Blais v. Paradis

allow the increase or reduction of such tolls and tariffs Re from time to time to meet increases or reductions, as the case may be, in the cost of operations of the railways; but RAs they are not called upon to approve these special com- Cannn J. petitive rates, which could, before and since the passing of the special Act, be filed without leave and freely by the railway companies under the general provisions of the Railway Act.

(b) Answering 1 (b).

My answer is in the negative. As a consequence, my answer to paragraph (c) of the first question is in the negative.

My answer to Question 2 is that, in my opinion, the Board's ruling of the 23rd September, 1932, is correct. My answer to Question 3 is in the affirmative.

In answer to Question 4, I say:

Competitive tariffs filed by other companies are lawful tariffs until disallowed, under the express terms of sections 331 and 332 of the Railway Act; and to reach this conclusion, it is not necessary to have regard to the general scope and terms of the Maritime Freight Rates Act or to subsection (3) of section 3 thereof.

BLAIS v. PARADIS

APPEAL by the defendant from the decision of the Court of King's Bench, appeal side, province of Quebec (1), dismissing the defendant's appeal from the judgment of the Superior Court, Gelly J., in favour of the plaintiff. The plaintiff's action was for $3,719.98, being a balance claimed for building materials furnished and work alleged to have been done by the day in fulfilment of a contract for alterations to a store.

The appellant Blais admitted he owed $3,208.71, of which $2,000 were paid during the course of the work and alleged he offered $1,208.71 before the action, as the balance due; he contended that these sums were due in virtue of a contract for a fixed price of $2,241, with certain extra work done during the execution of the contract, but that for each item of this extra work, prices were agreed and accepted by the parties. The Superior Court held and maintained the action for the total amount, less 5 per cent for negligence and default in supervising the work, which judgment was affirmed by the appellate court.

On the appeal to this Court, after hearing argument of counsel, oral judgment was delivered dismissing the appeal with costs.

THE NEW REGINA TRADING COM- PANY LIMITED

THE

CANADIAN

CREDIT

MEN'S'

TRUST ASSOCIATION, LIMITED,

THE CAN- ADIAN

CREDIT MEN'S TRUST

ASSOCIATION, LIMITED

R.S., S.C.R.]

MOTION to quash the appeal for want of jurisdiction. The appeal was by the plaintiff from the judgment of the Court of Appeal for Saskatchewan (1).

The plaintiff's tenant made an assignment under the Bankruptcy Act, R.S.C., 1927, c. 11, and the defendant was appointed trustee. Leave was given by Macdonald J., in Chambers, under the provisions of s. 24 of the Bankruptcy Act, to commence action against the defendant. The plaintiff claimed the sum of $5,250, being the amount equivalent to three months' rent of the premises, and interest thereon, the claim being made under the provisions of s. 126 of the Bankruptcy Act and ss. 41 to 48, inclusive, of the Landlord and Tenant Act, R.S.S., 1930,

There was also an alternative claim for the said sum against the defendant personally, because of its failure to give effect to the alleged preferential claim of the plaintiff upon, the assets of the trust estate, and a claim (not in issue in the present appeal) for damages alleged to have been suffered by reason of wrongful acts of defendant in subletting the premises.

The trial judge, Taylor J. (2), awarded the plaintiff the sum of $5,250 for three months' rent, out of the tenant's assets, in the hands of the defendant, in priority to the claims of all other creditors. He dismissed the plaintiff's other claims in the action.

The defendant, as trustee, appealed, and the Court of Appeal (1) allowed its appeal, set aside the judgment below, and dismissed the plaintifftiff's action (dismissing also the plaintiff's cross-appeal in respect of its other claims).

The plaintiff appealed to the Supreme Court of Canada. The plaintiff applied before Martin J.A., under s. 70 of the Supreme Court Act, R.S.C., 1927, c. 35, for the approval of a bond as security for the effectual prosecution of an C. appeal to the Supreme Court of Canada and for the payment of such costs, etc., as might be allowed against it. On that application the defendant's counsel objected to the approval of the bond, contending that the action was a " proceeding " in bankruptcy, and that, under the provisions of s. 174 of the Bankruptcy Act, no appeal lay from the Court of Appeal to the Supreme Court of Canada, unless special leave to appeal had been obtained from a judge of the Supreme Court. Martin J.A. (1) held that such contention was not well founded; that the action was an ordinary action, commenced in the Court of King's Bench, and the fact, that leave was obtained from the judge in bankruptcy to commence the action, under the provisions of s. 24 of the Bankruptcy Act, did not make the action, which was commenced pursuant to the leave, a " proceeding " in bankruptcy; that when leave is given to commence the action, it is brought in the appropriate court, and proceeds in that court, subject to the procedure therein and to any right of appeal which exists in that court or with respect to decisions rendered in that court; that the right of appeal in this action existed, not by reason of the Bankruptcy Act, but by virtue of the provisions of the Supreme Court Act, and the appeal was an exercise of the ordinary right of appeal which is given by the Supreme Court Act from a final judgment of the court of last resort in the province (Supreme Court Act, R.S.C., 1927, c. 35, s. He approved of the bond as security.

The defendant (respondent in this Court) now moved to quash the appeal for want of jurisdiction, on the ground taken by defendant before Martin J.A. on the said application for approval of bond.

F. Henderson K.C. for the motion.