Re Powers as to Wharfage Charges of the Board of Railway Commissioners for Canada

Vancouver Stock Exchange, are impliedly affected by the incidents of the practice and usage referred to. But there can be no recognized custom in opposition to an actual contract, and the special agreement of the parties must prevail.

What we have just said is sufficient to dispose of the appeal. The Court of Appeal awarded damages and, under J. the particular circumstances of the case, the question whether, on account of the technical breach, any loss was inflicted upon the respondent, was one of not inconsiderable nicety. In view of the terms of the order granting special leave to appeal, there would be no object in our expressing an opinion upon that or upon any other point, except so far as we have already stated.

The appeal is therefore dismissed. The question of costs was already provided for in the order granting leave.

Appeal dismissed.

CASE STATED BY THE BOARD OF RAILWAY

COMMISSIONERS FOR CANADA

IN the complaints of the Western Canada *May n. Flour Mills, Ltd., Calgary, and the Calgary Board of

Trade against proposed cancellation of the present arrangement of absorbing terminal charges at Vancouver on traffic destined to the Orient, such terminal charges to be added to the rail and ocean rate, except on shipments from Manitoba points;

IN THE Order No. 36108, dated February 19th,

1925, suspending, pending hearing by the Board, the

C.P.R. Co's. proposed amendment, subsection "D", Sup.

10, to its tariff C.R.C. No. W-2755, and the C.N.R. Co's.

proposed amendment, Item 10-A, Sup. No. 2 to tariff

C.R.C. No. W-401; File No. 33564.1;

IN THE the application of the New Westminster

Harbour Commissioners, New Westminster, B.C., that the

S.C.R.]

prevailing practice of the Canadian National Railways CASE and the Canadian Pacific Railway Company of absorbing one-half wharfage, or 25 cents per ton, re handling of export flour through the ports of Vancouver and Vic- toria, be extended to include the port of New Westminre ster;

AS

AND

J.-I have carefully examined the sections of the Act dealing with the powers of the Board, and have come to the conclusion that (excepting the powers conferred by section 358) the function of the Board as to tolls and charges is limited to regulating charges for carriage and for those other services which are incidental to carriage, as railway services, within the meaning of the Act. My conclusion would have been that, independently of section 358, the service in question is not such a service. Section 358, I think, puts the matter beyond doubt. The office of interpretative sections is well known. The definition of " toll " cannot properly be construed as declaring that any wharfage service is a railway service in the above sense.

I confess I have had some difficulty as to the form of the question. I have read it, however, as framed on the assumption that section 358 is to be read in conjunction with the other pertinent sections of the statute; reading it in that sense the answer is in the affirmative.

Question answered in the affirmative. Solicitor for the Board of Railway Commissioners for Canada: A. G. Blair.

Solicitor for the Attorney-General of Canada: W. Stuart Edwards.

Solicitor for the Canadian Pacific Railway Company: E. P. Flintoft.

Solicitor for the Canadian National Railways: Alistair Fraser.

British Columbia (1), affirming the decision of Macdonald J. (2) and maintaining the respondent's action.

The respondent brought an action to recover $8,750.68 alleged to be due and payable by the appellant for taxes upon its property and income. The appellant claimed to be entitled to a substantial set off or allowance. The appellant was carrying on business as manufacturer and dealer in lumber products, at the city of Vancouver. insured with loss and damage to its plant and property by fire, and also against loss or damage which might be sustained in the event of its plant being shut .down and business suspended in consequence of fire and damage. The insurance last mentioned is commonly known as " use and occupancy insurance."

It was effected by the appellant under such policies to the total amount of $60,000 in respect of loss of " net profits," and $84,000 in respect of " fixed charges."

The plant and premises of the appellant were destroyed by fire in August, 1923, and, by adjustment with the insurance companies under the last mentioned policies, the appellant was paid $43,000 for loss of " net profits " and $52,427.90 in respect of " fixed B.C. Fm & charges," making a total, thus paid by the insurance com- Co. panies to the appellant, of $95,427.90.

The appellant TE KING. without taking legal advice upon the question as to whether these insurance moneys were taxable or not, included, in its "return"

for the year 1923, the sum of $41,293.20 of such moneys, and in the year 1924 the sum of $33,706.80.

The appellant, without at the time questioning its liability, voluntarily paid income tax on these amounts and sought in the respondent's action an allowance or set-off in respect of such payments.

The definition of " income " in the Taxation Act, R.S. B.C., 1924, c. 254, s. 2, reads as follows:- " Income " includes the gross amount earned, derived, accrued, or received from any source whatsoever, the product of capital, labour, industry, or skill; and includes all wages, salaries, emoluments, and annuities accrued due from any source whatsoever (including the salaries, indemnities, or other remunerations of members of the Senate and House of Commons of the Dominion and officers thereof, members of the Provincial Legislative Councils and Assemblies and Municipal Councils, Commissions, or Boards of Management, and of any Judge of any Dominion or Provincial Court, whether the said salaries, indemnities, or other remunerations are paid out of the revenues of His Majesty in right of the Dominion or in right of any Province thereof or by any person); and includes all income, revenue, rent, interest or profits arising, received, gained, acquired, or accrued due from bonds, notes, stocks, debentures, or shares (including the stocks, bonds, or debentures of the Dominion or of any Province of the Dominion, or of any municipality), or from real and personal property, or from money lent, deposited, or invested, or from any indebtedness secured by deed, mortgage, contract, agreement, or account, or from any venture, business, or profession of any kind whatsoever:

ANGLIN C.J.C.-We are of the opinion that this appeal should be allowed with costs throughout.

The British Columbia Taxation Act nowhere provides for taxation of moneys paid by way of indemnity for profits not earned, but irretrievably lost.

The moneys in question here represent insurance placed by the appellant in order to meet the possibility of destruction by fire of its means of earning profits. That event occurred, with the result that the appellant made no profits