstanding some wayside utterances to the contrary, the concurrence or co-operation of both federal and provincial law-making bodies is necessary; IN but, as was said by Lord Atkinson, with relation to rail- NewcombeJ. ways, in the City of Montreal case (1), page 346:
It cannot be assumed that either body will decline to co-operate with the other in a reasonable way to effect an object so much in the interest of both the Dominion and the Province, as the regulation of " through traffic."
The Dominion enumerated powers must, of course, have their full effect, even when they seem to conflict with those of the provinces. This follows from the concluding paragraph of s. 91 of the British North America Act, 1867:
And any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the legislatures of the provinces.
The meaning of this clause was explained by Lord Watson in the Prohibition Case (2), as follows:- It was apparently contemplated by the framers of the Imperial Act of 1867 that the due exercise of the enumerated powers conferred upon the Parliament of Canada by s. 91 might, occasionally and incidentally, involve legislation upon matters which are prima facie committed exclusively to the provincial legislatures by s. 92.
In order to provide against that contingency, the concluding part of s. 91 enacts that * * *
And his Lordship, having quoted the clause, proceeded:- It was observed 'by this Board in Citizens Insurance Company of
Canada v. Parsons (3), that the paragraph just quoted "applies in its grammatical construction only to No. 16 of s. 92." The observation was not material to the question arising in that case, and it does not appear to their Lordships to be strictly accurate.
It appears to them that the language in the exception in s. was meant to include and correctly describes all the matters enumerated in the sixteen heads of s. 92, as being, from a provincial point of view, of a local or private nature. It also appears to their Lordships that the exception was not meant to derogate from the legislative authority given to provincial legislatures by these sixteen subsections, save to the extent of enabling the Parliament of Canada to deal with matters local or private in those cases where such legislation is necessarily incidental to the exercise of the powers conferred upon it by the enumerative heads of clause 91.
That view was stated and illustrated by Sir Montague Smith in Citizens Insurance Company of
(1) [1912] A.C. 333, at p. 346.
(2) [1896] A.C. 359, at p. 360.
(3) (1881) 7 App. Cas. 96, at pp. 108, 109.
And so, it cannot be successfully denied that the Dominion may have, maintain and operate aircraft, as part of its military or naval service, or for customs, postal or other Dominion services, and may regulate their use for these purposes; and, as well, may prohibit or regulate their use commercially for exporting or importing goods out of or into Canada, or for the carriage of passengers to and from Canada, or, I suggest, interprovincially. In respect of these and other services, as to which the Dominion derives its powers from the enumerations of s. 91, or exercises general powers not belonging to provincial subjects, the regulations in s. 4 of the Aeronautics Act appear to be competent to Parliament, but, on the other hand, it is, I think, certain that there are uses for aircraft, which appertain exclusively to "property and civil rights in the province," in relation to "matters of a merely private or local nature in the province "; and, as to these, some of the regulations in question cannot be applied without entering a field exclusively reserved for provincial authority. The same may be said with regard to the Air Regulations, 1920, respecting the matters specified in the fourth question. A province, for example, amongst its other legislative powers, may exclusively make laws in regard to the establishment and tenure of provincial offices and the appointment and payment of provincial officers; the management and sale of public lands belonging to the province and of the timber and wood thereon, and the comprehensive subject of property and civil rights in the province.
(S. 92 (4), (5) and (13) ). And, if, therefore, to introduce only one illustration, the province desire to provide an air service for the oversight, protection and management of its Crown lands and timber, or for its mines and minerals or mining reserves, it is not, I believe, destitute of power for. the institution and use of it; and so, if a legislature should sanction the appointment of officers to perform the duties of lo provincial air guides or pilots or operators for the conduct REFERENCH of that service, I am far from persuaded that these officers must qualify for the discharge of their duties by production of Dominion licences, unless the province by its legislation should so enact.
I have thus endeavoured briefly to state what I think NewcombeJ. may usefully be submitted in answer to the questions referred, and, pursuant to the statute, I certify the above as my opinion and reasons for the information of the Governor in Council.
SMITr, J.-The following are the questions submitted:- 1. Have the Parliament and Government of Canada exclusive legislative and executive authority for performing the obligations of Canada, or of any province thereof, under the Convention entitled " Convention relating to the Regulation of Aerial Navigation?"
2. Is legislation of the Parliament of Canada providing for the regulation and control of aeronautics generally within Canada, including flying operations carried on entirely within the limits of a province, necessary or proper for performing the obligations of Canada, or of any province thereof, under the Convention aforementioned, within the meaning of section 132 of the British North America Act, 1867?
.
3. Has the Parliament of Canada legislative authority to enact, in whole or in part, the provisions of section 4 of the Aeronautics Act, chapter 3, Revised Statutes of Canada, 1927?
4. Has the Parliament of Canada legislative authority to sanction the making and enforcement, in whole or in part, of the regulations contained in the Air Regulations, 1920, respecting- (a) The granting of certificates or licences authorizing persons to act as pilots, navigators, engineers or inspectors of aircraft and the suspension or revocation of such licences;
(b) The regulation, identification, inspection, certification and licensing of all aircraft; and
(c) The licensing, inspection and regulation of all aerodromes and In my opinion, the answer to question 1 is determined by the decision in Attorney General of British Columbia v. Attorney General of Canada. (1) In that case, a treaty was made in 1913 between His Majesty the King and the Emperor of Japan, by which it was, among other things, agreed that the subjects of each of the High Contracting Parties should have full liberty to enter, travel and reside in the territories of the other, and in all that relates to the pursuit of their industries, callings, professions and educa- (1) [1924] A.C. 203.
tional studies, should be placed in all respects on the same footing as the subjects or citizens of the most favoured nation.
On April 10, 1913, the Parliament of Canada passed the Japanese Treaty Act of that year, and this Act provided that the treaty should be thereby sanctioned and declared to have the force of law in Canada.
In 1902 two minutes had been passed by the Executive Council of the province of British Columbia, and approved by the Lieutenant Governor, which set out resolutions passed by the Legislative Assembly and recommended, in accordance with these resolutions, that all tunnel and drain licences issued under s. 58 of the Mineral Act and s. 48 of the Placer Mining Act, and all leases granted under part VII of the latter Act, should contain provisos that they were granted on the express condition that no Chinese or Japanese should be employed in or about the tunnels, drains or premises to which the licences or leases related, and that a similar provision should also be inserted in all instruments relating to a number of enumerated leases and licences which should be issued by the officers of the provincial government.
On April 2, 1921, the legislature of British Columbia passed the Oriental Orders in Council Validation Act, which statute purported to validate and confirm the two Orders in Council of the province already referred to, and passed in the form of recommendations of the provincial Executive Council, approved by the Lieutenant Governor, in May, 1902.
The statute further provided that the Orders should be deemed to have been valid and effectual according to their tenor as from the dates of their approval, and that where, in any instrument referred to in the said Orders in Council, or in any instrument of. a similar nature to any of those so referred to, issued by any minister or officer of any department of the government of the province, any provision had heretofore been inserted, or was thereafter inserted relating to or restricting the employment of Chinese or Japanese, that provision should be deemed to have been and to be valid, and always to have had the force of law according to its tenor. It was further enacted that every violation of or failure to observe any such provision on the part of any licensee, or other person in whose favour the instrument operated, should be sufficient ground for the cancellation of the instrument by the Lieutenant Governor.
Section 132 of the British North America Act is as follws:-CONTROL
The question at issue in the case was the validity of the British Columbia statute referred to. One of the grounds urged against the validity of the Act was that it purported to deal with the status of aliens, a matter solely under the jurisdiction of the Dominion under s. 91 of the British North America Act; and the other ground was that the provincial statute violated the principle laid down in the Dominion Act of 1913.
It was held that the provincial Act was not inconsistent with s. 91 of the British North America Act, but was void because it violated the principle laid down in the Dominion Act of 1913.
It is to be noted that it was not argued that the Dominion Act was invalid or that the provincial Act could prevail over the Dominion Act, passed pursuant to a. 132 of the British North America Act.
The whole argument was that the provincial Act did not in fact conflict with the Dominion Act.
It is argued here, on behalf of the provinces, that where there is a stipulation in a treaty that something shall be done that the provinces have jurisdiction to do, it is only on failure of the provinces to discharge the provincial obligations that the. Dominion has jurisdiction to intervene. This contention seems to be totally at variance with the decision of the Privy Council in the case just referred to, which holds that, apart from the question of jurisdiction over aliens, the Dominion Parliament had jurisdiction to implement the treaty by legislation, and that the province could not validly enact legislation inconsistent with the principle of the Dominion legislation.
It. follows, in my opinion, that the Dominion Parliament has paramount jurisdiction -to legislate for the performance of. all treaty obligations, and that, while a province may effectively legislate for that purpose in regard to any matter falling within s. 92 of the British North America Act while the field is unoccupied by the Dominion (but not otherwise), Dominion legislation, being paramount, will, when enacted, supersede that of the provinces about such The answer to the first question, therefore, sub- IN stituting the word " paramount " for the word " exclusive," J. is in the affirmative.
I am of the opinion that, taking the words in question 2, " regulation and control of aeronautics generally within Canada," as meaning unlimited regulations and control of aeronautics within Canada, the answer must be in the negative.
The contention on behalf of the provinces is that the international Convention applies only to aircraft operated internationally, and has no application to aircraft of any of the contracting countries which flies wholly within the territory of the country where it is owned.
In some respects the Convention purports to deal only with international flying, but in others with the flying of all aircraft. For example, article 25 is as follows:
Annex D lays down elaborate rules as to lights and signals, and rules for air traffic, following closely the rules of water navigation. If the contention of the provinces be sound, every province, so far as this Convention is concerned, would be entitled to establish rules of its own, as to lights and signals and air traffic, which might be entirely at variance with the international rules laid down in the Convention, and each of which might be at variance with the other. The manifest object of these rules as set out in the Convention is to secure safety in air navigation for all craft flying over the territory of the parties to the treaty; and it is unreasonable to suppose that these rules were to apply only to aircraft flying internationally, and that every country and every province was at liberty to make its own rules for aircraft owned and flying within its own territory. I am of opinion, therefore, that under article 25 the Dominion is under obligation to adopt measures to ensure that every aircraft flying above the limits of Canadian territory shall comply with the regulations contained in Annex D, and has authority to enact accordingly.
Article 12 is as follows:- Annex E has the following:- Article 12 in terms refers to the operating crew of every aircraft, while the preceding article 11, expressly refers to every aircraft engaged in international navigation. In the portion of Annex E just quoted, we have express provision for the issue of certificates and licences by each of the states for flying within its own territory, on such less stringent conditions as each state may deem adequate to ensure the safety of air traffic.
By virtue, therefore, of article 12 and Annex E, there is imposed upon each party to the Convention an express obligation to control in this way all aircraft flying exclusively Within its own territory. The Articles of Convention do not explicitly provide that aircraft shall be registered; but this is necessarily implied.
Article 5 provides that no contracting state shall, except by a special and temporary authorization, permit the flight above its territory of an aircraft which does not possess the nationality of a contracting state. By article 6, aircraft possess the nationality of the state on the register of which they are entered, in accordance with the provisions of section I (c) of Annex A; and article 10 provides that all aircraft engaged in international navigation shall bear their nationality and registration marks, as well as the name and residence of the owner, in accordance with Annex A. As nationality under these provisions can only be possessed S.C.R.J by registration, the necessary inference is that there must be registration of all aircraft as provided in Annex A, except in cases where such aircraft are flying under a " special and temporary authorization."
is contended on behalf of the provinces that article refers only to aircraft engaged in international navigation; but the language of the article has no such limitation: and, in view of the general intention to be gathered from the whole tenor of the Convention, and particularly from the provisions of Annex E quoted above, to provide for the safety of air navigation, there would seem to be no good reason for introducing such a limitation. If the argument on behalf of the provinces were sustained, then every state, and each province of Canada, so far as the Convention is concerned, might allow aircraft of all descriptions, uninspected, unregistered, and of any nationality, to within its own borders, which, in my opinion, would be contrary to the express language of article 5 and the general intent and provisions of the Convention.
It is to be noted, however, that article 37 provides that, in case of a disagreement between two or more states relating to the interpretation of the Convention, the question in dispute shall be determined by the Permanent Court of International Justice to be established by the League of Nations, and, until its establishment, by arbitration. This Court, therefore, has no jurisdiction to give an opinion binding upon the various parties to the Convention on disputes as to interpretation, whereas a decision under article 37 would be binding on all parties to the Convention, and the obligation of the Dominion and the jurisdiction to legislate would thereafter accord with the interpretation thus arrived at.
It is admitted on behalf of the provinces that, independently of the Convention, the Parliament of Canada has jurisdiction over aircraft and air navigation, by virtue of s. 91 of the British North America Act, in connection with various matters thereby assigned to the Dominion, such as Military and Naval Service and Defence, Customs, Postal Service, Control of Aliens, and, possibly to some extent, for the regulation of Trade and Commerce.
On behalf of the Dominion it is argued that the whole subject comes within Navigation and Shipping, under clause (10) of sec. 91.
I am of opinion that Navigation and Shipping, as used in s. 91, refers only to the navigation of water, and shipping plying on or in water. This is the definition of navigation and shipping in the " New English Dictionary," and
J. there can be little doubt that it was the meaning attached to these terms at the time the Act was passed. In my opinion, jurisdiction over aeronautics belongs to the provinces under the heading Property and Civil Rights in the province, section 92 (13) of the British North America Act, subject to the jurisdiction of the Dominion under s. 91, as indicated, and to the provisions of the Convention referred to and of s. 132 of the British North America Act.
Question 3 is apparently construed by the majority of the members of the court as an enquiry as to whether or not s. 4 of the Aeronautics Act, as it now stands in the
Revised Statutes, is intra vires and valid. On that view it is contended that, as the statute was passed long before the treaty came into effect, no jurisdiction under s. 132 of the
British North America Act by virtue of the treaty can be invoked to sustain the validity of the Act, and that the reenactment of this statute in the Revised Statutes of 1927 does not alter the matter because of the provisions of s. 8 of 14-15 Geo. V, c. 65, which provides that the Revised
Statutes shall not be held to operate as new laws.
In my view, the question relates to the present legislative authority of the Dominion Parliament, including legislative authority under the various headings in s. 91 of the British North America Act and under s. 132, by virtue of the treaty. Interpreting the question in this way, it follows from what has been already said that Parliament has authority to enact the provisions of s. 4 of the Aeronautics
Act in relation to the matters set out in s. 91 of the British North America Act, and, so far as necessary and proper, within the meaning of s. 132 of that Act, for carrying out the provisions of the treaty. S. 4, however, goes beyond this, and purports to assume unlimited regulation and control of aeronautics in Canada.
It is difficult, therefore, to answer categorically question 3, but, interpreting the question as indicated, it follows from what has been said that, as to a great part of the proof s. 4, the answer is " Yes." Clause (d) refers not only to the carrying of mails, but to the carrying of goods and passengers, and the operation of any commercial ser- Smith J. vice whatsoever, and jurisdiction as to these matters, independently of the Convention, would depend on whether or not they are of such a nature as to amount to Regulation of Trade and Commerce as set out in s. 91 of the British North America Act. The same remarks would apply to transport of goods and passengers over part of the territories of Canada, as set out in clause (e).
Question 4 (a) and (b) should be answered in the affirmative.
Question 4 (c) should be answered in the affirmative as to all aerodromes and air stations described in the Convention, and, as to others, so far as may be necessary to prevent air navigators being confused or misled in locating and landing at aerodromes and air stations referred to in the Convention or in reading ground markings made in pursuance of the Convention.
I certify the foregoing to be my opinion and reasons therefor upon the four questions herein submitted for hearing -and consideration by the court by His Excellency the Governor in Council.
J.-The Governor General in Council, on the 15th of April, 1929, referred the following questions to this court for hearing and consideration pursuant to the provisions of section 55 of the Supreme Court Act, R.S.C., 1927, chapter 35:- 4. Has the Parliament of Canada legislative authority to sanction the making and enforcement, in whole or in part, of the regulations contained in the Air Regulations, 1920, respecting- (a) The granting of certificates or licences authorizing persons to act as pilots, navigators, engineers or inspectors of aircrafts and the suspension or revocation of such licences;
suspnsio orAERONAUTICS (b) The regulation, identification, inspection, certification and licensing of all aircrafts; and
(c) The licensing, inspection and regulation of all aerodromes and The Minister of Justice, in his report to Council, apprehends that this legislation was enacted by Parliament by reason not only of the expediency of making provision for the regulation of a service essentially important in itself as touching closely the national life and interests, but also of the necessity of making provision for performing the obligations of Canada, as part of the British Empire under the Convention relating to the regulation of Aerial Navigation which, drawn up by a Commission constituted by the Peace Conference at Paris in 1919, was, on 13th October of that year, signed by the representatives of 26 of the Allied and Associated Powers including Canada.
This convention was ratified by His Majesty on behalf of the British Empire on 1st June, 1922, and is now in force, as the Minister is informed, as between the British Empire and other States.
The Minister observes that the Air Regulations 1920, conform in essential particulars to the provisions of the said Convention, and are designed to give effect to the stipulations thereof in discharge of the obligations of Canada, as part of the British Empire, towards the other contracting States.
The Minister states that at the conference at Ottawa between representatives of the Dominion and the several Provincial Governments in the month of November, 1927, the representatives of the province of Quebec raised a question as to the legislative authority of the Parliament of Canada to sanction regulations for the control of aerial navigation generally within Canada, at all events in their application to flying operations carried on within a Province; and it was agreed that the question so raised was a proper question for the determination of the Supreme Court of Canada.
At the argument, Mr. Geoffrion suggested that the order of the questions should be reversed, as it seemed logical that we should first see whether flying is federal or not. If it is federal, it is unnecessary to discuss the application of section 132. If flying is provincial, then it will become important to determine how far section 132 carries federal legislative power.
Questions 3 and 4
The impugned section 4 of The Aeronautics Act, R.S.C. 1927, c. 3, reads as follows:
4. Subject to approval by the Governor in Council, the Minister shall have power to regulate and control aerial navigation over Canada and the territorial waters of Canada, and in particular, but not to restrict the generality of the foregoing terms of this section, he may, with the approval aforesaid, make regulations with respect to
(a) licensing pilots and other persons engaged in the navigation of aircraft, and the suspension and revocation of such licences;
(b) the registration, identification, inspection, certification and licensing of all aircraft;
(c) the licensing, inspection and regulation of all aerodromes and air- Cannon J stations;
(d) the conditions under which aircraft may be used for carrying goods, mails and passengers, or for the operation of any commercial service whatsoever, and the licensing of any such services;
(e) the conditions under which goods, mails and passengers may be imported and exported in aircraft into or from Canada or within the limits of the territorial waters of Canada, or may be transported over any part of such territory;
(f) the prohibition of navigation of aircraft over such areas as may be prescribed, either at all times or at such times or on such occasions only as may be specified in the regulation, and either absolutely or subject to such exceptions or conditions as may be so specified;
(g) the areas within which aircraft coming from any places outside of Canada are to land, and the conditions to be complied with by any such aircraft;
(h) aerial routes, their use and control;
(i) the institution and enforcement of such laws, rules and regulations as may be deemed necessary for the safe and proper navigation of aircraft in Canada or within the limits of the territorial waters of Canada; and
(j) organization, discipline, efficiency and good government generally of the officers and men employed in the Air Force.
2. Any person guilty of violating the provisions of any such regulation shall be liable, on summary conviction, to a fine not exceeding one thousand dollars, or to imprisonment for any term not exceeding six months, or to both fine and imprisonment.
3. All regulations enacted under the provisions of this Act shall be published in the Canada Gazette, and, upon being so published, shall have the same force in law as if they formed part of this Act.
4. Such regulations shall be laid before both Houses of Parliament within ten days after the publication thereof if Parliament is sitting, and if Parliament is not sitting, then within ten days after the next meeting Section 14 of the Interpretation Act, R.S.C. 1927, c. 1, says:
The preamble of every Act shall be deemed a part thereof intended to assist in explaining the purpose and object of the Act.
I note immediately that Parliament has not deemed it desirable, when passing 9-10 Geo. V, c. 11, assented to on 6th June, 1919, to state in a preamble the object and purport of the Act, so that we remain only with the report of the Minister of Justice who apprehends that the legislation was enacted by Parliament on account of the expediency of making provision for the regulation of a service essentially important in itself as touching the national life and interest.
The latest decisions of the Privy Council on our Constitution are to be found, first, in the case of Edwards v. CoNToL or Attorney General for Canada, (1) where Lord Chancellor Sankey says at page 136:
The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. "Like all written constitutions it has been subject to development through usage and convention;" Canadian Constitutional Studies, Sir Robert Borden (1922), p. 55. Their Lordships do not conceive it to be the duty of this board-it is certainly not their desire-to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs. " The Privy Council, indeed, has laid down that Courts of law must treat the provisions of the British North America Act by the same methods of construction and exposition which they apply to other statutes. But there are statutes and statutes; and the strict construction deemed proper in the case, for example, of a penal or taxing statute or one passed to regulate the affairs of an English parish, would be often subversive of Parliament's real intent if applied to an Act passed to ensure the peace, order and good government of a British Colony ": sce Clement's Canadian Constitution, 3rd ed., p. 347.
The learned author of that treatise quotes from the argument of Mr. Mowat and Mr. Edward Blake before the Privy Council in St. Catharine's Milling and Lumber Co. v. The Queen (2). " That Act should be on all occasions interpreted in a large, liberal and comprehensive spirit, considering the magnitude of the subjects with which it purports to deal in very few words."
With that their Lordships agree, but as was said by the Lord Chancellor in Brophy v. Attorney-General of Manitoba (3), the question is not what may be supposed to have been intended, but what has been said.
The Lord Chancellor, however, restricts his observations in the following way:
It must be remembered, too, that their Lordships are not here considering the question of the legislative competence either of the Dominion or its Provinces which arise under ss. 91 and 92 of the Act providing for the distribution of legislative powers and assigning to the Dominion and its Provinces their respective spheres of Government.
The other case is Attorney-General for Canada v. Attorney-General for British Columbia (4), where Lord Tomlin, speaking for the Board, on October 15, 1929, lays down (1) [19301 A.C. 124.
(3) (1895) A.C. 202, at p. 216. (2) (1888) 14 App. Cas. 46, at p.
(4) [1930] A.C. 111.
these four propositions relative to legislative competence in Canada as being established by decisions of the Judicial Cm ite
Comlittee.
Questions of conflict between the jurisdiction of the Parliament of the Dominion and provincial jurisdiction have frequently come before their Lordships' Board, and as the result of the decisions of the Board the following propositions may be stated:- (1) The legislation of the Parliament of the Dominion, so long as it strictly relates to subjects of legislation expressly enumerated in s. 91, is of paramount authority, even though it trenches upon matters assigned to the provincial legislatures by a. 92; see Tennant v. Union Bank of Canada (1).
(2) The general power of legislation conferred upon the Parliament of the Dominion by s. 91 of the Act in supplement of the power to legislate upon the subjects expressly enumerated must be strictly confined to such matters as are unquestionably of national interest and importance, and must not trench on any of the subjects enumerated in s. 92 as within the scope of provincial legislation, unless these matters have attained such dimensions as to affect the body politic of the Dominion: see Attorney- General for Ontario v. Attorney-General for the Dominion (2). (3) It is within the competence of the Dominion Parliament to provide for matters which, though otherwise within the legislative competence of the provincial legislature, are necessarily incidental to effective legislation by the Parliament of the Dominion upon a subject of legislation expressly enumerated in s. 91: see Attorney-General of Ontario v. Attorney-General for the Dominion (3); and Attorney-General for Ontario v. Attorney-General for the Dominion (2).
(4) There can be a domain in which provincial and Dominion legislation may overlap, in which case neither legislation will be ultra vires if the field is clear, but if the field is not clear and the two legislations meet the Dominion legislation must prevail: see Grand Trunk Ry. of Canada v. Attorney-General of Canada (4).
Applying these four tests, I find
1st. That aviation, even if designated as aerial navigation, is not a subject enumerated in section 91, or in subsection 10 of s. 92. The works and undertakings connecting a province with another province or extending beyond the limits of the province are " physical things, not services," as pointed out by Lord Atkinson in City of Montreal v. Montreal Street Railway (5).
The air lines cannot be assimilated to railways as physical things and this authority applies with singular force to exclude federal control of aviation, unless the latter is assimilated to interprovincial lines of navigation.
(1) [1894] A.C.
(3) [1894] A.C. 189.
(2) [1896] A.C. 348.
(4) [1907] A.C. 65.
(5) [1912] A.C. 342.
2nd. Nothing before us shows conclusively that it is unquestionably a matter of national interest and importance and that it does not treich on any of the subjects enumerated in s. 92 or that it has attained such dimensions as to affect the whole body politic of the Dominion.
3rd. My first finding disposes of the third test; this legis- lation is not necessarily incidental to effective legislation Cannon J. by Parliament upon a subject of legislation expressly enumerated in s. 91, amongst others " navigation and shipping, militia, military and naval service and defence, regulation of trade and commerce." Perhaps an all powerful national air-board and an all-inclusive national air code would be the desideratum if we were drafting de novo section 91, but under our peculiar dual form of government, it is difficult to see how such results can be accomplished without ignoring the federal constitution.
Such legislation might be required in case of war, in time of extraordinary peril to the national life of the Dominion, but this
Act was not passed for such an emergency, and it cannot be justified as an exception to the exclusive right of the provinces to legislate concerning property and civil rights.
4th. This legislation, so far as property and civil rights are concerned, does not touch a domain where provincial and Dominion legislation may overlap. The ownership of the air space is prima facie a subject within the exclusive jurisdiction of the provinces; and they alone can impose restrictions to the rights of the owners of land and to those of the owners of aircraft.
Almost every federal power could be somewhat more conveniently exercised if some portion of provincial sovereignty were added to it. This rule for the extension of the federal power should require a strict necessity for its application. If mere convenience is to be a sufficient cause, then assuredly the reservation to the provinces of the control of property and civil rights is meaningless and futile.
As pointed out by my brother
Duff, re Montreal Street Railway v. City of Montreal (1), and paraphrasing Lord Atkinson's statement in the same case (1): " It cannot be assumed that the legislatures will decline to co-operate in a reasonable way to effect an object so much in the interest of both the Dominion and the province as the regulation air
Although the Lord Chancellor in the Edwards case (2), that it would seem by the above-quoted reservation that he makes that statement non-applicable to the question of the legislative competence either of the Dominion or its provinces; judges cannot afford to give to a text which is clear a liberal and large interpretation in favour of Dominion power to the detriment of the provinces, and vice versa. I would therefore say, with respect for those who believe that our constitution must be stretched to meet new conditions as they arise in the life of the people, that aviation was not foreseen nor considered when the enumeration 91 was made, and that the words "property and civil rights" in section 92, are wide enough to give power to the provinces of legislating, with the required uniformity, to ensure safe and satisfactory regulation aircraft throughout the Dominion and conform to the new requirements of International Law since the sovereignty of each State over the air space above its territory has been proclaimed in 1919.
I would therefore answer question 3 in the negative. Question 4 as framed I would answer in the negative under sections 91 and 92 of the B.N.A. Act; but, under 132, I would refer to my answers to questions 1 and 2. Questions 1 and 2
Reaching the above conclusions with respect to the application of sections 91 and 92, I must now come to the main contention of the Dominion that section 132 of the Act validates the impugned provisions.
Question 1
Section 132 provides that
As already stated, the treaty was signed on behalf of the Empire on the 13th October, 1919, and ratifications deposited in Paris on June 1st, 1922.
The Air Board Act was assented to on the 6th of June,
1919, before the Parliament of Canada could invoke article 132 to secure the power of performing the obligations of Canada under a treaty which was not then in existence.
requires an existing treaty to give validity to legislation, not merely a prospective convention.
But the Act has been re-enacted as chapter 3 of the
Revised Statutes of Canada (1927) which, under proclamation, came into force and have affect as law on, from and after the first day of February, 1928, pursuant to the Act respecting the Revised Statutes of Canada, assented to on
19th July, 1924. At both the latter dates, the convention was in force.
But at no time has the Parliament of
Canada, as they had done for the Japanese Treaty, passed an Act providing that the treaty should be thereby sanctioned and declared to have the force of law in Canada.
I would therefore answer the first question, as drafted, in the negative. The Parliament and Government of Canada may have paramount, though not exclusive, legislative and executive authority for performing the obligations of
Canada, or any province the"ef under the Convention, but have not yet found it necessary or proper to exercise such legislative power.
Question 2
We have not before us the elements required to answer question 2 in the affirmative.
Is Parliament or this court to decide what legislation may be necessary or proper for performing the obligations of Canada under the Conven- By inserting the words " or of any province thereof"
in clause 132, the Fathers of Confederation seem to imply that some of the Treaty obligations might, as an internal matter, be considered as within the jurisdiction of Canada as a whole, and others as within the provincial competence.
If the provinces, or any of them, refuse or neglect to do their share within their legislative ambit with sufficient uniformity to honour the signature of the Dominion, then the question may come before Parliament which might, in a preamble explain why it had become either necessary or proper, to legislate and make regulations under the special powers given by 132. This has not yet been done and, with the data submitted, I cannot answer the question in the affirmative.
Moreover, if the words " generally " in question are equivalent to " in every respect ", the answer is in the negative.
J.
Pursuant to the statute, I certify the above as my opinion and reasons for the information of the Governor in Council.
The judgment rendered by the court was as follows: " The court unanimously answers question no. 1 as follows:
"As framed, question no. 1 must be answered in the negative.
" The answer of the Chief Justice, Duff, Rinfret, Lamont, Smith and Cannon JJ. to question no. 2 is 'construing the word 'generally' in the question as equivalent to 'in every respect' the answer is in the negative.'
" The answer of the Chief Justice, Duff, Newcombe, Rinfret, Lamont and Cannon JJ. to question no. 3 is 'construing the question as meaning, 'Is the section mentioned, as it stands, validly enacted?' the answer is in the negative.' " But, if the question requires the court to consider the matters in the enumerated subheads of s. 4 of the Statute as severable fields of legislative jurisdiction, then the answers are to be ascertained from the individual opinions or reasons certified by the judges.
" As to question no. 4, the answers are to be ascertained from the individual opinions or reasons certified by the judges."
Solicitor for the Attorney-General of Canada: W. Stuart Edwards.
Solicitor for the Attorney-General of Ontario: E. Bayley. Solicitor for the Attorney-General of Quebec:
Charles Lanctot.
Solicitor for the Attorney-General of Manitoba: W. J. Major.
Solicitor for the Attorney-General of Saskatchewan: M. A. McPherson.
ACCRETION-Bench formed by action of water at river bank claimed by riparian owner-Whether bench still part of river bed-Whether true accretion-Formation in a "gradual and imperceptible manner"- Ownership of river bed-Alberta law as to accretion-Boundary of land at the river- Construction of title and plan-Part of original river bank still visible above bench; effect thereof as to rule of accretion applying.
Plaintiff, as riparian owner, claimed as an accretion to his land (in
Edmonton, Alberta)
a bench which, through action of the water of the North
Saskatchewan river in depositing sand, silt, etc., had accumulated against and permanently united with the bank of the river, and he sued defendant city for damages for trespass thereon.-Held (1)
On the evidence as to the nature of the soil and vegetation on the bench, it no longer formed part of the river bed.
Criteria for determining what is and what is not the bed of a river discussed.- (2) The bench (on the evidence as to manner of its formation) was a true accretion.
(What constitutes an accrefact that bench was formed in 15 years or less was not inconsistent with the view that it was formed in a "gradual and imperceptible"
manner.
Also, there may be a true accretion notwithtandin, that after a flood it can be ascertained by measurement or even observed by visual examina.
tion that a few inches, or even a few feet, have been added laterally to the border line. The test is, not the number of years it took the bench to form, nor yet whether an addition to the shore line may be apparent after each flod but whether, taking into consideration all the incidents contributing to the addition, it properly comes within what was known to the
Roman law as "alluvion," which implies a gradual increment imperceptibly deposited, as distinguished from "avulsion" which implies a sudden and visible removal of a quantity of soil from one man's land to that of another, which may be followed and identified, or the sudden alteration of the river's channel.
The rule that accretions must be "gradual, slow and imperceptible" only defines a test relative to the physical conditions of the place to which it is applied.-(3)
Assuming (but not deciding) that the common law presumption that a riparian owner owned the bed of a non-tidal but navigable river usque ad medium flum aquae was not incorporated into the law of the Territories (because not "appli- ACCRETION-Concluded cable"-i.e., suitable to the conditions existing-within
1886, 50, s. 11), and that the Crown owned the bed of the river in question, yet the English law as to accretions did become the law of the Territories (its "applicability" discussed; the right to accretions from a navigable river does not depend upon the ownership of the bed thereof) and is the law of Alberta; and by that law (which was binding on the Crown) all accretions became the property of the riparian owner to whose land they attached.- (4) Plaintiff's title gave him "all that portion of" lot 21 "lying north of" a certain road, and, upon construction of the plan with reference to which Crown patent of lot 21 had been issued, the northern boundary thereof was the river, i.e., the edge of the river bed. Assuming, on the evidence and admissions, that at one time the most northerly part of lot 21 comprised a steep bank to the foot of which the water came (but the line to which the water then came, wherever it was, and which then constituted the northern boundary of lot 21, had since been obliterated by deposit of sand and silt), the fact that the upper part of that old bank was still plainly visible above the bench did not prevent the rule as to accretions applying (Hindson v. Ashby, [1896] 2 Chy. 1, at p. 27, distinguished on the facts).-(.)
The bench, therefore belonged to plaintiff, and he was entitled to damages for trespass thereon.-Judgment of the Appellate Division, Alta. (23 Alta. L.R. 233) reversed.
CrrY ACTION TO ACCOUNT.......... ADMIRALTY LAW
AERIAL NAVIGATION.......... AGENCY - Real estate agent - Right commission-Intervention of another agent chain of causation broken- Estoppel. MoxAM ..... Supreme Court Act, R.S.C., 1927, c. 35, ss. 2 36- "Final judgment"-Appeal from judgment setting aside arbitrator's award and referring matter back for reconsideration. An appeal from the judgment of the Appellate Division, Ont. (35 Ont. W.N. 126) setting aside the awards of the official arbitrator fixing the rentals to be paid upon the renewal of certain leases, APPEAL-Continued and referring the matter back to him for reconsideration, with liberty to supplement the evidence already given, was quashed for want of jurisdiction on the ground that the judgment appealed from was not a "final judgment" within ss. 2
(b) and 36 of the Supreme Court Act.
CITY v. THOMPSON............. .120
2 - Appellants, husband and wife, asking for restoration of judgment at trial for damages, awarded by separate amount to each, for injury to wife-Separate causes of action-Insuffsciency of each, amount to give jurisdiction to Supreme
Court of Canada-Appeal quashed-Special leave to appeal refused.
Plaintiffs, husband and wife, sued for damages by reason of injury to the wife through her slipping on an icy sidewalk, owing, as alleged, to defendant's gross negligence.
At trial, on the jury's findings, judgment was recovered against defendant, by the husband for $1,000, and by the wife for
$1,500.
This judgment was reversed by the Court of Appeal (38 Man. R. 1), which directed that the action be dismissed. Plaintiffs appealed to this Court, asking that the judgment at trial be restored.-Held: The appeal must be quashed for want of jurisdiction.
In the statement of claim the claims of the two plaintiffs were distinct, the husband claiming in respect of loss personal to him only, and the wife in respect of her personal loss. There were two separate causes of action, though in respect of the same tort (Admiralty Commissioners v.
88. Amerika, [1917] A.C. 38, at pp. 54-55, referred to.)
The judgment at trial, now sought to be restored, while in form only one judgment was in substance and effect two judgments; and the amount awarded to each plaintiff must be looked at separately to determine, in each case, as to its sufficiency to give jurisdiction to this
Court.-Quaere as to the case (the present case was not one) of a joint action in which the husband claimed on behalf of himself and his wife.-Application to this
Court for special leave to appeal (special leave had been refused by the Court below) was refused.
McKEE V. CITY OF
WINIPEG....................
- Leave appeal - Junsdiction - Extension of time-Specal circumstances- Order of the Board of Railway Commissioners-Freight rates-Railway Act, [1927]
R.S.C., c. 170, s. 52, subs. 2 and 3; s.
325, subs. 5.] The action of the Canadian
National Railways in obtaining from the
Board of Railway Commissioners extensions of time covering a period of nearly two years within which to make application for leave to appeal from an order fixing freight rates from Armstrong to
APPEAL-Continued
Quebec city and the applying for such leave only when a reduction of the rates fixed by the order was threatened and an application had been made to obtain a rate to maritime ports based on those rates, indicate that the Canadian National Railways had no bona fide intention of appealing against the order on account of any rates fixed therein; and, therefore, the obtaining of such extensions and the application now being made to the Board cannot be considered as "special circumstances" within the meaning of subsection 2 of section 52 of the Railway Ad, under which "special circumstances" alone a judge of this court may grant extension of time for applying for leave to appeal.- Moreover, even if such extension of time had been given, leave to appeal should not be granted, as the intending appellant had not advanced any valid objection to the jurisdiction of the Board of Railway Commissioners.
Can. Nat. Rys. v. C.P.R. Co. ([1929]
S.C.R. 135). Board did not misdirect itself by holding that it had jurisdiction to look at and use, as a basis for fixing the rates between Armstrong at the head of the lakes and Quebec City, the Crow's Nest Agreement from Calgary to Fort William and an agreement of July 29, 1903.
Subsection 5 of section 325 of the Railway Act declares the powers of the Board under the Act to fix and determine just and reasonable rates shall not be limited or in any manner affected by the provisions of any Act of the Parliament of Canada, or by any agreement made or entered into pursuant thereto, save and except as to rates on grain and flour from points west of Fort William to Fort William and Port Arthur. The wording of this subsection should not be construed as a restriction upon the powers of the Board to fix the rates set out in the Order now in question.
On the contrary it seems from the language used that Parliament contemplated that the Board would look at and consider the statutes and agreements relating to rates which had been in force or agreed upon, and desired to make it clear that, with the exception of the Crow's Nest Agreement, the Board was not to be bound by any such statute and agreement. What weight these statutes and agreements shall have is left to the discretion of the Board; and, subject to certain conditions, the obligation rests upon the Board of fixing rates which are "fair and reasonable."
In this case the own conduct of the Canadian National Railways since the Order in question was made has been such as to justify the inference that, in their judgment, the rates were not unfair or unreasonable. APPEAL-Continued
4--Special leave appeal-Fdviso to s. 41, Supreme Court Act-Jurisdiction - Writ of prohibition.] The proviso to section 41 of the Supreme Court Act
(which gives jurisdiction to this court to grant special leave to appeal), notwithstanding the wide terms in which it is couched, is necessarily restricted in its application to cases within section 41 itself, i.e., to cases in which the appellate court had jurisdiction, if so advised, to grant special leave to appeal to this court under that section.
LA
PAIx.....
5--Jurisdiction-Appeal from ruling of
Superintendent of Insurance-Amount in controversy-Curia designata-Construction of s. 82, Exchequer Court Act-S. 46 (c) of the old Supreme Court Act-Insurance- Capital - Increase statutes-Insurance Act, R.S.C., 1906, c.
101, s. 68 (2) (5) (6)-Exchequer Court
1865, the appellant company was incorporated by an Act of the late province of
Canada (28 V., c. 43), with power to carry on the business of insurance generally (s. 6), its capital was fixed at two million dollars and provision was made for its increase to four million dollars.
By an amending Act of 1870 (35 V., c.
58, a. the capital was reduced to one million dollars with power to increase the same, in sums of not less than one million dollars, to a sum not exceeding four million dollars. The business of the company was to be carried on in two insurance business to be known as the
Life Branch and other forms of insurance to be known as the General Branch business. The capital stock million dollars was to apply to the Life
Branch only, with power to increase the same to two million dollars; and authority was given to raise one million dollars for the purposes of the General Branch business with power to increase the same to two million dollars. In 1871, the powers of the company were by statute
(34 V., c. 53) "restricted to Life and
Act, are hereby repealed."
In its report to the Department of Insurance the company stated its capital to be four million dollars, and the Superintendent of Insurance ruled that it could only be two million dollars and, exercising the power conferred by s. 68 (2) of the Insurance Act, R.S.C.,
1906, c. 101, amended the report accordingly.
consequently appealed to the Exchequer Court of
APPEAL-Continued
Canada under the provisions of subsections 5 and 6. of s. 68 of the Insurance Act and the ruling of the Superintendent of Insurance was upheld by that court. Hence the present appeal.-Held, Duff and Smith JJ. dissenting, that the capital of the appellant company for Life and Accident insurance business was fixed at two million dollars by the Act of 1870 and had not been altered by subsequent legislation.
The ruling of the Superintendent of Insurance was consequently upheld and the appeal was dismissed with costs.-Per Anglin
C.J.C. and Cannon J.-There is no inconsistency between the restricting of the company's powers by s. 3 of the statute of 1871 to life and accident insurance and the reduction of the limit upon the capital stock to be devoted to that purpose imposed by the Act of 1870. Consequently the repealing section (s. 4 of the Act of 1871) did not have the effect of doing away with the limitation imposed by s. 4 of the Act of 1870 on the amount of capital which might be devoted to the life insurance business.
As a consequence of the company's activities being so restricted, s. 2 of the Act of 1865 and s. 1 of the Act of 1870 should be deemed to have been pro tanto repealed, or so modified by s. 3 of the Act of 1871 that the total authorized capital of the company shall be two million and not four million dollars.-Per Duff and Smith JJ. dissenting: Section 1 of the Act of 1870, which authorizes the increase of capital to four million dollars, must be given its full with any enactment of the Act of 1871; and, moreover, if the intention of Parliament had been to reduce the capital to two million dollars, such intention should have been expressly stated.-Per Anglin C.J.C. and Cannon J.-The Supreme Court of Canada is without jurisdiction to entertain this appeal.
No "actual amount" is "in controversy" and no tangible property possessing a money value is at stake in this appeal nor will rights of shareholders be legally affected by its determination (ss. 82 and 83 of the Exchequer Court Act.)
Moreover, by giving under subs. 5 of s. 68 of the Insurance Act a right of appeal to the Exchequer Court "in a summary manner" from the ruling of the Superintendent of Insurance, the Parliam:nt intended to make that court curia designata for the purpose of supervising acts of an official and the summary jurisdiction to be thus exercised by the court so designated should be final and conclusive.-Per Duff and Smith JJ.-An appeal lies to this court from the judgment of the Exchequer Court. The right of appeal from that court does not exist only when the judicial proceeding involves a pecu- APPEAL-Concluded niary demand: the construction of s. 82 of the Exchequer Court Act should be determined by the decisions rendered by this court under s. 46 (c) of the old
Supreme Court Act; and it has been held that, when the matter in controversy was, for example, the right to pass a by-law and so to nullify a contract, there was jurisdiction if the right immediately involved amounted to $2,000.
Moreover, the proceeding in the Exchequer
Court was a "judicial proceeding" and the adjudication by that court was a within the meaning sections 82 and 83 of the Exchequer Court
Act.-Judgment of the Exchequer Court of Canada ([1930] Ex. C.R. 21) affirmed,
Duff and Smith JJ. (dissenting)
.
Sun LIFE
6 - Consideration by Supreme Court of Canada of question of law not raised below .............................
7 -- Non-direction in charge to jury, as ground for new trial-Failure to ask judge to give direction....................
ARBITRATION...............
perishing in whole or in part within ten years-Vices du sol-Liability of builder acting under employer's architect-Evidence-Onus on builder-Art. 1688 C.C.]
The approval and direction of a competent architect, or his omission to ascertain the nature of the soil of the foundation by known and available tests, does not exonerate the builder from the consequences of following such direction or of the foundation without making himself sure of its efficiency.- When there has been a breach of warranty of the stability of a building, the onus is on the builder to shew that he is exempted from liability by some exception in his favour, which must be made out
(if at all) by legal implication.-Such construction to be put upon article 1688
C.C., respecting the liability of the builder in case of a building perishing in whole or in part within ten years, has been authoritatively settled since 1871 by the decision of the Privy Council in
Wardle v. Bethune (L.R. 4 P.C. App. 33).
.......................
ASSESSMENT AND TAXATION
See TAX, REvENUE.
AUTOMOBILE
AVIATION
- Aerial navigation-Dominion and provin- AVIATION-Concluded cial jurisdiction - International Convention-Paramount, not exclusive, Dominion Intra-provincial aviation within provincial ?jurisdiction-" Navigation and Shipping '-B. N.A. Act, 1867, 91, 92,
132-Supreme Court Act, R.S.C., 1927, c. 35, s. 55-Aeronautics Act, R.S.S., 1927, c. 3-Convention Relating to the Regulation of Aerial Navigation of 1919-Air Regulations, 1920 ..... BANKS
BANKING-Advances made to trader-Fire insurance pollcies-- Transfer of eventual claim of loss as security-Validity-Interpretation of statutes-Observations on maxim "expressio unius est exclusio alterius"-Arts. 1981, 2472, 2474, 2432, 2568, 2571 C,C.-Bank Act, R.S.C., 1927 c. 12, a. 75-Bankruptcy Act, R.S.C., 1927, c. as. 63, 64.] L., a merchant, was a customer of, and, in due course of business, received advances from, the respondent bank. In order to secure the repayment of moneys which he had borrowed, or intended to borrow, L. took out various policies of fire insurance upon his stock, making the loss, if any, payable to the bank. The policies were kept in force, and a fire occurred whereby the stock insured was destroyed damaged. L. then became bankrupt and the appellant was appointed trustee. The latter brought an action against the respondent bank to recover the proceeds of the fire insurance policies which had been paid to the bank, and which, the appellant alleged, amounted to a fradulent preference.- Held, that a bank is authorized, under s. 75 of the Bank Act R.S.C., 1927, c. 12, to make to an insured advances upon, or take from him as security, the obligations of fire insurance companies to pay to him the indemnities stipulated in case of loss. The enumeration, contained in clause (C) of subs. 1 of s. 75, of certain negotiable securities upon which the bank may lend money and make advances does not have the effect of limiting the generality of the comprehensive power separately conferred by clause (d), so as to exclude the general lending powers which appertain to banking. The maxim "expressio unius est exclusio alterius" enunciates a general rule of interpretation in the construction of statutes and written instruments in order to discover the intention- but that maxim is not of universal apphcation.- Held, also, that the clause in the policy "Loss, if any, payable to the Dominion Bank" does not have the effect of creating an assignment of the insurance policies to the bank, which had no insurable interest in the goods insured; but that stipulation operates only in the event of loss, and gives effect to the intention of the parties that the indemnities to which the insured may become entitled shall be BANKS AND BANKING-Concluded paid to the bank as the nominee of the insured, the latter remaining bound by and subject to the terms of the policies.- Judgment of the Court of King's Bench
(Q.O.R. 47 K.B. 383) aff.
BANK..............
2 - Bills and notes - Collateral security
-Pledging
- Bills of Exchange Act, c. 16.
3 - Evidence-Sums withdrawn without authority by local branch bank manager from customer's account-Suit by customer's executors for recovery-Defence of repayment-Onus-Evidence as to repayment- Evidentiary value of documents signed by customer as to bank balance and vouchers.]
F., a local branch bank manager, took without authority certain sums from
S.'s account in the bank. S. having died, his executors sued the bank and F. to recover these sums.
It was contended in defence that F. had repaid them to S.
Chisholm J. dismissed the action ([1930]
2 D.L.R. 617).
His judgment was sustained, on equal division, by the Supreme
Court of Nova Scotia in banco (ibid.)
Plaintiffs appealed.-Held (reversing the judgments below, Cannon J. dissenting), that, on the evidence, defendants had not acquitted themselves of the onus of establishing repayment, and plaintiffs were entitled to recover; that, as to certain documents signed by S. at various times as to bank balance and vouchers, these documents, having regard to their form and the meaning which a customer would, in the circumstances, probably attach to them, and having regard to the facts that the sums in question were taken without authority and there were no vouchers in respect to them, were founded upon a fundamental error, and could have no evidentiary value in defendants' favour.-Per Cannon J. (dissenting): The said documents, which were not shewn to have been obtained by any misrepresentation or fraud, were effective as corroboration and confirmation of F.'s evidence of repayment, which was also corroborated in part by other material evidence; on the whole evidence, the judgments below in defendants' favour should not be disturbed.
BANK 544
BILLS OF EXCHANGE
BOUNDARIES
Building perishing in whole or in part within ten years- Vices du sol-Liability of builder acting under employer's architect-Evidence - Onus on builder-Art. 1688 O. ......
CHURCH
CONGREGATIONS - Church organizations and property- United Church of Canada Acts, 14-15 Geo. V (Dom.), c. 100; 14 Geo. V (N.B.), c. 59- Votes of Presbyterian congregation in favour of union-Legality of votes-Qualiflcation of voters-Method of voting - Congregation entering Union by statutory operation in absence of vote of non-concurrence-Claim by those non-concurring to congregational property or interest therein- Rights and interests in property of congregation under earlier New Brunswick legislation-Interpretation and effect of s. 6 of 14 Geo. V (N.B.), c. 59-"Right or interest, reversionary or otherwoise" denomination in congregational property- "Reversionary" interest - "Otherwise" - Ejusdem generis rule-Constitutional validity of s. 29 of 14 Geo. V (N.B), c. 59.] Plaintiffs, as representing all communicants, pewholders and adherents of St. James Presbyterian Church, Newcastle, N.B., not concurring in church union (under c. 100 of 14-15 Geo. V, Dom and c. 59 of 14 Geo. V, N.B.), claimed the church property (or a share therein), attacking the legality of the congregational votes (one taken under the provincial Act and the other under the Dominion Act, aforesaid) in favour of union, and contending that, in any case, the property fell within s. 6 of c. 59, 14 Geo. V, N.B., and therefore, there having been no "consent" under that section, the property had not vested in the United Church but belonged to the continuing Presbyterians congregation.- Held: The congregation not having passed a vote of non-concuirrencep. it became, by statutory operation, a congregation of the United Church, and, (Anglin C.J.C. and Rinfret J. dissenting), even if the property fell within s. 6 of c. 59, 14 Geo. V, N.B. (and corresponding s. 8 of c. 100, 14-15 Geo. V Dom.), yet, after the Union, it was held for the benefit of the congregation as a congregation of the United Church; the absence of consent under s. 6 merely leaving the property unaffected by the trusts, and not subject to the terms and conditions, set out in the "Model Deed" (schedule A of the provincial Act; schedule B of the Dominion Act).-Per Duff J., further: The property did not come within s. 6 of c. 59, 14 Geo. V, N.B. (s. 8 of c. 100, 14-15 Geo. V, Dom.). In view of the interest created in favour of the denomination by 7 Edw. VII (N.B.), c. 79, s. 6, it could not be said that the property was held solely for the benefit of the congregation and that the denomination had "no right or interest, reversionary otherwise" therein (the ejusdem generis rule, and the meaning to be given the words "reversionary interest," discussed at length, and authorities cited; the scope of the phrase "right or interest, reversionary or otherwise" is not controlled by the strict CHURCH CONGREGATIONS sense of the term "reversion," as understood in property law; the phrase "reversionary interest' is comprehensive enough to include any interest in real property, vested or contingent, the enjoyment of which is postponed, such as a reversion or a remainder, and analogous interests in personal property).
S. 29 of c. 59, 14
Geo. V, N.B., having regard to its part in the design and procedure of all the legislation, was valid and effective (Hodge v. The Queen, 9 App. Cas. 117, at p. 132, cited).-Per Anglin C.J.C. and Rinfret J.
(dissenting): Plaintiffs could not succeed on the ground of illegality of the votes;
the franchise of the voters (a question in issue) was governed, as to the one vote, by s. 8 (b) of c. 59, 14 Geo. V, N.B., and as to the other, by the corresponding s. 10 (b) of c. 100, 14-15 Geo. V, Dom the requirements of which in that regarJ were fully complied with- the vote under the Dominion Act, which was taken b signed ballot, was not a vote "by ballot' as required by s. 10 (a) of that Act (the method adopted lacking the essential of secrecy: The Maple Valley case, [1926]
1 D.L.R. 808) and quaere whether said requirement of voting "by ballot" did not apply also to the vote under the provincial Act (which was taken by roll call); but, under the circumstances, the validity or invalidity of either or both of the votes was immaterial; each gave a majority for union; and if neither was validly taken the result was merely that non-concurrence was not established, and, therefore, the congregation having been placed in the United Church by s. 4 of the Dominion Act, in the absence. of a vote of non-concurrence, remained there, and it must now so remain, as the time for taking such a vote had expired.
But the property of the congregation fell within s. 6 of c. 59, 14 Geo. V, N.B., as being property held "solely for (the congregation's) own benefit, and in which the denomination to which such congregation belongs has no right or interest, reversionary or otherwise;" under earlier
New Brunswick legislation (1 Win. IV, c. 11, 2 Win. IV, c. 18, 3 Win. IV, c. 15,
38 Vic., c. 48, 38 Vic., c. 99) the property of St. James Presbyterian Church had been vested absolutely in the trustees of that church; and the mere possibility of a future interest created by 7 Edw. VII
"reversion"; and of "otherwise,"
with regard to the ejusdem generis rule, discussed at length and authorities cited;
and the interpretation of said phrase discussed with regard to the legislation in
D EX
CHURCH CONGREGATIONS question).
The result was that, there having been no consent within s. 6 of c. 59, 14 Geo. V, N.B., the property did not pass, under as. 3 and 4, to the United Church, but (until otherwise determined at a meeting called for the purpose of s. 6) continues in the trustees for the benefit of the congregation as it was prior to June 10, 1925 (when the United Church Acts came into force) including those members thereof who have since become members of the United Church. As to plaintiffs' attack on the constitutionality of certain sections of the Dominion Act and the efficacy of s. 29 of the provincial Act, this judgment proceeded on statutory provisions not open to challenge in that regard, and consideration further of the point was unnecessary.-Judgment of the Supreme Court of New Brunswick, Appeal Division, affirmed in the result (Anglin C.J.C. and Rinfret J. dissenting).
2- Will....................... CIVIL CODE-Art. 80 (Domicile).. 2-Arts. 1053, 1054, 1055 (Offences and quasi-offences)..................284 3- Art. 1241 (Presumptions)...... 319 4- Art. 1478 (Sale).............. 5-Arts. 1536, 1537 (Obligations of the buyer)............................ 6-Art.
1688 (Mork by estimate and See ARcHrrECT.
7-Art.
1907 (Effects of the contrac ........................... 8-Art.
1981 (Privileges nad hypothesis)............................ See BANKS BANKiNG 1. 9-Art.
2432 (Obligations of the owner and the master).................... See BANKS 1. 10- Arts. 2472, 2474 (Assurance)... 67 See BANKS 11-Arts. 2568, 2571 (Fire Insurance) ........ .. .... ... . .. See BANKs BANI~NG 1. Art. 215 (Incidental and cross demand) 319
2- Art. 571 (Accounting) .........
Riot - Calling of Active Militia - Requisition by
Attorney General of the province-Liability of the province for expenses incurred- Militia Act, R.S.C., 1906 c 41 sections 8 to 90 1924 (D.) c. 57-Public Service Act,
40.] The question referred to this court is whether the province of Nova Scotia is liable, or not, to pay to the Dominion of
Canada all expenses and costs incurred by the latter by reason of part of the active militia of Canada being called out and serving in aid of the civil power in the county of Cape Breton in 1925, in a case of riot, upon a requisition, made by the
Attorney-General of Nova Scotia in the form prescribed by s. 85 of the Militia
Act (R.S.C., 1906, c. 41; (D) 1924, c. 57), which included an undertaking by him that these expenses and costs would be paid to the Dominion Government by the province.-Held, Newcombe J. dissenting, that the question should be answered in the negative. Sections 80 to
90 of the Militia Act repose certain powers in the person occupying the position of
Attorney-General in the province for the time being, but the exercise of these powers does not in any way depend upon the consent of the Lieutenant-Governor or of the provincial legislature.
Militia Act envisages the Attorney- General, not in his capacity as Attorney- General to His Majesty as the Sovereign
Head of the province, but at a person in whom certain powers are vested and on whom certain duties are laid by the statute. These sections apply to every province and go into operation independently of the scope of the Attorney- General's authority to bind the province in respect of the expenditure of moneys for such purpose. Therefore these enactments do not contemplate a duty to pay, proceeding from a contract between the province and the Dominion.
revenues of the province are vested in
His Majesty as the supreme head of the province, and the right of appropriation of all such revenues belongs to the legislature of the province exclusively. Semble that the Attorney-General (whose duties, in so far as now material, include the supervision of the administration justice within the province)
has no statutory authority to undertake the payment now demanded by the Dominion: the subject matters comprised within the supervision of the administration of justice would not embrace authority to enter into such an undertaking.-Per
J. (dissenting).-Assuming that sections 84, 86 (3) and 89 of the Militia Act are ineffective to bind the province without provincial sanction, there are other valid provisions remaining, respecting Aid of the Civil Power which are independent of and separable from the impugned Dominion provisions, and which provide all legislation that the Dominion requires to enable it to maintain the claim now under consideration. An Order in Council was not necessary in order to bind the province, seeing the authority which the provincial Attorney- General, who requisitioned the troops, had by statute, as the political head to whom adequate executive power was delegated; and the provincial Government, during the long period of military activity, had stood by consenting.-Per Cannon J.-Such an undertaking, signed by the Attorney-General acting as such on behalf of the province of Nova Scotia, to be valid and binding on the province, would have to be ratified by the legislature, as it would affect the finances and dispose of the revenues of the province. But it is the spirit of our constitution that, in emergencies beyond the control of the civil power in one province, the cost of the aid given by the Dominion militiamen should be borne by the province. In this case, the province of Nova Scotia is only conditionally liable to the Dominion for the expenses now claimed, because, since the amending of the Militia Act, in 1924, the legislature has not yet passed legislation concurrent with that Act and has not yet voted the necessaryfds to honour of Attorney-General who, under the rule of .ministerial solidarity, acted for and on behalf of the government of the province.
BRETON.......................... Aerial navigation - Dominion and provincial jurisdiction - Internationa Convention-Paramount, not exclusive, Dominion jurisdiction - Intra-provincial aviation within provincial jurisdiction- "Navigation and Shipping"-B. N.A. Act, 1867, ss. 91, 92, 132-Supreme Court Act, R.S.C., 1927, c. 35, s. 55-Aeronautics Act, R.S.C., 1927, c. 3-Convention Relating to the Regulation of Aerial Navigation of 1919-Air Regulations, 1920.1 Dominion Parliament has not, independently of treaty, jurisdiction to legislate on the subject of air navigation generally, the word "generally" being construed as equivalent to "in every respect"; and it did not, by the International "Convention relating to the Regulation of Aerial Navigation," acquire, under section 132 of the B.N.A. Act, exclusive authority to legislate in such a way as to carry out the obligations the Conyention imposes on Canada and its provinces. But the Dominion Parliament's jurisdiction is paramount in the exercise of its authority to carry out these obligations.-The subject of intra-provincial aviation prima facie falls within the legislative jurisdiction of the provinces under one or other of the heads of section 92 of the B.N.A. Act.-The control of aeronautics does not come within the subject of "Navigation and Shipping"
assigned to the Dominion by section 91
(10) of the B.N.A. Act.-The Dominion
Parliament, in relation to aeronautics, has legislative control over aircraft and aerial navigation, so far as incidentally necessary in connection with various matters assigned under specific heads of section such as "The Regulation of Trade and
Commerce," "Postal Service," "Militia,
Military and Naval Service and Defence"
and "Naturalization and Aliens."-As to the questions 3 and 4, concerning the provisions of section 4 of the Aeronautics
Act and the "Air Regulations" of 1920, the members of the court (except Newcombe
J. who raised a preiminary question as to the propriety of answering these questions and Cannon J.), considered that they were bound by section
55 of the Supreme Court Act to answer the questions submitted as fully as the circumstances permitted and, after examining these provisions and regulations, upheld certain of them as valid and denied validity of others.-Per
Anglin C.J.C. and Newcombe, Smith and
Cannon JJ.-Legislative jurisdiction over intra-provincial flying prima facie belongs to the provinces under sub-section 13 of section 92 (Property and Civil Rights).- Per Anglin C.J.C. and Newcombe J.- Dominion powers derived under section
132 of the B.N.A. Act should be liberally interpreted to include all such as are necessary or proper for achieving the purposes defined.
The Dominion is, by that section, authorized to exercise these powers for performing its treaty obligations, and equally so for performing those of a province, irrespective question as to where the power would have resided if section 132 had not been enacted.-Per Anglin C.J.C. and Smith
J.:-Although a province may effectively legislate for the performance of treaty obligations in regard to any matter falling within section 92 of the B.N.A. Act while the field is unoccupied by the
Dominion (but not otherwise), Dominion legislation, being paramount, will, when enacted, supersede that of the province about such matters.-Per Anglin C.J.C.
and Smith J.-The Dominion Parliament has legislative authority to sanction the making and enforcement of the Air
Regulations, respecting the granting of licences to pilots and their suspension or revocation;
the regulation, etc., and licensing of all aircraft; and also the licensing, inspection and regulation of all aerodromes and air stations described in the Convention, and, as to others, so far as may be necessary to prevent air navigators being confused or misled in locating and landing at aerodromes and air stations referred to in the Convention, or in reading ground markings made in pursuance of the Convention.-Per Duff, infret and Lamont JJ.-The legislative jurisdiction of the provinces under s. 92 runs through the space above the surface of provincial territory as through the surface itself and the space below; and the matters comprised within the subject of aviation primarily fall within that jurisdiction.-"Navigation
Shipping," within the meaning of Head 10 of s. 91 does not embrace that subject. The bominion may exercise legislative jurisdiction in relation to aviation in the course of executing its authority over various matters which fall within certain of the unenumerated heads of s. 91 or within the subject of Immigration (s. 95); it may also exercise such authority under s. 132 where the conditions exist under which that section comes into play. These conditions are, first, that there exists an obligation of Canada or of a province (as part of the British Empire) towards a foreign country arising under a treaty between the Empire and a foreign country, and, second, that the obligation relates to the subject of aviation or in some manner affects it. The powers arising under that section are given for performing such obligations and can only be validly exercised in tie performance of, and for the purpose of performing, them.
Legislation enacted in the valid exercise of such powers takes effect notwithstanding any conflicting law of a province; the Dominion has full competence under s. 132 to give effect by legislation to the rules embodied in the Convention of 1919, and to take measures for the effectual enforcement of them.- Any conflicting or repugnant provincial rules would be superseded by such legislation. The Heads of s. 91 which come under consideration in answering the questions submitted are no. 5, the Postal ervice; no. 7, Military, Militia and Naval Service and Defence; no. Quarantine; no. 25, Naturalization and Aliens; no. 2, the Regulation of Trade and Commerce; no. 3, Raising of Money by any Mode or System of Taxation. Under these Heads, the Dominion is entitled to exercise legislative control over the use of aircraft in carrying mails; over the conditions under which goods, mails or passengers may be imported and exported in aircraft into or from Canada; in respect of (in this case, in conjunction with s. 132) the prohibition of the navigation of aircraft over prescribed areas;
over landing places for aircraft entering
Canada and the conditions of such entry;
in relation to the Air Force. The specific question as to the authority of the
Dominion to control aerial locomotion between the provinces does not arise under any interrogatory submitted, upon any construction of the interrogatories.
Likewise, no question arises (upon any reasonably possible construction of any of the interrogatories) in relation to
Dominion legislative authority (under
Head 29 of s. 91) in respect of the excepttions defined in Head 10 of s. 92, in their application or possible application to
"Lnes" or regular services of aircraft between two provinces; or in their application to such "lines" or regular services beyond Canada.
S. 4 of the Aeronautics
Act, which is a re-enactment of the statute of 1919, and must not be treated as new law, cannot be regarded as having been enacted under s. 132 for the purpose of giving effect to the Convention of that year, because the Convention did not come into force until after the passing of the statute.
S. 4 proceeds upon the theory that the Dominion has, independently of a. 132, complete control over the subject of aerial navigation in every respect, and by that section the
Minister is given unrestricted authority to regulate and control such navigation in all its aspects, and particularly, in relation to certain matters enumerated by way of example.
Parliament herein professes to exercise an authority which it does not possess, and s. 4 is, in its entirety, ultra vires; and consequently, the regulations promulgated under it.
Treating, however, interrogatory no. 3 as requiring the court to express its opinion as to the severable matters enumerated in s. 4, as subjects of legislative jurisdiction, and as to the authority of Parliament, in view of the Convention of
1919, or otherwise, to enact s. 4 in relation to such severable matters or any of them, then the answer to interrogatory no. 3 is that, as regards the matters specified above (which are among the severable matters particularized in s. 4) Parliament has jurisdiction under s. 91 or s. 95; as regards identification and inspection of aircraft, and as regards inspection of aerodromes and air stations, Parliament has jurisdiction, in view of the Convention of 1919, under a. 132. While legislation under a. 132, for performing the obligations of Canada under the
Convention of 1919, might properly include regulations in relation to registration and certification of aircraft and licensing of personnel and air harbours, if aptly framed to secure the performance of such obligations, and limited to that, the unrestricted powers in relation to such subjects which Parliament professes to exercise by s. 4 are neither "necessary" nor "proper" for performing those obligations. Answering question no. 4 on a similar assumption, the regulations on the subjects mentioned are not aptly framed for the purpose of performing the obligations under the Convention of 1919.
The vice of the principal regulations (speaking generally) is that they are too sweeping in character to fall within the category of legislation "proper or necessary"
for performing these obligations. The precise answers to questions 3 and 4 are given in the judgment.-Per Newcombe J.-The langnage of section 132 does not require, either expressly or by necessary implication, nor does it suggest, that a province should thereby suffer diminution of the powers expressed in its enumerations or otherwise conferred, except to admit capacity, on the part of the Dominion, which, in relation to provincial obligations, is no more than concurrent, so long as these are not performed by the province.
The case of obligations to be performed for which a province has become bound by treaty to a foreign country, though perhaps difficult to realize, is expressly provided for by section 132; and while, pending provincial non-performance, power is, by that section, conferred upon the Parliament and Government of Canada, the Dominion power cannot be interpreted as meaning to deprive the province of authority to implement its obligations. If that had been the intention it would have been expressed.-Per Newcombe J.-The right of way exercised within a province by a flying machine must, in some manner, be derived from or against the owners of the property traversed, and the power legislatively to sanction such a right of way appertains prima facte to property and civil rights in the province, although it may be overborne by ancillary Dominion powers, where they exist.-Per Newcombe J.-This court ought not to determine under the present procedure question no. 2 which involves the definition of treaty obligations and the ascertainment, judicially, of the interest of foreign sovereign parties to the Convention, who are unrepresented and cannot be convened, especially so, seeing that the interpretation of the Convention is, by its article 37, to be determined by the Permanent Court of International Justice, or, previously to the establishment of that court, by arbitration. The inadvisability of that question being answered should be called to the attention of the Governor General.-Per Cannon J.-The Dominion Parliament may have paramount legislative executive power for performing the obligations of CONSTITUTIONAL LAW-Concluded
Canada, or any province thereof, under the Convention, but has not yet found it necessary or proper to exercise such legislative power. If the provinces refuse or neglect to do their share within their legislative ambit with sufficient uniformity to honour the signature of the
Dominion, the latter, being compelled to do so, may pass necessary and proper legislation to perform treaty obligations.
-Per Cannon J.-Aviation was not foreseen nor considered when the enumeration of section 91 was made; and the words "Property and Civil Rights" in section 92 are wide enough to give power to the provinces to legislate, with the required uniformity, to ensure safe and satisfactory regulation of aircraft throughout the Dominion and conform to the new requirements of international law since the sovereignty of each state over the air space above its territory was proclaimed
CANADA...............6. 63
3...........................
.
4................................
5................................
Nature of transaction-Whether loan secured on land or agreement of sale of land with option of re-purchase-Admission of parol evidence-Findings on the evidence-Transaction in substance a loan on security- Stipulation for right of purchase in lender, void as repugnant to equitable right of redemption.] It was held, reversing judgment of the Appellate Division, Alta.,
24 Alta. L.R. 48, and restoring judgment of Boyle J. at trial, that the agreement embodied in the document in question between P. (appellant's assignor) and respondent, was, not for the sale of land from P. to respondent with an option of repurchase, but for a loan from respondent to P. on security of the land. The document, taken by itself, in certain respects favoured the latter construction.
But, further, the parties' rights were not to be determined exclusively by examining the terms in the document; evidence was admissible, not only of the surrounding circumstances, but also of all the oral or written communications between the parties relating to the transaction, for the purpose of determining its true nature (Lincoln v. Wright,
4 De G. & J. 16, at p. 22; Maung Kyin v.
Ma Shwe La, 45 Indian L.R. [Calcutta series], 320, at p. 332, and other cases cited).
Even where the instrument professes fully and clearly to give the reasons and considerations on which it proceeds, collateral evidence is admissible to shew that the transaction is not thereby truly stated, although, in such cases, only the most cogent evidence avails to rebut the presumption to the contrary (Barton v. Bank of N.S.M., 15 App. Cas. 379, at p. In the present case, in view of the summary character of the document and the superficial incoherence of its terms, resort to parol evidence was peculiarly appropriate; and upon all the evidence (as viewed by this Court, and with the findings thereon by the trial judge) the substance of the transaction must be held to have been a loan on security. In such case the court will disregard, as repugnant to the equitable right of redemption, a stipulation professing to confer upon the lender the right of purchase, even if the parties, between themselves, had intended that it should be binding (G. & C. Kreglinger v. New Patagonia Meat & Cold Storage Co., Ltd., [1914] A.C. 25, at p. 52, and other cases, cited). WARD.................. 2 - Construction of harbour works for the Crown-Dispute as to amount payable to contractor for rental of plant-Interest on delayed payments.] Respondent, under contract with the Crown, performed certain work in connection with harbour improvements. The contract provided for payment on a "cost plus" basis and also for rental, fixed at a percentage per annum on value of the plant (the units whereof, with value of each, were set out), to be paid to respondent "on plant used in the work *
*
* to be payable only when each individual piece of plant commences operation and to cease when determined by the Engineer."
It was agreed that "no rental on any unit of plant shall exceed
[said percentage]
and rental charged for plant used for a lesser time than the full rental season in any year shall be calculated in the proportion that the days the plant be retained or used bear to the full rental season of 150 days."
At the commencement of a season's work the Crown's engineer would instruct respondent to put on the work the plant that he considered necessary, and that plant, with few exceptions, remained on the work and was employed constantly or intermittently throughout the season.
The dispute was as to whether units which became unnecessary for substantial periods during the season should be struck off the' rental sheet while idle.-Held: Having regard to the nature of the work and the nature of the plant required, the proper construction of the contract was that respondent was entitled to rental for all the plant while it remained on the work, notwithstanding idleness of some units as aforesaid, until the engineer determined that some unit or units were no longer required on the work and released them.
(Judgment of
Maclean J., Ex. C.R. 136, on this point affirmed.)- Held, also, that respondent was not entitled to interest on delayed payments (claimed on the ground that by reason of delay in payment respondent had to borrow at interest, and such interest should be included as part of the cost of the work); it was merely a case of moneys due respondent being withheld beyond due dates, in which case the
Crown is not liable for interest except under special circumstances such as existence of statutory provision or contractual obligation.
(Judgment of Maclean J., supra, in so far as he allowed interest, reversed.)
KING v.
&
3 - Breach - Sale of goods - Pleading
-Breach of duty to employer-Evidence of plaintif's contract of hiring with employer
-Admissibility-Fraud.]
In an action for breach of a written contract the defence was raised that the respondent was guilty of a breach of duty towards his employer in entering into the contract, but as no fraud was alleged in this regard, the paragraph was struck out with leave to amend. The amended paragraph alleged that the contract was made by the appellant's agent without authority and contrary to instructions and that the agent and the respondent fraudulently conspired together to bring about the contract, that the contract was procured by fraud and the respondent fraudulently obtained from the agent a price lower than the market price of the goods. The trial judge refused to admit evidence of the respondent's contract of hiring with his employer on the ground that a defence of illegal contract had not been raised on the pleadings; and the jury found in favour of the respondent.
It was argued by the appellant before this court that the price named in the being less than the market price, a profit would have accrued to the respondent if the contract had been carried out and that such concession to the respondent had been given by the appellant's agent, and accepted by the respondent, as a bribe to induce him to advance the interests of the appellant in the dealings of the respondent's employer with it through the respondent; and it was further argued by the appellant that the facts already disclosed by the evidence point to the existence of such a conspiracy or illegal agreement and that, notwithstanding the insufficiency of the pleadings, it was the duty of the trial judge to investigate the facts and for that purpose to receive further evidence supporting appellant's argument above stated.-Held that the trial judge was right in rejecting the evidence offered by the appellant. If such an agreement, affecting the contract sued upon, had been embodied in a document put in evidence by the respondent, and the character of it had been thereby plainly disclosed, or if the nature of it plainly appeared from other evidence adduced by the respondent, then, if the court was satisfied it has before it all the facts, the respondent would have necessarily failed; and, in such circumstances, it was immaterial whether or not the agreement had been pleaded in defence. is otherwise, however, where the appellant, in order to shew that the contract sued upon was unenforceable, was obliged to adduce evidence of the corrupt inducement.
The appellant was not entitled to present such evidence unless the respondent has had notice, through the pleadings, of the nature of the defence.
North Western Salt Co. v. Electrolytic Alkali Co. ([1914] A.C. 461) followed.-Judgment of the Court of Appeal (40 B.C. Rep. 499) affirmed. MADDISON................ 4 - Sale of land - Printed form - Alteration by pen and ink-Whether ambiguity or repugnancy between clauses- Interpretation-Evidence of intention by use of deleted words.] The appellant sold to the respondent two large areas of land in Alberta. The parties in formulating their agreement employed the printed form which the vendor customarily used for such transactions, filling up the blanks in typewriting; but there were some handwritten interlineations in the print, and the printed clause immediately following the blank in which the description of the parcels of land was typewritten appeared in the original executed agreement in the following form:
excepting thereout and thereany overriding "*
* * from eH eel &R4 other miie-royalty of ten per cent of all oils or gas found or produced from said lands n3aural goes and vehreble etenies in oF under the said a~d e ad the -ght t ea mieek 4 the said land oW the s ar-f-aee thereof we the venders Of their asignS may eonsider necessary fo the pufpose 4 weeking and removing the said seal e-F ether minera-l- incluidi~ petfrelef e* ia tiar gas-, and any portion of the said lands taken for roads or public purposes * * *;"
Later in the instrument, and as part of the printed form not stricken out, there was a covenant by the vendor that, if the purchaser pay the purchase money and perform all and singular the conditions of the agreement, he shall be entitled to receive from the vendor a transfer of the land in fee simple, "excepting thereout and therefrom all coal mines and other minerals including petroleum and natural gas and valuable stones."
The sale was for a price of $190,219.80 of which $45,000 was paid upon the execution of the agreement and the balance was made payable in five yearly instalments with interest and taxes. None of the deferred payments was in fact made by the respondent except a sum of $384;
and, the agreement not being fulfilled, the appellant brought this action for specific performance. The respondent resisted payment on the ground that the land agreed to be sold embraced all coal mines, coal pits, seams and veins of coal and the right to work the same, which coal mines, etc., were the property of the
Crown, and the appellant being unable to make title thereto as required by its agreement, the respondent counterclaimed for the repayment of $45,000 and a declaration that the agreement cancelled.- Held,
Anglin dissenting, that, according to the meaning of the deed, it was not the intention of the agreement that the vendor should convey the mines and minerals with the lands.-Held, also, Anglin C.J.C. dissenting: In order to reach the conclusion that, according to the meaning of the deed, the mines and minerals were to go with the lands, the trial judge and the
Appellate Division had to take into consideration "the printed form as it existed before the erasures,"
relying upon the authority of Strickland v.
Maxwell (2 Cr. & M. 539).
But, although it is difficult to distinguish the material facts of that case with those in the present one, the opinion therein expressed by
Bayley and Vaughan B.B., who held it admissible to reason from the obliteration, cannot be followed, because that seems contrary in principle to the rule against extrinsic evidence as laid down by the books and, moreover, in conflict with the judgment in Inglis v. Buttery
(3 App. Cas. 552).-The original grant from the Crown contained the reservation by it of "all coal mines, etc.,
*
*
* together with full power to work the same
*
*
*" and while there is an exception embodied in the agreement which, according to the above holding,
CONTRACT-Concluded embraces coal mines, etc., if there be any, it does not provide expressly for the working powers and liberties. There are however powers and liberties incident to the ownership and they rest upon the implications case.
But the respondent raised the ground that the powers for working, as expressly reserved by the Crown, are more comprehensive than those which are incident to the exception created by the agreement and therefore the appellant company has less than it has agreed to convey. Fuller v. Garneau, (61 Can. S.C.R. 450) relied on further, per Duff, Newcombe, Lamont and Smith JJ., that there was no evidence that the lands subject to the agreement contained any coal, or, if any, that it could not be worked without causing damage to the surface. Crown grants are in common form, and no inference can be drawn that a parcel of land contains coal because the grant by which the parcel is conveyed contains the common form of reservation. But if there be coal upon which the reservation operates, it is only "to such an extent as may be necessary for the effectual working" of it that the right "to enter upon or use or occupy the said lands" may be exercised.
The necessity must therefore be shewn, either by the vendor or by the purchaser, before the reservation of the Crown grant can be found to extend beyond the exception for which the agreement provides. The onus is upon the party who suggests or relies upon the necessity, namely the respondent, to produce the proof or to establish this evidence, and the respondent has failed to do it.-Per Anglin C.J.C. (dissenting).-While, under ordinary circumstances, it is not proper to look at deleted words in an instrument as an aid to its construction (Inglis v. Buttery, 3 App. Cas. 552), that rule does not apply where, as a result of the deletion, there is ambiguity between different clauses of an agreement. And when the ambiguity is obvious, as in the present case, the principle which governs is that laid down in Strickland v. Maxwell (2 Cr. & M. 539), namely, that "the works struck out might be looked at to shew what the intention of the parties was." CONVERSION - Action for damages for -Chattels left by plaintiff on defendant's land-Failure to remove-Circumstances justifying assumption of abandomnent- Extent of onus of proof as to plaintiff's title.
COUNTY COURT (MAN.)-Juridiction as to equitable right.
Habeas corpus - Excise Act, R.S.C. [1927] c. 60, 127,
128, 176-Opium and Narcotic Drug Act,
R.S.C. [1927], c. 144, 4-Information - Sufficiency as to description of informant- Whether informant authorized to act - Lack of evidence at trial-Orderfor imprisonment and fine-Conviction invalid in part-Order imposing less than minimum fine-Severance-Cost of conveying prisoner not mentioned in warrant-Criminal Code, ss. 654, 735, 754, 1135.]
Per Rinfret J.- Under section 654 of the Cirminal Code, any person, upon reasonable or probable grounds, may make a complaint or lay an information against an accused person in respect of the offences, relating to illicit distilling, mentioned in section 176 of the Excise Act; but even if it should be inferred from the provisions of that Act taken as a whole that officers of excise alone were competent to lay such information, it would not be necessary, though perhaps desirable, to specify particulars of the informant in the warrant of commitment.
Moreover, information laid against some of the applicants, which describes the informant, as a customs and excise officer acting "on behalf of His Majesty the King" was quite sufficient to justify the magistrate in proceeding with the trial. R. v.
Limerick (37 C.C.C. 344) and R. v. Ed.
(47 C.C.C. 196) dist.-Per Rinfret J.- On an application for habeas corpus, a contention by the petitioner that no proof of the authority of the informant was adduced at the trial does not raise a question of jurisdiction: if the judge before whom the application is made is right in his view that the magistrate had the right to enter on, and proceed with, the case, he had not to consider the sufficiency of the evidence on which the former was convicted. R. v. Nat. Bell
Liquors 2 A.C. 128, at pp. 151,
152) foll.-Per Rinfret J.-Under sections
127 and 128 of the Excise Act, a magistrate has the power both to imprison and fine the accused by summary conviction and is not restricted to impose one penalty to the exclusion of the other.- Per Rinfret J.-When the order imprisonment is absolute for a term and a further term is imposed in default of payment of a fine and costs, the conviction and commitment of the inferior tribunal are severable. Therefore, when a petitioner urges, as a ground for the issue of a writ of habeas corpus, the illegality of the part dealing with the further imprisonment, such application is premature before the expiration of the term for which the conviction imposed an absolute order of imprisonment; up to that time, the applicant cannot complain that he is illegally restrained of his liberty.-Per Rinfret J.-Where a warrant of commitment contains a valid order of imprisonment and also an order
CRIMINAL LAW-Continued imposing a lighter fine than the minimum imposed by the statute, this order being illegal, the portion providing for imprisonment is nevertheless valid; and the illegal order can still be remedied by applying the provisions of sections 754 and 1125 of the Criminal Code.-Per Rinfret J.-A warrant of commitment requiring the payment of the costs of conveying the accused to jail is not invalid for failure to state the amount of these costs.-Per Rinfret J.-The word "penalties" in par. 2 of s. 4 of the Opium and Narcotic Drugs Act means the imprisonment and the fine and does not include the costs.
Therefore, a condemnation to a fine of "two hundred dollars" will not be invalid as being a lighter fine than the minimum ($200 and costs), imposed by section 4, par (d) (b) of that section.
Moreover, nothing in the Act compels the magistrate to award costs; and in such a case, section 735 of the Criminal Code, under which the costs are in the discretion of the magistrate, would apply.-The judgments of Rinfret J., in chambers, rendered upon these four applications for habeas corpus, -were, on appeal, affirmed by the Court.- Held, that, in the cases of Henderson, Broder and Joe Go Get, the warrant of commitment shewed a valid conviction, and even assuming it to be defective because the amount of the costs is not stated, that would not be a ground for discharging prisoners habeas corpus: Section 1121, Criminal Code.- Held, also, that, in the Stewart case, assuming the defects alleged on behalf of the prisoner, he is not at present held under any of the defective clauses, and the application is at best premature. HENDERSON.................... 2-Habeas corpus-Person at large on bail-Not entitled to a writ.] In order to make a case for habeas corpus in criminal matters, there must be an actual confinement or, at least, the present means of enforcing it. A person may apply for the writ while in the custody of a constable, immediately upon being arrested, and need not wait until he is actually incarcerated.
But a person at large on bail is not so restrained of his liberty as to entitle him to the writ.
3- Practice and procedure-Jury trial -Charge of the trial judge-Misdirection- Sworn statement by stenographer conflicting with report of the judge-Section 1020 Cr. C.]
The appellant, having been convicted of the crime of rape and condemned to fifteen years imprisonment and lashes, appealed to the court of appeal principally on the ground that the trial judge erred in his instructions given to the jury. In the record were the CRIMINAL LAW-Continued notes of the stenographer at the trial who certified, under oath, to the delivery of a charge by the trial judge which, as reported by him, contained a clear misdirection.
The appellate court, having determined that, on the stenographic transcription, should be allowed, directed that a report be furnished by the trial judge in accordance with section 1020 Cr. C. The trial judge then prepared, two or three months after the trial, a certificate containing a number of statements made by him in answer to a corresponding number of objections to his charge which formed the grounds of appeal and stating, according to his recollection, that in fact his direction was precisely the contrary of that reported.- Held that such certificate of the trial judge was not a report within section
1020 Cr. C.: it did not contain the judge's
"notes of the trial" nor was it a "report giving his opinion upon the case or upon any point arising in the case"; and, therefore, the court being left with nothing authentic and regularly before the court to establish that the charge was not as reported, the appellant was clearly entitled to a new trial.
1020 Cr. C. apparently contemplates that the judge or the magistrate should furnish
"his notes of the trial" or his report immediately after the trial, or at least, so soon as an appeal is lodged; and it was never intended by this section to enable the trial judge, after an appeal had been argued, to put before the court of appeal, by way of certificate or otherwise, whether proprio motu or by direction of the court of appeal, his answer to the various points taken upon the appeal.
KiNO....................
4 - Conspiracy - Witness-Accomplice - Charge - Misdirection trial-Police spy or informer-Need of corroboration-Practice when dissenting opinion in appellate court-Cr. C., s. 573, s. 1013, as.
The appellant, with two other men, was convicted of conspiring to commit an indictable offence.
On appeal to the appellate court and to this court, the appellant's main ground was that one
Boulanger, the chief witness for the crown, was in fact an accomplice; that the direction given by the trial judge was bad in law, as he had omitted to instruct the jury on what is an accomplice in law, and to warn them of the danger of convicting on the uncorroborated testimony of an accomplice.- Held, that, after consideration of the charge as a whole and reading it in the light of the evidence, there had been misdirection by the trial judge and that the appellant was entitled to a new trial. There was in the record of the trial some evidence upon which the jury might have found that
CRIMINAL LAW-Continued Boulanger had been, at some stage of the affair, an accomplice in the conspiracy charged against the three accused; and it appears by his charge that the trial judge thought this was a question of fact that should be submitted for the determination of the jury. Therefore it was the first duty of the trial judge to have instructed the jury as to what in law would constitute a man an accomplice; he should then have proceeded to direct their attention particularly to any facts in evidence which would serve to indicate Boulanger's complicity in the conspiracy at any stage thereof, and to submit to them the issue as to whether what he was proved to have done made him, having regard to the direction in law already given, an accomplice; he should then have instructed the jury that, if they concluded that the witness was, at any stage of the proceedings, an accomplice in the crime charged against the accused, there would be danger in convicting them of that crime upon his evidence standing alone and uncorroborrated, although the law did not preclude their doing so.-The formal judgment of the appellate court directed that "separate judgments should be pronounced" by the two dissenting judges of the court; and there was no direction that any other judgment be pronounced except that to be delivered by Cannon J., who was said to have been "designated by the Chief Justice to pronounce judgment." But opinions, practically the same as that of Cannon J., were also delivered by the two remaining judges.-Held that such a practice is contrary to the imperative prohibition of ss. 5 of s. 1013 Cr. C., its impropriety having already been asserted by this court in Davis v. The King, [1924 Can. S.C.R. 522. Gouin v. The King, [1926] Can. S.C.R. 539; De Bortoli v. The King, [1927] Can. S.C.
455, also ref.- Observations, in view of its regrettable results, as to misdirection by a trial judge which necessitates a new trial, especially where the misdirection is due to inattention to matters of substance.-Comments made upon a passage of Phipson on Evidence, 3rd Ed., at page 456, corrected in the 6th Ed., at page 486.
The statement that "the rule requiring the corroboration of accomplice does not apply to * * * policy spy" means that the informer must ave been connected with the matter from the first only as a police spy and not merely have "continued" as such. THE KING............. 5 - Evidence-Tender of evidence given on former trial, under Cr. s. 999- Admission by accused's counsel of "every fact essential to the admission of the evidence" under s. 999-Extent of admission- Lack of proof that evidence put in was in CRIMINAL LAW-Concluded fact the evidence given at former trialfindings against accused- New trialunder s. 999 which was given on former separate trials of persons now tried together.]
The appellants were convicted of removmg, and two of them of importing, goods of over $200 in value and liable to forfeiture, contrary to s. 193 of the Customs
Act, R.S.C., 1927, c. 42.
At their trial the Crown proposed to put in, under s.
999 of the Cr. Code, evidence given at previous trials (at which the juries had disagreed) by one W. Counsel for the accused admitted "every fact essential to the admission of the evidence of [W.]
under s. 999 of the Code," and the evidence offered was put in.-Held: The admission of counsel, while it rendered unnecessary the establishment of the various facts required by s. 999 to be proved before the evidence of W. could have been admitted, did not in any way identify the documents read to the jury as the evidence given by W. on the former trials; and, there being no proof that the statements put in were in fact the evidence of W., and there being no consent that they were, they were wrongly received, and appellants were entitled to a new trial. The appellant C., convicted of removing but not of importing, was so entitled, notwithstanding that the depositions put in did not in terms incriminate him; they were important on the point that the goods in question were goods liable to forfeiture under the Act;
that was an essential element of the charge and of the proof, and although C.
might have been connected with it only through other evidence, it was not possible to appreciate how far the depositions on the main charge concerning the character of the goods imported might have influenced the jury in its findings.- The said previous trials had been, one of the appellant 0. alone, and the other of the other appellants and one P. On the trial in question, at which said depositions were received, they were all tried together.
One alleged ground for a new trial was that W.'s evidence on either previous trial was inadmissible against any accused who had not been a defendant on the previous trial at which it was given.
The Court found it unnecessary to pass upon the point, but remarked that, should similar circumstances happen at the next trial, and W.'s depositions properly and legally identified be tendered, it would be most advisable for the trial judge to warn the jury that each deposition should be considered as evidence only against the accused in whose former trial such deposition purported to have been taken.
KING........................
CROWN-Grant-Construction as to land conveyed-Construction of exception from grant-Distances marked on plan attached to grant-Exception described in grant with reference to description in prior grant- Actual situations and measurements on the ground-Controlling factors in determining extent of exception. LTD................... See PROPERTY.
2 - Construction of harbour works for the Crown -Dispute as amount payable to contractor for rental of plant-Interest on delayed payments.................. See CorrRAcr 2.
3 - Railways -Action of what was formerly the Intercolonial (a Canadian Government) railway-Defence of contributory negligence-Application of provincial Contributory Negligence Act (R.S. N.B., 1927, c. 143)-Canadian National Railways Act, R.S.C., 1927, c. 172, ss. 12,
33,
2 (a)
19, 21- Exchequer Court Act, 'RI.C., 1927, c. 34, s. 19-Consideration by Supreme Court of Canada of question of law not raised below ...... e...
4 - Revocation-Licence by Postmaster General to sell postage stamps, etc., by automatic machines-Period of agreement-Termination by
Postmaster General-Right to terminate-Authority of Postmaster General in contracting for the Croum-Post Office Act, R.S.C., 1927, c. 161, ss. 2 (1), 4, 5, 7, 8, 66-80.]
By agreement between the Postmaster General of Canada and respondent, the Postmaster General granted to respondent a general licence to sell (on commission) postage stamps, etc., by means of automatic machines, "such licence to be for a period of ten years
*
*
* and if this contract has been properly fulfilled then for a further period of ten years without further agreement and upon the termination of the said periods above the licence shall be renewed for further periods of ten years each successively unless and until" either party terminated by notice. Postmaster General agreed that "during the term of this agreement or licence he will not licence the use of any other machine than those used by the licensee * * * if such other machine depends substantially on similar principles for its operation. But this clause shall not be interpreted as meaning that the department shall be precluded from using or licensing any other more satisfactory or advantageous machine."
Provision was made for machines to have compartments for mailing of letters.
The Postmaster General terminated the agreement at the CROWN-Continued end of 10 years.
In an action by respondent for damages, and on questions of law raised, the Exchequer Court held that the agreement, if properly fulfilled by respondent, was to continue for 20 years, and could not be terminated by the
Postmaster General at the end of 10 years. The Crown appealed.-Held
(Anglin C.J.C. and Lamont J. dissenting):
The licence was revocable at the Postmaster General's discretion. He had no authority to grant it so as to bind his successor or the country at a future time.
It is of the quality of a licence that it shall be revocable.
An implied covenant in this case not to exercise his power of revocation would be in excess of is powers to bind the Crown.
A minister cannot by agreement deprive himself of a power which is committed to him to be exercised from time to time as occasion may require in the public interest, or validly covenant to refrain from the use of that power when it may be requisite, or expedient in his discretion, upon grounds of public policy, to execute it
(Ayr Harbour Trustees v. Oswald, 8 App.
Cas., 623).
The question was one of statutory administration of the public service; the Minister could depute the performance of his duties only so far as authorized by Parliament; and, compatibly with the statute (Post Office Act,
R.S.C., 1927, c. 161; ss. 2 4, 5, 7, 8,
66-80, referred he should have remained free to revoke the licence as the exigencies of the case in the public interest might require.-Per Anglin C.J.C. and
Lamont J. (dissenting)
: The Postmaster
General, in making the agreement, did not exceed his powers under the Post
Office Act. S. 9 (n) of c. 66, R.S.C., 1906, as amended, 1911, c. 19, (now s. 7 (m)
of c. 161, R.S.C., 1927), on its proper construction, authorizes him to secure by contract the erection and use of machines such as those in question, and implies authority to contract for a period of time, that period, in the absence of statutory limit, being left to his discretion, which in this case he exercised by fixing the period provided in the agreement.
That period was not shown to have been, in the circumstances, unreasonable. While he cannot by contract deprive either himself or his successors of the right to close a post office if the public interest requires its closing, that right was not interfered with by the agreement; a machine was a post office only when, with his consent, mailable matter might be placed in a compartment thereof, and on the closing of that compartment the machine would cease to be a post office.
The granting in the contract of permission to respondent to have and use compartments in the machines for certain purposes of its own, was within the
Minister's authority.
CROWN-Continued
The Postmaster General had no right to determine the agreement as he did, even assuming that it was a mere licence. A licence, if given for value, or a licence with an agreement not to revoke it, if given for value, is an enforceable right and cannot be revoked without sufficient cause; further, if the agreement for the giving or continuing of a licence, or the circumstances under which it is given or continued, are such as to make it inequitable that the licence should be revocable at the will of the licensor a court will exercise its equitalbe jurisdiction to prevent an unjust revocation (Ramsden v. Dyson, L.R. 1 H.L., 129; Plimmer v. Mayor, etc., of Wellington, 9 App. Cas., 699; Hurst v. Picture Theatres Ltd., [1915] 1 k.B. 1; Whipp v. Mackey, [1927] I.R., 372, and other cases, cited.) Even if the agreement in question could have been revoked before respondent expended money in construction of the machines (as to which quaere), once it had expended money on the faith of the licence, an equity was created in its favour which rendered a revocation unjust; the agreement, in the light of what was contem. plated by and done under it, should be construed as containing an implied contract not to revoke it except in accordance with its provisions for its determination. TE
........ 5 - Telegraph lines planted by company on roadway of Government railway-Alleged permission to plant and maintain them - Revocability-Absence of formal contract- R.S.C., 1927, c. 171, as. 7, 15.] Crown took proceedings in the Exchequer Court against defendant, alleging that it had wrongfully planted and maintained its telegraph lines upon the roadway (belonging to the Crown) of the Intercolonial Railway.
Audette J., [1930] Ex. C.R., 26, held that defendant was on the roadway by licence, but not an irrevocable licence, of the Crown.
Defendant appealed, asserting an irrevocable licence, and the Crown cross-appealed, denying the existence of any licence. For purposes of its judgment, this Court considered the telegraph lines as in three sections, (1) the "Main Line" (between St. John and Halifax with a branch from Truro to New Glasgow; built in 1888-1890), (2) the "Branch Line" (from New Glasgow to Sydney, built in 1893), and (3) the "Westville Line" (from Westville to Pictou, built in 1911).-Held (1) As to the "main line," on the evidence, the defence of leave and licence failed, and there was nothing to give rise to any equity in defendant's favour.-(2) As to CROWN-Continued the "branch line," on the evidence there was no agreement (giving leave to defendant to use the roadway) proved; or, even if otherwise, the agreement, such as it may have been, had ceased to operate in any particular, unless to negative defendant's liability to remove its poles and wires; and defendant was, when the present action began, in no better position than that of licensee whose leave was terminated or exhausted.-(3) As to the
"Westville line," from the evidence it appeared that defendant built it on the roadway by consent the parties having mutually in view the negotiation of a contract, with adequate sanctions, to regulate their rights and obligations; and, with nothing more definite, defendant had ever since maintained and used the line without notice or warning of intention by the Government to withdraw the
The licence was revocable, but the right to revoke should be exercised reasonably;
in the. circumstances, an abrupt determination, without demand or notice, was unjustifiable.
Therefore, as to this line, there was no cause of action when the proceedings were commenced, and the action must fail.
The King
Inhabitants of Horndon-on-the-Hill, 4 M.
& S., 562, at p. 565; Cornish v. Stubbs,
L.R. 5 C.P., 334, at pp. 337-340; Coleman v. Foster, 1 H. & N., 37, at pp. 39, 40- Kerrison v. Smith, [1897] 2 Q.B., 445, and other cases, cited.
(Anglin, C.J.C., dissenting on this point, held that failure to give notice of revocation was not necessarily fatal to the action; on the contrary, inasmuch as defendant asserted that its licence as to this line was irrevocable and contested the Crown's claim to exclude it on the merits, the bringing of the action itself should be regarded as sufficient notice, subject only to the question of costs and allowance of a reasonable time to defendant to remove its poles and wires. Cornish v. Stubbs supra, Coleman v. Foster supra, and other cases referred to).-(4) As to all the lines generally, apart from other considerations, the contracts alleged by defendant were ineffective for non-compliance with statutory requirements (Department of
Railways and Canals Act, R.S.C., 1927, c. 171, ss. 7, 15 referred to; The Queen v.
Henderson, 28 Can. S.C.R. 425, discussed and distinguished).
The telegraph rights claimed by defendant in perpetuity with respect to the railway lands in question could not be acquired for defendant's accommodation by the mere laches, acquiescence or tolerance of the executive officers and employees, charged under the
Minister with the administration working of the railway.
It was contemplated that whatever concessions might be authorized should be contracted for by the Crown, represented by the
CROWN-Concluded
Minister, and defendant knew, or is presumed to have known, the statutory requirements.
Moreover, as to defendant's claim that it had acquired in perpetuity, and in the manner contended for, the right to use the Government railways for its telegraph lines, effect must be given to the principles expressed in Ayr Harbour Trustees v. Oswald, 8 App. Cas., 623 (see at pp. 634, 639).
When planting its poles on the Government railway, defendant must have realized the facts of the case and the risks to be encountered, and the desirability of securing permanent concessions, if possible, or if they could or would be granted by the executive authorities; and there was no foundation upon which to apply the doctrine of estoppel.
In so far as any contract competent to the parties could answer the purpose, the defendant neglected entirely the most elementary requirements as to the ascertainment of the terms, and the statutory essentials of form and sanction.
(Reference also to Selwyn's Nisi Prius, 13th ed., . 1086 and to Blanchard v. Bridges, 4 A & El. 176, at pp. 194-195).-Judgment Audette J. (supra) reversed in part in favour of the Crown.
v. THE KING ........ CUSTOMS................... DISTRESS ...................
OOMICILE - Intention of the party - Marriage outside of the province-Circumstances-Change of domicile-Matrimonial status-Whether common or separate as to property-Evidence-Burden of proof-Art. 80CC.] The appellant was born on June 30, 1865, in Mosquito, Newfoundland, where his parents were domiciled.
He remained there until 1886, when he went to La Have River, in Nova Scotia, in order to seek better employment as a mechanic. Then he worked his way on a ship to Sidney, Cape Breton and from there went to Montreal in October, He obtained employment in the Grand Trunk Railway Company's shops and boarded with a distant relative of his father.
Some months later, he changed to one of the shops of the Canadian Pacific Railway Company in Montreal. He went to Toronto, worked there for a time and returned to Montreal, obtaining employment in another shop of the Canadian Pacific
Railway. He then represented to his father and mother the advantages they would secure by coming to Montreal. The result was that, in 1887, the whole family came to Mont. 19301
DOMICILE-Concluded real, with the exception of a married sister who remained in the homestead; but she also came to Montreal the following year, the family home being rented to a neighbour. The father took a house in
Montreal and the appellant boarded with him. In
1889, the father and mother decided to return to Newfoundland but failed to do so on account of the father's illness and subsequent death.
In July, 1889, the appellant went to
Newfoundland and married at Carbonnear the respondent's mother.
He told the officiating minister that he came from
Montreal and the marriage certificate describes him as "of Montreal, P.Q."
After the marriage, the appellant and his wife went to Halifax; and, there being no work there, they both came on to
Montreal where they lived until the death of appellant's wife.
It is also in evidence that, after her death, the appellant caused an inventory to be made before a notary "of the community of property which formerly existed between him and his said late wife."-Held, affirming the judgment of the Court of
King's Bench (Q.O.R. 45 K.B. 184), and Smith JJ. dissenting, that all the circumstances of the case point to the fact that the appellant had abandoned his domicile of origin and had made Montreal his new domicile.
(Art.
80 C.C. .- Per Newcombe and Smith
JJ. (dissenting)
.-Upon the evidence, it must be held that, up to the time of the marriage, there had been no change of domicile.
The burden of establishing as a fact the acquisition of a new domicile and the abandonment of the domicile of origin by the appellant was on the respondent and he has not discharged it. The evidence must be "unmistakable * * * that the party who has the domicile of origin intends to part with it * * *."
(The Lauderdale Peerage, 10 App. Cas.
TAYLOR..........
DRAINAGE.....................
EDUCATION...................
ESTOPPEL......................
EVIDENCE -Burden of proof-Domicile
-Intention of the party-Marriage outside of the province-Circumstances-Change of domicile-Matrimonial status common or separate as to property-Art. 80
TAYLOR...........
2---Onus of proof (Application and effect of s. 42 of Highway Traffic Act) R.S.O.,
1927, c. 251-New trial............ 156
EVIDENCE-Continued
3 - Nature of transaction-Whether loan secured on land or agreement of sale of land with option of re-purchase-Admission of parol evidence-Findings on the evidence-Transaction in substance a loan on security- Stipulation for right of purchase in lender, void as repugnant to equitable right of redemption................... ... 4- Will-Alleged will not forthcoming after death-Sufficiency of proof of execution and contents-Rebuttal of presumption of destruction animo revocandi-Destruction of one will on assumption of replacement by later will-Dependent relative revocation ............. 5- Shipping-Loss of goods-Due diligence of ship owner-Latent defect-Burden of proof-Certificate of seaworthiness by government inspectors-Sections 6 and 7 of the Water Carriage of Goods Act, (1910) 9-10 Edw. VII, c. 61, now R.S.C., 1927, c. 207...........
............
6 - Contract -Breach - Sale of goods- Pleading-Breach of duty to employer- Evidence of plaintif's contract of hiring with employer-Admissibility-Fraud 299 against railway company for damages from accident at railway crossing-Sufficiency of evidence as to negligence-Admissibility of evidence-Wrongful withdrawal of case from jury- New trial-Railway line formerly under provincial jurisdiction, but, prior to accident, coming under federal jurisdiction-Admissibility in evidence of order made by provincial railway board during its period of jurisdiction............... 8 perishing in whole or in part within ten years-Vices du sol-Liability of builder acting under employer's architect-Onus on builder-Art. 1688 C.C.............. 9-Contract-Sale of land-Printed form -Alteration by pen and ink-Whether ambiguity or repugnancy between clauses- Interpretation-Evidence of intention by use of deleted words................. 10-Banks and banking-Sums withdrawn without authority by local branch bank manager from customer's account- Suit by customer's executors for recovery- Defence of repayment-Onus-Evidence as to repayment-Evidentiary value of documents signed by customer as to bank balance and vouchers...................... EVIDENCE-Concluded
11--Criminal law-Tender of evidence given on former trial, under Cr. s. 999- Admission accused's counsel of fact essential the admission of the evidence" under s. 999-Extent of admission- Lack of proof that evidence put in was in fact the evidence given at former trialfindings against accused- New trialunder 999 which was given on former separate trials of persons now tried together
...................
12--Crown-Railways-Licence.. . .
13 ......
........
14..............................
................
EXCHEQUER COURT - Third party procedure introducing matter purely of civil right as between subject and subject-B. N.A. Act, (establishment of courts for better administration of "the laws of Canada")-Exchequer Court Act,
R.S.C., 1927, 34, ss. 30, 87, 88- Exchequer Court Rules 262-269.) The
Crown took proceedings in the Exchequer Court to recover from defendant upon certain bonds. Defendant, by third p arty notice, in the form prescribed by
Exchequer Court
Rule claimed indemnity against the third party under an agreement between defendant and the third party. Upon motion by the third party, Audette J. ([1929] Ex. C.R.,
101) set aside the third party notice, without prejudice to any existing right of indemnity which defendant might have.
Defendant appealed.-Held (Newcombe
J. dissenting): The third party notice was rightly set aside.
It was not authorized by the Exchequer Court Rules, construed with due regard to s. 101 of the B.N.A.
Act, which authorized the creation of that court, and to the terms in which Parliament has conferred jurisdiction on it
(Exchequer Court Act, c. 34; s. 30 particularly dealt with).
words "the laws of Canada" in said s.
101 mean laws enacted by the Dominion
Parliament and within its competence;
s. 101 does not enable Parliament to set up a court competent to deal with matters purely of civil right in a province as between subject and subject.
even if, ex facie, said rule 262 might be broad enough to include a third party procedure in a case such as that in
EXCHEQUER COURT-Concluded question, it cannot have been intended to have any such effect, since so to construe it would be to attribute to the Exchequer Court an intention, by its rules, to confer upon itself a jurisdiction which it would transcend the power of Parliament to give to it. Nor can it be said that it is "necessarily incidental" (Montreal v. Montreal Street Ry., [1912] A.C., 333, at pp. 344-6) to the exercise by that court of the jurisdiction conferred upon it, that it should possess power to deal with matters such as were here attempted to be introduced by the third party procedure, even where they arise out of the disposition of cases within its jurisdiction.-Per Newcombe J. (dissenting): The words "the laws of Canada" in s. 101 of the B.N.A. Act include any law which operates in the Dominion, whether by statute or as part of the common law. The Dominion's powers under s. 101 were not intended so to be restricted or controlled as to cease to be exercisable when they come into contact with an issue between individuals relating to property and civil rights in a province.
In the Exchequer Court Act Parliament has validly given the Exchequer Court jurisdiction in cases within which the present action falls; and the third party procedure in question was authorized by rules (which are statutory rules) validly made.
Dis- CORP.
2 ................................ EXCISE ACT, Conviction upon. EXCISE TAX......
......... EXECUTORS
AND - ADMINISTRA- TORS - Fraudulent conveyances-Attack plaintiff, claiming as judgment creditor of deceased and as administratrix of his estate, on alleged transfers deceased in fraud of creditors-Status of plaintiff in said capacities-Doctrine as to extinguishment of debt due to an executor his testator.]-Plaintiff, a daughter of R., deceased, purchased judgments which had been obtained against R. in his lifetime. She later became administratrix of his estate.
She then, as administratrix and in her personal capacity, sued her brother, the defendant, attacking transfers made by R. to defendant as having been made defraud creditors.
Appellate Division, Ont. (36 Ont. W.N. 265), held that the transfers were fraudulent and void as against creditors;
and that defendant must account and pay over, out of what had been transferred to him, sufficient to meet creditors' claims; but rejected plaintiff's claim as administratrix to the further moneys in defendant's hands.
On appeal and cross-appeal:- TORS-Concluded
Held (1) The findings below that the transfers were made in fraud of creditors should be sustained.-(2) As to defendant's contention that plaintiff's claims against R.'s estate were extinguished by operation of law upon the grant of letters of administration followed by the acquisition of assets by her as administratrixputting the doctrine, as to extinguishment of a debt due to an executor from his testator, in the form most favourable to defendant, it had no application in this case, as there was nothing to show the existence of assets in plaintiff's hands
"sufficient and properly applicable to pay" the judgments acquired by her (In re Rhoades, [1899] 2 Q.B. 347, at pp.
352-353).-(3)
Plaintiff's position administratrix did not entitle her to attack the fraudulent transfers. A debtor who fraudulently transfers his cannot himself attack his fraudulent transaction, and his administrator has no greater right (Shaw v.
Jeffery, 13 Moo. P.C. 432; Hawes v.
Leader, 1 Brownl. & d. 111; Orlabar v.
Harwar, Comb. 348; Ayerst v. Jenkins,
L.R. 16 Eq., 275; olman v. Croker, 1
Ves. 160).-Judgment of the Appellate
Division, Ont. (supra) affirmed.
RYAN
FRAUDULENT CONVEYANCES.
See ExECUTORS
HABEAS CORPUS - Criminal law- Person at large on bail-Not entitled to a writ.] In order to make a case for habeas corpus in criminal matters, there must be an actual confinement or, at least, the present means of enforcing it. A person may apply for the writ while in the custody of a constable, immediately upon being arrested, and need not wait until he is actually incarcerated.
But a person at large on bail is not so restrained of his liberty as to entitle him to the writ.
ISBELL.....................
2............................
HIGHWAY TRAFFIC ACT-(Ontario)
-Violation of-Application and effect of
8. 42.............................
HIGHWAYS
See MOro
HUSBAND AND WIFE - Domicile - Intention of the party-Marriage outside of the province-Circumstances-Change of domicile - Matrimonial status common or separate as to property-Evidence-Burden of proof-Art. 80 CC.
TAYLOR.................
See DomicuE.
2................................
INCOME TAX - Income assessment (municipal)-Asessment Act, R.S.O., 1927, c. 238-Ascertainment of "income" (as defined in )-Allowance deduction, from company's gross revenue, of sum paid for interest on moneys borrowed for investment-Exemption claimed for dividends received on shares in another company whose revenue derived from real estate rentals-Deduction for overhead expenses; proportionate allowance, having regard to amount of non-taxable income.] The appellant company's business, carried on in Ottawa, Ontario, included the leasing and managing of real estate owned by it in Ottawa, and the buying and selling on its own account of stocks, bonds, etc. In the year in question it derived a gross revenue of $12,288 from tax), and a gross revenue of $27,091 from dividends and interest upon stocks, bonds, etc. From the latter sum it claimed, in respect of income assessment, deductions or exemptions as follows: (1) $8,004,83, being interest paid to a bank for money borrowed to pay off a balance of stock and bond purchase price and to buy certain bonds; (2) $6,622, being dividends on shares held by it in another company, whose revenues were derived exclusively from real estate rentals; and (3) in respect of salaries and g eneral expenses.
The County Court udge disallowed deduction or exemption of items (1) and (2).
As to certain "overhead expenses"
(item
) he allowed a deduction, in fixing which he adopted as a guide the proportion which appellant's revenue from rentals bore to its total revenue.
His judgment was affirmed by the Appellate Division, Ont., 64 Ont. L.R. 265.-Held, that the judgment below (supra) should be affirmed as to items (2) and (3), but reversed as to item (1); the appellant being entitled to the deduction of $8,004.83.-"Income," as defined in s. 1 of the Assessment Act, R.S.O., c. 238,
A year's income from a business cannot be properly determined without deducting from the gross receipts of that business for that year expenditures legitimately incurred during that year in the business for the purpose of earning such receipts as a whole; such expenditures to include those made in the hope of earning receipts for the business, although such hope has been disappointed.
The $8,004.83 question was expended, by way of interest to the bank which advanced the money required by the appellant, to enable it to obtain an investment within its powers and earn from it any receipts that might be had therefrom.-Mersey
Docks v. Lucas, 8 App. Cas., 891; Gresham Life Assur. Soc. v. Styles, [1892] A. C., 309; Russell v. Town & County Bank, 13 App. Cas., 418; City of Kingston v. Can. Life Assur. Co., 19 Ont. R., 453, at p. 458; INCOME TAX-Continued
Lawless v. Sullivan 6 App. Cas., 373;
Farmer v. Scottish North American Trust
Ltd., [1912] A.C. 118, and (judgment below) 1909-10 Sess. Cas., 966; Bryon v.
Metropolitan Saloon Omnibus Co. Ltd.,
3 DeG. & J., 123, and other cases, referred
IN Co....
2- Income War Tax Act, R.S.C., 1927, c. 97-"Income"-"Profit or gain" from a trade or business-Assessability for income tax of "Saskatchewan Wheat Pool"
in respect of sums retained for "commercial reserve" and "elevator reserve."] The respondent, commonly known as the
"Saskatchewan Wheat Pool," was incorporated under the Saskatchewan Companies Act, and its incorporation was confirmed by c. 66 of 1924 (Sask.). Its primary object was to enable its members, who were Saskatchewan grain growers, to market their grain co-operatively. It was assessed for income under the Income
War Tax Act (now R.S.C., 1927 c 97)
in respect of certain sims which it retained, from the gross returns of sale of grain as a "commercial reserve" and as an 'elevator reserve."
It objected to the assessment on the ground that the sums so retained did not constitute income within the Income War Tax Act.- Held, that it was not assessable in respect of the said sums. Having regard to the provisions its memorandum articles of association, of its confirming
Act, and of its agreement with the grain growers (its shareholders), its employment of the reserves, and provisions made for return to the growers, it could not be said that the reserves assessed constituted taxable income of respondent within the meaning of the Income War Tax Act.
The basis of chargeability to income tax is the operation of a trade or business giving rise to a profit.
The respondent in respect of said reserves was merely machinery for collecting contributions from the growers, not as its shareholders but as subscribers to.the fund, and for using those moneys for the growers' benefit and handing them back in some form or other when no longer required;
and hence the reserves could not be said to be "profits or gains" of respondent.- New York Life Ins. Co. v. Styles, 14 App.
Cas., 481; Jones v. S. W. Lancashire Coal
Owners' Assn., Ltd., 42 T.L.R. 401, and other cases, referred to and discussed.
Last v. London Assur. Corp., 10 App. Cas.
438; Commissioners of Inland Revenue v.
Sparkford Vale Co-operative Soc. Ltd.,
133 L.T., 231; Fraser Valley Milk Producers' Assn. v. Minister of National
Revenue, [1929] Can. S.C.R. 435; Liverpool
Corn Trade Assn. Ltd. v. Monks, [1926] 2
K.B. 110, and Cornish Mutual Assur. Co.
Ltd. v. Commissioner of Inland Revenue,
A.C.,
281, discussed and distinguished.-Judgment of the Exchequer
INCOME TAX-Concluded
Court of Canada (Audette J.), [1929] Ex. C.R., 180, affirmed.
THE MINISTER CO-OPERATIVE WHEAT INSURANCE, ACCIDENT - Provision for reduction of insurer's liabusty if insured injured "while engaged ether temporarily, casually or permanently" in more hazardous "occupation"-Isolated act of extra hazard-Exception to risk described by different wording in policy and application-Jury's findings as to circumstances of accident.] Defendant insured M. against accident. In his application for insurance M. warranted that "my occupation and specific duties are fully described as president and general manager of lumber company, office duty only and travelling," and agreed to have his occupation classed as "select," and for reduction of insurer's liability if insured was injured "while engaged in any occupation or exposure to danger"
classed as more hazardous than that stated. A term of the policy provided for such reduction of liability if insured was injured "while engaged either temporarily, casually or permanently in an occupation classed as more hazardous" than that stated. M. was crushed between two railway box cars, resulting in his death. Defendant alleged that M. at the time of the accident was trying to engineer the movement of a box car, and therefore, under the contract, plaintiff (beneficiary thereunder) was not entitled to the full amount of the policy, which she claimed. The jury, in answer to questions submitted, found that M. died by accidental injury, that at the time of injury he was not engaged in any occupation other than that of "president general manager lumber company, office duty only and travelling," and was not "engaged in any exposure to danger more hazardous than office duty."
They expressed inability to find what act M. was doing at the time of the accident. Judgment was given for plaintiff, which was affirmed by the Appeal Division (N.B.).-Held (1) On the evidence, it could not be said that the jury erred in failing to find what M. was doing, or whether or not he was on a box car, at the time of the accident; and that, on the jury's findings, judgment for plaintiff was the only possible outcome of the action.-(2) Even had M. been trying to engineer the movement of a box car at the time of the accident, that fact alone would not warrant judgment for defendant. The doing of that single isolated act, ordinarily forming part of the duties of a more hazardous occupation, would not amount to "engaging in" such occupation
'feither temporarily, casually or permanently."-(3) If a INSURANCE, ACCIDENT-Concluded I INSURANCE COMPANY-Concluded specific exception to the risk undertaken in an insurance policy be described in the policy itself, as well as in the application therefor (although the latter be incorporated in the former), the insured is ordinarily justified in insisting that, as between him and the insurer, the words of the policy shall, if they differ from those of the application, be taken as evidencing, in that particular, the contract by which both are bound. And where the terms employed in the policy are reasonably susceptible of a construction which does not include in the exception, stipulated by the insurer in its own interest, the doing of an isolated act of extra hazard, that construction must prevail. Ontario Metal Products Co. v.
Mutual Life Ins. Co., 1924] S.C.R. 35, at p. 41; [1925] A.C. 344; Victory v.
Saskatchewan Guarantee & Fidelity Co.,
[1928] S.C.R. 264, at p. 273, cited.
................
- Indemnity policy-Minimum and estimated premiums mentioned in the policy- Supplementary premium fixed and payable after the expiry of policy-Accident to employee during life of the policy-Notice to insurer after supplementary premium is due-Liability of the insurance company- Insolven-y of the employer-Fyling of claim with the trustee for supplementary premium between premium and indemnity.
3-Motor vehicles-Action, by person injured by automobile whose owner is insured, against the insurer-Insurance
Act, R.S.O., 1927, c. 222, s. 85-Establishment of liability against insurer on the policy-Facts to be proved and manner of proof-Condition in policy for no liability while automobile "with the knowledge, consent or connivance of the insured is being driven a person under the age limit fixed by law"-Insurer's onus of proof as to consent-Amount recoverable against insurer-Inclusion of costs of appeal taken by insured in plaintif's action against insured.
YORKE.....................
INSURANCE, AUTOMOBILE....
See VEHICLEs 2
INSURANCE COMPANY - Jurisdiction-Appeal from ruling of Superintendent of Insurance-Amount in controversy-Curia designata-Construction of s. 82, Exchequer Court Act-S. 46 (c) of the old Supreme Court Act-Insurance - Capital-Increase-Construction of statutes -Insurance Act, R.S.C., 1906, c. 101, s. 68 (2)
(6)-Exchequer Court Act, R.S.C., 1906, c. 34, ss. 82, 83........ INSURANCE, FIRE-Banks and banking -Advances made to trader-Fire insurance policies-Transfer of eventual claim of loss as security-Volidity-Interpretation of statutes-Observations on maxim "expressio unius est exclusio alterius"-Arts. 1981, 2472, 2474, 2432, 256), 2571 C.C.- Bank Act, R.S.C., 1927, c. 12, a. 75- Bankruptcy Act, R.S.C., 1927, c. 11, ss. 63, INTEREST-Disallowance of, in fixing compensation for ship requisitioned by Crown under War Measures Act, 1914 (D.)-Governing principles as to allowance of interest.] The Crown, in April, 1918, pursuant to Order in Council passed under the War Measures Act, 1914, requisitioned the respondents' ship. Exchequer Court of Canada ([1928] Ex. C.R., 149) fixed the compensation at $11,000 (as being the ship's value at time of requisition) with interest thereon from date of requisition to date of judgment. The Crown appealed against the allowance of interest.- Held: The allowance for interest should be set aside.
The right to interest does not depend on the income earning capacity of the property requisitioned.
Where interest is allowed, it is on the ground of express or implied contract or by virtue of a statute; and no such ground existed here (the case was distinguishable from those where interest is allowed on value of land expropriated). Interest was really asked for here as damages for detention of the compensation money pending the ascertainment of what was due- and as such it could not TE 2................................ 3 ................................ 4...........................
LANDLORD AND TENANT-Lease by unincorporated society-Distress-Right to levy-Action for illegal distress-Relationship by estoppel.] The members of the Chinese National League of Canada, scattered throughout the Dominion (hereinafter called the League) subscribed money for the purchase of a site and the erection of a building in Vancouver for "headquarters" puiposes.
As the League was an unincorporated and unregistered society, the conveyance of the property LANDLORD AND TENANT-Continued was taken in the name of a branch of the
League, called "The Chinese Nationalist
League," which was incorporated under the Benevolent Societies Act, with headquarters at Victoria.
After the erection of the building the then president and secretary of the League leased a portion of the premises to the appellant company, first in July, 1922, under a verbal arrangement and later in September,
1924, under the same arrangement put in writing. The appellant paid rents to the
League for some time but falling in arrears, in April, 1927, the then president and secretary of the League, the respondents Low and Wai, issued a distress warrant, and the respondents Thompson and Binnington, bailiffs, distained the goods, chattels and fixtures of the appellant. In an action for illegal distress, the appellant recovered $500 damages; but that judgment was reversed in the appellate court.-Held, that, upon the evidence, the relationship of landlord and tenant never existed between the appellant company and the League, on whose behalf the distress was made; therefore the distress was illegal and the appellant was entitled to recover the damages awarded by the trial judge.-Held, also, that an unincorporated society such as the League (although not within the prohibition of section 8 of the Companies
Act, R.S.B.C. 1924, c. 38, inasmuch as it has not "for its object the acquisition of gain") is incapable of making a lease.
Jarrot v. Ackerley (85 L.J. Ch. 135) and
Henderson v.
Toronto General Trusts
Corporation (62 O.L.R. 303) followed.- Held, further, that the appellate court erred in holding that the appellant was estopped from setting up incapacity of the alleged landlords on the ground that to do so would be tantamount to impeaching the title to the premises of the persons by whom it was let into possession of them as tenant. To extend the estoppel, which exists where the relationship of landlord and tenant is admitted.or established and which prevents the tenant questioning the landlord's title, so as to make it apply to a case in which the real question is as to the existence of that relationship, seems to be wrong in principle and is quite unwarranted by the authorities.
Rennie v. Robinson (1 Bing.
147) and Morton v. Moods (L.R. 4 Q.B.
courts, at the instance of a person claimed to be a tenant, ought to determine the status of an alleged landlord for the purpose of ascertaining whether or not the relationship of landlord and tenant exists between them, and the consequent legality of a distress. Farwell & Glendon v. Jameson
(26 Can. S.C.R. 588) followed.-Judgment of the Court of Appeal (41 B.C.
Rep. 230) reversed.
LANDLORD AND TENANT-Concluded 2-Negligcnce-Claim for damages for personal injuries caused fire in defendant's building while plaintiff attending meeting of society which was lessee premises in the building-Absence of fire escapes-City by-laws-Factory, Shop and Office Building Act, R.S.O., 1914, 229- "Factory."
PEOPLE'S .... Revocation - Licence Postmaster General sell postage stamps, automatic machines- Period of agreement-Termination by Postmaster General-Right to terminate-Authority of Postmaster General in contracting for the Crown-Post Office Act, R.S.C., 1927, c. 161, ss. 2 4, 5, 7, 8, 66-80..500 2-Crown-Railways-Telegraph lines planted company on roadway of Government railway-Alleged permission plant and maintain them-Evidence-Revocabelity of licence-Absence of formal contract R.S.C. 1927, c. 171, ss. 7, 15........ 574 LIEN
LIMITATION OF ACTIONS..... MALICIOUS PROSECUTION - Want of reasonable and probable cause-Malice -Findings as to ownership of chattels- -Damages for wrongful detention. v. EvANs.................. MARRIAGE - Annulment - Capacity to contract-Alleged unsound mind at date oj marriage - Sufficiency. v. FEINSTEIN........... MECHANICS' LIENS - Mortgages - Priorities-Lien for erection of building- Land against which lien to be registered- Land "occupied thereby or enjoyed therewith"-Severance of land-Mechanics' Lien Act, R.S.O., ss. 7 Sale of land under power of sale in mortgage-Effect on lienholders' rights-Title of purchaser.] The Mechanics' Lien Act, R.S.O., 1927, c. 173, s. 5, gives to one who erects a building a lien on the owner's estate or interest in the "building and appurtenances and the land occupied thereby or enjoyed therewith." It is a question of fact in each case what land this includes, to be determined from all the circumstances.
The fact that an owner has acquired land in one connected parcel by a single conveyance and has included it all in one or more mortgages does not necessarily imply that those entitled to liens in connection with a building erected on a part it are entitled to place their liens on the whole parcel. MECHANICS' LIENS-Concluded
In the case in question it was held that the land to be enjoyed with the building erected for the owner had been severed from the rest of the property by the owner and leased, to be occupied and enjoyed by the lessee, separate from the rest of the owner's property, and this leased land (and including, with regard to the lien, one half of the wall of an adjoining building, which wall was used as a wall of the new building) was the only land upon which the lien was acquired, and therefore the claim of lien, which was filed against it only, was properly so confined, the contention of appellant second mortgagee of all the land and purchaser thereof at a sale made under power of sale in the first mortgage, that the lien should have been filed against all the land, being rejected.-It was further held that the judgment at trial sustaining another claim of lien, which had been filed against the whole property, but which was for materials furnished for construction on some part of the land other than where the building above mentioned was erected, should be set aside and that it should be referred back to the trial judge to ascertain the particular part of parts of the property upon which this claimant was entitled to a lien.-It was further held that the appellant, who, subsequent to registration of claims of lien and with notice thereof, purchased the land at a sale by the first mortgagee (whose mortgage was registered long prior to when the liens arose)
under the power of sale in the mortgage, did not thereby acquire a title free from the liens.
& MC- MORTGAGE-Order for foreclosure and sale-Terms of order.] It is the proper practice in Nova Scotia, in an action by a mortgagee for foreclosure and sale, that the order provide for the advertisement and sale, not of the lands and premises in question simpliciter, but only of the interest of the defendant (mortgagor) and of persons claiming under or through him.
court has full power and control over the advertising and the form of the deed which the sheriff is to execute.- Judgment of the Supreme Court of Nova
Scotia en banc ([1929] 3 D.L.R. 225)
settling the form of order in question, held to be clearly right, subject to certain slight changes in the wording of the order, which this Court suggested and to obtain which (and confined thereto) the plaintiff (mortgagee) was given leave to appeal (at its own cost) to this Court.- The proper wording of the order in such a case, and the meaning and effect thereof,
Rules 8 (d) of Order XVI, 12
(e) of Order XIII, 10A (1) of Order LI,
MORTGAGE-Continued of the Rules of the Supreme Court of Nova Scotia, and R.S.N.S., 1923, c. 140 (Law and Transfer of Real Property Act), as. 15, 16, 20, 24 (1), R.S.N.S., 1923 c. 144 (Registry Act), s. 18, and R.S.N.S., 5th series (1884), c. 123 (Act respecting Sale of Lands under Foreclosure of Mortgage), ss. 4, 6, considered.
2-Trusts and trustees-Construction and effect of declaration of trust-Plaintiff's interest thereunder-Right of mortgagor to make mortgage in question as against plaintiff's interest- Notice to mortgagee- Mortgagee's right to indemnity against mortgagor. Tim v. ...............
3-Agreed bonus to mortgagee-Right to bonus-Interest Act, R.S.C., 1927, c. 102, sa. 6 to 9.]
Appellant agreed to loan to T. Co on mortgage of real estate, $30,000, at 71o interest, but stipulated that, in consideration of making the loan should receive a bonus of $3,000, to which T. Co. agreed. The mortgage on its face
$30,000, bearing interest half-yearly at 7,% per annum, and containing no reference to the bonus. Appellant issued its cheque to T. Co. for $28,505.55, being the $30,000 less deductions for taxes, insurance premiums and solicitors' costs, and took a cheque from T. Co. for the $3,000 bonus. Some payments were made, but T. Co. became insolvent, and, the mortgage being in arrear, appellant advertised the property for sale, and the liquidator paid off the. amount owing, on the basis of the full face amount of the mortgage, without knowledge of the bonus. He sued to recover the $3,000, with interest paid thereon invoking as. 6 to 9 of the Interest Act, R.S.C., 1927, c. 102.-Held, that he could not recover.
The agreement for the bonus was legal and enforceable. The $3,000 bonus could have been recovered by appellant as a debt, not under the mortgage, but under the agreement for the loan, and the full $30,000 was advanced, whether the bonus be taken as paid by the mortgagor's cheque or by retention from the loan, unless the Interest Act applies (G. & C. Kreglinger v. New Patagonia Meat & Cold Storage Co. Ltd., [1914] A.C. 25, Biggs v. Hoddinott, [1898] 2 Ch. 307, Mainland v. Upjohn, L.R. 41 Ch. D., 126, referred to). Act does not apply; in view of the effect of the legislation in question, its application should be confined to mortgages coming clearly within its description; and, taking the precise language of s. 6, it applies only to mortgages which on their face come within the description in that In this case there is nothing MORTGAGE-Concluded in the mortgage itself that brings it within such description.
Moreover, there was no offence against the spirit of the
Act; the mortgage did not fail to disclose to an ordinary borrower what he was to pay for the loan; and the aim of the Act is, not to limit the rate of interest or recompense that lenders may exact, but to prevent the collection of interest provided for in the mortgage by plans which do not disclose to the ordinary borrower the real rate of interest being exacted by such plans.-The far-reaching consequences involved, if the legislation in question were held applicable against a transaction such as that in question, also form a reason for confining its application to mortgages coming strictly within the description in s. 6.-Singer v. Goldhar,
55 Ont. L.R., 267, and Re Brown, 61
Ont. L.R., 602, discussed; and the passage in the former case, at p. 271, where
Canadian Mortgage Invt. v. Cameron,
55 Can. S.C.R., 409, and Standard Reliance Mortgage Corp. v. Stubbs, 55 Can.
S.C.R., 422, are cited, commented on.- Judgment of the Appellate Division,
Ont., 64 Ont. L.R. 600 (affirming judgment of Wright J., ibid, p. 221) reversed.
CO. OF
V. MEAGHER...............
4........
....
.............
See MECHANICS LIEN.
MOTOR VEHICLES - Collision between motor cars, resulting in one of them striking and injuring pedestrian-Responsibility for injury-Violation of s. 35 (1) of Highway Traffic Act,
R.S.O. 1927, c. 251-Whether driver whose car struck pedestrian liable by reason of conduct after collision-Conduct in emergency-Evidence-Onus of proof (Application and effect of s. 42 of Highway Traffic
Act)-New trial.] C. and A., driving motor cars, collided at a street intersection, and A.'s car then struck the infant plaintiff who was on the sidewalk.
Plaintiffs sued C. and A. for damages.
Both the trial judge (Meredith C.J.C.P.)
and the Appellate Division, Ont. (63
Ont. L.R. 257) took the view that A.'s conduct after the collision did not amount to a novus actus interveniens, but was an involuntary outcome of the collision, and that the negligence which caused the collision was in law the cause of the plaintiff's injury. The trial judge held that A. and C. were each to blame for the collision; but the Appellate Division held that C. alone was to blame.
C. and the plaintiffs appealed to this Court.- Held (1) C., who had violated s. 35 (1)
(right of way) of the Highway Traffic Act
(R.S.O. 1927, c. 251), was guilty of fault causing the collision, and was liable to plaintiffs.-(2) A. was not to blame up to the moment of the collision; he was entitled to rely on C.'s observing s. 35 (1), and when he became aware of C.'s disregard thereof, it was not possible for him to avoid the collision.-(3) If plaintiffs desired, there should be a new trial, confined to the question whether A. was, or was not, by reason of what occurred after the collision, responsible (jointly with C.) to plaintiffs.
Anglin C.J.C. and Rinfret J. so held on the ground that, in view of the unsatisfactory nature of the evidence on the point, and in view of the reasons for its judgment by the Appellate Division, it was doubtful whether sufficient regard had been paid to s. 42 (1) (onus of proof) of the Highway Traffic Act, as it applied to the issue between A. and plaintiffs. Smith J. was of opinion that the finding below that A. was not guilty of negligence after the collision was a proper finding on the evidence (expressing the opinion, also, that if A. were held liable, C. could not also be held liable, because, A. not being in fault as to the collision, they were in no sense joint tort-feasors; A.'s liability would have to be based on the fact that by his own independent act after he was, or should have been, free from the influence of the emergency, he, by negligent handling of his car, injured the plaintiff); that C. alone was responsible to plaintiffs, and the appeals should be dismissed; but, being alone in this opinion, he concurred in disposing of the case as proposed by Anglin C.J.C. and Rinfret J.-Per Anglin C.J.C. and Rinfret J.: Subs. 1 of s. 42 of said Act is ex facie applicable to the case of persons in the position of the plaintiffs
(Perusse v. Stafford, S.C.R. 416).
Its application was not prevented by subs. 2, which excludes from the operation of subs. 1 only cases in which the loss or damage is sustained by an occupant of one of the motor vehicles in collision or by the owner thereof, or, possibly, also by the owner of property being carried in it at the time. (Moreau v. Rodrigue, Q.R. 29 K.B. 300). Therefore the "onus of proof" was on A. to establish that the injury to the infant plaintiff "did not arise through (his) negligence or improper conduct."-Duff and Lamont, JJ., dissented, holding that, on the evidence, the trial judge's finding that A. was partly to blame for the collision should not have been set aside; moreover, even assuming the contrary, A. was at fault in respect of his conduct after the collision; having undertaken to drive a motor car through a street frequented by pedestrians, he was bound, at his peril, so to conduct himself as not to expose them to unnecessary risk of harm by default in management of his car in respect of reasonable care, skill and self possession, whether in emergencies or ordinary circumstances; on the evidence, A.'s manoeuvres after the collision were those of one who had "lost his head;" there was nothing in the circumstances of the collision to have so deprived a reasonably competent driver of his mental equilibrium; that being so, A.
had failed to acquit himself of the statutory onus of shewing that the infant plaintiff's injury was not due to any
"improper conduct" of his; to hold A.
liable on this ground was not inconsistent with a judgment against C., who owed a duty to persons situated as was the infant plaintiff to anticipate such incidents as here occurred as the result of the collision (Scott's Trustees v. Moss,
17 S.C., 32, and other authorities referred to); plaintiffs should have judgment against both A. and C.; it was not a case for a new trial.
2-Insurance against liability for injury person injured automobile whose owner is insured, against the insurer
-Insurance Act, R.S.O., 222, s. 85
-Establishment of liability against insurer on the policy-Facts proved and manner of proof-Condition in policy for no liability while automobile "with the knowledge, consent or connivance of the insured is being driven a person under age limit fixed law"-Insurer's onus of proof as to consent-Amount recoverable against insurer-Inclusion of costs appeal taken insured in plaintiff's action against insured. Plaintiff had been injured by S.'s automobile and had recovered judgment for damages and costs against S. and issued execution which was returned unsatisfied.
Plaintiff, under s. 85 of the Insurance Act,
R.S.O., 1927, e. 222, sued defendant, which had insured S. against liability for injury to another, for the amount of her judgment.-Held: The right of action given by s. 85 is simply a right to sue on the policy in the place and stead of the insured;
the plaintiff must establish liability on the policy against the insurer in the same manner and to the same extent as if the action had been brought by the insured; and the facts, required to be established as part of the plaintiff's case, that the bodily injury to another, insured against, had been inflicted by the insured's automobile, and that the insured was legally liable in damages to the plaintiff for the injury, are not established as against the insurer by the production of the judgment obtained by plaintiff against the insured. But in the present case the defendant, by reason of an admission at the trial, was precluded from contending that the liability of S.
to plaintiff had not been established by production of the judgment against S.- The injury was inflicted while the automobile was being driven by S.'s son, who was only 16 years of age, and had no permit or licence to drive. The policy contained the statutory condition that the insurer should not be liable "while the automobile, with the knowledge, consent or connivance of the insured is being driven by a person under the age limit fixed by law."-Held, without deciding what was "the age limit fixed by law" (see the Highway Traffic Act, R.S.O., 1927, c. 251, s. 43) within the meaning of said condition, and assuming it to be 18 years, the defendant, to escape liability under the condition, must shew that the boy was driving with the knowledge, consent or connivance of and, this it had failed to do.
Such consent could not be presumed as against the plaintiff by reason of the judgment obtained by plaintiff against S.; it did not necessarily follow that because judgment was given against the latter had any knowledge that her son was driving her automobile, or that she consented thereto (among other things in this connection, ss. 41 (1) and 42 (1) of the Highway Traffic Act, R.S.O., 1927, c. 251, were considered).- Judgment of the Appellate Division, Ont. (64 Ont. L.R. 109) affirming, in the result, the judgment of Raney J., for recovery by the plaintiff against the defendant of the amount claimed, affirmed. This amount included the plaintiff's costs of an appeal taken by S. from the judgment at trial in the action against S. TE
3 - Accident in Ontario -Owner resident in Quebec-Action brought in Quebec-Liability of owner-Whether liable on both Ontario and Quebec Statutes- Highway Trafic Act (Ont.) 48, 1925, c. 35.]
The respondent, who was living and doing business in the city of Montreal, in the province of Quebec, loaned a motor car owned by him to his manager, one Cochrane, for the purpose of enabling the latter to visit his mother at Arnprior, in the province of Ontario. On July 11, 1926, the wife of the appellant O'Connor and the appellant Boyd, while walking on a highway called Montreal Road, near the city of Ottawa, in the province of Ontario, were both struck by the motor car driven by Cochrane in a reckless manner and at an excessive rate of speed.
Mrs. O'Connor was instantly killed and the other appellant suffered permanent injuries.
Actions in damages were brought against the respondent, owner of the car, in the Superior Court of the province of Quebec.- Held, that, in accordance with the provisions of the Motor Vehicle Act of Quebec as well as with the weight of judicial opinion in the courts of that province, the respondent cannot be held responsible for loss or damage sustained by the appellants by reason of his motor vehicle, negligence or improper conduct imputable to the respondent having been disproven. Anglin
C.J.C. dissenting.-Per Newcombe, Rinfret, Lamont and Smith JJ.-Article 53
(1) of the Quebec Motor Vehicle Act,
R.S.Q., 1925, c. 35, respecting the liability of the owner of a motor vehicle, now reads: "53 (1) The owner of a motor vehicle shall be held responsible for any violation of this Act committed with such motor vehicle, or of any regulation made thereunder by the Lieutenant- Governor in Council."
But a similar clause, when enacted by the Revised
Statutes of Quebec,
1909, Art. 1406, contained at the end the following words
"and shall be responsible for all accidents or damages caused by his motor vehicle upon a highway or public square." These words disappeared when the article was replaced by the amending Act, chapter 19, of
By the article as formerly enacted, the liability which is imposed to compensate for accidents or damages, as distinguished from that incurred for any
'iolation of the statute or regulations, was founded upon the concluding sentence.
Of these two clauses the first did not expressly, or with any degree of certainty, declare liability for damages;
the second did. The charging clause having been repealed, there remains no provision upon which to hold that the owner is bound to compensate when he has committed no fault. Moreover, this interpretation is made conclusive by the implication of subsection 2 of article 53, which establishes the materiality negligence or improper conduct by the owner.
Anglin C.J.C. contra.-Quaere, per Newcombe, Rinfret, Lamont and
Smith JJ., whether the respondent ever became subject to the Highway Traffic
Act of Ontario.-Per Newcombe and
Rinfret JJ.-Under the provisions of the
Highway Traffic Act of Ontario (1923), the respondent would not have been liable, as the loss or damage claimed was sustained "by reason of a motor vehicle on a highway" and not "in case of a collision between motor vehicles."
42 of that statute does not apply; and the present cases fall within the purview of the special case described by section 43, which section must be considered as a modification of section 42.-Per Anglin
C.J.C., Lamont and Smith JJ.-The respondent, had he been resident in the province of Ontario, would have been liable under the Ontario statute as it stood at the time the damages were sustained.-Per Anglin C.J.C. (dissenting).-The accident occurred because of
Cochrane having driven at an excessive
MOTOR VEHICLES-Concluded rate of speed and while under the influence* of intoxication; and these were violations both of the Ontario and Quebec statutes. The respondent, in lending his car to Cochrane with the intention that it should be used by him in Ontario, subjected himself to the Highway Traffic Act of that province and he was so subject when the accident occurred. That fact also establishes that the driving of the car by Cochrane was with the consent of the respondent within the meaning of the Ontario statute, and of the Quebec statute if, under that Act, consent be material. Under section 42 (1) of the Ontario statute of
1923, where any violation of the Act has been shown and an accident resulting in damage to another has ensued, unless the motor vehicle which caused the accident was at the time in the possession of some person, other than the owner or his chauffeur, without the owner's consent, the latter is "responsible" for the acts of the driver, just as he would have been had the car been driven by himself. The respondent must therefore be held liable under the Ontario law for the consequences of Cochrane's violations of the statute. Section 53 (1) of the Motor Vehicle Act of Quebec must receive the same construction as that already given to section 42 (1) of the Ontario statute of 1923 and it carries with it the civil responsibility which the latter has been held to impose.
(Curley v. Latreille, (60 Can. S.C.R. 131), discussed.) Therefore the respondent must be held to have incurred civil liability under the Ontario statute, and he would have incurred a like liability under the Quebec Act had the situs of the accident been in that province.-Per Anglin C.J.C. (dissenting).-As a matter of international law, in order to establish liability of the respondent, it would seem necessary that he be answerable under the law of Quebec, as well as under that of Ontario, because while the locus delicti commissi was in ntario, the actions were brought in Quebec. But it is not essential that the remedy for the tort in question should be identical in both provinces, i.e., that, in this case it should be civilly actionable in each. it will suffice if the tort actually committed was actionable against the respondent, or if he was punishable therefor as a delict in Ontario, and if a like tort committed in Quebec would be civilly actionable there. Canadian Pacific Ry. Co. v. Parent ([1917] A.C. 195) discussed.-Judgment of the Court of King's Bench (Q.R. 46 K.B. 199) affirmed,
Anglin C.J.C. (dissenting)
. WRAY................ 4 - Accident - Negligence-Pedestrian run into by car coming from behind- Whether pedestrian negligent. RoOT v. M cKINNEY....................... Drainage-Municipality's right to make and maintain drains on private land- Sufficiency of by-laws-Remedy of land owners-Municipal Act, Man., R.S.M.,
1913, c. 133-Jurisdiction of County Court in Manitoba as to equitable right.] Plaintiff municipality (in the province of Manitoba) proposed to enlarge a ditch or drain on land then owned by T., now owned by defendants. Its engineer interviewed T. who assented, with certain stipulations, to the work being done. In
1915 a contract was prepared between the municipality and a contractor for the doing of the work and the municipality passed by-law no. 837 authorizing this contract, which was then execute , and the work was done.
In 1928 the municipality passed by-law no. 1987 enacting that a certain other drain running through the land (which was then owned by defendants)
"be cleaned, altered and deepened" according to plans, etc., and that the municipality's officers, servants, etc
"are hereby authorized and empowerec to enter upon said land for the aforesaid purpose;" and the work was done.
In 1929 defendants blocked up both drains, and the municipality sued in the County Court for damages. The question was as to the municipality's right to make and maintain the said works.-Held: As to the first work, the municipality could not recover judgment based on an equitable right to make and maintain the ditch by reason of T.'s assent, and execution of the work in pursuance thereof, as the County Court had no jurisdiction, even in the absence of objection by either party, to hear and determine an equitable right of this character; but, as to both works, under s. 590 of the Municipal Act,
R.S.M.,
1913, c. 133, the municipality had the power, having passed a by-law for the purpose, to do the work in question
(without expropriating any land under s.
574) subject to the owner's right to compensation. Each of raid by-laws was sufficient, for the purpose of s. 590, as authority for the work done in pursuance of it, although by-law no. 837 was not drawn in the form that a skilled draughtsman would adopt. Defendants' certificate of title was subject to said statutory rights of the municipality. Defendants' rights were confined to claiming compensation, to be determined as provided in the Act.-Judgment of the Court of
Appeal for Manitoba, 38 Man. R., 527, reversed in part.
R.M.
AssmisoIA.....................
NAVIGATION
See SmPPING.
NEGLIGENCE - Landlord and tenant- Claim for damages for personal injuries caused by fire in defendant's building while plaintiff attending meeting of society which was lessee of premises in the building -Absence of fire escapes-City by-laws- Factory, Shop and Office Building Act, R.S.O., 1914, c. 229-"Factory."] Defendant owned a four storey building, and leased premises on the top storey to a fraternal unincorporated society, of which plaintiff
(subsequently to the lease) became a member. During a meeting of the society a fire occurred in the building and plaintiff, whose egress by the stairway was cut off by the fire, was injured. The building was not provided with fire escapes.
Plaintiff sued defendant for damages.-Held: Plaintiff could not succeed.
There was nothing to show that he was an invitee of defendant.
Defendant's obligation was not higher or more extensive than that of lessor under the lease, and, assuming, the most advantageous position for plaintiff, that he and defendant stood in the relation of tenant and landlord under it, they were governed by the law as stated in Lane v. Cox, [1897] 1 Q.B. 415, Cavalier v. Pope, A.C. 428, Fairman v. Perpetual Invt. Bldg. Soc. [1923] A.C. 74 at pp. 95-96, Scythes & Co. Ltd. v. Gibson's Ltd., [1927] S.C.R. 352, at p. 358; the landlord does not, in the absence of a provision to that effect, become liable to the tenant for defective construction or maintenance of the leased premises, or for damages resulting from any such cause. As to certain clauses of a city by-law, requiring fire escapes to be provided after notice by the building inspector, and requiring a considered dangerous to be made safe upon notice by the inspector, these had no application because (whatever the effect might otherwise have been) no such notice had been given as to the building in question. Whether or not a certain printing business carried on by a tenant in rooms on the lower two storeys of the building operated, as to such rooms, to create a "factory" within the Factory, Shop and Office Building Act, R.S.O., 1914, c. 229, it afforded no reason for regarding the fourth storey as a "factory" and therefore (apart from other considerations standing in plaintiff's way of recovery under that Act) the provisions of that Act invoked by plaintiff were inapplicable.-Judgment Appellate Division, Ont., 63 Ont. L.R. 202, in its result affirmed.
TE PEoPLE's LoAN 2 - Accident - Damages - Loss wages-Death of victim before trial- Taken into account in estimating damages- Arts. 1053, 1054, 1055 C.C.]
In an action for damages for loss of wages resulting from an accident, events which happened between the date of the accident, such as the death of the victim, and the time of the trial must be taken into account in estimating such damages.- The principle held by this court in Findlay
Howard (58 Can. S.C.R. 516) is equally applicable whether the claim for damages is in tort, under articles 1053,
1054 and 1055 C.C., or is a claim for breach of contract.-Lemelin v. Ladrie
(Q.R. 59 S.C. 456) discussed, and held to be an authority against allowing in an action commenced before the death of the victim any damages occasioned by such death.-Judgment of the Court of
King's Bench (Q.R. 46 K.B. 401) affirmed.
BEAMAN..................
3 - Action against railway company for damages from accident at railway crossing-Sufficiency of evidence as to negligence-Admissibility of evidence
-Wrongful withdrawal of case from jury trial-Railway line formerly under provincial jurisdiction, but, prior to accident, coming under federal jurisdiction- Admissibility in evidence of order made by provincial railway board during its period of jurisdiction.] Plaintiffs sued under the Fatal Accidents Act, Ont., for damages for the deaths of occupants of an automobile through its collision with defendant company's electric train at a crossing near Lambton, Ontario.
At conclusion of the evidence for plaintiffs, the trial judge withdrew the case from the jury and dismissed the action.
An appeal to the Appellate Division, Ont., was dismissed, on equal division (36 Ont. W.N.
On appeal to this Court:-Held:
There were facts in evidence from which negligence of defendants might be reasonably inferred by a jury; it was for the jurors to say whether from those facts negligence ought to be inferred (Metropolitan Ry. Co. v. Jackson, 3 App. Cas.,
193, at p. 197).
Therefore the case should not have been withdrawn from the jury, and there must be a new trial.- The railway line had formerly been operated by a provincial company.
By 9-10 Geo. V, c. 13 (Dom.), the line was declared (as the work of a "constituent and subsidiary company comprised in the Canadian Northern System") to be a work for the general advantage of
At the trial there was tendered as evidence for plaintiffs, and rejected as inadmissible, an order of the Ontario
Railway and Municipal Board, made in
1917, when the line was under provincial jurisdiction, and made under s. 123 of the Ontario Railway Act, R.S.O., 1914, c. 185. The order was expressed to be made "for the protection of the public,"
after the Board had "inspected" the crossing and had instructed its engineer to inspect it and report and he had done so.
It provided a rule concerning the
DEX
NEGLIGENCE-Continned safety of persons using the crossing.- Held: The order had no continuing effect, once the line became (under the declaration aforesaid) a Dominion railway.
Secs. 7 and 2 (28) of the Dominion Railway Act, 1919, (9-10 Geo. V, c. 68) were especially discussed in this regard. The question of precautions at highway crossings was one specially dealt with by as. 308, 309 and 310 of that Act, to which, by the declaration, the line immediately became subject; these sections applied to the exclusion of any provincial statute and, a fortiori, of any provincial regulation; they were inconsistent with the order in question.-Held, further, however, that, while the order was not admissible as a rule enforceable against the defendant company, it was (subject to the qualification infra) admissible as affording evidence of an adjudication by a competent tribunal upon the dangerous character of the crossing-a matter of public concern-at the time the order was pronounced, and presenting a standard of reasonableness upon which a jury might act (Pin v. Curell, 6 M. & W., 234, at p. 266; Neill v. Duke of Devonshire, 8 App. Cas., 135, at p. 147; Sturla v. Freccia, 5 App. Cas., 623; Phipson on Evidence, 6th ed., p. 355; Taylor on Evidence, 10th ed., pp. 442-3, 1213).
But, in such cases, if, as a result of a subsequent enquiry made by the same or a similarly competent public authority, such an order were set aside or superseded, it would cease to have any evidentiary value; that would be the case here should it be established at the trial that, since the railway came under federal control, the Board of Railway Commissioners made an enquiry of its own and concluded that, by providing for other and different means of safety, or simply by following the general railway law, the crossing was protected to its satisfaction. It would also be open to defendants to shew that, since the order in question was made, the conditions at the crossing had ceased to be substantially the same as at that time.
Lrrrian BROOKs..... 4 - (a Canadian Government) railway-Defence of contributory negligence-Application of provincial Contributory Negligence Act (R.S. N.B., 1927, c. 143)-Canadian National Railways Act, R.S.C., 1927, c. 172, ss. 12, 15, 33, 2 (a), 3, 16, 19, 21-Exchequer Court Act, R.S.C., 1927, c. 34, s. 19- Consideration by Supreme Court of Canada of question of law not raised below.] Plaintiff sued defendant, the Canadian National Ry. Co., for damages for alleged negligence causing a collision, at Saint John, N.B., between plaintiff's omnibus and defendant's train, in defendant's operation
(a
Canadian
Government)
railway.
Defendant pleaded contributory negligence of plaintiff.
The jury found, on questions submitted to them, that the injury was caused by joint negligence of the parties; defendant's negligence being in its flagman not remaining long enough to warn traffic properly, and plaintiff's being in insufficient attention of the bus chauffeur and excessive speed; that the proportions of fault were: defendant
90%, plaintiff 10%. Plaintiff recovered for the damages assessed, subject to above apportionment, which judgment was, subject to reduction of amount, affirmed by the Supreme Court of New Brunswick,
Appeal Division.
Defendant appealed to this Court. The
Contributory Negligence Act
Brunswick (R.S., 1927, c. 143) provides for apportionment of liability according to degrees of fault. Its application was not questioned in the courts below, but was attacked by defendant (in its factum and argument) on its appeal to this
Court.- Held (1) As the evidence upon which the question as to the application of said Act depended was before the
Court and it was not suggested that any further proof material to its elucidation would or could have been produced had the question been made prominent at the trial, it was proper for this Court to decide it (The Tasmania, 15 App. Cas.,
223, at p. 225; Connecticut Fire Ins. Co.
v. Kavanagh, [1892] A.C., 473, at p. 480, and other cases referred to).-(2): The trial judge, in charging the jury, should have ignored said Act with its provisions for apportionment of the damages, and instructed the jury to ascertain the cause of the collision, and, if there were negligence on both sides, to find, by application of the principles of the common law, whether it was the negligence of the plaintiff or that of the defendant which operated directly as the effective cause.
In the different course taken there was serious misdirection. This Court could not, therefore, do justice to the case upon the present findings, and there must be a new trial, subject, however, to defendant's election therefor upon terms imposed as to costs.-Defendant, with relation to the Intercolonial Railway, was answerable only for the liabilities to which the Crown would have been subject if the railway's management and operation had not been transferred to defendant and the action had been brought in the
Exchequer Court directly against the
Crown; defences available to the Crown were available to defendant; (Canadian
Natzonal Railways Act, R.S.C., 1927, c.
NEGLIGENCE-Concluded
3, 16, 19, 21; and orders in council as to defendant company, of October 4, 1922, January
20,
1923, considered); contributory negligence is a defence (Wakelin v. London & South Western Ry. Co., 12 App. Cas. 41, at p. 48); the Crown's, defendant's, responsibility was to be regulated by the general law of New Brunswick as it prevailed on October 30, 1887, when (in its original form) what is now s. 19 of the Exchequer Court Act, R.S.C., 1927, c. 34, came into effect (Ryder v. The Queen, 36 Can. S.C.R., 462, and earlier decisions referred to therein; Armstrong v. The King, 11 Can. Ex. C.R., 119; 40 Can. S.C.R., 229, at p. 248); and, therefore, the provincial Contributory Negligence Act, which was not in force earlier than 1925, c. 41, had no application.
5-Motor vehicles-Collision between motor cars, resulting in one of them striking and injuring pedestrian-Responsibility for injury-Violation of s. 35 (1) of Highway Traffic Act, R.S.O. 1927, c. 251-Whether driver whose car struck pedestrian liable by reason of conduct after colllsion-Conduct in emergency-Evidence-Onus of proof (Application and effect of s. 42 of Highway Traffic Act)-New trial............ See MOTOR 1. 6--Automobile-Accident in Ontario-- Action brought in Quebec-Liability of owner-Whether liable on both Ontario and Quebec statutes.................. NEW TRIAL
OPIUM AND NARCOTIC DRUG ACT, Conviction upon ................... PATENT-Validity-Patent Act, Canada, 1923, c. 23, s. 7-" Not patented or described in any printed publication in this or any foreign country more than two years prior to his application"-" Not known or used by others before his invention thereof"- Relief under s. 31, as to patent pro tanto.] Defendant and B., working independently of each other and in good faith, each invented the same process for manufacture of a cellular concrete building material known as porous cement.- Defendant applied for a patent in the United States on December 21, He filed his application in Canada within twelve months from the passing of the Patent Act of 1923 (c. 23).
The United States being a foreign country which affords "similar privilege to citizens of Canada," defendant's filing date in the United States was his Convention filing PATENT-Continued date in Canada, under s. 8 (2) of the Act.
evidence established that a year before the earliest date to which defendant's invention could be carried back, B., in Denmark, conceived the idea, disclosed it to "others," instructed experiments, made some on his own account and produced porous cement.
B. filed his application in Denmark on September 11,
1922, and the patent issued on July 2,
1923.-Held, that defendant's process was "not patented or described in any printed publication in this or any foreign country more than two years prior to his application,"
was not barred in this respect.-An application for patent is not a "printed publication"
within the meaning of s. 7.
This construction is indicated by the use of the word
"patented"
immediate context; and is supported by the existence of the provisions for secrecy which safeguard a pending application in Canada;
and, in absence of evidence to the contrary, it must be presumed that the secrecy of application in a foreign country is likewise safeguarded.- Held, however, that defendant's process did not fulfil the condition in s. 7: "not known or used by others before his invention thereof."
According to Canadian patent law, B.
was the first who had invented the process.
To bar fulfilment of said condition in s.
7, prior knowledge or use in a foreign country is sufficient (Wright & Corson v.
Brake Service Ltd., [1926] Can. S.C.R., 434;
Canadian General Electric Co. Ltd. v. Fada
Radio Ltd., [1930] A.C. 97, at pp. 106-107), and need not be by the public.
If the first inventor has formulated, either in writing or verbally, a description which affords the means of making that which is invented, and has communicated his invention to "others," although without disclosure to the public or application for patent, he is the first and true inventor in the eyes of the present Canadian patent law, so as to prevent any other person from securing a Canadian patent the same invention. Such prior knowledge, however, must be demonstrated; evidence of this character should be very closely scrutinized; the burden of establishing anticipation on such basis is a weighty one; it cannot be satisfied by mere proof of conception.-Canadian
General Electric Co. Ltd. v. Fada Radio
Ltd. [1930] A.C. 97, and Permutit Co. v.
Borrowman, 43 R.P.C., 356, cited and
Alexander Milburn Co. v.
Davis-Bournonville Co., 270 U.S. Rep.,
390, at pp. 400-401, referred to.
Queen v. La Force, 4 Can. Ex. C.R. 14, and Gerrard Wire Tying Machines Co.
Ltd. of Canada v. Cary Mfg. Co., [1926]
Ex. C.R. 170, discussed and, so far as inconsistent herewith, overruled.-On the question of anticipation by B., which was
PATENT-Continued the sole issue, the sufficiency of B.'s specification in his Danish aplication for patent should not be judged by applying the rules in s. 14 of the Canadian Act. Moreover, B.'s invention should not be envisaged from the starting point only of his Danish application; he invented a new principle and a practical means of applying it; he was not bound to describe every method by which his invention could be carried into effect (Terrell on Patents, 7th ed., p. 144); the conception of' the idea, coupled with the way of carrying it out (Hickton's Patent Syndicate v. Patents, etc., Ltd., 26 R.P.C., 339, at p. 347) and reduced to a definite and practical shape (Permutit Co. v. Borrowman, supra) constituted the invention of his process, which he communicated to others. He had, on the evidence, made a workable invention, notwithstanding the fact of continuance of laboratory experiments, in endeavours to improve foam ingredient.- Held, further, that-as to defendant's claim to be entitled to his patent pro tanto, under s. 31 of the Act, in respect of certain specifically defined claims in his application embodying suggestions as to the use of glue (it being argued that B. suggested only mucilage) as a foam developing substance-assuming that, under the circumstances, the evidence justified a distinction between mucilage and glue, and without deciding whether s. 31 would, in a proper case, permit the court to discriminate in the way indicated, such relief could not be granted in this case, in view of Rule 14 of the Patent Office (that "two or more separate inventions cannot be claimed in one application, nor included in one Patent") and in view of the nature and extent of the expressed object for which his patent was applied for and granted.-Judgment of Maclean J., President of the Exchequer Court of Canada, [1929] Ex. C.R. 111, reversed in the result, and defendant's patent invalid.-(Comment and direction as to an apparent omission, causing apparent untruth of an allegation, in an applicant's oath accompanying petition for patent.)
2 - Specification - Claims of invention -Clear and distinct statement as to alleged invention-Jurisdiction of the court-Construction of specification-Professional or expert witnesses-When more than five to be examined-When leave to be obtained from court-Patent Act, R.S.C., 1906, c. 69, 13-Canada Evidence Act, R.S.C., 1927, c. 59, s. 7.] Under the Patent Act, R.S.C., 1906, c. 69, an applicant for a patent must present to the Commissioner a petition under oath giving the title or name of the invention and accompanied by a specification containing the claims of the PATENT-Continued alleged inventor.-Held that the object of the specification, under section 13, is to give a clear and distinct statement of what the alleged inventor "claims as new and for the use of which he claims an exclusive property and privilege."
effect of the patent is to grant him, for a fixed period of years, a monopoly in what he has so claimed.
The condition for the grant is that the thing so claimed be truly new and useful and that there be given out to the public a correct and full description of the mode or modes of operating the invention, as contemplated by the inventor.-Held, also, that, to that extent, the jurisdiction of the courts is not limited by section 29 of the Act.
By the very terms of the patent, the grant is made "subject to the conditions contained in the Act" and also "subject nevertheless to adjudication before any court of competent jurisdiction."
Therefore, unless the claims or the description or both comply strictly with the requirements of the Act, the monopoly should not be granted, and the patent is accordingly invalid and should be declared null and void.-Held, further, that obviously the decision on the point referred to above, depends upon the construction of specification.
should not be construed astutely. The patent should be approached, in the words of Sir George
Jessel "with a judicial anxiety to support a really useful invention" (Hinks & Son v. The Safety Lighting Co. (4 Ch. D. 607, at p. 612); but, on the other hand, the consideration for a valid patent is that the inventor must describe in language free from ambiguity the nature of his invention, including the manner in which it is to be performed; and he must define the precise and exact extent of the exclusive property and privilege which he claims. Otherwise the specification is insufficient and the patent is bad.- At the trial, the depositions of three expert witnesses, who - had previously been examined in Europe on commission, had been read and the testimony of a fourth witness similarly examined in
Europe was about to be put in, when an argument took place as to the right of the respondent to call more than five of such witnesses without leave having been applied for before the examination of any one of them, as required by section seven of the Canada Evidence Act. The trial judge suggested that leave might then be applied for; and, notwithstanding objection by counsel for the appellant, the application for leave was held to be still in time and was allowed.- Held that such application was made too late and ought not to have been entertained at that stage of the proceedings.
The application should at least have been made before the testimony of any of the witnesses exam- PATENT-Concluded ined on the Commission was read at the trial.-Semble that, in a case tried before a judge, it should not be necessary, on account of the evidence so improperly admitted, to refer it back to the trial court, such as would have to be done in a case tried before a jury or by arbitrators (Canadian Northern Western Ry. Co. v. Moore, (58 Can. S.C.R. 519) ); but that it should be sufficient for an appellate court to disregard the evidence improperly admitted and to base its decision solely upon the record as it would then stand.- Judgment of the Exchequer Court of Canada ([1927]
Ex.
C.R.
aff. POSTMASTER GENERAL....... - PRACTICE AND
PROCEDURE - Pleadings - Res judicata - Dispos.tif - Object of the judgment - Necessary consequence of the judgment-Action to account- Promise of sale-Arts. 1241, 1478, 1536, 1537, 1907 C.C.-Arts. 215, 571 C.C.P.] As a rule, under Quebec law, the authority of res judicata applies only to the dispositif or, in the language of the code (art. 1241 C.C.), "to that which has been the object of the judgment;" but it will also result from the implied decision which is the necessary consequence of the express dispositif in the judgment. this case, upon an action previously brought, a final judgment between the same parties had annulled two deeds for the reason that the annuity thereby provided should have been $2,000, instead of $800.
Although the dispositif of the judgment stated that the action was maintained "so far as the annulment of the deeds was prayed for," that involved a determination of the true amount of the annuity as being $2,000, which was the same question as that sought to be controverted in the present case; and such question was concluded as between the parties by the judgment in the first case.-Where sums pertaining to the administration by one party of the business and affairs of the other party have, through the course of dealing between the two, become bound up with items of debit or credit derived from other sources, such as annuities, salary, farm produces, etc., so that, during the period of administration, charges offset advances or payments of money and so on: it is not open to either of the parties to sue on a single transaction or for a specific sum of money.
The recourse is by action to account.
The account must be discussed as a whole, a balance must be struck and such balance alone may be awarded to the party entitled to receive it.-Art. 1536 C.C. which provides that "the seller of an immoveable cannot demand the dissolution of the sale by reason of the failure of the buyer to pay the price, unless there is a special stipulation to that effect" applies in the case of a promise of sale accompanied by tradition and actual possession (Art.
1478 C.C.)
.....
2- Jury trial....................
3 - Exchequer Court - Third party procedure introducing malter purely of civil right as between subject and subject-B. N.A. Act, s. 101 (establishment of courts for better administration of "the laws of Canada")-Exchequer Court Act,
R.S.C., 1927,
34,
30, 87, 88- Exchequer Court Rules 262-269.......
PROHIBITION-Writ of-Appeal.. 305
PROMISE OF SALE.............
See PROCEDURE 1.
RAILWAYS-Incorporation under special
Bondholders - Subsidies - Sale the railway-Proceeds of the sale-Priority]
The Hereford Railway Company had been incorporated under the provisions of c. 93 of the Dominion Acts of 1887 and of c. 81 of the Dominion Acts of 1888.
Under certain provisions of those Acts the company was empowered to issue bonds secured by a mortgage deed upon the property, assets, rents and revenues of the company. These bonds were to be a "first preferential claim" upon the property of the company.
Bonds were issued in 1890 and a mortgage deed was duly executed between the company and the trustees of the bondholders.
Subsequently, subsidies were granted from time to time by the Dominion Government to the company. On the company failing to operate its road, the Minister of
Railways took the necessary steps under section 160 of the Railway Act of 1919 to create a first lien or mortgage upon the railway and its equipment in favour of the Crown for the amount of these subsidies, and for an order authorizing the sale of the railway. The railway was sold under order of court to the Canadian
Pacific Railway Company on the condition that the latter would continue the operation of a portion of the original railway line, and the proceeds of the sale were paid into court in accordance with the judgment. The registrar of the
Exchequer Court of Canada, acting as referee, under order of the court, in determining the respective ranks and privilege of the creditors, reported that,
RAILWAYS-Continued after the payment of three small claims, the balance of the proceeds of the sale should be paid to the trustee for the bondholders.
The Minister of Railways appealed to the Exchequer Court of Canada on the ground that he was entitled to that money; but the report of the referee was upheld by that court.- Held per Anglin C.J.C. and Mignault and Smith JJ., without hearing counsel for the respondents, and affirming the judgment of the Exchequer Court of Canada ([1928] Ex. C.R. 223), that the balance of the proceeds of the sale has been rightly ordered to be paid to the trustees for the bondholders.
The subsidies granted to the railway company were upon condition that the railway should be continuously operated.
The fulfilment of that condition to the extent deemed necessary by the Minister of Railways having been secured by the terms of the sale, and no part of the purchase money being required for that purpose, and there being no claim for enforcement of the lien for the amount of the subsidies, the Minister of Railways had no right to claim the balance of the purchase money. J., on the other hand (with whom Rinfret J. concurred), while unwilling to conclude a question adversely to a party who had not been heard, said that he would be surprised to find that any subsidized Dominion railway, including the defendant company, which "cannot, by reason of the condition of such railway or of its equipment, be safely and efficiently operated," is not subject to the statutory provisions, and may not, when these have been complied with, * * * be sold to satisfy the first lien or mortgage which the statute creates, and which is, by its express direction, due and payable to His Majesty; and, moreover, if the statute applied, that he was not convinced that the Exchequer Court had authority to regulate the exercise of the Minister's powers as to the application and disposition of the proceeds. BoND......................... 2---Order of Board of Railway Commissioners for Canada against corporation operating street railway system for contribution to cost of subways constructed under steam railway tracks-Railway Act, R.S.C., 1927, c. 170, as. 39, 257, 259, 44 (3)- Jurisdiction of Board under the Act- Appeal from Board's order for contribution appellant "interested or affected by" the order for construction of the subways - Jurisdiction of Parliament of Canada to enact legislation in question.] The Toronto Transportation Commission, which operates the street railways in Toronto, appealed from the order of the Board of Railway Commissioners for RAILWAYS-Continued
Canada requiring it to contribute to the cost of two subways on Bloor Street and one on Royce Avenue, which were constructed under certain steam railway crossings by order of the Board under its powers under s. 257 of the Dominion
Railway Act. The appellant, whose Bloor
Street lines bad not previously crossed the railway tracks, but had led towards them on each side thereof, constructed its tracks through the Bloor Street subways, thus establishing a continuous line along Bloor Street, and now operates cars thereon.
It does not operate through the Royce Avenue subway, nor are there any tracks on that street.- Held, as to the Bloor Street subways, that the appellant was "interested or affected by"
(Railway Act, s. 39) the order directing the work, and the Board had jurisdiction under said Act to order it to contribute to its cost.
(As to appellant's contention that in operating the street railways it was a mere agent of the city corporation and could not be required to contribute, it was held that, whatever might be its rights and remedies against the city, the appellant, as an operating corporation in control of the street railways, and entrusted with their full management, could be treated by the Board as a company or person to which s. 39 of said Act applied, subject, of course, to its interest being shewn).-Held, as to the Royce
Avenue subway, that the appellant was not "interested or affected by" the order directing the work, and the Board had not jurisdiction under said Act to order it to contribute.
This was so, notwithstanding that the construction of the subway involved a certain diversion of
Dundas Street, which street had been, and is now in its diverted course, used by
(Per Mignault and Lamont
JJ.: Not being interested in the subway, appellant could not be said to have an interest in the diversion.
Moreover, the contribution exacted from appellant took no account of the cost of the diversion as distinguished from the cost of the subway, the contribution being to the whole expenditure.
Per Newcombe J.: There was no finding that appellant derives a benefit from the method provided for the approach or discharge of traffic from and to the subway as between Dundas
Street and Royce Avenue; and there was no reason to believe that the Board intended to impose part of the subway cost as compensation for advantages said to accrue by reason of the diversion of Dundas Street. If, on the contrary, as the case seemed to suggest, the Board was anticipating value which might be realized when, if ever, a branch of the tramway is constructed through the subway, the Board would not have junsdiction to order payment under s. 39
RAILWAYS-Continued of the Railway Act; it cannot be said that a person is interested merely because in the future he may become so). Anglin C.J.C. and Smith J. dissented on this question, holding that, in connection with the construction of the subway, the diversion of the situs of appellant's tracks on Dundas Street involved such a division diversion of traffic as probably to effect an improvement for the street railway over conditions theretofore existing; and it was impossible to hold that it had been shewn that appellant had not a present interest, different in kind from that of the ordinary residents in, or users of the city streets, in the changes effected by the Board's order for construction of the subway, still less that it was wholly unaffected by that order; as to whether such interest or affection was too slender to justify the order for contribution, that was a question of degree, involving the sufficiency in extent of the interest or affection, as to which the discretion exercised by the Board could not be interfered with.-The Railway Act, R.S.C. 1927, c. 170, ss. 39, 257, 259, 44 (3), 33
(5), considered. Toronto Ry. Co. v. Toronto [1920] A.C. 426 cited.-Held, also, that the Parliament of Canada had jurisdiction to confer upon the Board the authority held to be given by the provisions of the Act to compel contribution, under the circumstances of the case, from the appellant, a provincial corporation.
Toronto v. Can. Pac. Ry. Co., [1908] A.C. 54; Toronto Ry. Co. v. Toronto, 53 Can.
222. THE sloN 3 to appeal - Jurisdiction-Extension of time-Special circumstances-Order of the Board of Railway Commissioners -Freight rates Railway Act, R.S.C., c. 170, s. 52, subs. 2 and 3; s. 325, subs. 5............... 4- Negligence-Action against railway company for damages from accident at railway crossing-Sufficiency of evidence as to negligence-Admissibility of evidence -Wrongful withdrawal of case from jury- New trial-Railway line formerly under provincial jurisdiction, but, prior to accident, coming under federal jurisdiction- Admissibility in evidence of order made by provincial railway board during its period ofjuriediction..................... - (a Canadian railway - RAILWAYS-Concluded
Defence of contributory negligence-Application of provincial Contributory Negligence Act (R.S. N.B., 1927, c. 143)- Canadian National Railways Act, R.S.C.,
1927, c. 172, 8s. 12, 15, 33, 2 (a), 3, 16, 19,
21-Exchequer Court Act, R.S.C., 1927, c. 34, s. 19-Consideration by Supreme
Court of Canada of question of law not raised below.......................
6 - Crown-Telegraph lines planted by company on roadway of Government railway-Alleged permission to plant and maintain them - Revocability-Absence of formal contract- R.S.C., 1927, c. 171, ss. 7, 15........
REAL PROPERTY - Boundaries - Trespass - Title - Construction of Crown grant as to land conveyed of exception from grant-Distances marked on plan attached to grant-Exception described in grant with reference to description in prior grant-Actual situations and measurements on the ground-Controlling factors in determining extent of exception- Trial-Non-direction in charge to jury, as ground for new trial-Failure to ask judge to give direction.] By Crown grant, in
1786, known as the "Prince William grant," certain lots were granted in York
County, New Brunswick, according to a plan. The plan showed many lots "not granted," including those numbered 247,
249 and 251, which were side by side and went back from the river St. John to a
"designed road," the distances back not being designated. In a Crown grant, known as the "Saunders grant," in 1819, under which the plaintiff claimed, there were excepted lots 247, 249, and 251
"as described in the said Prince William grant, being reserved by us for a glebe."
Attached to the Saunders grant was a plan which showed the side lines of said excepted land as running back from the river 92 chains and 81 chains respectively.
A grant in 1836 conveyed to a church for a glebe land of which the description therein coincided in effect with lots 247, 249 and 251 for a distance measured back from the river of 92 chains on one side and of 81 chains on the other.
As found on the evidence, the distances along said side lines from the river to the "designed road" in the Prince
William grant plan extended, by ground measurement, much beyond said 92 and
81 chains; and it was the area so beyond that was in dispute, the plaintiff, which claimed damages for trespass, contending that the Saunders plan regulated the locality and area of the excepted lots and that the disputed land passed under the
Saunders grant.-Held: It was the
Prince William grant that determined
REAL PROPERTY-Concluded the dimensions and locality of the excepted lots; and as it mentioned no distances for their side lines, which were otherwise limited by the designed road, upon which the lots were based; and as the position of these lots, as inset upon the Saunders plan, with regard to a certain lake and to the designed road, corresponded with that shown upon the Prince William grant plan; and in view of the actual situation and measurements ground, the distances of 92 and 81 chains mentioned in the Saunders grant plan should not control, but should give way to more definite and convincing evidence of intention arising from the relative physical situations. Furthermore, as it is a rule of interpretation that Crown grants of this character ought to be construed most favourably to the Crown, it should follow that the statement of erroneous distances, tending to reduce the excepted area, upon the inset of the Saunders grant plan, ought not to control the interpretation of the exception as derived by express reference to the Prince William grant.
Plaintiff, therefore, had not shewn title to the disputed land.-Judgment of the Supreme Court of New Brunswick 1 D.L.R. 168), which set aside verdict at trial in defendant's favour and gave judgment for plaintiff, reversed.-A party should not be granted a new trial on the ground of non-direction in the trial judge's charge to the jury, where, having opportunity to do so, he did not ask the judge to give the direction the omission of which he complains of. (Neville v. Fine Art & Gen. Ins. Co., [1897] A.C. 68, at p. 76, cited).
v. CoMPANs LTD.........................
RES JUDICATA................. REVENUE - Sales tax - Special War Revenue Act, R.S.C., 1927, c. 179, ss. 86 (a), 87 (d)-Bank printing books and stationery for its own use--"Manufacturer or producer"- Liability for sales tax. The defendant bank maintained a stationery department through which it supplied its various offices with stationery and supplies required in the conduct of its business, and in said department it had, without any object of gain, but for convenience, expedition, secure secrecy, a printing plant with which it printed and made up ledgers, etc., forms, by-laws, letter papers and other printed material, required in carrying on its business.-Held that in respect of said printed material the bank was a "manufacturer or producer,"
and liable for consumption or sales tax under ss. 86 (a) and 87 (d) of the Special War Revenue REVENUE-Continued
Act, R.S.C., 1927, c. 179 (and under the corresponding provisions in the earlier legislation contained in s. 19BBB of the
Special War Revenue Act,
1915, amended by 13-14 Geo. V, c. 70, s. 6), and was also liable for licence fee (under said s. 19BBB as amended; now R.S.C.,
1927, c. 179, s. 95).-Judgment of the
Exchequer
Court of Canada,
Ex. C.R., 155, affirmed.
TE KING...............
- Sales tax - Exemption - "Magazine"-Special War Revenue Act, 1915
(as amended), 8. 19BBB (4)-Construction of word in statute with reference to usage or definition in statute in part materia.
It was held, reversing judgment
Audette J., Ex. C.R., 133, that the pamphlet in question, printed by defendant monthly for the Canadian Kodak
Co., Ltd., and called "Kodakery," was a
"magazine," and as such exempt from sales tax, under subs. 4 of s. 19BBB of the Special War Revenue Act, 1915, and amendments.-The word "magazine" in the exempting provision is used in its ordinary sense and must be construed and applied in that sense. Its meaning in ordinary usage discussed, with regard to its application to the pamphlet in question.-While, for the purpose of ascertaining the meaning of a word in a statute, its usage in other statutes may be looked at, especially if the other statutes are in pari materia, it is altogether a fallacy to suppose that because two statutes are in pari materia a definition clause in one can be bodily transferred to the other.
MuM-BiNGHAMi
PRINTING CO. v. THE KING .........
- Gallonage and sales taxes - Special
War Revenue Act 1915 (as amended), ss.
19 B 19BBB (1)-Exemption in case of export-Requisites for operation of the exempting provisoes-Onus as to proof of export-Export of beer into a country in violation of its laws-Sales tax on sales made in Ontario in violation of Ontano
Temperance Act-Right of Crown interest penalties.
The Crown claimed against the defendant, under the
Special War Revenue Act, amended), for sales tax in respect of beer sold, and for gallonage tax in respect of beer manufactured and sold, between
April 1, 1924, and May 1, 1927.
Defendant claimed that the beer was manufactured for export and was exported, and that, therefore, the taxes were not payable.-Held (1) Export, in order to attract the exemption from gallonage tax, must be under government regulation, and in the absence of regulations the exempting proviso in s. 19B (1) of the
Act can have no operation.-(2) The prol.iso in s. 19BBB (1) that the sales
REVENUE-Continued tax "shall not be payable on goods exported" exempts only in cases in which the goods are exported by the vendor in execution of the contract of sale. If the contract for sale is completed by delivery in Canada the liability for sales tax attaches, notwithstanding that export is contemplated and that the purchaser agrees with the vendor that the goods shall be exported. Subsequent export does not effect a defeasance of the obligation to pay the tax. The remedy in such case would be by way of the procedure (for refund) laid down in subs. 10 of . 19BBB.-It was further held that, even assuming that subsequent export could have brought defendant within the benefit of the proviso, export had not been sufficiently established to effect this. The Crown having proved the sales, the defendant, to escape taxation in respect of any shipment, must shew it was in fact exported (meaning of "export" discussed); and, upon the facts and circumstances in evidence, while no doubt beer was exported in large quantities, it was impossible to say judicially with regard to any particular shipment that it was in fact exported.-Quaere whether "export", in the sense of the statutory exemption, should not be taken to exclude export which involved the violation of the laws of the United States by the introduction and sale there of goods which could not there be lawfully introduced or sold or (except in circumstances not here relevant) be the subject of property or juridical possession.- (3) As to certain sporadic cash sales in Ontario, these were "sales" within the meaning of said Act, and subject to the tax, notwithstanding that the Ontario Temperance Act, in force during the period in question, made such sales unlawful and deprived them of legal effect (Minister of Finance v. Smith, [1927] A.C. 193, applied).-(4) The Crown was entitled to the penalties provided by s. 19CC (3) (as enacted by c. 69 of 1926-27 amending the Special War Revenue Act not only in respect of sales made after its passing, but also, from the date of its passing, in respect of sales made prior thereto; and, up to the date of said enactment, to interest at 5% per annum from the dates when the taxes became due (Toronto Ry. Co. v. Toronto, [1906] A.C. 117).-Judgment of Audette J., of the Exchequer Court of Canada, [1929] Ex. C.R. 130, varied in favour of the TBE KING v. TE
CARLING ExPoRT Co.. 4 - Sales Tax - Special War Revenue Act, 1915 (as amended), s. 19BBB (1)goods "exported"
within the exempting proviso.
The judgment of Maclean J., President of the Exchequer Court of Canada, [1929] Ex. C.R. 119, REVENUE-Continued holding that the Crown was entitled, under the Special War Revenue Act, 1915, and amendments, to recover the amount claimed for sales tax in respect of the sales of spirits in question, was affirmed;
the reasons in The King v. Carling Export
Brewing & Malting Co., Ltd., ante, p. 361, being held applicable.
5-Bond given, pursuant to a. 101 of
Customs Act, R.S.C., 1906, c. 48, as amended by 12-13 Geo. V c 18 s. 6, in respect of export of liquore-Goods not exported to the place named-False landing certificate-Purported cancellation of bond
-- Crown's right to recover on the bond- Amount recoverable-Limitation period for action-Defect in form of bond-Interest.
Appellant gave a bond to the Crown, pursuant to s. 101 of the Customs At, R.S.C.,
1906, c. 48, as amended by 12-13 Geo. V, c. 18, s. 6, in respect of certain liquord entered at Halifax, N.S., by the S. Co., for export to Georgetown, Grand Cayman, by the steamer G. The required form of bond in such cases was expressed to secure actual exportation to the place provided for in the entry and production of proof thereof.
The steamer reported outwards from Halifax on February 3,
1925, for Georgetown, via St. John, which she reached on February 5, where additional liquors were loaded for transport to
Havana, Cuba. On February 25 she cleared at St. John for Georgetown.
On March 3 she reported inwards at
Shelburne, N.S., in ballast, and, therefrom, she cleared for Halifax on March 10.
At Shelburne the master made a sworn statement before a customs officer that the goods with which the G. was laden on departure from St. John had been aisposed of on the high seas, 30 miles off the
United States' coast, and transferred on board lighters. On February 27 there was deposited with the collector customs at Halifax, purporting to proceed from the customs office at Georgetown, a certificate, dated February 16, that the goods described in the Halifax export entry had been delivered over to the customs at Georgetown.
The goods had not been so delivered and the certificate was a concocted document. The collector acted on this fraudulent certificate (believing, as was found, in its genuineness) and, purporting to proceed under the authority given by s. 102 of the Act, cancelled the bond and surrendered it to appellant.
In September,
1928, the Crown brought action in the
Exchequer Court for the amount of the bond and interest. Maclean J. sustained the claim ([1929] Ex. C.R. 216).
Held (1) It could not be said that the conditions of the bond were in effect complied with, even assuming that
REVENUE-Continued the principal object of the statute and regulations was to provide special precautions against the clandestine re-importation wines and liquors into Parliament and the Minister, under its authority, had laid down rules which were deemed necessary in order to secure that object.
The bond and the statute and regulations must be held to take effect according to their plain meaning.-(2) Appellant could not rely upon the collector's act in delivering tip the bond with the intention of cancelling it, even assuming such delivery to have misled it to its prejudice (Mayor, etc., of Kingston-upon-Hull v. Harding, [1892] 2 Q.B. 494).
Even if the collector had (contrary to the finding) been a party to the fraud, a purported cancellation based upon it could not, as between the Crown and persons bound by the acts of parties implicated in the fraud, or civilly responsible for the non-observance of the law, have any effect as against the Crown.-(3) The amount recoverable by the Crown was not limited to damages proved.
Where a bond is given secure the performance of the provisions of a revenue statute, it is forfeited if the condition is not performed, especially where the bond is required by statute (The King v. Dixon, 11 Price, 204, at p. 211; The King v. Canadian Northern Ry. [1923] A.C., 714, at p. 722).-(4) It could not be said that the object of the proviso to s. 101 was to obtain a guarantee for the payment of the penalties exacted by s. 237 (now s. 235 of R.S.C., 1927, c. 42) and that the limitation period applicable thereto applied; the proviso created a substantive additional p rotection in the case of wines and quors, and could not be fairly read as subsidiary to s. 237.
The claim was not statute barred under s. 279 (now s. 277); s. 279 must be read with s. 272 (now s. 270), and s. 272 shews that the words "prosecutions or suits for the recovery" of "penalties or forfeitures imposed by this Act" do not embrace a proceeding upon a bond required by the statutethey apply to penalties, etc., imposed directly by the Act rather than to guarantee bonds.-(5) Notwithstanding the omission of certain words in the condition of the bond (as proved at trial by production of a copy) it should be read as of the form prescribed by the regulations. The recitals established clearly that the bond was given under the Act and regulations, and it was therefore necessary to look at these before deciding that a substantive clause in the condition, in which obviously the intention not completely expressed, entirely nugatory; the intention as to the form of the condition could be ascertained with certainty by reference tosthe REVENUE-Concluded
Act and regulations, and it was one of the cases in which it is the court's duty to supply the missing words, to avoid the purpose of the document being defeated.
of the Exchequer Court
(supra) affirmed, subject to a variation disallowing the claim for interest prior to date of judgment in that court.
DIA Co. v. THE KING ......
RIOT - Calling
Active Militia-Requisition by Attorney
General of the province-Liability of the province for expenses incurred-Militia
Act, R.S.C., 1906, c. 41, sections 8 to 90;
1924 (D.)
c. 57-Public Service Act,
... .... . ..................
RIVER BED-Ownership.......... 137
SALE OF LAND-Sale - Agreement by purchaser to pay taxes-Sale of property to third party for unpaid taxes-- Action for purchase price-Liability of purchaser. The respondent, representing the vendor, sued the appellant, representing the purchaser, for the balance of the price of sale of a certain parcel of land. The latter denied his liability on the ground that the property could not be transferred to him by the vendor as it had been sold for unpaid taxes; but the vendor contended that the purchaser was still bound because the sale of the property for taxes was due to the failure by the purchaser to pay them as covenanted.- Held that the respondent's action should be dismissed.
The vendor was aware that the taxes had not been paid and was looking to the purchaser for the money wherewith to pay them; he had already collected some rent for the property which he was holding as a credit against the taxes and it can be inferred that the vendor anticipated that payments on account of taxes, when made, would pass through his hands. When, the property was sold for taxes, it was not because the vendor was misled into a belief that the purchaser had paid or intended to pay the taxes; the vendor had been notified, previously to the sale for taxes, that the purchaser repudiated the contract and was looking for a refund of his payments, and in withholding payment of the municipal claim the vendor acted deliberately, with a full knowledge of the facts.
Moreover, effect must be given to the language of the contract, according to the whole scope of the instrument. The vendor, as the owner, is primarily liable for the taxes, and the covenant, whereby the purchaser becomes bound to pay, while it serves to oblige the purchaser to indemnify the vendor,
SALE OF LAND-Concluded does not create any direct obligation as between the purchaser and the municipal authorities. The direct or proximate cause of the municipal sale, being the non-payment of the taxes required by the Assessment Act, was not any act or default of the purchaser or his representatives; they had the faculty to pay, but they were in no sense agents or actors in effecting the sale; nor did the sale follow as a consequence of their neglect. The law ascertains the damage for breach of the covenant according to the measure indicated by Lethbridge v. Mytton (2 B. & Ad. 772) and Loosemore v. Radford (9 M. & W. 657): when a purchaser covenants to pay the taxes, the vendor may, at any time, when unpaid taxes are overdue, maintain an action against the purchaser for the amount. ..... 2-Default by purchaser-Suit by vendor for cancellation of agreement-Forfeiture of payments-Construction of agreement- Recovery by purchaser of moneys paid. KRAUSE.................. Printed form - Alteration by pen and ink-Whether ambiguity or repugnancy between clauses-Interpretation-Evidence of intention by use of deleted words................... 4 ................................ 5 ................................ SALES TAX-Revenue-Special War Revenue Act, R.S.C., 1927, c. 179, ss. 86 (a), 87 (d)-Bank printing books and stationery for its own use-"Manufacturer or producer"-Liability for sales tax. THE 174 - Revenue - Exemption-"Magazine"-Special War Revenue Act, 1915 (as amended), s. 19BBB (4)-Construction of word in statute with reference to usage or definition in statute in pari materia. . 282 3 ................................ 4-Special War Revenue Act, 1915 (as amended), s. 19BBB (1)-Whether goods "exported" within the exempting proviso ..............
................ SCHOOL LEGISLATION - Mandamus - Dissentient school-Right to send children-Children born from mixed marriage-Agreement as to their religious faith-Authoriiy of the parents as to educa- SCHOOL LEGISLATION-Concluded tion-Education Act, R.S.Q., 1925, c. 133,
99, 103, 106, 116, 124,
250, 310.
The trustees of a dissentient school cannot deny the right of a dissentient ratepayer to. have his children educated during the statutory school years at the dissentient school for the support of which he is taxed, notwithstanding the fact that the religious faith of the children is different from that professed by the parent.- Judgment of the Court of King's Bench
(Q.R.
K.B.
aff.
SYNDics
D'EcoLEs
V. SHANNON...................
SHIPPING-Loss of goods-Due diligence of ship owner-Latent defect-Burden of proof-Certificate of seaworthiness by government inspectors-Sections 6 and 7 of the Water Carriage of Goods Act (1910)
9-10 Edw. VII, c. 61, now R.S.d., 1927, c: 207.
The appellant insurance company having paid the sum of $17,141.80 to the owners of a cargo of wheat destroyed in transit from Port Colbourne to Montreal on a vessel, the ss. Hamilton, owned by the respondent company, and having been subrogated to the rights of the owners, brought action and recovered judgment in the trial court against the respondent for that amount which represented the value of the cargo accepted by the respondent as a common carrier and which it failed to deliver to the owners.
The accident to the Hamilton occurred in the St. Lawrence River, below Cornwall, Ontario, and was caused by the breaking of a threaded wrought iron bolt which entered a turnbuckle, the appliance being used to connect one of the chains of the steering apparatus to the port end of the quadrant attached to the rudder. According to the evidence, this bolt had been considerably bent at least for several months before it broke during the sixth trip of the season. The judgment of the trial judge in favour of the appellant was reversed by the appellate court, Tellier J. dissenting, on the ground that the respondent had established the statutory defences allowed it by sections 6 and 7 of the Water Carriage of Goods Act, R.S.C., 1927, c. 207.-Held that, upon the evidence, the appellate court was not justified in reversing the finding of the trial judge that the respondent has not established that it had
"exercised due negligence to make the ship in all respects seaworthy and properly
*
*
* equipped," and that the loss or damage was occasioned by a "latent defect" in the material of the bolt.-Per
Anglin C.J.C. and Rinfret, Lamont and
Smith JJ.-The burden proving absence of fault or negligence, the cause of the damage or loss, and that that cause was a latent defect, is cast by the law upon the defendant as a common carrier seeking to avail itself of the protection of
SHIPPING-Concluded sections 6 and 7 of the Water Carriage of Goods Act; and, per Anglin C.J.C. and Rinfret and Lamont JJ., the respondent, by establishing that there was a latent defect in the material of the bolt and that it was a probable cause of its breaking, did not discharge that burden unless the evidence also excluded other possible causes.-Per Anglin C.J.C. and Rinfret, Lamont and Smith JJ.-The respondent company pleaded that it had "exercised due diligence
*
*
* and "alternatively, that the steering apparatus broke as a result of a latent defect in the material * * *," such plea apparently assuming that the respondent might escape liability by proving only one of the two allegations.
If so, the plea is defective in that the statutory requirement is that both conditions, not one or the other, shall be established in order to make good the defence.-Per Anglin C.J.C. and Rinfret, Lamont and Smith JJ.-The certificates of seaworthiness given by two government officers are of no value as affording any proof of "due diligence" in inspection.
One of them whose duty it was to inspect boilers and machinery "including the steering apparatus" testified that it was none of his business to see to the condition of the steering chains and that his duties ended with the engines which operated them. The other inspector, whose duty it was to ascertain the condition of the ship's hull and equipment for seaworthiness testified to having seen the steering apparatus, but did not notice the turnbuckle bolt and did not know of its existence until he heard of it at the trial.-Per Anglin C.J.C. and Rinfret, Lamont and Smith JJ.-The terms "not apparent" and "latent" are not interchangeable;
they are by no means equivalents, as some defects, although not apparent, cannot properly be said to be latent. Moreover, it cannot be assumed that if due diligence is exercised any defect not thereby discernible must be "latent," as the fact that the statute requires that after proof of the exercise of due diligence the ship's owner must also establish, when he relies on that fact, that the defect which caused the damage was "latent," seems to indicate that such an assumption must be fallacious.-Newcombe J. upheld the finding of the trial judge that the owner failed in due diligence to have the ship seaworthy and properly equipped, and held that the respondent company did not therefore bring itself within the relief of the statute. of the Court of King's Bench (Q.R. 46 K.B. 305) reversed. Scorrisa AssuRANcE Co. V. STEAmSiP LINEs LTD.... 2 ..............................
....
STATUTE - Ejusdem generis rule........................630
STATUTES (Imp.) B. N.A. Act, 1867,
132........................
2-R.S.C. [1906] c. 34 (Exchequer Court
3-R.S.C. [1906] c. 41 (Militia Act) 554
4- R.S.C. [1906] c. 69 (Patent Act) 462
5-R.SC. [1906]
(Insurance
6- (Aeronautics
7-R.S.C.
c. 11
(Bankruptcy
See BANKING
8- R.S.C. [1927] c. 20 (Excise Act)
9- R.S.C. [1927] c. 34 (Exchequer Court
482, 531, 612
10-R.S.C. [1927] c. 35 (Supreme Court
Act).....................120,
305, 663
See 4, 2.
11-R.S.C. [1927] c. 48 (Customs Act) 434
12-R.S.C. [1927]
13-R.S.C. [1927] c. 97 (Income War
Tax Act).. .........
........
See TAx
14-R.S.C. [1927]
102 (Interest
Act)............................. 378
R.S.C. [1927] c. 144 (Opium and
Narcotic Drug Act)................
16-R.S.C. [1927] c. (Post Office
17-R.S.C.
170 (Railway
Act)..................73,
94, 288
See 2, 3.
18-R.S.C. [1927] c. 171 (Department of
Railways and Canals Act) ..........
STATUTES-Continued
19- R.S.C. [1927] c. 172 (Canadian National Railways Act) ............ 20-R.S.C. [1927] c. 179 (Special War Revenue Act)...................... 21- R.S.C. [1927] c. 201 (Trade Mark and Design Act)................... 22- R.S.C. [1927] c. 207 (Water Carriage of Goods Act)...................... 24- (D.) 4 Ceo. V (2nd sess.) c. 2 (War M easures Act)..................... 25-(D.) 5 Geo. v, c. 8 (Special War Revenue Act)..............282,
361, 375 See 3, 4.
26- (D.) 12-13 Geo. V, c. 18 (Customs ..................
See REVENUE 5.
27-(D.) 13-14 Geo. V, c. 23 (Patent Act)............................. 443 28-(D.) 14-15 Geo. V, c. 100 (United Church of Canada Act) ............. 29- R.S.O. [1927] c. 173 (Mechanics' Lien Act)......................... 30-R.S.O. [1927] c. 222 (Insurance Act)............................ 180 31-R.S.O. [1927] c. 229 (Factory, Shop and Office Building Act) ............ 32-R.S.O. [1927] c. 238 (Assessment Act)............................. 387 See TAX 1.
33-R.S.O. [1927] c. 251 (Highway Traffic Act)...................
34-(Ont.) 13-14Geo. V, c. 48 (Highway Traffic Act)....................... 35- R.S.Q. [1925] c. 35 (Motor Vehicles Act)............................ 231 36- R.S.Q.
[1925] c. 133 (Education. See SenooL 37-(Que.) 4 V, 9 (Succession Duties Act)....................... STATUTES-Concluded
38- (Que. 4 Geo. V, c. 11 (An Act respecting certain duties imposed in succession).....
....................
39- R.S.B.C. [1927] c. 143 (Contributory Negligence Act) ...............
40-R.S.M. [1913] c. 133 (Municipal
41-(N.B.) 14 Geo. V, c. 59 (United
Church of Canada Act) .............
42-R.S. N.S. [1923] c. 9 (Public Service
SUCCESSION DUTIES-Property transmitted in usufruct or with substitution- Usufructuary or institute bound to pay full duties to provincial collector, but liable only for his share in the estate-Balance of duties paid out of funds of proprietor or substitute-Succession duties Acts, 4
Geo. V, c. 9, sa. 1375, 1380, 1381, 1382,
1385-(Q) 4 Geo. V c. 11.]
Under the
Quebec Succession luties Act (4 Geo. V, c. 9, 1914), neither the usufructuary, nor the institute in a substitution, is personally liable for the duties otherwise than in respect of his share in the succession, and for no more; By force of the statute, the Collector must collect from the usufructuary or the institute the whole of the duties; but such duties, so far as they represent the share of the proprietor or the substitute, are payable out of the property or money in the possession of the usufructuary or the institute belonging or owing to the said proprietor or substitute; A general usuctuary having paid out of his own money duties due in respect of the share of the proprietor is entitled to reimbursement thereof, without waiting until the expiration of the usufruct; but the reimbursement will be only of the sum so paid, without interest.-In such a case, the share of the general usufructuary in the duties payable is represented by (a)
the loss of the interest, on the sum he has paid for the duties due, from the date of the payment so made, (b) the loss of revenue in the future, as a result of the diminution of the capital corresponding to the amount so reimbursed to him out of the property belonging or owing to the propnetor.-Judgment of the Court of
King's Bench (Q.R. 46 K.B. 450) reversed.
U. BLAUv........
TAXES - Sale - Agreement by purchaser to pay taxes-Sale of property to third party for unpaid taxes-Action for purchase price-Liability of purchaser. 602
See SALE 1.
TRADE-MARK-Trade-Mark and Design c. 201-"Person aggrieved" by registration of mark (s. 45)- Resemblance of registered mark to mark in prior use-Expunging-Application for registration of mark in Canada-Misrepresentation in use of mark, acquiesced in by owner-Mark used on goods manufactured and sold by person not owner of the mark-Inability of applicant truthfully to make declaration required s. 13- Essentials for right of registration in Canada- Use of, and "property" in, trade-mark.] In 1908 the members of C. & K. Co., a Connecticut company, hat manufacturers, along with one Dobbs who took a qualifying share, formed the respondent company, of New York, with Dobbs as president. Respondent sold hats in stores in New York city, adopting a trade-mark which the prominent feature was the word "Dobbs. It also contained the words "Fifth Avenue, New York," and other features. The hats were manufactured by C. & K. Co which also placed the trade-mark on a hats which it manufactured and sold to its various representatives or agencies. From 1913, C. & K. Co. sold hats manufactured by it and bearing the "bobbs" trade-mark, to representatives in Canada. In 1923 respondent procured registration of its trade-mark in the United States. By an agreement in 1924, respondent, in consideration of royalties to be paid to it, granted to C. & K. Co. the exclusive licence to sell hats bearing as a trademark the word "Dobbs," either alone or with other words, to customers outside of New York city. In 1922 or early in 1923, appellant a hat manufacturer in Toronto, Canada, adopted a trade-mark having as a prominent feature the words "Dan Dobbs" (a name not borne by any member of the company) and in 1923 procured registration of its trade-mark in Canada; and it did a considerable business in Canada under it. In 1925 respondent applied to have the word "Dobbs"
registered in Canada as a specific trade-mark.
This was refused because of appellant's registered mark. On petition by respondent in the Exchequer Court, Audette J. ([1929] Ex. C.R. 164) ordered that appellant's mark be expunged, and that respondent be at liberty to renew or proceed with its application for registration.
On appeal: Held (1) Respondent was a "person aggrieved," within s. 45 of the Trade- Mark and Design Act, R.S.C., 1927, c. 201, by registration of appellant's mark, and entitled to sue for its expunging ("person aggrieved" discussed; reference to 27 Halsbury, p. 714; In re "Vulcan" Trade-Mark, 51 Can. S.C.R. 411, at p. 413, and other cases).-(2) Appellant's mark was improperly placed on the register and should be expunged; its resemblance to respondent's mark, under TRADE-MARK-Continued which hats had been sold in Canada for years before appellant's mark adopted, was such as to confuse and deceive public.-(3)
Respondent should not be allowed to proceed with its application for registration.
The hats sold in Canada bearing its mark were manufactured, owned and sold by C. &
K. Co.
It never was intended that
C. & K. Co. should sell anywhere products of respondent; on the contrary, the principal object of the founders of respondent company in its formation was the acquisition of a business on Fifth
Ave., New York, under the mark of which they could represent to the public, in cities and towns outside of New York, that the hats manufactured by C. & K.
Co. were the product of Fifth Ave., New
York; in that scheme of misrepresentation respondent acquiesced. To sell an article stamped with a false label is pro tanto an imposition on the public, acquiescence by the owner stamp leaves representor owner pari delicto (see Leather
Cloth Co. v. American Leather Cloth
Co., 4 DeG. J. & S., 137; 11 H.L.C.,
On this ground alone registration should be refused (Bowden Wire Ltd. v.
Bowden Brake Co. Ltd., 30 R.P.C., 580, at p. 590).
There were other grounds for refusal: Respondent could not truthfully make the declaration, required by s. 13 of the Act, that the mark was not in use to its knowledge by any other person than itself at the time of its adoption
(i.e., adoption in Canada) thereof; there was no adoption of it as a trade-mark in
Canada by respondent; it did no business in hats in Canada and it knew that, from
1913 to 1924, the mark was being used in
Canada in connection with the sale of hats by C. & K. Co. An applicant for registration of a trade-mark in Canada must shew that he is the proprietor thereof. Respondent had not acquired in Canada any property in the mark.
There can be no property in a trade-mark except as a right appurtenant to an established business or trade in connection with which the mark is employed;
the right to a particular mark grows out of its use, not its mere adoption; its function is simply to designate the goods as the product of a particular trader and to protect his good-will against the sale of another's products as his (Hanover
Star Milling Co. v. Metcalfe, 240 U.S.
Rep. 403, at p. 412; Bayer Co. v. American
Druggists Syndicate, [1924] Can. S.C.R.
558, at p. 569).
The right to registration in Canada of a trade-mark belongs to him who first uses it there to designate as his the goods to which it is attached; and respondent did not come within this condition.-Judgment
Audette
J.
(supra) varied.
Co. v. DOBBS ANDCO ..............
TRADE-MARK-Concluded
- Infringement - Packings common to the trade-Form, size or colour-"Getup". HENRY K. & CO. V. TRESPASS................... TRIAL-Non-direction in charge to jury, as ground for new trial-Failure to ask judge to give direction.............. 2 - Jury - Criminal law - Practice and procedure-Charge of the trial judge- Misdirection-Sworn statement by stenographer conflicting with report of the judge- Section 1020 Cr. C................. 3 - Criminal law - Conspiracy - Witness - Accomplice - Charge - Misdirection-New trial-Police spy or informer-Need of corroboration - Practice when dissenting opinion in appellate court -- Cr. C., s. 573, s. 1013, s. s. 5....... 396 4- New trial-Wrongful withdrawal of case from jury..................
5-Criminal law-Evidence-Tender of evidence given on former trial, under Cr. C., s. 999-Admission by accused's counsel of "every fact essential to the admission of the evidence" under s. 999-Extent of admission-Lack of proof that evidence put in was in fact the evidence given at former trialfindings against accused-New trialunder s. 999 which was given on former separate trials of persons now tried together ....... See CIMINAL LAW 5.
TRUSTS AND TRUSTEES ....... UNITED CHURCH OF CANADA WAR MEASURES ACT-Interest.. 130 WAR REVENUE ACT (SPECIAL)- Interpretation of ss. 86 (a), 87 (d)... 174 2- Interpretation of s. 19BBB (4) 282 3- 19B (1), 19BBB (1)........................ 361 4- Interpretation of s. 19BBB (1).. WATERS AND WATER COURSES WILL-Alleged will not forthcoming after death-Sufficiency of proof of execution and contents-Rebuttal of presumption destruction animo revocandi-Destruction of one will on assumption of replacement by later will-Dependent relative revocation.] The judgment of the Appellate
Division, Ont., 64 Ont. L.R. 43, holding that the alleged will in question should not be admitted to probate, was reversed.
-There was evidence as to the making of a will by the alleged testator in November, 1923, and of its contents, and of correction of the testator's name as written therein, either by a new will or by correction and re-execution of the old one, in February, 1924, the contents, except for said correction, being unchanged. The adeged will was deposited in a bank in Vancouver, B.C., for safe keeping.
Later the testator came to reside in Ontario. In May, 1925, in response to a letter from the testator, the bank in Vancouver sent the will to him and got his receipt for it. The testator died in May, 1928. Upon a search made after his death no will was found.- Held (1) As to execution of the will of
1923, while the evidence failed to shew fully observance of the statutory formalities, it was a reasonable assumption from the evidence that they had been duly observed, having regard to all the circumstances and especially to the fact that the will was prepared by a competent solicitor and executed in his office (Harris v. Knight, 15 P.D. 170, at pp. 179-180;
In re Thomas, 1 Sw. & Tr. 255, cited);
and its due execution should be held to have been established.
As to the will of
1924, the question of its due execution was not very material, as, its contents being proved to be the same as those of the earlier will, it did not matter which document was admitted to probate.
If its due execution should be held to be established, the will of 1924 was the one to be admitted to probate; if not, the will of 1923 would remain effective, even though it had been physically destroyed on the assumption that it had been duly replaced by the later will; the doctrine of dependent relative revocation applied.
The contents were clearly established.- (2) The presumption of destruction of the will by the testator animo revocandi, arising from its being traced to his possession and not being forthcoming after his death, must be held, on all the facts and circumstances, to have been rebutted, taking into consideration that the will as made was eminently reasonable in view of the testator's affectionate feelings towards the beneficiary
(his only surviving sister), that there was no change in those feelings (as held established on the evidence), statements by the testator shortly before his death to independent and trustworthy witnesses
(Whitely v. King, 17 C.B.N.S. 756), the
WILL-Continued simple character of the testator, the fact (to be inferred from the evidence) that he regarded his will as of the highest importance, and (there being no evidence of its deposit for safe keeping elsewhere) would likely have kept it near his person, and the fact that after his death certain of his clothing and bedding were burned without any search thereof and before any search for a will was made.--Sugden v. Lord St. Leonards, 1 P.D. 154, at pp. 217, 202-3; Stewart v. Walker, 6 Ont. L.R. 495, referred to. Allan v. Morrison 17 N.Z.R. 678; [1900] A.C. 605, and Eckersley v. Platt, L.R. I P. & D. 281, distinguished on the facts.
2 - Church congregations - Bequest for "Tatamagouche Presbyterian Church"- Congregation becoming, after date of will and before testatrix' death, part of the United Church of Canada.] By her will, made January 5, 1924, P. bequeathed $100 "to the Trustees of the Tatamagouche Presbyterian Church," and a residue to "Tatamagouche Presbyterian Church."
She was then a member of that church.
She died May 2, 1926. On January 12, 1925, a vote was taken in the congregation, pursuant to c. 100, statutes of Canada, 1924, when a majority voted for union, and, as a result, the congregation, on June 10, 1925, became a part of the United Church of Canada.- Held, that the congregation could not take under said bequests; by becoming a congregation of the United Church of Canada at Tatamagouche, it had become something so different from the congregation for whose benefit the bequests were made, that it did not now come within the description in the will; the present congregation was not the same entity as the congregation which P. contemplated as her beneficiary. (In re Donald, [1909] 2 Ch., 410, and In re Magrath, [1913] 2 Ch., 331, distinguished). As to the bequest to "the Trustees of the Tatamagouche Presbyterian Church," it was to a corporation which, even if it continued to exist, was not now one for carrying into effect the testatrix' object, and the same principle applied as in the case of the other bequest.-The fact that, about the time the congregation became part of the United Church of Canada, P.'s name was, at her request, removed- from its roll and she became a member of Sedgewick Memorial Church, a continuing Presbyterian Church formed at Tatamagouche by those of the original congregation opposed to the union, was not admissible as a guide to interpretation of the will. The question in issue must be decided without regard to whether P. remained in the United Church congregation or left it.-Judgment of the WILL-Concluded
Supreme Court of Nova Scotia in banco
(60 N.S. Rep., 343), which held that there was an intestacy as to said bequests, affirmed in the result.
PATRIQUIR; FRASER McLELLAN...
WORDS AND PHRASES-"Exported"
...............................
2- "Expressio unius est ezclusio altersus .............................
See BANKS BANKING
3- "Factory"................... 190
4- "Final judgment"...........
5- "Income" ...............
387, 402
6- "Interested or affected by" ......... 73
7- "Laws of Canada" ............
8- "Magazine"...............
See REvENUE 2.
9- "Manufacturer or producer" ..... 174
10-"Othertoise"..............
11-"Person aggrieved" in trade-mark cases.............................
12- "Profit or gain"............ 402
TAX 2.
13- "Property" in trade-mark .... 307
See TRADE-MARK 1.
14- "Reversionary " interest ......
- Insurance company - Indemnity policy-Minimum and estimated premiums mentioned in the policy-Supplementary premium fixed and payable after the expiry of policy-Accident to employee during life of the policy-Notice to insurer after supplementary premium is due-Liability of the insurance company-Insolvency of the employer-Fyling of claim with the trustee for supplementary premium between premium indemnity.]
company insured one Dub6 under an indemnity policy against liabilities resulting from the Workmen's Compensation Act for a period of one year from the 26th of January, 1924.
The premium was based upon the whole remuneration insured's employees during the period of the policy as follows: a "minimum" premium and an "estimated premium" were stipulated to be paid, and were in fact paid, in advance by the employer, and, at the expiry of the policy, an adjustment was to be made so that a supplementary premium may then be due by the insured or a reimbursement may be made by the company, according to the amount of wages paid by the insured during the life of the policy; but, in any case, the "minimum" premium was to be retained by the company. On the 2nd of August, 1924, an employee of Dub6, one L6vesque, was injured, but a petition to sue the employer under the Act was served only on the 28th of January, 1925, and, on the same day, Dub6 made an assignment in bankruptcy.
L6vesque, having been granted permission to sue the trustee, one Gagnon, obtained judgment for $5,300 and costs against the present respondent who had succeeded Gagnon as trustee. On the 27th of January, 1925, one day after the expiry of the policy and one day prior to the service of the petition on Dub6, an adjustment had been made as provided for in the policy and a supplementary premium of $1,020.58 was thereby shown to be due by Dub6. On the 22nd of January, 1927, the respondent sued the appellant company for the payment of $6,490, being Ldvesque's claim of $5,300 and the costs, under the judgment secured against the respondent which he had not yet paid. The appellant company repudiated its liability on the ground that the supplementary premium
$1,020.58 had not been paid by the insured.-Held, Mignault J. dissenting, that the appellant company was liable for the amount claimed by the respondent. Under the terms of the policy, the obligations of each party were not simultaneous and that of the insurer to indemnify was not made subject to the obligation of the insured to pay the supplementary premium. The appellant s liability was complete and absolute on the date of the accident, i.e., on the 2nd of August, 1924; on that day, the appellant, having received all the premiums then due, became bound to pay to the employer the amount of the indemnity to be awarded to the injured employee under the Workmen's Compensation Act.-Held also that, at all events, the company could not repudiate the claim while it asserted its right to keep the premiums already paid and also while it persisted in maintaining a claim, filed with the trustee in bankruptcy, for the supplementary premium. also, that the supplementary premium may not be deducted from the indemnity on the ground of compensation, as at no time, before the bankruptcy, were they equally liquidated and demandable.-Per Mignault J. (dissenting).-The appellant company had a right to oppose the respondent's action with a plea of non adimpleti contractus, i.e., to ask that its liability to pay the amount claimed should be postponed until the payment by the insured of the supplementary premium.
A right action against the insurer does not exist in favour of the employer until the injured employee has filed his claim for the date service by Ldvesque of his petition to sue Dub6, the supplementary premium of $1,020.58 was due and unpaid by the latter and, therefore, the insurance company was not liable.
It is not the accident itself, but the notice of the accident to the insurer, which creates against the latter an obligation to pay under the policy.-Judgment
Court King's Bench (Q.O.R. 45 K.B. 224) aff., Mignault J. dissenting.
Cases cited
- A.C. 571 A.C. 571
- A.C. 333 A.C. 333 p 346
- A.C. 359 A.C. 359 p 360
- A.C. 203 A.C. 203
- A.C. 202 A.C. 202 p 216
- A.C. 111 A.C. 111
- A.C. 189 A.C. 189
- A.C. 348 A.C. 348
- A.C. 65 A.C. 65
- A.C. 342 A.C. 342
- A.C. 38 A.C. 38 pp 54-55
- A.C. 25 A.C. 25 p 52
- Judgment of Maclean J. Judgment of Maclean J., supra
- A.C. 461 A.C. 461
- A.C. 118 A.C. 118
- A.C. 344 A.C. 344
- Rural Municipality of Victory v. Saskatchewan Guarantee & Fidelity Co., Ltd. scr-1928-264 p 273
- 3 D.L.R. 225 3 D.L.R. 225
- A.C. 195 A.C. 195
- A.C. 74 A.C. 74 pp 95-96
- Scythes & Co. Ltd. v. Gibson's Ltd. scr-1927-352 p 358
- A.C. 97 A.C. 97 pp 106-107
- Permutit Co. v. Borrowman Permutit Co. v. Borrowman, supra
- A.C. 426 A.C. 426
- Toronto v. Can. Pac. Ry. Co. A.C. 54
- Neville v. Fine Art & Gen. Ins. Co. A.C. 68 p 76
- Minister of Finance v. Smith A.C. 193
- Toronto Ry. Co. v. Toronto A.C. 117
- Toronto Toronto
- A.C. 605 A.C. 605
Statutes and regulations cited
-
- s. 132
- s. 4
- s. 91
- s. 95
- section 132
- section 91
- section 92
- s. 55
- section 4 of the Aeronautics Act
- Section 4 of The Aeronautics Act
- 1922
- s. 7
- s. 92
- s. 4 of the Aeronautics Act
- section 4
- Section 4 of the Aeronautics Act
- section 1
- s. 8
- section 4 of The Aeronautics Act
- ss. 91
- 92
- sections 91
- Section 132
- s. 1
- Section 1
- sections 8
- 132
- ss. 7
- section 8
- ss. 4
-
- 83.1
- ss. 654
- 735
- 754
- 1135
- sections 754
- 1125
- section 735
- Section 1121
- Section 1020
- section 1020
- s. 573
- s. 1013
- ss. 5
- s. 5
-
- ss. 82
- 83 of the Exchequer Court Act
- s. 82 of the Exchequer Court Act
- s. 46
- sections 82
- 83
- s. 19
- 15
- ss. 30
- 87
- 88
- s. 101
- s. 30
- s. 82
- s. 19 of the Exchequer Court Act
- s. 31
-
- s. 35
- s. 42
- s. 43
- section 43
- section 42
- Section 53
- s. 590
- 33
-
Unresolved citations
- section 132
- section 92
- s. 92
- s. 95
- s. 132
- s. 91
- section 132 of the British North America Act, 1867
- paragraphs (a)
- (h)
- (i)
- paragraph (b)
- paragraph (c)
- paragraph (d)
- paragraph (e)
- paragraphs (f)
- paragraph (a)
- s. 92 of the British North America Act
- (b)
- (c)
- paragraphs (b)
- paragraph (i)
- paragraph (f)
- s. 132 of the British North America Act
- s. 91 of the British North America Act
- s. 91 of the British North America Act, 1867
- s. 58 of the Mineral Act
- s. 48 of the Placer Mining Act
- Section 132 of the British North America Act
- s. 132 of that Act
- section 325 of the Railway Act
- s. 68 of the Insurance Act
- (C)
- s. 4 of the Dominion Act
- s. 29 of the provincial Act
- section 654 of the Cirminal Code
- s. 4 of the Opium and Narcotic Drugs Act
- s. 42 of Highway Traffic Act
- Sections 6
- 7 of the Water Carriage of Goods Act
- s. 1 of the Assessment Act
- s. 42 of said Act
- s. 85 of the Insurance Act
- s. 590 of the Municipal Act
- s. 123 of the Ontario Railway Act
- s. 14 of the Canadian Act
- section 160 of the Railway Act
- s. 39 of said Act
- sections 6
- s. 45 of the Trade- Mark and Design Act