Majority
For these reasons, I agree on this point with the conclusion THE KINa of Mr. Justice Harrison who dissented in the court below. Ba oun.
As the majority of this Court has come to the conclusion Hudson J. that the appeal should be dismissed, it is unnecessary for me to express an opinion on the question of jurisdiction or on the other points raised on behalf of the prisoner. Appeal dismissed. Solicitor for the appellant: E. B. MacLatchy.
Solicitor for the respondent: G. W. MacDonald.
PROVIDENT
ASSURANCE
COM- A
PANY
(THIRD
PARTY) .............
.E
*June 10.
*Dec. 5.
MARK ADAMSON
(DEFENDANT) ........
CHARLES C. MARSHALL (PLAINTIFF).
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO DAvIs J.-This is an appeal from the Court of Appeal for Ontario (1) in an automobile insurance case. The re- OR. spondent at the time of the accident in question held an owner's motor vehicle liability policy with the appellant A"
insurance company. The company denied liability for indemnity in respect of the particular accident and that issue falls to be determined in these somewhat novel proceedings J. which form part of the action in which the injured party sued the respondent for damages for the injuries received in the accident and in which action the injured party as plaintiff recovered judgment against the respondent as defendant for $6,500 and costs. The procedure for setting up and determining the issue of liability as between the defendant and the insurance company was introduced in Ontario in 1935 (25 Geo. V, ch. 29, sec. 36 (2)) when the following subsection (7) was added to sec. 183h of The Insurance Act:
That subsection is now sec. 205 (7) of The Insurance Act, being ch. 256 of the Revised Statutes of Ontario, 1937. The insurance policy in question was issued May 15th, 1934, and was renewal in full force and effect at the date of the accident, October 3rd, 1935.
The facts now known are not really in dispute. respondent Adamson, a married man, 51 years of age, was a fruit broker residing and carrying on business in Toronto. On the evening of October 2nd, 1935, he and two other men remained in Adamson's downtown office from about eleven o'clock in the evening until around two o'clock in the morning. Two young women, about 28 or 30 years of age, neither employees nor relatives, came to the office about eleven or eleven-thirty that evening and remained till around two o'clock in the morning. Adamson admitted that there were two cases of beer, though he said only half a dozen pints were consumed and that he had about two glasses-a bottle and a half-perhaps one hour apart. Adamson, some time after two o'clock, was driving his motor car up town with the two girls in the front seat with him when he struck a milk wagon crossing in his path. He heard the man on the milk wagon yell and he felt the impact but he did not stop his car. At the next corner he let the girls out of the car and proceeded by a somewhat circuitous route to his home in the northern part of the city. The police were at his home shortly thereafter; he denied that he was in any accident 'but the police told him that they had witnesses of the accident. It is not necessary to follow the police court proceedings. The man on the milk wagon was very seriously injured and was removed to the hospital and in his subsequent action against Adamson recovered, as stated above, $6,500 and costs.
In what is called the third party proceedings (in the action between the injured man and Adamson) the appellant company denied liability under its policy upon the ground, speaking broadly for the moment, that Adamson did not give the insurance company "all available particulars " of the accident, as it is alleged he was by his contract bound to do, and failed to " co-operate " with the insurance company in the defence of the action, as it is further alleged he was bound by his contract to do. What happened was this: The day of the accident, October 3rd, 1935, Adamson telephoned the insurance company that he had had an accident in the early hours of the morning. The insurance company instructed its adjuster, Bethune, to deal with the matter. Bethune tried to communicate with Adamson on October 3rd but was unable to reach him until the next day when Adamson answered Bethune's telephone message to him. Bethune asked Adamson on the telephone certain specific questions. Adamson stated that there were no witnesses to the accident and also that he had consumed no intoxicating drinks before the accident. Bethune then gave instructions to West, in his office, to investigate the claim. West had considerable difficulty in arranging an appointment with Adamson and it was not until nearly two months after the accident, in spite of numerous calls at Adamson's office and of telephone messages to communicate with him, that West procured an interview with and obtained a signed statement from Adamson in regard to the accident. In this written statement Adamson repeated that he had consumed no intoxicating drinks before the accident, but he left blank the space for the answers to the questions as to the names and addresses of the witnesses in his own car and of the witnesses in the other car, and of the other witnesses. Prior to signing this statement Adamson told West positively that there were no passengers in the car with him at the time of the accident. Then, in a general discussion after signing the form, Adamson told West that he had a gentleman in the automobile with him. When West questioned Adamson about not giving this information before, Adamson explained that the gentleman was a rather prominent individual and that he did not wish his name to become involved on account of the accident. West then pointed out that it was necessary that he give the name of this passenger and insisted that he do so.
then said that he was in error, that -he had made a mistake in regard to this gentleman, and that there were in fact no passengers in the automobile with him.
On November 27th, .1935, Marshall, the injured man, had issued a writ against Adamson.
On December 5th, 1935, the solicitor for the insurance company under instructions from the company entered an appearance on behalf of Adamson.
On December 11th a formal statement of defence was delivered, though the company's solicitor had never had an opportunity to see Adamson. On December 14th, 1935, the solicitor for the company wrote to Adamson, advising him of the steps which had been taken and pointing out that " we are defending this action under the provisions set forth in the policy between you and the Provident Assurance Company."
On December 21st, 1935, the solicitor again wrote to Adamson, stating that he had had no communication from him. The letter proceeded: Notwithstanding the letter of December 21st, it was not until January 8th, 1936, that the company's solicitor saw Adamson for the first time. Adamson went into the solicitor's office that day at the exact hour fixed for Adamson's examination for discovery as defendant in the action, although he had been asked to go half an hour earlier than the time fixed for the examination.
The solicitor asked Adamson if there were any passengers in the car with him and he stated that he was alone in his car. The solicitor says that from Adamson's
Adamson, after telephoning his own solicitor's office and finding his solicitor was out, then said he did not intend to go on with the examination for discovery until he had seen his own solicitor and asked him what would happen to him if he did not attend the examination after being served and paid the conduct money. Adamson refused to go on with the examination fixed for that day.
Subsequently a motion to commit was launched by the solicitors for the plaintiff but this motion appears to have been adjourned from time to time, no doubt by consent of the solicitors for the parties, and the examination for discovery took place some weeks later, Adamson's own solicitor appearing with him.
On January 11th Adamson's personal solicitor called on the company's solicitor and gave the information that Adamson had had a couple of girls in the car. On January 13th Adamson, accompanied by his own solicitor, went to the office of the company's solicitor and gave a full statement. The company's solicitor immediately notified his client of these facts and, following the receipt of instructions from the company, wrote to Adamson on January 16th, 1936, denying liability under the policy of insurance and notifying Adamson that his firm would not continue the conduct of the defence.
The company's solicitor made inquiries regarding the two girls whose names had been given to him and found no one with the names given to him at the given addresses. On May 12th, 1936, Adamson's personal solicitor wrote the company's solicitor (following a telephone conversation be- "C tween them) that the earlier addresses were incorrect and that the correct addresses were now being given.
It was said that there was no intention on Adamson's part to mislead the company's solicitor in any way and that the wrong addresses were merely an error.
Following upon the letter of the company's solicitor to Adamson of January 16th, 1936, above referred to, the appellant company made application to the Master in Chambers to be added as a third party in the action by virtue of subsection (7) added to sec. 183h of The Insurance Act above set out; the order was refused on January 31st but that order was reversed by Middleton, J.A., on February 13th, 1936, and the appellant was added as a third party in the action. The settlement of the formal order of Mr. Justice Middleton did not take place until April 15th. Up until that time the name of the company's solicitor remained formally on the record as solicitor for The trial of the third party issue was a separate trial from that of the original issue in the action between the injured man, Marshall, and Adamson, though both issues were tried by the same judge, Mr. Justice McTague. The learned trial judge dismissed with costs the respondent's claim for indemnity (1).
The judgment was reversed by a majority of the Court of Appeal for Ontario (2), which held that the appellant was bound to fully indemnify the respondent against the original judgment and costs. In the meantime, as now appears to us from a reading of the appellant's factum though the matter was never mentioned to us during the argument, the appellant has paid $5,000 and costs to the plaintiff and the respondent has paid $1,500, the balance of the judgment.
The insurance company is now obviously in the position of having to claim the return of its money from the insured, Adamson, though no amendments have been made; in fact, nothing was said about this aspect of the case. The statement is only now noticed in the appellant's factum (to which no objection was taken by counsel for the respondent) that the insurance company has paid to the plaintiff in the action $5,000 and costs " under the provisions of sec. 205 of The Insurance Act.". The ques- Ass tion whether or not sec. 205 of The Insurance Act, R.S.O., 1937, chap. 256, really means that an insurance company AD-BON. has to pay, notwithstanding that there may be no lia- Davis J. bility to its insured, was not even mentioned by any of the counsel on the hearing of the appeal before us. That being so, for the purposes of this appeal we ought not to enter upon the rather difficult question that may be raised in some other case as to what is the proper interpretation of the section.
Section 205 was the provision under which the appellant must have felt bound to pay the claimant. That section reads as follows:
205. (1) Any person having a claim against an insured, for which indemnity is provided by a motor vehicle liability policy, shall, notwithstanding that such person is not a party to the contract, be entitled, upon recovering a judgment therefor against the insured, to have the insurance money payable under the policy applied in or towards satisfaction of his judgment and of any other judgments or claims against the insured covered by the indemnity and may, on behalf of himself and all persons having such judgments or claims, maintain an action against the insurer to have the insurance money so applied.
(2) No creditor -of the insured shall be entitled to share in the insurance money payable under any such policy in respect of any claim for which indemnity is not provided by the policy.
(3) (i) No assignment, waiver, surrender, cancellation or discharge of the policy, or of any interest therein or of the proceeds thereof, made by the insured after the happening of the event giving rise to a claim under the policy, and
(ii) no act or default of the insured before or after such event in violation of the provisions of this Part or of the terms of the contract, (iii) no violation of the Criminal Code or of any law or statute of any province, state or country, by the owner or driver of the automobile, shall prejudice the right of any person, entitled under subsection 1, to have the insurance money applied upon his judgment or claim, or be available to the insurer as a defence to such action.
(4) The insurer may require any other insurers liable to indemnify the insured in respect of judgments or claims referred to in subsection 1 to be made parties to the action and to contribute rateably according to their respective liabilities, and the insured shall, on demand, furnish the insurer with particulars of all other insurance covering the subject-matter of the contract.
(5) Where a policy provides for coverage in excess of the limits mentioned in section 202 or for extended coverage in pursuance of section 203, nothing in this section shall, with respect to such excess coverage or extended coverage, prevent the insurer from availing itself, as against any claimant, of any defence which the insurer is entitled to set up against the insured.
(6) The insured shall be liable to pay or reimburse the insurer, upon demand, any amount which the insurer has paid by reason of the provisions of this section which it would not otherwise be liable to pay. (7) Where an insurer denies liability under a motor vehicle liability policy it shall have the right upon application to the court to be made a third party in any action to which the insured is a party and in which Davis J. a claim is made by any party to the action for which it is or might be asserted indemnity is provided by the said policy.
The minimum coverage provided for by see. 202 is $5,000 for any one person but the policy in question was for an extended coverage, i.e., up to $10,000 for any one person.
For the purposes of this appeal, in view of the attitude taken by counsel for both parties, we shall assume that the real issue before us, as it was argued, is whether or not there was any liability upon the insurance company to indemnify Adamson in respect of the claim arising out of the accident, and, if there was not such liajbility, then order the respondent Adamson to repay to the appellant company the amount that the company paid to the plaintiff in satisfaction pro tanto of his judgment against The Court of Appeal attached considerable significance to the fact that statutory condition 11, found in R.S.O., 1927, chap. 222, sec. 175, was omitted from the statutory conditions as revised in 1932 and now appearing in R.S.O., 1937, chap. 256, see. 188.
Statutory condition 11, which was omitted, read as follows:
Any fraud or wilfully false statement made under oath or in a declaration in relation to any of the above particulars shall vitiate the claim of the person making the declaration in any matter affected by such fraud or false statement.
But the effect of statutory condition 11 did not entirely disappear from the Insurance Act.
A new and separate section of the Act was added in the revision of 1932 (22 Geo. V, chap. 25) and appears now in Revised Statutes of Ontario, 1937, as sec. 191. This provides:
191. (1) Where an applicant for a contract falsely describes the automobile to be insured, to the prejudice of the insurer, or knowingly misrepresents or fails to disclose in the application any fact required to be stated therein or where the insured violates any term or condition of the policy or commits any fraud, or makes any wilfully false statement with respect to a claim under the policy, any claim by the insured shall be rendered invalid and the right of the insured to recover indemnity shall be forfeited.
Two statutory conditions (sec. 188) relied upon by the appellant appear in and form part of the policy.
4. (1) The insured shall promptly give to the insurer written notice, Ass with all available particulars, of any accident involving loss or damage to persons or property, and of any claim made on account of accident; shall verify by affidavit or statutory declaration, if required by the insurer, that the claim arises out of the operation or use of an auto- Davis J. mobile described in the policy and that the person operating or responsible for the operation of the automobile at the time of the accident is a person insured by the policy; and shall forward immediately to the insurer every writ, letter, document or advice received by him from or on behalf of the claimant.
(2) The insured shall not voluntarily assume any liability or settle any claim except at his own cost. The insured shall not interfere in any negotiations for settlement or in any legal proceeding but, whenever requested by the insurer, shall aid in securing information and evidence and the attendance of any witness, and shall co-operate with the insurer, except in a pecuniary way, in the defence of any action or proceeding or in the prosecution of any appeal.
The respondent's obligation under statutory condition 4 (1) was to give promptly to the insurance company " all available particulars " of the accident.
That he did not do so is beyond question. He deliberately withheld particulars from the company for several months. I cannot imagine that any competent solicitor engaged in the practice of defending motor accident cases, given the full story and the surrounding facts and circumstances of this case as we now know them, would not at once have made every reasonable and proper effort to effect a settlement of the injured man's claim to avoid the submission of the story to a jury. It is admitted that the injured man did not know the facts until the examination of the respondent for discovery, which did not take place until several months after the accident. When the full story was known to the injured man, a settlement to the advantage of the respondent and his insurer would obviously become almost impossible in an action in which the injured man would be entitled to a jury. It is highly probable that a settlement of the claim could have been arrived at, at a moderate amount, had the claim been adjusted and settled at once, as it, no doubt, would have been had the insurance company been given promptly all available particulars.
The respondent's further obligation, under statutory condition 4 (2), was to co-operate with the insurer, except in a pecuniary way, in the defence of the action. The contention of the respondent, which was accepted by the majority of the Court of Appeal, was that there had been no failure to co-operate with the insurer in the defence of the action within the meaning of the policy. Counsel for the respondent put their submission in their factum this way:
But " the defence of the action " necessarily involves in any practical construction or interpretation of the term the opportunity for an early and favourable settlement of the action.
It is, in my view, far too narrow a construction to put upon this term of the policy that so long as the insured turns up at the trial, a year or so after the accident, and assists in the defence that he has fulfilled his obligation, notwithstanding such a course of conduct as the respondent adopted in this case during the first two or three months following upon the accident.
The respondent clearly violated a term or condition of the contract and by force of see. 191 his claim was rendered invalid and his right to recover indemnity became forfeited. The respondent, however, invokes the relieving provision, sec. 192 of The Insurance Act, R.S.O., 1937, ch. 256 (formerly sec. 178 as enacted 1932, ch. 25, sec. 2), which is as follows:
Here there was a deliberate failure on the part of the respondent to comply with the statutory conditions requiring him to give promptly all available particulars of the accident and to co-operate in the defence of the action. The learned trial judge exercised his discretion in declining to relieve against the forfeiture, and under all the circumstances of the case he was amply justified, in my view, in so doing, even if the conduct of the respondent in this case could fairly be said to be merely "imperfect compliance" with the statutory conditions, which, under sec. 192, is the only ground upon which the court is given power to relieve.
I would allow the appeal and restore the judgment at the trial with costs throughout.
J.-I would allow the appeal and restore the judgment of the trial judge with costs throughout.
Appeal allowed with costs.
Solicitors for the appellant: Balfour, Drew & Taylor.
Solicitors for the respondent: Smith, Rae, Greer & Cartwright.
APPEAL-Jurisdiction-Writ of prohibition-Criminal charge-Leave to appeal granted by appellate court-Supreme Court
Act, R.S.C., 1927, c. 85, sa. 86, 41, Arts. 993,
1008 C.C.P.1-The Supreme Court of Canada is without jurisdiction to hear an appeal from a judgment of an appellate court in proceedings for or upon a writ of prohibition arising out of a criminal charge, notwithstanding special leave to appeal granted by that court, as the latter could do so validly, under section
41 of the Supreme Court Act, only in cases "within section 36" of the Act.
ARTuR
2-Leave to appeal - Jurisdiction - Amount in controversy-Supreme Court
Act. R.S.C., 1927, c. 85, 8. 41, par. (f).1- In an action by the occupants of a motorcar to recover against the defendants, owner and driver respectively of another motor-car, for damages caused by a motor-car accident, the Court of Appeal for Ontario gave judgment that plaintiff
A recover against the defendants and that plaintiff B recover against the defendants $750.
On motion by defendants for special leave (refused by the
Court of Appeal)
to appeal to this
Court-Held: Motion dismissed, as not competent under the Supreme Court Act
(R.S.C., 1927, c. 35), s. 41, par. (f) (providing for leave to appeal "in cases
* * * in which the amount or value of the matter in controversy in the appeal will exceed the sum of WHrT v. McQuILLEN .....................
3-Leave to appeal to Supreme Court of Canada
Criminal law
Conflict judgments - Indictment - Formal charge in writing setting forth offence-Description of offence-Insufficiency--Conspiracy
-Section
1025 Cr. C.]-The appellants were charged with having conspired together and with others during a certain period and at named places "par la supercherie, le mensonge et d'autres moyens frauduleux, pour frauder le public et les porteurs d'obligations de la Cie
Lgar6 * *
* and they were convicted. The appellate court unanimously affirmed the conviction; and the appel- Lnts seek leave to appeal to this Court under section 1025 Cr. C. on the ground that the judgment intended to be appealed from conflicts with the judgment of some other court of appeal in a like
APPEAL-Continued case. Held, that the application should be refused.
The judgment intended to be appealed from does not conflict with the decision of this Court in Brodie v. The King ([19361 S.C.R. 188). In that case the accused were charged with having conspired together and with others during a certain period and at a named place " thereby committing the crime of seditious conspiracy."
In the present case, the accused are not charged with having committed a crime in the abstract like "murder"
or "theft"; the offence is charged in such a way as to lift it from the general to the particular.
Also, the judgment intended to be appealed from does not conflict with the decision in The King v. Sinclair (1906) 12 C.C.C. 20). In that decision, the only matter determined, relevant to this application, was that the charge, with the particulars, did not disclose any offence under section 394 Cr. C.; the charge in the present case does not allege or suggest a conspiracy to do anything of the kind referred to in the judgment in the Sinclair case. v. THE KING ............. 4-Application to Judge of Supreme Court of Canada for special leave to appeal under section 1025 Criminal Code -Dismissal of motion-Appeal to the Court from decision of judge in chambers on such application.1-There is no appeal before this Court from an order made by one of its judges in chambers dismissing an application for leave to appeal under the provisions of section 1025 of the Criminal Code.
Smith v. Hogan ([1931] S.C.R. 652) disc. DuvAL v. THE 5--Jurisdiction-Action in damages by wife against husband-Inscription in law alleging prescription of the action--Judgment appealed from dismissing inscription in law-Whether "final judgment" -Section 2 (b) Supreme Court Act.]-In an action for damages by the respondent against her husband, the appellant, the latter inscribed in law on the ground that the action when instituted was prescribed. The judgment of the trial judge, maintaining the inscription in law and dismissing the action, was reversed by the appellate court, which held that under art. 2233 C.C. husband and wife cannot prescribe against one another. Upon a motion by the respondent to quash an appeal to this Court for want of jurisdiction, Held, that jurisdiction lies in this Court to entertain the appeal. The APPEAL-Concluded judgment appealed from is a "final judgment" within the meaning of section 2 (b)
of the Supreme Court Act; the right in controversy under the inscription in law
(i.e, the respondent's right to institute the action notwithstanding the lapse of time) is a " substantive right * * * controversy " in a " judicial proceeding "
and, unless reversed on appeal, the decision of the appellate court will be binding on the parties throughout all stages of the litigation and thus finally determines the issue in respect of that right.
..........
6--Criminal law - Murder - Misdirection to jury-Provocation-Onus in general ...............................
AUTOMOBILES
BANKRUPTCY-Bankruptcy of firm of stock broker--Customers' securities not identifiable or not in brokers' hands at date of bankruptcy-Ascertainment and proof of customers' claims on basis of brokers' conversion of securities as at date of bankruptcy-A customer subsequently asking to substitute claim on basis of conversion at dates of actual sales of securities by brokers-Question of allowance of such amendment-Bankruptcy Act (R.S.C., 1927, c. 11), 76,
(4)-Discretionary power in the court
-Circumstances of the case-Delay in making substituted claim - Customer's conduct-Customer's knowledge or lack of knowledge of facts--Change of position in course of administration of estate.]- Respondent had been a customer of a firm of stock brokers, who made an assignment in bankruptcy to M. on January 30, 1930. The brokers' books indicated that they carried for the accounts of their numerous customers many securities, but only a small proportion thereof were held by them at the date of bankruptcy. It was difficult, if not impossible, except in a few cases, to identify securities on hand as those of any particular customer or to ascertain from the brokers' books and records when or how the securities indicated in the respective customers' accounts as being carried, but not in fact on hand had, if ever, been bought or dispoed of. In these circunstances, in order to have an equitable basis of distribution among the creditors,
M. (the trustee) wrote up each customer's account by crediting him with the value, at market price on date of bankruptcy, of the securities indicated by the books as being carried for him, and then, by charging him with the amount, if any, of his indebtedness to the brokers, the customer's equity or surplus was arrived at. A statement of his account,
BANKRUPTCY-Continued so worked out, as of January 30, 1930, was sent by M. to each customer, concluding with the words: "The Jan. 30th credits or debits above given show the market values of the stocks carried for your account, long or short, as of that date." The stateinent sent to respondent shewed a credit balance in his favour of $76,295.91.
On February 26, 1930, respondent filed with M. a proof of claim as an ordinary unsecured creditor in that amount.
His claim was admitted as proved.
The creditors generally proved their claims, for the purpose of ranking on the estate, on the same basis; and the administration of the estate proceeded upon that basis. But before any distribution among ordinary creditors had been made, a scheme of arrangement was submitted and approved, under which a new company was to be incorporated, to which all the assets vested in M. were to be transferred, the new company to assume all debts provable in the bankruptcy and to issue its debentures in a sum sufficient to cover all claims proved as certified by M., the debentures to be delivered to M. and by him "to creditors who have proved their claims, as in satisfaction thereof." Many creditors had not yet proved their claims. By the court order approving the scheme, the debts provable in bankruptcy to be assumed by the new company and the amounts thereof were required to ne "ascertained by [M.] in accordance with the provisions of the Bankruptcy relating to the proof of debts and all the said provisions, including the provisions relating to appeals from disallowance by the trustee shall apply to the proof of such debts, and [M.1 shall certify the debts so proved for the purpose of the issue of debentures under the scheme."
The new company was incorporated in August, 1930, it acquired the assets vested in M., issued its debentures, proceeded to realize upon the assets, made certain payments on the debentures, but not sufficient to meet requirements under the terms thereof, became in default, and was, in December, 1932, declared bankrupt.
Its creditors proved their claims upon the debentures, and its trustee, on a realization of assets, paid certain dividends (in August, 1933, June, December, 1934, October, 1936). Respondent voted (in May, 1930, upon his claim as proved) for approval of the scheme, his claim (according to his proof of claim filed) was certified by M., the new company issued debentures for the amount thereof, which were delivered to respondent in settlement thereof and accepted by him, he filed his claim against the new company's estate in bankruptcy, basing it upon the amount of said debentures, he was made an inspector of that BANKRUPTCY-Continued estate, attended 23 inspectors' meetings, and accepted the aforesaid dividends from that estate without protest. According to his evidence, he had at first assumed or believed that his securities were still on hand at the date of the brokers' bankruptcy, but learned to the contrary about the beginning of
1933. In November,
1936, he forwarded to M. an amended or additional claim in which there was substituted for the market value of some of his securities at the date of bankruptcy the market value thereof on the respective dates on which, according to respondent, they had been disposed of by the brokers prior to their bankruptcy, the respondent thus increasing his claim by $73,486.61.
M. replied, in effect, that he had no power to entertain the amended claim.
Treating this reply as the disallowance of a claim under s. 127 of the Bankruptcy Act, respondent appealed to the bankruptcy Judge, who dismi3sed his appeal ([1937] O.R. 559, at 559-561).
On appeal, the Court of Appeal for Ontario ([1937] O.R. 559) held that he was entitled to rank as a creditor in respect of his amended claim (subject to settlement of its amount) and that debentures be issued for the additional amount thereof (subject to s. 76 of the Bankruptcy
From this judgment the present appeal was taken (by special leave under the Bankruptcy Act) to this Court. Held
(Kerwin J. dissenting): The appeal should be allowed and the order of the Judge in Bankruptcy (declining to give effect to the amended claim restored.
Sec. 76 of the Bankruptcy Act does not apply to a case such as this, where a creditor, having proved his claim in conversion on one basis of calculation (conversion at the date of bankruptcy), seeks in effect to withdraw his original proof and to substitute a proof for the same claim but on a different basis of calculation (conversion at the date of actual sales).
doubtful if the discretionary power in the court under s. 163 (4) of said Act applies to the filing or amending of claims with the trustee.
But the court has in bankruptcy an equitable jurisdiction to deal with matters of this sort. It could not be said that respondent was barred from his desired amendment on the ground of the doctrine of election.
The evidence did not disclose that he had such knowledge of the facts when he filed his original claim as would put him to an election.
But, in view of there having been so much delay and so much change position in the course of administration of the brokers' estate between the date of bankruptcy and the date of filing the amended claim (nearly seven years); in view of circumstances which should have enabled respondent to obtain much earl- BANKRUPTCY--Continued ier the information (as to the sales of his securities) which he had when he filed his amended claim; in view of the situation with regard to the new company (which after its bankruptcy could not properly issue more debentures, and, moreover, was not, as such company, before the court) and with regard to other creditors in similar position to respondent; and in view of all the facts and circumstances of the case, and bearing in mind that the allowance, under such or like facts and circumstances, of such amendments as that now sought might lead, in this case and in similar cases, to endless delays and confusion in the administration and distribution of stock brokerage bankruptcies it must be said that the Judge in Bankruptcy had exercised a sound discretion in declining tc give effect to the amended claim, and an appellate court was not justified (in the circumstances of the case) in interfering with his exercise of that discretion. Per Kerwin J. (dissenting): Sec. 76 of the Bankruptcy Act cannot be construed to prohibit under all circumstances a creditor who has filed a claim with a trustee in bankruptcy from withdrawing it and filing a new one or an amended one. Respondent was misled by the wording of M.'s statement aforesaid to such an extent that he filed a claim believing his securities were available; and this misunderstanding continued (justifiably, under the circumstances) until he ascertained the true facts about the beginning of 1933.
Nothing that he did or omitted to do should debar him from making a new claim or filing an amended claim. His delay from the beginning of 1933 (when he ascertained that his securities were not on hand at the date of bankruptcy) to the date of filing his amended claim (during which period or part thereof he was considering his position, watching certain proceedings, and tracing sales of his securities) should not be held to debar him from amending, as the position of the trustee of the brokers' estate and that of the trustee of the new company's estate have not altered nor has either trustee been prejudiced in any way. It has been held in the Bankruptcy Court in Ontario (In re Stobie, Forlong & Co.; ex parte Meyer Brenner, 14 CB.R. 405) that the bankruptcy of the new company did not prevent M. from certifying to a debt against the brokers when proved; and the trustee of the new company's estate still has assets on hand. The circumstance that there may be other creditors in a position similar to that of respondent cannot affect his rights. re Safety Explosives Ltd., [1904] 1 Ch. 226, discussed.
That case is not an authority applicable to the present ques- BANKRUPTCY-Concluded tion). In re FoR- Loo & Co.-In re 193
CHINESE landing in Canada-Immigration Act-Habeas corpus-Report ordering deportation ...................
See Acr.
CIVIL CODE-Art 6 (Preliminary title)
.............
......................
2-Arts. 168, 164 (Actions for annulling marriage) .......................
3- Art. 188
(Respective rights and duties of husband and wife)........
4-Art.
807 (Effects of separation from bed and board)....................
5--Art. 1054
(Offences and quasioffences) ..........................
6- Art.1065 (Effect of obligations). 433
7-Arts. 1087, 1088 (Conditional obligations) ...
....
e
.
8- Arts. 1507, 1522, 1526, 1527, 1580
CODE OF CIVIL PROCEDURE-At.
548 (Judgment) ...................
2- Art. 998 (Mandamus) ......... 22
See 1.
3- Art. 1008 (Prohibition) ........
COMMON GAMING HOUSE
COMPANY - Seal - Duplicate of facsimile seal afixed in Vancouver by Quebec company - Deed-Registration refused - Powers of company as granted by incorporating statutes.]-A deed, purporting to be a conveyance of land by the Montreal
Trust Company (its head office and its seal being both in Montreal) as grantor to the appellant as grantee, was refused registration on the ground that it was executed in Vancouver and a duplicate or facsimile seal affixed thereto.
Upon a petition under section 230 of chapter 127 of R.S.B.C., 1924, the trial judge upheld the registrar on the ground that a company can have only one seal, i.e., its common seal, unless enabled thereto by statutory authority. On appeal, the judgment was affirmed on equal division of the appellate court. Held, that the appeal should be allowed and that there should be judgment directing the registrar to proceed with the registration of the deed
)EX
COMPANY-Concluded under the appellant's application.-In virtue of the enactments of the Quebec statute incorporating the Montreal Trubt Company and the amending statutes, it was within the powers of the directors of the company to authorize the sealing of instruments on behalf of the company in this form, by employing a stamp usually kept at the head office or by employing a stamp or stamps kept at branch offices; and this power in virtue of the above enactments could be delegated to an executive committee.
Judgment of the Court of Appeal ([1937]
3 W.W.R. reversed.
TILEs .................
..... 25 CONSTITUTIONAL LAW-B.N.A. Act, 90, 56, 57-Power of Governor General in Council to disallow provincial legislation-Power of Lieutenant-Governor to reserve for signification of pleasure of Governor General Bills passed by legislative assembly or legislative authority of a province.]-The power to disallow provincial legislation, vested in the Governor General in Council by s. 90 of The British North America Act, 1867, is still a subsisting power. Its exercise is not subject to any limitations or restrictions, save that the power shall be exercised within the prescribed period of one year after the receipt of an authentic copy of the Act by the Governor General. The fact that, as is the practice in some provinces, the Lieutenant-Governor assents to a Bill in the name, not of the Governor General but of His Majesty, does not impair the legal validity of his assent, nor does it affect the said power of disallowance vested in the Governor General in Coun- Per Duff CJ. and Davis J.: The circumstance that the assent of the Lieutenant-Governor acting under authority and on behalf of -the Crown has been given in a form more august than that prescribed by s. 90 of the B.N.A. Act cannot impair in any way the legal validity of his assent that is expressed as the assent of the Sovereign, which in truth, in point of law, it is and is intended to be; and this practice is of no relevancy touching the law governing the matters now in question, which is to be ascertained from the enactments of the B.N.A.
As to that practice (assenting in the name of the King), Kerwin J. was of opinion that it is the correct practice.
Crocket J. was inclined to the same opinion. Hudson J. was of opinion that the practice is justified. (All three were of opinion that assent in the Governor General's name would have the same effect).
The power to reserve, for the signification of the pleasure of the Governor General, Bills passed by the legislative assembly or legislative authority of a province, vested in the Lieuten- CONSTITUTIONAL LAW-Continued ant-Governor by s. 90 of The British
North America Act, 1867, is still a subsisting power. Its exercise is not subject to any limitations or restrictions, save that the discretion of the Lieutenant- Governor shall be exercised subject to any relevant provision in his Instructions from the Governor General. Liquidators of the
Maritime Bank v. Receiver-General of
New Brunswick, [1892] A.C. 437; In re
The Initiative and Referendum Act, [ 19191
A.C. 935; Bonanza v. The King, [1916]
1 A.C. 566; British Coal Corpn. v. The
King, [1935] A.C. 500; Wilson v. E. & N.
Ry. Co., [1922] 1 A.C. 202, at 209, 210;
Bank of Toronto v. Lambe, 12 App. Cas.
575, at 587, and other cases, discussed or referred to. The Statute of Westminster
(1931) 22 Geo. V. (Imp.), c. 4, discussed.
A
A .................
2-Alberta statutes-The Bank Taxation Act-The Credit of Alberta Regulation Act, 197-The Accurate News and
Information Act
The Alberta Social
Credit Act - Constitutional validity - B.N.A. Act, 1867, ss. 91, 99.1-The Bank
Taxation Act, The Credit of Alberta
Taxation Act
The Credit of Alberta
Regulation Act, 1937-The Accurate News and Information Act-The Alberta Social
Credit Act - Constitutional validity
B.N.A. Act, 1867, es. 91, 93.]-The Bank
Taxation Act, The Credit of Alberta
Regulations Act, 1937, and The Accurate
News and Information Act are ultra vires of the provincial legislature of Alberta.
The Alberta Social Credit Act is ultra vires of the provincial legislature. Cannon
J. expressing no opinion.
Per Duff CJ.
and Davis and Hudson JJ.-Such legislation does not come within section or 16) of the B.N.A. Act; it is not within the power of that province to establish such statutory machinery with the functions for which this machinery is designed and to regulate the operation of it: such machinery, in part at least, as subject matter of legislation, comes within the field designated by "Currency,"
(s. 91 (14)
B.N.A. Act).
Per Duff CJ.
and Crocket, Davis, Kerwin and Hudson
JJ.-Such machinery, as established by
The Alberta Social Credit Act, in its essential components and features, comes under head no. 15, "Banks and Banking." Per Duff CJ. and
Davis and
Hudson JJ.-Even if such legislation is not strictly within the ambit of no. 14 or no. 15, or partly in one or partly in the other, then this legislation is ultra vires as its subject-matter is embraced within category no. 2 of s. "Regulation of Trade and Commerce." Held, by
CONSTITUTIONAL LAW-Continued the Court, that the Bank Taxation Act is not an enactment in exercise of the provincial power to raise a revenue for provincial purposes by direct taxation, but is legislation which, in its true character and by ascertaining its effect in the known circumstances to which it is to be applied, relates to "Incorporation of Banks and Banking " (s. 91 (15) B.N.A. Act). Per Duff CJ. and Cannon, Davis and Hudson JJ.-The rate of taxation provided by that Act must be prohibitive in fact and must be known to the Alberta legislature to be prohibitive. It is not competent to the provinces of Canada, by the exercise of their powers of taxation, to force banks which are carrying on business under the authority of the Bank Act to discontinue business; and taxation by one province on a scale which, in a practical business sense, is manifestly prohibitive is not a valid exercise of provincial legislative authority under section 92. Such legislation, though in the form of a taxing statute is "directed to" the frustration of the system of banking established by the Bank Act, and to the controlling of banks in the conduct of their business. Per Crocket and Kerwin JJ.-The Bank Taxation Act, instead of being a taxing enactment, is merely a part of a legislative plan to prevent the operation within the province of those banking institutions which have been called into existence and given the necessary powers to conduct their business by the only proper authority, the Parliament of Canada. Held, by the Court, that The Credit of Alberta Regulation Act, 1937, is legislation in relation to " Banking " (s. 91 (15)
B.N.A. Act); and, per Duff C.J. and Davis and Hudson JJ., it is also legislation in relation to " The regulation of trade and commerce " within the meaning of section (2). Per Duff CJ. and Davis and Hudson JJ. -This
Act is a part of a general scheme of legislation of which The Social Credit Act is really the basis; and, that latter Act being ultra vires, ancillary and dependent legislation falls with it. Held, by the Court (except Cannon J.) that The Alberta Accurate News and Information Act forms part of the general scheme of social credit legislation, the basis of which is The Alberta Social Credit Act; and since that Act is ultra vires, ancillary and dependent legislation must fall with it. Per Duff CJ. and Davis J.-Under the constitution established by the B.N.A. Act, legislative power for Canada is vested in one Parliament and that statute contemplates a parliament working under the influence of public opinion and public discussion.
The Parliament of Canada possesses authority to legislate for the protection of that right; and any attempt CONSTITUTIONAL LAW-Continued to abrogate that right of public debate or to suppress the traditional forms of the exercise of such right (in public meeting or through the press) would be incompetent to the legislatures of the provinces.
Moreover, the law by which the right of public discussion is protected existed at the time of the enactment of
The British North America Act and the legislature of Alberta has not the capacity under section 129 of that Act to alter that law by legislation obnoxious to the principle stated. Per Cannon J.- The mandatory and prohibitory provisions of the Alberta Accurate News and
Information Act interfere with the free working of the political organization of the Dominion. They have a tendency to nullify the political rights of the inhabitants of Alberta and of the citizens outside the province, as citizens of Canada, and cannot be considered as dealing with matters purely private and local in that province.
The federal parliament is the sole authority to curtail, if deemed expedient and in the public interest, the freedom of the press in discussing public affairs and the equal rights in that respect of all citizens throughout the
Dominion. These subjects were matters of criminal law before Confederation, have been recognized by Parliament as criminal matters and have been expressly dealt with by the criminal code. Such an
Act is an attempt by the legislature to amend the Criminal Code in this respect and to deny the advantage of section
133 (a) of that Code to the newspaper publishers.
(1937), or or
..........
3- Administration of justice, constitution of provincial courts, appointment of judges, judicial officers, magistrates, justices of the peace-B.N.A. Act, s. I2 (14),
96-Provincial powers as to appointments, investment of jurisdiction-Authority of the judicial officers to perform functions vested in them respectively pursuant to provisions of the Adoption Act, the Children's Protection Act, the Children of
Unmarried Parents Act, and the Deserted
Wives' and Children's Maintenance Act,
Ont., chapters 218, 812,
217 and
11, respectively, of R.S.O., 1937.1-Each of the following judicial officers has authority to perform the functions which the
Ontario legislature has purported to vest in him by the provisions of the following
Acts respectively: With reference to the
Adoption Act, RS.O., 1937, c. 218: the
CONSTITUTIONAL LAW-Continued judge or junior or acting judge of the county or district court; a judge of the juvenile court designated a judge by the Lieutenant-Governor in Council pursuant to said Act. With reference to the Children's Protection Act, R.S.O., 1937, c. 312: the judge or junior or acting judge of the county or district court; a police magistrate or judge of the juveuile court designated a judge by the Lieutenant- Governor in Council pursuant to said Act. With reference to the Children of Unmarried Parents Act, R.S.O., 1937, c. 217: the judge or junior or acting judge of a county or district court; a police magistrate or judge of the juvenile court designated a judge by the Lieutenant- Governor in Council pursuant to said Act. With reference to the Deserted Wives' and Children's Maintenance Act, R.S.O., 1937, c. 211: a justice of the peace; a magistrate; a judge of the juvenile court. In point of substantive law, the matters which are the subjects of the aforesaid legislation are entirely within the control of the legislatures of the provinces; the legislature of Ontario has for that province legislative authority in respect of them just as unqualified, subject to the powers of reservation and disallowance, as that of the Imperial Parliament. To invest the judicial officers aforesaid with authority to perform their functions as provided under said Acts, respectively, is within the competence of the provincial legislature; it is not contrary to s. 96 of the B.NA. Act (requiring appointment by the Governor
General judges superior, district and county courts); the said functions are not within the intendment of said
The jurisdiction inferior courts, whether within or without the ambit of said was not by the B.N.A. Act fixed forever as it stood at the date of Confederation.
The legal history, in the way of legislation and of decided cases, as to jurisdiction and exercise of jurisdiction, under provincial authority, of courts of summary jurisdiction, reviewed. The B.N.A. Act, ss. 92 (14), considered.
Regina v. Coote, L.R. 4 P.C. 599; Maritime Bank's case,
[18821
A.C.
437; Martineau v. Montreal City, [19321 A.C. 113; Toronto v. York, [19381
A.C. 415; Ganong v. Bayley, 2 Cart. 509; Burk v. Tunstall, 2 B.C.R. 12; Regina v. Bush, 15 Ont. R. 398; In re Small Debts Act, 5 B.C.R. 246; French v. McKendrick, 66 Ont. L.R. 306, and other cases, discussed or referred to. The decisions in Clubine v. Clubine, [19371 Ont. R. 636, and Kazakewich v. Kazakewich, [19361 3 W.W.R. 699, dis- Acr, THE
CONSTITUTIONAL LAW-Concluded
Acr,
Aur, THE
Acr,
CONTRACT - Crowr-Lunatics-Agency
-Purchase of government life annuity by person of unsound mind and in poor health-His condition not known to government administering oflicials, but known to local postmaster through whom purchase price of annuity paid-Annuity paid to time of purchaser's death-Suit, after his death, to recover from the Crown the purchase price (less amount of anntity payments made)-Unfairness of the contract in purchaser's state of health-1mputability of postmaster's knowledge to the Crown-Government Annuities Act,
R.S.C., 1927, c. 7, and regulations thereunder.]-W. (the suppliant's husband)
purchased from the Government of Canada a life annuity, paying therefor
$10,000, the major portion of his assets.
He was then 73 years old, in very poor health and of unsound mind, having fixed delusions against his wife and son, in pursuance of which delusions his purchase was made. His condition of health and mind was known by the local postmaster through whom said $10,000 was paid (who did not encourage W., rather, perhaps, tried to discourage him from his course), but was not known or suspected by the administering officers of the Crown. The contract was in the Government's usual terms and made on its behalf in the ordinary course of business. After seven monthly annuity payments, aggregating
$882.49, had been paid to W., he died.
The action was to recover the sum paid to the Crown. Held (Kerwin J. dissenting): The suppliant was entitled to recover $9,117.51 (the $10,000 less annuity payments made) with interest from date of the petition of right.
Judgment of
Maclean J., President of the Exchequer
Court of Canada, [1937] Ex. C.R. 186, reversed.
Per Duff C.J.: The contract, obviously improvident on W.'s part in his state of health, and made in his said mental condition, was one which a court of equity would not allow to stand if entered into between W. and any private person (e.g., an insurance company) having knowledge of the facts-the latter would be chargeable on equitable principles with fraud in the sense of taking an unconscientious advantage. The government officers would not be performing their duty to the Crown if they concluded a contract with an applicant for an annuity in circumstances which were such that, if they were acting in a private capacity, a court of equity would set aside the contract as one obtained by taking a fraudulent advantage of the
CONTRACT-Continued purchaser's mental and physical weakness; and it would be their duty to the Crown not to retain the money paid for an annuity if before the execution of the contract it came to their knowledge that the intending purchaser had paid it in circumstances such as existed in this case. Having regard to the provisions of the Government Annuities Act, the regulations made thereunder, and the practice (as shewn in evidence) of the Government department administering the Act, the postmaster was an agent of the Crown in such a way that his knowledge of the facts should be imputed to the Crown (otherwise, semble, the suppliant would have been without a remedy); it was his duty to communicate to his superior officer, the Superintendent of Annuities, facts coming to his knowledge which would render it the duty of the Crown officers, as between them and the Crown, not to conclude the contract.
The fact that the consideration, for which W. paid the sum sought to be recovered, had been fully enjoyed, did not, in the circumstances, bar the obtaining of restitution. The circumstance that a contract has been executed on both sides is not in itself a bar to relief in the case of fraud. Though the benefit of the chances of a long life for W. could not strictly be restored, yet that always was obviously illusory; complete restitution could be made as to the property which actually passed; and there was no obstacle in the way of effecting practical justice. The case comes within the principle of the judgments of Buckley LJ. and Bray J. in Kettlewell v. Refuse Assce. Co., [19081 1 K.B. 545, at 552; [1907] 2 K.B. 242, at 247, which seems to have been approved by the Lord Chancellor, [1909] A.C. 243, at 244, The Crown cannot lawfully retain the money paid to its agent in the circumstances.
Per Davis J.: Whether or not the local postmaster's knowledge could be imputed to the Crown, and assuming that the Crown had no knowledge of W.'s incapacity, yet on the facts of this casean extraordinary one-the court is not powerless to give relief according to the manifest justice of the case. The contract was an unfair bargain-in the sense that no man with normal mentality, in W.'s physical condition, would have purchased the annuity, and no one, if he knew W.'s physical and mental condition, would honestly have entertained his application. No injustice would be done to the Crown if the moneys ($9,117.50) were returned. Though strictly the parties could not be placed in statu quo, yet the limitation in that regard as to the court's interference can have no practical application where the court is dealing only with a sum of money. It is not a case where CONTRACT-Concluded disturbance of conditions following upon an executed contract would be highly inconvenient or unjust.
(Story's Equity
Jurisprudence, 13th ed., p. 242; Daily
Telegraph Newspaper Co. Ltd. v. Mc- Laughlin, [1904] A.C 776; 1 CL.R. 243, at 280, 281; Niell v. Morley, 9 Ves. 478, at 481; York Glass Co. Ltd. v. Jubb,
134 L.T.R. 36, at 43; and other cases, referred to).
Per Kerwin J. (dissenting)
:
Molton v. Camrouz, 2 Ex. 47, affirmed
4 Ex. 17, may be taken to have firmly established the modem rule as to commercial contracts by a lunatic to this extent: that even if the lunatic was incapable of understanding what he was doing in the particular transaction, he will be bound by his undertaking where no advantage was taken of him and where the contract has been executed in whole or in part so that the parties cannot be restored to their original position, unless he can also prove that the other party knew of his state of mind or wilfully shut his eyes to means of knowledge thereof. Daily Telegraph Newspaper Co.
Ltd. v. McLaughlin, [19041 A.C. 776, and
Molyneux v. Natal Land & Colonization
Co. Ltd., [19051 A.C. 555, have no bearing upon the rule to be applied here and are not in conflict with it. In the present case, while it was objected that W.'s purchase was unwise, no objection was raised as to the consideration for the contract;
nor was it suggested that there was practised any fraud or imposition by any one;
furthermore, the annuity contract was delivered to him and he received the specified monthly payments to the time of his death.
Under these circumstances the suppliant is prohibited from setting up
W.'s incapacity unless she can show that the other party to the contract was aware of W.'s condition.
As to that, the intervention of the postmaster, under the
Act and regulations, in the manner established by the evidence, cannot assist her.
Even if the postmaster could be termed an agent in any sense of the word, authority was not conferred upon him of such a nature as to impute to the Minister any knowledge he may have had of W.'s condition.
(Blackburn, Low &
Co. v. Vigors, 12 App. Cas. 531, at 537cited).
WILsoN v. THE KINo.. 317
CRIMINAL LAW-Culpable homicide- As to reduction from murder to manslaughter-Provocation-Cr. Code, a. 961
-Acts of third person- Directions to jury-Questions for fury.1-An appeal by the Crown from the judgment of the
Court of Appeal for Ontario, [19371 O.R.
693, ordering a new trial of accused (who had been convicted at trial on a charge of murder) on the ground of misdirection or failure of proper direction by the trial judge in charging the jury on the question of provocation, was dismissed. The law with regard to provocation as embodied in s. 261 of the Cr. Code does not contemplate the extension of the relative lenity (in reducing culpable homicide from murder to manslaughter) to a case in which provocation received from a third person becomes the occasion of an act of homicide against a victim who, as the offender knows and fully realizes, was not in any way concerned in the provocation. But acts of provocation committed by a third person, which might be sufficient to reduce the offence to manslaughter if the victim had in fact participated in them, may have the same effect where the offence against the victim is committed by the accused under the belief that the victim was a party to those acts, although the victim was not implicated in them in fact.
(Browns' case 1 Leech C.C. 148, and Hall's case, 21 Cr. A.R. 48, cited and discussed.) present case, the trial judge ought to have asked the jury to consider whether, in the blindness of his passion aroused by his quarrel with the husband of Mrs. S., the accused, suddenly observing Mrs. S. (the victim of the act now in question) within a few feet of the scene of the quarrel and of his mortal assault on the husband, attacked her on the assumption that she was involved in the acts of the husband and daughter. It was a question for the jury whether (a) the acts relied upon as constituting provocation were calculated to deprive an ordinary man of self-control to such an extent as to cause an attack upon Mrs. S. of such a character as that delivered by the accused, and (b) whether in fact the accused was by reason of what occurred deprived of his self-control to such a degree; and in his attack upon Mrs. S. was acting upon such provocation on a sudden and before his passion had time to cool, and under the assumption that she was involved therein. THE V. MANCHUK......................... 2- Appeal--Jurisdiction--Wrt of prohibition-Criminal charge-Leave to appeal granted by appellate court-Supreme Court Act, R.S.C., c. 85, 86, 41. Arts. 993, 1003 C.C.P.1-The Supreme Court of Canada is without jurisdiction to hear an appeal from a judgment of an appellate court in proceedings for or upon a writ of prohibition arising out of a criminal charge, notwithstanding special leave to appeal granted by that court, as the latter could do so validly, under section 41 of the Supreme Court Act, only in cases "within section 36" of the Act. ARTnua FRANgOIs-X. LAoouRsikBB ...... 3--Offence of stealing a "post letter"
from a "post office
Meaning - Conatruction-Provincial "parliamentary post office "-Criminal Code, sections 6 and
324-Post Office Act, R.S.C., 1927 c 161, a. 2 (h, j, 4, 7, 85, 89, 101-Crem inal
Code, section 364.1-The appellant was charged, under section 364 of the Criminal Code, with having stolen " une lettre dans le bureau de poste du Parlement "
in the city of Quebec.
He was found guilty and the conviction was affirmed by a majority of the appellate court-The appeal in this Court was as to whether the legislative post office was a "post office" within the proper construction of section 364 of the Criminal Code. Held,
Duff CJ. and Davis J. (dissenting)
, that the appeal should be allowed and the conviction quashed. Per Cannon J.-The control and responsibility of the Dominion post office authorities on the stolen letter ceased from the moment that it was delivered in the main post office to the representative of the provincial authorities.-In law, the letter was abstracted after it had been delivered to the duly constituted agents of the provincial authorities and it had passed out of the control of the Dominion post office: the abstraction took place when it was no more a "post letter" or "lettre confi6e
A la poste." Per Crocket J.-The parliamentary post office (bureau de poste du
Parlement) was not a " bureau de poste "
within the meaning of section 364 of the
Criminal Code; and, also, the stolen letter was not a " lettre confi6e h la poste " at the time of the theft in the sense of that expression as given in section 2 of the Post Office Act. The letter at that time was neither in a "post office" nor
"being carried through the post," the
Post Office Department's control and responsibility of and for it having ceased upon its delivery at the so-called "bureau de poste" which was officered and operated by appointees of the Provincial
Government entirely at the latter's expense and over which neither the Quebec city post office nor the Post Office Department of Canada had any control.
Per Kerwin J.-The parliamentary post office was not a "post office"
within the meaning of section 2 (1) of the Post
Ofice Act.
A post " means any building
* * * where any letter which may be sent by post is received * * * ;
and it cannot have been intended that any letter which may be sent by post is in a post office unless it is in a building
* * * which is under the control of the Postmaster-General as part of the postal service of Canada. Upon the evidence, the quarters in the Legislativ"
Assembly building in Quebec, set aside by the provincial authorities cannot be said to be part of the postal service of Canada, even though what was done was by the consent or authority of the Postmaster-General. Per Duff CJ. and Davis J. (dissenting) .- Upon the evidence and in view of the findings of the trial judge, the officials of the Parliamentary Post Office, in all their activities, in undertaking to receive, collect, send or deliver letters and in receiving, collecting, sending, delivering letters and having in possession letters for the purpose of so conveying and delivering them, were acting under the authority of the Postmaster- General.
The Parliamentary Post Office was a post office established by the Postmaster-General in exercise of his powers (section 7) under the Post Office Act, and, therefore, a post office within the contemplation of section 364 of the Criminal Code. Accordingly, the letter in question in this case had not ceased to be a " post letter" within the meaning of that section when it was abstracted by the appellant.
Roy v. THE KiNo....... 4-Appeal-Leave to appeal to Supreme Court of Canada-Criminal law-Conflict of judgments-Indictment--Formal charge in writing setting forth offence-Description of offence - Insufficiency - Conspiracy -Section
1025 Cr. C.]-The appellants were charged with having conspired together and with others during a certain period and at named places "par la supercherie, le mensonge et d'autres moyens frauduleux, pour frauder le public et les porteurs d'obligations de la Cie L~gar6 * * * "; and they were convicted. The appellate court unanimously affirmed the conviction; and the appellants seek leave to appeal to this Court under section 1025 Cr. C. on the ground that the judgment intended to be appealed from conflicts with the judgment of some other court of appeal in a like case.
Held, that the application should be refused. The judgment intended to be appealed from does not conflict with the decision of this Court in Brodie v. The King, ([19361 S.C.R. 188). In that case the accused were charged with having conspired together and with others, during a certain period and at a named place "thereby committing the crime of seditious conspiracy."
present case, the accused are not charged with having committed a crime in the abstract like " murder " or " theft "; the offence is charged in such a way as to lift it from the general to the particular. Also, the judgment intended to be appealed from does not conflict with the decision in The King v. Sinclair ((1906) 12 C.C.C. In that decision, the only matter letermined, relevant to this application, was that the charge, with the particulars, did not disclose any offence under section 394 Cr. C.; the charge in the present case does not allege or suggest a conspiracy to do anything of the kind referred to in the judgment in the Sinclair case.
v. THE KING...............
5--Appeal---Trial on charge of murder- Misdirection to jury-Provocation-Onus in general-Power of court on appeal- Substitution of verdict of manslaughter for jury's verdict of murder.-Cr. Code, ss. 1016, 1024; Supreme Court Act, R.S.C.,
1927, c. 35.]-On the occasion of a quarrel between appellant and S., appellant killed S., and then killed S.'s wife who had not been present at the quarrel or the killing of S. but on hearing shouts had appeared at her house door a few feet away. Appellant was tried on the charge of murder of S. and was found guilty of manslaughter and sentenced to 20 years penal servitude. He was later tried on the charge of murder of Mrs. S. and was convicted of the crime charged.
This conviction was set aside and a new trial ordered on the ground that the trial judge had misdirected the jury on the question of provocation ([1937] O.R. 683; [19381
S.C.R. 18).
Appellant was then tried again on the charge of murder of Mrs.
S. and convicted of the crime charged.
An appeal to the Court of Appeal for
Ontario was dismissed ([1938] O.R. 385), but two judges dissented, holding that there was error in certain respects in the trial judge's charge to the jury and there should be a new trial. Appellant appealed to this Court. Held (allowing the appeal): There was a mistrial. The conviction should be set aside. The putting before the jury, in the trial judge's charge, of a sentence, taken from the judgment of one of the judges of the Court of
Appeal on the appeal from the first conviction of appellant of murder of Mrs.
S., that the said Judge in Appeal was "far from suggesting that the conduct of the accused would not justify a verdict of wilful murder," constituted, in the circumstances, error of such gravity as to vitiate the verdict. While the trial judge was entitled, if so advised, to express his own opinion as to the effect of the evidence actually before the jury, it was inadmissible to present to them the opinion of any one that on the former trial the evidence was sufficient to justify a conviction for murder. Moreover, the effect of this was probably accentuated by the record of appellant's conviction of the murder of Mrs. S. endorsed on the indictment which was put in the jury's hands, said record being " Guilty--Sentenced to be banged, May 31, 1937." In the circumstances of the case, said record should have been withheld from them; a copy of the indictment with the endorsement omitted would have served every legitimate purpose. Another serious objection was that the trial judge, in answering a question from the jury with regard to provocation, did not direct them in the precise and unambiguous terms in which they ought to have been instructed. Moreover, the terms in which the jury's question was expressed manifested an erroneous impression that, in proving the killing, the Crown had disposed of the presumption of accused's innocence and that they must find him guilty of murder unless he affirmatively established to their satisfaction provocation in the pertinent sense; and their question should have been answered in such a manner as to remove this error from their minds; it ought to have been made clear to them that in the last resort the accused could not properly be convicted of murder if, as the result of the evidence as a whole, they were in reasonable doubt whether or not he was guilty of that crime. As to an objection taken by the dissenting judges in the Court of Appeal to the effect that the trial judge erred in instructing the jury that they were not concerned with the fact that appellant had been acquitted of the charge of murder of S. and found guilty of the less grave offence of manslaughter: Held per Duff CJ., Cannon, Davis, Kerwin and Hudson JJ.: (1) Plainly, the trial judge would have committed an error in law if he had told the jury that a finding of provocation in appellant's trial for murder of S. was conclusive upon the issue of provocation then before them; the issue of provocation was not the same in the two cases. (Opinion expressed that said dissenting judges had not meant to suggest otherwise on this point).
2. As to the suggestion that the trial judge ought to have told the jury that they must take it as an established fact that the acts of S. consituted sufficient provocation to reduce the homicide committed upon him to manslaughter, and, starting from that point, consider the issue of provocation in its bearing upon the charge against appellant of murder of Mrs. S.: Such a direction would probably be calculated to confuse and mislead the jury in respect of the actual issue upon which it was their duty then and there to pass. Moreover, such a direction would have been wrong; the evidence given at the earlier trial (for the killing of was not placed fully before the court nor was the trial judge's charge; nor, with such material before him, could the trial judge (on the trial for the killing of Mrs. have been warranted in directing the jury that at said earlier trial any issue of provocation. had been decided; the jury may on that (earlier) trial have thought, without passing upon any such issue, that the evidence raised a sufficient doubt as to accused's guilt in respect of the charge of murder to require an acquittal on that charge. Crocket J., in view of the principle as to the question of provocation which he took to be clearly deducible from this Court's decision in The King v. Manchuk, [19381 S.C.R. 18, in view of the established fact that appellant, on his trial for murder of S., had been found guilty of manslaughter only, and in view of the circumstances attending the killing of S. and Mrs. S., and it being quite apparent (as he held) that appellant in attacking Mrs. S. was acting upon the same impulse as that which caused him to attack S., was strongly inclined to agree with the reasoning of the dissenting judges in the Court of Appeal on the applicability of the principles of res judicata. As to the order that ought to be made by this Court: Per Duff CJ., Cannon, Davis, Kerwin and Hudson JJ.: It was clear that the jury must have been satisfied of the facts necessary to constitute manslaughter; and the Court of
Appeal would have authority under s. 1016,
Cr. Code, to substitute a verdict of manslaughter for the verdict of the jury and to pronounce sentence upon appellant
(Rex v. Hopper, [1915] 2 K.B. 431).
By force of a. 1024, Cr. Code, coupled with the enactments of the Supreme Court Act
(RS.C., 1927, c. 35), this Court has authority, not only to order a new trial, or to quash the conviction and direct the prisoner's discharge, but also to give the judgment which the Court of Appeal was empowered to give in virtue of s. 1016 (2),
Cr. Code. Under the exceptional circumstances of the case the last mentioned course is the proper one. The conviction should be set aside, a verdict of manslaughter substituted for the jury's verdict and appellant sentenced to imprisonment for life. Per Crocket J. (dissenting on this point): Considering the proceedings already undergone and in the anomalous circumstances of the case, justice would best be served by quashing the present conviction absolutely.
Further, there is no doubt as to this Court's right to quash the conviction; there may be some doubt as to its right to enter a judgment which necessarily involves its rendering a verdict in a criminal case and passing sentence upon it; the wisdom of the latter course is very doubtful; it would signalize an entirely new departure in the exercise of the jurisdiction of this Court in criminal cases.
v. Krw..................
6- Evidence-Conviction at trial for murder-Verdict resting solely on circumstantial evidence-The facts not inconsistent with rational finding of accused's innocencp co4nmmon law rule-On appeal,
EX conviction quashed and acquittal ordered.] -By the long settled rule of the common law-a rule by which courts in Canada are governed and which they are bound to apply-where a jury's verdict rests solely upon a basis of circumstantial evidence, the jury, before finding an accused guilty, must be satisfied not only that the circumstances are consistent with a conclusion that the criminal act was committed by the accused, but also that the facts are such as to be inconsistent with any other rational conclusion than that the accused is the guilty person. Held, in the present case (where the jury found accused guilty upon an indictment for murder), that the facts adduced had not the degree of probative force that is required to satisfy the test formulated by said rule; and the trial judge, on the application made by accused's counsel, should have told the jury that in view of the dubious nature of the evidence it would be unsafe to find the accused guilty, and have directed them to return a verdict of acouittal. Judgment of the Court of Appeal for Ontario, [1938] O.R. 200, quashing conviction and ordering accused's acquittal, affirmed.
THE V. ..... 7-Indictment attacked as bad for multiplicity-Several matters stated in alternative-Cr. Code, s. 854-Charge under s. 193 (3) of Customs Act, R.S.C., 1927, c. 42, and amendments-Form of verdict.] -Appellants were charged and convicted on an indictment that they " did * * * assist or were otherwise concerned in the importing, unshipping, landing or removing or subsequent transporting or in the harbouring of goods liable to forfeiture under the Customs Act, to wit: spirituous liquors of a value for duty of over " $200, contrary to s. 193 (3) of said Act, R.S.C., 1927, c. 42, and amendments. The indictment was attacked on the ground that it was bad for multiplicity, in that appellants were charged with several offences in the alternative in the one count. Held: The attack on the indictment failed. Appellants were not charged with any one of the offences of "importing," "unshipping," ete.
They were charged with an offence created by s. 193 of the Customs Act, which creates a substantive offence, and the guilt of a person charged thereunder depends in no degree whatever upon the fact or otherwise that the acts in which such person is concerned are themselves offences.
S. 854 of the Cr. Code applies. Held, also, that the form of the jury's verdict, finding accused "guilty of harbouring only,"
was unobjectionable when read in connection with the indictment and the trial judge's charge. Judgment of the Supreme Court of Nova Scotia in banco, 12 M.P.R. 483, sustaining, on equal division, the conviction of accused, affirmed.
v. THE KINo.
8-Charge of keeping common gaming house-Article found on premises as constituting prima facie evidence of guilt- Cr. Code, as. 985, 986 (2)-Nature of article-Prizes for punching in a board holes containing "winning letters" contained n correct answers to printed questions-Possibility of use of knowledge to punch with certainty correct holes-Difficult nature of questions and contemplated manner of using the board-Sufficiency of evidence to support magistrate's finding against accused.1-Appellant was convicted of keeping a common gaming house contrary to s. 229 of the Cr. Code. Under a search warrant there was seized in appellant's drug store what was described as a "skill puzzle board" containing (inter alia) a list of prizes, lists of numbered questions, and rows (numbered correspondingly to the questions) of holes, the operator to win a prize if he punched a hole containing a "winning letter" (which letter would be in its proper place in the spelling of the answer, concealed under the row of holes, to the correspondingly numbered question).
It was stated that if the operator knew the answer to a question he could make with certainty a winning punch.
It was apparent (as found by the court) that very few persons who had not previously examined the questions and undertaken to search in books of reference, etc., would know the answers.
Appellant contended that, there being only one correct answer to each question, there was no gaming or chance connected with the operation of the board. The question on this appeal was whether or not there was before the magistrate evidence sufficient in point of law to support a finding that the article was a "means or contrivance for playing any game of chance or any mixed game of chance and skill, gaming or betting"
within s. 986 (2) of the Cr. Code. Held:
The conviction should be sustained.
As applicable to this appeal, the effect of ss.
985 and 986 (2), Cr. Code, was to render it unnecessary for the prosecution to adduce evidence that persons had resorted to appellant's drug store for the purpose of using the board. As to its manner of use: The court must apply its knowledge of the usual everyday custom of mankind and hold that the ordinary person entering the store would pay the sum required (10 cents) for the chance of winning a prize, without critically examining the questions and returning later with a correct answer or answers. It was quite apparent that it was never intended that the board would be so used, but, on the contrary, it was expected that some persons entering the store would be inveigled to pay for punching a hole and the chance of winning a prize. This consideration sufficed to demonstrate that the board was a means or contrivance for playing a game of chance or, at any rate, a mixed game of chance and skill. Per Duff CJ.: The magistrate was entitled to look at the character of the questions and consider the probability that people participating in the game would seriously undergo the labour of ascertaining the correct answers, as well as the probability that anybody offering the game to pcople entering a public shop would expect that any such thing would be done. magistrate evidently concluded that, while the game could be played as one involving research and with certain results, it would in actual practice be operated in such a manner that the result, favourable or unfavourable, would depend entirely upon luck, and that such was the shopkeeper's expectation.
It could not be said that there was no evidence upon which the magistrate, employing his knowledge as a man of the world, as it was his duty to do, could take this view. It was an admissible conclusion, if the magistrate was so satisfied, that there was no other reasonable explanation, of the proved facts.
There was, therefore, evidence to support his finding that the article was a means or contrivance for playing a game of chance and was operated for gain by appellant.
THE KING ........................ 9-Murder-Death from abortion-Evidence-Direction to jury-Production of articles found in home of accused-Admissibility-Pertinency-Prejudice against accused-New trial.]-Upon the appellant's trial on an indictment for murder, in order to prove death from abortion, it was essential for the Crown to establish that the uterus itself of the deceased was packed with cotton batting (some of which was found in the home of the accused) and that this was done by the accused; and it was also of vital importance that, upon that point, the direction to the jury should be so clear and unequivocal as to leave no room for misapprehension.
It was also irregUlar to permit the production before the jury of articles found in the home of the accused by the police acting under a search warrant, when these articles had no real pertinency to any issue between the Crown and the accused, and two them specially (medical text books) were by their nature calculated to create prejudice against the accused in the eyes of the jury. A new trial was ordered.
PIcKEN v. THs Krwo. ...... 10- Evidence-Trial for murder-Evidence of previous quarrels between accused and deceased with accompanying assaults by accused-Admissibility.l-The accused
(respondent) was convicted at trial of the murder of H., a girl living near his home and with whom he had been "keeping company" for some time. On March 30,
1938, accused and H. were seen together and later on that day H. was found suffering from injuries from which she died.
Evidence was given of statements by accused, after the alleged attack, that he had killed H. with a hammer, that he was
"awful jealous of her," that he took her home the night previous and "afterwards she ran out with another fellow."
Evidence was given, against objection, of previous quarrels between accused and H.
and accompanying assaults upon H. by accused, one such incident occurring shortly before Christmas, 1937, one in January, 1938, and one about a week before said March 30, 1938.
The Appeal Division of the Supreme Court of New Brunswick (Harrison J. dissenting) directed a new trial, on the ground that evidence of previous assaults by accused upon H.
was improperly admitted M.P.R. 203).
The Crown appealed. Held (Kerwin and
Hudson JJ. (dissenting)
): The appeal should be dismissed. Per Duff CJ., Rinfret and
Davis JJ.: The Crown's case was that accused had killed H. in a fit of jealous passion aroused by her conduct with another man. The evidence definitely negatived any connection between this other man and the earlier incidents now in question; and wholly failed to present any facts from which the jury could properly infer that there was any connection of such earlier incidents with accused's objection to H.'s associating with other men; or that such incidents were the result of enmity or ill-will on accused's part; they were transient ebullitions of annoyance and anger which immediately passed away and led to nothing; in their physical characteristics they had no real similarity to the attack of March 30. Where there are acts seriously tending, when reasonably viewed, to establish motive for a crime, evidence of such acts is admissible, not merely to prove intent, but to prove the fact as well; but it is important that courts should not slip into a habit of admitting evidence which, reasonably viewed, cannot tend to prove motive or to explain the acts charged, merely because it discloses some incident in the history of the relations of the parties.
The incidents in question did not appear to be such that they could reasonably be regarded as evidencing feelings of enmity or illwill which could have been the motive actuating the homicide charged. A quarrel might, in its incidents or circumstances or in its relation to other facts in evidence, have such a character as to entitle the jury to infer motive and intention and state of mind, even in the absence of verbal declaration; while, on the other hand, such an occurrence or series of occurrences might be so insignificant as to leave nothing for the jury to interpret and to afford no reasonable basis for a relevant inference adverse to the accused. The facts in each case must be looked at, and if, reasonably viewed, they have no probative tendency favourable to the Crown or adverse to the accused in respect of the issue joined between them, the evidence should be excluded. Rex v. Bond, [19061 2 K.B. 389, at 397, 401, Rex v. Ball, [1911] A.C. 47, at 68, and other cases, referred to. Theal v. The Queen,. 7 Can. S.C.R. 397, on its facts has no resemblance to the present case. Kerwin J. (dissenting): The intent of accused was directly in issue (Cr. Code, s. 259 (b) referred to), and it was for the Crown to adduce evidence thereon. There was a definite connection between the accused's acts accompanying said quarrels and the issue as to accused's intent in inflicting the injuries on March 30; the evidence of those acts was relevant to that issue as indicating a jealous disposition on accused's part and as evidence of his motive. The jury was entitled to take those matters into consideration in conjunction with the other evidence, and the probative value was not so slight that the evidence as to any of the quarrels was inadmissible.
Rex v. Bond, (1906] 2 K.B. 389, at 397, 400, 401, Rex v. Ball, [19111 A.C. 47, at 68, Rex v. Shellaker, [19141
1 K.B. 414, Rex v. Chomatsu Yabu, 5 West. Australian L.R. 35, and other cases, referred to.
Per Hudson J. (dissenting)
: The onus was on the Crown to establish that accused killed H. and that he did it with malice.
To satisfy that onus, recourse to circumstantial evidence was necessary.
Evidence of the previous relations of the parties, including evidence of their quarrels and how they then behaved towards each other, was relevant on the issue of malice as that issue is explained in Woolmington v. The Director of Public Prosecutions, [1935] A.C. 462, at 482. The evidence being relevant to an issue, it should not be excluded merely on the ground that it disclosed some other crime or offence of a similar nature committed by accused (Makin v. Attorney-General of New South Wales, [1894] A.C. 57; Rex v. Bond, [19061 2 K.B. 389).
THE Krro v. nor .........................
CRIMINAL LAW-Concluded
11-Appeal - Application for special leave to appeal-Section 1025 Cr. C.- Dismissal of motion - Appeal to the
Court ........................
See 4.
CROWN-Petition of right
Action for recovery of money paid for sales tax and excise tax-Period of limitation-Claims barred-Section 82 of the Exchequer Court
Act, R S.C., 1927, c. 84-Section 48 of
Ontario Limitations Act, R.S.O., 1927, c. 106-Sec. 117 of the Special War Revenue Act, as enacted by 28-24 Geo. V, c. 60, s 24.1-The suppliant, by its petition of right, sought recovery of moneys paid the Crown as sales taxes and excise duties upon liquors purchased by it for export and which it claimed were exported to the United States. The liquors had been manufactured by one Walker Company and were alleged by the suppliant to have been purchased by it from that company at prices that included such sales taxes and excise duties. In May,
1926, the suppliant by an agreement in writing sold and transferred to Dominion
Distilleries Limited its business and undertaking as a going concern, the sale and transfer including all debts due to the suppliant in connection with the business.
The terms of the agreement were fulfilled and the suppliant had not carried on business since 1926. The transactions in liquor by the suppliant with the Walker Company took place between
January 31st, 1924, and January 25th,
1926. And the petition of right was filed before the Exchequer Court of Canada on December 14th, 1934.
The claim of the suppliant was to recover the sum of
$1,417,958.62, being $1,296,557.01 in respect of excise duties and $121,401,61 in respect of sales taxes.
The Exchequer
Court of Canada dismissed the petition of right. Held that the appeal should be dismissed with costs. Per The Chief
Justice and Davis and Hudson JJ.-Without deciding the question as to whether some one other than the manufacturer or producer, upon whom the duties and taxes were imposed and by whom they were actually paid to the Crown, could recover such payments from the Crownassuming that the suppliant as the purchaser of the liquor could recover in its own name and assuming further that the suppliant's charter had not become forfeited for non-user and that it was an existing company entitled to maintain the petition-held that the claim for $1,296,- 557.01 in respect of the payment of excise duties was barred at the end of six years by virtue of the combined effect of section 2 of the Exchequer Court Act and section 48 of the Ontario Limitations Act,
CROWN-Concluded such claim not being liable to be treated as a specialty debt for which the prescriptive period is 20 years; and that the claim for $121,401.61 in respect of the payment of the sales taxes was also barred by the six-year limitation above mentioned as the suppliant has made no application for a refund within the time prescribed by the statute and did not invoke the statutory right to a refund, the whole in conformity with the provisions of section 117 of the Special War Revenue Act. DisTrIERY PRoDuCrs Co. v. ......................
2- - Contract -Lunatics-Agency-Government life annuity
....... DAMAGES-Assessment of, in negligence action-New trial ................
DISALLOWANCE, of provincial legislation.
DIVORCE-Foreign - Invalidity - Subsequent re-marriage-Good faith-Putative marriage
Civil effects - Succession rights -Italian law ....
.... ...... EVIDENCE- Negligence-Injury-Claim for damages - Questions for jury - Misdirection in charge of jury ......... 2--Criminal law - Conviction at trial for murder-Verdict resting on circumstantial evidence
Common law rule On appeal, conviction quashed and acquittal ordered .................... 3--Charge of keeping common gaming house-Sufliciency of evidence...... 427 See 8. 4--Criminal law-murder-Death from abortion-Directions to jury-Production of articles found in home of accused- Admissibility - Pertinency - Prejudice against accused - New trial....... 457 See 9. 5-Criminal law
Trial for murder Evidence of previous quarrels between accused and deceased with accompanying assaults by accused-Admissibility.. 465 8-Appeal-Trial on charge of murder -Misdirection to jury-Provocation. EXCISE TAX-Petition of right-Action for money paid-Period of limitation- Claims barred ..................
Action against administrator of deceased's estate for loss alleged to have been caused by failure to realize upon assets within reasonable time-Long delay, through settling amount of succession duties, between date of fiat for grant and actual issue, of letters of administration- Depreciation in value of assets-Liability of administrator.]-The appeal was from the judgment of the Appellate Division of the Supreme Court of Alberta, [19371
3 W.W.R. 368, which, by a majority, reversing the judgment of Ives J., held the defendant (the present appellant), to whom had been granted letters of administration of a deceased's estate, liable, in an action brought by certain of deceased's next of kin to recover for loss alleged to have been caused by defendant's failure to realize within a reasonable time upon assets of the estate. The deceased died, intestate, on June 15, 1929.
Defendant applied for letters of administration on
November 28, 1929. The judge's fiat for issue of grant was made on January 30,
A lengthy delay occurred in settling the amount of succession duties, and, in consequence (by reason of the
Rules of Court and the Succession Duties
Act, Alta.), letters administration
(which recited the date of grant as of
January 30, 1930) were not issued until
November 6, 1931.
The case was dealt with throughout on the assumption that the loss complained of could not be said to have been attributable to acts or omissions of defendant after the last mentioned date.
Held, that defendant's appeal be allowed and the judgment at trial (dismissing the action) be restored. Per Duff CJ., Davis and Hudson JJ.: The fiat for the issue of grant of administration did not constitute the grant; defendant did not become an administrator until the actual issue of letters of administration on November 6, 1931;
and he was not chargeable as administrator for anything that occurred prior to that date.
It was difficult to find any principle on which he could be charged with liability as a trustee prior to that date (moreover, it appeared that plaintiffs were aware of the situation; also under the Judicature Act, Alta., plaintiffs had a right to have a public administrator appointed if they so desired); at any rate, that issue was not open under the pleadings, nor was it a case in which a court of appeal should now order an amendment.
Duff CJ. further pointed out obstacles or difficulties which stood in the way of earlier realization, as going to show that the loss complained of was not due to any neglect of defendant. He agreed with the trial judge's finding that, in all the circumstances, no lack of due diligence could be ascribed to defendant
7iMMr-3
EXECUTORS AND ADMINISTRATORS -Concluded in respect of the delay in the payment of succession duties.
Per Crocket and Kerwin JJ.: The plaintiffs' claim, as set forth in their pleadings and as developed at the trial, was against defendant as administrator and in no other capacity and on no other basis.
Even assuming that the assets in question were vested in defendant by virtue of the fiat, he could not, in view of the terms of the Succession Duties Act, deal with those assets until the succession duties were arranged.
There was (agreeing with the trial judge's finding) no reason to attach any censure for the delay between the application for letters of administration on November 28, 1929, and the issue thereof on November 6, 1931.
Au
.........................
HABEAS CORPUS-Chinese landing in Canada-Immigration Act-Report ordering deportation-Habeas corpus..... 378 HOSPITALS - Negligence - Patient in hospital burned during diathermic treatment-Negligence of nurse-Liability of hospital.]-Planitiff was admitted as a patient to defendants' hospital under a contract for board, nursing and attendance.
Defendants maintained and operated for profit in the hospital an equipment for diathermic treatments. tiff's physician (who had diagnosed his trouble as sciatica) ordered the nurse supervising the floor on which plaintiff was located, to see that he was given a diathermic treatment to relieve his pain; and a treatment was given. It was administered by a nurse who was a permanent member of the hospital staff and was in charge of such treatments. Plaintiff's physician had not (nor had any other physician) anything to do with the actual treatment. There was no suggestion of defect in the equipment or of lack of competence in the nurse to use it. In the treatment the plaintiff was severely burned.
Plaintiff, alleging that the burn was caused by negligence of the nurse administering the treatment, sued defendants for damages. The trial judge gave judgment for plaintiff, which was affirmed by the Court of Appeal for Ontario (19371
OR. 512).
Defendants appealed. Held: (1) On the evidence, the finding in the courts below of negligence in the nurse must stand. (Comment, per Duff C.J., Davis, Kerwin and Hudson JJ., as to the proper application of the rule res ipsa loquitur. The rule is a special case within the broader doctrine that courts act and are entitled to act upon the weight of the balance of probabilities).
(2) Defendants were liable in law for damages for the nurse's negligence. HOSPITALS-Concluded
JJ.: Upon the facts and circumstances of this case, the nurse was, at the time she committed the negligent act, acting as the agent or servant of the hospital within the ordinary scope of her employment.
There was nothing in the evidence to take her, as between the hospital and herself, out of this relationship during the time she was administering the particular treatment to plaintiff.
Review and discussion of cases, and of the rule stated by Kennedy LJ. in Hillyer's case, [19091
2 KB. 820, at 829. However useful that rule may be in some circumstances as an element to be considered, it is a safer practice, in order to determine the character of a nurse's employment at the time of a negligent act, to focus attention upon the question whether in point of fact the nurse, during the period of time in which she was engaged on the particular work in which the negligent act occurred, was acting as an agent or servant of the hospital within the ordinary scope of her employment or was at that time outside the direction and control of the hospital and had in fact for the time being passed under the direction and control of a surgeon or physician, or even of the patient himself.
better to approach the solution of the problem in each case by applying primarily the test of the relation of master and servant or of principal and agent to that particular work.
There may be cases where the particular work upon which a nurse may for the time being be engaged is of such a highly professional and skilful nature and calling for such special training and knowledge in the treatment of disease that other considerations would arise; but the present case is not such a case. Per Crocket J.: There was ample evidence to warrant the finding at trial that plaintiff's injuries were caused by the negligence of the nurse in administering the treatment while acting in the course of her employment as defendants' servant. THE
DiocEsE
HUSBAND AND WIFE-Appeal--Jurisdiction-Action in damages-Inscription in law alleging prescription--Final judgm ent .............................
See 5.
ILLEGITIMATE CHILDREN
See Wm..
IMMIGRATION ACT
Chinese landing in Canada- Examination by Controller of Immigration as to right to enter
Canada
Report ordering deportation
Habeas corpus-Right of a judge to re- IMMIGRATION ACT-Continued view finding of Controller and to receive new evidence as to British citizenship of the applicant - Chinese Immigration Act, R.S.C., 1997, c. 95, sections 5, 8, 87.1-The appellant, a Chinese woman, arrived in Vancouver on the 9th of September, 1936, and claimed she was a Canadian citizen, having been born in the city of Victoria and being the wife of a Chinaman then residing in Vancouver. The Controller of Chinese Immigration, acting in pursuance of the powers set out in the Chinese Immigration Act, examined the appellant as to her right to enter Canada, and, on the 23rd of September, 1936, found that the appellant was not in fact the person she was represented to be and that she had not been born in Victoria; and therefore he ordered her deportation.
An application was then brought for a writ of habeas corpus; and, on the hearing, new evidence was adduced by and on behalf of the appellant.
The trial judge found that the appellant was in fact a Canadian citizen born in Victoria and issued an order discharging the appellant from the custody of the Controller.
These findings were not disputed before the appellate court, the only question there raised was as to whether or not the trial judge had the right under the Chinese Immigration Act to review the decision of the Controller and to receive additional evidence, the appellate court holding that the trial judge had no such jurisdiction. reversing the judgment of the Court of Appeal, that the order of the trial judge, discharging the appellant from the custody of the Controller, should be restored. Per The Chief Justice and Cannon, Davis and Hudson JJ.:-It was not the intention of the Parliament of Canada, in enacting the Chinese Immigration Act, to prevent Canadian citizens of Chinese origin or descent generally from entering Canada. In view of sections 8 and of that Act, the provisions of section 5 of that Act cannot be interpreted as exacting that the only Canadian citizens permitted to enter Canada are such as fall within section 5, subsection
(b). proper construction of section 5 is that the classes of persons enumerated in subsections (a), (b) and (c), and they alone, are permitted to enter and land in Canada without regard to any question of allegiance or citizenship; and the effect of that section is not to take away the right of Canadian citizens to enter or land in Canada.
Therefore the return of the Controller was insufficient to establish conclusively that his deteniton of the appellant was a lawful one and to preclude inquiry into the issue of citizenship, such return being virtually limited to setting IMMIGRATION ACT-Continued forth his decision that the appellant did not fall within any of the classes enumerated in section 5. Per Crocket J.- Upon its true construction, section 37 of the Chinese Immigration Act does not preclude a judge of a provincial court of first instance from hearing an application under the Habeas Corpus Act for the purpose of proving that, notwithstanding the contrary opinion of the Chinese Immigration Controller, the applicant was in fact born in Canada and as a Canadian citizen was entitled to be discharged from that officer's custody.
SaiN v. THE KING..........
INCOME TAX-Liability for-Transfer of property in 1925 by husband to wife in fulfilment of ante-nuptial marriage contract made in 1918-Assessment of husband for income tax in respect of income received by wife in 1980 from said property-flight to such assessment
-Income
War Tax Act, 1917 (Dom.), c. 28, as amended-Amending Act, 1926, c. 10, ss. 7, 12-R.S.C., 1927, c. 97 (Income
War Tax Act), s. 82-Act respecting the
Revised Statutes, 1924, c. and Schedule
A to the Commissioners' Roll-Statutes- Construction-Application-Effect of repeal.]-By a contract of marriage made in 1913, M. donated $20,000 to his future wife, to be paid at any time he might elect after solemnization of the marriage, in one sum or by instalments or (if accepted by her) by investments in her name.
Both parties lived in the province of Quebec. The marriage was solemnized in 1913.
On March 23, 1925, M.
by deed transferred to his wife certain securities in fulfilment of said obligation
(his wife accepting them in full payment and satisfaction thereof); and thereafter all dividends and revenues therefrom were received by her and used as her absolute property. M. died in 1932, and in
1933 his estate was assessed for Dominion income tax in respect of income from said securities since their said transfer in
The right to such assessment was disputed.
It was agreed that the question of liability should be determined solely by reference to the assessment for income received in 1930.
Angers J. in the Exchequer Court ([19371 Ex. C.R.
55) set aside the assessments. The Minister of National Revenue appealed. The
Income War Tax Act (Dom.) was first enacted in 1917 (c. 28).
By s. 7 of c. 10,
1926, subs. 4 of s. 4 of the original Act was repealed and new subs. 4 substituted as follows:
"*
* * *
Where a husband transfers property to his wife, or vice versa, the husband or the wife, as the case may be, shall nevertheless be liable to be taxed on the income derived from such property or from property
IMMIGRATION ACT-Continued substituted therefor as if such transfer had not been made."
S. 12 of the 1926 Act made s. 7 thereof (enacting said substituted subs. 4) applicable " to the year * * * and to all subsequent years * * * and to the income thereof." the R.S.C., 1927, c. 97 (Income War Tax Act), said subs. 4 (as enacted in 1926) appears as s. 32 (and under the caption -not in the 1926 Act-" Transfers to Evade Taxation").
The R.S.C., 1927, came into effect on February 1, 1928, by proclamation pursuant to "An Act respecting the Revised Statutes of Canada," c. 65, 1924. By force of s. 5 of that Act, and the proclamation thereunder, s. 12 of the 1926 Act stood repealed (on February 1, 1928), and it does not reappear in R.S.C., 1927.
Held: The appeal should be dismissed.
Per Duff C.J., Davis and Hudson JJ.: See. 32 of c. 97, R.S.C., 1927, had not the effect of making M. liable to be taxed on the income derived in 1930 from the property transferred by him to his wife in 1925, in the circumstances mentioned, because s. 32, as it stands in the Revised Statutes, can have no application to properties transferred prior to the original enactment of it in 1926. The reproduction (as s. 32 of c. 97) in the R.S.C. of that original enactment 1926 preserved that original enactment "in unbroken continuity"
(passage in Licence Commissioners of Frontenac v. County of Frontenac, 14 Ont. R. 741, at 745, approved).
But s. 12 of the Act of 1926 (making said original enactment applicable to 1925 and subsequent years) stood repealed and disappeared on February 1, 1928, and therefore ceased to have effect, unless its effect was preserved by s. 7 or a. 8 of c. 65, 1924 (Act respecting the Revised Statutes) or s. 19 of the Interpretation Act (R.S.C., 1927, It could not be said that, on February 1, 1928, within the meaning of any of those last mentioned statutory provisions, any "liability" had been "incurred" by M. to be taxed (or any correlative "right" of the Crown "acquired") under the Act of 1926 in respect of income not derived from the transferred property until 1930-the conditions of any such liability had not come into being (the "liability" preserved by s. of the Interpretaiton Act is not the "abstract" liability imposed by the repealed enactment) (Hamilton Gell v. White, [19221 2 K.B. 422, at 431); nor could the transfer of 1925 be relied upon, as a "transaction, matter or thing" anterior to February 1, 1928, within s. 8 (2) of c. 65, 1924, as constituting a liability to be taxed in respect of income derived from the property in 1930; nor, on February 1, 1928, had any right to receive taxes in respect of the income of 1930 "accrued," IMMIGRATION ACT-Concluded nor was any such right "accruing," to the
Crown.
Per Cannon J.: Under the law of Quebec (arts. 1265, 1257, 778, C.C.), the transfer made in 1925, in order to be valid and binding, must necessarily be related and linked to the ante-nuptial contract of 1913; they must form one complete non-severable transaction.
irder to transfer validly the securities to
!is wife, M. had to act by force of and
.nder the exceptional authority of the contract of 1913, which clearly, under the provisions of the Income War Tax Act which originated in 1917, is not governed thereby. Per Kerwin J.: At the time of the repeal, on February 1, 1928, of s. 12 of c. 10, 1926, no liability to the taxation in question (within the meaning of "liability" in s. 7 (1) of c. 65, 1924) had been incurred, since the only assessment period in question had not arrived.
(Heston and Isleworth Urban District
Council v. Grout, [18971
2 Ch. 306;
Abbott v. The Minister for Lands, [18951
A.C. 425; In re The Tithe Act, Roberts v. Potts, [1893] 2 Q.B. 33, at 37; Starey v. Graham, [18991 1 Q.B. 406; Hamilton
Gell v. White, [19221 2 K.B. 422; and principles enunciated in those cases, reviewed).
Nor was any such liability
"accruing"
within the meaning of s.
19 (c) of the Interpretation Act (R.S.C.,
1927, c. 1).
Moreover, even if there were such an accruing liability, it is shown by statements in Schedule A to the Commissioners' Roll, provided for in c. 65,
1924 (Act respecting the Revised Statutes) and having statutory force, that the preservation of such accruing liability was inconsistent with the object and intent of said c. 65, 1924, and therefore did not apply (Interpretation Act, s. 2). THE
MoLsoN .......................
INSURANCE
Motor vehicle liability policy
Claim under policy for indemnity for damages recovered against insured-Failure by insured to comply with statuory conditions requiring him to give promptly to insurer "all available particulars" of accident and to "co-operate with the insurer *
* * in the defence"
of the action (now 4 (1),
4 (2), under s. 188, Insurance Act, R.S.O., 1987, c. 256)
-Forfeiture of right to indemnity (s. 191)
-Refusal of relief (asked under a. 19).1- It was held that respondent, who held a motor vehicle liability policy issued by appellant insurance company, was not entitled to recover under it any indemnity against the company in respect of the judgment recovered against respondent in a certain action for damages for injuries caused by the motor vehicle (driven by respondent): on the ground that, by re- INSURANCE-Concluded spondent's course of conduct (detailed in the present judgment) he had failed, in violation of his obligations under statutory conditions forming part of the policy (now numbered 4 4 (2), under s. 188 of The Insurance Act, R.S.O., 1937, c. 256) to give promptly to the company "all available particulars" the accident (4 and to " co-operate with the insurer, except in a pecuniary way, in the defence " of the action against respondent (within the meaning of said statutory condition 4 (2); its meaning discussed, in reference to the facts in the present case. " The defence of the action " necessarily involves in any practical construction of the term the opportunity for an early and favourable settlement of the action).
The respondent having violated a term or condition of the contract, then, by force of what is now s. 191 of The Insurance Act (R.S.O., 1937, c. 256), his claim was rendered invalid and his right to recover indemnity became forfeited. Relief under s. 192 of the Act was refused, the Court holding that, under all the circumstances of the case, the trial judge was amply justified, in the exercise of his discretion, in declining to relieve against the forfeiture, even if respondent's conduct could fairly be said to be merely "imperfect compliance" with the statutory conditions, which, under s. 192, is the only ground upon which the court is given power to to relieve.
Judgment of the Court of Appeal for Ontario
([19371
O.R. 872) reversed; and judgment of MeTague J. ([1936]
O.R. 394), dismissing respondent's claim against appellant, restored. AssuRANcE Co. v. INSURANCE
(ACCIDENT) - Death of insured-Suit by beneficiary to recover under policy-Proximate cause of death -Taking of insulin (for diabetic condition) in too large a dose, alleged as cause -Accident Insurance Act, R.S.NB., 1927, c. 85, s. 5-Age of insured-Construction of policy - Evidence - Admissibility of statements of deceased persons.]-Plaintiff sued to recover, as beneficiary, upon an accident insurance policy upon the life of her deceased husband. The basis of her claim was that his death was caused by his having taken insulin (for his diabetic condition) on the occasion in question in too large a dose. The policy by its terms insured against
(inter alia) death resulting from "bodily injuries, effected directly and independently of all other causes, through external, violent and accidental means."
S. 5 (in force at the time of deceased's death) of the New Brunswick Accident Insurance Act INSURANCE (ACCIDENT)-Continued provided that "in every contract of accident insurance, the event insured against shall include any bodily injury occasioned by external force or agency, and happening without the direct intent of the person injured, or as the indirect result of his intentional act * * *." At the trial the following (amongst other) questions were submitted to and answered by the jury: "Did the insured accidentally, and by mistake, take an overdose of insulin?"
"If you answer 'yes' to question
[last above preceding], in what way was
[his] death so caused or contributed to?"
A. "Insulin reaction."
The trial judge dismissed the action, holding "that, upon the facts as proven and upon the law applicable to the questions at issue, notwithstanding the findings of the jury, the plaintiff is not entitled to recover."
The dismissal of the action was affirmed
(by a majority) by the Appeal Division of the Supreme Court of New Br inswick
M.P.R. 490).
Plaintiff appealed.
Held: There should be a new trial.
(Crocket J., dissenting, would dismiss the appeal).
In applying said s. 5 of the
Accident Insurance Act to the case, the essential point was that in law (and upon the proper construction of s. 5) the external force or agency which occasions the bodily injury must be the proximate cause of death. The jury's answers had not determined the vital issue whether or not the taking of the insulin on the occasion in question was the proximate cause of the insured's death.
Two incidental issues were decided (and therefore excepted from the new trial) as follows:
(1) As to the allegation of non-disclosure of material facts at the time the last certificate for renewal of the policy was delivered: The New Brunswick statutory law requires, in order to avoid a contract of insurance on the ground of non-disclosure, that there be a "conscious concealment"; and such a concealment was not established by the evidence.
(2) As to a provision in the policy that it should
"not cover for injuries or be in force upon any person over the aze of 65 years"deceased being under 65 at the date of delivery of the last renewal certificate, but reaching 65 years of age before the date of the alleged taking of the dose of insulin in question: The words in the policy were not sufficiently precise and definite to make the policy inoperative when the insured reached 65 years of
INSURANCE (ACCIDENT)-Concluded age, the last renewal receipt having been issued when he was under that age. Certain cautionary remarks made with regard to admissibility in evidence of statements of deceased persons. Per Crocket J., dissenting: The appeal should be dismissed.
There was no evidence that the insured's death was caused by accident within the meaning of the policy or of said s. 5 of the Act. There could be no recovery without proof that his death resulted from bodily injury alone (effected as stipulated in the policy). tiff's allegation, upon which her whole case rested, that deceased "accidentally and by mistake" took an overdose of insulin, "as a result whereof and not otherwise" he came to his death, constituted the decisive issue at the trial, and the questions aforesaid left to the jury covered that issue.
A fair summary of their answers was that they thought that, but for the diabetes, deceased would not have died. Whether or not they intended so to find, it was the clear effect of the whole evidence.
Therefore plaintiff was disentitled to recover, under the explicit terms of the policy and upon a proper construction of said s. 5 of the Accident Insurance Act.
S. 5 does not exclude the maxim causa proxima. There can be no recovery under a contract of accident insurance, for bodily injury or death resulting therefrom, unless external force or agency was the proximate cause of that injury. The admission, against objection, of evidence of a statement by deceased to plaintiff that he had taken too much insulin was improper as contravening the rule against hearsay evidence; in any event the statement could add nothing to plaintiff's case, it being as consistent with deceased having intentionally taken more insulin than he usually took as with his having taken it accidentally and by mistake; in no case, in view of the fact that be took it in the course of his treatment for his disease, as he had been regularly doing, could the objectionable evidence have any bearing upon the issue as to whether his death was directly caused by external force or agency within the meaning either of the policy or of said of the Act. INSUR- JURY TRIAL-Assessment of damages in negligence action-New trial ordered on ground that damages excessive-Jurisdiction of appellate court-Order for new trial set aside.1-Where in an action for negligence the damages have been assessed by a jury, an appellate court has no jurisdiction in respect of the amount awarded to rehear the case and control the verdict JURY TRIAL-Concluded of the jury. The court is not a court of review for that purpose. If, viewing the evidence as a whole, an appellate court can see plainly that the amount of damages is in law indefensible, or that the trial has been unsatisfactory by reason of misdirection or wrongful admission or rejection of evidence, or if it is demonstrable that the jury have or must have misunderstood the evidence or taken into account matters which could not legally affect their verdict, the court may grant a new trial for the reassessment of the damages. This is not to be taken, however, as an exhaustive statement of the circumstances in which a new trial may be granted for such a purpose. The verdict ought to be set aside in any case in which an appellate court finds it clearly established that the jury had misunderstood or disregarded their duty. Per Kerwin J.-When an appellate court cannot agree with the jury's estimate of the amount of damages, "the rule of conduct" for that court when considering whether a verdict should be set aside on the ground that the damages are excessive, "is as nearly as possible the same as when the court is asked to set aside a verdict on the ground that it is against the weight of evidence."
Praed v. Graham (24 Q.B.D.
approved.
LIBEL - Publications - Action for damages against managing editor of newspaper-Previous judgments against others for damages for the same libdl-Question as to right to maintain present action- Question whether present defendant and defendants in previous actions were joint tortfeasors-Remedies open in previous action.]-Appellant (defendant) was managing editor of a weekly newspaper published in Toronto, Ontario.
An issue of its western edition contained a libel on respondents
(plaintiffs).
The Imperial
News Co. Ltd. (hereinafter called the
IN. Co.) was the sole distributor for
Manitoba of said western edition, and distributed copies to retail newsdealers, who in turn sold to the public. Respondents sued the I.N Co. in Manitoba and recovered judgment for damages for the libel.
They also sued in Manitoba a number of retail newsdealers, one which suits went to judgment and the others were settled by payments.
spondents then sued in Ontario the appellant and one L. (the general distributor) for damages for the alleged publication of the libel to the I.N. Co. and to S.
(its manager) and other of its employees, in sending in bundles the issue containing the libel to the I.N. Co. At the trial, respondents were non-suited on
LIBEL-Continued ground that the defendants were joint tortfeasors with those against whom judgment had been recovered in Manitoba and therefore respondents were precluded from recovering in the present action; but the Court of Appeal for Ontario ([19371 O.R. 341) held that the publication by defendants to the I.N. Co. and its employees complained of in the present action constituted a separate tort for which defendants were liable and that it was an entirely different cause of action from those sued on in the Manitoba courts, and gave judgment in favour of the present respondents, and directed a new trial, limited to assessment of damages. On appeal to this Court: (Kerwin J. dissenting): The appeal should be allowed and the action dismissed as against the appellant.
Per Duff CJ. (who also agreed in substance with the reasoning of Cannon, Crocket and Davis JJ. as applied to the facts of this case): The I.N. Co. received delivery of the newspapers pursuant to its agreement with the publishers and was a party directly concerned in the shipping of the papers to itself, in the receipt of them by its employees, in the distribution to the newsdealers and in the latters' sales to their customers. It was engaged along with the publishers and appellant and L. in a joint commercial enterprise, the publication and distribution and ultimate sale of the newspapers.
The aim of the whole enterprise was the purchase of the paper by the public; the shipments to the IN. Co. were only one step in carrying this out. Publication to it, if there was such, consisted in the incidental publication to its servants as the paper passed through their hands on its way to the public through the newsdealers. It was a participant jointly with appellant and others in the shipment to itself, in the distribution to newsdealers and in the sale to the public. This was really, in said action against it, the plaintiffs' case on the pleadings and the questions put in issue in that action.
The I.N. Co. was liable, and jointly liable, for every publication ensuing upon its act-the joint act of itself and appellant and others-in causing to be brought the newspaper to itself for distribution. A cause of action arising out of the delivery to the newsdealers in carrying out the business so jointly engaged in could not be substantially separated from the cause of action alleged in the present action, which, therefore, was one in respect of which the I.N. Co. was liable at suit of the plaintiffs. It would be an abuse of substantial justice to permit plaintiffs to proceed against the I.N. Co. in another action in respect of the publication now sued LIBEL-Concluded upon; and, since that company was jointly liable with appellant and others for that publication, proceedings against appellant must also fail. Per Cannon,
Crocket and Davis JJ.: There was a complete remedy for respondents in the court in which the action against the was started.
Respondents should not be permitted to go on suing one person after another ad infinitum where a complete remedy was available in one action. (Williams v. Hunt, [19051
1 K.B. 512, at 514, Macdougall v. Knight,
25 Q.B.D. 1, at 10, and other cases, cited).
The jurisdiction to dismiss such an action as the present one exists as part of the inherent power of the court over its own process.
Per Kerwin J. (dissenting)
:
While appellant was responsible for the publications effected by the defendants in the Manitoba actions, there was no connection between the acts of those defendants and the acts of appellant. The publication set forth in the present action occurred without any of those defendants taking part in it. The pleading here avers a cause of action different from any set forth in the Manitoba actions, and evidence was led by respondents to substantiate the allegation. Therefore the judgments and settlements in Manitoba are not bars to the present action. (The
Koursk, [19241
P. 140, particularly at
151, 157, 159-160; Brunsden v. Humphrey,
14 QJ3.D. 141; Bulmer Rayon Co. Ltd.
v. Freshwater, [19331 A.C. 661, cited).
The fact that the paper was sent to the
I.N. Co. and received by certain of its employees who opened and read it, was sufficient to establish the allegation of publication by appellant to the " I.N. Co.
and/or [its] employees."
In the circumstances of this case the respondents, residents of Manitoba, should not be held to have been obliged to join appellant, a resident of Ontario, as a defendant in any of the Manitoba actions and add a claim against him based on an entirely different cause of action, at the risk (in failing to do so) of ascertaining, when they bring an action on such separate cause of action in the jurisdiction where appellant resides, that their rights have been lost.
This point (last mentioned)
was not raised at trial and presumably was not argued before the Court of
Appeal
LUNATICS - Contract-Crown-Government life annuity-Suit ...........
MARRIAGE-Foreign divorce-Invalidity
-Subsequent re-marriage-Good faith- Putative marriage-Civil effects-Succession rights-Italian law-Arts. 6, 168, 164,
188, 207 C.C.-Art. 648 C.C.P.]-In 1904,
MARRIAGE-Continued dame Marguerite C. Stephens married Colonel Hamilton Gault at Montreal where they were both domiciled. They lived together in matrimony until 1914, when Colonel Gault went to France in command of a Canadian regiment and remained a member of the Canadian Expeditionary Force in France and in England until the end of the war. In the years
1916 and
1917 difficulties arose between Gault and his wife.
In 1917 cross actions for separation from bed and board were commenced and subsequently abandoned; and petition and cross-petition for divorce were lodged and also subsequently withdrawn. About November, 1917, dame Stephens went to London, then to Paris, where she carried on works of charity in aid of victims of the war. In the fall of 1918, Colonel Gault and his wife, being both in France engaged in their respective duties, because of the war, the latter instituted an action for divorce against her husband before the Civil Tribunal of First Instance of the Department of the Seine, Paris, which action was maintained by a judgment of that Tribunal, on the 20th of December, On the 14th of October, 1919. the respondent went through a form of marriage in Paris with dame Stephens, in compliance with all the formalities required by French law, the marriage having been preceded by an execution of a marriage contract, whereby inter alia the parties to it purported to submit their matrimonial affairs to the laws of Italy. They lived together as man and wife until the end of July, 1925, when they executed a separation agreement in Rome by which inter alia the respondent acknowledged payment of $5,000 in consideration of which he waived all present or future claim for aliment. At that time dame Stephens ceased to cohabit with the respondent and shortly afterwards returned to the province of Quebec where she continued to live until her death in An action was brought in May, 1931, by the respondent against the appellant as executor of the last will and testament of the late dame Stephens; and the respondent's claim was that, as the husband or the putative husband of the late dame Stephens, he was entitled, in virtue of Italian law, to the usufruct of one-third of the estate of the latter. The trial judge and the appellate court held the respondent was entitled to succeed; and accordingly an accounting was directed. Held, that the Court in France had no jurisdiction to pronounce a decree of divorce and to dissolve the marriage tie, such judgment not being recognizable in the courts of Quebec where the domicile of both spouses was situated at the date of the judgment; MARRIAGE-Concluded and that therefore the marriage between the respondent and dame Stephens was null ab initio; but Held, Cannon J. dissenting, that, the good faith of the respondent not being disputed, the marriage was a putative marriage in the sense of the Italian law as well as of the law of
Quebec and that the status of dame
Stephens and the respondent was during her lifetime that of putative spouses within the intendment of articles 163 and 164 of the Civil Code.
Thus the marriage settlement and the putative marriage itself produced their "civil effects" quoad property as if the putative marriage had been a real one; and, both by the law of Quebec and that of Italy, among these
"civil effects" would be included any share of the husband or wife in good faith in the succession of his or her consort.
Therefore, the respondent, his nationality having remained unchanged, has the right, among the rights flowing from the putative marriage, to demand the share in the succession of his putative wife to which he would have been entitled by Italian law, had the marriage been valid (1).
Per Cannon J. (dissenting)
.-The courts of the province of Quebec should merely declare, in deciding the issues raised by the respondent's action, that the marriage invoked by the latter and the marriage settlement preceding it should receive no effect before these courts, and no declaration should be made as to their validity, as such a decision would not be within the scope of their jurisdiction. Even assuming such jurisdiction, the first. husband not having been made a party to the respondent's action, no judgment concerning the validity of the divorce granted in Paris would be binding on him-Moreover, the respondent cannot claim the advantages resulting from the provisions of article
163 C.C. Even assuming good faith, the respondent cannot include among the
"civil effects" of the putative marriage a change nationality for dame
Stephens from British to Italian; and the respondent has not established otherwise that dame Stephens had acquired Italian nationality through a marriage recognized as valid by the courts of Quebec and that she had retained such nationality at the time of her death. Therefore the respondent's action should be dismissed.
Berthiaume v. Dastous ([1930] A.C. 79)
disc.
Judgment of the Court of King's
Bench ([19371 3 D.L.R. 605) affirmed.
FALcn...............
MASTER AND SERVANT-Liability of master for servant's negligence-Accident through alleged negligent driving of motor car by company's salesman on his way home from evening lecture arranged by
MASTER AND SERVANT-Continued company for its salesmen - Question whether salesman was at the time acting in the course of his employment.]-The action was for damages by reason of injuries suffered in an accident caused by alleged negligent driving of a motor car by H., and the question on the appeal was whether or not at the time of the accident H. was acting in the course of his employment by the defendant company, against whom liability was claimed. H. was employed by defendant company as a salesman, on salary, to sell oil, gasoline and other products in the district of New Westminster.
The company's office was in Vancouver. In the first few months of his employment H. had resided in Vancouver, but had later moved to New Westminster, as being more convenient for his work. His place of residence was no part of his contract and the company had nothing to say about his moving.
In selling the company's products, H. drove a motor car owned by himself, but the company supplied the oil and gasoline used, paid for the car licence and for repairs.
H.'s normal working day was from 820 a.m. to 5 p.m.
He had no office of his own but used a telephone at a filling station in New Westminster for messages sent or received.
He reported to the company's office several times a week and generally telephoned to it daily.
At the company's office in Vancouver a pigeon hole was provided for the salesmen in which messages were left. H. received a notice there of four evening lectures to be given, and stating that he was "expected to attend."
On the evening in question, H., whose own car was away for repairs, borrowed a car and drove to one of these lectures in Vancouver. He left it about 9 p.m., to go home and on the way the accident occurred. Held: At the time of the accident H. was not under any control of the defendant company so as to render it liable for his negligence. Judgment of the Court of Appeal for British Columbia, 52 B.C.R. 106, in setting aside the judgment at trial against the defendant company, affirmed.
Bain v. Central Vermont Ry. Co., [1921]
2 A.C. 412; St. Helen's Colliery Co. Ltd. v. Hewitson, [19241 A.C. 59; Alderman v. Great Western Ry. Co., [1937] A.C. 454, and Blee v. London & North Eastern Ry. Co., [19381 A.C. 126, referred to. v. HOME OL DISTREUTORs LTD..... 244 2- Automobile dealers
Sales agent Motor car given possession to employee by owner for purpose of his work-Employee invested by employer with full discretion as to the use of the car- Sale by agent of a car not belonging to employer when employee MASTER AND SERVANT-Concluded driving employer's car during working hours for purpose of obtaining licence for car sold-Whether employee acted as agent and servant of the owners-Employer's liability-Art. 1054 C.C.]-The appellants are automobile dealers in both new and second-hand cars, and, some time prior to the accident, employed y verbal contract one Beauchamp on commission as salesman. In order to facilitate the execution of his work, the appellants allowed Beauchamp to have possession of one of their cars, with full discretion as to its use, though the latter was to pay for the gas and oil.
Some time prior to the date of the accident,
Beauchamp caused an announcement to be inscribed in a newspaper advertising a motor car for sale, and, in answer to this, one Th6berge communicated with
Beauchamp. The latter tried to interest
Th6berge in the purchase of one of the cars belonging to his employers, the appellants, but Th6berge refused to buy, expressing his desire to have a car from a private individual.
Then Beauchamp remembered that one D6sormeaux had a second-hand car for sale; and, after some negotiations, that car was sold through Beauchamp to Th6berge.
morning following the sale Beauchamp drove Th6berge in the appellants' car to the provincial licence bureau in order to obtain a licence for the operation of the car; and they were driving back to
D6sormeaux's house to put on the new plates on the car when the accident occurred.
Beauchamp had to apply the brakes of the car to reduce its speed; the street was slippery, and this caused the car to skid up over the sidewalk and to strike the respondent, thus causing him serious injuries. The appellants' ground of appeal was that their employee at the time of the accident was not acting in the performance of the work for which he had been employed by them.
that, according to the facts and the circumstances of the case, the appellants are liable.
The appellants' car was, for the purposes of their business, entrusted by the appellants, owners of the car, to their employee Beauchamp as their servant; but the latter was invested with full discretion as to the use of it. In the exercise of that discretion, Beauchamp acted as agent and servant of the owners, the appellants.
In other words, Beauchamp was in the exercise of his functions as servant.
MINES AND MINERALS-Mining prospector-Locating mining properties and staking them for employer-Profit-sharing contract-Remuneration being salary, expenses and percentage of the net profits
MINES AND MINERALS-Continued of the sale of properties-Sale by employer to a company for fully paid no par value shares of that company Right of the employee to percentage of such shares-Valuation of such shares -"Profits."]-The appellant, a mining prospector, was employed by the respondent, a mining company engaged particularly in the exploration of mining properties, to locate mining properties and to cause them to be transferred, after staking, to the respondent; he was to be paid a salary of $150 a month and his expenses and in addition he was to be entitled to 10 per cent of the net profits which the respondent might make from the sale or exploitation of the staked claims which it should acquire through his efforts.
By the express terms of the contract between the parties, the engagement of the appellant "at the service of" (au service de) the respondent was to be monthly but either one of the parties to the contract could put an end to it by notice of fifteen days. appellant during a period of about two years staked some forty or more claims in the name of himself or others and transferred or caused the same to be transferred to the respondent. He was paid his salary of $150 a month and his expenses. The respondent later sold forty mining claims to Lamaque Gold Mines Limited, (the mis-en-cause) for the sum of $5,000 and 150,000 fully paid no par value shares of the capital stock of that company.
The sale was completed and the cash and share consideration ceived by the respondent. Within a year of the acquisition of the 150,000 shares and before the financing of the Lamaque Company had been completed and its shares made available to the public, the respondent, without the knowledge the appellant, sold to its own shareholders (there were only sixteen of them) at the price of 7 cents a share all the 150,000 shares of the Lamaque Company that it had acquired. The respondent arrived at this price of 7 cents a share by taking the actual cost of the shares to be the total expenditures of the respondent in all its mining operations up to that date which (including the salary and expenses of the appellant) had amounted to about $15,500, and deducting therefrom the $5,000 cash received from the Lamaque Company. A few months thereafter, at the time of the institution of this action, shares of the Lamaque Company, although not listed on the market, were being traded in by the public at various prices around $2 a share. The appellant, putting a value of $3 a share, claimed from the respondent the sum of $45,500, being 10 per cent of the thus estimated net profits of the sale. The respondent alleged in its defence that MINES AND MINERALS-Continued the shares had only realized their actual cost and that there was no profit in the transaction.
The appellant admitted at the trial that eight of the forty claims had not been staked by him, and that twenty-two of the other claims had been staked and transferred by him but had been allowed to lapse by the respondent and subsequently were revived by a new staking on the part of the respondent itself.
The trial judge held that the appellant was entitled on the basis of only ten out of forty claims, and awarded him 10 per cent of one-quarter of the shares, i.e., 3,750 shares, subject to payment by the appellant to the respondent of 10 per cent of one-quarter of the total net expenditures of the respondent ($15,535.03 less the $5,000 cash payment), i.e., $262.50, and condemned the respondent to deliver to the appellant within fifteen days 3,750 shares of the Lamaque Company provided the appellant paid the respondent the sum of
$262.50 and, in default of the respondent delivering said shares, the respondent was condemned (on a valuation of $2 per share) to pay to the appellant $7,237.50 with interest and costs. The respondent appealed from that judgment to the
Court of King's Bench and the trial judgment was modified by awarding the appellant only $702.85 with interest and costs. The majority of that Court held that the appellant was entitled to money profits but not to profits in kind (i.e., in shares of the Lamaque Company) and arrived at the money profits in the same manner as the trial judge had but they put a value of 25 cents instead of $2 on the shares of the Lamaque Company.
The appellant appealed to this Court, asking that the trial judgment be restored. Held that the appeal should be allowed and the judgment of the trial judge restored, the latter having made a practical application of the profit-sharing terms of the contract to the particular facts of the case; but the judgment of the trial judge should be varied by limiting the recovery by the appellant to the money value of the shares awarded the appellant as fixed by the trial judge, i.e.,
$7,237.50.
The appellant was entitled to the valuation of $2 a share taken by the trial judge and the price of 25 cents a share adopted by the majority of the appellate court was not a public price.
The appellant, as between himself and the respondent, was entitled to have the shares valued on the basis of the public sales of the Lamaque shares.
Per Duff
CJ. and Davis and Hudson JJ.: There is no precise legal meaning to the word
"profits" that can be applied in every case: the construction to be given to the word must be governed by the facts and
MINES AND MINERALS-Concluded circumstances of each particular case. In re The Spanish Prospecting Company Limited ([1911]
1 ch. 92), ref. Cannon and Kerwin JJ.: It was open to the appellant to adduce evidence of the value of the shares down to the date of the hearing and to claim the highest value shown by such evidence. Such value would represent the damages foreseen or which might have been foreseen when the agreement with the appe!lant was made. Article 1074 C.C.; Senical v. Possd, 14 A.C. 637; Siscoe Gold Mines Limited v. Bijakowski (19351 S.C.R. 193. Sendcal v. Hatton (10 L.N. 50) discussed. ExPLonA- MOTOR VEHICLES-Master and servant-Liability of master for servant's negligence-Accident through alleged negligent driving of motor car by company's salesman on his way home from evening lecture arranged by company for its salesmen-Question whether salesman was at the time acting in the course of his employment.]-The action was for damages by reason of injuries suffered in an accident caused by alleged negligent driving of a motor car by H., and the question on the appeal was whether or not at the time of the accident H. was acting in the course of his employment by the defendant company, against whom liability was claimed. H. was employed by defendant company as a salesman, on salary, to sell oil, gasoline and other products in the district of New Westminster. The company's office was in Vancouver. first few months of his employment H. had resided in Vancouver, but had later moved to New Westminster, as being more convenient for his work. His place of residence was no part of his contract and the company had nothing to say about his moving. In selling the company's products, H. drove a motor car owned by himself, but the company supplied the oil and gasoline used, paid for the car licence and for repairs. H.'s normal working day was from 8.30 a.m. to 5 p.m. He had no office of his own but used a telephone at a filling station in New Westminster for messages sent or received.
He reported to the company's office several times a week and generally telephoned to it daily. At the company's office in Vancouver a pigeon hole was provided for the salesmen in which messages were left. H. received a notice there of four evening lectures to be given, and stating that he was "expected to attend."
On the evening in question, H., whose own car was away for repairs. borrowed a car and drove to one of these lectures in Vancouver. He left it about 9 p.m. to go home and on the way MOTOR VEHICLES-Continued the accident occurred. Held: At the time of the accident H. was not under any control of the defendant company so as to render it liable for his negligence.
Judgment of the Court of Appeal for
British Columbia, 52 B.C.R. 106, in setting aside the judgment at trial against the defendant company, affirmed.
Bain v. Central Vermont Ry. Co., [1921] 2
A.C. 412; St. Helens Colliery Co. Ltd. v.
Hewitson, [19241 A.C. 59; Alderman v.
Great Western Ry. Co., [1937] A.C. 454, and Blee v. London & North Eastern Ry.
Co., [19381 A.C. 126, referred to.
2-Master and servant - Automobile dealers
Sales agent
Motor car given possession to employee by owner for purpose of his work-Employee invested by employer with full discretion as to the use of the car-Sale by agent of a car not belonging to employer
Accident when employee driving employer's car during working hours for purpose of obtaining licence for car sold-Whether employee acted as agent and servant of the owners-Employer's liability-Art. 1054 C.C.]
appellants are automobile dealers in both new and second-hand cars, and, some time prior to the accident, employed by verbal contract one Beauchamp on commission as salesman.
order to facilitate the execution of his work, the appellants allowed Beauchamp to have possession of one of their cars, with full discretion as to its use, though the latter was to pay for the gas and oil. Some time prior to the date of the accident, Beauchamp caused an announcement to be inscribed in a newspaper advertising a motor car for sale, and, in answer to this, one Thiberge communicated with Beauchamp. The latter tried to interest Th~berge in the purchase of one of the cars belonging to his employers, the appellants, but Thiberge refused to buy, expressing his desire to have a car from a private individual.
Then
Beauchamp remembered that one Disormeaux had a second-hand car for sale;
and, after some negotiations, that car was sold through Beauchamp to Th6berge.
The morning following the sale Beauchamp drove Thiberge in the appellants' car to the provincial licence bureau in order to obtain a licence for the operation of the car; and they were driving back to D~sormeaux's house to put on the new plates on the car when the accident occurred.
Beauchamp had to apply the brakes of the car to reduce its speed; the street was slippery, and this caused the car to skid up over the sidewalk and to strike the respondent, thus causing him serious injuries.
The appellants' ground of appeal was that their employee at the
MOTOR VEHICLES-Continued time of the accident was not acting in the performance of the work for which he had been employed by them. Held that, according to the facts and the circumstances of the case, the appellants are liable. The appellants' car was, for the purposes of their business, entrusted by the appellants, owners of the car, to their employee Beauchamp as their servant; but the latter was invested with full discretion as to the use of it. In the exercise of that discretion, Beauchamp acted as agent and servant of the owners, the appellants.
In other words, Beauchamp was in the exercise of his functions as servant.
V. 296 3-Negligence - Electric railways - Motor car stalling between rails at crossing under repair - Findings of jury - Whether perverse-Whether tacit invitation to cross-New trial ordered by appellate court.1-A railway repair gang had removed a couple of planks at a road crossing a few minutes before one of respondent's cars was expected, when the appellant's automobile arrived at the crossing.
The workmen removed their tools to one side and stood to one side themselves.
Appellant's son, who was driving the car, although he knew the time at which the respondent's car was expected, attempted to drive across the rails at spot where the planks were still in place.
The car skidded and stalled and was hit by the incoming train. Appellant's husband, who was in the car, was killed and the automobile demolished. The jury in answer to questions found that the workmen were negligent in " removing planks * * * too close to train time " and in " failing to replace temporarily same on approach of auto."
The jury also found that the driver of the car was not negligent. On appeal, a new trial was ordered. reversing the judgment of the Court of Appeal ([19371 2 W.W.R. 282), that the judgment of the trial judge should be restored: the answers to the questions by the jury were justified by the evidence and the jury's finding that the driver of the automobile was not negligent, was not perverse.
v. B.C. Ry. Co. LTD............. 4---Collision of motor cycle with motor car
Measure of damages - Concurrent findings of fact in trial and appellate courts-The Vehicles and Highways Act, 1924, c. 81, s. 47 (1).]-BmD v. 5- Acts in emergencies-Negligent cutting in by defendant-Plaintiff's use of accelerator instead of brake.]-OGAWA MOTOR VEHICLES-Concluded
&--Running down boy crossing street - Excessive speed - Negligence boy
Which was ultimate negligence
Findings at trial reversed by appellate court and reinstated by Supreme Court of Canada.]-Ross v. ......
7-Sale
Latent defect - Warranty
Redhibitory action.................
8- Insurance
Motor vehicle liability policy-Claim under policy for indemnity for damages recovered against insured-Failure by insured to comply with statutory conditions requiring him to give promptly to insurer "all available particulars" of accident and to "co-operate with the insurer * * * in the defence" of the action-Forfeiture of right of indemnity-Refusal of relief..... 482
NEGLIGENCE - Hospitals - Patient in hospital burned during diathermic treatment-Negligence of nurse-Liability of hospital.1-Plaintiff was admitted as a patient to defendants' hospital under a contract for board, nursing and attendance.
Defendants maintained and operated for profit in the hospital an equipment for diathermic treatments.
tiff's physician (who had diagnosed his trouble as sciatica) ordered the nurse supervising the floor on which plaintiff was located, to see that he was given a diathermic treatment to relieve his pain; and a treatment was given. It was administered by a nurse who was a permanent member of the hospital staff and was in charge of such treatments.
Plaintiff's physician had not (nor had any other physician) anything to do with the actual treatment.
There was no suggestion of defect in the equipment or of lack of competence in the nurse to use it.
In the treatment the plaintiff was severely burned.
Plaintiff, alleging that the burn was caused by negligence of the nurse administering the treatment, sued defendants for damages. The trial judge gave judgment for plaintiff, which was affirmed by the Court of Appeal for
Ontario ([19371 O.R. 512).
Defendants appealed.
Held: (1) On the evidence, the finding in the courts below of negligence in the nurse must stand.
(Comment, per Duff C.J., Davis, Kerwin and
Hudson JJ., as to the proper application of the rule res ipsa loquitur. The rule is a special case within the broader doctrine that courts act and are entitled to act upon the weight of the balance of probabilities).
(2) Defendants were liable in law for damages for the nurse's negligence.
Per Duff C.J., Davis, Kerwin and Hudson JJ.: Upon the facts and circumstances of this case, the nurse was, at the time she committed the negligent act, acting the agent or servant of the hospital within the ordinary scope of her employment. There was nothing in the evidence to take her, as between the hospital and herself, out of this relationship during the time she was administering the particular treatment to plaintiff. Review and discussion of cases, and of the rule stated by Kennedy L.J. in Hillyer's case, [19091 2 K.B. 820, at 829.
However useful that rule may be in some circumstances as an element to be considered, it is a safer practice, in order to determine the character of a nurse's employment at the time of a negligent act, to focus attention upon the question whether in point of fact the nurse, during the period of time in which she was engaged on the particular work in which the negligent act occurred, was acting as an agent or servant of the hospital within the ordinary scope of her employment or was at that time outside the direction and control of the hospital and had in fact for the time being passed under the direction and control of a surgeon or physician, or even of the patient himself. It is better to approach the solution of the problem in each case by applying primarily the test of the relation of master and servant or of principal and agent to that particular work. There may be cases where the particular work upon which a nurse may for the time being be engaged is of such a highly professional and skilful nature and calling for such special training and knowledge in the treatment of disease that other considerations would arise; but the present case is not such a case. Per Crocket J.: There was ample evidence to warrant the finding at trial that plaintiff's injuries were caused by the negligence of the nurse in administering the treatment while acting in the course of her employment as defendants' servant.
DIOCESE
FLEMING.......................... 2- Evidence-Injury to young child on escalator in defendant's store-Claim for damages-Alleged negligence in construction and maintenance of escalator-Questions for jury-Application of Elevator and Hoist Act, Man., 1919, c. 31-Admissibility in evidence of Government permits and Government inspector's report- Evidence Act, Man., 1933, c. 11, s. 31- Manitoba Factories Act, R.S.M., 1933, c. 70 (as amended), ss. 5(a), 50A-Misdirection in charge to jury.]-The action was for damages by reason of injuries suffered by the infant plaintiff, a boy four years of age, while descending (along with his mother and infant brother) in an escalator in defendant's departmental store in Winnipeg, Manitoba.
During the descent, the infant plaintiff fell and caught his hand between the side of the moving steps and the unmoving side wall of the escalator, the hand remaining caught while he was carried to the bottom of the escalator and until after escalator was stopped.
Plaintiffs alleged (inter alia) that the escalator was negligently constructed and maintained.
Evidence was given at the trial of inspections of the escalator by Government inspectors and of the granting of permits to operate it, under the provisions of the
Elevator and Hoist Act, Man., 1919, c.
31, and regulations thereunder.
Certain permits issued, with certificates thereon of re-inspection, were, against objection by plaintiffs' counsel, admitted in evidence. It was further shown that on the morning after the accident a government inspector had made a further inspection, and a statement in his report thereon, that " the escalator was in good order and in perfect control" was, against objection by plaintiffs' counsel, read to the jury. After the evidence at the trial had been completed, the judge and jury went to the store and took a view of the escalator both at rest and in operation.
It was admitted that it was then in the same condition at the time of the accident.
Following the judge's charge the jury brought in a verdict denying negligence in defendant, and the action was dismissed. On appeal, the Court of
Appeal for Manitoba Man. R.
ordered a new trial, on the ground that the permits, and the inspector's report after the accident, had been improperly admitted in evidence, and further that part of the judge's charge to the jury amounted to misdirection in law.
Defendant appealed to this Court.
(Crocket J. dissenting): The appeal should be dismissed. Per curiam: The escalator was within the provisions of said Elevator and Hoist Act, and the said permits put in evidence were relevant and admissible.
JJ.: The statement read to the jury from the inspector's report after the accident was not admissible; its use was not justified under s. of the Manitoba Evidence Act (Man., c.
Further, there was misdirection in the trial judge's charge to the jury, in that he did not sufficiently differentiate the defendant's duty to a small child from its duty towards an adult, and, on the contrary, led the jury to believe that there was some duty to take care incumbent upon the child. Per Duff C.J. and Davis J.:
Having regard to the facts that, upon the evidence and the law, the child was not a trespasser, he was permitted to use the escalator, and on account of his age was incapable of negligence, the trial judge's charge to the jury beclouded the child's legal position. Further, there should have been put clearly and fully to the jury the question to the defendant's reasonable care, in permitting the child to use the escalator, in permitting such use without an attendant of defendant being present and without some means of immediately stopping the escalator when the child fell and got his hand caught. The real problem in the was not put to the jury. Per Duff C.J.: On the issue raised by the allegation of negligence in construction and maintenance of the escalator, defendant was entitled to show compliance with the government regulations; and it is impossible to say that the facts of inspection and the issue of permits in the usual way had not some relevancy to that issue; further, even if the government department charged with the administration of the Elevator and Hoist Act had been in error in proceeding upon the footing that escalators are within the contemplation of the Act, nevertheless the facts of inspection and issue of permits by the department, in accordance with the duty imposed upon it under the departmental construction of the Act, would equally relevant to the said issue.
As to the inspector's report on inspection after the accident; It is plainly not a public document within Lord Blackburn's exposition in Sturla v. Freccia, 5 App. Cas. 623; and it is not made evidence by s. of the Manitoba Evidence Act. No copy of entry should be received in evidence under s. unless the proof offered identifies the book or other record in which the entry appears in such a manner to enable the court to clearly that the entry is one within the purview of the enactment. Further, only by a forced and non-natural reading of s. can it be made to comprehend such a document that in question; to admit the document as evidence of the facts of which it speaks, would give to s. such a scope to accomplish, in respect of documents on file in offices connected with any of the public services of the country, a fundamental change in the rules and principles of evidence. Enactments of the character of s. which introduce a general exception to the rules of evidence, depriving the parties to legal proceedings of the usual safeguards in respect of evidence, should be strictly limited in their application to which are unmistakeably within their real intendment well as within the literal meaning of the words employed.
Per Crocket J. (dissenting)
: From the evidence, the only possible ground upon which the jury could have attributed the child's injury to negligence charged against defendant was that the clearance between its moving steps and its stationary skirting was too wide. The crucial issue for decision, as the case was tried, was whether or not that clearance created a danger for young children of which defendant knew or ought to have known and have guarded against. The trial judge made this issue clear to the jury. The jury having, after hearing the evidence, inspected the escalator and seen it in operation-it being then in the same condition as at the time of the accident-and having specifically found defendant not guilty of any negligence which caused the injury, it cannot be said that in the circumstances any substantial wrong or miscarriage was or could have been occasioned by any of the grounds complained of by respondents. Though, in view of the provisions of ss. 5 (a) and 50A of the Manitoba
Factories Act (R.S.M., 1913, c. 70, as amended), the extract from the inspector's report made after the accident might not be competent, it could not be said that its admission could have occasioned any substantial wrong or miscarriage within the meaning of s. 28 (1) of the
Court of Appeal Act (Man., 1933, c. 6).
As to the complaint that the trial judge did not sufficiently differentiate defendant's duty to a small child from its duty towards an adult, the trial judge made it clear to the jury that no negligence on the part of the mother could affect.
the child's right of recovery, and nothing that he said in reference to the child's own conduct, independently of his mother, could have had any influence upon the jury in relation to the crucial issue for decision above mentioned.
Therefore a new trial on the alleged ground of misdirection would be barred by said s.
28 (1) of the Court of Appeal Act.
judgment at trial should be restored.
HUDSON's V.
3-Electric railways-Motor car stalling between rails at crossing under repair- Findings of jury - Whether perverse - Whether tacit invitation to cross-New trial ordered by appellate court.]-A railway repair gang had removed a couple of planks at a road crossing a few minutes before one of respondent's cars was expected, when the appellant's automobile arrived at the crossing.
The workmen removed their tools to one side and stood to one side themselves.
Appellant's son, who was driving the car, although he knew the time at which the respondent's car was expected, attempted to drive across the rails at spot where the planks were still in place.
The car skidded and stalled and was hit by the
NEGLIGENCE-Concluded incoming train. Appellant's husband, who was in the car, was killed and the automobile demolished.
The jury in answer to questions found that the workmen were negligent
"removing planks *
*
* too close to train time" and in "failing to replace temporarily same on approach of auto." The jury also found that the driver of the car was not negligent.
On appeal, a new trial was ordered. Held, reversing the judgment of the Court of Appeal ([1937] 2 W.W.R. 282), that the judgment of the trial judge should be restored: the answers to the questions by the jury were justified by the evidence and the jury's finding that the driver of the automobile was not negligent, was not perverse. v. B.C.
RY. Co. ....... -- Motor vehicles-Appeal-Motor car accident-Action by passenger against driver and owner of the car for damages for injuries-Appeal by owner to Supreme Court of Canada from judgment of Court of Appeal which had reversed judgment of trial judge dismissing action-Restoration of judgment of trial judge on ground that there were no adequate grounds for reversing his finding that there was no "gross negligence or wilful and wanton misconduct" by driver (The Vehicles Act, Sask., 1984-85, c. 68, s. 85, as amended)- Respondent's contention for confinement of appeal to point mentioned in reasons for granting leave to appeal (as to whether owner's car was
"wrongfully taken out of his possession," within s. 85 of said Act.)]-DERKSoN v. 315 PRESCRIPTION - Appeal jurisdiction Action in damages by wife against husband-Inscription in law alleging prescription of action-Final judgment. See 5.
PUTATIVE MARRIAGE
PUBLIC POLICY-Will-Construction- Validity-Gift-Illegitimate children... 1 See WILL.
SALE-Right of redemption-Option to take back the property or to claim the price-Pactum displicentiae-Third party in possession - Irrevocable sale Incompatible clause
Petitory action Articles 1025, 1549 C.C.1-A deed of sale, passed on the 28th of May, 1931, stipulated that the vendor obliged himself to redeem the property on the 27th of May, 1934, reserving his right to redeem it before such date and the contract added further that the purchaser (creditor) would have the alternative right of demanding repayment of the purchase price and accessories or of assuming complete title to the prop- SALE-Continued erty (pactum displicentiae) in case the vendor failed to redeem the property.
The trial judge and the appellate court held that it could not be said that the parties intended that there should be an irrevocable sale once the purchase price was not reimbursed within the stipulated delay; and that the instrument was not in its true character an alienation subject to the right of redemption but a pledge of immovables. Held, that the judgment of the appellate court (Q.R. 63 K.B. 291)
should be affirmed. The fact that a lender is making use of the vente a rdmird in order the better to secure himself is not necessarily in itself incompatible with the validity of the transaction as such a sale;
and the contract may also contain stipulations for the protection of the creditor so long as they are not inconsistent with the essential nature of this particular type of contract (Salvas v. Vassal, 27 S.C.R.
68 and The Queen v. Montminy 484);
but it is essential that there be alienation and that the title of the alienee be, by the true intendment of the transaction, to be absolute if the price is not reimbursed within the time stipulated therefor; and, from the instrument itself in this case, the parties to the deed had no intention of so stipulating.
2---Automobile-Defect in the construction of the car-Latent defect-Rain leaking through side windows-Warranty- Car to be free from defects in material and workmanship-Limited to making good any defective part-Repairs unsatisfactory to buyer-Action for annulment of contract and reimbursement of purchase price-Redhibitory action-Restitutio in integrum-Car used before institution of action-Articles 1065,
1088, 1506, 1507, 1522, 1526, 1527, 1530
C.C.]-The purchased an automobile from the appellant, which was delivered on the 30th of May, 1934.
In the early part of June, the respondent noticed while driving that the small side windows in the back of the car permitted rain to leak through into the car. The respondent advised at once the appellant of that defect and the latter undertook to put the car into good order immediately.
From June to October, 1934, frequent interviews occurred and correspondence was exchanged between the parties, in consequence of which the car was, on several occasions, handed over to the appellant who attempted to remedy the condition by sealing those windows with a rubber compound, but with no satisfactory result.
On the 10th of
October. 1934, the respondent tendered the car back to the appellant and on the
SALE-Continued
15th of October brought the present action asking for the annulment of the contract and for the reimbursement of the purchase price.
The contract between the appellant and the respondent contained the following clause: "the motor vehicle * * * * is purchased * * * subject to the clause of the manufacturer's warranty endorsed in this contract * * * and this is the sole warranty, expressed or implied * * * "; and the manufacturer's guarantee was in these words: "The manufacturer warrants each new motor vehicle manufactured by it, to be free from defects in material and workmanship under normal use and service, its obligation under the warranty being limited to making good * * * any part or parts thereof * * * which have been defective; this warranty being expressly in lieu of all other warranties expressed or implied and of all other obligations or liabilities on its part * * * " Held, Davis J. dissenting, that the respondent's action, asking for the annullment of the contract and the reimbursement of the purchase price, was well founded. The Chief Justice.-In view of special circumstances and facts of this case, and especially of the correspondence (recited in the judgment) exchanged between the parties, the defendant's appeal to this Court should be dismissed.-As to the appellant's claim made in his plea for compensation in respect of deterioration or in respect of the use of the automobile for a certain period, such claim should not be allowed in view of the above circumstances, and more particularly of those contained in the consid6rant (recited in the judgment) forming part of the decision of the appellate court, which disallowed such claim. Cannon and Kerwin JJ.-The respondent was entitled to claim the cancellation of the sale and the reimbursement of the purchase price, as the appellant had failed to perform his own obligation to repair the defect found in the car sold. In a bilateral contract, each party must fulfil his own obligation in order to be able to demand the integral execution of the contract by the other party (art. 1065 C.C.). Per Cannon and Kerwin JJ.-The appellant must be presumed to have known the latent defect of the thing sold and is therefore guilty of fault from the date of the delivery of the car. during the time that the appellant has tried to put the car in good order that it has been used by the respondent and the anpellant must suffer any loss that may have resulted from such use. Davis J. dissenting-The special warranty as stipulated in the contract was valid by force of article 1507 C.C. and it excludes the application of article 1526 SALE-Concluded
C.C. which gives the buyer the option of returning the thing and recovering the price of it-Moreover, upon the facts in this case, the respondent was not entitled to cancellation or resolution of the contract, not only because the defect in the two small rear windows is not in itself sufficient to invalidate the entire contract, but because the parties cannot now be put back into the same position in which they were before the contract was entered into. Restitutio in integrum can only be had where the party seeking it is able to put those against whom it is asked in the same situation in which they stood before the contract was entered into.
The new motor car had been used by the purchaser (respondent) from June to
September inclusive and had travelled over 7,300 miles. It was not in October the same car that had been delivered.
But the appellant, in view of the concurrent findings of fact by the trial and appellate courts as to the defect complained of by the respondent, became liable to the respondent for damages, as there was a breach of the warranty to make good the defective parts of the car; and the respondent's right to make any claim for such damages should be reserved. v. 433
SALES TAX of right-Action for money paid-Period of limitation- Claims barred ....................
STATUTES-Adoption Act, R.S.O., 1937, c. 218.............................
2-Children's Protection Act, R.S.O.,
1937, c. 312........................
See 3.
3- Children of Unmarried Parents Act,
R.S.O., 1937, c. 217.............
See 3.
4- Chinese Immigration Act,
R.S.C.,
1927, c. 95, ss. 5, 8, 37.......... 378
5--Custome Act, R.S.C.,
1927, c. 42.
....
.
.. ...........
.
See 7.
6- Deserted
Wives'
Children's
Maintenance Act, R.S.O., 1937, c. 211.
...................................
7- Elevator and Hoist Act, Man., 1919, c. ..............................
8- Evidence Act, Man.,
1933, c.
9----Factories Act, R.S.M., 1913, c. 70,
(a), 50A......................
STATUTES-Concluded
10---Government Annuities Act, R.S.C., 1927, c. 7.......................... f- Insurance Act, R.S.O., 1937, c. 256. 12-Limitations Act, R.S.O., 1927, c. 106. ... ................. 13-Special War Revenue Act, 23-24 Geo. s. 24...................... See 1.
14-Vital Statistics Act, Ontario.... 1 15--See also under appropriate subject headings, throughout the index. WILL-Construction - Validity - Public policy-Gift at expiration of ten years from testator's death "to the mother who has since my death given birth in Toronto to the greatest number of children as shown by the registrations under the Vital Statistics Act [Ont.] "-"Children"-Not inclusive of illegitimate children-Gift not void as against public policy.]-A clause in a will gave the residue of the testator's property to his executors in trust to convert, etc., and "at the expiration of ten years from my death to give it and its accumulations to the mother who has since my death given birth in Toronto to the greatest number of children as shown by the registrations under the Vital Statistics Act [Ont.].
If one or more mothers have equal highest number of registrations under the said Act to divide the said moneys and accumulations equally between them."
Held: (1) The word "children" in said clause did not include illegitimate children.
(2) The clause was not void as against public policy. Judgment of the Court of Appeal for Ontario, [19371 O.R. 382, affirming judgment of Middleton J.A., [19361 O.R. 554, affirmed. JJ.: Discussion as to the jurisdiction of the courts (in dealing with an attack against a contract or disposition of property as invalid as against public policy) to proceed (there being no contravention of statute law) under some new head of public policy-some principle of public policy not already recognized by judicial decision, in the sense explained in certain cases cited and discussed, particularly in the judgment of Lord Wright in Fender v. Mildmay, [19371 3 All E.R. 402, at 425, 426.
Decision on that question not given (as being unnecessary in the present case); but inclination intimated of view in favour of that of Lord Wright (restrictive as to the courts' jurisdiction) in his said judgment. In the present case, it was not argued that the WILI-Continued disposition in question was void upon any particular rule or principle established by judicial decision.
Therefore, taking the most liberal view of the jurisdiction of the courts, there were at least two conditions which must be fulfilled to justify refusal, on grounds of public policy, to give effect to a rule of law according to its proper application in the usual course in respect of a disposition of property. These conditions are: (1) That the
"prohibition is imposed in the interest of the safety of the State, or the economic or social well-being of the State and its people as a whole. It is therefore necessary * * * to ascertain the existence and the exact limits of the principle of public policy contended for, and then to consider whether the particular contract
[or disposition] falls within those limits"
(Fender v. Mildmay, supra, at 414);
(2) "That the doctrine should be invoked only in clear cases, in which the harm to the public substantially incontestable, and does not depend upon the idiosyncratic inferences of a few judicial minds" (ibid, at 407; as to this condition, see also
Egerton v. Brownlow, 4 H.L.C. 1, at 197,
Rodriguez v. Speyer, [19191 A.C. 59, at
135-136, and Fender v. Mildmay, supra, at 436).
In the present case it could not be affirmed that such conditions were fulfilled.
It is not sufficient to say that some people may be, or probably would be, tempted by the hope of obtaining the legacy to conduct themselves in a manner injurious to wife and children.
(Egerton v. Brownloto, supra, at 24-26,
85, 86, 126-128).
Per Crocket J. (who agreed with the result in the present case) : There is no generally accepted rule of law restricting the long recognized and salutary right and duty of the courts to
WILL-Concluded refuse to enforce any and all contracts and testamentary dispositions of property regularly brought before them for adjudication, which they on sound judicial grounds find to be contrary to public policy in the sense of tending to subvert the public good.
The judicial application to contracts and dispositions of property of the principle against contravention of public policy is not limited to contracts or dispositions which contravene the statute law or only those heads of public policy which are recognized by past decisions or to cases which clearly fall within the purview of those decisions.
It is the courts' right and duty to bring their own judgment to bear upon the question propounded for their adjudication as to whether or not the purpose of a particular contract or disposition of property contravenes the public good. Nor is "substantial incontestability" as regards harm to the public a necessary condition of a ground of public policy for the exercise by the courts of their right to hold invalid contracts or dispositions of property on such ground.
(Discussion of authorities and judicial dicta).
WORDS AND PHRASES-" Children" .......
2- "Post letter" ...............
See 3. 3- " Post office"
...............
See 3. 4 -" Profits" .....................
Cases cited
- King v. Sinclair 12 C.C.C. 20
- Industrial Acceptance Corp. Ltd. and Canadian Acceptance Corp. Ltd. v. Canada Permanent Tr scr-1931-652
- O.R. 559 O.R. 559 559-561
- A.C. 437 A.C. 437
- A.C. 500 A.C. 500
- 1 A.C. 202 1 A.C. 202 209
- A.C. 243 A.C. 243 244
- Telegraph Newspaper Co. Ltd. v. Mc- Laughlin A.C. 776
- O.R. 683 O.R. 683
- O.R. 385 O.R. 385
- O.R. 200 O.R. 200
- Rex v. Ball A.C. 47 68
- Woolmington v. The Director of Public Prosecutions A.C. 462 482
- Makin v. Attorney-General of New South Wales A.C. 57
- A.C. 79 A.C. 79
- Alderman v. Great Western Ry. Co. A.C. 454
- 2 W.W.R. 282 2 W.W.R. 282
- Fender v. Mildmay Fender v. Mildmay, supra, at 414 414
- Fender v. Mildmay Fender v. Mildmay, supra, at 436 436
- Egerton v. Brownloto Egerton v. Brownloto, supra, at 24-26 24-26
Statutes and regulations cited
-
- section 202
- section 203
- section 1025
- Section 2
- section 2
- s. 96
- s. 261
- sections 6
- section 364.1
- section 364
- section 7
- ss. 1016
- 1024
- s. 1016
- s. 259
- Section 1025
- ss. 7
- s. 7
-
- section 36
- s. 41
- section 1025
- section 394
- s. 76
- s. 163
- section 230
- s. 90
- section 41 of the Supreme Court Act
- s. 193
-
- ss. 91
- s. 91
-
- 99.1
- s. 193 of the Customs Act
- s. 229
-
Exchequer Court Act
- Section 82
- Section 48
- section 2 of the Exchequer Court Act
- sections 5
- 8
- 87.1
- sections 8
- section 5
- 12
- s. 82
- s. 4
- s. 32
- s. 5
- s. 12
- s. 8
- s. 2
- ss. 5
-
- s. 19 of the Interpretation Act
- s. 188
- s. 191
- s. 192
- s. 47
- s. 31
- ss. 5(a)
- s. 28
- s. 85
- 37
- s. 24
-
Unresolved citations
- subsection (7)
- Section 205
- (f)
- s. 127 of the Bankruptcy Act
- s. 90 of The British North America Act, 1867
- section (2)
- section 2 of the Post Office Act
- section 48 of the Ontario Limitations Act
- section 117 of the Special War Revenue Act
- section 37 of the Chinese Immigration Act
- s. 188 of The Insurance Act
- s. 191 of The Insurance Act
- s. 5 of the Accident Insurance Act
- s. 85 of said Act