Judgment of the Court
J.-This action arose out of what may be termed, perhaps inaccurately but for convenience, a collision between a motor car and a bicycle on a public highway at a point a short distance outside the westerly limits of the city of Toronto. The bicycle was being ridden by a boy of fourteen years and he was undoubtedly seriously injured. His widowed mother brought this action, as his next friend, for damages for the injuries sustained by him and she joined personally as a plaintiff in the action to recover payments made by her for medical and hospital services and sundry other expenses incurred by her as a result of the accident. The defendant is the owner and driver of the motor car.
It is common ground that the motor car and the bicycle came into collision on Queen street (which runs east and west) though the exact location of the collision on Queen street having regard to Macdonald avenue (which runs north and south) is highly controversial on the evidence and is in large measure the turning point in the case. Queen street has a paved highway, the concrete being 23 feet 9 inches wide. It is what is called a " through" highway and is a much travelled road. Macdonald avenue has neither a paved road nor sidewalks.
A cinder path serves for pedestrians. There is a noticeable incline on Macdonald avenue as it runs southerly into Queen street and there is a "Stop"
sign on Macdonald avenue close to the point of its intersection with Queen street. The defendant was driving his car westerly along Queen street and the boy on the bicycle had come down Macdonald avenue on the cinder path. There were two theories advanced as to the exact location and cause of the accident. The defendant's theory is that the boy on the bicycle came down the cinder path on Macdonald avenue at a fast rate of speed, entered upon Queen street without stopping and ran right into the defendant's motor car just as the motor car was passing Macdonald avenue, striking the motor car in the centre of one of the side doors of the car. The other -J theory, advanced on behalf of the boy, is that he had turned D s off Macdonald avenue and was at the time of the collision proceeding westerly along Queen street, about 4 or 5 feet from the northerly side of the paved road, when at a point about 50 feet west of Macdonald avenue the motor car overtook him; the right front bumper and fender of the motor car striking the bicycle with such force as to cause the injuries. If the latter theory is correct, the motor car and the bicycle were travelling in more or less parallel lines along Queen street for a distance of some 50 feet. The two theories are obviously irreconcilable.
There were very few witnesses of the accident and all persons who had any real knowledge of the facts and circumstances appear to have been called at the trial. In the very nature of a sudden accident of this kind it is not surprising that there was a very considerable conflict in the testimony as to the exact details and measurements. The case, which was essentially one of fact for a jury, was tried with a jury.
The following were the questions submitted to the jury and their answers:
1. Has the defendant, Taylor Storey, satisfied you that the accident in question did not arise through any negligence or improper conduct on his part? Answer yes or no.
A. No.
2. If your answer to Question No. 1 is "no,"
then state fully wherein the driver was guilty of negligence which caused the accident to the plaintiff. A. In not exercising the proper amount of care to avoid striking boy who was on the highway going west.
3. If your answer to Question No. 1 is " no," then state if in your opinion the infant plaintiff could have avoided the accident by exercising reasonable care. Answer yes or no.
A. No.
4. If your answer to Question No. 3 is "yes," then state fully what the plaintiff could and should have done which would have avoided the accident. A. (No answer).
5. At what amount do you assess damages? A. $15,000.
6. If your answer to Question No. 1 is "no," and to Question No. 3 your answer is " yes," then state if you find it practicable to apportion the respective degrees of fault as between the driver and the infant plaintiff.
Answer yes or no.
(No answer).
7. If your answer to Question No. 6 is "yes," then state the respective degrees of fault.
D river ..............................................
Per cent. Plaintiff .............................................
Per cent. (No answer).
It is plain that the jury accepted the theory advanced on behalf of the boy, in that the jury specifically state that the defendant did not exercise " the proper amount of care to avoid striking the boy who was on the highway going west."
Apart from the question of the nature and extent of the physical injuries suffered by the boy, the whole case was developed in evidence and put to the jury upon the two conflicting theories of the collision, and if the jury had accepted the defendant's theory that the boy on the bicycle ran right into the motor car at the intersection of Macdonald avenue with Queen street, they undoubtedly would have said so. Their words " who was on the highway going west" must be taken to express the acceptance by them of the other theory, that the accident did not occur at the intersection but some fifty feet west of the intersection while the boy was proceeding westerly along Queen street. The issue was very fairly, and I think completely, put to the jury by the learned trial judge. In fact he recalled the jury after some discussion with counsel and charged them explicitly thus:
And again,
Not only did the jury expressly find that the accident was caused by the defendant "not exercising the proper amount of care to avoid striking the boy," but specifically found that the boy "could not have avoided the accident by exercising reasonable care."
There was evidence, and in fact a good deal of evidence, in support of the theory that the defendant struck the boy on the bicycle on Queen street about fifty feet west of Macdonald avenue while the boy was proceeding along Queen street in a westerly direction. It is quite impossible for us to say that the jury could not properly find, viewing the whole evidence reasonably, that the place of the accident was where they obviously put it. The evidence was conflicting but the jury was the tribunal entrusted with the duty of determining the issues of fact and their conclusions on such matters are not to be disturbed merely because they are not the conclusions which judges sitting in courts of appeal might themselves have arrived at, to adopt the words of Lord Atkinson in Toronto Railway Co. v. King and another (1).
Counsel for the defendant very properly urged before us the duty in law that rested upon the boy to stop his bicycle at the foot of Macdonald avenue before entering upon Queen street, a through highway. But that point was thoroughly canvassed in evidence at the trial and the jury, in our view, was properly directed upon it. It is to be observed that the defendant stated in evidence that he was familiar with the district at Queen street and Macdonald avenue; that he knew Macdonald avenue was dangerous and a well used highway; that he would naturally keep a lookout for that particular street; that when he was about forty feet east from Macdonald avenue he observed the boy coming down Macdonald avenue on the bicycle; that he thought the boy's speed was very fast; and that, while he knew the boy should stop at the intersection, he did not think that the boy in fact would be able to stop. It is one thing for a motor car driver to assume that another person will comply with the law and stop before entering upon a through highway and to govern his conduct in relation to that other person on that assumption; it is quite a different thing for the driver of the motor car to admit that he observed the other person and realized not only the unlikelihood but the apparent inability of the other person at the given time and under given circumstances to stop.
Now, as to the injuries to the boy. Dr. McKenzie of Toronto, an outstanding brain specialist, described the injuries to the boy under two headings. There was evidence of local injury to the brain in the back part of the head, and, apart from that, there was evidence of a severe general injury to the brain as a whole, a severe concussion. A fragment of bone, probably one and one-half inch, was driven through the covering of the brain into the brain S and when that fragment of bone was removed the covering D---J over the brain was badly damaged and the underlying brain was pulped and damaged, and part of it oozed out and had to be removed. There was probability of trouble from injury to the frontal region of the brain and more than a possibility of the boy developing epileptic seizures. The defendant appealed to the Court of Appeal for Ontario against the judgment in favour of the plaintiffs directed to be entered by the trial judge upon the answers of the jury to the questions submitted. The Court of Appeal unanimously set aside the judgment and directed a new trial. From that judgment the plaintiffs appealed to this Court. It is necessary, therefore, that we examine the written reasons given by the Court of Appeal for their The Court did not discuss the problem that was presented to the jury at the trial as to which of two theories of the accident was to be accepted or the real effect of the language of the jury as giving expression to the acceptance of one or other of the theories. The judgment does not discuss the evidence except to state as facts that the collision took place " at or near " the intersection and that the plaintiff did not stop before entering the intersection and " apparently struck the front door of the defendant's car with much force denting the door and suffering somewhat severe injury."
The Court of Appeal obviously took a view of the evidence that was rejected upon conflicting evidence by the jury. The Court concluded that "it is almost impossible to form any opinion as to exactly what had taken place."
Assuming that to be so, then the defendant had not satisfied the statutory obligation, which rested upon him as the owner and driver of the motor car, of establishing that the accident did not arise through his negligence or improper conduct (sec. 42 (1) of the Highwayj Traffic Act, R.S.O. 1927, ch. 251), and that is exactly what the jury said in answer to the first question.
Upon that state of fact, the plaintiffs were entitled to judgment. In our view, it was not impossible for the jury to come to a conclusion as to exactly what had taken place.
There are difficulties in the case, as there are in all these motor collision cases, but that does not mean that the jury is not entitled to accept one of two or more -J conflicting stories of what in fact took place.
The reasons D for the judgment appealed against proceed further to state that " the medical evidence was extremely confusing, some of the doctors and the mother " suggesting that the disposition of the boy has been changed as a result of the accident. As a matter of fact there were only two doctors called, and both of these on behalf of the plaintiffs. Dr. McKenzie was the only doctor called to give opinion evidence. Dr. Dalrymple merely spoke of the condition of the boy as he saw and examined him in the hospital. We cannot, with respect, agree that the medical evidence was in any way confusing. The judgment further proceeds to state that " there is no corroboration of the mother's evidence as to the character of the boy before the accident." But there can be no legal consequence to the absence of corroboration of statements by the mother as to the disposition of the boy before and after the accident. jury saw both the mother and the boy and heard their evidence, and the weight to be attached to their evidence was entirely a matter for the jury. The judgment further states the amount of damages was an " extraordinary large amount" but does not say that in the opinion of the Court the amount was either unreasonable or excessive. amount is large but not so large as to disclose an entirely wrong principle in its ascertainment or an entirely unreasonable view of the evidence. The Court expressed the view that such damages "could only be justified by a finding of serious permanent injury."
In our view, there is much more in the evidence than a mere possibility of a very serious permanent injury. The judgment concluded that the trial already had was of a " generally unsatisfactory nature " and that there was the possibility of the production of more satisfactory evidence at a new hearing." Neither counsel before us could offer any suggestion as to the possibility of the production of more satisfactory evidence on a new trial than was had on the first trial, and we are at a loss to understand what sort of evidence is now available that was not available and given at the first trial. There were two affidavits sought to be used by the defendant in the Court of Appeal on an application for a new trial, but as these affidavits were not admitted in that Court and were included in the appeal book, by order of DavsJ. Mr. Justice Middleton, only for convenience if this Court should think they should have been received in the Court below, this Court took the same view as the Court below that these affidavits could not be read.
With the greatest respect, we cannot agree with the view that the trial was of a generally unsatisfactory nature, and in our opinion the Court of Appeal was not justified in directing a new trial upon any of the grounds referred to in the reasons for their judgment or upon any other ground discussed before us. There was, in our view, no "substantial wrong or miscarriage" that would have entitled the Court below under sec. 27 of the Ontario Judicature Act, R.S.O. 1927, ch. 88, to grant a new trial. Lord Wright in the House of Lords in the very recent case of Mechanical and General Inventions Co. Ltd. v. Austin (1) said: a The appeal must be allowed and the judgment of the learned trial judge restored in so far as the infant plaintiff recovered against the defendant the sum of $14,330.25 to be paid into court to his credit upon the terms of the The defendant having moved to quash the appeal to this Court of the boy's mother as a plaintiff in respect of her recovery at the trial of the sum of $669.75, her counsel abandoned her appeal as being an amount in controversy insufficient to give jurisdiction without special leave, and the judgment of the Court of Appeal therefore stands in respect of the rights of the plaintiff mother.
The defendant raised before us on a substantive motion, which we enlarged to consider on the hearing of the main appeal, the question of the jurisdiction of this Court to entertain the appeal, upon the ground that the order of the Court sought to be appealed from was " a judgment or order made in the exercise of judicial discretion " and therefore not appealable to this Court under sec. 38 of the Supremne Court Act.
Sec. 36 expressly gives a right of appeal from a judgment " directing a new trial." reasons given by the Court of Appeal for its order direct- Da-J. ing a new trial were, as in Varette v. Sainsbury (1), insufficient grounds in law upon which to justify an order for a new trial, and the subject matter was not one which by special statute or by its very nature was merely a matter of discretion for the Court below. The motion to quash is therefore dismissed.
The costs of the infant plaintiff of this appeal, including the costs of the defendant's motion to quash, and his costs in the courts below, must be paid by the defendant. Appeal allowed with costs. Solicitors for the appellants: Nesbitt, McMurtry & Ganong. Solicitors for the respondent: Macdonald & Macintosh. ACCUMULATION OF INCOME
See WILL 2.
ACQUIESCENCE
ADMINISTRATION OF ESTATES
AGENCY - Banks and banking-Power of attorney-Exercise of for agent's own benefit-Agent paying his own debt to bank with cheque drawn on principal's account - Estoppel - Acquiescence - Ratification-Conduct of principal.]- The appellant, a widow, who had a savings account with the respondent bank, gave a power of attorney to one
M. authorizing him "for me and in my name to draw and sign cheques on the said bank
* * * " M. was indebted to the respondent bank and on being pressed for payment told the respondent's local manager that he " could borrow it from Mrs. Begley," the appellant. Shortly thereafter, after the appellant had left on a visit to Ontario,
M. told the bank's accountant, who was aware of what had been said previously between M. and the manager, that he,
M., wished to pay off his debt. Under
M.'s instructions, the accountant made out a promissory note payable to the appellant on demand which M. signed for the amount of his debt to the bank.
M. thereupon gave the bank a cheque on the appellant's account, signed by him as her attorney. The cheque was charged up against the appellant's account and M.'s indebtedness to the bank was cancelled, the note was left with the bank. The note was renewed twice by
M. on July 31st, 1931, and in September,
Alleging that she had not given
M. authority to borrow or use her money for his own use, the appellant sued the bank respondent on December 29th,
The trial judge maintained the action; but the Appellate Division reversed his judgment on the ground that the appellant's subsequent conduct in dealing with M. and her silence towards the bank constituted a complete estoppel.
-Held, in accord with the judgment of the Appellate Division ([19341 1 W.W.R.
689) and the trial judge, that the respondent bank had no right as against
808-3
AGENCY-Concluded the appellant to retain the monies so paid over to it by M.; but Held, reversing the judgment of the Appellate Division, Cannon J. dissenting, that, according to the facts and circumstances of this case, the appellant's conduct did not constitute estoppel or ratification.-Per Cannon J. (dissenting).-Both on the ground of ratification and of estoppel, the respondent bank's defense is well founded, according to the facts of the case. Jurisdiction-Granting of special leave to appeal-Supreme Court Act (R.S.C. 1927, c. 85), s. 41 (c).]-The applicant, having received, as executor of an estate left by a person resident in Ontario, income on behalf of and payable to persons resident out of Ontario, and being assessed by respondent city in respect of same under the Ontario Assessment Act, claimed an exemption of $1,500 in respect of the income received by it in 1932 on behalf of and payable to each such person. The Court of Appeal for Ontario held against the claim for exemption; and refused special leave to appeal to this Court. The applicant then applied to this Court for special leave to appeal.-Held, This Court has jurisdiction to grant such leave, under s. 41 (c) of the Supreme Court Act (R.S.C. 1927, c. 35); and, in all the circumstances, leave should be granted.
2-Jurisdiction-Dismissal of action in Exchequer Court, when called for trial and suppliant not ready to proceed and asking adjournment-Appeal by suppliant to Supreme Court of Canada- Applicability of s. 38 of Supreme Court Act (R.S.C. 1927, c. 35)-" Final judgment" within s. 82 (4)
of Exchequer Court Act (R.S.C. 1927, c. 34)-Whether case one for exercise of Court's power to dismiss appeal summarily]-When the action, which was by way of petition right in the Exchequer Court, came on for trial, counsel for the suppliant moved for postponement, and the trial judge gave directions for the trial to be had within a certain time.
When the case later came on for trial, counsel for the APPEAL-Continued suppliant again sought postponement, stating he was not prepared to proceed, as attendance of his witnesses could not yet be procured. Thereupon the petition of right was dismissed.
The suppliant appealed to the Supreme Court of Canada. Respondent moved to quash the appeal for want of jurisdiction, on the grounds that the judgment appealed from was not a final judgment, and that it was in exercise of judicial discretion within s. 38 of the Supreme Court Act.- Held: The Court had jurisdiction to hear the appeal, and the motion to quash should be dismissed.-The jurisdiction of the Supreme Court of Canada in respect of appeals in exercise of a right of appeal given by the Exchequer Court
Act is not affected by s. 38 of the
S. 38 is limited in its application to those cases in respect of which the jurisdiction is set forth and defined immediately or referentially by the Supreme Court Act.- The judgment appealed from was a final judgment within the meaning of s. 82 (4)
of the Exchequer Court Act.-The case was not one in which the Court's power to dismiss summarily an appeal should be exercised.
Co. v. THE KING........
3-Practice and procedure - Jury trial-Misdirection-Ground of appeal not stated in the notice of appeal to appellate court-Rule 828 of Alberta- Such ground not open before the
Supreme Court of Canada.]-Where one of the grounds of appeal to this Court is misdirection by the trial judge in his charge to the jury, such ground should have been stated with reasonable definiteness in the notice of appeal to the appellate court in accordance with rule
323 of Alberta; and if appellant has failed to do so, such ground of appeal will not be open to him in this Court.
v. ......
4-Findings of facts by trial judge- Concurred in by appellate court-Onus upon appellant to show errors of courts below.J-When, on an appeal to this
Court, the findings of facts of the trial judge have been concurred in by the appellate court, this Court will not interfere unless the appellant establishes that the courts below were clearly wrong in the manner in which they disposed of the issues of law or facts raised in the appeal. v.
5-Jurisdiction
Res judicata
Arbi.
tration-Action for balance due under contract-Dismissal of application to set aside default judgment and give leave to
APPEAL-Concluded defend-Appeal dismissed from refusal to set aside judgment, but reference made under terms of contract-Reference, and report of findings-Objection to jurisdiction-Confirmation of report-Appeal therefrom ......................... 6---Objection on appeal that specific questions not put to jury.......... 7-Reversal of findings at trial.. 231 8-Criminal law-Leave to appeal to Supreme Court of Canada-Court of appeal judgment conflicting with judgment of another court of appeal "in a like case "--Judgments must be in criminal matters-The Supreme Court of Canada is a "court of appeal" within section 1095 Cr. C................ See 5. 9- Criminal law-Appeal from conviction to Court of Appeal and also motion by accused in that court for leave to adduce new evidence-Dissenting opinion in the judgment dismissing motion- Conviction unanimously affirmed by appellate court - Whether appeal to Supreme Court of Canada-Section 1028 Cr.C.......................
See 7. 10-Collision between motor car and bicycle-Conflict of evidence as to manner and place of accident-Judgment at trial on jury's findings-New trial ordered by Court of Appeal-Judgment at trial restored by Supreme Court of Canada- Jurisdiction of Supreme Court of Canada challenged on ground that judgment of Court of Appeal was " made in the exercise of judicial discretion" within 8. 88 of Supreme Court Act (R.S.C. 1927, c. 85)...................... 11-See 2; 2. ARBITRATION
ASSESSMENT AND TAXATION-Income tax-Taxation of mining companies-Allowance for depletion-Acquisition costs-Determination of-Appeal taken under s. 6 (4) of Income Tax Act, B.C. 1982, c. 68-Finality of decision of Lieutenant-Governor in Council-Mandamus-Taxation Act, R.S.B.C. 1924, c. 264, s. 44, ss. 4, as amended.]-In 1924 the Pioneer Gold Mines Limited gave an option to one Sloan for its mining property for $100,000.
In 1928, the Pion- ASSESSMENT AND TAXATION-Coneer Gold Mines of B.C. Limited was incorporated with a capital stock of
$2,500,000 divided into 2,500,000 shares of 81 each.
On March 30, 1928, Sloan assigned to the new company his option for 1,600,000 shares in that company.
The Income Tax Act of British Columbia
(Statutes of 1932, c. 53, s. 6) enables the
Commissioner of Income Tax to make certain deductions from a mine owner's income on account of depletion of the mines, thus involving the fixing of the costs to the taxpayer of the acquisition of the mines. The Commissioner of
Income Tax fixed the acquisition costs to the new company at $100,000. The new company appealed to the Lieutenant-Governor in Council under section
44, subsection 4, of the Taxation Act
(R.S.B.C. 1924, c. 254) as amended, from the decision of the Minister of Finance, under clause (p) of subs. 1 and clause
(a) of subs. 3 of section 44, fixing the acquisition costs "at too low figure of
$100,000 instead of $2,500,000 for the purpose of assessment of the company's income for the year ending March 31,
1931."
The appeal was disposed of by an Order in Council, increasing the amount from $100,000 to $200,000. The new company, being still dissatisfied, obtained a writ of mandamus from D. A.
McDonald, J., commanding the Minister of Finance to ascertain and take into consideration the acquisition costs to the new company of the properties acquired by it under the above agreement of March 30, 1928.
Subsection 4 of section 6 of the Income Tax Act provides that "an appeal from any decision of the Minister (of Finance)
* * may be taken to the Lieutenant-Governor in Council, who after hearing the parties interested, may either confirm or amend the decision of the
Minister and the decision of the Lieutenant-Governor in Council shall be final."
The Court of Appeal reversed the judgment of McDonald, J.-Held, affirming the judgment appealed from
(48 B.C. Rep. 412), that mandamus did not lie in this case. Under section 6 (4)
of the Income Tax Act, the decision by the Minister of Finance was appealable;
a competent appeal was taken from it;
the appeal was considered by the Lieutenant-Governor in Council in the exercise of his statutory jurisdiction and powers, who pronounced a decision upon the matters in dispute which the Act declares to be final. Such decision was binding upon the Minister of Finance as well as upon the appellant company;
and a mandamus requiring him to reconsider questions settled by the Order
ASSESSMENT AND TAXATION-Conin Council would have been a mandamus requiring him several months after he became functus ofbicio, to commit a breach of the law and to perform an act which, by force of the statute, must necessarily be inoperative. KING
MINES BRITISH v. THE MINISTER
FIN- 2-Crown-Assessment of Halifax Harbour Commissioners for business tax as "occupier" within s. 857 (1) of Halifax City Charter-Occupation for the Crown Halifax Harbour Commissioners' Act, 1927, c. 68 (Dom.).1-The Halifax Harbour Commissioners, who occupy the Crown property of Halifax Harbour for the exercise of their powers under 17 Geo. V. (1927, Dom.), c. 58, are not assessable for business tax as an "occupier " within s. 357 (1) of the Halifax City Charter (1931).
The relation of the Commissioners to the Crown in respect of their occupation of the harbour property is of such a character as to constitute that occupation an occupation "for the Crown" in the sense of the principle stated in The Queen v. McCann, L.R. 3 Q.B. 141, at 145-6, and as elucidated in its application in other cases. (Coomber v. Justices of Berks, 9 App. Cas. 61, and other cases, cited. Fox v. Government of Newfoundland, [18981 A.C. 667, and Metropolitan Meat Industry Board v. Sheedy, [1927] A.C. 899, distinguished, in view of the constitution, duties and powers of the bodies there in question).
Provincial legislation to tax the Commissioners as occupier of the harbour property would be ultra vires; and the general taxing words of the City Charter should be read as excluding such a tax. CrrY or SIONERs.......................... Waterpower company-Flooded land-Whether assessable-Actual value-Arts. 503, 685 C.C.-Cities and Towns Act, R.S.Q. 1925, c. 102, 485, 488, 500, 504, 510, 511- Watercourses Act, R.S.Q. 1925, c. 46, se. 16, 17, 18.1-Land which had been flooded by a power company in order to raise the level of a river to a certain elevation for the purpose of establishing a power house is assessable and must be given some actual or real value.-Duff CJ., after commenting on the meaning of the words " actual value " when used for the purpose of defining the valuation of property for taxation purposes, was of the opinion, although not dissenting ASSESSMENT AND TAXATION-Conformally form the judgment of the majority of the Court, that the assessors of the respondent municipality had not performed the act of valuation in respect of the submerged land in conformity with sections 485 and 488 of the
Cities and Towns Act, and, consequently, that there was no valid assessment in point of law; and, also, that this Court had no material before it by which it was able to perform itself the act of assessment.-Per Rinfret,
Crocket and Hughes JJ.-Such flooded land cannot be valued as having become industrialized as part of the water-power levelopment of the company, when the water-power site and generating plant are situate outside the municipality within which the land is included; and the value of such flooded land cannot be the same as that of non-flooded land belonging to the company adjacent thereto. But, in order to avoid further litigation and costs, considering the elements contained in the record, the valuation placed on the flooded land by the judgment of the appellate court should reduced by one-half.
..............
4- Income Tax-Exemption-Assessment by municipality for income received by a corporation as executor in
Ontario on behalf of and payable to persons resident outside of Ontario- Assessment Act, R.S.O. 1927, c. 238, as amended in 1930, c. 46-Exemption under s. 4 (22).1-The appellant corporation, as executor of an estate, received in Ontario, during the year 1932, income on behalf of and payable to persons resident outside of Ontario. It was assessed in respect of such income by the respondent city, and the questions for determination were, whether appellant was entitled to exemption under s. 4 (22) of the Assessment Act (R.S.O. 1927, c. 238, as amended in 1930, c. 46), and, if so, to what extent.-Held: For the purposes of such assessment, appellant was not a
"person," within the phrase "all other persons" in said s. 4 (22) and was not entitled to exemption thereunder. (The words "income derived" and "income received," as used in the Act, and the distinction indicated, from the Act and from the history of the legislation, in the use of those phrases, discussed, and the distinction, as made in McLeod v. City of Windsor, [19231 Can. S.C.R. 696, applied).
CITY
5- War Revenue Act--Stock exchange sheets
"news- ASSESSMENT AND TAXATION-Conpapers "-Special War Revenue Act, R.S.C., 1927, c. 179, ss. 85, 86, 89.1-The daily stock exchange sheets, issued in respect of transactions on the Montreal Stock Exchange and the Montreal Curb Exchange, and the weekly comparative reviews of transactions on the two exchanges fall within the meaning of the word " newspapers " as used in schedule III of the Special War Revenue Act and therefore exempt from taxation under the provisions of that Act. THE 6- Municipal corporation-Agreement with owner of property-Free cession of soil for street-Property to be considered as land under cultivation-Nullity-Ultra vires............................ ASSURANCE
FUND
Liability of Land Registry Act, B.C.......... See REAL BANKRUPTCY-Trusts and trustees- Real property-Person becoming registered owner of land, and making mortgage thereon (with covenant for payment), for benefit of company-Transfer from him to company made but not registered-Authorized assignment by company under Dominion Bankruptcy Act- Indemnity claimed by registered owner (as trustee) against company's trustee in bankruptcy (as cestui que trust) against liabilities in connection with land and mortgage.]-W. Co. purchased lands in Winnipeg in the province of Manitoba, and title was taken in appellant's name. Appellant made a mortgage, for W. Co.'s benefit, on part of the lands, with the usual covenant for payment. Appellant delivered to W. Co. transfers of the lands. These were not registered. In 1931 W. Co. made an authorized assignment under the Dominion Bankruptcy Act, and respondent was appointed trustee, and became possessed of the said transfers and of certain documents of title.
The assignment was duly registered against the lands in the land titles office. On instructions from respondent's clerk (not authorized by the inspectors of the estate) to get title in respondent's name, respondent's solicitor (who did not then know that part of these lands was mortgaged) prepared a transfer direct (to save expense) from appellant to respondent, which was executed but was found objectionable in certain respects in the land titles office and was not registered, and BANKRUPTCY-Continued respondent did not pursue this further.
It offered to return the transfer.
Respondent took over the management of the lands, collected rents, and paid thereout certain interest, taxes and insurance premiums. Appellant claimed that respondent had assumed the relation to appellant of cestui que trust and was bound to indemnify him against liabilities in connection with the trust property, including liability under appellant's mortgage covenant.-Held: The claim for indemnity failed. In view of respondent's position under the Bankruptcy Act (provisions of which were considered and discussed in this regard), the equitable rule as to a trustee's right to indemnity from a beneficial owner was not applicable to the case. Graham v. Edge, 20 Q.B.D. 683, cited. Hardoon v. Belilios, [19011 A.C. 118, and Castellan v. Hobson, L.R. 10 Eq. 47, distinguished.
of the Court of Appeal for
Manitoba, 42 Man. R. 69, affirmed.
ELLIorr v.
MEN'S
TRuST LTD.............
2-Motion for leave to appeal-Whether ecclesiastical bodies or institutions within the ambit of the Bankruptcy Act a " corporation" or " a person "-Bankruptcy Act, section 2 (cc, k.
p.).]-Ecclesiastical bodies or institutions are not included within the ambit of a bankruptcy statute essentially designed for the administration of the property of persons or corporations carrying on business. The Bankruptcy
Act was never intended to apply to a parish or church or other religious body.
CuRg et
3--Sale-Deed of sale-Void after bankruptcy-Agreement by trustee with conditions-Whether legal-Duty of the trustee-Section 48 of the Bankruptcy
Act-Articles 2058, 2061 C.C.1-The appellant brought a petitory action against the respondent for the recovery of an immovable known as the Lord Renfrew
Apartments. In September, 1930, the respondent was owner of those apartments and, as security for the loan of
$150,000 made to him at that time he hypothecated the apartments in favour of Canada Permanent Mortgage Corporation. The sum of 8150,000 was repayable in capital and interest, in equal monthly instalments of $1,300.50 each. A short time later, the apartments were sold by the respondent to the appellant for the sum of $27,851.57 and the deed of sale provided that the purchaser would not be personally responsible for
BANKRUPTCY-Continued the amount of the bypothec. The appellant was in possession of the property for about a year, when financial difficulties intervened.
He did not pay the monthly instalments due to the Mortgage Corporation for some months and allowed municipal taxes to accrue. Finally, he went into bankruptcy. The Mortgage Corporation pressed for payment; and the trustee and inspectors of appellant's bankrupt estate, unable to raise funds or secure a purchaser for the property, secured permission from the Court to sell the property under the formalities of the Bankruptcy Act and placed advertisements for its sale in the Quebec Official Gazette.
The charges against the property at that time consisted of a balance of the loan then in excess of $140,000, the indemnity of 6 per cent due to the lender in case of a forced sale, the taxes due to the city of Montreal of approximately $10,000, the taxes to the Provincial Government of $4,000 and the fees and commission due to the solicitor for the bankrupt estate and the trustee.
The trustee valued the property at $360,000, but, being of the opinion that the time was not opportune for a sale in view of the condition of the real estate market and fearing that any equity for the estate would be lost if a forced sale took place, he attempted to secure a delay from the Mortgage Corporation for a period of approximately one year, when he hoped that a more receptive market might be found. Following negotiations, an agreement was reached on March 4, 1932, whereby the Mortgage Corporation gave to the trustee an extension of approximately one year for repayment of the past due portion of the loan. This agreement was made possible by the intervention of respondent who would have been responsible for any deficiency between the sale price of the property and the charges thereon. By the agreement the respondent paid to the Mortgage Corporation the arrears of capital and interest on the loan and also paid the arrears of taxes, the fees and expenses of the trustees and solicitors and other incidental expenses. The conditions of the agreement were that the respondent should hold and administer the property until January 25, 1933, but that on that date, or any time prior thereto, the trustee of the appellant's bankrupt estate or his nominee would have the right to resume possession of the property and to keep title by repaying the respondent's disbursements and assuming payment of the debt to the Mortgage Corporation. If the trustee or his nominee failed to do this within the stipulated delay, the BANKRUPTCY-Continued property was to be vested in the respondent. The arrangement of the 4th of March, 1932, was previously approved by the inspectors of the estate, and the trustee was authorized to sign the agreement by the registrar in bankruptcy.
The appellant was made aware of the negotiations and was informed of the trustee's intention to enter into such agreement. Subsequently the appellant succeeded in having a proposal of composition accepted by his creditors and approved by the bankruptcy court. On the 31st of May, 1932, he secured his discharge, the receiving order was cancelled and the court further ordered that all of the appellant's assets, including any equities of redemption and the interest of the appellant in any property then vested in the trustee, should be returned to him. The trustee re-transferred to appellant his assets and included in the transfer the Lord Renfrew
Apartments. On the 27th of July, 1932, and again on the 22nd of November,
1932, the appellant made attempts to comply with the conditions of the agreement of the 4th of March, 1932, and on the latter date the appellant's lawyers wrote to the respondent asking him to furnish them immediately a statement of all disbursements made by him. The respondent answered that he was forwarding such an account to a firm of lawyers who under the agreement had been constituted respondent's attorneys.
On January 20, 1933, the appellant instituted a petitory action against the respondent, claiming back the apartments as owner, invoking no other title than the original deed of sale from the respondent to him, dated the 26th of
November, 1930. The delay accorded to the trustee or his nominee to retake possession of the property upon repayment of the respondent's disbursements would have expired on the 25th day of
January, 1933, or four days after the service of the action. Before the date fixed for the respondent's appearance, the time allowed for repossession of the property by the trustee or his nominee had expired.-Held that the appellant's action should be dismissed.
The title deriving to the appellant from the deed of sale of the 26th of November, 1930, ceased to have any effect in his favour from the moment that, by force of the bankruptcy order, the Lord Renfrew
Apartments became vested in the trustee; and, by the agreement of the 4th of March, 1932, the respondent became the absolute owner of the apartments, unless, under its terms, the trustee, or his nominee, rendered that agreement of no effect as regards the respondent by
BANKRUPTCY-Concluded complying with the several conditions therein stipulated up to and including the 25th day of January, 1933, or unless the agreement so made between the trustee and the respondent can be set aside on the ground of fraud (and no fraud had been alleged) or illegality. The trustee, or his nominee (the appellant) have never complied with the terms and conditions required to render the agreement of no effect-Moreover, the agreement of the 4th of March, 1932, was not illegal, as the trustee had the power, under section 43 of the Bankruptcy Act, with the permission in writing of the inspectors, to enter into such agreement. It was the trustee's duty to do everything in order to maintain for the estate any equity that it ought to have in the apartments and to preserve, as far as possible, the rights of the bankrupt estate in that property. The hypothecary claim against the appellant, or his trustee, and its consequential result under articles 2058 and 2061 of the Civil Code may well be regarded as a "claim out of, or incidental to, the property of the debtor made or capable of being made on the trustee by any person" with respect to which the trustee is empowered by subsection (i) of section 43 of the Bankruptcy Act, with the permission in writing of the inspectors, to " make such compromise or other arrangement as may be thought expedient."
v. PIErnc.... 4- Criminal law-Concealing or removing property of bankrupt--Offences under Bankruptcy Act, s. 191-Conviction of employees of bankrupt company-Cr. Code, s. 69-Interpretation Act (Dom.), s.28................... BANKS AND BANKING-Trusts and trustees - Agency - Negotiable instruments-Estoppel-Coal shipped to dealer under consignment agreement-Proceeds of dealer's sales paid into dealer's bank account-Application of moneys in account towards payment of dealer's indebtedness to bank-Claim by original consignor against bank-Relationship between dealer and its consignor-Course of dealing-Conduct of the parties- Knowledge, bona fides, and rights, of bank.]-E.
Co., a coal dealer, was allowed a revolving line of credit by respondent bank, which held security by way of hypothecation under s. 88 of the Bank Act on its coal and a general assignment of book debts. Appellant company shipped coal to E. Co. under a consignment agreement whereby (inter alia) the title to and ownership of the coal should remain in appellant until BANKS AND BANKING-Continued sale thereof by E. Co., E. Co. was to keep appellant's coal separate and apart from other coal, E. Co. was to pay certain freight, insurance and other expenses, it guaranteed the payment for all sales made by it remaining unpaid for 120 days, its compensation for its services and expenditures consisted solely of surplus realized on its sales over appellant's regular circular of prices, and it was to account with particulars, to' appellant at speciAed times, and iMake payment in accordance therewith within
7 days thereafter, interest being chargeable on amounts not so paid. By the agreement as finally made, a clause, contained in an earlier document, that appellant's share should be collected first and the funds should not be confused, mixed or commingled with other funds of E. Co., but should be held separately and should immediately be deposited to appellant's account in a bank designated by appellant, was "cancelled and annulled." In practice E. Co. deposited the proceeds of sales of all coal, including appellant's coal, in one account in respondent bank, and made its payments to appellant by cheques upon its general checking account in that bank. Certain moneys negotiable instruments
(drawn or taken in E. Co.'s name) received by E. Co. from sales of appellant's coal and deposited in the bank during a time immediately preceding E.
Co.'s going into bankruptcy, were applied by the bank against E. Co.'s indebtedness to it. Appellant claimed that the bank was not entitled to these as against appellant; that the moneys, etc., were in E. Co.'s hands subject to a fiduciary obligation to appellant, that this fiduciary obligation was transmitted to the bank with the moneys, etc., the bank having, it was alleged, received them with notice of the obligation and with knowledge that the application thereof by E. Co. in liquidation of its debt to the bank would be a breach of that obligation. Held:
Appellant's claim failed.-Per Duff CJ., and Crocket J.:
Even assuming that the proceeds of sales of appellant's coal were, as between E.
Co. and appellant, held subject to a fiduciary obligation to appellant, that the bank had knowledge that the deposits of such proceeds were earmarked, and that the bank manager knew of the existence of a " consignment agreement," yet appellant's conduct precluded it from claiming the moneys as trust moneys;
from disputing that, as to the proceeds of sales, the relation between it and E.
Co. was that of creditor and debtor and not of cestui que trust and trustee. Appellant, in consenting to the deposit of
BANKS AND BANKING-Continued the proceeds of the sales of its coal in E. Co.'s account, mixed with E. Co.'s moneys, combined with E. Co. in representing to the bank that these proceeds, so deposited, were not subject to any trust, but were moneys which E. Co. was authorized to deal with on the footing of moneys loaned to it by appellant. There was nothing in the evidence to displace the presumption that the bank followed the natural course in such circumstances, and treated the moneys as any reasonable person in appellant's position must have expected them to be treated, viz., as moneys placed at the disposition of E. Co.-Per Rinfret J.: The agreement between appellant and E. Co. allowed E. Co. to deposit the proceeds of sales in E. Co.'s general account and to use such proceeds (and dispose of them as its own) between the settlement dates, subject only to the obligation of remitting payments to appellant at the specified times; therefore E. Co.'s relation to appellant, as to such proceeds, was not that of agent or trustee, but the relation was that of debtor and creditor. On this ground alone appellant failed. But further, on the evidence in the case, there were no circumstances likely to arouse the bank's suspicion that E. Co. was depositing appellant's money or using its funds without right.-Per Cannon J.: Under the agreement E. Co. could, and did, mix with its own moneys the proceeds of sales of the coal supplied by appellant and use such proceeds for the purposes of its own business, provided it made the periodical payments under the agreement. In respect of such proceeds E. Co. was not a trustee but merely a debtor. Therefore, even had the bank been put upon enquiry and become fully acquainted with the arrangement between appellant and E. Co., it could have said that there was no trust which it was bound to recognize. And the evidence did not show any bad faith on the part of the bank.-Per Hughes J.: On the evidence it must be taken (and the findings at trial were not sufficient in their extent to contradict) that the bank took the money and negotiable instruments in good faith and for value, and with no knowledge of unauthorized application thereof by E. Co.; and therefore-regardless of whether E. Co. was a debtor or trustee of appellant in respect of the proceeds of sales of appellant's coal-in view of the established rules of law with regard to dealings in money and negotiable instruments between parties in such a position as E. Co. and the bank, the appellant's claim against the bank could not succeed.-Henry v. Hammond [1913] BANKS AND BANKING-Concluded
K.B. 515- London Joint Stock Bank v.
Simmons, [18921 A.C. 201; Thompson v.
Clydesdale Bank, [18931 A.C. 282; 62
LJ.P.C. 91; and other cases, cited.- Judgment of the Appeal Division of the
Supreme Court of New Brunswick, 8
M.P.R. 138, affirmed. M.
2-Agency-Power of attorney-Exercise of for agent's own benefit-Agent paying his own debt to bank with cheque drawn on principal's account-Estoppel
- Acquiescence - Ratification duct of principal....................
BROKER-Stock-broker and client- Carrying of stocks on margin-Alleged instructions by client to sell-Stocks retained on brokers' advice-Alleged nondisclosure of brokers' personal interest in stocks same companies--Brokers' duties and liabilities.]-The action was to recover a balance claimed as owing by defendant to a firm of stock-brokers
(and now vested in plaintiff) for commissions, etc., and moneys paid in the purchasing and selling of stocks for defendant.
Defendant claimed that in
July, 1930, when prices were declining and he was being pressed for marginal protection, he told the brokers to sell out; that if the stocks had been sold at that time the account sued on would not have arisen; that the brokers advised him not to sell; that it was on their advice that lie subsequently put up more moneys and endeavoured to hold the stocks; that, unknown to defendant, the brokers were interested in pools in stocks of the same companies as those in whose stocks defendant's holdings largely consisted, and by reason thereof were not in a position to give defendant independent and disinterested advice.
There was conflicting evidence, and much contention as to the implications involved in, and the inferences to be drawn from, what was proved. In answers to questions, the jury found that there was a lack of due skill and care by the brokers; that this was "in not selling stock when requested "; that by reason thereof defendant suffered loss equal to or exceeding the amount claimed against him; that defendant, to the brokers' knowledge, was relying on their advice, and that their advice and their method of handling defendant's account was not disinterested and in good faith.
Judgment dismissing the action was reversed on appeal, and defendant appealed to this Court.-Held: There was evidence sufficient to support the jury's findings, which must, therefore, stand;
BROKER-Continued these indicated, that they accepted defendant's evidence that he told the brokers to sell in July, 1930 (at which time a sale would have left him without any debit balance); that the brokers advised him not to sell; and that he acted upon their advice, which was not " disinterested and in good faith." As to the brokers' liability in law: Having undertaken to advise, they owed a duty to defendant to advise fully, honestly, and in good faith, and the non-disclosure of their own substantial interest in stocks of the same companies as the stocks of defendant which he wanted to sell, was a breach of duty for which the brokers were liable for any damages consequently suffered by defendant; while there was no evidence that defendant would have taken a different course had disclosure been made, yet, once the interest was shown to exist, the burden was on plaintiff to exonerate the brokers and establish that the advice given and the mode of handling the account was not affected by the brokers' very large interest in the pools; the fullest and clearest explanation for the non-disclosure rested upon plaintiff and was not given. The judgment at trial dismissing the action should be restored.
(Judgment of the Supreme Court of Nova Scotia en banc, 7 M.P.R. 544, reversed).
McD. & C. 2-Stock exchange transaction-Action by married woman for annulment owing to want of marital authorization and for return of shares deposited-Allegations in plea that married woman was not owner of shares-Inscription in law- Simple deposit-Obligation to return- Evidence of ownership-Whether broker had sufficient interest-Arts. 183, 1799, 1800, 1808, 1966, 1969, 1971, 1972, 1975- Art. 77 C.CP.1-Upon an action against a broker by a married woman asking for the annulment of certain stock transactions on the ground of their absolute nullity as having been made without marital authorization and also for the return of certain bonds and shares deposited with him as guarantee for advances made to her, the broker cannot allege in his plea that these bonds and shares were not the property of the married woman because they had been either acquired by or loaned to her without the authorization of her husband. It becomes a case of simple deposit and, according to article 1808 C.C., the depository cannot exact from the depositor proof that he is the owner of thing deposited.-Moreover, broker in making such allegations in his plea did not possess the " existing and BROKER-Concluded actual interest" enabling him to do so, such as required by article 183 C.C., nor even the eventual interest mentioned in article 77 C.C.P.-Judgment of the
Court of King's Bench (Q.R. 56 KB.
573) aff.
3- See SECURITY
CANADA TEMPERANCE ACT
CARRIAGE BY WATER
CASUALTY INSURANCE
CHATTEL MORTGAGE
CILDREN'S AID SOCIETY-Custody of child......................
CIVIL CODE-Art. 6 (Laws governing property and persons, in general).. 238
2-Art.
188 (Want of authorization by husband) ........ ...............
3-Art.
508 (Of servitudes which arise from the situation of property). ...
4- Art. 585 (Rights of property). 304
5-Arts. 1799, 1800 (Voluntary deposit).......................
6--Art. 1808 (Obligations of depository)............
............
7-Art.
1966 (Pledge); Arts. 1969,
1971, 1972, 1975 (Pawning) ........
S-Arts. 2058, 2061 (Hypothecary action).............................
CODE OF
CIVIL PROCEDURE- Arts. 78, 79 (Actions and parties to actions)............................
2-Art.
77 (Actions and parties to actions).......................
3- Art. 1011 (Petition of Right). 561
CONDITIONAL SALE-Default in payment-Repossession and resale by vendor -Question of vendor's right to sue for deficiency-Conditional Sales Act, R.S. NB., 1927, c. 152, s. 10.]-Appellant sold to respondent a motor truck on a conditional sale agreement, and took as collateral a promissory note for the amount of the deferred payments. The agreement provided that the title to the truck was to remain in the vendor's name until payment in full of the purchase price and interest. The agreement did not expressly provide for the purchaser to have possession nor for the vendor to retake possession and resell, or to recover deficiency on resale. At the time of the agreement possession was delivered to respondent.
On subsequent default in payment, appellant retook possession (apparently with respondent's expressed or implied consent) and resold the truck (after fulfilling the procedure required by s. 10 of the Conditional Sales Act of New Brunswick), realizing an amount less than that owing on the note, and sued on the note for the deficiency.-Held: Appellant's resale of the truck had the effect of rescinding or terminating the contract, and of relieving respondent from further obligation as to the price (McEntire v. Crossley, 64 LJ. P.C. 129; Sawyer v. Pringle, 18 Ont. A.R. 218), and appellant could not recover.- Sec. 10 of the Conditional Sales Act, R.S.N.B., 1927, c. 152, does not create by implication a right in the seller to look to the buyer for a deficiency; s. 10 (3) merely limits and regulates the exercise of such a right where the right exists independently of the statute. The Act must not be regarded as a complete code; nor construed as repealing the common law as to the effect of a resale in a case such as the present one. Nor did the terms of the agreement in question justify the application " mortgage theory " (by regarding the conditional sale as in effect a legal mortgage and governed by the law relating to mortgages) so as to give a right to resell and look to the buyer for any deficiency (C. C. Motor Sales Ltd. v. Chan [1926] Can. S.C.R. 485, distinguished).-The court could not treat the action as one for damages for breach by respondent of his contract to purchase; and could not, therefore, regard the amount of the deficiency as the measure of damages which appellant might have obtained had he sued on that ground. The promissory note, on which the action was brought, being collateral to the agreement, was rescinded as between the parties by the rescission of the agreement.-Judgment of the Supreme
Court
New
Brunswick, Appeal Division (8 M.P.R. 57), affirmed. CONTRACT-Bond given by employee not to set himself up in like business or work - Consideration - Enforceability
- Public policy - Restraint of trade - Rights of employer - Onus.]-The appellant, after being in the employment of the respondent company for about eleven months in its retail drug business in Flin Flon, signed a bond under seal in the sum of $5,000 which, after reciting that the respondent company had agreed to take him into its employment as a druggist, stated the condition of the bond was that if he should leave or be dismissed from the respondent's services he would not set himself up in like business or work for anyone else within 25 miles from Flin Flon within a period of five years after such leaving or dismissal.
The appellant understood that his refusal to execute the covenant would lead to an early termination of his employment.
About four years later the respondent company terminated the employment by giving the appellant one month's notice, and soon after his dismissal, the appellant entered service with another drug company which had opened a drug store immediately adjoining the respondent's store.
Alleging breach of covenant, respondent company brought action on the bond for the penal sum of $5,000, and, at the trial, was allowed to ask for additional relief by way of injunction.
The trial judge dismissed the action on the ground that there was no consideration for the bond.
The majority of the Court of Appeal held that the bond was sufficiently supported by consideration and was otherwise enforceable.-Held that there was in this case legal consideration for the bond; but, reversing the judgment of the Court of Appeal ([19341 2 W.W.R.
298), that, under the circumstances of this case, the bond was unreasonable and unenforceable.-Per
Davis J.-A master is not permitted to impose restraint outside of reasonable limits upon his servant, after discharge, from turning his skill and knowledge to the best account and the respondent company failed to establish facts and circumstances surrounding the employment of the appellant sufficient for the Court to say that the agreement was reasonable.
2-Rescission-Inability to make reatitutio in integrum-Whether relief not based on rescission could be granted in the action-Form of action and conduct
CONTRACT-Concluded of case.1-The judgment of the Court Appeal for Ontario, [1935] O.R. 169, held that, while the facts in connection with the transaction in question gave plaintiff a good cause of action for rescission, yet as, through what had since taken place, circumstances had changed and become such that plaintiff could not make restitutio in integrum, its right of action for rescission had gone, and as it had not framed or pursued the action for any relief except relief on the basis of rescission, its action must be dismissed. Plaintiff appealed to this Court.-Held: The appeal must be dismissed. By reason of said change in circumstances, the objections to granting relief by way of rescission were insurmountable; and a claim for relief by way of damages (as to damages no evidence had been given), or otherwise except on the basis of the setting aside of the impeached transaction, not having been presented either at the trial or in the Court of Appeal, could not properly be entertained by this Court; defendant should not be called upon in this Court to meet an entirely new case unless, at all events, it rested exclusively upon propositions of law, and unless, moreover, it appeared that he could not be prejudiced by its not having been advanced at an earlier stage.
LTD. ...... 3-Alleged substitution of oral contract for previous written one-Evidence.1- 4-Life
Person insured in Ontario by United States company-Policy providing for payment of amount of insurance (expressed in " dollars ") at company's head office in United States-Premiums on policy paid in Canadian currency-United States dollars worth more than Canadian dollars at time when insurance became payable-Payment of policy-Sufficiency or insufficiency of payment in Canadian dollars to the number of dollars specified in policy-Provisions of policy- Ontario Insurance Act, R.S.O. 1914, c. 188, 155; R.S.O. c. 82, 119- 159.........................
5--Sale - Bankruptcy of vendee - Agreement by trustee in bankruptcy- Validity of agreement by trustee-Power of trustee - Bankruptcy Act, s. 48 - Articles 2058, £061 C.C........... 6--See 1;
COURTS-Judgments - Jurisdiction - Res judicata-Arbitration-Appeal-Action for balance due under contract-Dismissal of application to set aside default judgment and give leave to defend- Appeal dismissed from refusal to set aside judgment, but reference made under terms of contract-Reference, and report of findings-Objection to jurisdiction
Confirmation of report therefrom.]-Plaintiff (appellant) recovered judgment by default against respondent City for $14,432.11, the balance due on a construction contract, which the City had held back as protection against workmen's claims threatened under a wage clause in the contract. An application by the City to open up the judgment was dismissed and the City appealed. The Supreme Court of Nova
Scotia in banco dismissed its appeal but, the contract having, by agreement, been laid before it, and its attention called to the fact that certain workmen had begun an action against the City on the basis of the said wage clause, it ordered a stay of execution as to $5,000, discontinuance of the workmen's action, and arbitration of the workmen's claims before the City Engineer (as referee named in the contract).
Before the
Engineer, plaintiff objected to his jurisdiction to proceed, on the ground, inter alia, that the contract was merged in the judgment.
Before proceeding, the
Engineer prepared a stated case for directions, but the Court, on application to fix a date for hearing it, directed him to proceed without delay to hear evidence.
He found that $2,879.43 was due by plaintiff to workmen to comply with the contract terms.
Plaintiff, treating the report as an award made under the terms of the contract, moved the Court to set it aside on the said jurisdictional ground and on the ground that it purported to set up a new contract between plaintiff and its workmen.
The Court referred the matter back to the Engineer for definite findings on a point as to rate of wages. The Engineer filed a supplementary report. The City then moved for an order confirming both reports and to make them a rule of court, and plaintiff moved to set aside the award. The
Court, by a majority, granted the City's motion and dismissed plaintiff's motion.
From that judgment plaintiff brought the present appeal.-Held: The appeal should be dismissed. The jurisdiction of the Engineer to investigate and report depended entirely upon the jurisdiction of the Court in banco to make the order of reference; and this order, not having been appealed from at the proper time, could not now be reviewed; plaintiff, therefore, could not now impeach the award on the ground that the rights of
COURTS-Concluded the parties to the contract had become merged in the default judgment (which ground was the basis of objection to the jurisdiction of the Court in banco to make the order and of the Engineer to proceed under it); and there was no uncertainty or manifest error of law on the face of the award.-As to the order of reference of the Court in banco: Per Duff CJ.: The Court in banco had discretionary authority to set aside the default judgment, and had jurisdiction to grant the stay, and to impose, as a term of its refusal to set aside the judgment, that the amount, if any, found due by the contemplated award should be treated as payment pro tanto on account of the judgment; which was in substance the effect of its decision. It is gravely questionable whether this Court had jurisdiction to hear an appeal from that judgment; and whether, if jurisdiction existed, the judgment dismissing the appeal having been acted upon, any appeal would not have been barred exceptione personali. But whether appealable or not, it was a judgment of a Court of general jurisdiction, possessing (with some reservations not here material) authority to pronounce conclusively, subject to appeal if the law gave an appeal, upon any question of its own jurisdiction; and, disregarding any question of personal estoppel by acceptance of the judgment, the Court in the subsequent proceedings was bound by its own judgment (Samejima v. The King, [1932] Can. S.C.R. 640, at 647).-Per curiam: Had the City defended the action it would have been entitled under the contract to withhold moneys due by it to plaintiff to make good to workmen any deficiency in the wages found to be payable to them under the wage clause; and the result of the proceedings taken under the order of reference was precisely the same as that which would have followed had the Court set aside the default judgment and allowed the City to defend; and was one which seemed to meet the justice of the case as it was brought before the Court with concusrence of both parties to the contract. Co. CITY CRIMINAL LAW-Bankruptcy - Concealing or removing property of bankrupt-Offences enacted by section 191 of the Bankruptcy Act, R.S.C. c. 11- Persons other than bankrupt convicted- Conviction valid-Criminal Code, R.S.C. [1927], c. 86, s. 69-Interpretation Act, R.S.C. [1971, c. 1, s. 28.]-The appellants, one being the manager and the other an employee a bankrupt company, were convicted for having concealed fraudulently removed goods belonging bankrupt, contrary to section 191 (d and e) of the Bankruptcy Act.
The ground of appeal was that no other person than the bankrupt could be indicted for any offence under that section.-Held, affirming that conviction, that the offences created by section of the Bankruptcy
Act were offences within section 69 of the Criminal Codo; or, to put it alternatively, by force of section 69, or. by force of the enactments of section 28 of the Interpretation Act, section 69 is to be read as if the offences created by section were specifically named therein.-In other words, section 191 must be read and construed on the footing that the provisions of the Criminal Code should apply to offences created by that section, as there is nothing in the provisions of that section necessarily or reasonably implying the exclusion of section 69 of the Criminal Code. Crocket J.
dissenting. v. 26
2-Murder - Poisoning - Jury trial - Misdirections by trial judge-Evidence- Admissibility-Declarations by deceased
-Res gestae-Ante mortem-Testimony by brother of accused, an accomplice- Warning given to jury-Illegal comments by trial judge in his charge-Whether
"substantial wrong or miscarriage of justice"-New trial-Section (2)
Cr. C.1-The appellant was tried for the murder of her husband, convicted and sentenced to death, the indictment charging her with the administering of poison
(arsenic).
The conviction was affirmed by the appellate court, two judges dissenting.
The grounds of dissent were based on misdirections by the trial judge in his charge to the jury on the two following matters.
First: the
Crown brought witnesses who testified to declarations made by the deceased, in the presence of the accused, four or five days before his death and nearly two weeks after the date of the alleged offence, such declarations being to the effect that he was dying from poison given to him by the accused.
Counsel for the accused having objected to the admissibility of such evidence, the trial judge held that it could not be admitted "as being a deposition ante mortem," but he allowed it "as being a declaration made by the victim in presence of the accused." But, in his charge to the jury, the trial judge did not restrict himself to instruct the jury accordingly, and, treating these declarations by the deceased as being an important part of the evidence, he proceeded to make an analysis of same and emphasized the statement made by the deceased that he was going to die, and so to give more weight to the truthfulness of the latter's declarations that he had been poisoned by his wife. Secondly: the principal witness for the Crown was one G6d6on Bernard, brother of the accused.
At the time of the trial he was serving a sentence of five years' imprisonment following a verdict of manslaughter on an indictment for the murder.
He testified that the appellant came to his house and asked him if he had any poison, as she wanted to get rid of her husband, that she agreed to pay him $200; that he gave her some poison; that the appellant, seeing her husband ill but not yet dead, asked him for more poison and he gave it. At the request of counsel for the accused, the trial judge warned the jury of the danger of convicting on the uncorroborated evidence of an accomplice, although it was within their legal province so to do; but he added (translation) : "* * * to tell you to take the evidence of G6ddon Bernard as that of an accomplice, I am bound, at the request of the defence, to tell you that he was the aider and not the principal. To be an accomplice, it is necessary that there should be a principal, that another should have committed the crime. If it is absolutely desired that I say to the jurors to regard G6ddon Bernard as an accomplice in the present case, it would be necessary that the principal should be the accused. It is not possible to be the accomplice of one who does not exist. *
*
* He is not an ordinary accomplice.
If he be the accomplice, he is the brother of the accused."-Held that the trial judge misdirected the jury upon each of the two grounds of appeal above mentioned and that those material misdirections were so grave as to necessitate a new trial, the Crown having failed to shew that no substantial wrong or miscarriage of justice did not occur owing to such misdirections. Section 1014 (2) Cr. C-Held, also, that the declarations made by the deceased that he had been poisoned by his wife were not admissible as forming part of the res gestae. These declarations were made at the hospital nearly two weeks after the date of the alleged offence and four or five days before his death; therefore they were too much separated by time and circumstance from the actual commission of the alleged criminal act. These declarations should have been alluded to only in connection with the attitude of the accused.-Held, further (St. Germain J. ad hoc expressing no opinion), that the trial judge misdirected the jury in his remarks concerning the evidence of the brother of the accused, if considered as an accomplice. The trial judge after having set out to warn the jury of the danger of convicting on the uncorroborated evidence of an accomplice, destroyed in effect by his subsequent remarks the warning given; some jurors may have in view of those remarks considered that the request of the defence was tantamount to an admission of guilt.-Per Duff CJ. and Crocket J.- The observations of the trial judge fall within the description "matters which ought not to have been submitted" to the jury for consideration by them "in aiming at their verdict." Makin v. A.G.
for N.S.W.,
([18941 A.C. 70).
KIN................
3-Indictment for murder-Conviction of manslaughter-Offence of counselling abortion
Dying declaration
Admissibility-Sections and Cr. C.1-The accused was convicted of manslaughter on a charge of murder for having caused the death of V. K. by counselling or procuring G. S. unlawfully to use instruments upon her with intent to procure her miscarriage, contrary to the combined effect of sections 69 and
303 of the Criminal Code. The dying declaration was a lengthy narrative by the deceased which day by day she related to her mother, who wrote down the story; this narrative, which concluded with the words "I wish Carl punished," appeared to have been read over to the deceased shortly before her death and adopted by her at that time as a true statement; a number of questions at the same time were submitted to her by police officers, and her answers with the questions were the subject matter of two separate declarations. The narrative, together with the two short statements containing the questions and answers, were all put before the jury.
It was common ground that the case against accused could not be established without evidence dying declaration.-Held, reversing the the Court of Appeal
([19351 2 W.W.R. 146) that the dying declaration was inadmissible. Therefore the conviction was quashed and a judgment and verdict of acquittal was directed to be entered.-Per Lamont and
Davis JJ.-Assuming that the indictment could properly be said to be one for homicide (it is apparently one for the statutory offence of abortion), a great part of the narrative and the statements was outside the competence of a dying declaration in that many of the facts alleged and the wish expressed by the deceased were irrelevant as no part of the res gestae, extending far beyond the immediate circumstances of the death of the declarant, and were most harmful to a fair trial of the accused. Dying declarations are competent only in homicidal cases, and then only in so far as the statements therein could have been given in evidence by the deceased had she lived.
To permit an entire statement to go to a jury, with instructions from the trial judge to disregard such portions as he might point out to be irrelevant and inadmissible, may in the case of a simple and short statement be proper, but in a statement in the form of a lengthy narrative it would be highly improper to permit the whole statement to go to the jury notwithstanding instructions from the judge as to the portions which he thought incompetent. In spite of instructions, the jury might easily be influenced against the accused. -Per Cannon and Crocket JJ.-In order to obtain the conviction of the accused on the indictment as laid, the Crown had to rely on section 69 (d) of the Criminal Code and prove first that he had counselled or procured the abortion. In order to prove this essential element and link the accused to the abortion and killing, the statements contained in the dying declaration could not be used. The accused's alleged relations with the woman G. S. is a subject-matter different from that of the immediate circumstances of the death of V. K.
The statement of the deceased may perhaps be used to prove the cause of the death and the intervention of the abortionist's instrument, but could not be used as evidence that the accused had anything to do with the abortionist.
Even if the dying declaration may have been admissible as a whole against the woman G. S. (which is at least doubtful) it certainly could not be used to prove circumstances, not directly and immediately connected with the fatal application of instruments which finally brought death.-Per Dysart J. (ad hoc)-The charge as laid was at most a charge of bringing about the death of V. K. by counselling or procuring G. S. to perform on V. K. an abortion resulting in the death. Under this specific charge, most of the statements contained in the dying declaration, alleging that the accused counselled or procured V. K. herself to bring about or undergo an abortion operation, were irrelevant and therefore inadmissible.
The only statement that may have a bearing at all upon the charge as laid could not possibly support a conviction on that charge, and, therefore, ought to have been excluded. Thus all parts of the declaration are shown to have been inadmissible.
If, however, any portion of it could be thought to be admissible, the admissible parts should have been placed before the jury, separate and apart from the document.
v. THE KING
.................
4-Theft - Shipping - Customs Act,
R.S.C. 42 (as amended), 207,
151, 2 (o)-Vessel hovering within territorial waters of Canada with dutiable goods on board-Pursuit by police cruiser-Continuity of pursuit-Seizure of vessel on high seas-Forcible escape of vessel-Forfeiture of vessel-Time of forfeiture-Charge of theft against master-Form of charge.1-The schooner K., of Canadian registry, of which appellant was master, while " hovering within the territorial waters of Canada " off the shores of Cape Breton with a cargo of liquor on board (dutiable in Canada), was approached by a Canadian police cruiser, and proceeded towards the high seas. It was overhauled within the territorial waters and summoned to "heave to in the King's name," but before it could be boarded it resumed its course.
The cruiser pursued for a short distance, then turned, picked up its boat which had been lowered for boarding, and hurried towards shore for about eight miles, then took bearings and received instructions by radio, and returned to the pursuit and overhauled and stopped the K.
on the high seas about 35 miles from shore. Here its officers boarded the K., asked appellant what cargo he had, were told in answer "a bit of liquor," asked to see and did see the manifest and shipping papers, and without further examination took the K. in charge and towed it back to a point within three miles of shore, where appellant, on some claim of navigation dangers to his vessel, forcibly took charge of the K.'s helm, turned it out of its course, thereby breaking the tow lines, and sailed away.
The cruiser did not pursue. At trial appellant was convicted of theft of the schooner and theft of its cargo.-Held:
The K., at the time when the appellant took it away from the officers, was lawfully under seizure and in control of the officers, and the convictions of theft must stand (Judgment of the Supreme Court of Nova Scotia en banc, 9 M.P.R. 97, affirmed). The effect of ss. 207, 151 and
2 (o) of the Customs Act (R.S.C. 1927, c. 42, as amended), when applied to the facts of this case, is that, by hovering in territorial waters of Canada with dutiable goods on board, the K. thereby became forfeited by operation of law.
When the presence of liquor in its cargo was established as a fact, the forfeiture related back to the time of the hovering. The forfeiture was the legal unescapable consequence of the commission of the offence. The seizing on the high seas was part of the prolonged or continued act, which, begun within the territorial waters, and there temporarily frustrated by the K.'s flight, was consummated on the high seas; and the temporary abandonment of the pursuit was not such an abandonment as broke the continuity of the pursuit.-Objection on the ground that, according to the charge, the vessel taken by appellant was one which had " been seized and detained on suspicion by * * * as forfeited," was rejected. The words, "suspicion," etc., were unnecessary, and when deleted left the allegation as being "seized
* * * forfeited," which phrase falls within the definition "seized and forfeited" within s. 2 (o) of the Act.
5-Appeal - Leave to appeal to Supreme Court of Canada - Court of appeal judgment conflicting with judgment of another court of appeal "in a like case "-Judgments must be in criminal matters-The Supreme Court of Canada is a "court of appeal" within section 1025 Cr. C.1-Under the provisions of section 1025 of the Criminal Code, a party applying for leave to appeal must show that " the judgment appealed from conflicts with the judgment of any other court of appeal in a like case."-Held that a judgment of a court of appeal "in a like case" must be a judgment rendered in criminal proceedings or upon criminal matters.- Held, also, that the Supreme Court of Canada is comprised among the courts of appeal contemplated in that section. v. THE KING............ 6- Evidence-Written confession-Admissibility-Direction to jury. 7-Assault - Conviction - Motion before appellate court for leave to adduce new evidence - Dissenting opinion in the judgment dismissing motion - Conviction unanimously affirmed by appellate court-Whether appeal to Supreme Court of Canada-Section 1023 Cr. C.]-The appellants were tried and convicted on a charge of assault occasioning actual bodily harm. On the hearing of their grounds of appeal before the Court of Appeal, the appellants moved also for leave to admit new evidence.
This motion was dismissed by a majority of the Court of CRIMINAL LAW-Concluded
Appeal, two judges expressing dissenting opinions. Later on, the Court of Appeal rendered judgment affirming unanimously the conviction of the appellants; and such judgment contained also a paragraph mentioning the fact that dissenting opinions had been expressed by two members of the Court on the motion to adduce new evidence.-Held that the dissent in the Court of Appeal on the motion for leave to introduce new evidence is not a dissent of that Court against the affirmance of the appellants' conviction on a question of law within the meaning of section 1023 of the Criminal Code. YIP v. THE 635
8- Murder by accused- Whether voluntary-Evidence by police officers in rebuttal-Lack of warningevidence admissible-Prejudicial to accused-Substantial wrong- Miscarriage of justice
New trial
Charge to jury-Misdirection-Section
1014 Cr. C.]-The appellant was convicted of murder. Evidence was given at the trial that in the middle of the night, one day after the murder, the accused was removed from his cell and, escorted by three police officers, was taken out a road in search of the revolver that shot the victim. The accused was cross-examined on the incidents of that trip and one police officer testified in rebuttal as to the course of conduct and the conversation of the accused on that occasion.-Held that there should be a new trial. Under the circumstances of the case, such evidence was inadmissible in the absence of proof that the statements made by the accused were voluntary and upon proper warning; and the curative effect of section
1014 (2) of the Criminal Code cannot be applied, as it cannot properly be said that there has been "no substantial wrong or miscarriage of justice."-Judgment of the Supreme Court in banco
(8 M.P.R. 407) rev.
CROWN-Liability of, for negligence of its servant " while acting within the scope of his duties or employment upon any public work " (Exchequer Court Act,
R.S.C. 1927, c. 84, a. 19 (c))-" Public work "-Alleged negligence of occupants of motor car used in detection and elimination of radio inductive interference.]
-A motor car owned by the Government of Canada, used by the Radio
Branch of the Department of Marine in the detection and elimination of radio inductive interference, and specially equipped for that purpose, was, in such use, while returning to headquar- CROWN-Continued ters, stopped by its occupants (the driver and a radio electrician) on the highway, and was struck by another car, with fatal result to a passenger in the latter. Damages were claimed from the Crown on the ground that the collision and fatality were due to the negligence of the occupants of the Government car. The case was heard on certain questions of law.- Held: The Government car was not a "public work," nor were its occupants acting within the scope of their duties or employment " upon any public work," at the time in question, within the meaning of s. 19 (c) of the Exchequer Court Act (R.S.C. 1927, c. 34). (Judgment of Maclean J., President of the Exchequer Court of Canada, [1934] Ex. C.R. 195, reversed).-Having regard to the history of the legislation and the judicial decisions upon it (reviewed at length in the judgment), phrase " public work" in s. 19 (c) means a physical thing having a defined area and an ascertained locality, and does not comprehend public service or employment, as such; nor does it include vehicles or vessels. This construction is further supported by the language of the French version of the section.-Semble, where there is a "public work" in the sense above indicated, and an injury is caused through the negligence of a servant of the Crown in the execution of his duties or employment in the construction, repair, care, maintenance, or working of such public work, such an injury may come within the scope of a. 19 (c), though the servant's negligent act was not committed on the public work in physical sense.
DuBois...................... 2- Liability of, for negligence of its servant "while acting within the scope of his duties or employment upon any public work " (Exchequer Court Act, R.S.C. 1927, c. 84, s. 19 (c))-Collision through negligent driving of Crown's motor truck by soldier in Canadian Army Service Corps on returning from delivering military stores to Airport of Royal Air Force.]-The suppliants claimed damages from the Crown by reason of the death of M., who was fatally injured when a motor truck in which he was riding collided with a motor truck of the Crown, driven (negligently, as found at trial) by K., a private in the Canadian Army Service Corps. K's duties were those "of driver of a mechanical transport vehicle," and he had driven the truck from its garage (which served as a depot for such vehicles) at Kingston, with military stores which were being sent by the Canadian Army CROWN-Concluded
Service at Kingston to a detachment of the Royal Air Force airport at Trenton. The stores had been delivered and the truck was returning to Kingston when the accident happened.-Held:
The negligence of K. was not "negligence of any officer or servant of the
Crown while acting within the scope of his duties or employment upon any public work " within s. 19 (c)
Exchequer Court Act (R.S.C. 1927, c. 34) , so as to make the Crown liable. While the airport at Trenton, as well as the garage at Kingston, might well fall within the description "public work" (The
King v. Dubois, ante, p. 378), and while the duties of the officer or servant, in the execution of which the negligence occurs, may be so connected with the public work (in or in relation to the construction, repair, maintenance, ing or care of it) as to bring negligence in their performance, elsewhere than on the public work, within the scope of the enactment (The King v. Dubois supra), there was in the present case no such connection between the duties or employment in which K. was engaged at the time of the collision, and either the garage at Kingston or the Trenton airport, as to bring his negligence within the scope of the words quoted. "Public work" in the enactment cannot be read as the equivalent of public service (The
King v. Dubois, supra) .- Judgment of
Maclean J., President of the Exchequer
Court of Canada, [19341 Ex. C.R. 188, reversed.
THE V.
3-Petition of right-Offence or quasioffence-Damages-Right of
Article 1011 C.C.P.1-Under the terms article 1011 of the Code of Civil Procedure, a right of action lies against the
Crown for damages resulting either from an offence or a quasi-offence, when the formalities pertaining to a petition of right are otherwise followed.
THE KINo
CLICHE........................
4- Assessment of Halifax Harbour
Commissioners for business tax as
"occupier" within s. 857 (1) of Halifax
City Charter-Occupation for the Crown
Halifax Harbour Commissioners'
Act, 1997, c. 58 (Dom.)...........
See TAXATION 2.
5-Amendment of petition of right'
........................
6- CURRENCY-Contract-Payment of insurance money-Place and currency of
CUSTODY-of infant............. 652 CUSTOMS ACT.............. DAMAGES-Breach of contract to sell land-Ascertainment of amount of damages-Building project-Factors affecting claimants' successful financing of project -Valuation of possibilities.]-There had been referred to the Exchequer Court of Canada a claim by the claimants for damages from the Crown for its refusal to carry out an alleged contract for sale by the Crown of certain land, on which, combined with certain adjoining land, there was to be erected an office building, certain floors of which were to be leased to the Crown. The Judicial Committe of the Privy Council held ([1933] A.C. 533) that there had been a valid contract binding upon the Crown, and that the judgment of the Exchequer Court of Canada ([19331 Ex. C.R. 164), holding that the claimants were entitled to recover from the Crown damages for breach of contract (reversed by the Supreme Court of Canada, [19321 S.C.R. 511), should be restored. By subsequent judgment in the Exchequer Court the claimants' damages were fixed at $400 000. The Crown appealed.-Held: Having regard to the terms of the claim as made and the form of the reference thereof to the Exchequer Court, and to the evidence, insufficient weight had been given, in fixing the damages, to certain factors (including the absence of a lease to a certain
Government department, on which proposed lease, as well as on the lease first above mentioned, the claimants had depended, as indicated in their claim) tending to affect adversely the claimants' successful financing of the project.
In fixing damages, the claimants were entitled to a valuation of possibilities or probabilities which, if becoming actualities, might have led to success of their project. On its above views, this Court fixed the damages at $75,000. THE 2----See 3; rr) DISTRESS
ECCLESIASTICAL BODY ...... EMPLOYEES' SAVINGS AND PROFIT SHARING FUND.......... ESTOPPEL-Accounts for supply electric current-Accounts rendered for too small amounts-Action for balance- Acts by defendant as result of accounts rendered-Whether defence of estoppel precluded by Public Utilities Act, R.S.
NB.,
1927,
127-Applicability of estoppel on general principles.]-Plaintiff, a public utility within the Public
Utilities Act, R.S.N.B. 1927, c. 127, sold and delivered electric current to the defendant dairy company, which (as known to plaintiff) used it in the manufacture of its products.
Through mistake by plaintiff's employees, the amount of current supplied to defendant was wrongly determined on the meter dial readings, so that plaintiff rendered monthly accounts (which were paid) for only onetenth of the current actually supplied.
Defendant bought its cream at prices based on the difference between the market prices of its products and the cost of manufacturing them, and, believing in the correctness of plaintiff's accounts as rendered, relied upon them in reckoning up its cost of manufacture, and consequently paid for cream amounts substantially larger than it would have paid had plaintiff's accounts been correct. Plaintiff was not charged with negligence, nor with knowledge of defendant's method of fixing cream prices.
After discovering its error, plaintiff sued for balance of account, and defendant pleaded estoppel. The said Public Utilities Act, s. 16, requires that no public utility shall charge a greater or less compensation for any service than is prescribed in established schedules, and the
Act provides penalties for "unjust discrimination" or for charging "by any device" more or less than full compensation at scheduled rates-Held: (1)
The defence of estoppel was not preby the Act (Burkinshaw v.
Nicolls, 3 App. Cas. 1004, and other cases, cited).
(2) Estoppel was applicable to the case and afforded an .effecttive defence.
Plaintiff must be taken to have intended and expected that defendant would act upon plaintiff's representations in the ordinary course of defendant's business; and defendant did so act, reasonably and in a way that should not be taken as unusual, in the ordinary course of its business, to its detriment, in paying larger amounts for cream than it would otherwise have paid.
(Principles of estoppel discussed, and cases referred to).-Judgment of the
Supreme Court of New Brunswick, Appeal Division, 8 M.P.R. 67, reversed.
Co. LTD.................
EVIDENCE-Contract-Admissibility of oral testimony - Transfer of shares - Verbal condition as to their return - Whether a loan or a gift.]-The respondent, by virtue of a transfer of their rights by two associates to himself, claimed to be the owner and demanded the delivery to him of 30,000 shares of the Siscoe Gold Mines Limited, which he alleged had been lent by way of a transfer by himself and his associates to the appellant company, on the condition that a like number of shares would be returned by the appellate company upon its mining properties being brought into production.
appellant company pleaded that the above transaction was carried out by the president of the company without authority expressed or implied and was never ratified by it, and, in the alternative, that in any event the above shares were not lent as alleged by the respondent, but were given or donated without condition as to their return. On the first point raised by the appellant company, after hearing its counsel, this Court decided that the findings of fact of the trial judge in favour of the respondent, unanimously affirmed by the appellate court, should not be disturbed; but this Court decided to hear the respondent on the question of law, raised by the appellant company in support of its second point, concerning the admissibility of oral evidence to prove the loan of the shares.-Held that, under the circumstances of this case, oral testimony was admissible.
As both parties were admitting the existence of some contract for the transfer of the shares, parol evidence could be adduced to determine whether the transfer was conditional or unconditional and whether the shares were to be returned to the respondent and his associates as having been merely loaned. Campbell v. Young (32 Can. S.C.R. 547) foll. SIscoE v. .193 2-Criminal Law-Written confession - Admissibility - Direction to jury. KING............. 3-Admissibility-Trial for murder by poisoning - Declarations by deceased - Testimony of accomplice-Directions to jury .........................
4- Admissibility of dying declaration. ......... 5-O nus....................
6---Onus........................ EVIDENCE-Concluded
7-Criminal law-Appeal from conviction to Court of Appeal and also motion by accused in that court for leave to adduce new evidence-Dissenting opinion in the judgment dismissing motion-Conviction unanimously affirmed by appellate court-Whether appeal to Supreme
Court of Canada-Section 1023 Cr. C.
...............................
See 7.
8-Criminal law - Murder - Evidence of statements by accused-Whether voluntary-Evidence by police officers in rebuttal-Lack of warning-Whether evidence admissible-Prejudicial to accused
-Substantial wrong-Miscarriage of justice-New trial-Charge to jury-Misdirection-Section 1014 Cr. C......
See 8.
9--See 3;
1; 4;
EXCHEQUER COURT
EXECUTORS
ADMINISTRA- TORS
See 4; Suc- EXEMPTION-Income tax-Assessment by municipality for income received by a corporation as executor in Ontario on behalf of and payable to persons resident outside of Ontario
Assessment Act,
R.S.O. 1927, c. as amended in 1930, c. 46-Exemption under s. 4 (22)...
2- Taxation-War Revenue
Stock exchange sheets - Exemption - Whether " newspapers" - Special War
Revenue Act, R.S.C. 1927, c. 179, as. 85,
86, 89.......................
FIRE INSURANCE
FOREIGN LAW
FORFEITURE-of vessel.........
FRAUD
GAS
GUARDIAN
HALIFAX CITY CHARTER
HALIFAX HARBOUR COMMISSION- ERS
HIGHWAYS-Right of access-Action to compel municipality to permit change in curb to afford owner of adjoining land convenient access to street for purposes of its business--Municipal Act, R.S.O. 1927, c. 23; Local Improvement Act, R.S.O. 1927, c. 235.1-At common law an owner of land was entitled to access to an adjoining public highway at any point at which his land actually touched such highway, for any kind of traffic which was necessary for the reasonable enjoyment of his premises and which would not, as he proposed to conduct it, cause a substantial nuisance.
A municipal authority, in the absence of an express right to the contrary, was not entitled to deprive him of the full enjoyment of such right. But in Ontario the Municipal Act, RS.O. 1927, c. 233 (ss. 483, 484, 342, 344, and other sections, specifically referred to), and the Local Improvement Act, RS.O. 1927 c. 235 (ss. 2, 20 (2) (d), 3 (2), specifically referred to), have created an interference with such common law rights.
And where the sidewalks and curbs in question, on streets adjoining land now owned by appellant, had been constructed about 13 years ago under the provisions of the Local Improvement Act, it was held that appellant had no right to compel the respondent municipality to permit a change in the curb to afford appellant convenient access to the streets for the purpose to which appellant intended to use its land. SWANSEA.............. 2-Negligence - Street railways - Motor vehicles-Collision at street intersection between street car and automobile-Right of way for street car- Duties of automobile driver and street car motorman-Joint negligence... 671 3- Moron
HUSBAND AND WIFE-Suit for nullity of marriage because of malformation and impotence-Lapse of time since marriage-Unsatisfactory explanation for delay-Reversal of findings at trial.]- A marriage, one of the parties to which is incapable of properly consummating it, may, nevertheless, be so approbated by the acts and conduct of the other as to preclude the latter from impeaching its validity (G. v. M., 10 App. Cas. 171, at 186).
Lapse of time, though HUSBAND AND WIFE-Concluded not in itself under ordinary circumstances an absolute bar to a suit for nullity, is yet an important factor for consideration, and may operate with other circumstances as a bar to such a suit (B-n v. B-n, 164 Eng. Rep. 144).-Where a husband petitioned, over eight years after the marriage, for nullity of his marriage because of his wife's malformation and impotence, this Court held (affirming judgment of the Court of Appeal for Manitoba which reversed judgment at trial granting the petition)
that the husband, on the facts and circumstances established, should have known years before the suit, and would have so known had he acted as any ordinarily reasonable and prudent man would have acted in the circumstances, that his wife's condition was one which could not be rectified by surgical skill, and his explanation at the trial for his inaction was one which should not be accepted as valid and sufficient in the circumstances disclosed.-Where the relevant facts as to the relation and conduct of the parties are not disputed, a judge sitting on appeal, with the whole record before him, is quite as competent to make a finding, as to the petitioner's belief and motive, as the trial tribunal, and should find in accordance with his firm conviction thereon. B. v. B..
2-Stock exchange transaction-Action by married woman for annulment owing to want of marital authorization and for return of shares deposited-Allegations in plea that married woman was not owner of shares-Inscription in law- Simple deposit-Obligation to return- Evidence of ownership-Whether broker had sufficient interest-Arts. 183, 1799,
1800, 1808, 1966, 1969, 1971, 1972, 1976- Art. 77 C.CP....................
INCOME-Accumulation of .......
INCOME TAX
INFANT-Custody-Child placed by unmarried mother with a Children's Aid
Society, and placed by it in care of defendants-Defendants failing to observe agreement to bring up child in
Roman Catholic faith-Child never made a ward of the Society-Issue between Society and defendants to determine right to child's custody-Children's
Protection Act, R.S.O. 1927, c. 279.1-An unmarried mother of an infant placed him, shortly after his birth, with the plaintiff, a Children's Aid Society approved as such under the Children's
INFANT-Concluded
Protection Act, R.S.O. 1927, c. 279, and the plaintiff placed him in the care of defendants on the agreement that the child should be brought up in the Roman Catholic faith, which agreement the defendants did not observe. When the child was about ten years old, the present action was tried to determine who was entitled to custody of him. The child had never been made a ward of the plaintiff. Kingstone J., and the Court of Appeal for Ontario (by a majority) held in favour of defendants. On appeal to this Court:-Held: (1) The appeal should be dismissed; under said Act the plaintiff had not a legal right to call upon the court ex debito justitia to deliver to it the custody of the child; and this Court saw no reason to disagree with the views expressed in the Courts below that it was not in the child's interests to deprive defendants of custody of him. THE AID
SOCIETY v. SPENCE............... 2-Automobile accident
Action in damages-Minor injured, residing in United States-Guardian appointed by court of that country-Authorized by it to take action-Letters of guardianship providing for fyling of a bond before receiving moneys-Bond not fyled-Exception to the form-Private international law-Art. 6 C.C.-Arts. 78, 79 C.C.P. ...... INJUNCTION
(AUTOMOBILE LIA. BILITY)-Motor vehicles-Statuteo -Repeal of provision in statute and enactment at same time in another statute of substantially the same provision -Retrospective construction of latter provision-Injury to passenger in motor car-Action and recovery of judgment by injured person against owner (driver) of car, and subsequent action by injured person against owner's insurer; the actions being taken subsequent to expiry of insurance policy and subsequent to later repeal and enactment of certain respective legislation- Right of injured person to judgment against insurer-S. 87 (4) (repealed September 1, 1932) of The Highway Traffic Act. (Ont.) (as amended in 1980, c. 47)-S. 183 (h) (coming into force September 1, 1982) of The Insurance Act (Ont.) (as amended in 1932, c. 25)-" Motor Vehicle Liability Policy "-Time limitation for bringing Policy indemnifying gas company against liability for damages to property-Interpretation of policy-Break resulting from negligent installation of pipes-Damage by fire following explosion.]-The appellant, an insurance and indemnity company, issued to the respondent, a gas company, a policy by which it agreed to indemnify the respondent " for any
" and all sums which the assured (re- " spondent) shall by law be liable to
"pay for (inter alia) damages to prop- "erty
*
*
* as a result any
"one accident caused by or arising out
"of the operation of natural gas * * *
"by or for the assured "; the policy further provided that it was " understood
"and agreed that the policy (was) is- "sued to indemnify the assured (re- "spondent)
as the result of accidents
"caused by, or arising out of, all the
" assured's operations in drilling, hand- " ling and distribution of natural gas."
While the policy was in force, gas accidentally escaped through a break in the service pipe located under the premises of a customer and caused a conflagration which did extensive damage to the customer's premises, the break resulting from the negligent installation of the pipe by the respondent's servants some years before. For this damage the respondent was adjudged liable, and after satisfying the judgment brought an action against the appellant on the policy for indemnity
The service pipe belonged to the owner of the building, but, like all other such pipes in the city, was installed by the respondent for the owner, who paid for it. The respondent's action was maintained by the trial judge, which judgment was affirmed by the appellate court.-Held affirming the judgment of the Appellate Division, ([1934]
3 W.W.R. 638), that the liability of the respondent for the damages so arising was one covered by the express terms of the policy.
LTD..... 291
(FIRE)-Action to recover for loss--Question whether, in applying for insurance, there was misrepresentation or " fraudulent" omission to communicate material circumstaice within statutory condition 1 of The Insurance
Act, R.S.O. 1927, c. 222.1-In statutory condition 1 under s. 98 of The Insurance
Act, R.S.O. 1927, c. 222, voiding a policy if the applicant for insurance " misrepresents or fraudulently omits to communicate any circumstance which is material
* * *," the word " fraudulently " connotes actual fraud.-On an appeal by the insured under certain fire insurance policies, from the judgment of the Court of Appeal for Ontario ([19341 O.R. 273)
INSURANCE (FIRE)-Concluded dismissing his appeal from the judgment of Kelly J. (ibid) dismissing his actions, it was held that said statutory condition did not afford a defence to the respondent insurance companies; the course of the litigation precluded them from relying upon any charge of actual fraud; and, while the plaintiff's (appellant's) agent's partial statement of the facts to the insurance agent (in stating that there were fires " all over the country "; without disclosing that there was a fire in McNish township, which, as known to plaintiff but not to plaintiff's agent, adjoined the township in which was the lumber camp proposed to be insured) might, if calculated to mislead the insurance agent, amount to a misrepresentation, yet this was an issue of fact not suggested by the insurance companies at the trial, and the evidence did not shew that the insurance agent was misled; further, a misrepresentation, to produce a legal effect, must be one influencing the other party to enter the contract, and it did not appear that anything said by the plaintiff's agent influenced the insurance agent in assenting to effect the insurance. (Smith v. Chadwick, 9 App. Cas. 187, at 195-197, cited). The appeal was allowed and judgment given for the insured.
.... (LIFE)-Insurance Act, R.S.O. 1927, c. 222, ss. 140 (2), 142 (1), 145(1), 146, 168 (1) -Preferred beneficiaries-Designation of beneficiary by policy-Alteration by will-Effectiveness of alteration-Document accepting participation in Employees' Savings and Profit Sharing Pund-Designation therein of beneficiary in case of death-Whether testamentary in character.1-M. (now deceased) took out policies of insurance on his life, designating therein his wife as beneficiary.
Later by his will he declared that " all insurance policies on my life, now payable my wife" should be paid to his executor in trust for the use and benefit of his wife and mother upon the same trusts, terms and conditions as if they had formed part of the residue of his estate; and he left the residue of his estate to his executor in trust to divide it into two equal shares to be held as separate trust funds, one for his wife, the other for his mother, during life time, each to receive the net income from her share, with power of encroachment on corpus according to need, in the executor's discretion; the survivor to have the benefit, in the same manner, of the balance of the other's share added INSURANCE (LIFE)-Continued to her own, and on the survivor's death, the trust to terminate and the whole balance to be paid to M.'s sister C., if living, otherwise to her then surviving issue.
By the Ontario Insurance Act, where the insured designates as beneficiary or beneficiaries a member or members of the class of "preferred beneficiaries " (which class includes a wife and mother, but not a sister or her issue), a trust is created, and, so long as any member of the class remains, the insurance money apportioned to a preferred beneficiary shall not (except as otherwise provided in the Act) be subject to the control of the insured, or of his creditors, or form part of his estate.
Sec. 146 provides that, notwithstanding the designation of a preferred beneficiary or benficiaries, the insured may subsequently restrict, limit, extend or transfer the benefits to any one or more of the class to the exclusion of any or all others of the class, " or wholly or partly to one or more for life or any other term or subject to any limitation or contingency, with remainder to any other or others of the class."
Sec. 163 (1) provides for power to appoint trustees.-Held (affirming judgment of the Court of Appeal for
Ontario, [19341 O.R. 371): While the gift of remainder over to C. or her issue was not competent (as going outside the preferred class), yet the alteration of beneficiaries by the will was not wholly void.
The phrase in s. 146 "with remainder to any other or others of the class"
is severable and not conditional.
See. 146 means that it is competent for the insured to transfer absolutely the rights of one preferred beneficiary to another preferred beneficiary, or, within the class. to transfer or leave, as the case may be, a limited estate such as a life estate, an estate for a term, an estate subject to a limitation, or an estate in remainder.
The insurance moneys in question should be dealt with as directed in the will, except that, should the mother predecease the widow, the whole balance of the insurance moneys should then belong to the widow absolutely, and should the mother survive the widow, then on the mother's death the whole balance of the insurance moneys should revert to the widow's estate.-M. had joined his employer's " Employees' Savings and Profit
Sharing Fund." The plan was intended to furnish to each participating employee (a) who served until retirement on account of age, a help to future maintenance, (b) who served for an extended period but not until retirement on account of age, a substantial accumulated sum, (c) who died while an employee, help towards an income for family or
INSURANCE (LIFE)-Continued dependents. An employee might withdraw at any time, receiving thereupon an amount, or a share of the fund, determined according to length of service. If a participating employee died, a share of the fund was payable to his designated beneficiary or beneficiaries. He might designate the beneficiary by his "Employee's
Acceptance"
(signed on joining the plan) or by an instrument signed and lodged with the trustees of the fund, or by will, and might from time to time revoke the benefits or change the beneficiaries or divert the money to his own estate. In his "Employee's Acceptance"
M. directed the trustees (a) upon his withdrawal to pay to him the amount to which he was entitled under the plan, (b) on his death to pay the amount to which he was entitled to his wife, or otherwise as he might have last designated by writing lodged with the trustees or by will. There was only one witness to his signature.-Held (affirming judgment of the Court of Appeal, supra): The "Employee's Acceptance"
designating M.'s wife as beneficiary was testamentary in character and, as it had only one witness, was ineffective to make her a beneficiary, and his share in the fund formed part of his estate. (Cock v. Cooke, L.R. 1 Pro. & Div. 241, at 243; In the Goods of Baxter, [19031 P. 12, and other cases, cited).
2-Person insured in Ontario by United States company-Policy providing for payment of amount of insurance (expressed in " dollars") at company's- head office in United States-Premiums on policy paid in Canadian currency - United States dollars worth more than Canadian dollars at time when insurance became payable-Payment of policy- Sufficiency or insufficiency of payment in Canadian dollars to the number of dollars specified in policy-Provisions of policy-Ontario Insurance Act, R.S.O. 1914, c. 188, s. 155; R.S.O. 1927, c. 222, ss. 119-159.1-Respondent, a foreign life insurance company, with head office at Indianapolis, in the State of Indiana, one of the United States of America, and at all material times duly registered in the Province of Ontario and as fully entitled as any domestic insurance company to transact there the business of life insurance, issued, on August 9, 1917, two policies on the life of W., a resident of Toronto, Ontario, and delivered the policies to him in Toronto. They were executed by respondent at its head office in Indianapolis, and provided for payment on the insured's death of a INSURANCE (LIFE)-Continued certain number of "dollars"
"at the
Home Office of the Company, Indianapolis. Indiana."
They provided that the premiums be paid "at said Home
Office or to an agent of the Company."
All the premiums were paid in Canadian moneys. W. died on March 10, 1933.
At the time the insurance became due and payable, there was a premium on
United States money in terms of Canadian money; and appellants claimed that respondent was bound to pay the value of United States dollars to the number of dollars specified in the policies.-Held
(Duff C.J. and Davis J. dissenting): Payment in Canadian dollars to the number of dollars specified in the policies, was sufficient to discharge respondent's obligation.
Judgment of the Court of
Appeal for Ontario, [19341 O.R. 677, affirmed.-Per Cannon J.: Any inference in favour of United States dollars that might be drawn from the naming of
Indianapolis as a place of payment is rebuttable, and is rebutted in this case by (1) the provisions of The Ontario
Insurance Act (R.S.O. 1914, c. 183, s.
155; R.S.O. 1927, c. 222, s. 159) and (2)
the interpretation put upon the ambiguous contract by the acts of the parties.- Per Crocket J. and Dysart J. (ad hoc) :
To assume that in entering into the contract the parties directed their attentions solely to the wording and meaning of the policies, and not in any degree to the provisions and effect of the insurance law of the Province, would do violence to the underlying facts and the background of the case.
From the circumstances, it might be assumed that the parties realized they were making a contract in
Ontario and subject to the laws of Ontario. While it is well settled law that contracts which are to be performed by payment of money in a designated place or country require that payment shall be made in the legal tender or currency of the place set for payment, yet this is only a prima facie rule or presumption, and is rebuttable
(Adelaide Electric Supply Co. Ltd. v.
Prudential Assurance Co. Ltd., [19341
A.C. 122, at 152, 155); and the presumption is rebutted in this case by the statute law of the Province relating to payment of the insurance money (The
Ontario Insurance Act, R.S.O. 1914, c.
s. 155; not changed in substance, as affecting said policies, by R.S.O. 1927, c. 222); by the provisions of the policies relating to the payment of premiums;
and by the conduct of the parties (in making and accepting payment of premiums throughout in Canadian curren- .cy).
(Discussion as to the distinction of
-this case from others in that the term
INSURANCE (LIFE)-Concluded "dollars"
is common both to Canada and the United States and represents a unit or denomination of currency of practically the same value when the dollar is accepted at par in the two countries; and as to the use in the policies of the term "dollars" without any epithet or other qualification; reference to the Adelaide case, supra, at 152, 155, 148).-Per Duff C.J. and Davis J. (dissenting): A contract to pay in a unit of currency prima facie means currency according to the meaning of the unit at the place where payment is called for by the contract (the Adelaide case, supra, at 156).
The currency of the place of payment, i.e., Indianapolis, was the currency intended by the contract to govern the payment of the "dollars" stipulated to be paid.
On the construction of the contract alone there was no ambiguity-payment was due in United States dollars.
The intention of The Ontario Insurance Act (R.S.O. 1914, c. 183, a. 155, in force when the contracts were made; not changed in substance, so far as payment is concerned, by R.S.O. 1927, c. 222, in force when the policies matured), was not to fix the amount to be paid as something different from the amount settled by the contract between the parties, but merely to determine the manner in which the amount already fixed by the parties was to be discharged; to make payable within Ontario in lawful money of Canada whatever was the agreed amount of insurance. The amount of insurance to be paid was the value, in lawful money of Canada, of United States dollars to the number of dollars specified in the policies. WEIss v.
3-See Dury.
INTERNATIONAL LAW
INTOXICATING LIQUORS - Canada Temperance Act, R.S.C. 1927, c. 196- Liquor Control Act, Ont., 1927, c. 70, as amended-Comparative restrictiveness of Dominion and Ontario legislation-Construction of s. 175 of Canada Temperance Act (first enacted in effect by s. 2 of c. 80, 1917)-Question whether Part II of Canada Temperance Act is in operation in certain counties in Ontario (in which counties the operation of the Act had been suspended prior to passing of Liquor Control Act, Ont.) and, if not, the procedure for bringing said Part II into operation in said counties.]-By sec. 175 of the Canada Temperance Act, R.S.C. 1927, c. 196, which section was first enacted in effect by the Continued statutes of c. 30, s. 2, it is provided that upon receipt of a petition praying for the revocation of any order in council passed for bringing Part II of the
Act into force in any city or county,
"if the Governor in Council is of opinion that the laws of the province in which such city or county is situated, relating to the sale and traffic in intoxicating liquors, are as restrictive as the provisions of Parts I to IV, both inelusive, of this Act," the Governor in
Council may by order suspend the operation of said Parts of the Canada Temperance Act in such city or county, such suspension "to continue as long as the provincial laws continue as restrictive as aforesaid."-Under said provisions (as enacted in 1917, c. 30, s. 2), orders in council were passed in 1920 and 1921, suspending the operation of the Canada
Temperance Act (theretofore in force in the counties in question) in certain counties in the province of Ontario.-In 1927 the Ontario Temperance Act, which was in force in Ontario when said orders in council were passed, was repealed, and other provisions were substituted by The
Liquor Control Act (Ontario), 1927, c.
70, which Act was materially amended by statutes of Ontario, 1934, c. 26.-The
Governor General in Council referred to this Court the following questions: (1)
Are the provincial laws respecting intoxicating liquor as restrictive since the coming into force of The Liquor Control
Act of Ontario, as amended in 1934, as the Canada Temperance Act?
(2) If the answer to question 1 is in the negative, is Part II of the Canada Temperance Act in operation in said counties?
(3) If the answer to question 2 is in the negative, what procedure must be adopted to bring the said Part II into operation in said counties?-Held (Cannon and Crocket JJ. dissenting), that question 1 be answered in the negative, and question 2 in the affirmative.-Per Duff
C.J. and Lamont and Davis JJ.: The condition for applying the suspension under said s. 175 is that the laws of the province relating to the sale and traffic in intoxicating liquors shall be as " restrictive " of such sale and traffic as the provisions of Parts I to IV of the
Canada Temperance Act; and the comparison required for the purposes of applying the condition is a comparison of the laws of the province with the provisions of said Parts of the Canada Temperance Act; there is not contemplated a process of measuring the comparative efficacy of two legislative enactments in the suppression or reduction of excessive consumption of liquor; the comparison
INTOXICATING LIQUORS
-Continued to be instituted is between the pro- 'visions of one statute restricting the sale and traffic in intoxicating liqours and the provisions of another dealing with the same subject.
And, comparing Dominion and Ontario legislation in question, it is clear that, in point of restrictiveness, the Ontario Act makes no attempt to approach the prohibitory provisions of Part II of the Canada Temperance Act; the Canada Temperance Act, speaking broadly, has for its object the prevention of commercial dealings in intoxicating liquor within the territory in which it is in force; the Ontario Liquor Control Act, in its essence, is an Act for regulating the sale and consumption of such liquor, and makes provision for enabling the people to procure such liquor by the purchase of it through Government stores and other agencies.
Therefore, the "provincial laws"
having ceased to " continue as restrictive " as the Canada Temperance Act, the suspension of the operation of Parts I to IV of the Canada Temperance Act in the counties in question has ceased. The said words "continue as restrictive as aforesaid" should not be construed as if the words "in the opinion of the Governor in Council" were inserted therein; and no declaration by the Governor in Council is required to effect the cessation of the suspension.- As to the question of the constitutional validity of the Canada Temperance Act, raised in argument-Reading the order of reference in light of Russell v. The Queen, 7 App. Cas. 829, and Att. Gen. for Ontario v. Att. Gen. for the Dominion (local option reference), [18961 A.C. 348, the questions submitted should not be construed as involving any such question.-Per Cannon J. (dissenting): From the nature and provisions of the Canada Temperance Act, as a whole, and having regard to as. 23 and of the Interpretation Act (R.S.C. 1927, c. 1), the suspension under said s. 175 can cease only by proclamation to that effect by the Governor General in Council, fixing a date for such cessation of suspension. Part II of the Canada Temperance Act is not in operation in the counties in question.-Per Crocket J. (dissenting): On the true construction of said s. 175, the question as to whether the laws of any province relating to the sale and traffic in intoxicating liquors are at any time as restrictive as to the provisions of Parts I to IV of the Canada Temperance Act, is one for the determination of the Governor in Council and not for a court. Part II of said Act is not in operation in the counties in question. The pro- 8.C.R.]
Concluded cedure to bring it into operation, is to rescind the orders in council suspending the operation of the Act in said counties, if the Governor in Council is satisfied that the provisions of the liquor laws of Ontario are not as restrictive as those of Parts I to IV of the Canada
Temperance Act, and to promulgate the rescinding orders in the usual manner.
re
ONTARIO........................
2-See 4.
INVESTIGATIONS
INVITEE See
JUDGMENTS-Action for balance due under contract-Dismissal of application to set aside default judgment and give leave to defend-Appeal dismissed from refusal to set aside judgment, but reference made under terms of contract- Reference, and report of findings-Objection to jurisdiction-Confirmation of report-Appeal therefrom...........
JURISDICTION
LAND
REGISTRY
(B.C.)- Liability of Assurance Fund........ 278
LANDLORD AND TENANT-Right of distress as against chattel mortgage from
" the tenant "-Mortgage given while mortgagor was not tenant of distraining landlord-The Distress Act, R.S.A., s. 5.1-One Beatrice A. Raby, some years prior to becoming the tenant of the appellants, had given the respondent a chattel mortgage on her household goods and furniture.
During the tenancy the appellants made a distress for overdue rent and seized the goods found on the premises. The respondent claimed the goods under the chattel mortgage and asserted that they were exempt from the appellants' distress for rent. An interpleader issue between the parties was directed to be tried.
Section 5 of the
Alberta Distress Act, R.S.A., which restricts a landlord's right of distress to the goods of the tenant contains the proviso that the restriction shall not apply * * * in favour of any person whose title is derived by purchase,
* * * assignment from the tenant
* * * by way of mortgage
LANDLORD AND TENANT
-Concluded or otherwise"
* *
The trial judge, Lunney, J., held in favour of the appellants (landlords); the Appellate Division (Clarke, J., dissenting) took the opposite view, and accordingly gave judgment in favour of the respondent (chattel mortgagee).
The Appellate Division gave special leave to the appellants to appeal to this Court.-Held, reversing the judgment of the Appellate Division W.W.R. that the goods and chattels covered by the mortgage were subject to the appellants' distress for rent. LEAVE TO APPEAL
LICENSEE
LIFE INSURANCE
LIQUORS
MANDAMUS-To compel Minister of Finance to pay out of Assurance Fund- Land Registry Act (B.C.)......... MARRIAGE
MARRIED WOMAN-Stock exchange transaction....................... MASTER AND SERVANT-Contract- Trial-Action for damages for alleged wrongful refusal by employer to pei mit employee to perform duties for which he was employed-General verdict for plaintiff-Trial judge's charge to jury- Alleged misdirection-Objection on appeal that specific questions not put to jury---Sufficiency of evidence to support verdict.
2-Motor vehicles- Negligence Servant disobeying orders in allowing another person to drive car-Duty of servant to keep proper look-out and exercise control over person driving for him -Collision-Liability of master-Quantum of damages.................... 3-Contract-Restraint of trade.. 412 4--See 1, 2; 2. Income tax.
...................
2-Purchase by railway company of right of way-Agreement between the parties-Application to Board of Railway Commissioners to fix compensation for coal lying under right of way-Railway Act, R.S.C. 1927, c. 170, s. 197. 120
MINOR-Automobile accident in damages-Minor injured, residing in
United States-Guardian appointed by court of that country-Authorized by it to take action-Letters of guardianship providing for fyling of a bond before receiving moneys-Bond not fyled-Exception to the form-Private international law-Art. 6 C.C.-Arts. 78, 79
C.CP.]-One Ruth Schatz, domiciled in the state of New York, was injured in an automobile accident in Montreal and suffered serious personal injuries.
order to bring an action in damages, being a minor, she had to be represented according to article 78 C.C.P. Accordingly she filed a petition in the Surrogate's Court of the state of New York asking for the appointment of her father, the appellant, as "her general guardian to commence and carry on such action for her."
Pursuant to an order from that court granting the petition, letters of guardianship were issued appointing the appellant "limited guardian of the person and estate of the said minor on (his) making, executing and filing with the said Surrogate such bond or application as is required by the statute in such cases made and provided "; the same court in its previous order having stipulated that " until the filing of a bond
*
*
* the guardian
(was)
restrained from receiving any funds arising from said action."
appellant then brought the present action in damages on his own behalf and as guardian to his minor daughter and, with the return of the writ, he filed duly certified copies of the decree and of the other judicial proceedings in the New
York court.
The respondent made a motion in the nature of an exception to the form disputing the appellant's capacity and quality to bring his action on behalf of his minor daughter on the ground that he had been appointed limited guardian on "filing with the
Surrogate's Court a bond or obligation as is required by statute" which provision had not been complied with by him.
The exception to the form was dismissed by the Superior Court;
but the appellate court reversed that decision and dismissed the appellant's ac- MINOR-Continued tion as to the damages claimed on behalf of his minor daughter.-Held, reversing the judgment of the Court of King's Bench (Q.R. 56 K.B. 520), that, by virtue of his appointment as guardian by the court of the state of New York, the appellant had the quality and the capacity to bring in the province of Quebec an action in damages on behalf of his minor daughter.
According to the provisions of article 79 C.C.P. and also in uniformity with the terms of article 6 C.C., all foreign persons may come before the Quebec courts, providing they are authorized to appear in judicial proceedings under the law of their country; the test of their capacity or quality before the Quebec courts being their quality or capacity in the courts of their own country. Although there is in the record no evidence of the New York law by expert witnesses, the decree and the other judicial proceedings in the New York court, duly filed, make prima facie proof of the facts therein set forth and they afford the best evidence that the law therein applied is the law in force in the country in which the judgment had been rendered. Therefore, by force of that decree and of the foreign law of which it bears evidence, the appellant was a person duly authorized to appear in judicial proceedings within the meaning of article 79 C.C.P., and it follows that he had the quality and capacity assumed by him in this action.
As to the restriction placed upon the appellant's authority to receive the funds arising from the action until he had fyled a bond required by the order appointing him as guardian, it should be held that the letters of guardianship cannot be construed as limiting the authority of the guardian to proceed with the action and that such restriction has to do with nothing else but the final discharge if and when payment would be made; and the Quebec court seized with the case, by force of its inherent power and proprio motu, would have the power to stay proceedings at any stage, or at all events, before making its final adjudication, so that the condition imposed in the restriction may be previously complied with: in that way, the court would keep control of the case and would give judgment only after it would be satisfied that the required bond has been ap- 2-Infant-Custody-Child placed by unmarried mother with a Children's Aid Society, and placed by it in care of defendants-Defendants failing to observe agreement to bring up child in Roman Catholic faith-Child never made a ward MINOR-Concluded of the Society-Issue between Society and defendants to determine right to child's custody - Children's Protection
Act, R.S.O. 1927, c. 279............
MISREPRESENTATION
See (FIRE)
MONTREAL CITY CHARTER
MORTGAGE-Person becoming registered owner of land, and making mortgage thereon (with covenant for payment), for benefit of company-Transfer from him to company made but not registered assignment by company under Dominion Bankruptcy
Act-Indemnity claimed by registered owner (as trustee) against company's trustee in bankruptcy (as cestui que trust) against liabilities in connection with land and mortgage..............
MOTOR
VEHICLES - Master and servant-Servant disobeying orders in allowing another person to drive car-Duty of servant to keep proper look-out and exercise control over person driving for him-Collision-Liability of master-Quantum of damages.]
The respondent's action arose out of a collision between two motor vehicles on a public highway running easterly from the city of Edmonton through Mundare and Vegreville.
The collision occurred about five and one-half miles west of Mundare at a place distant about
72 feet from the common crest of an incline of the highway going westerly and a shorter and steeper incline going easterly. A spreader had gone over the road sometime before the collision and had pushed considerable loose gravel to the northerly half of the road.
Apparently both eastbound and westbound traffic had been using the southerly half of the road considerably, and on this half there were two well defined wheel tracks, the southerly one of which was
21 or 3 feet from the southerly edge of the travelled part of the highway.
The appellant company had in its employ as driver the defendant Colby.
ometime before the day of the collision, Colby had, contrary to the instructions of his employer, arranged with the defendant Wilkie, a licensed driver of many years experience and of good record, to come on the truck with him and to help by occasional driving and other work, Colby paying Wilkie from time to time small sums for these services. Both Colby and Wilkie drove alternately from
Edmonton through Mundare to Vegreville and back to Mundare; and Wilkie drove westerly towards Edmonton after leaving Mundare, the wife of Wilkie also occupying the driving seat. As the truck came towards the incline on which the collision occurred, it was proceeding on the southerly half of the road in the wheel tracks, and after passing a horse drawn vehicle, continued up the hill in the southerly wheel tracks.
Wilkie testified that, when his truck was approximately 65 feet from the place of the collision, he saw an eastbound car coming very fast and decided to swing the wheels towards the north ditch and had the right front wheel at the north edge of the road and the truck pointing northwesterly when it was struck at the left front by the eastbound motor vehicle which was heading northeasterly and out of control.
Colby, in his evidence, stated that it was only when Wilkie pulled the truck towards the ditch at the north side that he, Colby, had the first intimation that a motor vehicle was approaching from the west and that he then shouted to Wilkie to " look out." The eastbound car was owned by the defendant North Star Oil Company and driven by the defendant Hart; in it was one Kuproski as a passenger, who was killed by the force of the collision. The action was brought by the widow of Kuproski against both employers and drivers and against Colby as employee in charge. The trial judge gave judgment against all the defendants in favour of the respondent and her three children for a total sum of $24,100 which judgment was affirmed by the Appellate Division. The appellant company was the only defendant who appealed to this Court.-Held, affirming the judgment of Appellate
Division
([1934] W.W.R. 7), that the appellant company was liable.
The defendant Colby, in his capacity of employee of the appellant, was present in the front seat of the cab of the motor truck while the defendant Wilkie was driving. It was within the scope of his employment and it was his plain duty to see that the truck was driven with reasonable care; to that end to keep a proper look out and to exercise such control as might be necessary for the purpose of preventing mistakes or faults on the part of Wilkie.
His failure to do so constituted negligence in his capacity of servant of the appellant, negligence for which the appellant company is therefore responsible.-Per
Hughes JJ. and Maclean J. ad hoc.- As to the contention of the appellant that, assuming there was negligence on the part of Wilkie, it should have been held that Colby's act in permitting
Wilkie to drive was outside the scope of
Colby's employment, an unauthorized act to effect a purpose of Colby for which the appellant employer was not liable, held that Colby was in charge and in legal control of the truck although the actual driving had been temporarily turned over to Wilkie. and that
Colby continued to have, within the scope of his employment, a duty to keep a proper look out and a duty to see that the truck was in the proper side of the road, considering the rights of other traffic; Colby, when he gave the actual driving to Wilkie. did not divest himself of the above duties, which were not outside the scope of his authority merely because it was outside the scope of his authority to permit Wilkie to drive the motor truck.
GRAN Co. v. KuPROSKI ........ 13
2-Negligence-Pedestrian struck by motor car-Statutory onus of proof that damage did not arise through driver's negligence (Vehicles and Highway Trafic
Act, Alta., 1924, c. s. 66)-Meeting the onus-Effect of establishing contributory negligence.1-Plaintiff, while walking easterly along the roadway (the sidewalks being in bad condition) of a street in Edmonton, Alberta, at 725 p.m. on
March 1934, was struck, four or five feet from the south (right hand) curb, by a motor car driven easterly by defendant. The evening was dark and the pavement wet.
Defendant had been driving cautiously and watching for pedestrians. To avoid a motor which was meeting him, he turned towards the south curb. The glare of the other car's lights prevented him, for a moment or so, from seeing what was ahead of him.
As soon as he was out of the glare he saw plaintiff about eight feet ahead of him. He immediately turned his car to the left, shut off the motor and applied his brakes, but struck her.
Plaintiff's action for damages was dismissed by
Ford J. ([1935]
2 W.W.R. 47), who found that defendant had satisfied the onus placed upon him by s. 66 of the
Vehicles and Highway Traffic Act (1924,
Alta., c. and, on the evidence, did not in fact cause the accident by his negligence. This judgment was reversed by the Appellate Division, Alta.
Defendant appealed.-Held:
There was ample evidence to support the trial judge's finding; there was no ground upon which his judgment should be set aside; and it should be restored.
(Per Duff CJ.: There was no ground in the circumstances for attributing negligence to plaintiff. The real question for the trial judge was whether or not defendant had acquitted himself of the statutory onus. On the record it would seem that defendant had shown that, in the situation which confronted him, he had not failed in that standard of care, skill and judgment which can fairly and properly be required of the driver of a motor vehicle; if there was a mistake of judgment on his part, it was an excusable mistake, and the most unfortunate misadventure was an accident; the standards to be applied are not standards of perfection.
In this view, the finding of the trial judge, who had the opportunity of observing defendant under cross-examination, ought not to be disturbed).-Poole & Thompson Ltd. v. McNally, [19341 Can. S.C.R. 717 (referred to in argument and in the judgments below) discussed and explained. Under the enactment as to onus there dealt with (s. 65 (1) of the Prince Edward Island Highway Traffic Act, in substance the same, in the pertinent respects, as that now in question), standing by itself, the defendant may acquit himself of the onus cast upon him, by establishing that the plaintiff's negligence materially contributed to the mishap, and that he could not, in the result, by the exercise of reasonable care, have avoided the consequences of that negligence; or that the mischief was directly caused by the negligence of the plaintiff as well as that of himself co-operating together.
The enactment does not itself appear to aim at altering the substantive rules of common law touching the effect of contributory negligence; its purpose seems to be to change the law as to the burden of proof, as explained in Winnipeg Electric Co. v. Geel, [1931] Can.
443,
A.C. 690, MuRRAY............. 3-Collision - Damages - Intersection of streets-Right of way-Liability- -Statute-Interpretation-The Highway Act, B.C., 1930, c. 24, s. 21.1-The respondent, who was driving his car north on Blenheim street in Vancouver, on reaching 14th avenue, looked to his right and saw the appellant's truck about 100 feet away from the intersection and coming towards it.
He proceeded to cross the intersection and when nearing the opposite side the rear of his car was struck by the appellant's truck. The driver of the truck testified that he looked to his left, the direction from which the respondent approached the intersection, at a point about 50 feet east of Blenheim street. and did not see the respondent's car. He then looked to his right and did not look again to his left until he had proceeded some distance in the intersection.
He then saw the respondent's car at a point just inside the intersection limit and he immediately put on his brakes.
The trial judge dismissed the action, but the majority of the Court of Appeal allowed the respondent damages for an amount of 85,663.40. Section 21 of The Highway
Act, B.C., 1930, c. 24, provides that "the person in charge of a vehicle so drawn or propelled upon a highway shall have the right of way over the person in charge of another vehicle approaching from the left upon an intercommunicating highway and shall give the right of way to the person in charge of another vehicle approaching from the right upon an intercommunicating highway; but the provisions of this section shall not excuse any person from the exercise of proper care at all times."-Held that, upon the evidence, the respondent's action should be dismissed.
There is no ambiguity or obscurity in the language of section 21 of The Highway Act; the driver approaching an intercom municating highway is bound to keep a lookout for drivers approaching upon the right upon that highway and to make way for them, and, in doing so, a collision is not only improbable, but hardly possible.
The respondent in this case failed in this duty and such neglect of duty was the direct cause of the collision.-Per Duff C.J.-The plain and unmistakeable words of a statute should not be glossed by paraphrases based upon surmises or suppositions as to the purpose of the legislature.-Judgment of the Court of Appeal (49 B.C.R. 140) rev.
v. WILLS.....
4-Statutes - Repeal provision in statute and enactment at same time in another statute of substantially the same provision- Retrospective construction of latter provision
-Injury to passenger in motor car- Action and recovery of judgment by injured person against owner (driver) of car, and subsequent action by injured person against owner's insurer; the actions being taken subsequent to expiry of insurance policy and subsequent to later repeal and enactment of certain respective legislation-Right of injured person to judgment against insurer- S. 87 (4) (repealed September 1, 1932) of
The Highway Traffic Act (Ont.) (as amended in c. 47)
S. 183 (h)
(coming into force September 1, 1932)
of The Insurance Act (Ont.) (as amended in 1932, c. 2)-"
Motor Vehicle Lia- MOTOR VEHICLES-Concluded bility
Policy "-Time limitation for bringing action.................... 5-Negligence - Street railways Collision at street intersection between street car and automobile-Right of way for street car-Duties of automobile driver and street car motorman-Joint 6- Collision between motor car and bicycle-Conflict of evidence as to manner and place of accident-Judgment at trial on jury's findings-New trial ordered by Court of Appeal-Judgment at trial restored by Supreme Court of Canada-Jurisdiction of Supreme Court of Canada challenged on ground that judgment of Court of Appeal was "made in the exercise of judicial discretion" within s. 38 Supreme Court Act (R.S.C. 1927, c. 85). .................................. 7-See
Quo warranto-Disqualification of alderman -Property owned by alderman, sold to his daughter and leased to the city- Whether alderman "directly or indirectly interested "-Paragraph (g) of s. 25 of the charter of the city of Montreal, 11 Geo. V, c. 11.1-In the year 1931, the appellant held the office of alderman of the city of Montreal and was re-elected in 1932.
Previous to his election he owned lots on Allard street, and, in 1931, he built a three-storey house thereon.
Some time in the early part of 1931 the appellant suggested to the chief of police that this house would be suitable for a police substation, alleged to be needed; and, after examination the premises and reports by officials of the city, on the 23rd of April, 1931, the city's notary received instructions to prepare a lease of the property at per month. On the 27th of April, the appellant transferred his property to his daughter for a sum of 89,500, payable in five years, nothing being paid on account, the appellant reserving his privilkge de bailleur de fonds and an hypothee on the property for the full amount. On the 6th of June, 1931, a lease was signed between the city and the appellant's daughter for a term of ten years at $125 for the first five years and for the other five years.
The city of Montreal paid these rents by cheques to the order of the appellant's daughter; all the cheques down to the 15th of April, 1932, with only one exception, were endorsed and delivered by her to the appellant, and the latter deposited them in his banking account and gave credit for same amounts on the purchase price of the property.
On the 15th of
April, 1932, the respondent filed a petition for a writ of quo warranto asking the disqualification of the appellant as alderman, alleging that the deed of sale from the appellant to his daughter was simulated and that the property in reality still belonged to the appellant, or that, alternatively, the latter had an indirect pecuniary interest in the contract ostensibly between his daughter and the city of Montreal. Paragraph (g) of section 25 of the charter of the city of
Montreal enacts that " No person may be nominated for the office of mayor or alderman nor be elected to nor fill such office: (g) If he is directly or indirectly a party to any contract or directly or indirectly interested in a contract with the city, whatever may be the object of such contract."-Held that the appellant was disqualified as alderman of the city of Montreal, as, according to the facts of the case, he was "directly or indirectly interested " in the lease to which, by its terms, his daughter and the city were the parties.-Per Duff C.J. and Rinfret, Crocket and Hughes JJ.-The existence of a common intention and expectation concerning the disposition of the rents, which was acted upon, by the transfer of cheques for rent to the father by the daughter shews that the appellant was interested in the lease within the purview of the statute.-Per Cannon
J.-The appellant, before and after his election as alderman, had a pecuniary interest in the property leased to the city, and consequently in a contract with the city, contrary to the charter.-Per
Duff CJ. and Rinfret, Crocket and
Hughes JJ.-The language of the statute is not the language of lawyers; the phrase " interested in " has no technical signification; effect must be given to it according to the common usage of men.
-Per Cannon J.-The nature and exten of such "interest" must be established by the facts in each case; and whenever an alderman finds himself in such a position that he must choose between the interest of the city in a contract and his own, he is instantly disqualified.-Per Duff CJ. and Rinfret,
Crocket and Hughes JJ.-In this case, there is "concert," within the meaning of the Lord Chancellor's judgment in
Norton v. Taylor, [19061 A.C. 378, between the appellant, as alderman, and his daughter, as a contractor with the city, by which moneys paid by the city under the contract were to be, and in fact were, transferred to the alderman in payment of a debt owing to him by the contractor.
2- Assessment and taxation-Exemption-agreement with owner of property -Free cession of soil for street-Property to be considered as land under cultivation until sold as city lots-Nullity- Ultra vires.]-The municipal corporation respondent agreed, by a notarial deed duly ratified by by-law, with the appellant, owner of certain vacant land situated within the municipality, to consider such land as land under cultivation in consideration of the free cession of the soil of the streets to be made by the owner. Some years later, the appellant, being sued for taxes imposed for construction and maintenance of streets and sidewalks, brought the present action claiming that the by-laws enacting such taxes should be declared illegal and set aside, as far as he was concerned, on the ground that the municipal corporation had agreed to do at its own expenses the works for which the said taxes had been imposed upon him.- Held that the judgment appealed from, dismissing the appellant's action, should affirmed.-Per
Lamont,
Crocket and Davis JJ.-The by-law of the municipal corporation respondent, ratifying the agreement with the appellant, was radically null and illegal. Such agreement by the municipal corporation to consider as land under cultivation a property which according to the then existing laws was liable to taxation, was ultra vires. A municipal corporation, without special authority granted by the legislature, cannot renounce directly or indirectly its right, nor fail in its duty, to collect from assessable property the funds needed for general administration and for the performance of public works. Hampstead Land and Construction Co. v. La Ville de Hampstead (Q.R. 44 KB. 321). 3- Highways-Right of access-Action to compel municipality to permit change in curb to afford owner of adjoining land convenient access to street for purposes of its business-Municipal Act, R.S.O. 1927, c. 238; Local Improvement Act, R.S.O. 1927, c. 23 ................. 4-See 3, NEGLIGENCE-Claim for damages for injury from alleged escape of gas-Evidence-Directions in charge to Jury- Construction of jury's findings - New trial-Absence of fume pipe on boiler- Liability of defendant which installed gas appliances on the other defendant's premisea.]-Plaintiffs sued P. Co. and 0.
Co. for damages for injury to one of them (wife of the other) alleged to have been caused by escape of gas from P.
Co.'s premises (which were in the same building as plaintiffs' premises). 0. Co.
had, five years before the alleged injury, installed gas appliances in P. Co.'s premises, and it supplied gas to P. Co.
At the trial the jury found that plaintiff was injured by gas; that it escaped from gas appliances on P. Co.'s premises; that
P. Co. had not satisfied the jury that it was not guilty of negligence causing or contributing to the escape; that 0. Co.
did not take the precautions it ought to have taken in installing and maintaining the gas appliances; that its failure to take such precautions caused or contributed to the causes of the injury;
that 0. Co. was guilty of negligence in the installation or maintenance, causing in whole or in part the injury, " in failing to install fume pipe on boiler when said boiler was installed "; that there was a verbal agreement between
P. Co. and 0. Co. "to install the aforementioned boiler and maintain same in good order"; and that the companies failed to observe the terms of such agreement "by not insisting on the installation of fume pipe on boiler at the time said boiler was installed "; that 0.
Co.'s failure to observe its agreement caused or contributed to the causes of the injury; and assessed damages. Judgment was given against both defendants.
The Court of Appeal for Ontario reversed the judgment and dismissed the action. Plaintiffs appealed.-Held: There should be a new trial. Cannon and
Hughes JJ., dissenting, would restore the judgment at trial.-Duff CJ. and
Smith J., while not entirely satisfied to go as far as the Court of Appeal, held that on the record including the evidence and the judge's charge to the jury, the trial and its result were so unsatisfactory that the verdict should not stand and there should be a new trial. As to the jury's finding that defendants were both negligent in not insisting upon setting up a fume pipe, they held that this finding meant that it was perfectly well understood on all sides that the installation was incomplete, in that the absence of a fume pipe might have the effect of allowing noxious gases to escape which might do harm; and that the negligence found occurred when the boiler was installed-five years before the alleged injury; and Duff C.J. and Smith J. held that in such circumstances 0. Co. would not be responsible (M'Alister v. Stevenson [1932] A.C. 562, at 578; Gregson v. Henderson Roller Bcaring Co., 20 Ont. L.R. 584; Farr v. Butters, [1932] 2 K.B 606 at 617; Caledonian Ry. Co. v. Mulholland [18981 A.C. 216; and Bottomley v. Bannister, [1932] 1 K.B. 458, at 472-3, referred to).-Rinfret J., while otherwise concurring with Duff CJ. and Smith J., expressed an inclination to hold that the action as against 0. Co. should be dismissed-that the effect of the verdict was that its negligence occurred at the time "when said boiler was installed," five years before the alleged injury; and, applying to the verdict the principle laid down in Dominion Natural Gas Co. Ltd. v. Collins, [19091 A.C. 640, and having regard to the jury's answers with respect to the full knowledge of P. Co. concerning the incomplete nature of the installation, the result was that 0. Co. was not legally liable; but, in view of the opinions of the other members of the court, equally divided, he concurred in disposing of the case as proposed by Duff C.J. and Smith J.-Cannon and Hughes JJ., dissenting, were of opinion that there was reasonable support in the evidence for the jury's findings; and that, applying the law to the facts as found by the jury, the judgment at trial against both defendants should be restored.
(With regard to the liability of 0. Co., reference was made to M'Alister v. Stevenson, [19321 A.C. 562, at 611-612, 580-581, 595- 597; Dominion Natural Gas Co. Ltd. v. Collins, [1909] A.C. 640, at 646, 647.) 2-Injury to pianist while playing in auditorium, from bursting of lens of spotlight-Liability of proprietor of auditorium-Relationship between proprietor and pianist-Mere licensee-Extent of proprietor's duty.]-Defendant rented its auditorium to H. for a musical recital which H. was giving, and permitted H., without charge, to use it for a rehearsal previous to the recital.
Plaintiff, H.'s brother, was, for a fee (which also covered his preparatory work), to assist H. as a pianist in the recital. During the rehearsal, while plaintiff was playing a piano on the stage of the auditorium, the lens of a spotlight suspended above the piano burst and a piece of broken glass cut his hand. He sued defendant for damages.-Held: Plaintiff was a mere licensee of defendant, without an interest, plaintiff not having entered the auditorium upon business which concerned defendant upon defendant's invitation, express or implied.
In such circumstances plaintiff did not come within the rule applied in Indermaur v.
Dames, L.R. 1 C.P. 274, L.R. 2 C.P.
311, and certain later cases, which treat a licensee with an interest as being entitled practically to the same degree of protection at the hands of the licensor as an invitee in the usual sense.
bring a person within this category it must be shewn that he was upon the premises for some purpose in which he and the proprietor had a common or joint interest (Hayward v. Drury Lane
Theatre, [1917] 2 KB. 899, at 913; Addie v. Dumbreck, [19291 A.C. 358, at 371).
Even if plaintiff had a substantial financial interest in the success of the recital, this would make no difference in the relationship between defendant and plaintiff and would be quite insufficient to make plaintiff a licensee with a joint or common interest as between him and defendant. Plaintiff being a mere licensee, defendant's only duty to him was not to expose him to a hidden peril or trap, that is, a peril which was not apparent to the licensee but the existence of which was known to the licensor (or which ought to have been known to the licensor, should it be taken from certain dicta in Addie v. Dumbreck, [19291 A.C. 358, and Fairman v. Perpetual Investment
Bldg. Soc., [19231 A.C. 74, that the proprietor's duty is recognized as so enlarged; whether so or not, the law still recognizes a distinct line of demarcation between the duty owed to an invitee and that owed to a mere licensee).
-Held, further: Upon the evidence, the spotlight in question was not a trap or hidden peril within the meaning of the cases.-Dismissal of the action by the Court of Appeal for Ontario (reversing judgment at trial) was affirmed.
v. THE T.
3- Street railways-Motor vehicles- Collision at street intersection between street car and automobile-Right of way for street car
Duties of automobile driver and street car motorman-Joint negligence.1-An automobile going easterly and defendant's street car going southerly collided at a street intersection in the city of Toronto, causing the automobile driver's death.
In actions against defendant for damages, the trial judge found that defendant's motorman and the automobile driver were each negligent to the extent of fifty per cent., and gave judgment against the defendant
(for one-half the total damages assessed).
The Court of Appeal for Ontario held that on the evidence defendant could not be found guilty of any negligence causing the accident, and dismissed the actions. On appeal to this Court:-Held: The appeal should be allowed and the judgment at trial restored.-Per Duff CJ., Cannon and Davis JJ. and Dysart J. ad hoc: Generally speaking, a street car motorman is entitled to assume that a pedestrian or motorist approaching the track will stop to permit the street car to pass by, and there was in the present case a statutory right of way in favour of the street car; but the existence of a right of way does not entitle the motorman to disregard an apparent danger that confronts him. In the circumstances appearing in the present case, the motorman should have seen the automobile and realized the probability of its driver continuing in his course across the track at the approaching intersection. Had either the motorman or the motorist used due care or caution, the collision would not have occurred.-Per Duff CJ. and Crocket J.: The real effective cause of the collision was the joint negligence of the motorist and motorman. It was the motorman's duty in approaching the street intersection to have his street car under such control as to enable him to stop in order to avoid hitting any person venturing across the street in his path, as it was the duty of the motorist to have his car under similar control. On the evidence, both approached the intersection at such a rate of speed as to create at the intersection a peril which it was then too late for either to avoid. ...... 671 4- Motor vehicles-Collision between motor car and bicycle-Conflict of evidence as to manner and place of accident -Judgment at trial on jury's findings- New trial ordered by Court of Appeal-- Judgment at trial restored by Supreme Court of
Canada - Jurisdiction of Supreme Court of Canada challenged on ground that judgment of Court of Appeal was "made in the exercise of judicial discretion" within s. 88 Supreme Court Act (R.S.C. 1927, c. 85). -A motor car driven by defendant westerly on Q. street, a " through " highway, near the city of Toronto, collided with a bicycle driven by plaintiff who had come southerly on M. avenue. There was conflicting evidence as to the manner and exact place of the accident. Defendant contended that plaintiff came fast down M. avenue and ran into the motor car at the street intersection. It was contended for plaintiff that he had turned off M. avenue and proceeded westerly along Q. street and was struck by the motor car about 50 feet west of
M. avenue. Plaintiff's action for damages was tried with a jury, who, in answer to questions, found that defendant had not satisfied the jury that the accident did not arise through any neglifence or improper conduct on defendant's part; that defendant's negligence causing the accident was "in not exercising the proper amount of care to avoid striking boy who was on the highway going west "; that plaintiff could not have avoided the accident by exercising reasonable care; and assessed damages, for which plaintiff was given judgment. The Court of Appeal for Ontario, taking the view that it was "almost impossible to form any opinion as to exactly what had taken place," that the "extraordinary large amount"
damages "could only be justified by a finding of serious permanent injury,"
that the trial was of a "generally unsatisfactory nature," and that there was possibility of the production of more satisfactory evidence at a new hearing," set aside the judgment at trial and ordered a new trial. Plaintiff appealed.- Held: (1) The judgment of the Court of Appeal was not a " judgment or order made in the exercise of judicial discretion " within s. 38 of the Supreme Court
Act (R.S.C. 1927, c. 35); and an appeal lay to this Court.-(2) The judgment for plaintiff at trial should be restored.
There was evidence on which the jury could find as they did; and their conclusions ought not to be disturbed merely because they were not such as judges sitting in courts of appeal might themselves have arrived at (Toronto Railway Co. v.
King, [19081 A.C. 260, at 270; Mechanical, etc., Co. v. Austin, [1935] A.C. 346, at 375, cited). The reasons expressed by the Court of Appeal (discussed in the judgment of this Court) did not shew grounds to justify a new trial in this case.
STOREY.............
5-Master and servant
Motor vehicles-Servant disobeying orders in allowing another person to drive car- Duty of servant to keep proper lookout and exercise control over person driving for him-Collision-Liability of master-Quantum of damages.......
6-Motor vehicles-Pedestrian struck by motor car-Statutory onus of proof that damage did not arise through driver's negligence (Vehicles and Highway
Traffic Act, Alta., 1924, c. 81, s. 66)- Meeting the onus-Effect of establishing contributory negligence............
See Moron 2.
NEGLIGENCE-Concluded
7-Railways-Railway employee, while walking on track in course of duty, struck by train between whistling post and highway crossing-Bad weather conditions-Failure to sound whistle and bell in accordance with s. 808 of Railway Act (R.S.C. 1927, c. 170)-Whether employee entitled in law to benefit of s. 808-Railway company's rules-Failure to have headlight burning under stormy conditions in day-time-Evidence -Directions to jury-Findings of jury. ................................
8-Motor vehicles-Collision at street intersection-Right of way........ 9-See
1,
NEGOTIABLE INSTRUMENTS NULLITY OF MARRIAGE
See WIFE 1. PATENT-Alleged infringement struction of claims in specification-Description in specification-System contemplated or embraced by the claims- Automatic train control apparatus.]-An appeal by the plaintiff from the judgment of Maclean J., President of the Exchequer Court of Canada, [19341 Ex. C.R. dismissing its action for alleged infringement by defendant of a patent of invention of an automatic train control apparatus, was dismissed on the ground that no infringement was established. It was held that the claims sued upon, as regards the devices in the apparatus on the vehicle which respond to the " caution " and " danger " signals, when these claims are properly construed in relation to the specification as a whole, do not contemplate a system which could be effectively worked without the use of alternating current circuits; and since defendant employed direct current circuits alone, no infringement was established. Further, the opinion was expressed that, on construction of the specification as a whole, the monopoly contemplated by the claims relied on by plaintiff would not embrace a system in which the responsive inductive device employs cumulative and not opposing fluxes; and that the defendant's system would not be practically operable if a responsive inductive device making use of opposing fluxes were substituted for the device operating with cumulative fluxes which was actually part of its system.-It is the duty of a patentee to describe in unambiguous terms his invention and the manner in PATENT-Concluded which it is to be put into effect-One cannot by reference import into a claim the description in the specification minus any part of it which describes some essential feature of it.
& Co v. NEW
PETITION OF RIGHT-Fiat-Granted against the "Minister of Roads" as prayed for-Motion to amend petition of right, substituting the name of "His
Majesty the King "-Jurisdiction of trial judge to grant motion.]-The respondent presented a petition of right, which was granted, praying that she be authorized to bring action against the "Minister of Roads " to recover the sum of $10,000 as damages for the death of her husband who was killed following a collision of his automobile on a provincial highway with a tractor belonging to the Department of Roads. The respondent, after the hearing of the case but prior to judgment, made a motion before the trial judge for leave to amend the prayer of her petition of right by replacing the words " Minister of Roads " by the words
"His Majesty the King."
The motion was granted by the trial judge at the same time that judgment was given on the petition of right awarding 85,000 as damages, which judgment was affirmed by a majority of the appellate court.
The appellant's counsel before this Court, besides denying any liability of the
Crown upon the facts of the case, contended that the trial judge should not have allowed the substitution of the name of "His Majesty the King" for the "Minister of Roads" without the previous authority of a new fiat.-Held that it was competent to the Superior
Court to grant the motion to amend the petition of right, if that were considered necessary.-Held, also, Cannon J. and
Dorion J. ad hoc dissenting, that upon the facts of the case as found by the trial judge, the appellant was liable.
THE KING v. DEMERS.............
PLEADINGS-Amendment of petition of right......................
See RIGHT
2; 1.
POWER OF ATTORNEY
PRINCIPAL AND AGENT
PRIVATE INTERNATIONAL LAW PROMISSORY NOTE
PUBLIC UTILITIES ACT (N.B.) QUO WARRANTO
RAILWAYS-Jurisdiction of Board of Railway Commissioners for Canada- Coal lying under right of way-Fixing amount of compensation-Transfer of land-Agreement between parties-Railway Act, R.S C., 1927, c. 170, s. 197- Applicability of judicial decision to the case.]-The appellant Berg, as owner, and the appellant Penn Coals Ltd., as lessee from her, of certain quarter section situated in Alberta, presented an application to the Board of Railway Commissioners under section 197 of the Railway Act, asking the Board to fix the amount of compensation payable to the appellants in respect of coal lying under the right of way of the respondent railway. The latter alleged that, in 1914, it purchased the right of way from the then owner, predecessor in title of the appellants, paid him in full for all the coal required to be left for the support of the right of way and that by virtue of the transfer itself, it was entitled to such support.-Held that the judgment of the Board dismissing the appellants' application (40 Can. Ry. Cas. 361) should be affirmed.-In the absence of some plain language in the contrary sense, of which there is none, section 197 of the Railway Act, which was not enacted until 1919, cannot be so construed as to prejudice the rights of the parties as settled by the transaction between them in 1914.-Also, the agreement between the former owner and the railway company, dated the 5th March, 1914, but not finally completed by transfer until the 28th September, 1914, should be construed and interpreted in the light of a decision of the Judicial Committeee of the Privy Council given on the 6th July,
Rys. Co.... 2--Negligence - Railway employee, while walking on track in course of duty, struck by train between whistling post and highway crossing-Bad weather conditions-Failure to sound whistle and bell in accordance with s. 808 of Railway Act (R.S.C. 1927, c. 170)-Whether employee entitled in law to benefit of s. 308-Railway company's rules-Failure RAILWAYS-Continued to have headlight burning under stormy conditions in day-time-Evidence-Directions to jury-Findings of jury.]- Plaintiff, a section foreman for defendant railway company, while walking westerly on the track in the course of his duty of inspection, about o'clock a.m. on a very cold and stormy winter's day, was struck by a special freight train of defendant coming behind him.
He sued for damages.
The accident occurred about 250 yards east of a highway level crossing, and west of the whistle post for that crossing. S. 308 of the Railway
Act, R.S.C. 1927, c. 170 and also defendant's rule required the whistle to be sounded at least 80 rods before reaching the crossing and the bell to be rung continuously from the sounding of the whistle until the engine had crossed the highway.
These requirements were apparently (and as the jury found) not observed on the occasion of the accident, the train engineer, though frequently during his journey sounding the whistle and bell, not being able under the stormy conditions to locate exactly the whistling posts. The trial judge charged the jury that the failure to comply with s. 308 was "absolute negligence in law,"
and that the jury was "not free to find anything else with respect to it." Defendant's rule required that a headlight be displayed to the front of every train by night, and its rule 9 required that "when weather or other conditions obscure day signals, night signals must be used in addition." The engine's headlight had been burning but it was extinguished prior to the accident, the train men regarding it as useless owing to ice and snow on the glass and the storm's severity.
The trial judge put the question of the headlight to the jury as a matter for them to deal with on the meaning of the words in defendant's rule book.
The jury found that the accident was caused by defendant's negligence in sounding of whistle, no bell ringing, no light in headlight of engine." Judgment was entered for plaintiff, which was reversed by the Court of
Appeal for Saskatchewan, which dismissed the action ([19341 2 W.W.R. 24).
-Held:
There should be a new trial
(Cannon and Crocket JJ., dissenting, would restore the judgment at trial).- Per Duff CJ., Lamont and Davis JJ.:
The said charge to the jury as to s. 308 was a misdirection. Per Duff C.J. and
Davis J.: S. 308 was designed for the protection of persons on, or about to proceed on, a highway crossing at rail level, and was not intended for the protection of persons walking along the tracks mile after mile without any refer- RAILWAYS-Continued ence to highway crossings, and plaintiff, upon the facts of this case, was not entitled as a matter of law to the benefit of it (Chesapeake & Ohio Ry. Co. v. Mihas, 280 U.S. 102, and O'Donnell v. Providence & Worcester Rd. Co., 6 Rl. 211, cited.
Grand Trunk Ry. Co. v. Anderson, 28 Can. S.C.R. 541, and Mc- Mullin v. Nova Scotia Steel & Coal Co., 39 Can. S.C.R. 593, explained and distinguished).
The jury's finding of negligence in respect of the failure to sound the whistle and bell was obviously based on the breach of s. 308 and said misdirection of the trial judge, and therefore could not be upheld. Their finding of negligence in respect of the headlight might fairly be attributed to the disobedience of defendant's rules; the evidence was merely guesswork as to whether or not the accident would have been avoided had the headlight been burning; and upon the evidence as it stands their finding of negligence in respect of the headlight could not be maintained. But, on the question of whether or not, quite apart from the statute, there was any negligence on defendant's part that caused the accident, the trial was very unsatisfactory, and there should be a new trial.-Per Lamont J.: Plaintiff, as an employee on the track in performance of his duty, was one for whose benefit defendant's rules were made (reference made to a " General Notice " in defendant's rule book, that " obedience to the rules is essential to the safety of passengers and employees, and to the protection of property "). As between plaintiff and defendant, the rules were as effective as the statute and were evidence of what defendant considered to be the exercise of due care. Plaintiff was injured through failure of defendant's servants to comply with the rules, and in the absence of a finding of justification or excuse for such failure, he had a right of action. Whether or not what defendant did was a reasonable precaution against accident, whether or not under all the circumstances plaintiff would have heard the whistle and bell if sounded, whether or not he would have seen the headlight if burning, were all for the jury to say. But, as it was impossible to tell whether the jury's finding as to whistle and bell was a finding of fact on the evidence or was induced by the trial judge's misdirection, there should be a new trial.- Per Cannon J. (dissenting): S. 308 would seem to protect railway employees as well as other persons (s. 419 (2) referred to in this connection). Besides, the action was based, not only on statutory duty, but also on comomn law negli- RAILWAYS-Continued gence, and default in obeying defendant's rules; which rules were sufficient evidence of the care that should be taken. The jury's findings that the rules were not complied with, and that such non-compliance caused the accident, were based on sufficient evidence and should not be disturbed.
Also the fact that plaintiff was not told, contrary to custom, before starting that day's inspection, that this extra train was coming, would aggravate defendant's imprudence in running it under such difficult weather conditions.-Per Crocket J. (dissenting): All persons rightfully upon the railway track were entitled to the benefit of s. 308
(Grand Trunk Ry. Co. v. Anderson, 28
Can. S.C.R. 541, and McMullin v. Nova
Scotia Steel & Coal Co., 39 Can. S.C.R.
593, cited); and plaintiff was entitled to rely on failure to sound whistle or bell in accordance with s. 308 as negligence, if that negligence was the direct cause of his injury. Plaintiff had a right to, and on the evidence he did, rely on compliance with defendant's rules as to whistle and bell.
It was idle to suggest that, had they been sounded, he might not have heard them. The objection that the trial judge misdirected (as aforesaid) as to the effect of s. 308, was met by Grand Trunk Ry. Co. v. Anderson (supra) and his clear directions to the jury that, before defendant could be held liable through negligence by non-observance of the statutory requirements, they must be satisfied that the injury was the direct consequence of such negligence; and defendant was not prejudiced, nor was any substantial wrong or miscarriage occasioned, by the alleged misdirection. Defendant owed plaintiff a duty to exercise reasonable care to avoid injury to him. The plaintiff relied, throughout the case, on common law negligence as well as breach of statutory duty.
The jury's finding of negligence in not using the headlight meant that, had it been on, as it should have been, it also would have warned plaintiff in time to enable him to avoid his injury; this was a finding upon a straight question of fact, depending in very large measure upon the credibility of the trainmen's testimony; which credibility the jurors had a right to test by the light of their own experience and knowledge, or as inconsistent with indisputable facts or other testimony.
Whether or not engine headlights are such signals as fall within the intendment of defendant's said rule 9, the evidence shewed that, when weather conditions were such as to obscure day signals, headlights were in fact used as additional warning signals, and the question
RAILWAYS-Concluded was whether in the existing circumstances it was negligence (causing the injury) to turn it off.
Ry. Co.................... 3-Negligence - Street railways - Motor vehicles-Collision at street intersection between street car and automobile-Right of way for street car- Duties of automobile driver and street car motorman-Joint negligence... 671 RATIFICATION
REAL PROPERTY-Land Registry Act, R.S.B.C., 1924, c. 127, ss. 216, 217, 218, 226-Liability of assurance fund-Whether judgment recovered is one for " damages" within meaning of the Act- Certificate of the court shewing award of damages-Mandamus to Minister of Finance-Whether Minister servant of the Crown.]-The prosecutors, now respondents, had been given judgment on October 27, 1933, in an action in which they alleged that the defendants in that action had fraudulently obtained a deed of conveyance which had been placed in escrow and had fraudulently registered it under the provisions of the Land Registry Act and then raised money upon the property by way of mortgage.
The charge of fraud was sustained by that judgment, and the land was vested in the prosecutors respondents subject to the mortgage, and the judgment further provided for a reference to the district registrar to ascertain the amount received by the wrongdoers under the mortgage and also rents and profits and that the prosecutors recover "the sum found due on the taking of such account."
A certificate of the district registrar on the reference directed by the judgment was dated November 22, 1933. This amount having been so fixed at a sum of $34,- 730.95, the district registrar, without making any further application to the court, entered judgment on December 30, 1933.
Writs of execution having been issued on such judgment and returns of nulla bona made thereto, a demand was made upon the Minister of Finance pursuant to section 218 of the Land Registry Act, for payment of the amount of the judgment out of the assurance fund provided for by the Act. This demand being refused, the prosecutors obtained from D. A. McDonald J. an order for a writ of mandamus commanding him to pay. The Court of Appeal held that the order had been properly made under sections 216 and REAL PROPERTY-Continued
218 of the Act.-Held, reversing the judgment of the Court of Appeal ([1935]
1 W.W.R. 113), that, upon the facts and circumstances of this case, the Minister of Finance was entitled to refuse the demand made upon him and that a writ of mandamus should not have been issued to compel him to pay to the respondents the sum demanded, or in fact any other sum.
Upon the analysis of this case, this Court could not ascertain what if any damages were in fact sustained in consequence of the fraudulent registration; and it was precisely in order to avoid questions of fact such as have been raised in the present proceedings that the Land Registry Act expressly provides that the certificate of the Court shewing an award of damages, in an action between the lawful owner and the wrongdoer, is a necessary foundation to a proper claim against the Minister of Finance under section 218 of the Act.
The alternative would be that this Court would resettle for the Minister the statement of the damages, if any, sustained by the person wrongfully deprived of land in consequence of a fraudulent registration by another person; and the words of the statute completely negative the right of any further tribunal to review the decision in the action.- Held, also, that in a proper case a mandamus lies against the Minister of
Finance to compel payment out of the assurance fund when there is no suggestion that the fund itself is not sufficient to meet the claim without resort to any moneys of the Consolidated Revenue
Fund.
Distinction must be made between a Minister acting as a servant of the Crown and acting as a mere agent of the legislature to do a particular act.
Under the provisions of the statute, a particular fund is established by the legislature and created by the setting aside of a certain proportion of the fees paid by persons registering documents under the Land Registry Act so that a fund may be available to compensate those persons who have registered their documents and become deprived of their land or some interest therein in consequence of some fraud by other persons in procuring registration of documents under the Act. The fund is not public money of the Crown by the Minister of
Finance for the province has been designated by the legislature to pay out of that fund damages sustained by those persons, upon proof by certificate of the court of certain conditions prescribed by
REAL PROPERTY-Concluded 2-Person becoming registered owner of land, and making mortgage thereon (with covenant for payment), for benefit of company-Transfer from him to company made but not registered-Authorized assignment by company under Dominion Bankruptcy Act-Indemnity claimed by registered owner (as trustee) against company's trustee in bankruptcy (as cestui que trust) against liabilities in connection with land and mortgage. 1 3--See RELIGIOUS BODY
RES JUDICATA
RESCISSION
RESTRAINT OF TRADE
SECURITY FRAUDS PREVENTION ACT (B.C. 1930, c. 64)-Investigation-Delegation of authority-Nature of proceedings-Whether judicial-Right to cross-examine witnesses-Natural justice-Right to injunction-Section 29 as bar-ss. 10, 11.1-Aut-hority was delegated by the Attorney-General under section 10 of the Securities Frauds Prevention Act to the respondent to conduct investigations to ascertain whether any fraudulent act or any offence against the Act or the regulations has been, was being or was about to be committed by Wayside Consolidated Gold Mines Limited, and for that purpose to examine any person, company or thing whatsoever. During the course of the investigation by the respondent, it became apparent that the Vancouver Stock and Bond Company Limited, one of the appellants, had been an underwriter of the securities of the Wayside Company, and the appellant St. John, who was a shareholder and the business manager of the underwriting company, was called upon and did give evidence.
The investigation extended over several months, from the date of the respondent's appointment on August 15, 1934, until October 22, 1934, during which time a great deal of evidence was taken, on which last day the appellants issued a writ against the investigator Fraser for an injunction to restrain him from proceeding further with the investigation in so far as it either directly or indirectly related to the conduct of the appellants and from ACT-Concluded making any finding or report to the
Attorney-General in connection therewith.
The appellants' grounds for an injunction were that the respondent
Fraser had not given them notice of the examination of witnesses concerning the appellants' relations with the Wayside Consolidated Gold Mines Limited and that he had not afforded them an opportunity of cross-examining such witnesses, as their status and reputation may be affected by such examination.
The trial judge maintained a motion to dissolve the interim injunction, which judgment was affirmed by the appellate court.-Held, affirming the judgment of the Court of Appeal (49 B.C.R. 502), that the respondent investigator could not be restrained from proceeding with the investigation.-Per Lamont, Cannon and Crocket JJ.-Section 29 of the Securities Act, which purports to bar actions and proceedings by way of injunction or other extraordinary remedy, relating to investigations by the Attorney- General or his representative under the provisions of the statute constitutes an insuperable barrier to the appellant's claim.-Per Lamont, Cannon and Crocket
JJ.-The investigation provided for by the Securities Act was not a judicial proceeding in any sense of the term but was intended to be conducted by the investigator in private and no person or company should have the right of crossexamining any witness or witnesses brought before the investigator whether the evidence of such witness or witnesses should affect the status or reputation of such person or company or not. Such investigation is in no sense a judicial proceeding for the trial of any offence but merely an enquiry conducted for the information of the Attorney-General in order that the latter may take such proceedings as he may deem advisable in the circumstances for the protection of the public as shown by the provisions of ss. and 12.-Per Lamont and Davis
JJ.-The investigation provisions of the statute dealing generally with the prevention of fraud by stock brokers were part and parcel of the administrative machinery for the attainment of the general purposes of the statute. The investigator was not a court of law nor was he a court in law. While the investigator was bound to act judicially in the sense of being fair and impartial, that is something quite different from the right asserted by the appellants of freedom of cross-examination of all the witnesses.
Co. v. PAsER. 441
SHIPPING-Carriage by water-Loss or damage to cargo-Limitation of liability of the owner of the ship--" Fault or privity" of owner-Unseaworthiness- Improper loading-Cause of loss-Merchant Shipping Act, 1894, 57-68 Vict., c. 60, es. 502, 508, 504-Canada Shipping Act, R.S.C., 1927, c. 186, ss. 452, 457, 459, 903-Water Carriage of Goods Act, R.S.C., 1927, c. 207, es. 6, 7.1-Held, where the owner of a ship, after having been condemned in a previous action to pay damages for loss and damage to a cargo, brings another action in which he claims a limitation of his liability, either under the provisions of section 503 of the Merchant Shipping Act or of section 903 of the Canada Shipping Act, he must show affirmatively that the damage or loss happened without his actual fault or privity; he must exculpate himself (as distinguished from his servants or employees) from the responsibility for the loss or damage in respect of which he claims the limitation and the onus is upon him to show that there was no fault or privity of his own.-In the first action for damages against the appellant company, the trial judge, whose judgment had been affirmed by the appellate court and the Privy Council, held that its ship was unseaworthy by reason of overloading or improper loading and that such was " the real cause of the loss."-Held: That the appellant has not succeeded in bringing itself within the exception essentially required to obtain from the courts a limitation of the liability for the loss which occurred as a result of the stranding of its ship and it has failed to discharge the onus cast upon it of proving that the loss happened without its actual fault or privity. The law contemplates a clear duty on the part of the owner of a ship to enforce the observance of the obligation to take all necessary and reasonable precautions in order to prevent a grain cargo from shifting. In the present case, the appellant has failed to show it had taken any means to enforce the observance of the law in that respect. It did not attempt to exculpate itself, except in claiming that it had discharged its duty by supplying a ship properly equipped and appointing a certificated master. According to the evidence, the responsible officials of the appellant company did not apply themselves to the point of precautions at all and, before this Court, they took the stand that the question of loading the ship was one exclusively for the master and one with which they were not concerned. trial judge found that no instructions were ever given by the company with regard to stowage of grain; and such acts SHIPPING-Concluded of omission are included in the words
"actual fault or privity."
LTD...
2-Criminal law-Theft-Customs Act,
R.S.C. 1927, c. 42 (as amended), ss. 207,
2 (o)-Vessel hovering within territorial waters of Canada with dutiable goods on board-Pursuit by police cruiser-Continuity of pursuit-Seizure of vessel on high seas-Forcible escape of vessel-Forfeiture of vessel-Time of forfeiture-Charge of theft against master-Form of charge...............
SPECIAL WAR REVENUE ACT
STATUTES - Motor vehicles-Repeal of provision in statute and enactment at same time in another statute of substantially the same provision - Retrospective construction latter provision-Injury to passenger in motor car-Action and recovery of judgment by injured person against owner
(driver) of car, and subsequent action by injured person against owner's insurer; the actions being taken subsequent to expiry of insurance policy and subsequent to later repeal and enactment of certain respective legislation-Right of injured person to judgment against insurer-S. 87 (4) (repealed September 1,
1932) of The Highway Traffic Act (Ont.)
(as amended in 1930, c. 47)-S. 183 (h)
(coming into force September 1, 1982)
of The Insurance Act (Ont.) (as amended in 1932, c. 25)-" Motor Vehicle Liability Policy "-Time limitation for bringing action.]-Appellant insured A.
by an automobile insurance policy, dated
May 2, 1931, and expiring May 2, 1932.
On February 9, 1932, an accident occurred in which respondent, a passenger in A.'s car (driven by A.), was injured.
On December 3, 1932, respondent commenced action for damages against A.
The action was tried and on March 29,
1933, judgment was given against A.
Respondent, not having received payment, commenced, on May 8, 1933, an action against appellant for the amount of the judgment (and taxed costs and subsequent interest), claiming under s.
(4) of The Highway Traffic Act (Ont.)
The Insurance Act (as enacted by The
(Automobile) Insurance Act, 1932, c. 25).
On September 1, 1932, said s. 87 (4) had been repealed, and on the same date said s. 183 (h) had come into force. On a stated case (in which certain facts were admitted) appellant claimed that, in point of law, respondent was not entitled to judgment against it.-Held, affirming judgment of the Court of Appeal for Ontario, [19341 O.R. 318, that respondent was entitled to succeed.-Per Rinfret, Cannon, Crocket and Hughes JJ.: In view of the repeal on September 1, 1932, of provisions, dealing with certain subject matters, in The Highway Traffic Act, and the enactments, taking effect on the same date, introducing into The Insurance Act provisions dealing with the same subject matters, and on comparing and eonsidering the provisions repealed and enacted respectively as aforesaid, said s. 183 (h), introduced as aforesaid into The Insurance Act, between which section and s. 87 (4) (repealed as aforesaid) of The Highway Traffic Act there was (as was held) no substantial difference as to the rights of third parties against an insurer, should be construed as retrospective. Such construction was impelled by a consideration of effects of a contrary constructioneffects which it was inconceivable that the legislature intended. Ex parte Todd; In re Ashcroft, Q.B.D. 186, at 195, cited and applied-The words "motor vehicle liability policy " in said s. 183 (h) are wide enough in form to cover the policy in question.
It cannot be said that a motor vehicle liability policy is necessarily the one prescribed by The (Automobile) Insurance Act, 1932 (amending The Insurance Act, and coming into force September 1, 1932) merely because The Highway Traffic Act, 1932 (c. 32), s. 9, (coming into force September 1, 1932), introduces into The Highway Traffic Act s. 87 (1) to the effect that a motor vehicle liability policy shall be in the form prescribed by The Insurance Act.-The exclusion, by s. 183 (d) of The Insurance Act
(as enacted by (Automobile) Insurance Act, from an insurer's liability under an owner's policy or a driver's policy, of a claim by a passenger in the motor vehicle unless the coverage is expressly extended under s. 183 (f), did not exclude respondent's claim, as at the time of the accident there was no such exclusion from liability and such liability was in fact provided for by A.'s policy.-As respondent's action against appellant was brought within two months after respondent's judgment against A.-and within two months after respondent's " cause of action arose " -the limitation of one year, either in the statutory conditions in the policy or in the statutory conditions brought into force by The (Automobile) Insurance Act, 1932, did not bar respondent from recovering against appellant.
Co. 184 2- Interpretation................
3- (Imp.) Merchant Shipping Act,
Vict.,
..................................
5-R.S.C., [1927], c. 1, s. 28 (Interpretation Act)............
........
6-R.S.C. [19271, c. (Bankruptcy
7-R.S.C. [1927], s. p, cc)
(Bankruptcy Act).................
8-R.S.C. [19271, c. s. 191 (Bankruptcy Act)........................
9- R.S.C. [1927], c. 34, s. 19 (c) (Exchequer Court Act)...............
10-R.S.C. [19271 c. 34, 19 (c) (Exchequer Court Act).............
R.S.C. [19271 c. 34, s. 82 (4) (Exchequer Court Act)...............
12-R.S.C. 38 (Supreme
Court Act)...................
R.S.C.
(Supreme Court Act)..............
14-R.S.C. (Criminal Code).....................
R.S.C.
(Criminal Code) ...............
16-R.S.C.
(Criminal Code)................
17-R.S.C. (Criminal Code)...................
See 8.
18-R.S.C. s. (Criminal Code)........................
19-R.S.C. (Criminal Code)...................
20-R.S.C. [1927] c. 42 (as amended), ss. 2(o) (Customs Act).. 513
21-R.S.C. c. s. (Railway Act).......................... 22-R.S.C. c. (Railway Act).....................
23-R.S.C. [1927] c. 179 (Special War Revenue Act)............
..... 24- R.S.C. ss. 459, 903 (Canada Shipping Act).... 25-R.S.C. c. (Canada Temperance Act).................. 26-R.S.C. [1927] c. 201 (Trade Mark and Design Act)............... 27-R.S.C. [19271 c. 207, ss. 6, 7 (Water Carriage of Goods Act)........... 28--(D.) 7-8 Geo. V, c. 30, s. 2 (An Act to amend An Act in aid of Provincial Legislation prohibiting or restricting the sale or use of Intoxicating Liquors). ....... 29-(D.) 17 Geo. V, c. 58 (Halifax Harbour Commissioners' Act)..... 215 30-R.S.O. s. (Ontario Insurance Act).............. 31-R.S.O. [19271 c. 138, s. 1 (Accumulations Act).................... 32-R.S.O. [1927]
c. 222 (Insurance 33-R.S.O. c. Statutory condition 1 (Insurance Act). 422 See (FIRE) 34- R.S.O. [1927] c. 222, ss. 119-159 (Insurance Act)................... 35-R.S.O. [1927] c. 233 (Municipal 36- R.S.O. [19271 c. 235 (Local Improvement Act)................... 37-R.S.O. [1927] c. 238 (as amended (Assessment .... 38-R.S.O.
(Highway Traffic Act)................... 39-R.S.O. [1927) c. 279 (Children's
Protection Act) ................
40-(Ont.) 6 Geo. V, c. 50 (The Ontario Temperance Act)............
41-(Ont.) 17 Geo. V, c. 70 (The
Liquor Control Act (Ontario)).... 494
42- (Ont.) 20 Geo. V, c. 46 (The
Assessment Amendment Act, 1930). 531
(Ont.) 20 Geo. V, c. 47 (The Highway Traffc Amendment Act, 1930). 184
44-(Ont.) 22 Geo V, c. 25 (The (Automobile) Insurance Act, 1932)......
45-(Ont.) 22 Geo. V, c. 32 (Highway
Traffic Act, 1932).................
46--(Ont.) 24 Geo. V, c. 26 (The
Liquor Control Act, 1934).........
(Watercourses Act).............
48-R.S.Q. [19251 c. 102, ss. 485, 488,
500, 504, 510, 511 (Cities and Towns
50-R.S.A. [19221 c. 97, s. 5 (Distress
51-(Alta.) 14 Geo. V, c. s. 66 (The
Vehicles and Highway Traffic Act, 1934).
........
. ........................
.ee
52-R.S.B.C. [19241 c. 127, ss. 216,
217, 218, 226 (Land Registry Act).. 278
R.S.B.C. [1924] c. 254, s. 44 (Taxation Act).....................
54-(B.C.) 20 Geo. V, c. 24, s. 21
(Highway Act)...................
55-(B.C.) 20 Geo. V, c. 64 (Security
Frauds Prevention Act)............
56-(B.C.) 22 Geo. V, c. 53, s. 6 (Income Tax Act)...........
......
STATUTES-Concluded
57-R.S.NB. [1927] c. 15 (Succession Duty Act)........................ 58-R.S.N.B.
[19271 c. 127 (Public Utilities Act).................. 59-R.S.NB. [1927] c. 152, s. 10 (Conditional Sales Act)................ 60-(N.S.) (1931) Halifax City Charter, s. 357 (1) (charter ratified and confirmed by 21 Geo. V, c. 70)........ 215 61-(P.EJ.) 20 Geo. V, c. 1, s. 65 (1) (The Highway Traffic Act)........ 572 STOCK BROKER
STOCK EXCHANGE
STREET RAILWAYS - Motor vehicles-Collision at street intersection between street car and automobile-Right of way for street car-Duties of automobile driver and street car motorman-Joint negligence....... 671 SUCCESSION DUTY-Succession Duty Act, R.S.N.B. 1927, c. 16-Construction -Ascertainment of duty-Allowance for debts, etc.-Properties against which allowances made.]-F. died leaving property of the value of $175,429.11 liable by law to payment of debts, etc. In addition there were insurance policies on his life payable to his wife and children, yielding $184,884.86 and a gift made inter vivos to a daughter of $50,000, which policies and gift were, under s. 10 of the Succession Duty Act, R.S.N.B. 1927, c. (and amendments), included in "property passing on the death" of F., and, under s. 3, subject to succession His debts, etc., amounted to $331,343.26.-Held (Crocket J. dissenting): Under the Act, the amount of the debts, etc., should be deducted from the total of the said sums of $175,429.11, 8184,884.86, and $50,000; and succession duty levied only on the difference.-The method of determining " the dutiable value of property " under s. 5, providing for allowance for debts, etc., applies to all property upon which succession duty is imposed, namely, all " property passing on the death of any person " as defined in the Act.-Judgment of the Appeal Division of the Supreme Court of New Brunswick, 7 M.P.R. 367, re- SUCCESSION DUTY-Concluded versed.-Per Crocket J., dissenting: In levying the duty against the insurance moneys and the gift inter vivos, there should be no allowance for debts, etc., under s. 5. Under the Act, the duty is to be assessed and levied distributively on the component parts of the property passing in the hands of the individual successors to whom it goes or has gone;
and the allowance for debts, etc., is deductible only from such properties as are liable by law for the deceased's debts.
NEW 133
TAXATION
See ASSESSMENT
THEFT
TRADE MARK-Expunging from register-Alleged resemblance to trade-mark in prior use by others-Danger of deception-Onus.1-The plaintiff Peggy Sage
Inc. was incorporated in January, 1930, for the purpose of acquiring and carrying on the business of Mrs. Sage under her trade-mark " Peggy Sage."
Mrs. Sage had established in the city of New York in 1917 the business of manufacturing and selling toilet articles and toilet preparations, and the goods have been sold continuously throughout
United
States since 1917 and throughout Canada since 1920, under said trade-mark.
trade-mark was registered with the Secretary of State for New York on February 1927; in the United States Patent
Office on July 1932; and in the Can adian Patent Office on June 2, 1933, the application being filed on September 30,
1932, under the provisions of the Trade
Mark and Design Act, R.S.C. 1927, c.
Defendant was incorporated in
March, 1932, for the purpose of acquiring and continuing two pre-existing businesses for the sale of toilet articles, and on April 8, 1932, it filed an application to register "Peggy Royal" as a trademark, and was granted a certificate as of
June 1932 (prior to which date those words had not been used for sale of its goods).
Defendant's products were of the same nature as. but were of lower grade and lower priced than, those of plaintiffs.
The containers used by defendant were different from those used by plaintiffs. Plaintiffs sued to expunge the latter trade-mark from the register, on the grounds that its use would mislead the public and was an infringement of plaintiffs' trade-mark.-Held: (1) The onus was on plaintiffs to satisfy the court that the danger of deception exists, and that consequently the public should be
TRADE MARK-Concluded protected by expunging the trade-mark complained of. The court, in the absence of direct evidence one way or the other, may draw such inferences from the facts proven as those facts prima facie warrant. The onus may be shifted. (Dewar v. John Dewar & Sons Ltd. 17 R.P.C. 341, at 356; Benj. Edgington Ltd. v. J. Edgington & Co., 6 R.P.C. 513).- (2) The words " Peggy Royal," as printed on defendant's labels, so nearly resembled the device registered by plaintiff, and sounded so much like it, as to be calculated to deceive, and might induce some of the public to think that defendant's products were manufactured by plaintiff. Even if defendant did not intend to deceive and actual deception had not been proven, defendant's trademark should be expunged if, in the court's opinion, by its resemblance to that of plaintiff, it was likely to deceive the public in the course of its-legitimate use in the trade.
On these grounds defendant's trade-mark should expunged (Eno v. Dunn, 15 App. Cas. 252, and other cases, cited).
of Maclean J., President of the Exchequer Court of Canada, [19351) Ex. C.R. 70, reversed).
TRUSTS AND TRUSTEES-Person becoming registered owner of land, and making mortgage thereon (with covenant for payment), for benefit of company- Transfer from him to company made but not registered - Authorized assignment by company under Dominion Bankruptcy Act-Indemnity claimed by registered owner (as trustee) against company's trustee in bankruptcy (as cestui que trust) against liabilities in connection with land and mortgage.............. 4; WILL-Construction-Intention of the testator-" Advances heretofore made by me to my children "-Whether debts or notes owing by certain children discharged.]-The will in question in this case devised and bequeathed " all my real and personal estate of which I may die possessed," and, after giving certain specific legacies, contained the following clause: " The balance of my property to be divided between my ten children (naming them), and so that the said Joseph P. Hauck shall receive one thousand dollars less than the shares coming to the other children named, in con- WILI-Continued sideration of advances previously made to him by me, and with this exception no account shall be taken or had of advances heretofore made by me to any of my children." Four of the sons were indebted to the estate on promissory notes given by them individually to the testator. Joseph P. had received $1,000 from his father in connection with some partnership transaction in land which they had entered into together.
Other than the above-mentioned transactions with the five sons, the only advances were wedding presents of not over $100 each to the four daughters.-Held, reversing the judgment of the Appellate
Division ([19341
3 W.W.R. 335), that the debts represented by the notes were discharged by reason of the words in the will " and with this exception no account shall be taken or had of advances heretofore made by me to any of my children."
According to the intention of the testator, ascertained by a fair construction of the will and under the circumstances of the case, the words being given their usual and ordinary meaning, the moneys covered by the notes ought to be treated as no longer owing.
2-Accumulation of income
Postponed distribution of part of estate- Ownership of surplus income accumulated during period of postponement- Accumulations Act, R.S.O. 1927, c. 138, s. 1.]-The testator died on January 26,
1909. Under directions in his will his executor, on an event which happened in
1912, divided the residue of his estate into two equal parts, one-half going
(subject to charge) to the testator's two sons.
As to the " other half " (the part now in question) the will directed that it be charged with certain annuities, etc., and that (subject to charges) upon the testator's wife's death (subject to delay in the event of her death before a certain time, which did not happen) it should be distributed in equal shares amongst nine named beneficiaries, with proviso that should any of them predecease her or die before the period of distribution (which will now, under the circumstances, be the testator's wife's death) the deceased beneficiary's child or children living at the date of such distribution should take the share which the parent would have received if then living; but if the deceased beneficiary left no child or children living at the date of distribution, the share should belong to the testator's two sons in equal shares. The testator's widow is still living. This Court has held ([19341 Can.
S.C.R. 403) that, on construction of the
WILL-Concluded will, the testator's two sons took, on the testator's death, a vested interest in equal shares in said " other half " (subject to charges), subject to partial defeasance in favour of any of said nine beneficiaries (or, alternatively, their issue) who might be living at the time fixed for distribution. The present question was concerned with the disposal of the surplus income accumulated from the said " other half " of the residue of the estate.-Held: The accumulation of surplus income and of income thereon during the 21 years following the testator's death (the period limited for accumulation in such a case by the Accumulations Act, R.S.O. 1927, c. 138) is divisible as it existed on January 26, 1930 (the end of said period of 21 years) in the same manner as the corpus, upon the death of the testator's widow; and the accumulation of surplus income and of income thereon after January 26, 1930, and until the testator's widow's death, is distributable as upon an intestacy.
The clear implication from the will was that the testator meant to provide for the distribution, on his widow's death, of the fund as it should then stand, including all the accumulation of surplus income and of income thereon. This is also the implication which the law, failing any words indicating the testator's intention to exclude it, would itself annex to the gift, whether the gift be one which vests in the beneficiaries on the testator's death or an executory bequest vesting only on the testator's widow's death (Wharton v. Masterman, [18951 A.C. 186, at 198, 191-192; Bective v. Hodgson, 10 H. of L. Cas. 656, at 664-665). But as the accumulations have gone beyond the period allowed by the Accumulations Act, to that extent the direction for accumulation is void, so that that portion of the surplus income and the income -thereon which has accumulated since January 26, 1930, is distributable as upon an intestacy (s. 1 of the Act)- Judgment of the Court of Appeal for Ontario,
[19351 1 D.L.R. 263, [1935] Ont. W.N. 1, affirmed.
In re 3nsurance Act, R.S.O. 1927, c. 222, ss. 140 (2), 142 (1), 145 (1), 146, 163 (1) -Preferred beneficiaries-Designation of beneficiary by policy-Alteration by will -Effectiveness of alteration-Document accepting participation in Employees' Savings and Profit Sharing Fund-Designation therein of beneficiary in case of death-Whether testamentary in character........................
"Actual fault or privity" (of owner of ship, in case of loss of cargo)..............
2-"
Actual value
3-"
All other persons" (in s. 4 (22) of
Assessment Act, R.S.O. 1927, c. 238, as amended in 1930, c. 46............ 531
4---" Claim arising out of or incidental to the property of the debtor made or capable of being made on the trustee by any person" (Bankruptcy Act, s.
43 (1) (i))........................
5-"
Compromise or other arrangement " (Bankruptcy Act, s. 43 (1) (i)).
.....
............
6-"
Continue as restrictive as aforesaid " (in s. 175 of the Canada Temperance Act).....................
7-"
Corporation" within s. 2 of the
Bankruptcy Act................
8--"
Directly or indirectly interested"
in contract (Montreal City Charter). 38
" Dollars" (in policy of insurance).
.......
(LIFE) 2.
-" Eventual interest "
(art.
C.C.P.)...........................
11-"
Existing and actual interest"
(art. 183 C.C.)....................
12- " Fault or privity " (of owner of ship, in case of loss of cargo)......
" Final Judgment" (within a.
of Exchequer Court Act).... 568
WORDS AND PHRASES-Concluded 14- " Fraudulently" (Insurance Act, R.S.O. 1927, s. 98, statutory condition 1). ..... ...... 422 15---" In a like case" (Cr. Code, s. 1025)............................. See 5. 16-"
Misrepresents or fraudulently omits" (Insurance Act, R.S.O. 1927, 98, statutory condition 1)............. 17- " Motor vehicle liability policy" in s. 183 (h) of The Insurance Act (Ont.) .................................. " Newspapers" (in Schedule III of the Special War Revenue Act)..... 614 See 5. "Occupier"
(within s. 357 (1) of Halifax City Charter)............. 215 20-"
Person" ("all other persons" in s. 4 (22) of Assessment Act, R.S.O. 1927, c. 238, as amended in 1930 c. 46). ...........................
See TAXATION 4. 21-"
Person" within s. 2 of the Bankruptcy Act....................
22- " Public work" within s. 19 (c) of Exchequer Court Act (R.S.C. 1927, c. 34. 378, 404 23---" Restrictive" (in s. 175 of the Canada Temperance Act)......... 24-"
Seized and forfeited" (within s. 2 (o) of the Customs Act)......... 25-"
Upon any public work" within s. 19(c) of Exchequer Court Act (R.S.C. 1927, c. 34).................
378, 404
Cases cited
- Metropolitan Meat Industry Board v. Sheedy A.C. 899
- O.R. 169 O.R. 169
- King v. Dubois King v. Dubois, supra
- A.C. 533 A.C. 533
- Court of Appeal Court of Appeal, supra
- Adelaide Adelaide case, supra, at 152 152
- Adelaide Adelaide case, supra, at 156 156
- W.W.R. 7 W.W.R. 7
- A.C. 562 A.C. 562 578
- Dominion Natural Gas Co. Ltd. v. Collins A.C. 640 646
- Co. v. Austin A.C. 346 375
Statutes and regulations cited
-
- s. 38 of Supreme Court Act
- s. 82
- s. 38 of the Supreme Court Act
- s. 38
- s. 6
- s. 5.1
- s. 25
- section 25
- s. 808
- s. 308
- s. 419
- ss. 216
- 217
- 218
- 226
- sections 216
- section 218
- Section 29
- 11.1
- ss. 452
- 457
- 459
- ss. 459
-
- section 1095
- Section 1028
- s. 19
- s. 19(c)
-
Bank Act
-
- s. 69
- s. 28
- section 69
- Section 1014
- sections 69
- section 1025
- Section 1023
- section 1023
- ss. 69
- ss. 2(o)
- s. 1025
-
- section 28 of the Interpretation Act
- Section 5
- s. 197
- s. 66
- s. 65
- s. 21.1
- Section 21
- s. 28
- s. 5
- s. 21
-
Unresolved citations
- s. 41
- section 43 of the Bankruptcy Act
- s. 10 of the Conditional Sales Act
- section 191 of the Bankruptcy Act
- Section (2)
- s. 175 of Canada Temperance Act
- section 21 of The Highway Act
- Paragraph (g)
- s. 808 of Railway Act
- section 197 of the Railway Act
- section 218 of the Land Registry Act
- section 10 of the Securities Frauds Prevention Act
- Section 29 of the Securities Act
- section 503 of the Merchant Shipping Act
- s. 10 of the Succession Duty Act
- s. 175 of the Canada Temperance Act
- s. 2 of the Bankruptcy Act