Majority
Cette enqu~te ne d6voile pas de dol personnel de la part de l'intim6. Elle ne concerne pas non plus les faits qui, d'aprbs le verdict rendu sur 1'action principale, ont constitu6 la faute des appelants.
En dehors de quelques incidents sans influence possible sur le r6sultat, la nouvelle enqu~te s'est surtout attach6e A prouver des manceuvres ou de la n6gligence de la part de Bastien, I'autre d6fendeur, qui fut exon6r4 par le jury et qui a cess6 d'6tre partie dans la cause dis apris le jugement sur l'instance principale.
Or, un verdict de n6gligence contre Bastien ne serait pas suffisant pour lib6rer les appelants. I leur faudrait, en plus, faire disparaitre le verdict qui les a d~clar6s euxm~mes en faute. Autrement, ils ne pourraient 6chapper a leur condamnation, par suite de la responsabilit6 solidaire en matibre de d6lits ou de quasi-d6lits.
Nous ne pouvons trouver dans la nouvelle enquete la preuve " concluante " qui entrainerait probablement un r6sultat diff6rent pour les appelants, c'est-a-dire: un verdict par lequel 1'accident serait d6clar6 uniquement dfi A la faute de Bastien. Et c'est dans ce cas seulement que les appelants pouvaient r~ussir.
Pour ces raisons, I'appel doit Stre rejet4 avec d6pens. Solicitors for the appellant: Vallee, Beaudry, Fortier, Lgtourneau & Macnaughton.
Solicitors for the respondent: Lamothe & Charbonneau. PHILIAS MANTHA
THE CITY OF MONTREAL f
Whether Superior Court has jurisdiction to reverse such decision- Art. 50 C.C.P.-Right of employee to pension.
MANTRA The appellant, having served as a member of the fire brigade of the city of Montreal for a period of eighteen consecutive years, presented to Crry MONTREAL. the chief of the brigade, on the 23rd of July, 1931, his resignation on grounds of ill health and made a request for a medical examination, in order to obtain during his lifetime the pension provided by a by-law of that city. The examination was made by two medical officers on the 27th of July, 1931, who reported immediately to the city that the appellant was still fit to perform his duties. But the appellant was not informed, for months after, that his application had been rejected. In the meantime he had been required by his superior officers to return his fireman's equipment and thenceforward was in every way treated as not in the city's employment. The by-law, upon which the appellant based his claim, contains in section 2 the cases where an employee would be entitled to a pension; and section 11 provides that it " devolve upon the Board of Commissioners (later called Executive Committee) to decide, in each case, whether any civic employee is eligible for superannuation and pension." The appellant brought his action only in February, 1936, and in his statements of claim, did not allege such a decision in his favour, nor did he allege facts precluding the respondent city from relying upon section eleven; but he contented himself with alleging that the pension to which he had acquired a right had been unjustly and illegally refused by the city respondent and that he had fulfilled all the conditions entitling him to it. The respondent city denied such allegations, set up the report of the doctors and alleged generally that the appellant had not brought himself within the conditions giving him a right to superannuation and pension.
It also raised, at the trial, the ground that the Superior Court had no authority under article 50 C.C.P. to review the decision of the Executive Committee. The trial judge, holding that he had such authority under the provisions of that article, proceeded to make himself an independent examination of the facts touching the state of the appellant's health in July, 1931, and finally granted the appellant's claim for pension.
The appellate court reversed that judgment on the grounds that the Executive Committee, in the exercise of the discretion conferred upon it by section had the right to find that the appellant was. not eligible for pension, that the Court could not substitute its opinion for that of the Committee and that, on the evidence, the decision of the Committee could not be declared to be arbitrary, unjust and illegal. Held, reversing the judgment of the appellate court and restoring the judgment of the trial judge, but in both cases on different grounds, that the appellant's claim for a pension and other benefit provided by the by-law should be maintained.
Held, also, reversing the judgment of the trial judge as to that ground, that article 50 C.C.P. has not the application given to it by him. Such article is primarily concerned with jurisdiction; but such jurisdiction must be exercised " in such manner and form as by law provided."
Where parties have agreed, as in the present case, that their rights shall rest upon the condition that a given individual or body shall be satisfied that a certain state of facts exists, article 50 C.C.P. does not enable the Superior Court to make a new contract between the parties and to declare their rights without regard to the contract and by reference solely to the trial court's own view of the facts. In this case a decision by the Committee favourable or unfavourable to an applicant is not susceptible of review upon the Crry or merits by any court.
Held, also, reversing the judgment of the appellate court, that the city respondent should not be permitted to set up the decision of its Executive Committee in answer to the appellant's claim.
The appellant, not having been informed of the nature of the report of the doctors until long after the decision of the Executive Committee, was given no opportunity of answering that report, before the Executive Committee had reached its decision; and, in these circumstances, it should be held that no inquiry of the character contemplated by section of the by-law had taken place.
Moreover, in the existing circumstances of the case, section of the by-law would not afford, at the present time, appropriate machinery for working out the rights of the parties,.mainly on the ground that evidence, to which the Committee might have resorted eight years ago, would probably be no longer available.
Held, further, that the finding of the trial judge, that the appellant had established the facts necessary to entitle him to superannuation and pension, under the by-law, should not be set aside.
APPEAL from the judgment of the Court of King's Bench, appeal side, province of Quebec, reversing the judgment of the Superior Court, L. Cousineau J., and dismissing the appellant's action.
The appellant obtained judgment in the Superior Court against the city respondent, condemning it to pay him an annual pension equivalent to a fifth of his annual salary at the time of his resignation as a member of the fire brigade of that city, namely, $416, to pay him the arrears accruing up to the date of the action with interest amounting to $2,085.20 and ordering the city to deliver him a paid-up certificate or policy of $1,000, entitling his heirs to payment of that amount upon his death.
The material facts of the case and the questions at issue are stated in the above head-note and in the judgment now reported.
Gustave Monette K.C. for appellant.
Claude Choquette for respondent.
THE CHrEF JUsTICE-The appellant's claim is based upon the enactments of by-law 506 amended by by-law 625 and section 38, cap. 112 of statutes of 1921. In so far as pertinent they are these:
By the statute of 1921 the Executive Committee succeeded to the functions of the Commissioners.
I agree with the majority of the Court of King's Bench that primarily the appellant's right to superannuation and a pension must rest upon the decision of the Board of Commissioners under section 11.
I think it is reasonable to treat the provisions of sections 2 and 11 as terms of the engagements between the respondent corporation and its employees so long as the by-law is in force. It was entirely within the powers of the corporation to require as one of those terms that the right to superannuation and pension should not arise until there had been a decision under section 11 and that, I think, is the proper interpretation of the by-law.
On the other hand, it was the duty of the Executive Committee upon application by the appellant for superannuation on the ground of ill health to entertain his application and, after due consideration, to decide whether eligibility was established.
With great respect for the dissenting judges in the Court of King's Bench I do not think a decision by the Committee favourable or unfavourable to an applicant in the execution of their duties, after a proper consideration of the applicant's claim, is susceptible of review upon the merits by any court. The right of the retired officer is a right resting upon the by-law and the by-law accords him a pension when and only when he has received a favourable decision from the Executive Committee.
That, however, does not necessarily conclude the matter. If the Executive Committee refuses to entertain the application, or if they give a decision without having afforded the applicant a fair opportunity of supporting his claim, then, since the Corporation is responsible for the acts of its administrative organ, it may by the fault of that body be precluded from setting up this condition and the court may be in a position to enter upon an examination of the merits of the claim.
CJ.
The evidence in the present case is rather meagre. The appellant presented to the Chief of the Fire Brigade on the 23rd of July, 1931, his resignation on grounds of ill health and requested a medical examination. The examination having been made by the two medical officers of the Fire Brigade, Dr. Lafleur and Dr. Morrison, they reported that the appellant was still fit to perform his duties as fireman.
At the trial the appellant said that it was not until some time in the year 1932 that he received a communication by letter from the President of the Executive Committee advising him that his application had been refused on the report of the medical officers that he was still fit for service. It was not until February, 1936, that proceedings were taken.
The appellant did not in his declaration state facts constituting a right of action against the Corporation. He did not allege a decision by the Executive Committee in his favour, nor did he allege facts precluding the defendant Corporation from relying upon section 11 of the by-law. He contented himself with alleging that the pension to which he had acquired the right had been unjustly and illegally refused by the defendant corporation; and that he had fulfilled all the conditions entitling him to it. The facts upon which in his declaration he bases his claim are that at the date of his application he was, by reason of various ailments contracted in the performance of his duties, incapable of performing them.
The defendant corporation denied the allegations of the declaration and set up the report of the doctors and alleged generally that the plaintiff had not brought himself within the conditions giving him a right to superannuation and pension.
Except for this general allegation in the defence and the general allegation in the declaration mentioned above, the pleadings contain no reference to the conditions embodied in section 11 of the by-law or to the proceedings of the Executive Committee.
I have no doubt that the declaration was demurrable since a decision by the Committee favourable to him (or facts precluding the defendant Corporation from relying CiV o upon the condition embodied in section 11) was one of the constitutive elements of his cause of action.
Duff CJ. It is clear, however, that at the trial both parties departed from the pleadings. The appellant in examination in chief gave evidence which, with that of the medical officers and the Chief of the Fire Department, made it quite clear that all parties understood that the appellant 'was applying for superannuation and a pension under the by-law, and an examination and report by the medical officers on the state of his health. He said that in 1932, the year following his application, he received, after repeated enquiries on the subject, a letter from the chairman of the Committee notifying him that his application had been rejected because the medical officers had reported him fit for duty. On this evidence counsel for the defendant corporation based an argument at the trial (as appears by the judgment of the trial judge) that the action should be dismissed because the Superior Court had no authority to review the decision of the Executive Committee.
The learned trial judge rejected this contention, but the Court of King's Bench gave effect to it and on that ground allowed the appeal and dismissed the action.
It is convenient here to transcribe the relative consid4rants in both judgments. The trial judge says:
- Le troisibme point soulev6 par la d6fense, toujours & l'argument seulement, est le d6faut d'autorit6 de la Cour Sup&rieure pour reviser une d4cision du Comit6 Ex~cutif.
Consid6rant que Particle 50 du Code de Proc6dure Civile donne A la Cour Sup6rieure cette autorit6, surtout dans une cause comme celle-ci, oit il nous est d6montr6, par toute la preuve entendue, qu'il y a eu abus de pouvoir, soit volontairement, soit involontairement par ignorance des faits, et qu'une injustice grave a td commise.
Car consid6rant que le fait pour deux m6decins de la cit6 de Montr6al, qui connaissaient les maladies du demandeur depuis plusieurs ann6es, de n'avoir pas examin6 le demandeur minutieusement, et pour ces diffirentes maladies surtout, constitue " a palpable and manifest wrong", et que le fait, pour la cit6, d'avoir accept6 la risignation du demandeur pour cause de sant6, car elle ne pouvait l'accepter qu'avec les raisons donn6es, et de lui avoir subsiquemment refus6 sa pension, constitute un abus de pouvoir. D'ailleurs la d6fenderesse, par ses actions ou par celles de ses employ6s, a acquiesc6 dans l'acceptation, d'abord en requ6rant le demandeur de remettre aux quartiers chefs, ses uniformes et ses bottes, qu'il en avait regus, et en ne l'avisant pas que sa risignation n'avait pas 6th accept6e. 11939 Si, en effet, la cit6 avait refus6 Ia r~signation du demandeur, elle aurait Idi I'en avertir pour qu'il puisse, soit reprendre son travail ou donner sa r6signation pour d'autres causes. Elle n'a rien fait;
Consid6rant donc que le demandeur a 6tabli, hors de toute doute, qu'il soufhre depuis au moins 1928, de rhumatisme, de lumbago, de troubles de gorge et d'oreilles, et de fistules, et qu'il est dans les conditions requises Duff CJ. par le riglement, et partant "incapable de remplir ses fonctions 6 raison de maladies chronique ou incurable ", maladies qui ont 6t6 caus6es par le fait ou A I'occasion de I'exercice de ses fonctions.
In the judgment of the Court of King's Bench the following appears:
Considering that by the terms of the by-laws in force at the time when the respondent tendered his resignation-which was accepted subject to medical report-it devolved upon the Executive Committee of the city of Montreal to determine whether the respondent was eligible or not for the said pension;
Considering that the respondent, by his action as brought, does not pretend that the said Executive Committee failed to exercise the discretion so conferred upon it, but on the contrary the respondent expressly alleges that the Executive Committee unjustly and illegally rejected his claim;
Considering that, in accordance with the requirements of the by-laws relating to the matter, the respondent was examined by the medical officers of the fire brigade shortly after the date of his resignation and found to be still fit for service;
Considering that in virtue of the said by-laws governing such pension, a claim only arises in the event of the employee claiming it becoming unfit for further service, and the decision thereon is vested in the Executive Committee;
Considering that there was ground upon which the Executive Committee, in the exercise of the discretion so conferred upon it (while not bound to do so under the then existing by-laws), could, however, find that the respondent was not eligible for such pension as not coming within the terms of the by-law; and this court cannot substitute any opinion that it might form for that of the said Executive Committee, nor, in the light of the evidence, can it declare the decision of the said Executive Committee to be arbitrary, unjust and illegal (Harvey v. Montreal (1); Montreal v. Diamond (2)).
Considering that there is error in the judgment of the Superior Court in granting the said pension;
Considering, further, that as to the insurance policy claimed by the respondent, while he is entitled to the same under the provisions of the resolution of the city council dated the eighteenth day of January, one thousand eight hundred and seventy-five (1875), he is not entitled, in the alternative, to the sum of one thousand dollars ($1,000) in cash, and that there is error in the judgment of the Superior Court in this respect. The judgment of the learned trial judge shews plainly enough, I think, that he misdirected himself. He was under the impression that his duty was to enter upon an independent examination of the facts touching the state (2) (1934) Q.R. 57 KB. 430. (1) (1934) Q.R. 72 S.C. 12.
of the appellant's health in July, 1931, and that, having concluded he was in the state of health contemplated by section 2 of the by-law (that is to say, unfit to discharge his duties) he was entitled to disregard any decision of the Executive Committee under section 11 or the absence of any such decision. He finds there was an abuse of power " soit volontairement ou involontairement par ignorance des faits et qu'une injustice grave a 6t6 commise ". But this finding is based solely upon his conclusion respecting issues of fact which, by the terms of the by-law, the Executive Committee is to pass upon.
He does not put his conclusion upon any illegality in the proceedings of the Committee or any refusal to consider the application or any want of judicial temper or any partiality in the conduct of the inquiry, although he does find unfairness and injustice in the conduct of the doctors.
Article 50 of the Code of Civil Procedure is primarily concerned with jurisdiction; the jurisdiction, however, is by the express words of the article to be exercised " in such manner and form as by law provided." Where parties have agreed that their rights shall rest upon the condition that a given individual or body shall be satisfied that a certain state of facts exists, article 50 does not enable the Superior Court to make a new contract between the parties and to declare their rights without regard to the contract and by reference solely to the court's own view of the facts. I am satisfied that the judgment of the trial judge cannot be sustained, therefore, on the grounds on which he bases it. On the other hand, after some hesitation, I have come to the conclusion that the judgment of the Court of King's Bench cannot be maintained.
The respondent corporation having at the trial taken its stand upon the decision of the Executive Committee (disclosed in the evidence of the appellant) and the Court of King's Bench having treated it, as Mr. Justice Bond says, " as established " against the appellant
I think we must consider whether, on the evidence on which the Court of King's Bench proceeded, the decision of the Executive Committee can be accepted as final. The evidence bearing on this point is chiefly that of the appellant. And, as appears from the judgment of Bond J. it is upon this evidence that the Court of King's Bench acted. The statement in the formal judgment of the Court in the second paragraph quoted above must be founded on the appellant's evidence since the appellant in his declaration makes no reference to the action of the Executive Committee, but only to the "illegal and unjust" refusal of his pension by the defendant Corporation.
From the evidence of the appellant we are entitled to conclude (he was not contradicted or cross-examined on these points) that, after the medical examination (July 27th), he was not informed for months that his application had been rejected or that the doctors had found him fit for duty, although they appear to have reported immediately. In the meantime he was required by his superior officers to return his fireman's equipment and thenceforward he was in every way treated as not in the Corporation's employment.
It is clear, as already observed, that everybody understood he was applying for superannuation under the by-law on the ground of incapacity by reason of ill health and the officials of the Corporation must have realized, if they gave the matter the slightest attention, that it was their duty at once to inform him that his application for superannuation had been rejected. In giving effect to the application as a simple resignation and keeping him in ignorance of the report of the doctors that he was fit for duty and of the decision of the Executive Committee, they were either deceiving him deliberately or acting with gross inattention to their plain duty.
One thing is plain: the appellant not having been informed of the nature of the report of the doctors was given no opportunity of answering that report before the Executive Committee had reached their decision.
It is obvious, of course, that in these circumstances there was no inquiry of the character contemplated by section 11. The duty of an administrative body charged with an inquiry into facts the results of which is to affect the civil rights of parties has been stated many times. It will be sufficient to refer to the language of Lord Loreburn in Board of Education v. Rice (1):
These words seem to be apt for the present purpose. The Court of King's Bench has overlooked the significance of the fact, not as I understand it disputed, that the appellant had no knowledge of the report of the medical officers until long after the decision of the Committee had been given and no opportunity to answer it. I repeat, in these circumstances, the respondent Corporation cannot be permitted to set up that decision in answer to the appellant's claim. Is the Corporation also precluded from relying on the condition embodied in section 11 itself?
Section 11 contemplates an examination by the Committee of the facts touching the state of the applicant's health at the time of the application for the purpose of determining whether or not the applicant is in such a state of health as to be unable to perform his duties. If the inquiry results in a negative answer, then, in the ordinary course, the employee will not be superannuated but will continue to exercise his functions.
As pointed out above the appellant by reason of the manner in which his application was dealt with was, in effect, dismissed from his employment although, according to the medical report and the decision of the Executive, he was not unfit to perform his duties. He was forced to commence an action to establish his status.
Section in the existing circumstances affords no appropriate machinery for working out the rights of the parties. It does not appear that the Committee has any power to examine witnesses upon oath; and evidence to which the Committee might have resorted eight years ago would, probably, be no longer available.
Section 11, having in this particular case and chiefly by reason of the conduct of the defendant Corporation, and its officials and its administrative body, the Executive Committee, become abortive, the case appears to be one for the application of the principle of Cameron v. Cuddy (1) as stated by Lord Shaw at page 656. The rule is a practical one for effectuating justice where the machinery set up by the instrument defining the rights of the parties has become inoperative. The rule is well within the spirit .J of article 50 of the Code of Civil Procedure and the law of Quebec is not less efficacious for meting out justice in such a case than the law of England or Scotland. There still remains the issue raised by the contention of the Corporation that the plaintiff has failed to establish the facts necessary to entitle him to superannuation under section 2 of the by-law. I think there was some evidence as to the fistula, and I am not prepared to say that the finding on that point should be set aside. Then, the learned trial judge had before him the appellant, of whose credibility he appears to have had no doubt, and whose credibility, indeed, does not appear to have been seriously impugned; and he was in a specially advantageous position to weigh the value of the appellant's statements with regard to his ailments and symptoms, and on the whole I should not feel justified in reversing his finding that the conditions of section 2 of the by-law obtained at the relevant time.
In the result, the appeal is allowed and the judgment of the trial judge restored. In view of all the circumstances the appellant should have his costs throughout. J.-The appeal should be allowed and the judgment of the trial judge restored with costs throughout. Appeal allowed with costs. Solicitors for appellant: Campbell, Kerry & Bruneau. Solicitors for respondent: St.-Pierre, Parent, Damphousse, Minard & Choquette.
ADMINISTRATION OF ESTATES
AGENCY -Negligence-Company manufacturing and selling wine in Ontario- Delivery of parcels to its customers by an individual- Motorcycle used by latter striking pedestrian-Question as to liability of the company-Relationship between the company and the individual- Liquor Control Act, Ont., and regulations whether judgment taken at trial against individual precluded plaintiff from proceeding further against company.
......................
2-See
APPEAL-Jurisdiction-Action in damages by negro for refusal to sell beer by a tavern-keeper-Judgment by trial judge for 825 reversed by appellate court- Motion for leave to appeal-Matter in controversy - Future rights
Matter of general importance-Section 41 of the
Supreme Court Act.]-The appellant, a negro, brought action against the respondent to recover the sum of $200 as damages suffered as a result of the refusal by the respondent, a tavern-keeper, to serve a glass of beer. The action was maintained for $25, the trial judge holding that the respondent's premises came within the definition of a "restaurant,"
and that owners of hotels and restaurants have no right to discriminate between their guests. This judgment was reversed by the appellate court (Q.R. 65 K.B. 104)
which held that a tavern was not subject to the laws governing hotels and restaurants and that, as a general rule, a merchant or trader was free to carry on his business in the manner that he conceives to be the best for that business.
appellant moved before the court for special leave to appeal. Held that special leave to appeal should be granted.
matter in controversy in the appeal wil involve "matters by which rights in future of the parties may be affected" within the meaning of section 41 of the S'srome
Court Act. Further, the matter in controversy is of such general importance that leave to appeal ought to be granted.
APPEAL-Continued
2- Jurisdiction-" Highest court of final resort having jurisdiction in the province "-Supreme Court Act, R.S.C., 1927, c. 85, s. 87 (as amended by I Geo. VI, c. 42).1-In s. 37 (3) of the Supreme Court Act (R.S.C., 1927, c. 35, as amended by I Geo. VI, c. 42), the words " highest court of final resort having jurisdiction in the province " (from which court only, save as provided, an appeal lies to the mean the highest court of appeal having jurisdiction generally in the province, and do not refer to the highest court in the province to which appeal can be taken in the particular case sought to be appealed
Supreme
An appeal to the Supreme Court of Canada from the decision of a County Court Judge in Ontario dismissing an appeal from the decision of a court of revision affirming an assessment made under a city by-law passed under the provisions of s. 120a (enacted in 1934, c. 1) of The Assessment Act, R.S.O., 1927, c. 238, was quashed for want of jurisdiction.-IN- 3--Jurisdiction-" Judgment directing a new trial," Supreme Court Act (R.S.C., 85), s. 86.]-An ordet made in the action directed that a demurrer pleaded in defence and certain other questions of law arising should 'be argued and decided before evidence was given or any issue of fact tried. After argument on said questions of law, judgment was given dismissing the action (except as against certain defendants whose position was not then under consideration), it being held in effect that no cause of action was disclosed by the statement of claim. Court of Appeal for Manitoba, being of opinion that said questions of law should not have been disposed of before the trial, set aside the judgment, and directed that defendants should be entitled to raise the trial of the action "any demurrer or points of law taken by them in their statement of defence" and that plaintiff should "have leave to amend his statement of claim as he may be advised." Held: The judgment of the Court of Appeal was not a final judgment nor a "judgment directing a new trial" within the contemplation of s. 36 of the Supreme APPEAL-Concluded
Court Act (R.S.C., 1927, c. 35); and there could be no appeal therefrom to the v. MURPHY....................
4--Jurisdiction-Exchequer Court Act
(R.S.C., c. 84), s. 88-" Actual amount in controversy" not exceeding
" the sum or value of 8500 "-Appeal from judgment in Exchequer Court setting aside recommendation of Superintendent of Insurance imposing qualification or limitation on renewal of licence to loan company-Matter involved not susceptible of evaluation in terms of
5--Jurisdiction-Criminal Code (R.S.C.,
1927, c. 86, as amended), ss. 1018 (4),
1025 (8)-Trial judge deciding there is no evidence to go to jury, withdrawing case from jury and giving judgment for acquittal-Jurisdiction on appeals.........
6---Duty of appellate court when asked to reverse decision, on the evidence, of trial tribunal ......................
7- ..........
8---Jurisdiction................
9- Jurisdiction--" Amount or value of the matter in controversy in the appeal"
(Supreme Court Act, R.S.C., 1927, c. 85,
8. 59) .........................
10-See 2.
APPOINTMENT (POWER OF)
See WILL 1.
ASSESSMENT AND TAXATION-Income tax-Amount deductible for depreciation-Discretion of the Minister of
National Revenue-Income War Tax Act,
R.S.C., 1987, c. 97, sections 8 (h), 8, 6,
6, 9, 60, 75, 80.]-The appellant was incorporated under the Companies Act of
British Columbia. On the form of income tax return for 1933, the appellant set out, for the purpose of an allowance for depreciation, the value of machinery and other equipment at 8168,458.72, and the amount of depreciation claimed was
$17,255.55.
Such equipment had been purchased by the appellant from another company bearing the same name and having the same shareholders as the appellant company.
The amount of depreciation was totally disallowed, except for a small amount of $255.08 in respect of three new motor cars, by the Commissioner of Income Tax, acting on behalf of the Minister of National Revenue, on the ground that, as the company who had sold the machinery and equipment had been allowed over a period of years approximately 100% depreciation in their work values, the appellant was not entitled to any deduction for depreciation upon the same machinery and equipment. Section 5 of the Income War Tax Act provides that "'Income'
*
* * shall *
*
* be subject to ", as exemption and deduction, " such reasonable amount as the Minister, in his discretion, may allow for depreciation
*
* *." Upon appeal, the Exchequer Court of Canada affirmed the decision of the Minister of National Revenue.
Held, The Chief Justice and Davis J. (dissenting)
, that the appealed from should affirmed. Per Crocket and Hudson JJ.- The provisions of the relevant sections of the Income War Tax Act indicate that it was the intention of Parliament that there should be no depreciation allowance unless the Minister of National Revenue, in his sole discretion, decided that there should be.
In this case, the Minister has exercised his discretion and the statute does not define or limit the field for operation of such discretion. Per Kerwin J.-The discretion conferred upon the Minister by section 5 of the Act has been exercised without disregarding any statutory provision; and there is no ground upon which his determination may be challenged. Per The Chief Justice and Davis J. (dissenting): The ground upon which the Commissioner of Income Tax put his denial of any amount of depreciation was not a proper ground upon which to exercise the discretion that has been vested in the Minister.
The Commissioner was not entitled, in the absence of any fraud or improper conduct, to disregard the separate legal existence of the appellant company, which was a new owner for all legal purposes; and it3 predecessor's depreciation allowance is immaterial when considering what is a reasonable amount to be allowed for its own depreciation.
The decision of the Minister was not a legitimate exercise of the discretion which Parliament vested in him. The discretion granted by the statute to the Minister involves an administrative duty of a quasi-judicial character and is a discretion to be exercised on proper legal principles.
The Commissioner, acting for the Minister, having exercised such discretion upon principles wrong in law, the case should be remitted to the reconsideration by the Minister of the subject-matter, stripped of the application of these wrong principles. Judgment of the Exchequer Court of Canada ES.C.R. ([1938] Ex. C.R. 18) affirmed. The Chief
Justice and Davis J. (dissenting)
.
PIONEER
2- Income tax-Liability for assessment-Income War Tax Act
(R.S.C.,
1927, c. 97, as amended), ss. 11 (2), 4 (e),
55, 56-" Income accumulating in trust for the benefit of unascertained persons or persons with contingent interests "- " Charitable institution "-Liability for interest prior to date of assessment-Costs.]
-B.
of London, Ontario, on May 27, 1918, made a deed of settlement of real and personal properties to a trust company in
Ontario, for management, administration, etc.
At the end of 21 years after B.'s death the trustee was to pay the whole fund with accumulations thereon to the
Municipal Council of the Town of Colne in Lancashire, England, "to be used by the said Council for the benefit of the aged and deserving poor of the said Town of Colne in such manner and without restriction of any kind, as shall be deemed prudent to the said Council."
B. died on April 19, 1927.
The trust company made yearly income returns for each of the years 1919 to 1934 respectively to the
Dominion Government on the form to be filed by trustees.
No assessment was made until February 21, when assessments for income tax were made for all those years, interest being added.
Liability to pay the tax was disputed.
Sec. (2) of the Income War Tax Act
(R.S.C., 1927, c. 97, as amended) provides that " income accumulating in trust for the benefit of unascertained persons, or of persons with contingent interests shall be taxable in the hands of the trustee
*
* *." Held (reversing judgment of Maclean J. (19381 Ex. C.R. 95)
(Kerwin J. dissenting): The income in question was not within said s. (2) and was not taxable.
Per The Chief Justice,
Crocket and Davis JJ.: The fund was created for a purpose-to be used "for the benefit of the aged and deserving poor," a class, in the town of Colne (a purpose not improbably to be satisfied by building and maintaining some institution)-not, either as to capital or income, for any particular person or persons.
What the settlor established was an arrangement or undertaking for promoting a defined public or social object without reference to the property appropriated for the purpose becoming vested at any time in any particular person or persons. No particular person will ever acquire a right to demand and receive the beneficial interest in the income from the fund or in any part thereof. Therefore s. (2) (the only section suggested as under which the accumulating income is taxable) does not apply.
(Holden v. Minister of National Revenue, [1933] A.C. 526, distinguished). Per Hudson J.: The persons intended under s. (2) are persons who might become entitled to specific portions of the fund, and not a general class who would ultimately get the benefits of the fund in the way of charitable assistance.
Per Kerwin J. (dissenting)
: Under the arrangement between the settlor and the trustee the real beneficiaries of the trust are the aged and deserving poor of Colne. The members of the class who will benefit are unascertained persons within the meaning of s. (2). As to further contentions against the assessments: The income is not exempt as being "income of a charitable institution " within s. 4 (e)
of the Act. terest prior to date of assessment is payable under the Act (s. 55); s. 66 of the Act (considered in conjunction with other sections) does not leave it to the court's discretion whether interest should be exacted; it is merely an enactment establishing the exclusive jurisdiction of the Exchequer Court to deal with the dispute. The question of costs stands in a different position; the appeal should be dismissed without costs. V. THE MINISTER 125 3-Income tax-Deduction in computing assessable income-Income War Tax Act, R.S.C., 1927, c. 97, s. 6-Expenses "wholly, exclusively and necessarily" laid out "for the purpose of earning the income"-Expenditures by brewery company for treating in hotels selling its product, to promote sales of product-Manner of payment-Provincial statutory prohibitions as affecting the question.]-Appellant company brewed and sold beer in Manitoba. Nearly all its shares were owned by R., who also controlled other corporations, each of which owned a hotel in Manitoba, licensed to sell beer. During the taxation period spent $4,206.40 through its officers or employees treating to beer frequenters of said hotels and other licensed hotels and clubs, the beer so purchased being nearly always of appellant's manufacture, though other beer was bought when, occasionally, a person being treated expressed a preference for it. Such treating was practised generally by brewers in the province, as they found it maintained or increased their sales, whereas discontinuance of the practice decreased their sales.
Held (reversing judgment of Maclean J., President of the Exchequer Court of Canada) (Rinfret and Davis JJ. dissenting): The said sum should be allowed to appellant as a deduction in estimating its profits or gains assessable for tax under the
Income War Tax Act, R.S.C., 1927, c. 97.
It was "wholly, exclusively and necessarily laid out or expended for the purpose of earning the income" within the meaning of s. 6 of that Act. With regard to The Government Liquor Control Act,
1928 (Man.)
(as amended), and the
Crown's contention that appellant's policy was an evasion of s. 141 (against canvassing, advertising, etc., except as authorized); and that its procedure was in contravention of s. 84 (1) (4) (against a beer licensee taking anything except current money in payment or directly or indirectly allowing credit, etc.) in view of the facts that, in purchases in hotels controlled by R., instead of cash a chit was handed in and it then became a matter of accounting between the particular hotel corporation and appellant, and that in other hotels sometimes cheques were subsequently given by R. for the purchases:
Held (per The Chief Justice.
Crocket and Kerwin JJ.): This Court should not, in the present proceedings, undertake the responsibility of determining the guilt or innocence of appellant under the provincial enactment; legality of the payments must be assamed.
(Per
The Chief Justice: It was incumbent upon the Crown to establish an actual violation of the statute in respect of the payments it contends should be disallowed.
Moreover, it would seem that the Minister could not enter into the investigation of such an issue: Minister of
Finance v. Smith, [19271 A.C. 193).
Per
Rinfret and Davis JJ. (dissenting)
:
Appellant adopted a system of treating which was largely based upon inducing the proprietors of hotels and clubs to sell on credit in breach of s. 84 (as amended) of
The Government Liquor Control Act,
1928, Man. (s. 181 also referred to); under which Act alone the beer could be lawfully sold to the public; and in view of this the payments for its purchases cannot properly be said to have been "necessarily" made for the puropse of earning the income, within the contemplation of s. 6 of the Income War Tax Act. (If provincial laws, such as the prohibition against the usual advertising and publicity of brewers, which gave rise to this unusual treating system, are not to be taken into account, then the expenditures were of such an abnormal nature in the brewery business that they cannot be said to come within the contemplation of the
Dominion statute as expenses for the purpose of earning income.)
Further, appellant's treating system was, in part at least, to prevent a diminution of the sales of the business from which income would be earned, and therefore its expenditures in question could not be said to be "exelusively" incurred for the purpose earning the income (Ward & Co. Ltd. v. Commissioner of Taxes, 39 T.L.R. 90, referred to).
4-Income taz-"Income" within s. 3 of Income War Tax Act, R.S.C., 1927, c. 97- Clause (b) of said section-Monthly instalments payable under insurance policy.]- By an insurance policy applied for by appellant and dated October 26, 1927, the insurance company agreed that on death appellant's husband it would pay
$700 each month for 120 months and should she survive that period it would continue to pay her $700 monthly during her life.
An option was given to commute all instalments into a single cash payment of $71,400.
The total of the premiums paid during the husband's lifetime, over and beyond dividends aggregating $6,815.15 which accrued on the policy and were applied against premiums, was $37,039.85.
Appellant's husband died on November 23, 1933. Appellant did not elect to take the single cash payment of $71,400; and she was paid the monthly instalments.
For those received in 1934 (in all, $8,400) she was assessed for that year for income tax under the Income War Tax Act, R.S.C., 1927, c. 97. She appealed against such assessment. (reversing judgment of Maclean J., President of the Exchequer Court of Canada, Ex. C.R. 35): The assessment should be set aside. The payments sought to be taxed did not fall within the definition of "income" in s. 3 of said Act, reading that section as a whole and on particular examination of clause (b) there- SHAW REVENUE........................... 5-Income tax-Proceeds from production of oil well charged with payment of costs of drilling paid to contractor-Income-Liability for tax.]-The appellant, and a group of persons who were sublessees of Sterling Pacific Oil Company Limited, were granted a licence subject to certain conditions, to drill an oil well on certain land in the province of Alberta, and to operate the same.
The appellant and his associates assigned this licence and their rights to Sterling Royalties, Ltd., which undertook to perform the conditions of the original lease and to drill the well, paying therefor by the sale of units of production to the public, and to transfer to appellant and associates the remaining units of production. The Sterling Royalties Ltd. then entered into an agreement with one, Head, to drill the well for a sum of $30,000, $15,000 payable in cash and 815,000 to be paid by the company out of the sale of production. The remaining units of production were transferred to the appellant and associates, who agreed that those units, having been pooled for that purpose, should be charged with the payment of the balance of Head's contract price.
The well was completed, and the sum of $16,333.50 was paid by Sterling Royalties Ltd. to Head, and the amount was deducted from the proceeds derived from the pooled units of production. The Commissioner of Income
Tax assessed that amount for income tax purposes, the assessment being confirmed by the Minister of National Revenue.
The appellant then appealed to the Exchequer Court of Canada, which held that the payment to Head by Sterling
Royalties, Ltd., was a payment made at the request of appellant and associates out of income, and that the appellant was liable for income tax in respect of his portion of $16,333.50.
Held, reversing the judgment of the Exchequer Court of
Canada ([19381 Ex. C.R. 235), Crocket and Hudson JJ. dissenting, that, in view of the deeds and written agreements filed at the trial and of the other circumstances of this case, the above sum of
316,333.50 was never, directly or indirectly, received by the appellant and his associates within the meaning of the Income
War Tax Act and cannot properly be treated as taxable income.
6-Schools - Companies designating portion of its assessment in municipality for separate school purposes
-Separate
Schools Act,
R.S.O., 1937, c. 362, s. 66-Notice by company in form
B to city clerk-Apportionment of assessment attacked on ground that portion so designated not ascertained to comply with s. 66 (3) as to proportionate limit-Prima facie validity of notice-Onus of proof.]- The secretary of respondent company, in accordance with a resolution of its directors, forwarded to the clerk of the City of Windsor a notice in form B, provided for by The Separate Schools Act, now
R.S.O., 1937, c. 362, s. 66, requiring that of its assessment be entered, rated and assessed for separate school purposes, and the assessor made his assessment accordingly.
An appeal by appellant board against the assessment for separate school purposes was allowed by the court of revision, and its decision was sustained by Mahon Co. C.J., who, in a stated case made for purposes of appeal, found that the apportionment for separate school purposes made by the directors of the company (the shares of which company are numerous, widely distributed and extensively traded), though made in good faith, was not based on actual knowledge and was " only a guess or an estimate ";
and held that the notice (form B) given by the company should be set aside and declared of no effect, and that all the company's assessments in said city should be assessed, enrolled and rated for public school purposes, as it had not been proved affirmatively that there was compliance with s. 66 (3) of said Act, namely, that the portion (18%) designated for separate school purposes was no greater proportion of the whole of the assessment than the amount of the shares held by Roman Catholics bore to the whole amount of the shares of the company.
His judgment was reversed by the Court of Appeal for Ontario, [19381 O.R. 301, on the grounds that the statute ought, if possible, to be interpreted and applied so as to its manifest intention, provide for an equitable apportionment; on receiving the notice the assessor is bound to assess and return his roll apportioning the assessment; his roll is prima facie valid.; the onus of displacing that situation rests on the attacking party and this onus was not discharged. Appeal was brought to this Court. Held (The Chief Justice and Davis J. dissenting): The appeal should be dismissed. Per Rinfret, Crocket and Kerwin, JJ.: Having regard to the history of the Act and the change made in 1913 (c. 71) to the present form of s. 66 (3), the legislative intention was to free a company desirous of having part of its assessment apportioned to separate school purposes from the difficulty of ascertaining the precise ratio of the holdings of Roman Catholics. give effect to that intention it must be held, on proper construction of the statute, that the company's notice stands and is to be followed unless displaced by evidence that the prohibition in s. 66 (3) has been violated. (Regina Public School District v. Gratton Separate Schood District, 50 Can. S.C.R. 589, discussed; it forms no authority on the point now in (Crocket J. further expressly concurred in the reasons given in the Court of Appeal).
Per the Chief Justice (dissenting): Sec. 66 imposes a strict limit upon the proportion which can be designated by the company in its notice, and a prohibition to the company against exceeding that limit. In giving the notice, the company, though not a public body, is exercising a statutory authority bestowed upon it in the public interest End for a public purpose, and is affected by certain obligations which govern a public body invested with powers the execution of which may prejudicially affect the rights and interests of others; it is bound to act within the limits of the power conferred, and conformably to the procedure laid down 'by the statute; it is bound to exercise the power in good faith for the purposes (those contemplated by the statute) for which the power is given; and in putting the power into effect (following the procedure laid down) it is bound to act reasonably (Westminster v. Londoa
& N.W. Ry. Co., [19051 A.C. 426, at 430).
The statute contemplates a notice given, and only given, after the company has ascertained as a fact that the proportion is not greater than that defined by s.
66 (3); unless that condition be fulfilled, the company cannot be said to be exercising the statutory power in conformity with the directions of the statute. Though there was no suggestion of any conscious dereliction from duty or any motive but an honest desire to conform to the directions of the statute, yet the material (as disclosed by the findings in the stated case)
on which the notice was given formed no substantial foundation for the conclusion of fact which was the essential condition of a valid notice; therefore in giving the notice the company was not acting reasonably in exercise of the power conferred, and therefore the notice was not a valid exercise of the power. The above view would not preclude the establishment before the court of revision that the conditions under which the notice could validly be given did in fact exist;
but there was no such evidence in this case. Per Davis J. (dissenting): The portion of its school rates which a company has a right under the Act to divert from public schools to separate schools is limited to the proportion named in s. 66 (3).
Though it may not know all its Roman
Catholic shareholders, it can, to the extent that it does ascertain them, exercise that right. But, in the absence of actual knowledge of any amount of shares held by Roman Catholics, an estimate shares so held does not satisfy the plain conditions imposed by the Act. (Regina
Public School District v. Gratton Separate
School District, 50 Can. S.C.R.
606, cited; also the history of the legislation discussed, in regard to the construction of the statutory provisions now in question).
In view of the facts as found according to the stated case, the question of onus of proof was not important; but, in a case where it became of importance, the onus should rest upon the party seeking the benefit of the special statutory provision-on the person claiming exemption as a separatist from the general liability for the support of public schools, to prove those exceptional matters that took him out of the general rule (Re Ridsdale and Brush, 22 U.C.Q.B.
122, at 124; Harling v. Mayville, 21
U.C.C.P. 499, at 511; Free v. McHugh,
24 U.C.C.P. at 21; also Parts I and II, generally, of the Act now in question and s. 5 of The Public Schools Act, R.S.O.,
Concluded 1937, c. 357, referred to; also principles as to onus of proof discussed). CITY OF WINDSOR v.
7-See
ASSIGNMENT-To bank of moneys payable under agreement of sale of land. 85 2---as security under s. 88 of the Bank AUTOMOBILES
See 1; 1; BANKS
BANKING - Choses in action - Vendors purchasers - Assignment to bank of moneys payable under agreement of sale of land, as security for oll existing and future indebtedness of the vendor to bank - Validity of assignment - Bank Act (Dom., 1934, c. 24), s3. 75 (2) (c), 79 (1) (b) -Inseverability of purchaser's obligation to pay (under agreement of sale) from vendor's obligation to convey-Rights of third persons having equities against assignor (vendor) in respect of the land.] -One
S., registered as owner of certain land in Vancouver, B.C., entered into an agreement for sale thereof, and subsequently, being indebted to the appellant bank in the sum of S500, executed and delivered to it, "as security for all existing and future indebtedness and liability" of S. to the bank, an assignment of "all moneys now or hereafter payable" to S. under said agreement for sale. The purchaser was notified thereof. The assignment was not registered.
the bank made further loans to S. Certain next of kin of S.'s wife, deceased, had claimed that said land had been purchased with her moneys and that the land and proceeds of sale thereof were held by S. in trust for her estate, and they sued and obtained judgment against S. favour of their claim. Respondent company was appointed administrator of her estate (in place and stead of S.) and title to said land was registered in its name. It notified the bank (which had received no prior actual notice) of its claim that the moneys due under said agreement for sale were the property of said estate; and its claim, and the opposing claim of the bank under said assignment, came (by action and special case) before the court. The Court of Appeal for British Columbia (52 B.C.R. 438) held (reversing judgment of Fisher J., 52 B.C.R. that the assignment to the bank was in contravention of the Bank Act (Dom., 1934, c. 24), BANKS AND BANKING-Continued s. 75 (2) (c) (prohibiting a bank, except as authorized by the Act, from lending upon the security of lands), unless it could be said to come within s. 79 (1) (b)
(empowering a bank to take, by way of additional security for debts contracted to it in the course of its business, the rights of vendors under agreements for the sale of property); that it did not come within s. 79 (1) (b)
except with respect to the indebtedness of 8500 for which it was taken as additional security, but of which sum the bank had later received payment; that a bank cannot take such an assignment as security for an anticipated future indebtedness; and in respect to which it purported to be security for any future indebtedness the assignment was invalid.
The bank appealed.
Held: The bank had no right, under the assignment, to any moneys now in question payable under the agreement of sale.
Per The Chief Justice: The assignment could not take effect in virtue of said s. 79 (1) (b). That enactment is a special provision dealing with a particular case and declares the law with regard to that case.
Per Crocket and
Kerwin JJ.: The assignment was invalid under said s. 75 (2) (c); the obligation of the purchaser to pay the purchase price under the agreement of sale being inseparable from the vendor's obligation to convey the land. Per Davis J.: The instrument taken by the bank was an invalid assignment; the legal chose in action which the bank sought to obtain (merely the debt of the purchaser) could not in point of law be separated from the assignor's obligation to convey upon payment of the debt.
(As to a vendor's interest, reference made to Simpson v.
Smyth, 2 U.C. Jur. 162, at 193, and
Parke v. Riley, 3 U.C. E. & A. Rep. 215, at 231-2).
Per Hudson J.: Under said ss.
75 (2) (c) and 79 (1) (b), the assignment was invalid in respect of all advances subsequent to its making. Further, in so far as the purchaser's covenant for payment in the agreement of sale could be assignable at all, the assignee would take subject to all existing equities (authorities referred to, including Cockell v. Taylor,
15 Beav. 103, at 118, In re Morgan, 18 Ch.
D. 93, at 103); the assignor was a trustee in respect of the land and of any proceeds of sale thereof, and the bank took subject to this trust, and there was nothing operating against respondent in the nature of an estoppel nor any rights acquired by the bank through a priority of registration; in this view the assignment was never a good assignment as against respondent's equitable right to the proceeds.
TRUST ........
BANKS AND BANKING-Continued 2-Security under s. 88 of The Bank Act (now 1934, c. 24, Dom.)-Validity- "Owner"-Pulpwood-Description - Conversion-Basis of damages.]-The appellant bank claimed against the respondent company the unpaid balance of amounts which the bank had advanced to A. to assist A. in pulpwood operations to fulfil two contracts to sell and deliver pulpwood to respondent. The bank had taken from A. the form of security under s. 88 of the Bank Act (now 1934, c. 24, Dom.) and assignments of the moneys payable by respondent under the contracts. The bank sued, under the security and a-signments, as assignee of A's rights against respondent and alternatively for damages for conversion.
Respondent, among other defences, challenged the validity of the security under the Bank Act, claimed certain credits and priorities, and denied that any further moneys were payable under the contracts. The contracts between A and respondent were dated October 31, 1933, and April 26, 1934. The pulpwood to be cut was on Crown lands on which a company,
New Lepreau Ltd., held licences to cut timber. A. was president of that company and held a majority of its shares, nearly all the remaining shares being held by respondent.
The contract of October 31, 1933, was first made in the name of New Lepreau Ltd. but later A's name was substituted.
Barry, C.J. K.B.D., gave judgment for the bank for the amount of its claim, $8,000 and interest. The Supreme Court of New Brunswick, Appeal Division, 12 M.P.R. 219, reduced the judgment to $192.02.
It held that, so far as the bank's case was based on s. 88 of the Bank Act, it failed, as A was not the "owner" entitled to give security within s. 88 (the pulpwood being, so far as the evidence disclosed, the property of New Lepreau Ltd.); that (apart f:om s. 88) on A's assignments to the bank of the moneys payable by respondent under the contracts, the bank should recover, but, on the proper debits and credits, the amount recoverable was only $192.02.
The bank appealed. Held (Kerwin J. dissenting in part): The judgment at trial for the bank for the amount of its claim should be restored. A's assignments given as security under s. 88 of the Bank Act were valid under s. 88.
(Per Davis and Hudson JJ.: A. had at all times a qualified ownership or interest in the pulpwood as soon as it was cut, sufficient to entitle the bank to take from him security under s. 88).
(Per Kerwin J.: The security under a. 88 must be given by the owner.
Though down to a certain date the assignments by A. to the bank as security under s. 88 described the wood as
"all the rough or draw shaved spruce and fir pulpwood" on the described location, omitting "or sap peeled" spruce and fir pulpwood (inserted in later assignments;
and also inserted in A's first and subsequent applications for credit and promises to give security), it was held that all the spruce and fir pulpwood (including sap peeled wood) got out by A. on the described location was included in the pledges to the bank (affirming the trial judge, who held that the particular designations only served to indicate the season of the year in which the wood is cut).
As to respondent's claim that, should the bank's security be held valid under s. 88, respondent's liability, if any, rested in a claim for conversion, and that damages should be fixed by ascertaining the value of the pulpwood at the time and in the condition that respondent took possession of it, involved in which was the question of certain expenditures by respondent:
Held (Kerwin J. dissenting on this point), that respondent was bound to pay the full amount of the bank's advances to A.
Per Cannon, Crocket and Hudson JJ.: A's assignments as security under s. 88 being valid, and the bank having kept respondent fully informed of every step in its negotiations with A., there is no right in respondent to deduct from the amount of the bank's advances any moneys which respondent paid to A. or anybody else for supplies, wages, stumpage, or any other purpose in pursuance of the terms and conditions of its agreement with him.
Per Davis and Hudson JJ.: Practical difficulties arise in any attempt to fix value at any particular stage; respondent took possession of the wood with full knowledge of the bank's position and rights and destroyed the identity of the wood in using it in its mill operations; it is respondent's knowledge that is the determining factor in this case; A's evidence was that all the moneys got from the bank were actually used in the woods operations; the evidence does not establish that the actual value of the wood when respondent took possession of it was less than the amount of the bank's advances against it. Kerwin J. dissented as to the amount recoverable, holding that respondent was liable in damages for conversion, the damages being the value of the logs at the time and place of conversion; that in fixing such damages there should be deducted, from the ascertained value of the logs in the state in which they were to be delivered, at the place of delivery, under A's contracts with
BANKS AND BANKING-Concluded respondent, certain sums expended by respondent in bringing the logs to that state at that place, being for wages and supplies in such operation, stumpage, workmen's compensation, taxes, etc., rent for housing men, and freight: (Reid v. Fairbanks, 13 C.B. 692, Morgan v. Powell, 3 Q.B. 278, Burmah Trading Corpn. Ltd. v. Mirza Mahomed, L.R. 5 Ind. A. 130, at 134, cited).
On above basis he fixed the bank's claim at $4,788.62 and interest thereon from the date when respondent received the last of the logs. BOARD OF RAILWAY COMMISSION- ERS
See 1, 2. BROKERS-" Short" sale for customer- Non-compliance by customer with brokers' requirements to protect speculative margin account-Purchases by brokers to cover-Claim by brokers against customer for debit balance in the account.]-In the case of a "short" sale of shares of stock by a broker for his customer, if the customer fails to comply with the broker's reasonable requirements to protect his speculative margin account against an adverse balance, the 'broker is entitled from time to time to do what is reasonable under the existing circumstances to protect the account against loss, having regard to the prevailing prices of the stock.
(Samson v. Frazier, [19371 2 K.B. 170, and Morten v. Hilton therein cited and reported in foot-note). In the present case, the judgments at trial and on appeal for recovery by the brokers of balance of account, on the basis of the loss represented by subsequent purchases by the brokers to cover the short sale and charged to the customer, were sustained. v. & Co.............. 2-See 2; 1. CHAMPERTY
CHOSES IN ACTION - Assignment to bank of moneys payable under agreement of sale of land, as security for all existing and future indebtedness of the vendor to bank-Validity of assignment-Bank Act (Dom., 1934, c. 24), ss. 75 (2) (c), 79 (1) (b)-Inseverability of purchaser's obligation to pay (under agreement of sale) from vendor's obligation to convey - Rights of third persons having equities against assignor (vendor) in respect of the land................................. CIVIL CODE-Arts. 615, 638, 684 (Real
2- Art.
(Offences and quasioffences) .........................
3-Arts. 2188, 2233, 2261,
2262, 2267
(Prescription) .....................
CODE OF CIVIL PROCEDURE-Art.
50 (Jurisdiction of the Courts)...... 458
2- Arts
268,
£69
(Continuance of suits) .............................
3- Art. 421 (Trial by jury)....... 405
4- Art. 1177 (8) (Petitions in revocation of judgment) ...................
COMMON BAWDY HOUSE
COMPANIES-Assessment and taxation- Schools-Company designating portion of its assessment in municipality for separate school purposes-Separate Schools Act,
CONFLICT OF LAWS
CONSPIRACY - Duress - Action for alleged obtaining of property by threat of criminal prosecution-Jury's findings- Ground of action-Substance of the claim
-Remedy.]-Plaintiff, who had been the general manager and a shareholder of a company, alleged that defendants, one of whom was the president and a large shareholder of the company, entered into an unlawful conspiracy to obtain from him a transfer of his shares in the company by threats of criminal prosecution;
that pursuant to the conspiracy defendants made such threats and, induced thereby, he delivered to defendants a transfer of the shares as demanded;
and he claimed recovery of their value. Defendants denied plaintiff's allegations and they alleged breaches of duty in plaintiff's management of the company, resulting in loss to it, and that plaintiff surrendered his shares in satisfaction of claims on behalf of the company for such loss. At the trial two totally different stories in the
CONSPIRACY-Concluded evidence went to the jury, who, in answers to questions submitted, found in favour of plaintiffs allegations.
Judgment was given to plaintiff for the amount awarded as damages by the jury, being the value of the shares plus interest.
An appeal by defendants to the Court of Appeal for Saskatchewan was dismissed, [19381 1 W.W.R. 241. Defendants appealed to this Court. Held: The appeal should be dismissed. Per The Chief Justice, Crocket and Davis JJ.: There was evidence to justify the jury's findings. These findings were in effect that there was an intentional design on defendants' part to obtain from plaintiff, without any valuable consideration, a transfer of his shares and that the same was demanded and obtained by menaces and illegal extortion. This was quite. sufficient to answer the argument that a mere threat in itself is not unlawful. A threat to prosecute may not of itself be illegal where a just debt actually exists and where the transaction between the parties involves a civil liability as well as, possibly, a criminal act (Flower v. Sadler, 10 Q.B.D. 572, at 576). Here the findings plainly negatived defendants' story that the transaction was merely the legitimate compromise of a claim for damages for breach of duty. Moreover, no question of plaintiff's civil liability to the company set up by defendants was asked of the jury and defendants had no finding that there was any such liability. Per Davis J.: Remarks with regard to conspiracy as a ground of action. Inclination expressed to the opinion that civil conspiracy is not properly applicable to cases where physical property is sought to be recovered on the ground of duress and is really only relevant in cases of general or undefined rights, such as a right to trade, as distinguished from defined rights, such as the right to property.
Doubt expressed whether the present case properly lies in conspiracy.
But, whether or not plaintiff's remedy was properly laid as an action in conspiracy, the substance of the claim was that plaintiff had been maliciously and unlawfully deprived of his property by duress and coercion on defendants' part; that was the issue that was contested at the trial and that was the issue that really went to the jury. Kerwin and Hudson JJ. adopted the reasons of Mackenzie J.A. in the Court of Appeal, [19381 1 W.W.R. at 244-260. v. FuLm........... CONSTITUTIONAL LAW "Eskimo"--Whether Eskimo are Indians within head no. 24 of s. 91 of the B.N.A. Act.]-Eskimo inhabitants of the provcontemplation of head no. 24 ("Indians CONSTITUTIONAL LAW-Concluded and Lands Reserved for Indians") of section of the British North America Act.
S. 91 (24)
B.NA.
ESIMO
CONTRACTS-Crown-Petition of right to recover from the Crown sum paid in settlement of prior action by the Crown on claim for revenue taxes-Suppliant claiming refund under alleged oral condition of settlement-Evidence-Letter from
Minister of the Crown subsequent to settlement, not enforceable as an agreement binding the Crown.1-Appellant company sought to recover from the
Crown, in right of the Dominion, a sum paid in settlement of a prior action brought by the Crown to recover revenue taxes alleged to have been due and payable by appellant. In the present suit, appellant claimed that said settlement had been subject to the (oral) condition that a refund would be made to appellant if it were later established that it was not liable for the taxes. At the time of the settlement there was pending a similar action by the Crown against another company, which action was ultimately decided largely against the Crown; and appellant contended that on the application of the law therein determined to the facts in appellant's case, it would not be liable for the taxes claimed against it in the action in which the settlement had been made, and that under the alleged condition to the settlement it was now entitled to a refund. Subsequent to the said settlement, in reply to a letter from the member of Parliament for the district in which appellant carried on business, the Minister of National Revenue wrote to said member that "we do not desire to collect any taxes not properly due the
Crown, and if it can be shown that any overpayment has been made
*
*
* if it is established that they [appellant]
were not liable for any tax that they may have paid, you can assure them that refund will be made." There was no reference in said correspondence to any alleged condition of the settlement (and appellant did not base a claim upon the Minister's said assurance as an independent agreement). Held: On the evidence, appellant had failed to establish that the settlement was subject to the alleged condition.
Held also: The minister's said letter could not be a basis for claim by appellant.
The moneys paid by appellant became part of the consolidated revenue fund of
Canada and it would require a statute, or something of like force, to clothe the minister of a department with authority to agree to repay to a subject moneys voluntarily paid by the subject in settlement of an action brought by the Crown for payment of taxes alleged to have become due and payable.
The Minister's assurance in said letter, once it was determined that it was not confirmation of a condition to the original settlement, could not be sued upon as an independent agreement, because it was not competent for the Minister to fetter the future executive action of the Government. Judgment of Maclean J., President of the Exchequer Court of Canada, [1937] Ex. C.R. 99, dismissing appellant's petition of right, affirmed.
2--Gaming-Speculation on grain exchange-Right to recover on promissory notes given by speculator for amounts advanced to enable him to meet marginal requirements-Nature of the speculating transactions
His speculations were carried on through plaintiff, a company doing a general banking business and operating a grain elevator at Lang. Defendant gave verbal orders to plaintiff's manager to buy or sell for future delivery, which orders plaintiff transmitted to Winnipeg brokers who carried them out on the Exchange, and forwarded to plaintiff "confirmation memoranda," which stated (inter alia) that "all transactions made by us for your account contemplate the actual receipt and delivery of the property and payment therefor."
A by-law of the Exchange provided that "under all contracts of sale of grain for future delivery the actual receipt and delivery of the property and payment therefor is contemplated and may be enforced."
Purchase and sale slips showing details of each transaction were also sent to plaintiff. Plaintiff received a share of the brokers' commission but had no other interest in the transactions. The trades were carried on margin.
Plaintiff sent moneys for margins and charged them to defendant. In the beginning of 1930 defendant had not sufficient money to his credit with plaintiff to meet margin requirements and thereafter plaintiff advanced him money therefor, taking his promissory notes for the amounts, which notes were later discharged and replaced by other notes, on which plaintiff sued. The trial judge held that, upon the evidence, defendant was gaming in futures on the rise and fall in grain prices without any intention of actually dealing in the commodity itself, that plaintiff should be charged with DEX knowledge of his real purpose, which was an illegal purpose, and aided and abetted him therein by purposely providing the money for margining his account from time to time as required, that under the combined effect of ss. 231 and 69 of the
Criminal Code the parties were principals in the commission of the offence and plaintiff could not recover.
His judgment was affirmed by the Court of Appeal for Saskatchewan (with variation as to
[19381 1 W.W.R. 22.
Plaintiff appealed. Held: Plaintiff was entitled to recover.
The contracts entered into for defendant were binding, calling for delivery and payment, and were so intended and understood by the parties thereto;
Exchange, to "close" his transactions by turning over the fulfilment of his obligations to others by buying or selling grain
(by legally binding contracts) before his time for fulfilment.
Plaintiff's advances were to enable defendant to carry out binding obligations undertaken on his behalf, and were not for an illegal purpose. Ironmonger v. Dyne, 44 T.L.R. 497;
Forget v. Ostigny,
[18951
A.C.
318;
Thacker v. Hardy, 4 Q.B.D. 685; Franklin v. Dawson, 29 T.L.R. 479; and Woodward v. Wolfe, 155 T.L.R. 619, cited.
further, per The Chief Justice (Davis J.
concurring) : Even assuming that there was illegality in defendant's intention to
"close" a transaction in manner aforesaid, and even assuming that the Winnipeg brokers (who financed the transactions, i.e., carried them on margin) were through knowledge thereof particeps criminis (which was not shown), yet the repayment of said brokers' loans (loans made to finance the transactions as aforesaid)
was not in itself an illegal act within s. 69 or s. 231 of the Cr. Code (the illegal act, if any, consisted in the purchase or sale), and an advance for the purpose of such repayment (as the advances by plaintiff for the purpose of replenishing defendant's margin) may be recoverable and the debt thereby created may constitute good consideration for a promissory note.
burden of establishing illegality was on defendant.
In order to charge plaintiff with aiding and abetting under s. 69,
Cr. Code, it was for him to show that the advances in respect of which the notes were given were made in such circumstances as to constitute aiding and abetting a specific illegal purchase or sale, and this was not shown. Per The Chief
Justice (Davis J. concurring): Beamish v. Richardson, 49 Can. S.C.R. 595, and
Maloof v. Bickell, 59 Can. S.C.R. 429, discussed and explained.
Beamish v. Richardson was not a decision (nor, indeed, was Maloof v. Bickell) upon the construction and effect of s. 231, Cr. Code, though opinions thereon were expressed. Misconceptions by provincial courts with regard to the effect of Beamish v. Richardson pointed out.
Opinions expressed in that case touching the construction or effect of s. 231 formed no part of the ratio decidendi, and, however valuable and weighty as opinions, they are not of binding authority (Davidson v. McRobb, [19181
A.C. 304, at 322; Cornelius v. Phillips, 11918] A.C. 199, at 211; Leeds Industrial v. Slack, [19241 A.C. 851, at 864; East London Railway Joint Committee v. Greenwich Union Assessment Committee, [19131 1 K.B. 612, at 623-4). Further, the evidence in the present case (discussed) does not bring the facts of this case within the opinions expressed in Beamish v. Richardson (as touching the application of s. 231) with regard to the facts there in question.
Co. v. EDWARDS..... 135 3--Covenant in restraint of trade Whether binding-Principles applicable- Nature of covenant - Reasonableness - Circumstances-Onus.1-Both respondents, Connors Bros. Ltd. and Lewis Connors & Sons Ltd., packed and sold sardines and other fish in the Bay of Fundy area in New Brunswick.
By an agreement of June 9, 1925, Connors Bros. Ltd. agreed to purchase on demand within a certain time appellant's shares in Lewis Connors & Sons Ltd. Appellant was engaged as manager of the latter company. By an agreement of October 2, 1926, appellant sold his shares in Lewis Connors & Sons Ltd. to Connors Bros. Ltd., and his employment as manager was terminated. In this agreement, and in the earlier agreement in practically the same terms, appellant covenanted that he would not "directly or indirectly engage in any sardine business whatsoever Dominion of Canada."
In April, 1937, appellant claimed that said covenant was not binding, being such as should not be enforced in restraint of trade, and took proceedings, by way of originating summons, to have the question determined. Held (reversing judgment of the Supreme Court of New Brunswick, Appeal Division,
13 M.P.R. 68, and judgment of Baxter C.J., 12 M.P.R. 102) (Crocket and Kerwin JJ. dissenting): The said quoted covenant should be declared to be unenforceable. Per The Chief Justice, Davis and Hudson JJ.: A covenant in restraint of trade is prima facie invalid; the onus is on the person who seeks to enforce it to show that it is valid-one which was reasonably necessary for his protection at the time when it was entered into (and is not otherwise contrary to public policy).
The nature of the business, the position of the covenantor, and the scope of the covenant must be considered.
In the present case the appellant, brought up from boyhood in the sardine business, was only 37 years of age at the date of the covenant, which was restrictive for his lifetime. Upon all the facts and circumstances in evidence (and assuming that the words "directly or indirectly engage in the sardine business"
are capable of precise definition and are not so vague as to be void for uncertainty), the respondents had not shown that the terms of the covenant could pass the test of reasonableness as between the parties.
Vancouver Malt v. Vancouver Breweries,
[1934] A.C. 181, at 189-190, and Gilford
Motor Co. v. Home, [1933] 1 Ch. 935, at
958, referred to. Per The Chief Justice:
In exacting the stipulation, the controlling shareholders of Connors Bros. Ltd. were not chiefly applying their minds to the protection of the business of Lewis Connors & Sons Ltd. or of themselves as purchasers of shares in that company;
their aim was to eliminate competition and get control of the business of Canadian sardines in themselves through Connors Bros Ltd. and it was the business thus controlled with respect to which they were protecting themselves; therefore the agreement itself provides no evidence of serious weight as to its reasonableness in respect to the protection of the business of Lewis Connors & Sons Ltd.
It was incumbent upon respondents to show clearly-and this they failed to do-facts from which it could be determined (as a question of law) that the comprehensive restriction was reasonably necessary to protect the interest acquired.
(As ancillary to a contract of employment, the stipulation, on its face, was clearly unreasonable).
Vancouver Malt v. Vancouver Breweries, [19341 A.C. 181, at 190- 191; British Reinforced Concrete Co. Ltd.
v. Schelff, [1921] 2 Ch. 563, at 574-576, and other cases, referred to. The Chief
Justice also discussed (but expressed no final opinion upon) the question as to detriment to the public interest. Having regard to ss. 2 (1) (b), 2 (1) (c) (v) (vi)
and 32 of the Combines Investigation Act
(R.S.C., 1927, c. 26) (s. 498 (c), Cr. Code, also referred to), it may not be that enhancement of prices is the only relevant form of public detriment in this country.
Per Crocket and Kerwin JJ. (dissenting)
:
Appellant's covenant was not one in gross but was one to be gauged by the principles applicable to a covenant exacted by the purchaser of the good-will of a business. (These principles discussed, and cases cited. Nordenfelt's case, [1894] A.C. 535, is applicable to the present case). In the circumstances of the case, the restraint gave to Connors Bros. Ltd., with respect to the business and good-will purchased by it, nothing more than reasonable protection against something which it was entitled to be protected against. In no respect (upon the evidence)
could the operation of the covenant be said to be injurious to the public.
Appellant is barred from engaging in the sardine business in Canada as owner, in partnership with others or as a shareholder of an incorporated company engaged in such business in Canada.
(It was held inadvisable to answer in the present proceedings a question raised by the originating summons, but not answered in the courts below, as to whether appellant was barred from working at that business in Canada as an employee).
v. CoNNoRs 4---Quit claim deed given by mortgagor to mortgagee and right given to mortgagor to purchase within three months by pay-ing amount of mortgage-No payment or tender within said period-True nature and effect of the transaction-Evidence- Mortgagor's contention that relationship of mortgagor and mortgagee still subsisted-Onus in seeking to enforce option- Claim that existing lease made by owner relieved option-holder from strict fulfilment of conditions.]-Plaintiff, a mortgagor in default, executed a quit claim deed of the mortgaged land to defendant, the mortgagee, who was then in possession under proceedings taken in a foreclosure action.
A letter from defendant's solicitors to plaintiff's solicitor agreed that plaintiff was to have the right for a period of three months to purchase the land upon payment of the mortgage, including all interest, taxes and costs up to date. There was no payment or tender within said period. In an action for redemption, plaintiff attempted to show that by the true arrangement the mortgage debt remained undischarged and the period for redemption extended three months; that the relation of mortgagor and mortgagee still subsisted. Held: On the evidence, plaintiff's said attempt must fail; the true arrangement must be held to be that disclosed by the documents, namely, that the land became vested in defendant in fee simple in possession free from the equity of redemption, but that plaintiff had the option of re-purchase according to the terms in said letter. It is true, in principle, that a conveyance absolute in form may be shown even by parol evidence to have been, according to the real agreement between the parties accepted as security only, and the Statute CONTRACTS--Concluded of Frauds will not prevent the proof of this by parol evidence (Flynn v. Flynn,
70 D.L.R. 462; Wilson v. Ward, [1930]
S.C.R. 212); but for this purpose convincing evidence is always required; and in the circumstances of the present case it behooved plaintiff to adduce evidence of the most cogent character (Barton v.
Bank of New South Wales, 15 App. Cas.
379, at 381).
A plaintiff invoking the aid of the court for the enforcement of an option for the sale of land to him must show that the terms of the option as to time and otherwise have been strictly observed; the owner incurs no obligation to sell unless the conditions precedent are fulfilled or as the result of the owner's conduct the holder of the option is on some equitable ground relieved from the strict fulfilment of them (Cushing v.
Knight, 46 Can. S.C.R. 555; Hughes v.
Metropolitan Ry. Co., 2 App. Cas. 439;
Bruner v. Moore, [1904] 1 Ch. 305).
the present case, plaintiff relied upon the existence of a lease made by defendant while mortgagee in possession and before the date of the quit claim deed and creation of the option.
Whatever the relevancy of this lease on a question of title if an obligation on defendant's part to sell had arisen, it could not affect the conditions of the option, because until these conditions were fulfilled no obligation to sell could arise and the relation of vendor and purchaser did not come into existence
(Cushing v. Knight, supra).
Moreover, it was highly probable, in view of the terms of the lease, that, had the conditions of the option been complied with, this objection would have been removed.
EMPEY...................
5-See
1;
CONVERSION-Basis of damages.. 186
COURTS (JURISDICTION)
See 2, 3, 4;
EvIDENCE 1; 3;
2; NEo- 2;
COVENANT
RESTRAINT
TRADE - Whether binding - Principles applicable-Nature of covenant-Reasonableness-Circumstances-Onus..... 162
CRIMINAL LAW-Evidence-Charge of receiving stolen goods accused-Good faith-Lack of knowledge
CRIMINAL LAW-Continued of goods being stolen-Whether explanation by accused is a reasonable one-Discharge by the Crown as to onus of proving accused's guilt-Duty of trial judge.] appellant was charged with the offence of receiving stolen goods and was found guilty. At the trial, the appellant and some other witnesses were heard in support of appellant's explanation that he had bought these goods in good faith and without any knowledge that they were stolen effects. The appellant appealed to the appellate court on the ground that his explanation was a reasonable one, that the Crown had failed to discharge the onus of proving beyond a reasonable doubt the accused's guilt and that the explanation was equally plausible as to his innocence or to guilt. The majority of the appellate court affirmed the conviction, one judge dissenting on the ground that there was no evidence upon which the appellant could be convicted. Held, that the appeal should be dismissed. The question to which it was the duty of the trial judge to apply his mind was not whether he was convinced that the explanation given was the true explanation, but whether the explanation might reasonably be true; or, in other words, whether the Crown had discharged the onus of satisfying the trial judge beyond a reasonable doubt that the explanation of the appellant could not be accepted as a reasonable one and that he was guilty- Rex v. Schama C.A.R. 45); Rex v. Searle C.C.C. 128) and Re Ketteringham (19 C.C.C. 159) ref. and app.-Under all the circumstances of the case, it cannot be held that there was no evidence that the explanation offered by the appellant was one that the trial judge might not find could not reasonably be accepted as true.
2--"
Common bawdy house" (Criminal Code, s. B25).1-Accused had rented a room and there had intercourse with men who paid her. Some called at the room and others were accosted by her on the street. No woman except accused had intercourse with men in the room. Held: Accused kept "a common bawdy house" within the definition of that term in s. 225 of the Criminal Code. 3--Charge of murder-Accused acquitted at trial-Appeal by the Crown under section (4) Cr. C.-New trial ordered -Non-direction by trial judge on grounds not raised at the trial-No exception taken by the Crown to the trial judge's charge-Whether section 1013 (4) Cr. C. applicable.]-The appellant was tried on a charge of having murdered one Germaine Rochon in Montreal.
The case presented by the Crown against the CRIMINAL LAW-Continued accused at the trial was that he had intentionally shot the deceased with the intention to kill her. The defence relied upon the testimony given by the appellant himself, that the shooting was the result of an accident.
instructed the jury, that if they believed the account given by the accused he was entitled to be acquitted. Such instruction was accepted as satisfactory by counsel for the Crown and for the accused and that it correctly formulated the single issue of fact which both counsel put before the jury as the sole issue upon which it was their duty to pass.
jury rendered a verdict of not guilty.
The Crown appealed to the appellate court of Quebec, under the provisions of section 1013 (4) of the Criminal Code. A new trial was directed by that court on the ground that the trial judge had erred in his charge by omitting to instruct the jury, first, that from certain facts disclosed by the testimony of the appellant, the jury might have convicted the accused of murder under section 259 (c and d)
Cr. C., and second, that the accused having in his charge a loaded firearm and being bound to take reasonable precautions to avoid danger to human life, the jury might have convicted the accused of manslaughter under sections
247 and
252 (2) Cr. C. These grounds, raised by the Crown before the appellate court, were not considered nor suggested at the trial. The accused appealed to this Court.
Held that the appeal should be allowed, the order granting a new trial be set aside and the verdict of the jury acquitting the appellant be restored.
Subsection 4 of section 1013 Cr. C. was not intended to confer jurisdiction upon an appellate court to set aside a verdict of acquittal on a trial for murder in such circumstances as those in this case and so entitle the Crown to an order for a new trial in order to present an entirely new case against the accused.
THE KING....
4- Champerty-Maintenance-Officious or improper intervention-Stirring up of strife-Elements necessary to constitute these crimes.]-The appellant was convicted of maintenance and champerty and fined five hundred dollars; and the conviction was affirmed by a majority of the appellate court. The facts of the case are undisputed, the accused having called no evidence. One Lallemand was injured and incapacitated for a considerable period. He did not know the name of a single witness who could strengthen any claim he might make against the Montreal Tramways
Company, the party he considered responsible for his injury; and for that reason, his attorneys could not advise action.
CRIMINAL LAW-Continued
Some time later, Lallemand's wife approached the appellant, who undertook to search for those who might have seen the accident.
Lallemand and his wife having no money to pay the appellant for his services, it was agreed that the amount and settlement of his remuneration should await the conclusion of the litigation; but there was no bargain that he should receive a share of the proceds. Then Lallemand himself chose and retained an attorney, who commenced and continued an action against the Montreal Tramways Company without any contribution from Lallemand or the appellant towards the expenses. In the meantime, however, the appellant had discovered certain witnesses whose testimony was made available to Lallemand's attorney. The action was finally settled upon payment of $6,000 by the company to the attorney. At Lallemand's direction, the expenses were paid out of that sum, including the amount at which the appellant's account was finally fixed. that, under these circumstances, the appellant was not guilty of the criminal offence of maintenance.
In order to make a person liable as a maintainer, either civilly or criminally, that person must have intervened officiously or improperly. There must exist officious interference, introduction of parties to enforce rights which others are not disposed to enforce and stirring up of strife. In this case, Lallemand was disposed to enforce his claim, and in fact had already consulted attorneys before his wife approached the appellant; and the appellant did not intervene on his own initiative and took no action that may be in any way described as stirring up strife and litigation. Held, also, that the appellant could not be convicted of the crime of champerty, as he did not carry on the litigation at his own expense nor did he bargain for a share of the proceeds. Review of cases and text books on "maintenance." v. THE KING............ 5- Contracts-Gaming-Speculations on grain exchange-Right to recover on promissory notes given by speculator for amounts advanced to enable him to meet marginal requirements-Nature of the speculating transactions-Intentions, Knowledge, parties-Legality illegality of the transactions or advances -Cr. Code, ss. 231, 69-Evidence-Onus of proof ........................... See CoNrAcrs 2.
Trial on charge of manslaughter through motor car accident-Alleged admission by accused to police officer that he was driver of car-Highway Traffic Act, R.S.O., 1927, CRIMINAL LAW-Concluded c. 251-Sec. 88 (5) (as enacted by 20
Geo. V, C. 47, s. 6)-Privilege thereunder
-Construction, application-Sec. 40 (1)- Criminal Code, s. 285 (2)-Trial-Procedure-Proper practice-Trial judge deciding there is no evidence to go to jury, withdrawing case from jury and giving judgment for acquittal-Juridiction on appeals-Criminal Code (R.S.C., 1927,
86, as amended), ss.
1018 (4),
1025(8) .......................
CROWN-Contract-Petition of right to recover from the Croton sum paid in settlement of prior action by the Crown on claim for revenue taxes-Suppliant claiming refund under alleged oral condition of settlement-Evidence-Letter from Minister of the Crown subsequent to settlement, not enforceable as an agreement binding the Crown........
DAMAGES-Breach of agreement by defendants in not calling meeting at which a favourable vote on a certain question was necessary to enable plaintiff to exercise option given him conditionally by defendants-No evidence of reasonable probability of favourable vote, had the meeting been called-Value to plaintiff option lost-Judgment for nominal damages.]-Appeal - "Amount or value of the matter in controversy in the appeal" (Supreme
Court Act, R.S.C., 1927, c. 85, s. 89).
Plaintiff sued to enforce rights claimed under an agreement made in 1934.
1931 M. Co. had transferred to plaintiff
350,000 shares which it held in P. Co.
It appeared that this transfer was made without the authority of the shareholders of M. Co. being given in accordance with the terms under which M. Co. held the shares. By the agreement now in question defendants, who were directors of M. Co., bought from plaintiff
240,000 shares of P. Co. at 7 cents a share and gave an option to plaintiff to repurchase 140,000 of said shares at 8 cents a share within nine months, but this option was "contingent upon the fact"
that defendants were to call a meeting of the stockholders of M. Co. "within a reasonable time after the date of this agreement" and submit to that meeting the question of ratifying said transaction of 1931, and if at said meeting the holders of 51% of the shares of M. Co. did not vote for such ratification, " the option hereby given shall become and be deemed null and of no effect." It was also provided that when and as soon as defendants received proxies from stockholders holding of the issued and outstanding shares
DAMAGES-Continued of M. Co. for voting at .the meeting, defendants would cause a meeting to be called to consider such ratification. No meeting was called nor was the option exercised within the nine months. trial judge held that under the agreement the duty of obtaining proxies and calling the meeting fell primarily upon defendants and, as plaintiff could not exercise the option until the meeting was called and the requisite approval obtained, plaintiff was entitled to a declaration that the option was still in force and would remain so for a fixed period to enable the meeting to be held, and to that extent the agreement might be reformed. On appeal by defendants, the Court of Appeal for Ontario held against the relief granted at the trial, but held that under the agreement defendants were obliged to call the meeting within the option period of nine months, that their failure to do so was breach of the agreement in a matter vital to its whole operation, that by such breach plaintiff had lost the chance of an approval of the holders of of the shares within said nine months, and had lost the option, and gave judgment for damages with a reference to ascertain the amount.
Defendants appealed.
Held: There was an obligation on defendants to call the meeting, as held in the Court of Appeal, but the judgment should have been for nominal damages only. Plaintiff had not developed at the trial any claim for damages on the basis of a breach of contract in not calling the meeting; there was no evidence that there was any reasonable probability that if the meeting had been called within the nine months a favourable vote of the holders of of the shares could have been obtained; the plain inference from the evidence was that a favourable vote could not have been obtained. Further (per the Chief Justice and Davis J.), even had the meeting been called and a favourable vote obtained, plaintiff's option, in view of the evidence as to the market value of the shares, was not of any real value to him. (Per Rinfret, Crocket and Kerwin JJ.: Chaplin v. Hicks, [19111 2 K.B. 786, and Carson v. Willitts, 65 Ont. L.R. 456, discussed; those cases afford no authority justifying the awarding of any more than nominal damages for the loss of a mere chance of possible benefit except upon evidence proving that there was some reasonable probability of the plaintiff realizing therefrom an advantage of some real substantial monetary value. Sapwell v. Bass, [1910] 2 K.B. 486 also cited). There had been a motion to quash the appeal for want of jurisdiction. plaintiff had claimed in his pleadings DAMAGES-Concluded
(inter alia) "$50,000 as damages for breach of contract," and the record contained an affidavit on behalf of defendants on information and belief that plaintiff's counsel intended to produce evidence, on the reference, to establish damages much in excess of $2,000.
Court (in a judgment given prior to judgment on the merits) held (Crocket J.
not concurring) that defendants had not established that " the amount or value of the matter in controversy in the appeal exceeds the sum of $2,000 " (Supreme
Court Act, R.S.C., 1927, c. 35, s. 39) and in the absence of leave to appeal the appeal could not be entertained. (Having regard to circumstances in the case, opportunity was given to ask the Court of
Appeal for such leave, which was granted).
HYMAN..........
2- Action for, brought under Art. 1056
C.C.-Trial by jury.................
DENTISTS
DICTA
DURESS-Action for alleged obtaining of property by threat of criminal prosecution
-Jury's findings-Ground of action-Substance of the claim-Remedy....... 235
EASEMENTS-Right of view-Wall not common-Lights or windows-Wall resting on two adjoining properties-One owner not having acquired title to rights of mitoyennetd-Articles 515, 688 and 584
C.C.]-Lights or windows, as described in article C.C., can only be made in a wall "not common adjoining the land of another."-When a wall has been erected as to one half on an adjoining property and has all the characteristics of a wall designed to become common, even though it does not appear that the owner of the adjoining land has acquired title to, and paid for, the rights of mitoyennete in it, the owner who has erected the wall has not the right to make such openings. Judgment of the Court of
King's Bench
(Q.R. 64 K.B. 78)
aff.
"ESQUIMO "
See CoNsTrrurIONAL LAW 1.
charge of manslaughter through motor car accident-Alleged admission by accused to police officer that he was driver of car-Highway Traffic Act, R.S.O., 1927, c. 251-Sec. 88 (6)
(as enacted by 20
EVIDENCE-Continued
Geo. V, c. 47, 8. 6)-Privilege thereunder -Construction, application-Sec. 40 (1)- Criminal Code, a. 285 (2)-Trial--Procedure-Proper practice-Trial judge deciding there is no evidence to go to jury, withdrawing case from jury and giving judgment for acquittal-Jurisdiction on appeals-Criminal Code (R.S.C., c. 86, as amended), 8s. 1018 (4), (3).1 -On the trial of an accused on a charge of manslaughter through the operation of a motor car, evidence given by a police constable of an alleged admission by the accused to him as he was investigating the accident shortly after it occurred, and when there was no charge against accused and he was not under arrest, that accused was the driver of the car, was rejected on the ground that accused must be presumed to know that he was required under penalty to give the information by virtue of s. 88 (as enacted by 20 Geo. V, c. 47, s. 6) of the Ontario Highway Traffic Act, R.S.O., 1927, c. 251, and therefore his statement was not voluntary. Subs. 5 of said s. 88 enacted that " any written reports or statements or furnished under this section shall without prejudice, shall be for the information of the Registrar, * * * and the fact that such reports and statements have been so made or furnished shall be admissible in evidence solely to prove compliance with this section, and no such reports or statements, or any parts thereof or statement contained therein, shall be admissible in evidence for any other purpose in any trial, civil or criminal, arising out of a motor vehicle accident." Held: The said of the police constable was admissible.
Judgment of the Court of Appeal for Ontario,
[19381
O.R. 636, ordering a new trial, affirmed. Statements made under compulsion of statute by a person whom they tend to incriminate are not for that reason alone inadmissible against him in criminal proceedings. Generally speaking, such statements are admissible unless they fall within the scope of some specific enactment or rule excluding them (Reg. v. Scott, Dearsley & Bell's Crown Cases 47; Reg. v. Coote, L.R. 4 P.C. 599, at 607).
Whether or not, in point of grammatical construction, oral as well as written statements are within the privilege created by s. 88 (5), yet, having regard to s. 40 of said Act and e. 285 (2) of the Criminal Code (as to a driver's duty, on the occasion of a motor car accident in which he is involved, to give his name and address-of which enactments the Ontario legislature must be presumed to have been aware when enacting s. 88) and to the manifest primary purpose of s. 88 (to provide for procuring information for record for statistical 18.C.R. EVIDENCE-Continued and rating purposes, etc.), s. 88 has not in its true construction the effect of rendering such statements as that now in question under the circumstances in question inadmissible in evidence. Sec. 88 (5)
should not be read as intended to qualify the duty imposed by said s. 40 (1) for the purposes and in the interests there contemplated, or the duty recognized by said a. 285 (2), Cr. Code. Sec. 88 (5), which is expressly limited to reports and statements made under s. 88, should in its operation be strictly confined thereto, and its general terms should not be construed as having the intention of creating a privilege in respect of the specific class of statements contemplated by said other enactments. On the trial of an accused, if the trial judge decides that there is no evidence to go to the jury, the proper practice is for him to direct the jury to acquit and discharge the accused (The
King v. Comba, [19381 S.C.R. 396, at
397-8).
But where (in the present case)
the trial judge, deciding that there was no admissible evidence of guilt to go to the jury, withdrew the case from the jury and gave judgment for acquittal, it was held that there was an acquittal within the meaning of ss. 1013 and 1025 of the
Criminal Code (R.S.C., 1927, c. 36, as amended) and that under s. 1013 (4) an appeal lay to the Court of Appeal and, that court having directed a new trial on the ground that the trial judge had improperly held certain evidence to be inadmissible, an appeal lay to the Supreme of Canada under s.
1025 (3).
WALKR v. THE KING...............
2-Negligence - Burns by permanentwave machine-Onus of proof-Charge to jury-Trial judge laying burden on plaintiffs-No objection taken-Jury finding no negligence-Appellate court ordering new
Misdirection of jury
Res ipsa loquitur ...........................
3-Criminal law--Charge of receiving stolen goods-Explanation by accused- Good faith-Lack of knowledge of goods being stolen-Whether explanation by accused is a reasonable one-Discharge by the Crown as to onus of proving accused's guilt-Duty of trial judge...........
4--Contracts-Covenant in restraint of trade-Whether binding-Principles applicable-Nature of covenant-Reasonableness-Circumstances-Onus .....
EVIDENCE-Concluded
5-Allegation that conveyance absolute in form was, according to the real agreement, accepted as security only- Parol evidence - Convincing evidence required. .......................
6-Onus in seeking to enforce option ............................... 7---Onus of proof............... 8-O nus of proof................. See 6. 9--See 4; FARMERS'
CREDITORS ARRANGE- MENT
ACT-1934
(Dom.),
"Farmer," as defined in the Act-Corporation--" Person
Principal occupation "-Incorporated religious community of farmers who believed in and practised ownership of property in common-All property owned by the corporation- Question whether it was a "farmer" within said Act and entitled to benefit thereof-Provisions of the incorporating Act, Man., 1931, c. 103.1-The appellant corporation was created, as "a body corporate and politic," by special Act, Man., 1931, c. 103.
Its members were farmers who constituted a religious community whose tenets and practice included ownership of all things in common, and, under said Act, no member retained or held any property but all property belonged to the corporation for the common use, interest and benefit of its members. Each member was required to devote his time, labour, etc., to the corporation and its purposes.
In said Act the preamble stated that "a religious community of farmers exists * * * who have associated themselves together for the purpose of promoting and engaging the Christian religion * * * according to their religious belief, and of having * * * all things in common and the objects of the corporation were stated to be " to promote, engage in and carry on the Christian religion * * * according to the religious belief of the members of the corporation " and " to engage in, and carry on farming, stock-raising, milling, and all branches of these industries; and to manufacture and deal with the products and by-products of these industries," with other subsidiary and incidental objects. Held (Cannon J. dissenting): Appellant corporation was a " farmer " within the meaning of that word as used in The Farmers' Creditors Arrangement Act, 1934 (Dom.), c. 53 (and amendments); and was MENT ACT-Concluded entitled to take advantage of that Act.
Judgment of the Court of Appeal for
Manitoba, 45 Man. R. 619, reversed, and judgment of Roy, C.CJ. (ibid), restored.
The definition of "farmer"
in said Act as "a person whose principal occupation consists in farming or the tillage of the soil" may include a body corporate and politic, including a corporation of such a nature as that of appellant.
Such inclusion is justified by the meaning of the word "person"
(definition of which in the Bankruptcy Act, s. 2 (cc), as including
"a body corporate and politic" and a
" corporation " as defined by s. 2 (k) of that Act, is brought into The Farmers'
Creditors Arrangement Act by s. 2 (2) of the latter Act, " unless it is otherwise provided or the context otherwise requires ") and by the fact (as held) that, on consideration of The Farmers' Creditors
Arrangement Act (various provisions thereof dealt with in this regard), such inclusion is consistent with and not obnoxious to the provisions and objects of that Act.
The application to appellant of said definition of " farmer " was not affected by the fact that, in the incorporating Act, appellant's firstly expressed object was with regard to engaging in the Christian religion according to the religious belief
.of its members. Farming was appellant's temporal object and occupation, and, being such, was its "principal occupation"
within said definition. Per Cannon J.
(dissenting): Having regard to the preamble and the provisions of the incorporating it must be held that the primary object of appellant corporation is a religious one, and, being a religious body, it cannot get the benefit of The Farmers' Creditors
Arrangement Act, which applies only to a person whose principal occupation consists in farming or the tillage of the soil.
Further, being a religious body, appellant is not a "person" within the meaning of the Bankruptcy Act or The Farmers'
Creditors Arrangement Act. Further, the latter Act, in view of the nature of its provisions, was intended to help only natural persons.
MUTUAL v. 223
GAMING-Speculations on grain exchange
-Right to recover on promissory notes given by speculator for amounts advanced to enable him to meet marginal requirement8s-Nature of the speculating transactions-Intentions, Knowledge, of parties
-Legality or illegality of the transactions or advances-Cr. Code, 8s. 231, 69- Evidence-Onus of proof-Authority of judgments in decided cases-Dicta.. 135
GRAIN EXCHANGE
HIGHWAYS - Negligence-Truck striking culvert wall on county road-Alleged dangerous conditions-Duty of municipality as to keeping in repair........................ 2-Negligence-Collision between street car and milk-wagon at street intersection -Responsibility for accident-Findings of jury-Interpretation of findings-Evidence -Negligence and responsibility in law- Proximate cause of accident-Duty of appellate court when asked to reverse decision, on evidence, of tribunal ........................... 3- See MoToR
HUSBAND AND WIFE-Separated from bed-Action for damages by wife against husband-Prescription-Inscription in law -Applicability of article C.C. enacting no prescription between husband and wife-Doctrine of " dichiances"-Articles 2188, 2288, 2261, 2262 and 2267 C.C.]- Article 2233 of the Civil Code, which enacts that " husband and wife cannot prescribe against each other," applies to all cases of prescriptions, both to the short and to the long prescriptions. The limitations provided by articles 2261 and 2262 C.C., which are called therein " prescriptions " and are dealt with as prescriptions, are real prescriptions; they are not merely " d6ch6ances," as, in that case, according to the doctrine generally adopted in France, the exception as regards husband and wife contained in article 2233 C.C. would not operate.
v. 409 INCOME TAX.
(The cases are digested under 2, 1-Amount deductible for depreciation -Discretion of the Minister of National Revenue-Income War Tax Act, R.S.C., 1927, c. 97, ss. 2 (h), 8, 5, 6, 9, 60, 75, 80. 2-Liability for assessment - Income War Tax Act (R.S.C., 1927, c. 97, as amended), ss. 11 (2), 4 (e), 65, 56-" Income accumulating in trust for the benefit of unascertained persons or persons with contingent interests"-" Charitable institution "-Liability for interest prior to date of assessment-Costs.......... 125 3-Deduction in computing assessable income-Income War Tax Act, R.S.C., 1927, c. 97, s. 6-Expenses "wholly, exclusively and necessarily" laid out "for the purpose of earning the income"-Expenditures by brewery company for treating in INCOME TAX-Concluded hotels selling its product, to promote sales of product-Manner of payment-Provincial statutory prohibitions as affecting the
4-"Income" within s. 3 of Income War
Tax Act, R.S.C. 1927, c. 97-Clause (b)
of said section-Monthly instalments payable under insurance policy.........
5-Proceeds from production of oil well charged with payment of costs of drilling paid to contractor-Income-Liability for tax..........................
"INDIANS "
INJUNCTION-Professions-Foreign dentist advertising in British Columbia- Holding out " as being qualified or entitled" to practice--Restraining advertising-Advertiser not licensed in British
Columbia-Dentistry Act, R.S.B.C., 1936, c. 72, ss. 62, 63.1-The respondent, a citizen of the United States, residing in
Spokane, Washington, where he practices dentistry, inserted advertisements in newspapers in British Columbia, with a view of inducing residents of that province to go to him for dental treatment. The respondent was not licensed under the Dentistry Act (R.S.B.C., 1936, c. 72) and did not do any work in British Columbia.
Section 62 of that Act provides that "any person not registered under the Act
* *
* who practises dentistry or dental surgery in the province shall be guilty of an offence against this Act"; and section 63 provides that "any person shall be deemed to be practising the profession of dentistry" who does certain specified things "or who holds himself out as being qualified or entitled to do all or any of the above things
* * *." At the suit of the Attorney-General on relation of the
College of Dental Surgeons of the province, the trial judge granted an injunction restraining the respondent from (a) holding himself out within the province by means of advertising as being qualified to practise dentistry and (b) advertising within the province in a manner which if done by a registered dentist would be improper or unprofessional. On appeal to the Court of Appeal, this judgment was set aside. Held, affirming the judgment of the Court of Appeal (53 B.C.R. 50), that the respondent was not subject to the provisions of the Dentistry Act of British
Columbia. This statute applies only to a person holding himself out within the province as being qualified or entitled to do in the province any of the things
INJUNCTION-Concluded enumerated in section 63; and held, also, that the dental college has no right to be granted an injunction restraining the respondent, who is not one of its members, from inserting advertisements which may, in the opinion of the college, be considered as improper or unprofessional conduct.
COWEN.............. INSURANCE-Assessment for income tax in respect of monthly instalments paid under insurance policy.............. INTEREST-Liability for .......... 125 JUDGMENTS-Authority of in decided cases-Dicta................... 2- " Final judgment"--" Judgment directing a new trial "-Supreme Court Act, R.S.C., 1927, c. 35, s. 36............. 273 See 2, 3, 4; 1; JURY - Verdict-Meaning-Obscurity as to findings...................... 2-Trial--Proper practice-Trial judge deciding there is no evidence to go to jury, withdrawing case from jury and giving judgment for acquittal.......... 214 3- Findings-Interpretation....... 287 4--Comment with regard to jury visiting locus and other places for inspections .........................
5- Action for damages by wife and children of person killed by alleged negligence of tramway company-Whether such action triable by jury-Article 1056, C.C.- Article 421 C.CP................... LIGHTS
LIMITATION OF ACTIONS
MAINTENANCE
MARITIME LAW
MASTER AND SERVANT-Negligence- Company manufacturing and selling wine in Ontario-Delivery of parcels to its customers by an individual-Motorcycle used by latter striking pedestrian-Question as to liability of the company-Relationship between the company and the individual--Liquor Control Act, Ont., and regulations-Question whether judgment taken at trial against individual precluded plaintiff from proceeding further against
......
MINOR-Action for damages by minor represented by father as tutor-Minor attaining age of majority during proceedings-Petition en reprise d'instance not presented-Minor, then of age, declared interdicted-Father duly authorized to continue suit as curator-No notification of change of status-Nullity of proceedings, since date of majority, urged on appeal before this Court-Petition in revocation of judgment of this Court- Arts. 268, 269, 1177 (8) C.C.P.1-An action for damages, brought by a father as tutor to his minor daughter, having been maintained upon a verdict by a jury, that judgment was affirmed by the appellate court and by this Court.
a petition in revocation of judgment
(requdte civile) was presented by the appellant company. The daughter attained her age of majority before the date for proof and hearing on the merits of the petition; but the suit continued without any petition en reprise d'instance being presented, and judgment was rendered dismissing the requte civile. While the case was pending before the appellate court, the daughter having been interdicted, the father then presented a petition to continue the suit as curator, which petition was granted by the appellate court; and no appeal was taken. There has been no notification of the change of status of the daughter as to her age.
As a preliminary ground of appeal before this Court, the appellant urged that all proceedings, subsequent to the date on which the daughter attained her majority, were null. Held, that under the circumstances of this case, the proceedings should not be declared null and void.
The judgment of the appellate court, authorizing the father to continue the suit as curator, had the effect of covering any irregularity in anterior proceedings.
Moreover, no notification has been given as to the change of status of the daughter, and all proceedings are held to be valid up to the date of such notice. And, even after such notification the nullity incurred would be merely relative, and could be invoked only by the person whose interests would not have been represented. As to the merits of the requdte civile: Held
MINOR-Concluded that the judgment of the appellate court, affirming the judgment of the trial judge and holding that the new evidence offered by the appellant was not sufficient to justify an order for a new trial, should be affirmed.
Co. v. GuftARD ...............
..... MORTGAGE-Quit claim deed given by mortgagor to mortgagee and right given to mortgagor to purchase within three months by paying amount of mortgage-- No payment or tender within said period -True nature and effect of the transaction -Evidence-Mortgagor's contention that relationship of mortgagor and mortgagee still subsisted-Onus in seeking to enforce option-Claim that existing lease made by owner relieved option-holder from strict fulfilment of conditions........ 247 MOTOR VEHICLES-Negligence - Collision at street intersection-One car making left hand turn-Statutory requirements-Highway Trafic Act, R.S.O., 1937, c. £88, s. 39 (1).1-The action was for damages by reason of a motor car collision at a street intersection in Ottawa, Ontario. Defendant, whose car had been going easterly on L. avenue, was turning left at the intersection to go northerly on 0. street, when his car, and plaintiffs' car going westerly on L. avenue, collided. At the trial the jury found that the accident was not caused by negligence of defendant, and the action was dismissed. Plaintiffs' appeal to the Court of Appeal for Ontario was allowed, and judgment given to plaintiffs for damages to be assessed at a new trial for that purpose. Defendant appealed.
Held: The judgment at trial should be restored. No error was shown in the trial judge's charge to the jury, the case was eminently one for a jury, and the jury could on the evidence properly make the finding which they did as aforesaid. The requirements of s. 39 (1) of the Highway Traffic Act, RS.O., 1937, c. 288, discussed in regard to defendant's duty in making the left hand turn in question.
After defendant had entered and come within the intersection to the right of the centre line of L. avenue, he was obliged (besides observing the precautions required by s. 39 (1) and the law as to reasonable conduct in the circumstances) upon leaving the intersection to pass to the right of the centre line of 0. street, but was not obliged, as an act necessary in itself, to continue beyond the centre of the intersection before turning to the left. v. BoucHER.. 265 2-Evidence - Trial on charge of manslaughter through motor car accident-Alleged admission by accused to MOTOR VEHICLES-Concluded police officer that he was driver of car- Highway Traffic Act, R.S.O., 1927, c. 251- Sec. 88 (5) (as enacted by 20 Geo. V, c. 47,
6)-Privilege thereunder-Construction, application-Sec. 40 (1)--Criminal Code,
8. 285 (2)-Trial-Procedure-Proper practice-Trial judge deciding there is no evidence to go to jury, withdrawing case from jury and giving judgment for acquittal-Jurisdiction on appeals - Criminal
Code (R.S.C., 1927, c. 86, as amended), ss. 1018 (4), 1025 (8).............
Highways-Negligence-Truck striking culvert wall on county road-Alleged dangerous conditions-Duty of Municipality as to keeping in repair.1-Plaintiff, while driving a truck on a straight stretch of a county road of defendant municipality about 7 p.m. on February 10, 1937, struck a wall of a culvert. He sued defendant for damages.
He gave evidence that on account of pit holes in the road the rear end of the truck jumped and struck a rut which was on or near the edge of the travelled part of the road and prevented him from coming back until he struck the culvert wall.
The trial judge gave judgment for plaintiff, holding that the accident was caused by, the narrowing of the travelled portion of the road from
22 or 24 feet to the 16-foot culvert, absence of warning signs, absence of wings approaching the culvert (the wing walls did not extend beyond the ground level), and the condition of the road surface (pit holes and rut).
His judgment was reversed by the Court of Appeal for Ontario.
Plaintiff appealed. Held: Plaintiff's appeal dismissed. The above conditions did not constitute default of defendant to keep the road in repair within the meaning of s. 469 (1) of the Municipal Act,
R.S.O., 1927, c. 233. The depressions were all caused by normal user of the highway, and in the circumstances and time of year defendant was not guilty of default in permitting them to exist. To hold that the rut was a condition causing the road to be out of repair would be imposing too heavy a burden on county municipalities. Further, on the evidence the accident was the result of plaintiff's own lack of care. The principle as to a muicipality's duty to keep roads in repair discussed and cases referred to.
Mcv. BRANT........
2-By-law-Superannuation and pension
-Employee applying for-Refusal by civic committee after report by medical
.offcers-Employee not informed of such
-report before decision rendered-Whether
Superior Court has jurisdiction to reverse such decision-Art. 50 C.C.P.-Right of employee to pension.1-The appellant, having served as a member of the fire brigade of the city of Montreal for a period of eighteen consecutive years, presented to the chief of the brigade, on the 23rd of July, 1931, his resignation on grounds of ill health and made a request for a medical examination, in order to obtain during his lifetime the pension provided by a by-law of that city. The examination was made by two medical officers on the 27th of July, 1931, who reported immediately to the city that the appellant was still fit to perform his duties. But the appellant was not informed, for months after, that his application had been rejected. In the meantime he had been required by his superior officers to return his fireman's equipment and thenceforward was in every way treated as not in the city's employment. The by-law, upon which the appellant based his claim, contains in section 2 the cases where an employee would be entitled to a pension; and section provides that it " devolve upon the Board of Commissioners (later called Executive Committee) to decide, in each case, whether any civic employee is eligible for superannuation and pension."
The appellant brought his action only in February, 1936, and in his statements of claim, did not allege such a decision in his favour, nor did he allege facts precluding the respondent city from relying upon section eleven; but he contented himself with alleging that the pension to which he had acquired a right had been unjustly and illegally refused by the city respondent and that he had fulfilled all the conditions entitling him to it. The respondent city denied such allegations, set up the report of the doctors and alleged generally that the appellant had not brought himself within the conditions giving him a right to superannuation and pension. It also raised, at the trial, the ground that the Superior Court had no authority under article 50 C.C.P. to review the decision of the Executive Committee. The trial judge, holding that he had such authority under the provisions of that article, proceeded to make himself an independent examination of the facts touching the state of the appellant's health in July, 1931, and finally granted the appellant's claim for pension.
The appellate court reversed that judgment on the grounds that the Executive Committee, in the exercise of the discretion conferred upon it by section had the right to find that the appellant was not eligible for pension, that the Court could not substitute its opinion for that of the Committee and that, on the evidence, the decision of the Committee could not be declared to be arbitrary, unjust and illegal. Held, reversing the judgment of the appellate court and restoring the judgment of the trial judge, but in both cases on different grounds, that the appellant's claim for a pension and other benefit provided by the by-law should be maintained.
Held, also, reversing the judgment of the trial judge as to that ground, that article 50 C.C.P. has not the application given to it by him. Such article is primarily concerned with jurisdiction; but such jurisdiction must be exercised "in such manner and form as by law provided."
Where parties have agreed, as in the present case, that their rights shall rest upon the condition that a given individual or body shall be satisfied that a certain state of facts exists, article 50 C.C.P. does not enable the
Superior Court to make a new contract between the parties and to declare their rights without regard to the contract and by reference solely to the trial court's own view of the facts.
In this case a decision by the Committee favourable or unfavourable to an applicant is not susceptible of review upon the merits by any court. Held, also, reversing the judgment of the appellate court, that the city respondent should not be permitted to set up the decision of its Executive Committee in answer to the apellant's claim.
The appellant, not having been informed of the nature of the report of the doctors until long after the decision of the
Executive
Committee, given no opportunity of answering that report, before the Executive Committee had reached its decision; and, in these circumstances, it should be held that no inquiry of the character contemplated by section of the by-law had taken place. Moreover, in the existing circumstances of the case, section of the by-law would not afford, at the present time, any appropriate machinery for working out the rights of the parties, mainly on the ground that evidence, to which the Committee might have resorted eight years ago, would probably be no longer available.
further, that the finding of the trial judge, that the appellant had established the facts necessary to entitle him to superannuation and pension, under the by-law, should not be set aside.
V. CITY
3--Schools - Companies - Apportionment of assessment of company in muni- Concluded cipality to provide portion for separate school purposes-Separate Schools Act, R.S.O. 1987, c. 862, s. 66............ NEGLIGENCE-Accident to member of crew of ship-Verdict of jury-Meaning of verdict-Obscurity as to finding-New trial-Defence of common employment- Shipping-Maritime law-British ship- High seas--Port of registration-Conflict of laws-Which law applicable-Section 266 of the Merchants' Shipping Act (Imperial), 1894.1-The respondent, while a member of the crew of the as. Cornwallis, owned by the appellant company, met with an accident on November 6th, 1935. The Cornwallis was a British vessel registered at Vancouver, B.C., and at the time of the accident was proceeding from the West Indies to Charlottetown, P.E.I. The respondent, a carpenter on board the vessel, who had been hired in Montreal, was engaged with other members of the crew in putting locking bars on the hatches.
While so engaged, about one hundred miles off Bermuda, a wave crashed onto the deck, swept the respondent against the bulkhead and hatch combings and caused injuries for which the action was brought. The jury found the accident to be due to the fault of the appellant in following language: " Question: Was the said accident due to the fault of the defendant; if so, state in what said fault consisted? Answer: Yes (unanimous).
If the Chief Officer, Lieutenant Scott, had ordered life lines erected earlier the accident might have been avoided." The trial judge, on the finding of the jury, ordered judgment to be entered for the respondent, and this judgment was affirmed on appeal. The appellant's grounds of defence was a denial of negligence, and, alternatively that, if there was any, it was the negligence of a fellow servant from which under the common law of England, which was applicable, no cause of action arose. Held that there should be a new trial.
Per The Chief Justice and Crocket, Kerwin and Hudson JJ.-The answer of the jury to the question submitted to them should be read as a whole; and, if so read, the meaning of the verdict is not sufficiently free from obscurity to enable one to conclude that the jury have found or intended to find the existence of a causal nexus between the fault and the injury to the respondent. The second sentence of the answer, in which the nature of the fault is explained, does seem to be concerned not only with the character of the fault, but with the relation between the fault and the accident as well.
If the jury intended, by answering the first question in the affirmative, to say, with an appreciation of the purport of the words, that the accident was due (i.e., caused by) the fault of the appellant, it is difficult to understand how the jury could have used the language they do employ in the second sentence.
Per Cannon J.-The finding of the jury was unsatisfactory. The verdict seems to be based not on a fact of which the jurymen were convinced, but on a probability or a possibility. The verdict is not sufficient to create the certainty required to connect the injuries suffered by the respondent with the alleged negligence or omission of the officer to order life lines erected earlier. Per The Chief Justice and
Crocket, Kerwin and Hudson JJ.-In an action brought in the province of Quebec for damages in respect of personal injuries due to a tortious act committed outside that province, it is essential, as a first condition, that the plaintiff prove an act or default actionable by the law of Quebec; and in order to fulfil the second condition necessary for his right to recover, i.e., to establish that the tort
-charged is non-justifiable by the lex loci delicti, the plaintiff is entitled to pray in aid a presumption which is a presumption of law, viz., that the general law of the place where the alleged wrongful act occurred is the same as the law of Quebec.
Where a defendant relies upon some differences between the law of the locality and the law of the forum, the onus is upon him to prove it. The provisions of section 265 of the Merchants' Shipping
Act, 1894, apply to this case.
It was the duty of the trial judge to apply the law of Quebec unless that law or some law of the Imperial Parliament or competently enacted law of the Parliament of
Canada prescribed another rule.
But a conflict of law appeared within the meaning of that section when it became apparent that the trial judge had to determine whether it was his duty to follow the rules of the law of Quebec or rules derived from some other system of jurisprudence.
Therefore the lex loci delicti was the law of the port of registry, i.e., the law of
British Columbia; and the trial judge was entitled to assume that that law was the same as the law of Quebec. Per Cannon
J.-The law applicable to this case is the law of Quebec.
Lex fori was the law of
Quebec; lex loci contractus was also the law of Quebec, because the respondent was engaged in Montreal. The lex loci commissi delicti would be either the law of England or that of the port of registration: the latter was not pleaded and defence of common employment, under the law of England, was not established and was not put to the jury. Co. WATSON......................... 2- Burns by permanent-wave machine- Onus of proof-Charge to jury-Trial judge laying burden on plaintiffs-No objection taken-Jury finding no negligence-Appellate court ordering new trial -Misdirection of jury-Res ipsa loquitur.] -The female respondent claimed damages for injuries alleged to have been suffered by her as the result of burns she said she received while having a permanent wave in the beauty parlour operated and conducted by the appellant in its departmental store in Vancouver.
The trial judge instructed the jury that the burden lay upon the respondent to prove negligence against the appellant.
The jury found that the burns on the respondent's head were not " the result of negligence, but rather accidental."
dismissed respondent's action. On appeal, the Court of Appeal ordered a new trial, on the ground that the doctrine of res ipsa loquitur was applicable to the facts of this case and, therefore, the jury had been misdirected as to the onus of proof. Held, reversing the judgment of the Court of Appeal (52 B.C. Rep. 447), that the judgment of the trial judge dismissing respondents' action should be restored. Per The Chief Justice and Davis and Hudson JJ.-It is unnecessary to consider whether or not the doctrine of res ipsa loquitur has any application to this case. It is sufficient to observe that the case for the respondents was formulated in the pleadings and developed at the trial as an action for negligence against the appellant without any reference to that rule. The case went to the jury, without any objection, on the basis of an action for negligence in which the burden lay upon the respondents.
That being so, the respondents are not entitled upon an appeal to recast their case and put it upon a basis which had not been suggested at the trial.-Scott v. Fernie B.C.R. 91) approved -Comments on section 60 of B.C. Supreme Court Act, R.S.B.C., 1936, c. 56.-Sisters of St. Joseph v. Fleming ([1938] S.C.R. 172) ref. Per Crocket and Kerwin JJ.-The rule of "res ipsa loquitur" was not relied upon at the trial and may not be put forth to assist the respondents before the Court of Appeal or this Court. This being so, there is no ground upon which the verdict of the jury should have been disturbed.
3- Master and 8ervant-Principal and agent-Company manufacturing and selling wine in Ontario-Delivery of parcels to its customers by an individual-Motorcycle used by latter striking pedestrian- Question as to liability of the company
-Relationship between the company and the individual-Liquor Control Act, Ont, and regulations-Question whether judgment taken at trial against individual precluded plaintiff from proceeding further against company.]-Appellant was a company licensed to manufacture and sell wine throughout Ontario, and had a retail store on Yonge St., Toronto. Its deliveries up to 4 o'clock p.m. were made by a certain delivery service.
In the evening one S. would telephone inquiring if there were parcels to deliver, and if so would call for them and make delivery (within the time prescribed by regulations under the Liquor Control Act), collecting payment and securing signatures to orders and receipts.
He was paid a stipulated sum per parcel, payment being made weekly. While delivering parcels as aforesaid, the motorcycle which he was driving struck K. who died as the result.
question on this appeal was appellant's liability for damages by reason of the accident (in an action brought under the
Ontario Fatal Accidents Act).
At the trial, which was had with a jury, the trial judge, on motion at close of plaintiff's case, dismissed the action as against
The Court of Appeal
Ontario
(Middleton
J.A.
dissenting)
([19371 O.R. 205) set aside said dismissal and ordered a new trial between plaintiff and appellant, confined to the question of liability of appellant and assessment of damages.
Appellant appealed to this
Court. Held: Appeal allowed and judgment at trial restored.
(Duff CJ. and
Davis J. (dissenting)
).
Per Crocket J.:
This was a clear case of casual or collateral negligence on the part of a private carrier for hire. In the operation of the motorcycle, S. was not appellant's servant within the meaning of the rule which makes a master liable for the acts of a servant in the performance of his duty as such-he was not subject to appellant's control or direction, he was entirely his own master;
his negligence, therefore, cannot properly be attributed to appellant. Also, neither the agreement under which S. was entrusted with the custody of the wine for delivery, nor any of the regulations made under the Liquor Control Act imposed any responsibility upon appellant for the injury of third persons by the negligent operation of the motorcycle.
It is only upon the basis of appellant's employment of S. to make this particular delivery by means of a motorcycle in itself involving such danger to third persons that the accident-might reasonably have been foreseen that appellant could properly be fixed with responsibility for K.'s death. In that case appellant's responsibility would really rest upon its own direct negligence in employing S. to make the delivery by that means rather than upon the so-called doctrine of vicarious responsibility (City of Saint John v. Donald, [19261 S.C.R. 371, at 383-4); it cannot be said that the delivery of parcels on occasion by means of a hired motorcycle is inherently dangerous. Per Kerwin J.: A person employing another is not liable for the latter's collateral negligence unless the relation of master and servant exists between them. It may be assumed that appellant knew that the delivery would be made by motorcycle, and that it therefore authorized delivery by that means. But, while appellant had the right to take the work out of S.'s hands, it had not the right to say that he was to continue the work and direct him during the continuance of it. S. was the agent of appellant so as to make appellant liable for anything done by S. with its authority; but appellant was not liable for S.'s negligence in driving the motorcycle, as that was a casual or collateral matter which appellant did not authorize expressly or by implication.
Not being subject to appellant's control as to the manner of driving, S. was not its servant.
There was no evidence of any authority in S. to drive negligently and there therefore, nothing to leave to the jury. Hudson J. adopted the reasons of Middleton J.A. (dissenting)
in the Court of Appeal ([19371 O.R. at 228-232).
Per Duff C.J. and Davis J. (dissenting)
: There was evidence on which a jury might reasonably find that, in the management of his motorcycle while driving it at the place and time in question, S. was acting in appellant's business in execution of his duty as its agent; that being so, plaintiff's case should have been submitted to the jury. The jury might not unreasonably find that in the circumstances in which the wine was placed in S.'s custody for delivery, the only practicable means of carriage was by some kind of motor vehicle; and, having regard to the practice, that on the occasion in question the goods were entrusted to and received by him on the tacit understanding that carriage would be effected by motorcycle; and that it was well understood that he must drive through the public streets. By force of the regulations made under the Liquor Control Act, S., who was not a common carrier within their meaning, could only lawfully be in possession of the parcels as appellant's agent; and a jury would be entitled to find as a fact that appellant's store manager was familiar with the purport of the regulations governing the sale of wine at the store, and, moreover, as a consequence, that S. was entrusted with the wine in the only capacity in which (not being a purchaser or approved carrier) he could lawfully be entrusted with it, namely, as appellant's agent.
(Inclination expressed to the opinion that, under the principle stated in
In re Hallett's Estate, 13 Ch.
727, it was not competent either to appellant or S. in an action of this character to deny that the wine was in fact entrusted to S. for carriage and delivery as appellant's agent). The parcels having been placed in S.'s custody as agent, obviously it was his duty as agent to take reasonable care for the safe carriage and delivery, and it would be clearly open to the jury to find that, as incidental to that duty, he was under an obligation to his principal in respect of the management of the motorcycle; and it would be incumbent upon the trial judge to instruct them that if they thought S.'s duty as agent embraced the duty to manage his motorcycle in such a manner as not to risk the loss of the wine or any part of it, it was for them to say whether the management of the motorcycle generally was a matter incidental to the functions expressly entrusted to him.
The rule respondeat superior, and its ground, discussed, and authorities referred to. The rule does not rest upon any notion of imputed guilt or fault.
The principal having the power of choice has selected the agent to perform in his place a class or classes of acts, and it is not unjust that he who has selected him and will have the benefit of his services if efficiently performed should bear the risk of his negligence in matters incidental to the doing of the acts.
The fact that the damages were assessed against S. (who did not appear and was not represented at the trial) and judgment taken against him did not preclude the plaintiff, in the special circumstances of this case [discussed by Rowell, CJ.O. below in [19371
O.R. at 223, 224], from proceeding further against appellant.
T. G. & Co.
v. KEm....................
4- Collision between street car and milkwagon at street intersection-Responsibility for accident-Findings of jury-Interpretation of findings-Evidence-Negligence and responsibility in law-Proximate cause of accident-Duty of appellate court when asked to reverse decision, on the evidence, of trial tribunal.1-The action was for damages for the death of the driver a horse-driven milk-wagon through collision at a street intersection in the city of Toronto. Defendant's street car, proceeding easterly along D. street (a
" through " highway), struck the wagon as it was crossing the tracks.
At the trial the street car motorman testified that when he saw the horse approaching the D. street line he shut off the power, " fanned his brakes " (braked car to check speed) and after slackening the car down sounded the gong; that the horse after entering D. street started to turn eastward but was jerked by the reins so that it crossed the tracks; that when he saw the horse was going to cross he applied the emergency brake. The case was tried with a special jury, who found that the motorman was guilty of negligence causing the collision, in that, as stated in their answer to question 2 submitted to them, "the evidence indicates that he was conscious of danger when he fanned his brakes and at that time did not bring his car under such control that it could have been stopped, if necessary, in time to have avoided the collision"; and that deceased was not guilty of any negligence that caused or contributed to the collision; and plaintiff recovered judgment. The judgment was reversed by the Court of Appeal for Ontario, [1938] O.R. 694, which held that there was no reasonable evidence to support the finding against defendant's motorman, and that it did not constitute a finding of negligence in law, and that all the evidence indicated clearly that the deceased was guilty of negligence which was the proximate and effective cause of the accident.
Plaintiff appealed. Held (Crocket and Kerwin JJ. dissenting): Plaintiff's appeal should be allowed and the judgment at trial restored.
Per the Chief Justice: The jury's answer to question 2 should not be read as referring solely to the motorman's evidence or as founding the inference that he was "conscious of danger when he fanned his brakes" upon the fact that he fanned his brakes alone, or upon the motorman's evidence alone; it was stating an inference from the whole of the evidence.
Considering all the evidence, there was evidence from which the jury might or might not conclude, according to their view of it, that the motorman realized, what the deceased was doing (that he was in the act of crossing the street) in time to avoid a collision if he acted with reasonable promptitude. jury taking the view that the motorman became aware of what the deceased was doing in time to enable him to bring his car under sufficient control to let the horse and wagon pass, and that his failure to do so was unreasonable and negligent, it was for the jury to say, on the whole whether, notwithstanding deceased's conduct, the motorman's negligence was the sole cause of the accident and whether deceased should be acquitted 19391 of contributory negligence in the legal sense.
(Calgary v. Harnovis, 48 Can.
S.C.R. 494; Long v. Toronto Ry. Co., 50
Can. S.C.R. 224; Loach's case, [19161 1
A.C.
719; Columbia Bitulithic v. B.C.
Elec. Ry., 55 Can. S.C.R. 1; Leech v.
Lethbridge, 62 Can. S.C.R. 123; Athonas v. Ottawa Elec. Ry. Co., [19311 S.C.R.
139; Nixon v. Ottawa Elec. Ry. Co.,
[19331 S.C.R. 154). Per Davis J.: Though lack of care on the part of deceased was closely relevant to the enquiry for the jury, the vital question was: whose negligence was the direct cause of the collision?
The jury were the tribunal of fact.
Their verdict should not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it. The jury were entitled, upon all the evidence, to find, as they did, that defendant was solely to blame.
(The Eurymedon, [19381 P. at 49-50, cited).
Comment with regard to the practice adopted in the case, in the jury visiting the locus and other places for inspections.
Seneviratne v. The King, [19361 3 All
E.R. 36, at 51, referred to. Per Hudson
J.: There was evidence on which, if taken together with what may well have been unspoken impressions properly influencing the minds of the jurors when seeing and hearing the witnesses, and taking into account the jurors' special qualifications in this case, they could reasonably come to the conclusion at which they arrived.
(Clarke v. Edinburgh & District Tramways Co., 1919 S.C. (HL.) 35, at 36;
Powell v. Streatham, [19351 A.C. 243, at
257, cited as to the duty of a court of appeal when asked to reverse the decision of a trial tribunal).
Per Crocket J., dissenting: The evidence established indisputably that the emergency out of which the accident arose was created by negligence of deceased.
Only a valid unequivocal finding that the motorman, notwithstanding deceased's negligence in creating the danger, could by the exercise of due care have avoided the collision would justify fixing responsibility upon defendant.
Such a finding of ultimate negligence against the motorman could not in the light of the evidence be fairly and reasonably spelled out of the jury's answers.
Their answer to question 2 involved acceptance of the motorman's evidence that he fanned his brakes when he saw the horse approaching the street line, and also implied that the mere fact that he did so established that he must have then become conscious of some danger which made it his immediate duty to bring his car under such control that it could be stopped in time to avoid a collision in case he should find that deceased was actually going to take the risk of crossing in front of the street car. The assumption that under the circumstances there was such duty is not justifiable, and a finding of negligence based thereon is not valid. Also the jury's answer to question 2 cannot, having regard to the entire testimony, fairly be taken as involving a rejection of the motorman's statement as to the horse starting to turn eastward. The jury's finding exonerating deceased from all blame for the collision was perverse. The only verdict reasonably possible upon the evidence, including those portions of the motorman's which the jury must, upon a fair interpretation of their answer to question 2, be taken to have accepted, was that the motorman could not by the exercise of reasonable care and skill have avoided the collision which followed deceased's unquestionable negligence in entering and blindly crossing a through highway without stopping, and that the collision was therefore caused solely by deceased's own fault. Per Kerwin J., dissenting: The evidence was such that no jury with a proper appreciation of their duties could make the finding they did. Further, the fact that the motorman, upon seeing the horse and wagon, took the precaution to "fan" his brakes is not evidence that he was negligent in not anticipating that deceased would cross the tracks in front of the oncoming street car. The jury's finding that deceased was not guilty of negligence was perverse.
............ 5-Motor vehicles - Collision between motor cycle and automobile - Ultimate negligence - Contributory Negligence Act (Alberta), 1 Geo. VI, c. 18-Statute specifically pleaded-Statute coming into force after date of accident, but before date of commencement of suit-Whether statute applicable.]-An action was brought on October 12th, 1937, by a motor cyclist for damages sustained in a head-on collision with an automobile, which collision occurred on October 30th, 1936. The trial judge dismissed the action on the ground that the accident was caused solely by the plaintiff's negligence, but that judgment was reversed by the appellate court. The respondent, alleging contributory or ultimate negligence of the defendant, pleaded specifically the application of the Contributory Negligence Act, which went into force on July 1st, 1937.
Held that the statute has no application to this case; and, also, that upon the facts, the judgment of the trial judge should be restored, as the plaintiff was, to some extent if not NEGLIGENCE-Concluded in toto, guilty of negligence which contributed to the collision.
.........................
6-Motor vehicles-Collision at street intersection-One car making left hand turn - Statutory requirements - Highway
Traffic Act, R.S.O., 1937, 288, 89 (1).
7-Municipal corporations-Highways- Truck striking culvert wall on county road-Alleged dangerous conditions-Duty of municipality as to keeping in repair.
OPTION-Onus in seeking to enforce. 247
2- Loss of-Damages.............
PARTIES-Judgment taken against one party for damages assessed-Further proceedings against other party ......... 63
PATENT-Invention-Lack of patentable advance over prior art-Refusal of application for patent, by Commissioner of
Patents.]-The judgment Maclean J.,
President of the Exchequer Court, [19381
Ex. C.R. 1, affirming the refusal of the
Commissioner of Patents to grant a patent in respect of certain claims in appellant's assignor's application for patent for an alleged invention of new and useful improvements in Hosiery With Elastic Strain
Absorber, on the ground that there was no patentable distinction between the method disclosed in said claims and that disclosed in a certain prior patent, was affirmed; it being held that the alleged invention constituted no patentable advance or improvement upon said prior disclosure.
Semble, The Commissioner of
Patents ought not to refuse an application for a patent unless it is clearly without substantial foundation.
v. THE
...........................
2-Procedure-Conflicting claims in two applications for patent (s. 22 of Patent
Act, R.S.C., 1927, c. 150, as amended in
1932, c. 21)-Rights determined by judgment in Exchequer Court and patent issued accordingly-Position of applicant whose claims had been disallowed-Alleged abandonment of application through failure to prosecute it within six months
"after any action thereon of which notice shall have been given to the applicant"
(Patent Act, 1985, c. 32, s. 81).]-The judgment of Maclean J., President of the
Exchequer Court of Canada, [19391 Ex.
C.R. 65, holding that the application for
PATENT-Concluded patent in question had not been abandoned and directing that it be given further consideration by the Commissioner of Patents in accordance with the practice of the Patent Office, was affirmed. In the provision in s. 31 of The Patent Act, 1935 (c. 32), that upon failure of the applicant for a patent to prosecute his application within six months "after any action thereon of which notice shall have been given to the applicant, such application shall be deemed to have been abandoned," the phrase, "action thereon" (which means "action" on an "application for a patent") is not an apt description of a judgment of the Exchequer Court in exercise of the Court's authority under s. 22 of the Patent Act (R.S.C., 1927, c. 150, as amended in 1932, c. 21); it means something done by the Patent Office.
Where, in proceedings under said s. 22, rights as to claims in conflict in two applications for patent had been determined by judgment in the Exchequer Court, which was followed by issue of patent to the applicant whose claims had by that judgment been allowed, it was held that the applicant whose claims had by that judgment been disallowed, though it had notice of the judgment and took no steps in the Patent Office within six months thereafter, yet could not be said to have abandoned its application, in the absence of any notice having been given to it of "action" by the Patent Office. (The issue of the patent as aforesaid was an "action" within the above phrase in s. 31, and bad there been evidence of notice thereof to the applicant whose claims had been disallowed, s. 31 would have come into play.
v. AIa PENSION
POWER OF APPOINTMENT
PRACTICE
PRESCRIPTIONS
See WIFE 1. PRINCIPAL AND AGENT
1; PROCEDURE-Husband killed by tramway-Action for damages brought by wife and children-Whether such action susceptible of being tried by a jury-Article 1056 C.C.-Article 421 C.C.P.1-An action death caused by the commission PROCEDURE-Concluded an offence or a quasi-offence, is an action
"resulting from personal wrongs" within the meaning of article 421 C.C.P., and therefore susceptible of being tried by a jury. Montreal Tramways Co. v. Siguin,
42 S.C.R. 644, foll.
LINDNER..........
2-Tria-Proper practice-Trial judge deciding there is no evidence to go to jury, withdrawing case from jury and giving judgment for acquittal--Jurisdiction on appeals-Criminal Code (R.S.C.,
1927, c. 36, as amended), s.
1013 (4),
10295(8).......................
3- Trial--Jury visiting locus and other places for inspections...............
4----See
2;
PROFESSIONS - Injunction - Foreign dentist advertising in British Columbia- Holding out "as being qualified or entitled" to practice-Restraining advertising-Advertiser not licensed in British
Columbia-Dentistry Act, R.S.B.C., 1936, c.72,as. 62, 68...................
RAILWAYS-Board of Railway Commissioners - Works railway company authorized by Board pursuant to special statute-Removal of plant and equipment belonging to utilities companies, necessitated by execution of these works-Allocation of costs of such removal by Board
-Rule of practice by the Board in analogous cases - Rule applied by order of
Board appealed from-Leave to appeal granted by Board-Questions of law- Jurisdiction of the Supreme Court of
Canada-Section 52 (3) of the Railway
Act.]-Under the provisions of the Canadian National Montreal Terminals Act,
1929, the Governor in Council was authorized to "provide for the construction and completion by the Canadian National
Railway Company * * * of terminal stations and offices" etc.; and, more particularly, of viaducts, elevated railways and grade separations between certain streets, mentioned in the Act, situated in the city of Montreal.
By order of the
27th of June, 1929, the Governor General in Council provided for "certain terminal facilities, grade separation other works" in the city of Montreal, as shown upon plans mentioned in the Order in
Council; and for the execution of those works, orders of the Board of Railway
Commissioners were required in respect of grade separation at street crossings. These orders were applied for by the appellant
RAILWAYS-Continued company and made.
As the latter company proceeded with these works, the removal of plant and equipment of the respondents was found from time to time to be necessary; and orders to such effect were accordingly obtained from the Board, the question of the allocation of the costs involved in carrying out the orders being reserved for further consideration by the Board.
By a subsequent order of the Board, now under appeal to this Court, it was directed that the appellant should "reimburse respondents for their reasonable and necessary expenditure incurred and paid in the removal and replacement of their facilities" necessitated by reason of the construction of the works authorized by the several orders of the Board. Leave to appeal to this Court was given by the Board to the appellants in respect of certain questions (contained in full in the judgment now reported) which, in the opinion of the Board, "involve questions of law," but the order did not state that these questions were "in the opinion of the Board * * * questions of law." Held, dismissing the appeal from the order of the Board of Railway Commissioners, that there is no rule or principle of law inconsistent with the findings and decisions of the Board to which the questions relate. Held, also, that the questions submitted by the order of the Board were, ex facie, not questions of law. On the assumption that the questions should be read in the following sense: Are the rulings of the Board to which the questions relate inconsistent with any rule of law by which the Board is bound as such? According to the opinion of the majority of the Board, the works authorized by it, the execution of which necessitated the expenditures to be allocated, were incidental or subsidiary to the primary and controlling purpose of reconstituting the terminal facilities of the appellant; and accordingly, the majority of the Board held that, under a rule upon which the Board had habitually acted in the allocation of costs in analogous cases, such costs ought to be borne by the appellant company.
Held that the question whether the Board in a given case has properly appreciated its own rule of practice, or the consideration upon which that rule is based, cannot be a question of law within the meaning of section 52 (3) of the Railway Act, nor can the question, whether in a given case the Board has properly appreciated the facts for the purpose of applying the rule, be a question law.
RY. Co. v. RAILWAYS-Concluded
2-Board of Railway Commissioners- Works by railway company -Order
Board for removal by utility companies of plants and equipment-Cost of removal and restoration of Board.
RY. Co.;
RY.
3-(Street railways).
REAL PROPERTY
RES IPSA LOQUITUR
RES JUDICATA-Stock exchange-Evidence - Valid proof - Statements of account-Action dismissed sauf a se pourvoir.
2-See MARK
REVENUE-Sales tax-Special War Revenue Act-Liability for tax. RICE
KING............
2-Sales tax-Moneys allegedly collected by manufacturer under colour of the
Special War Revenue Act in excess of amount due by him-Action by the Crown to recover same, plus penalty-Section of the Special War Revenue Act, R.S.C., c. 179 and amendments thereto.]- The appellant brought an action against the respondent, a manufacturer, under the provisions of section 119 of the Special
War Revenue Act, to recover the sum of
$68,132.54, being $67,632.54 as moneys allegedly collected by the latter, under colour of the Act, in excess of the sum it was required to pay to the appellant as consumption or sales tax and $500 penalty. The Exchequer Court of Canada dismissed the claim for such excess taxes on the ground that that part of section
119 providing for the payment thereof to the appellant was ultra vires the Dominion Parliament, and His Majesty appealed to this Court; but the claim for S500 penalty was maintained by the trial judge and the respondent entered a cross-appeal from that judgment. Held that, according to the facts as found in the record, the respondent company had not infringed the provisions of section 119 of the Act, even if consideration was given by this missible, as to the conduct of the respondent company prior to the coming into finding, it was unnecessary for the Court to deal with the question the validity
REVENUE-Concluded cross-appeal allowed.
Judgment of the Exchequer Court of Canada ([19381 Ex. C.R. 177, reversed.
3-See
SALE OF LAND-Assignment to bank of moneys payable under agreement of sale of land, as security for all existing and future indebtedness of the vendor to bank-Validity of assignment-Bank Act (Dom., 1934, c. 24), ss. 75(2) (c), 79 (1) (b)-Inseverability of purchaser's obligation to pay (under agreement of sale) from vendor's obligation to convey Rights of third persons having equities against assignor (vendor) in respect of the land...........................
2-Quit claim deed given by mortgagor to mortgagee and right given to mortgagor to purchase within three months by paying amount of mortgage-No payment or tender within said period-True nature and effect of the transaction-Evidence-Mortgagor's contention that relationship of mortgagor and mortgagee still subsisted-Onus in seeking to enforce option-Claim that existing lease made by owner relieved option-holder from strict fulfilment of conditions............. SALES TAX
SCHOOLS and taxation- Companies-Company designating portion of its assessment in municipality for separate school purposes - Separate Schools Act, R.S.O., 1937, c. 862, s. 66- Notice by company in form B to city clerk - Apportionment of assessment attacked on ground that portion so designated not ascertained to comply with s. 66 (8) as to proportionate limit-Prima facie validity of notice-Onus of proof. See 6. SEPARATE SCHOOLS
SERVITUDES-Right of view-Wall not common-Lights or windows-Wall resting on two adjoining properties-One owner not having acquired title to rights of mitoyenneti-Articles 515, 633 and 534 C.C.1-Lights or windows, as described in article 534 C.C., can only be made in a wall "not common adjoining the land of another."-When a wall has been erected as to one half on an adjoining property and has all the characteristics of a wall SERVITUDES-Concluded designed to become common, even though it does not appear that the owner of the adjoining land has acquired title to, and paid for, the rights of mitoyennetd in it, the owner who has erected the wall has not the right to make such openings.
Judgment of the Court of King's Bench
(Q.R. 64 K.B. 78) aff.
SHIPPING-Accident to member of crew of ship-Defence of common employment
-British ship-High seas-Port of registration - Conflict of laws
Which law applicable-Sec. 265 of the Merchants'
Shipping Act, 1894 (Imperial) ........
STATUTE OF FRAUDS
STATUTES-Application - Contributory
Negligence Act, Alberta, 1 Geo. VI, c. 18
-Collision between motor vehicles-Said statute coming into force after date of accident but before date of commencement of suit-Statute specifically pleaded
-Whether statute applicable........ 440
2-Bank Act, Dom., 1934, c. 24, ss. 75(2)
(c), 79 (1) (b).......................
3--Bank Act, Dom., 1934, c. 24, s. 88.
4- B.N.A. Act, s. 91 (24).......... 104
5-Contributory Negligence Act, Alberta, 1 Geo. VI, c. 18................
6- Criminal Code, R.S.C., 1927, c. 36,
281, 69.....................
7-Criminal Code (as amended in 1930, c. s. 28), s. 1013 (4) ..............
8-Criminal Code (R.S.C., 1927, c. 36, as amended), ss. 1013 (4), 1025 (3)... 214
10-Exchequer Court Act, R.S.C., 1927, c. 34, s. 83.....................
Farmers' Creditors Arrangement
Act, 1934 (Dom.), c. 53.............
See CREDrros
STATUTES-Continued
Highway Traffic Act, R.S.O., 1927, c. 251 (as amended), s. 88 (5), 40 (1). 214 Highway Traffic Act, R.S.O., 1937, c. 288, s. 39(1)................. Income War Tax Act, R.S.C., 1927, 15--Income War Tax Act, R.S.C., 1927, 16-Income War Tax Act, R.S.C., 1927, c. 97, s. 6........................... Income War Tax Act, R.S.C., 1927, c. 97 (as amended), ss. (2), 4 (e), 55, 56................
Patent Act, Dom.
1935, c. 32, s. 31 .........................
Railway Act, R.S.C. 1927, c. 170, s 52 (3) ........................... 23- Separate Schools Act, R.S.O. 19370 c. 362, s. 66............
........ 24-Special War Revenue Act, R.S.C. 1927, c. 179...........
.......... Supreme Court Act, RS.C. 1927, c. 35, s. 36....................
26-Supreme Court Act (R.S.C. 1927, c. 35, as amended by I Geo. VI, c. 42), s. 37 (3) .......................
27- Supreme Court Act, R.S.C. 1927, c. 35, s. 39......................... 28--Supreme Court Act, R.S.C. 1927, c. 35, s. 41......................... STATUTES-Concluded
29-See also under appropriate subject headings, throughout the index.
STOCK AND GRAIN EXCHANGES
STREET RAILWAYS-Negligence-Collision "etween street car and milk-wagon at street intersection-Responsibility for accident-Findings of jury-Interpretation of findings - Negligence and responsibility in law-Proximate cause of accident-Duty of appellate court when asked to reverse decision, on the evidence, of trial tribunal....................
SUPERANNUATION
S
SUPERIOR COURT (QUEBEC)-Jurisdiction ............................
TRADE IARK-Petition under s. 29 of
Unfair Competition Act (Dom., 1982,
88)-Registration sought of certain words as trade mark-Effect of prior proceedings and decision therein dealing with same words previously registered as trade mark-Res judicata.]-Appellant
May 5, 1938, presented a petition to the
Exchequer Court of Canada, under s. 29 of the Unfair Competition Act (Dom.,
1932, c. 38) for a declaration to enable appellant to register the words " Shredded
Wheat" as a trade mark.
Maclean J., dealing with certain points of law raised in a statement of objections by respondent, dismissed the petition, [1939] Ex.
C.R. 58, one ground of dismissal being
+hat the issues raised therein were res judicata by reason of the judgment of the Judicial Committee of the Privy
Council, 55 R.P.C. 125 (affirming judgment of the Court of Appeal for Ontario,
O.R. 613, affirming judgment of
MeTague J., [1936] O.R. 281), which held, in an action commenced in June, 1934, against respondent alleged infringement of appellant's trade marks of the same words registered in
March, 1928, and April, 1929, that said trade marks were not valid; that the words were purely descriptive of the product and had not acquired a secondary meaning as indicating goods exclusively manufactured by appellant.
Held: The dismissal the petition should affirmed.
The said judgment of the
Judicial Committee of the Privy Council in the former action clearly proceeded (as regards the issue of passing off raised in the action) on the footing that its
TRADE MARKS-Concluded findings were valid as of the date of the commencement of that action in June, Res judicata applied unless there since June, 1934, on which could be based appellant's general plea that the words in question had at the date of the present petition acquired the essential secondary signification to entitle it to have the words registered as a trade mark. In the allegations in the petition no distinction was drawn as to the manner or circumstances of appellant's user of the words since June, 1934, and appellant's preceding long user thereof. Moreover, the effect of a certain undertaking by respondent at the outset of said former action was to give appellant a practical monopoly for nearly four years from June, 1934; and the effect of such a monopoly is, generally speaking, that in the absence of competition there is no occasion in anybody's mind for adverting to distinctiveness in respect of the maker or seller of the goods (Cellular Clothing Co. v. Maxton, 16 R.P.C. 397, at 409; Siegert v. Findlater, 7 Ch. D. 801, at 813, referred to).
On the allegations in the petition and the admitted facts, and there being no averment of special user or special circumstances as aforesaid, no reasonable ground is disclosed for granting the petition. As to appellant's contention that there was no estoppel by res judicata because in the present proceedings respondent appeared in a character (as a member of, and on behalf of, the public) different from that in which it was sued (in its personal character) in said former proceedings-held, that that was a technical point to which effect ought not to be given in the circumstances (Reichel v. Magrath, 14 App. Cas. 665). .........................
TRIAL-Procedure - Proper practice - Trial judge deciding there is no evidence to go to jury, withdrawing case from jury and giving judgment for acquittal-Jurisdiction on appeals - Criminal Code (R.S.C., 1927, c. 86, as amended), ss. (4), 214 2-Procedure-Jury visiting locus and other places for inspection.......... 3- Action for damages by wife and children of person killed by alleged negligence of tramway company-Whether such action triable by jury-Article 1056, C.C. -Article
421, C.CP................ 4gg VENDORS AND PURCHASERS - Assignment to bank of moneys payable under agreement of sale of land, as security for all existing and future indebtedness of the vendor to bank-Validity of assignment-Bank Act (Dom., 1984, c. 94), ss. 75 (9) (c), 79 (1) (b)-Inseverability of purchaser's obligation to pay (under agreement of sale) from vendor's obligation to convey-Rights of third persons having equities against assignor (vendor)
in respect of the land................
D,
WALL
WILL-Construction-Gift of income for life with power to appoint by deed or will the inheritance of the principal- Right of beneficiary to exercise power by deed in own favour so as to acquire right to principal immediately.1-A testator in his will, after certain specific gifts, directed that his trustee stand possessed of the residue of the estate upon trust for conversion and, after payment of debts, etc., to invest the residue and pay the income therefrom to the testator's wife during her life and upon her death (which occurred to the testator's death) to pay a certain share thereof to a son
(which was done), and to invest onehalf of the residue in trust to pay the income therefrom to another son during his life (with power to pay him a limited sum from the principal) and upon his death his share (or so much thereof not received by him) was to "go and be disposed of as he may by deed or will appoint," with gift over in default of
As to the remaining half of said residue the following provision
(now in question) was made: to invest it in trust to pay the income therefrom to the testator's daughter during her lifetime "and upon her death said share to go and be disposed of as she may by deed or will appoint," and in default of such appointment (or so far as it should not apply), if she should die leaving issue then living, the share to go to her child or children then living, equally, to be paid to each on attaining 21 years of age, income in meantime to be applied for support, etc., during respective minorities;
if she should die without leaving issue then living and without having made any such appointment as aforesaid, the share to go to the testator's two sons equally or to the survivor of them. The daughter demanded payment of the share covered by this provision, and the question of her rights thereunder came before the court. Held: The daughter could exercise her said power of appointment by deed in her favour so as to vest in
EX
WILL-Concluded her immediately her share of the residue of the estate and so as to entitle her to have the same transferred to her immediately. Authorities referred to and discussed. Judgment of the Appellate Division, Alberta, [1938] 2 W.W.R. 433, affirming judgment of Shepherd J., [19381 2 W.W.R. 152, reversed.
2-Construction - Vesting.1-The testatrix in her will devised property to her trustees in trust for conversion, the proceeds to be invested and the income therefrom to be paid to her husband (who predeceased her) during his life and after his decease "to be paid half yearly to my unmarried daughters share and share alike and after the marriage or decease of my last remaining single daughter my said Trustees shall divide the whole of my property held- by them in Trust among all my children share and share alike." The question on construction of the will was whether the corpus of the testatrix' estate vested at her death in all her children or vested on the termination of the income interests (at the death of the last remaining unmarried daughter) in the only child of the testatrix then alive. Held: The corpus of the testatrix' estate vested at the time of her death absolutely in all her children then alive, share and share alike.
Browne v. Moody, A.C. 635, referred to. Ross v. Co. 276 WORDS AND PHRASES-"Action thereon" (Patent Act, 1935, c. 32, s. 31)... 358 2-"Actual amount in controversy" not exceeding "the sum or value of 8500" (Exchequer Court Act, R.S.C., 1927, c. 34, s. 83).............................. 3--"
Amount or value of the matter in controversy in the appeal" (Supreme Court Act, R.S.C., 1927, c. 35, s. 39). 364 4-"Charitable Institution" (within 4 (e) of the Income War Tax Act, R.S.C., 1927, c. 97)........................ 5_-"Common Bawdy House" (Cr. Code, s. 225) ........................
-- " Esquimo"........
........ 7-"
Farmer" .................
WORDS AND PHRASES-Continued
8----" Final judgment" (Supreme Court
Act, R.S.C., 1927, c. 35, ss. 2 (b), 36). 273
" Highest court of final resort having jurisdiction in the province " (Supreme
Court Act, R.S.C., 1927, c. 35 (as amended by 1 Geo. VI, c. 42), s. 37 (3)).... 271
Income" (Income War Tax Act,
R.S.C., 1927, c. 97, s. 3).............
Income accumulating in trust for the benefit of unascertained persons, or persons with contingent interests" (Income War Tax Act, RS.C., 1927, c. 97
(as amended), (2).............. 125
12-" Indians and Lands reserved for the Indians" (B.N.A. Act, s. 91 (24). 104
WORDS AND PHRASES-Concluded Judgment directing a new trial" (Supreme Court Act, R.S.C., Matters by which rights in future of the parties may be affected " (s. 41 of the Supreme Court Act)............ " Owner" (within of Bank Act; Dom., 1934, c. 24)............. 16--"Person .......
.......... Acr.
" Principal occupation"....... 223 Question of law " (Railway Act, R.S.C., (3))....... (Action) "resulting from personal wrongs" (Art. 421 C.C.P.).......... RULE 1.-In the following Rules, unless the context otherwise requires, "Judge " or " Judge of the Court " means any Judge of the Supreme Court, and the expression " Judge of the Supreme Court in Chambers " or " Judge in Chambers " shall also include the Registrar sitting in Chambers under the powers conferred upon him by Rules 82 to 89 inclusive.
2.-In the following Rules the following words have the several meanings hereby assigned to them over and above their several ordinary meanings, unless there be something in the subject or context repugnant to such construction, that is to say:
(1) Words importing the singular number include the plural number, and words importing the plural number include the singular number.
(2) Words importing the masculine gender include females.
(3) The word " party " or " parties " includes a body politic or corporate, and also His Majesty The King, and His Majesty's Attorney-General.
(4) The word affidavit " includes affirmation.
(5) The words " the Act " mean " The Supreme Court Act."
(6) The word "month " means calendar month where lunar months are not expressly mentioned.
MOTIONS TO QUASH APPEALS
3.-At any time after an order has been made pursuant to the Supreme Court Act allowing the security required by the Act the respondent may apply to the Court for an order quashing the appeal.
4.-In the event of the appeal being quashed the appellant may, in the discretion of the Court, be ordered to pay the whole or any part of the costs of the appeal.
RULE 5.-Upon service of the notice of motion to quash all further proceedings in the appeal shall be stayed until the motion has been disposed of unless the Court or a judge shall otherwise order. Any such motion shall be brought on for hearing with no avoidable delay.
CASE TO CONTAIN REASONS FOR JUDGMENT
RULE 6.-The case provided for by the Supreme Court Act certified under the seal of the court appealed from, shall be filed in the office of the Registrar, and in addition to the proceedings mentioned in said Act, shall invariably contain a transcript of all the opinions or reasons for their judgment delivered by the judges of the court or courts below, or a certificate signed by the clerk of such court or courts or an affidavit that such reasons cannot be procured, and stating the efforts made to obtain the same.
RULE 7.-The case shall also contain a copy of all judgments given in the courts below, and a copy of any order which may have been made by the court below, or any judge thereof, enlarging the time for appealing.
CASE MAY BE REMITTED TO COURT BELOW
RULE 8.-The Court, or a Judge of the Supreme Court in Chambers, may order the case to be remitted to the court below for correction, or in order that it may be made more complete by the addition thereto of further matter. MOTION TO DISMISS FOR DELAY
RULE 9.-If the appellant does not file his case in appeal with the Registrar within forty days after the security required by the Act shall be allowed, he shall be considered as not duly prosecuting his appeal, and the respondent may move to dismiss the appeal pursuant to the provisions of the Act in that behalf. CERTIFICATE OF SECURITY GIVEN
RuLE 10.-When security has been given in the Court appealed from, the case shall be accompanied by a certificate under the seal of the court below, stating that the appellant has given proper security to the satisfaction of the court whose judgment is appealed from, or of a judge thereof, and setting forth the nature of the security to the amount of five hundred dollars as required by the Act, and a copy of any bond or other instrument by which security may have been given, shall be annexed to the certificate.
CASE TO BE PRINTED AND THIRTY COPIES DEPOSITED WITH REGISTRAR
RuLE 11.-The case shall be printed by the party appellant, and thirty printed copies thereof shall be deposited with the Registrar for the use of the judges and officers of the Court.
2. As soon as the case has been printed the solicitor for appellant shall, on demand, deliver to the solicitor for the respondent, three printed copies thereof. FORM OF CASE
RULE 12.-The case shall be in demi-quarto form. It shall be printed on paper of good quality, and on one side of the paper only with the printed pages to the left, and the type shall be pica (but long primer shall be used in printing accounts or tabular matter).
The size of the case shall be eleven inches by eight and one-half inches, and every tenth line shall be numbered in the margin. The number of lines on each page shall be 47 or thereabouts and there shall be at least 500 words in every printed page.
2. Where evidence is printed there shall be a headline on each page, giving name of witness, and showing for whom called and whether the evidence is examination-in-chief, cross-examination, or as the case may be.
3. All printed or written documents filed as exhibits shall be grouped together and printed in chronological order in the case, and where a number of documents are filed in the court below as one exhibit they shall, for the purpose of the case, be treated as independent exhibits.
4. All pleadings, judgments and other documents shall be printed in full unless dispensed with by the Registrar.
5. The title page shall contain the name of the Court and province from which the appeal comes, and the style of cause, putting the appellant's name first, as follows:- A.B.
(Plaintiff or defendant, as the case may be.)
(Defendant or plaintiff, as the case may be.)
Respondent.
The names of solicitors and agents must also be added.
6. Where the case exceeds 300 pages, it shall be bound in separate volumes of not more than about 200 pages each.
7. The price to be taxed for the printing of 30 copies in the form prescribed by these rules shall not exceed 50 cents for every 100 words for each printed page of pica or its equivalent, but the Registrar shall have power in a proper case to exceed this allowance.
8. There shall be an index at the beginning of the case, which shall set out in detail the entire contents of the case in four parts, as follows:- Part I.-Each pleading, rule, order, entry or other document with its date. in chronological order.
Part II.-Each witness by name, stating whether for plaintiff or defendant, examination-in-chief, or cross-examination, or as the case may be, giving the Part III.-Each exhibit with its description, date and number, in the order in which they were filed.
Part IV.-All judgments in the Courts below, with the reasons for judgment, and the name of the judge delivering the same.
Where the case is bound in more than one volume, each volume shall contain at the beginning thereof an index of the entire case, unless otherwise directed by the Registrar.
9. Subject to the provision as to the printing of documents in chronological order, if the appellant desires the case may be printed according to the regulations as to form and type in appeals to His Majesty in Council.
CASE NOT TO BE FILED UNLESS RULES COMPLIED WITH RULE 13.-The Registrar shall not file the case without the leave of the Court, or a Judge, if the foregoing order has not been complied with, nor if it shall appear that the press has not been properly corrected, and no costs shall be taxed for any case not prepared in accordance with the Rules.
2. Every case filed and each copy thereof directed to be filed by these Rules shall be accompanied by a certificate (Form 0), signed by a solicitor for the appellant or his Ottawa agent, that the print thereof has been compared with the originals and is correct.
DISPENSING WITH PRINTING. ORIGINAL RECORD
14.-The Court or a Judge in Chambers may dispense with the printing or copying of any of the documents or plans forming part of the case. 2. The original record in the court appealed from and all exhibits and documentary evidence filed in the cause, shall be transmitted to the Registrar with the certified case provided for in the Act.
RULE 15.-The notice convening the Court for the purpose of hearing election or criminal appeals, or appeals in matters of habeas corpus, or for other purposes under the provision of the Act in that behalf, shall, pursuant to the directions of the Chief Justice or senior puisn6 judge, as the case may be, be published by the Registrar in the Canada Gazette, and shall be inserted therein for such time before the day appointed for such special session as the said chief justice or senior puisn6 judge may direct, and may be in the form given in Form A, of the Schedule to these Rules.
NOTICE OF HEARING OF APPEAL
RULE 16.-After the filing of the case, a notice of the hearing of the appeal shall be given by the appellant for the next following session of the Court as fixed by the Act, or as specially convened for hearing appeals according to the provisions thereof, if sufficient time shall intervene for that purpose, and if between the filing of the case and the first day of the next ensuing session there shall not be sufficient time to enable the appellant to serve the notice as hereinafter prescribed, then such notice of hearing shall be given for the session following the then next ensuing session.
FORM OF NOTICE OF HEARING
RULE 17.-The notice of hearing may be in the form given in Form B of the Schedule to these Rules.
WHEN TO BE SERVED
RULE 18.-The notice of hearing shall be served at least twelve days before the first day of the session at which the appeal is to be heard.
HOW NOTICE OF HEARING TO BE SERVED
19.-Such notice shall be served on the attorney or solicitor, who shall have represented the respondent in the court below, at his usual place of business, or on the booked agent, or at the elected domicile of such attorney or solicitor at the City of Ottawa, and if such attorney or solicitor shall have no booked agent or elected domicile at the City of Ottawa, the notice may be served by affixing the same in some conspicuous place in the office of the Registrar, and mailing on the same day a copy thereof prepaid to the address of such attorney or solicitor.
2. Where the validity of a Statute of the Parliament of Canada is brought in question in an appeal to the Supreme Court, notice of hearing, stating the matter of jurisdiction raised, shall be served on the Attorney General of Canada. 3. When the validity of a Statute of a Legislature of a Province of Canada is brought in question in an appeal to the Supreme Court, notice of hearing stating the matter of jurisdiction raised shall be served on the Attorney General of Canada and the Attorney General of the Province.
"THE AGENTS BOOK"
RULE 20.-There shall be kept in the office of the Registrar of this court, a book to be called " The Agent's Book," in which all advocates, solicitors, attorneys and proctors practising in the said Supreme Court may enter the name of an agent (such agent being himself a person entitled to practise in the said court), at the said City of Ottawa, or elect a domicile at the said City. 21.-In case any appellant or respondent who may have been represented by attorney or solicitor in the court below, shall desire to appear in person in the appeal, he shall immediately after the allowance by the court appealed from, or a judge thereof, of the security required by the Act, file with the Registrar a suggestion in the form following:
"A. vs. B.
"I, C. D., intend to appear in person in this appeal.
IF NO SUGGESTION FILED
RULE 22.-If no such suggestion be filed, and until an order has been obtained as hereinafter provided for a change of solicitor or attorney, the solicitor or attorney who appeared for any party below shall be deemed to be his solicitor or attorney in the appeal to this court.
SUGGESTION BY APPELLANT OR RESPONDENT WHO ELECTS TO APPEAR BY ATTORNEY
RULE 23.-When an appellant or respondent has appeared in person in the court below, he may elect to appear by attorney or solicitor in the appeal, in which case the attorney or solicitor shall file a suggestion to that effect in the office of the Registrar, and thereafter all papers are to be served on such attorney or solicitor as hereinbefore provided.
ELECTION OF DOMICILE BY APPELLANT OR RESPONDENT WHO APPEARS IN PERSON
RULE 24.-An appellant or respondent who appears in person may, by a suggestion filed in the Registrar's office, elect some domicile or place at the City or Ottawa, at which all notices and papers may be served upon him, in which case service at such place of all notices and papers shall be deemed good service. SERVICE WHEN APPELLANT OR RESPONDENT APPEARS IN PERSON WITHOUT ELECTING DOMICILE
RULE 25.-In case the appellant or respondent who shall have appeared in person in the court appealed from, or who shall have filed a suggestion under Rule 21 shall not, before service, have elected a domicile at the City of Ottawa, service of all papers may be made by affixing the same in some conspicuous place in the office of the Registrar.
CHANGING ATTORNEY OR SOLICITOR
RULE 26.-Any party to an appeal may, on an ex parte application to the Registrar, obtain an order to change his attorney or solicitor, and after service of such order on the opposite party, all services of notices and other papers are to be made on the new attorney or solicitor.
RuLE 27.-Where personal service of any notice, order or other document is required by these Rules, or otherwise, and it is made to appear to the Court or a Judge in Chambers that prompt personal service cannot be effected, the Court or Judge in Chambers may make such order for substitutional or other service, or for the substitution of notice for service by letter, public advertisement, or otherwise, as may be just.
AFFIDAVITS OF SERVICE
RULE 28.-Affidavits of service shall state, when, where and how and by whom such service was effected.
FACTUMS TO BE DEPOSITED WITH REGISTRAR
RULE 29.-At least fifteen days before the first day of the session at which the appeal is to be heard, the parties appellant and respondent shall each deposit with the Registrar, for the use of the court and its officers, thirty copies of his factum or points for argument in appeal.
CONTENTS OF FACTUM
RULE 30.-The factum or points for argument in appeal shall consist of three parts, as follows:
Part 1.-A concise statement of the facts.
Part 2.-In the case of an appellant's factum, a concise statement setting out clearly and particularly in what respect the judgment is alleged to be erroneous. When the error alleged is with respect to the admission or rejection of evidence, the evidence admitted or rejected shall be stated in full. When the error alleged is with respect to the charge of the judge to the jury, the language of the judge and the objection of counsel shall be set out verbatim.
In the case of a respondent's factum, a concise statement of the points in issue on the appeal and of the position of the respondent in regard thereto. Part 3.-A brief of the argument setting out the points of law or fact to be discussed, with a particular reference to the page and line of the case and the authorities relied upon in support of each point. When a statute, regulation, rule, ordinance or by-law is cited, or relied on, so much thereof as may be necessary to the decision of the case shall be printed at length.
HOW TO BE PRINTED
RULE 31.-The factum or points for argument in appeal shall be printed in the same form and manner as hereinbefore provided for with regard to the case in appeal, and shall not be received by the Registrar unless the requirements hereinbefore contained, as regards the case, are all complied with.
MOTION BY RESPONDENT TO DISMISS APPEAL ON GROUND OF DELAY IN FILING FACTUM
RULE 32.-If the appellant does not deposit his factum or points for argument in appeal within the time limited (Rule 29), the respondent shall be at liberty to move to dismiss the appeal on the ground of undue delay under the provisions of the Act in that behalf.
RULE 33.-If the respondent fails to deposit his factum or points for argument in appeal within the prescribed period, the appellant may set down or inscribe the cause for hearing ex parte.
SETTING ASIDE INSCRIPTION EX PAR TE
RULE 34.--Such setting down or inscription ex parte may be set aside or discharged upon an application to a Judge in Chambers sufficiently supported by affidavits.
REGISTRAR TO SEAL UP FACTUMS FIRST DEPOSITED RULE 35.-The factum or points for argument in appeal first deposited with the Registrar shall be kept by him under seal, and shall in no case be communicated to the opposite party until the latter shall himself bring in and deposit his own factum or points.
INTERCHANGE OF FACTUMS
RULE 36.-As soon as both parties shall have deposited their said factums or points for argument in appeal, each party shall, at the request of the other, deliver to him three copies of his said factum or points.
REGISTRAR TO INSCRIBE APPEALS FOR HEARING
RULE 37.-Appeals shall be set down or inscribed for hearing in a book to be kept for that purpose by the Registrar, at least fourteen days before the first day of the session of the Court fixed for the hearing of the appeal.
But no appeal shall be so inscribed in which the case shall not have been filed twenty clear days before said first day of said session, without the leave of the Court or a Judge in Chambers.
COUNSEL AT HEARING
38.-Except by leave on special grounds no more than two counsel on each side shall be heard on any appeal, and but one counsel shall be heard in reply.
POSTPONEMENT OF HEARING
RULE 39.-The Court may in its discretion postpone the hearing until any future day during the same session, or at any following session.
DEFAULT BY PARTIES IN ATTENDING HEARING
40-(a) Appeals shall be heard in the order in which they have been set down, and if either party neglects to appear at the proper day to support or resist the appeal, the Court may hear the other party, and may give judgment without the intervention of the party so neglecting to appear, or may postpone the hearing upon such terms as to payment of costs or otherwise as the court shall direct.
(b) In any case in which judgment has been reserved, counsel representing the parties will be expected to attend upon the pronouncement of such judgment, and in default of such attendance the pronouncement of judgment may be deferred.
RULE 41.-All orders and judgments of the Court shall be settled and signed by the Registrar.
SETTLING AND ENTRY OF JUDGMENT
RULE 42.-The solicitor for the successful party shall obtain an appointment from the Registrar for settling the judgment, and shall serve a copy of the draft minutes and a copy of the appointment upon the solicitor for the opposite party two clear days at least before the time fixed for settling the judgment. The Registrar shall satisfy himself in such manner as he may think fit that service of the minutes of judgment and of the notice of appointment has been duly effected.
RULE 43.-If any party fails to attend the -Registrar's appointment for settling the draft of any judgment, the Registrar may proceed to settle the draft in his absence.
RULE 44.-Where the successful party neglects or refuses to obtain an appointment to settle the minutes of judgment, the Registrar may give the conduct of the proceedings to the opposite party.
45.-The Registrar may adjourn any appointment for settling the draft of any judgment or order to such time as he may think fit, and the parties who attended the appointment shall be bound to attend such adjournment without further notice.
RULE 46.-Notwithstanding the preceding rules, the Registrar shall in any case in which the Court or a Judge may think it expedient, settle any judgment or order without making any appointment, and without notice to any party. RULE 47.-Any party dissatisfied with the minutes of judgment as settled by the Registrar may move the Court to vary the minutes as settled, upon serving the solicitor for the opposite party with two clear days' notice of his motion, and the said motion shall be brought on for hearing at the nearest convenient session of the Court, but the said motion shall not stay the entry of the judgment, if the Registrar is of the opinion that the motion is frivolous or would unreasonably prejudice the successful party, unless a judge of the Supreme Court shall otherwise order. Such a motion shall be based only on the ground that the minutes as settled do not in some one or more respects specified in the notice of motion accord with the judgment pronounced by the Court, or that some matter which should have been dealt with has been overlooked or accidentally omitted from the judgment so pronounced.
48.-Every judgment shall be dated as of the day on which such judgment is pronounced, unless the Court shall otherwise order, and the judgment shall take effect from that date; provided that by special leave of the Court or a Judge a judgment may be ante-dated or postdated.
RULE 49.-Every judgment or order made in any cause or matter requiring any person to do an act thereby ordered shall state the time, or the time after service of the judgment or order, within which the act is to be done, and upon the copy of the judgment or order which shall be served upon the person required to obey the same, there shall be indorsed a memorandum in the words or to the effect following, viz: " If you, the within-named A. B. neglect to obey this judgment (or order) by the time therein limited, you will be liable to process of execution for the purpose of compelling you to obey the same."
RULE 50.-In any case not already provided for by the Act, in which it becomes essential to make an additional party to the appeal, either as appellant or respondent, and whether such proceeding becomes necessary in consequence of the death or insolvency of any original party, or from any other cause, such additional party may be added to the appeal by filing a suggestion, which may be in the Form C in the Schedule to these Rules.
2. On any appeal the Court may, on the application of any of the parties or without such application, direct that a party or parties respondent be added where, in the opinion of the Court, such order is just and convenient and necessary to enable the Court effectually and completely to adjudicate upon and settle the question involved in the appeal, and where, on the facts before it, the Court is of the opinion that such party or parties should have been added by the Court whose decision is appealed from.
Such order shall be made upon such terms and shall contain such consequential directions as to the Court seems just.
SUGGESTIONS MAY BE SET ASIDE
RULE 51.-The suggestion referred to in the next preceding Rule may be set aside on motion, by the Court or a Judge thereof.
SERVICE OF NOTICE
RULE 52.-Notice of the filing of such suggestion shall be served upon the other party or parties to the appeal.
DETERMINING QUESTIONS OF FACT ARISING ON MOTION 53.-Upon any motion to set aside a suggestion, the Court or a Judge thereof may in its or his discretion, direct evidence to be taken before a proper officer for that purpose or may direct that the parties shall proceed in the proper court for that purpose, to have any question tried and determined, and in such case all proceedings in appeal may be stayed until after the trial and determination of the said question.
MOTIONS
RULE 54.-All interlocutory applications in appeal shall be made by motion, supported by affidavits to be filed in the office of the Registrar. The notice of motion shall be served at least four clear days before the time of hearing. All affidavits and material to be used on a motion shall be filed with the Registrar at least two clear days before the motion is heard. The notice of motion shall set out fully the grounds upon which it is based. In all motions to quash for want of jurisdiction a copy of the pleadings and judgments in the courts below shall form part of the material filed.
NOTICE OF MOTION, HOW SERVED
RULE 55.-Such notice of motion may be served upon the solicitor or attorney of the opposite party by delivering a copy thereof to the booked agent, or at the elected domicile of such solicitor or attorney to whom it is addressed, at -the city of Ottawa. If the solicitor or attorney has no booked agent, or has elected no domicile at the City of Ottawa, or if a party to be served with notice of motion has not elected a domicile at the City of Ottawa, such notice may be served by affixing a copy thereof in some conspicuous place in the office of the Registrar of this Court.
RuE 56.-Service of a notice of motion shall be accompanied by copies of affidavits filed in support of the motion.
SETTING DOWN MOTIONS
RuLE 57.-Motions to be made before the Court shall be set down on a list or paper and shall be called before the hearing of appeals is proceeded with on the first day of any session and on the first day of each week on which the Court is in session.
EXAMINATION ON AFFIDAVIT
RLE 58.-Any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party, may, by leave of a Judge in Chambers, serve upon the party by whom such affidavit has been filed, or his solicitor, a notice in writing, requiring the production of the deponent for crossexamination before the Registrar or a commissioner for taking affidavits designated by such Judge in Chambers; such notice shall be served within such time as the Registrar may specially appoint; and unless such deponent is produced accordingly, his affidavit shall not be used as evidence unless by the special leave of the Court or a Judge in Chambers. The party producing such deponent for cross-examination shall not be entitled to demand the expenses thereof in the first instance from the party requiring such production unless the Registrar so direct.
APPEAL ABANDONED BY DELAY
RutE 59.-Unless the appeal is brought on for hearing by the appellant within one year next after the security shall have been allowed, it shall be held to have been abandoned without any order to dismiss being required, unless the Court or a Judge shall otherwise order, and the Registrar may upon application by the respondent tax costs and issue a certificate of dismissal.
INTERVENTION
RULE 60.-Any person interested in an appeal between other parties may, by leave of the Court or a Judge, intervene therein upon such terms and conditions and with such rights and privileges as the Court or Judge may determine. 2. The costs of such intervention shall be paid by such party or parties as the Supreme Court shall order.
RE-HEARING
61.-There shall be no re-hearing of an appeal except by the leave of the Court on a special application, or at the instance of the Court.
DISCONTINUANCE
RuLE 62.-When a notice of discontinuance has been given by an appellant to a respondent, the latter shall be entitled to have his costs taxed by the Registrar without any order, unless the notice of discontinuance is served after the appeal has been inscribed for hearing in the Supreme Court. In the latter event, such order shall be made by the Court as to costs and otherwise as to the Court may seem meet.
RULE 63.-The foregoing Rules shall be applicable to appeals from the Exchequer Court of Canada, except in so far as the Exchequer Court Act has otherwise provided.
RULES NOT APPLICABLE TO CRIMINAL APPEALS, NOR HABEAS CORPUS
RULE 64.-The foregoing Rules shall not, except as hereinbefore provided, apply to criminal appeals, nor to appeals in matters of habeas corpus under section 57 of the Act.
CASE IN CRIMINAL APPEALS AND HABEAS CORPUS 65.-Criminal appeals may be heard on a written or typewritten case certified under the seal of the Court appealed from and in which case shall be included all judgments and opinions pronounced in the Courts below. The appellant shall also file seven typewritten or printed copies of the case, and the appellant and respondent shall each file seven copies of a memorandum of the points for argument, except in so far as dispensed with by the Registrar. 2. In appeal in habeas corpus cases under see. 57 of the Act, a printed or typewritten case containing the material before the Judge appealed from, and the judgment of the said Judge, together with a memorandum of the points for argument of appellant and respondent, except in so far as dispensed with by the Registrar, shall be filed, and seven copies of such case and memorandum shall be deposited with the Registrar.
WHEN CASE TO BE FILED
66.-In criminal appeals and in appeals in cases of habeas corpus, under section 57 of the Act, unless the Court or a Judge in Chambers shall otherwise order, the case shall be filed fifteen clear days before the day of the session of the Court at which the appeal is proposed to be heard.
NOTICE OF HEARING IN CRIMINAL APPEALS AND IN APPEALS IN MATTERS OF HABEAS CORPUS
67.-In cases of criminal appeals and appeals in matters of habeas corpus, under section 57 of the Act, notice of hearing shall be served at least five days before the day of the session at which the appeal is proposed to be heard.
ELECTION APPEALS
RULE 68.-Except as otherwise provided by the Dominion Controverted Elections Act, and by the three following Rules, the Supreme Court Rules shall, so far as applicable, apply to appeals in controverted election cases.
RULE 69.-In controverted election appeals the party appellant shall obtain from the Registrar, upon payment of the usual charges therefor, a certified copy of the record or of so much thereof as a Judge in Chambers may direct to be printed, and shall have forty-five (45) copies of the said certified copy printed in the same form as herein provided for the Case in ordinary appeals, and immediately after the completion of the printing shall deliver to the Registrar thirty-five (35) of such printed copies, thirty (30) thereof for the use of the Court and its officers and five (5) thereof for the use of the respondent, and to be handed by the Registrar to the respondent or his solicitor or booked agent upon application made therefor.
2. For printing in election appeals the same fees shall be allowed on taxation as for printing the Case in ordinary appeals.
70.-As soon as the Registrar shall have received the record duly certified by the clerk of the election court, the appellant shall apply on notice to a Judge in Chambers to have a day fixed for the hearing and to have the appeal set down, and on one week's default the respondent may move to dismiss the appeal.
RULE 71.-In election appeals a Judge in Chambers may, upon the application of the appellant or respondent, make an order dispensing with the printing of the whole or any part of the record, and may also dispense with the delivery of any factum or points for argument in appeal.
HABEAS CORPUS
RULE 72.-Applications for writs of habeas corpus ad subjiciendum shall be made by motion for an order which, if the Judge so direct, may be made absolute ex parte for the writ to issue in the first instance; or the Judge may direct a summons for the writ to issue, and the Judge in his discretion may refer the application to the Court. Such summons and order may be in the Forms D and E respectively set out in the Schedule to these Rules.
RULE 73.-If a summons for the writ to issue is granted, a copy thereof shall be served upon the Attorney-General of the Province in which the warrant of commitment was issued, and shall be returnable within such time as the summons shall direct.
74.-On the argument of the summons for a writ to issue, the Judge may in his discretion, direct an order to be drawn up for the prisoner's discharge instead of waiting for the return of the writ, which order shall be a sufficient warrant to any gaoler or constable or other person for his discharge. 75.-The writ of habeas corpus shall be served personally, if possible, upon the party to whom it is directed; or if not possible, or if the writ be directed to a gaoler or other public official, by leaving it with a servant or agent of the person confining or restraining, at the place where the prisoner is confined or restrained, and if the writ be directed to more than one person, the original shall be delivered to or left with the principal person, and copies served or left on each of the other persons in the same manner as the writ. Such writ of habeas corpus may be in the Form F set out in the Schedule to these Rules.
RULE 76.-If a writ of habeas corpus be disobeyed by the person to whom it is directed, application may be made to the Judge or the Court on an affidavit of service and disobedience, for an attachment for contempt. The affidavit of service may be in the Form G set out in the Schedule to these rules. RULE 77.-The return to the writ of habeas corpus shall contain a copy of all the causes of the prisoner's detention endorsed on the writ, or on a separate sheet of paper annexed to it.
RULE 78.-The return may be amended or another substituted for it by leave of the Court or a Judge.
RULE 79.-When a return to the writ of habeas corpus is made, the return shall first be read, and motion then made for discharging or remanding the prisoner, or amending or quashing the return.
REFERENCES
RULE 80.-Whenever a reference is made to the Court by the Governor in Council or by the Board of Railway Commissioners for Canada, the case shall be inscribed by the Registrar only upon the direction and order of the Court or a Judge thereof, after notice has been given to all interested parties, and factums shall thereafter be filed by all parties to the reference in the manner and form and within the time required in appeals to the Court.
APPEALS FROM BOARD OF RAILWAY COMMISSIONERS 81.-Whenever an appeal is taken from any decision of the Board of Railway Commissioners for Canada pursuant to the provisions of the Railway Act, the appeal shall be upon a case to be stated by the parties, or in the event of difference, to be settled by the said Board or the Chairman thereof, and the case shall set forth the decision objected to, and so much of the affidavits, evidence and documents as are necessary to raise the question for the decision of the Court.
2. All the Rules of the Supreme Court from 1 to 62, both inclusive, shall be applicable to appeals from the said Board of Railway Commissioners for Canada, except in so far as the Railway Act otherwise provides.
THE REGISTRAR'S JURISDICTION
RULE 82.-The transaction of any business and the exercise of any authority and jurisdiction in respect of the same, which by virtue of any statute or custom, or by the practice of the Court, was, on the 23rd day of June, 1887, or might thereafter be done, transacted or exercised by a Judge of the Court sitting in Chambers, except the granting of writs of habeas corpus and adjudicating upon the return thereof, and the granting of writs of certiorari, may be transacted and exercised by the Registrar.
83.-In case any matter shall appear to the Registrar to be proper for the decision of a Judge, the Registrar may refer the same to a Judge, and the Judge may either dispose of the matter, or refer the same back to the Registrar, with such directions as he may think fit.
RULE 84.-Subject to Rule 86, every order or decision made or given by the Registrar sitting in Chambers shall be as valid and binding on all parties concerned as if the same had been made or given by a Judge sitting in Chambers. RULE 85.-All orders made by the Registrar sitting in Chambers shall be signed by the Registrar.
RULE 86.-Any person affected by any order or decision of the Registrar, except as otherwise in these rules provided, may appeal therefrom to a Judge of the Supreme Court.
RULE 87.-All appeals from the Registrar to a Judge of the Court shall be by motion on notice setting forth the grounds of objection, and served within four days after the decision complained of, and two clear days before the day fixed for hearing the same, or served within such other time as may be allowed by a Judge of the said Court or the Registrar.
RuLE 88.-Appeals from the Registrar to a Judge of the Court shall be brought on for hearing on the first Monday after the expiry of the delays provided for by the next preceding Rule, or so soon thereafter as the same can be heard, and shall be set down not later than the preceding Saturday in a book kept for that purpose in the Registrar's office.
RULE 89.-For the transaction of business under these Rules, the Registrar, unless absent from the city, or prevented by illness or other necessary cause, shall sit every juridical day, except during the vacations of the Court, at 10 a.m., or such other hour as he may specify from time to time by notice posted in his office.
FEES TO BE PAID REGISTRAR
RULE 90.-The fees mentioned in Form H set out in the Schedule to these Rules shall be paid to the Registrar by stamps to be prepared for that purpose. RuLE 91.-Costs in appeal between party and party shall be taxed pursuant to the tariff of fees contained in Form I set out in the Schedule to these Rules. RULE 92.-The Court or a Judge may direct a fixed sum for costs to be paid in lieu of directing the payment of costs to be taxed.
RULE 93.-In any case in which by the order or direction of the Court, or Judge, or otherwise, a party entitled to receive costs is liable to pay costs to any other party, the Registrar may tax the costs such party is so liable to pay, and may adjust the same by way of deduction or set-off, or may, if he shall think fit, delay the allowance of the costs such party is entitled to receive until he has paid or tendered the costs he is liable to pay; or such officer may allow or certify the costs to be paid, and direct payment thereof, and the same may be recovered by the party entitled thereto, in the same manner as costs ordered to be paid may be recovered.
RULE 94.-The Registrar may, whenever he deems it advisable, reserve any question arising on the taxation of costs for the opinion of a Judge.
RULE 95.-The Registrar shall, for the purpose of any proceeding before him, have power and authority to adminster oaths and examine witnesses, and shall in relation to the taxation of costs have authority to direct the production of such books, papers and documents as he shall deem necessary.
RULE 96.-Any person who may be dissatisfied with the allowance or disallowance by the Registrar, in any bill of costs taxed by him, of the whole or any part of any items, may, at any time before the certificate or allocatur is signed, or such earlier time as may in any case be fixed by the Registrar, deliver to the other party interested therein, and bring in before the Registrar, his objection in writing to such allowance or disallowance, specifying therein by a list, in a short and concise form, the items or parts thereof objected to, and the grounds and reasons for such objections, and may thereupon apply to the Registrar to review the taxation in respect of the same. The Registrar may, if he shall think fit, issue, pending the consideration of such objections, a certificate of taxation or allocatur for or on account of the remainder of the bill of costs, and such further certificate or allocatur as may be necessary shall be issued by the Registrar after his decision upon such objections.
RULE 97.-Upon such application the Registrar shall reconsider and review his taxation upon such objections, and he may, if he shall think fit, receive further evidence in respect thereof.
RULE 98.-Any party who may be dissatisfied with the certificate or allocatur of the Registrar as to any item which may have been objected to as aforesaid, may within two days from the date of the certificate or allocatur, or such other time as the Registrar at the time he signs his certificate or allocatur may allow, appeal to a Judge of the Supreme Court from the taxation as to the said item, and the Judge may thereupon make such order as to him may seem just; but the certificate or allocatur of the Registrar shall be final and conclusive as to all matters which shall not have been objected to in manner aforesaid. RULE 99.-Such appeal shall be heard and determined by the Judge upon the evidence, which shall have been brought in before the Registrar and no further evidence shall be received upon the hearing thereof, unless the Judge shall otherwise direct, and the costs of such appeal shall be in the discretion of the Judge.
RULE 100.-It shall not, under any circumstances, be necessary for a respondent to give notice of motion by way of cross-appeal, but if a respondent intends upon the hearing of an appeal to contend that the decision of the court below should be varied, he shall, within fifteen days after the security has been approved, or such further time as may be prescribed by the Court or a Judge in Chambers, give notice of such intention to all parties who may be affected thereby. The omission to give such notice shall not in any way interfere with the power of the Court on the hearing of an appeal to treat the whole case as open, but may, in the discretion of the Court, be ground for an adjournment of the appeal or for special order as to costs.
101.-The respondent who gives a notice of cross-appeal shall deposit a printed factun or points for argument in appeal with the Registrar in the manner hereinbefore provided as regards the principal appeal, and the parties upon whom such notice has been served shall also deposit their printed factum in the manner hereinbefore provided as regards the principal appeal. Factums on the cross-appeal shall be interchanged between the parties as hereinbefore provided as to the principal appeal. The factum on the cross-appeal may be included in the factum on the main appeal.
TRANSLATION OF FACTUM
102.-Any Judge may require that the factum or points for argument in appeal of any party shall be translated into the language with which such judge is most familiar, and in that case the Judge shall direct the Registrar to cause the same to be translated and shall fix the number of copies of the translation to be printed, and the time within which the same shall be deposited with the Registrar, and the party depositing such factum shall thereupon cause the same forthwith to be printed at his own expense, and such party shall not be deemed to have deposited his factum until the required number of the printed copies of the translation shall have been deposited with the Registrar.
103.-Any Judge may also require the Registrar to cause the judgments and opinions of the judges in the court below to be translated, and in that case the Judge shall fix the number of copies of the translation to be printed and the time within which they shall be deposited with the Registrar, and such translation shall thereupon be printed at the expense of the appellant.
PAYMENT OF MONEY INTO COURT
RULE 104.-Money required to be paid into court shall be paid into the Bank of Montreal at its Ottawa agency, or such other bank as shall be approved of by the Minister of Finance.
2. The person paying money into Court shall obtain from the Registrar a direction to the bank to receive the money.
3. The bank receiving money to the credit of any cause or matter shall give a receipt therefor in duplicate; and one copy shall be delivered to the party making the deposit, and the other shall be posted or delivered the same day to the Registrar.
4. The stamps for the fees payable on money paid into court shall be affixed to the receipt directed by this Rule to be posted or delivered to the PAYMENT OF MONEY OUT OF COURT
RULE 105.-If money is to be paid out of Court, an order of the Court or a Judge in Chambers must be obtained for that purpose, upon notice to the opposite party.
RULE 106.-Money ordered to be paid out of Court is to be so paid upon the cheque of the Registrar, countersigned by a Judge.
FORMAL OBJECTIONS
RULE 107.-No proceeding in the Court shall be defeated by any formal objection.
EXTENDING OR ABRIDGING TIME
RULE 108.-In any appeal or other proceeding in the Court, the Court or a Judge in Chambers may by order, enlarge or abridge the time for doing any act, or taking any proceeding upon such (if any) terms as the justice of the case may require, and such order may be granted, although the application for the same is not made until after the expiration of the time appointed or allowed.
NON-COMPLIANCE WITH RULES
RULE 109.-The Court or a Judge may, under special circumstances, excuse a party from complying with any of the provisions of the Rules.
REGISTRAR TO KEEP NECESSARY BOOKS
RULE 110.-The Registrar shall keep in his office all appropriate books for recording the Droceedings in all suits and matters in the said Supreme Court RULE 111.-If it happens at any time that the number of Judges necessary to constitute a quorum for the transaction of the business to be brought before the Court is not present, the Judge or Judges then present may adjourn the sittings of the Court to the next or some other day, and so on from day to day until a quorum shall be present.
COMPUTATION OF TIME
RuLE 112.-In all cases in which any particular number of days not expressed to be clear days is prescribed by the foregoing Rules, the same shall be reckoned exclusively of the first day, and inclusively of the last day, unless such last day shall happen to fall on a Sunday, or a day appointed by the Governor General for a public fast or thanksgiving, or any other legal holiday or non-juridical day, as provided by the statutes of the Dominion of Canada. RULE 113.-Where any limited time less than six days from or after any date or event is appointed or allowed for doing any act or taking any proceedings, Sundays and other days on which the offices are closed, shall not be reckoned in the computation of such limited time.
RULE 114.-Where the time for doing any act or taking any proceeding expires on a Sunday, or other day on which the offices are closed, and by reason thereof such act or proceedings cannot be done or taken on that day, such act or proceeding shall, so far as regards the time of doing or taking the same, be held to be duly done or taken, if done or taken on the day on which the offices shall next be open.
TIME FOR SERVICES OF NOTICES, ETC.
115.-Services of notices, summonses, orders, and other proceedings, shall be effected before the hour of six in the afternoon, except on Saturdays, when it shall be effected before the hour of two in the afternoon. Service effected after six in the afternoon on any week-day except Saturday shall, for the purpose of computing any period of time subsequent to such service, be deemed to have been effected on the following day. Service effected after two in the afternoon on Saturday shall for the like purpose be deemed to have been effected on the following Monday.
OFFICE HOURS
RULE 116.-The office of the Supreme Court shall be open between the hours of ten o'clock in the forenoon and four o'clock in the afternoon (except on Saturdays, when it shall close at one o'clock), every day in the year except statutory holidays, and Long Vacation and Christmas Vacation.
2. During Vacation the office shall be open between the hours of ten o'clock in the forenoon and one o'clock in the afternoon.
CHRISTMAS VACATION
RuLE 117.-There shall be a vacation at Christmas, commencing on the 15th of December and ending on the 10th of January.
LONG VACATION
RULE 118.-The Long Vacation shall comprise the months of July and August.
Rui
119.-The time of the Long Vacation or the Christmas Vacation shall not be reckoned in the computation of the times appointed or allowed by these Rules for the doing of any act.
WRITS
Runi
120.-A judgment or order for the payment of money against any party to an appeal other than the Crown, may be enforced by writs of fieri facias against goods, and fieri facias against land.
RuLE, 121.-A judgment or order requiring any person to do any act other than the payment of money or to abstain from doing anything may be enforced by writ of attachment, or by committal.
RULE 122.-Writs of fieri facias against goods and lands shall be executed according to the exigency thereof, and may be in the Form J set out in the Schedule to these Rules.
RuLE 123.-Upon the return of the sheriff or other officer, as the case may be, of "lands or goods on hand for want of buyers," a writ of venditioni exponas may issue to compel the sale of the property seized. Such writ may be in the Form K set out in the Schedule to these Rules.
RuLE 124.-In the mode of selling lands and goods and of advertising the same for sale, the sheriff or other officer is, except in so far as the exigency of the writ otherwise requires, or as is otherwise provided by these Rules, to follow the laws of his province applicable to the execution of similar writs issuing from the highest court or courts of original jurdiction therein.
125.-A writ of attachment shall be executed according to the exigency thereof.
RuLE 126.-No writ of attachment shall be issued without the order of the Court or a Judge. It may be in the Form L set out in the Schedule to these RULE 127.-In these Rules the term " writ of execution " shall include writs of fieri facias against goods and against lands, attachment and all subsequent writs that may issue for giving effect thereto. And the term " issuing execution against any party," shall mean the issuing of any such process against his person or property as shall be applicable to the case.
128.-All writs shall be prepared in the office of the Attorney- General, or by the attorney or solicitor suing out the same, and the name and the address of the attorney or solicitor suing out the same, and if issued through an agent, the name and residence of the agent also, shall be endorsed on such writ, and every such writ shall before the issuing thereof be sealed at the office of the Registrar, and a praecipe therefor shall be left at the said office, and thereupon an entry of issuing such writ, together with the date of sealing and the name of the attorney or solicitor suing out the same, shall be made in a book to be kept in the Registrar's office for that purpose, and all writs shall be tested of the day, month and year when issued. A praecipe for a writ may be in the Form M set out in the Schedule to these Rules.
RULE 129.-No writ of execution shall be issued without the production to the officer by whom the same shall be issued of the judgment or order upon which the execution is to issue, or an office copy thereof showing the date of entry. And the officer shall be satisfied that the proper time has elapsed to entitle the judgment creditor to execution.
130.-In every case of execution the party entitled to execution may levy the interest, poundage fees and expenses of execution over and above the sum recovered.
RULE 131.-Every writ of execution for the recovery of money shall be endorsed with a direction to the sheriff, or other officer to -whom the writ is directed, to levy the money really due and payable and sought to be recovered under the judgment or order, stating the amount, and also to levy interest thereon if sought to be recovered, at the rate of five per cent per annum, from the time when the judgment or order was entered up.
RULE 132.-A writ of execution, if unexecuted, shall remain in force for one year only, from its issue, unless renewed in the manner hereinafter provided; but such writ may, at any time before its expiration, by leave of the Court or a Judge, be renewed by the party issuing it for one year from the date of such renewal, and so on from time to time during the continuance of the renewed writ, either by being marked in the margin with a memorandum signed by the Registrar of the court, stating the date of the day, month and year of such renewal, or by such party giving a written notice of renewal to the sheriff, signed by the party or his attorney, and having the like memorandum; and a writ of execution so renewed shall have effect, and be entitled to priority according to the time of the original delivery thereof.
RULE 133.-The production of a writ of execution, or of the notice renewing the same, purporting to be marked with the memorandum in the last preceding Rule mentioned, showing the same to have been renewed, shall be prima facie evidence of its having been so renewed.
134.-As between the original parties to a judgment or order, execution may issue at any time within six years from the recovery of the judgment or making of the order.
RULE 135.-Where six years have elapsed since the judgment or order, or any change has taken place by death or otherwise in the parties entitled or liable to execution, the party alleging himself to be entitled to execution may apply to the Court or a Judge for leave to issue execution accordingly. And the Court or Judge may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect. And the Court or Judge may impose such terms as to costs or otherwise as shall seem just.
136.-Any party against whom judgment has been given, or an order made, may apply to the Court or a Judge for a stay of execution or other relief against such a judgment or order, and the Court or Judge may give such relief and upon such terms as may be just.
137.-Any writ may at any time be amended by order of the Court or Judge, upon such conditions and terms as to costs and otherwise as may be thought just, and any amendment of a writ may be declared by the order authorizing the same to have relation back to the date of its issue, or to any other date or time.
RULE 138.-Sheriffs and coroners shall be entitled to the fees and poundage set out in Form N of the Schedule to these Rules.
139.-Every order of a Judge in Chambers may be enforced in the same manner as an order of the Court to the same effect, and it shall in no case be necessary to make a Judge's order a rule or order of the Court before enforcing the same.
RuILE 140.-No execution can issue on a judgment or order against the Crown for the payment of money. Where, in any appeal, there may be a judgment or order against the Crown directing the payment of money for costs, or otherwise, the Registrar may, on the application of the party entitled to the money, certify to the Minister of Finance, the tenor and purport of the judgment or order, and such certificate shall be by the Registrar sent to or left at the office of the Minister of Finance.
ACTING REGISTRAR
RuLE 141.-In the absence of the Registrar through illness or otherwise, the Chief Justice or acting Chief Justice may appoint an acting Registrar to perform the duties of the Registrar, and all powers and authorities vested in the Registrar may be exercised by the acting Registrar.
DoMIIoN OF
The Supreme Court will hold a special session at the city of Ottawa on , for the purpose of hearing causes and disposing of such other business as may be brought before the court (or for the purpose of hearing election appeals, criminal appeals, or appeals in cases of habeas corpus, or for the purpose of giving judgments only, as the case may be).
By order of the Chief Justice, or by order of Mr. Justice
J. F. S.,
Dated this
FORM B (R. 17)
NOTICE
J. A., appellant, v. A. B., respondent. Take notice that this appeal will be heard at the next session of the Court, to be held at the city of Ottawa on appellant's solicitor or attorney, or appellant in person.
Dated this
FORM C (R. 50 (1) )
A. v. B.
It is required owing (to the death, insolvency, or as the case may be) that be made a party (appellant or respondent) to this appeal.
(Signed). C.D. FORM D (R. 72)
The Honourable Mr. Justice
(Style of Cause).
Upon reading the several affidavits of, &c., filed the
19 , and upon hearing Mr.
of counsel (or the solicitor for
) It is ordered that all parties concerned attend before me (or before the Honourable Mr. Justice
, or before the Court, as the case may be) at the Supreme Court Building, Ottawa, on the
, 19 , at the hour of in the noon, to show cause why a writ of Habeas Corpus should not issue directed to to have the body of before a Judge of the Supreme Court at the Supreme Court Building in the City of Ottawa, forthwith to undergo, &c.
Dated, &c.
FORM E (R. 72)
WRIT HABEAS CORPUS
Upon reading the several affidavits of, etc., filed the
, and upon hearing counsel (or the solicitors) on both sides (or as the case may be)- It is ordered that a writ of Habeas Corpus issue directed to to have the body of A.B. before me (or the Honourable Mr. Justice at the Supreme Court Building in the City of Ottawa, on the
, at the hour of to undergo and receive, etc.
Dated, &c.
FORM F (R. 75)
WRIT oF
George VI, by the Grace of God, to
We command that you have in the Supreme Court of Canada before the Honourable Mr. Justice at the Supreme Court Building in the City of Ottawa, on the
, the body of A.B. being taken and detained under your custody as is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called therein, to undergo and receive all and singular such matters and things as Our Judge shall then and there consider of concerning him in this behalf; and have you there then this Our writ.
To be indorsed,
By order of Mr. Justice
This writ was issued by &c.S
FORM G (R. 76)
AFFIDAVIT WRIT HABEAS IN THE
I, A.B., of make oath and say:
1. That I did on the
, personally serve C.D. with a writ of Habeas Corpus issued out of and under the seal of this Honourable Court, directed to the said C.D., commanding him to have the body of before (
) immediately to undergo, &c. (describe the direction and mandatory part of the writ), by delivering such writ of Habeas Corpus to the said C.D., personally at in the Sworn, &c.
On entering every appeal
.. $10 00 On entering every judgment, decree or order in the nature of a final .. 10 00 On entering every other judgment, decree or order.. .. .......... On filing every document or paper..
.. Every search..
.... Every appointment..
......
Every enlargement of any appointment, or on application in Chambers. The foregoing items are not to apply to criminal appeals or appeals in matters of habeas corpus arising out of a criminal charge.
On sealing every writ (besides filing) . .
.. 2 00 Amending every document, writ or other paper. .
.. Taxing every bill of costs (besides filing)..
..
.. Every allocatur.. ..................................
Every fiat.. ......................................
Every reference, inquiry, examination or other special matter referred to the registrar, for every meeting not exceeding one hour.. ..... Every additional hour or less. .
...... For every report made by the registrar upon such reference, etc.. .. ... Upon payment of money into court, or deposited with the registrar, every sum up to and including $200.00..
..
... A percentage on money over $200.00 paid in, at the rate of one per cent, to a sum not exceeding ten dollars.
Receipt for money..
.... Comparing, examining and certifying transcript record on appeal to the Privy Council.. ............................
10 00 Comparing any other document, paper or proceeding with the original on file or deposit in the registrar's office, per folio......... . Every other certificate required from registrar..
.. Copy of any document, paper or proceeding or any extract therefrom, per folio..
..................
Every affidavit, affirmation or oath administered by registrar.. ....... Every commission or order for examination of witnesses..
. FORM I (R. 91)
FEES
To be taxed between party and party in the Supreme Court of Canada: On stated case required by section 68 of the Act when prepared and agreed upon by the parties to the cause, including attendance on the judge to settle the same, if necessary, to each party.. ..... $25 00 Notice of appeal..
.. 4 00 On consent to appeal directly to the Supreme Court from the court of original jurisdiction.. .............
3 00 Notice of giving security. .
.... 2 00 Attendance on giving security..
.......
3 00 On motion to allow when same is made..
. 10 00 On motion to quash proceedings under section 45 according to the discretion of the registrar to..
............
100 00 Subject to be increased by order of the Court or of a Judge. Upon ex parte motions before the registrar in Chambers, including affidavits, etc.. ................................
10 00 Subject to be increased in the discretion of the registrar to a sum not exceeding..
Upon contested motions before the registrar in Chambers, including affidavits.. ......................................
15 00 Subject to be increased in the discretion of the registrar in special cases to a sum not exceeding. .
. 40 00 Upon motions before a Judge sitting in Chambers, including affidavits, etc..............
20 00 Subject to be increased in the discretion of the Judge to a sum not exceeding..........
........ 100 00 The fees for motions to cover all preliminary proceedings, notices, certificates, correspondence, drafting orders, and settling and issuing the same but not to include disbursements
On factums in the discretion of the registrar to..
.... 50 00 Subject to be increased by order of the Court or a Judge in Chambers. For engrossing for printer copy of case as settled, when such engrossed copy is necessarily and properly required, per folio of 100 words. . For correcting and superintending printing, per 100 words. .
On dismissal of appeal if case be not proceeded with, in the discretion of the registrar to. .....
25 00 Subject to be increased by order of the Court or a judge.
Suggestions under section 78, 79 and 80, including copy and service.. 10 00 Notice of intention to continue proceedings under section 82.. .. .. 4 00 On depositing money under section 65 of the Dominion Controverted Elections Act..
.....
2 50 Notice of appeal in election cases limiting the appeal to special and defined questions under section 66 of the Dominion Controverted Elections Act.. .........
6 00 Allowance to cover all fees to attorney and counsel for the hearing of the appeal, in the discretion of the registrar to. .
.... 200 00 Subject to be increased by order of the Court or a Judge in Chambers. On printing factums, the same fees as in printing the case.
Besides the registrar's fees, reasonable charges for postage and disbursements necessarily incurred in proceedings in appeal will be taxed by the taxing officer.
For attendance of counsel to hear judgment. .
. 25 00 Allowance to the duly entered agent in any appeal. .
. 25 00 To be increased under special circumstances in the discretion of the registrar to a sum not exceeding..
.... 100 00 In cases where the solicitors on the Record reside in Ottawa they shall be entitled to one-half of this allowance.
The foregoing allowance is not intended to cover any services rendered as counsel.
A. B., (Plaintiff, or as the case may be) Appellant
C. D., (Defendant, or as the case may be) Respondent
VI, by the Grace of God of Great Britain, Ireland and of the British Dominions beyond the Seas, King, Defender of the Faith, Emperor of India.
To the Sheriff of
We command you that of the goods and chattels of C. D., in your bailiwick, you cause to be made the sum of and also interest thereon at the rate of six per centum per annum, from the
[day of judgment or order, or day on which money directed to be paid, or day from which interest is directed by the order to run, as the case may be], which said sum of money and interest were lately before us in our Supreme Court of Canada, in a certain action [or certain actions, as the case may be], wherein A. B. is plaintiff and appellant, and C. D. and others are defendants and respondents [or in a certain matter there depending, intituled, " In the matter of E. F.," as the case may be], by a judgment [or order, as the case may be], of the said court, bearing date the adjudged [or order, as the case may be], to be paid by the said C. D., to A. B., together with certain costs in the said judgment [or order, as the case may be] mentioned, and which costs have been taxed and allowed, by the taxing officer of our court, at the sum of as appears by the certificate of the said taxing officer, dated the
. And that of the goods and chattels of the said C. D. in your bailiwick, you further cause to be made the said sum of [costs], together with interest thereon at the rate of per centum per annum, from the date of the certificate of taxation. The writ must be so moulded as to follow the substance of the judgment or order], and that you have that money and interest before us in our said court immediately after the execution hereof, to be paid to the said A. B., in pursuance of the said judgment [or order, as the case may be], and in what manner you shall have executed this our writ, make appear to us in our said court immediately after the execution thereof, and have there then this writ.
Witness the Honourable
Chief Justice of our Supreme Court of Canada, at Ottawa, this
, in the year of our Lord, one thousand nine hundred and and in the year of our reign.
A. B., (Plaintiff, or as the case may be) Appellant
C. D., (Defendant, or as the case may be) Respondent
George, etc. (as in the writ of fieri facias).
To the Sheriff of
Whereas by our writ we lately commanded you that the goods and chattels of C. D. [here recite the fteri facias to the end], and on the you returned to us, at our Supreme Court of Canada aforesaid, that by virtue of the said writ to you directed, you had taken goods and chattels of the said C. D., to the value of the money and interest aforesaid, which said goods and chattels remained on your hands unsold for the want of buyers. Therefore we being desirous that the said A. B. should be satisfied his money and interest aforesaid, command you that you expose for sale and sell, or cause to be sold, the goods and chattels of the said C. D., by you, in form aforesaid, taken, and every part thereof for the best price that can be gotten for the same, and have the money arising from such sale before us in our said Supreme Court of Canada immediately after the execution hereof, to be paid to the said A. B. and have there then this writ.
Witness, etc (conclude as in writ of fleri facias).
FORM L (R. 126)
George, etc. (as in the writ of fleri facias).
To the Sherif of
We command you to attach so as to have him before us in our Supreme Court of Canada, there to answer to us, as well touching a contempt which he it is alleged hath committed against us, as also such other matters as shall be then and there laid to his charge, and further to perform and abide such order as our said Court shall make in this behalf, and hereof fail not, and bring this writ with you.
Witness, etc. (as in the writ of fieri facias).
A. B., (Plaintiff, or as the case may be) Appellant C. D., (Defendant, or as the case may be) Respondent Seal a writ of feri facias directed to the Sheriff of to levy of the goods and chattels of C. D.
the sum of $ and interest thereon at the rate of per centum per annum, from the costs, or as the case may be, according to the writ required].
Judgment [or order] dated
[Taxing Master's certificate, dated
].
[X. Y., Solicitor for party on whose behalf writ is to issue]. FORM N (R. 138)
FEES
Every warrant to execute any process directed to the sheriff, when given to a bailiff.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. Service of process, each defendant (no fee for affidavit of services in such cases to be allowed unless service made or recognized by the sheriff)..
.... Serving other papers beside mileage..
......
For each additional party served..
.. Receiving, filing, entering and endorsing all writs, notices or other papers, each............
.... Return of all process and writs (except subpaena) notices or other papers...... ....................................
Every search, not being a party to a cause or his attorney..
.. Certificate of result of such search, when required (a search for a writ against lands of a party, shall include sales under writ against same party and for the then last six months)..
.. Poundage on executions and on writs in the nature of executions -where the sum made shall not exceed $1,000, six per cent.
When the sum is over $1,000 and under $4,000, three per cent, when the sum is $4,000 and over, one and a half per cent, in addition to the poundage all6wed up to $1,000, exclusive of mileage, for going to seize and sell; and except all disbursements necessarily incurred in the care and removal of the property.
Schedule taken on execution or other process, including copy to defendant, not exceeding five folios..
. Each folio above five.. .....
Drawing advertisements when required by law to be published in the Official Gazette or other newspaper, or to be posted up in a court house or other place, and transmitting same in each suit.. .. ....
Every necessary notice of sale of goods, in each suit..
..
Every notice of postponement of sale, in each suit..
..
The sum actually disbursed for advertisements required by law to be inserted in the Official Gazette or other newspaper.
Bringing up prisoner on attachment or habeas corpus, besides travelling expenses actually disbursed, per diem.. ..
...
.
....
6 00 Actual and necessary mileage from the court house to the place where service of any process, paper or proceeding is made, per mile.. .. .. Removing or retaining property, reasonable and necessary disbursements and allowances to be made by the registrar.
Drawing bond to secure goods seized, if prepared by sheriff.. .. .. .. Every letter written (including copy) required by party or his attorney respecting writs or process, when postage prepaid.. ....
..
5..0...50 Drawing every affidavit when necessary and prepared by sheriff.. ..... For services not hereinbefore provided for, the registrar may tax and allow such fees as in his discretion may be reasonable.
The same fees shall be taxed and allowed to coroners for services rendered by them in the service, execution and return of process, as allowed to sheriffs for the same services as above specified.
FORM 0 (R. 13 (2))
(Style of Cause)
,..............
.
.. hereby certify that I have personally compared the annexed print of the case in appeal to the Supreme Court with the originals and that the same is a true and correct reproduction of such A Solicitor for the Appellant (or his Ottawa Agent) It is hereby ordered, pursuant to the powers conferred by section 104 of the Supreme Court Act (R.S.C. 1927, ch. 35), that all the Rules and Orders of the Supreme Court of Canada now in force be repealed, and that the foregoing Rules, including the Schedule of Forms therein referred to and thereunto annexed, be and the same are hereby made the Rules regulating the practice and procedure of and in the Supreme Court of Canada and the bringing of cases before it from courts appealed from or otherwise.
Dated at Ottawa this fifteenth day of December, A.D. 1939.
LYMAN P. DUFF, C.J.C. T. RINFRET, J.
L.
OSWALD S. CROCKET, J. H.
P. KERWIN, J.
A. B. HUDSON, J.
(See " Election," "Exchequer Court," "Criminal," " Habeas Corpus," " Board of Railway Commissioners " Appeals, and " References").
Abandonment
Of appeal, if 1 y. delay after security allowed, unless otherwise Registrar may tax and issue certificate of dismissal, upon... Abridging Time-See " Time"
Words "the Act" mean The Supreme Court Act.. .. .. 3.... Acting Registrar
Appointment of; powers of...141
Adjournment
Of appointment for settling judgment or order...45
Of Court, if no quorum.. ..
Affidavit
Word, includes affirmation.. ..
Of service, to state particulars.. .. ..................
No informality of, objection to reception, if Court or Judge deems proper to receive (see s. 90 of the Act).. ............
Agent
Service on, of notice of hearing of appeal.. ..
Agent's Book to be kept in Registrar's office...20
Advocates, etc., may enter Ottawa agent's name or elect domicile Agent must be entitled to practise.. ....
..
Service on, of notice of motion...55
Allowance to, on taxation of costs, Form I...Sch
Appeal (Motions to Quash, etc.-see "Motions")
Notice in Canada Gazette when convening special session for Notice of hearing, after filing case...16
Form B.. .. ....
service of, 12 d. before session to be heard...18 how to be served.. ..
19(1) when Dominion Statute in question.. ................
19(2) when Provincial Statute in question.. ................
19(3) Ex Parte inscription of...33-34
Inscription of, 14 d. before session fixed for hearing...37 only if case filed 20 c.d. before session, except by leave.. .. ... Hearing, Court may postpone...39 in order set down.. ..
neglect to appear at; may proceed or postpone........... Parties to, adding.. ....
50-53 Abandoned, if 1 y. delay after security allowed, unless otherwise ordered...59
Intervention in.. ......
Re-hearing, none except by leave or order................
Discontinuance of ..
From order or decision of Registrar, to Judge..
.......... 86-88 From taxation by Registrar, to Judge...98-99
100-101 Extending or Abridging time in, for any act.. ..
Non-Compliance with Rules in, may excuse.,.109
Appearance
In person.. .. ..
7............ If no suggestion of change filed.. ..
Election to appear by attorney when in person below.. .... .... Service of notices and papers when appearance in person... 24-25 Changing of attorney or solicitor...26
Neglect to appear...40
(a) Intervention, by interested person, by leave...60
Applications (See also " Motions ")
To registrar for order to change attorney or solicitor.. .. .. .. 7.. To set aside ex parte inscription.. .. ..
To add party to appeal.. .. ..
50(2) To review taxation...96-97
Interlocutory, in appeal.. ..
To tax and for certificate of dismissal, when appeal abandoned.. For re-hearing.. .. ........
For leave to issue execution after elapse of 6 y. or change by death or otherwise.. ....
For certificate to Min. of Finance of judgment against Crown for payment of money...140
For settling judgment...42-46
Attachment-See "Writs"
Attorney-General
Word "party" includes...2
Notice to, when statute in question...19(2),(3)
Writs, preparation of, in office of...128
Attorneys, Solicitors, Counsel
Certificate by, of comparing printed Case...13
Service on, of notice of hearing of appeal...19
May enter name of agent or elect domicile...20
Party may appear in person in appeal by filing suggestion.. If no suggestion of change filed, attorney below deemed so in appeal.. .. ....................................
Election to appear by attorney when in person below.. .... .. 7.. Changing of attorney or solicitor by party to appeal; service on opposite party.. ....
....
7.... Only two counsel each side, and one in reply, at hearing, except by leave.. .. ..
Counsel expected to attend on pronouncement of judgment.. 40 (b) Service on, of notice of motion.. ..
Writs, preparation of by.. ........
Bill of Costs-See "Costs"
Board of Railway Commissioners, Appeals
To be on stated case by parties.. .. ....
Difference as to case, how settled.. .. ..
Case, contents of, decision objected to, etc.. ............
Rules 1 to 62 applicable, except otherwise provided by Railway Board of Railway Commissioners, References-See "References" Books
Registrar to keep, for recording proceedings..
.. ............ For entry of writs, to be kept in Registrar's office...128
Canada Gazette
Publication in, of notice convening special session, Form A.. .. ... Case
To be certified under seal of court appealed from...6
To be filed in office of Registrar.. ..
To contain transcript of reasons for judgment below, or certificate of inability to procure...6
To contain copy of all judgments below...7
To contain copy of any order enlarging time for appealing.. .. ... Court or Judge may order case remitted below for correction or completion.. .. ............
........
To be filed within 40 d. after security allowed, and respondent may move to dismiss if delay...9
To contain certificate when security given below...10
To be printed by appellant.. ....
.. .. .. .. .. ....
...... 30 copies to be deposited with Registrar.. .. .. .. ....
...... 3 copies for respondent, on demand, when printed.........11(2) Case-Concluded
Form of, type of print, etc...12(1)
headline on each page of evidence with name of witness, for whom called and nature of examination
.. .. .. .. 12(2) documents filed as exhibits to be grouped and printed in chronological order.. ........
number of documents filed below as one exhibit, to be treated as independent exhibits..
12(3) pleadings, judgments, etc., printed in full unless dispensed by 12(4) title page, what to contain.. ..
separate volumes when over 300 pages.. ..
12(6) price to be taxed for printing-power of Registrar to exceed.. 12(7) index to be in four parts and in detail.. ..
where more than one volume, each to contain index.. ...... may be printed according to regulations in appeals to His Majesty in Council, subject to printing in chronological order...12(9)
Not to be filed and no costs taxed if not according to Rules.... .. Certificate that print compared to accompany every case, Form 0.. Printing of documents or plans may be dispensed with.. .. .. ... 14(1) Original record, exhibits and documentary evidence to be transmitted to Registrar with Certified Case.. ....
Notice of hearing appeal after filing case, Form B, 12 d. before session...16-18
Appeal not to be inscribed, except by leave, unless case filed 20 c. d. before session.. ..
Judge may require translation of judgments and opinions in, at expense of appellant...103
Certiorari, Writs of- Granting of, only by judge or the Court...82
Chambers-See " Judge in Chambers"
Christmas Vacation-See " Vacations"
Committal
Enforcement of judgment or order by.. ..
Controverted Election Appeals-See "Election Appeals"
Coroner
Fees of, Form N.. ................................
Of appeal, when quashed.. ..
For printing case.. ........
If party neglects to appear and hearing postponed...40(a) When appeal abandoned by delay...59
Of intervention, as ordered...60(2)
When appeal discontinued...62
Fees to be paid Registrar.. ..
Between party and party, Form I.. .....
Fixed sum, may be directed in lieu of taxation of...92
Set-off of..
Questions on taxation of, reference to Judge by Registrar on.. Authority of Registrar on taxation of...95
Review by Registrar of taxation of, before allocatur signed.. .. ... objection to, in writing, to other party...96 certificate for remainder of bill not in dispute, may issue, pending decision.....96 further evidence, if desired by Registrar...97
Appeal to Judge, from Registrar's taxation of, to be brought within 2 d. from date of allocatur or certificate, or as otherwise allowed.. ..
no further evidence on, except by direction...99 costs of, in discretion of Judge...99
Special order as to, in cross-appeals, when no notice given of contention decision below should be varied...100
Of Execution, after lapse 6 y. or when change in parties.. ...... Of writ, when amendment to...137
Against Crown, no execution for...
.
.
.
. . . 870"1t
Counsel--See " Attorneys
Convening special session of.. ......
Notice of special session of, in Canada Gazette (Form A).. .. ... No defeat of proceeding in, by formal objection (see s. 90 of the Adjournment of sittings of, if no quorum.. .. ............
Office hours of...116
Criminal Appeals
Notice in Canada Gazette when convening special session for hearing...15
Rules 1 to 63 not applicable, except as otherwise provided.. .. ... Case may be written or typewritten...65(1)
To include judgments and opinions below...65(1)
7 copies of case and memorandum...65(1)
Case to be filed c. d. before hearing...66
Notice of hearing 5 d. before hearing.. ......
Notice of motion unnecessary in...100
If respondent to contend judgment below should be varied, notice to all parties within 15 d. after security approved.. .. .. .. Omission to give such notice ground for adjournment, or special order as to costs, but not to interfere with power of Court to hear.. ......................................
When notice of, factum to be deposited.. ................
Factum on, may be included in factum on main appeal.. .. ..... Crown
No execution against, for money.. ..
Registrar may certify to Minister of Finance purport of judgment against, for payment of money.. .140
Death
Adding party to appeal in consequence of, Form C.. ........ 0() Execution of judgment upon.. ......................
Decision
By Registrar, authority of.. ....
Matter may be referred to Judge, by Registrar, for............ By Registrar, valid and binding as of Judge sitting in Chambers. Appeals from Registrar's, to Judge, by motion on notice.. .. .. .... 6-87 to be served 4 d. after decision and 2 c. d. before hearing, or as allowed...87 hearing, first Monday after delays, or as soon after as can be.. to be set down in book for purpose by preceding Saturday.. Discontinuance
When notice of, before inscription, costs to respondent; after, as ordered by Court...62
Domicile-See "Agent," "Attorneys," "Parties"
Election Appeals
Notice in Canada Gazette when convening special session for Rules apply in, so far as applicable, except as otherwise provided. Certified copy of record to be obtained from Registrar.. .. .. ... 69(1) 45 copies to be printed.. ......
......................
35 copies to be delivered to Registrar.. ......
....
3........ 5 copies to be handed to respondent by Registrar, upon application 69(1) Taxation for printing of, as in ordinary appeals...69(2)
Appellant shall apply to have day fixed for bearing and set down.. If 1 week's default after receipt of record by Registrar, respondent may move to dismiss.. ...............
Printing of record or factum in, may be dispensed with.. .. .. .. Enlarging Time-See "Time"
Documentary evidence to be transmitted to Registrar with certified case.......................14
Ex Parte Appeals
Appellant may inscribe cause if respondent fails to deposit factum. Inscription may be set aside upon application sufficiently supported by affidavits.. ...... ...... .................. .... If either party neglects to attend hearing.. ................ Ex Parte Applications
To Registrar for order to change attorney or solicitor.. .... .. Examination (Cross-)
Of deponent making affidavit, by leave, before Registrar...58 Of Witnesses, by Registrar...95
Exchequer Court Appeals
Rules 1 to 62 apply, except as Exchequer Court Act otherwise provides...63
Execution (See "Writs")
Liable to process of, if neglect to obey act required by judgment or order...49
May issue 6 y. from judgment or order...134
After 6 y. or change by death or otherwise, may issue by leave.. Stay of, or relief against.. ..
None against Crown for money. . ......
Registrar may certify to Minister of Finance purport of judgment for payment of money against Crown...140
Exhibits
Printing, arrangement and Index of...12(3),(8)
To be transmitted to Registrar with certified case...14(2) Expenses
Of execution...130
Extending Time-See "Time"
Factums
30 copies to be filed 15 d. before session.. .. .. ........
.... To consist of 3 Parts.. ....
....
8.................... Pt. 1. to contain concise statement of facts. . .30
Pt. 2. appellant's factum to contain concise statement in what respect judgment alleged erroneous, etc.. .. .... 30 when alleged error in admission or rejection of evidence, such evidence to be stated in full.. .. .. .. when alleged error in charge to jury, language and objection to be set out verbatim............ respondent's factum to contain concise statement of points in issue, and position thereto
Pt. 8. to contain brief of argument setting out points of law or fact, page and line and authorities.. .. .. .. .. statutes, regulations, etc., or parts of relied on, to be printed at length.. ..
How to be printed.. .. ....
Registrar shall not receive unless requirements complied with.. Respondent may move to dismiss for undue delay by appellant in depositing..................
.. ..
Appellant may inscribe ex parte if respondent fails to deposit.. Ex parte inscription may be set aside.. .. ..
Registrar to seal up first deposited.. .. .. ..
Interchange of 3 copies when both deposited...36
On cross-appeals.. ................................
Translation of, Judge may require, at expense of party.. .. .... Fees (See "Costs", "Taxation")
To be paid Registrar, by stamps, Form H.. ....
party party, Form
Sheriffs and coroners, Form N.. ............
Fieri Facias, Writs-See "Writs"
Formal Objections
No defeat of proceeding in Court, by (see s. 90 of the Act).. Forms
Form A, Notice Calling Special Session...15
6,23 B, Form of Notice of Hearing Appeal...17
6,23 C, Suggestion of Death, Insolvency, &c...50()
11,23 D, Summons for Writ of Habeas Corpus ad Subjiciendum.. 14,23 E, Order for Writ of Habeas Corpus ad Subjiciendum.. 14,24 F, Writ of Habeas Corpus ad Subjiciendum.. .. .. .. .. 14,24 G, Affidavit of Service of Writ of Habeas Corpus ad Subjiciendum..
.......
14,24 H, Tariff of Fees to be Paid to the Registrar of the 16,25 I, Tariff of Fees (party and party)...91
16,25 J, Writ of Fieri Facias...122
20,27 K, Writ of Venditioni Exponas...123
20,28 L, Writ of Attachment.. ..........
20,28 M, Praecipe for Writ...128
20,29 N, Sheriffs' and Coroners' Fees...138
21,29 0, Case to be Certified by a Solicitor...13(2)
5,30 Governor in Council References by--See "References"
Habeas Corpus Matters
Notice in Canada Gazette when convening special session for ....
.. ......................
.... Rules 1 to 63 not applicable, except as otherwise provided.. .. .. Case to be printed or typewritten.. ..
65(2) To contain material before Judge appealed from, and judgment below.. .....................................
65(2) 7 copies of case and memorandum to be deposited with Registrar13 Case to be filed c. d. before hearing..................
Notice of hearing appeal, 5 d. before hearing...67
Applications for writs by motion for an order...72
Judge may make absolute ex parte in first instance or direct summons for writ to issue...72
Judge may refer application to Court...72
Summons and order, for writs, Forms D and E...72
Copy of summons for writ to issue to be served upon Attorney General of Province..
Judge may direct order for prisoner's discharge............ Writs to be served personally upon whom directed, if possible.. Writ of Habeas Corpus, Form F...75
If writ disobeyed, application may be made for attachment for contempt...76
Affidavit of service of writ, Form G.. ....
Return to writ to show causes of detention...77
Return to writ may be amended.. ..
Motion for discharge or remand, when return to writ made and read.79
Granting of writs, and adjudicating upon returns thereof, only by Judge or the Court...82
Notice of, of appeal, after filing case.. .. ..
Form of Notice of, Form B.. .. ..
Only two counsel each side, and one in reply, except by leave.. Court may postpone, in its discretion.. .. ..
In order set down.. ..
If either party neglects to appear, may give judgment or postpone. Costs as directed when hearing postponed...40
(a) No re-hearing except by leave or order.. ..
Of appeals to Judge from orders or decisions of Registrar... 87-88 Of appeals to Judge from taxation of costs...99
Each volume of case to contain; details and arrangement of.. .. Insolvency
Adding party to appeal in consequence of, Form C...50 Execution of judgment upon..135
Inscription
Ex parte...33-34
Appeals, 14 d. before session..
No inscription if case not filed 20 c. d. before session, except by leave.. ..
Setting down motions before Court.. ..
Setting down appeals from Registrar, to judge.. .. .. .. .. .. Interest
In cases of execution, 5 per cent from entry of judgment or order. 130-131 Interpretation
Words and expressions defined...1-2
Intervention (See "Parties")
By interested person, by leave...60()
Costs of, as ordered by Court.. ..
60(2) Judge
"Judge " or " Judge of the Court" means any Judge of the Supreme Court.. .. ..
3.. Appeals to, from Registrar...86
15-46 Enforcement of order of...139
Judge in Chambers (See also "Registrar ")
"Judge in Chambers" or "Judge of the Supreme Court in Chambers" includes Registrar sitting in Chambers.. .. .. ... Authority and jurisdiction of Registrar sitting in Chambers.. 82-85 Appeals from order or decision of Registrar, to Judge.. .. Enforcement of order of.. ..
Court may give, without intervention of party neglecting to appear.. ..
Counsel expected to attend upon pronouncement of, if eserved 40 (b) In default of attendance pronouncement may be deferred.. .. ... 40 (b) Of Court, to be settled and signed by Registrar..
.. .. .. .. Successful party to obtain appointment for settling.. .. .. .. .. Copy of draft minutes and appointment to be served 2 c. d. before day fixed...42
Registrar to be satisfied service duly effected.. ..
If failure to attend to settle, may settle without.. ..
Opposite party may proceed if successful party neglects to obtain Registrar may adjourn appointment to settle.. ..............
Court or judge may order settlement without notice.. ...... Dissatisfied party may move to vary minutes.. ..............
Motion to vary not to stay entry if considered frivolous or prejudicial.....47
Motion to vary only when based on ground not in accordance with judgment, or omission.. .. .47
To be dated, and effective, day of pronouncement, unless otherwise ordered...................................
...... Requiring person to do act, to state time, and copy served to bear endorsement as to penalty for neglect to obey.. ........ Enforcement or execution of-see " Writs."
Stay of execution, or relief against.. .. .........
No execution on, against Crown, for payment of money or costs. Registrar may certify to Minister of Finance, on application, purport of, against Crown, for payment of money, or costs.. .. In motions to quash for want of, pleadings and judgments below to form part of material filed..
Registrar's, Judge of the Court sitting in Chambers, except granting of writs of habeas corpus or certiorari.. ... .. .. Order of Judge or Judge in Chambers may be enforced as order of Court....
Long Vacation-See "Vacations"
Minister of Finance
Certificate to, by Registrar, of judgment for money against Crown Money
Payment of, into court.. ......
....
.. .. .. .. .......... Direction to bank to receive.. ......
04(2) Receipts for, 1 copy to Registrar...104(3)
Fees payable on deposit of, to be affixed by stamps to copy of receipt to Registrar.. .. ..
Payment out of, by order, upon notice to opposite party.. Payment out of, by cheque of Registrar, countersigned by Judge. To enforce payment of, under judgment.. ..
Motions
To quash respondent may apply for order to quash after order allowing security.. .. ..
3.. if appeal quashed, costs in discretion of Court.. .... .. .. proceedings stayed upon service of notice unless otherwise ordered.. .. ..
no avoidable delay in bringing on motion...5
When delay in filing Case may move to dismiss for delay.. .. .. .. .. .. .. .. .. .. When delay in filing Factum respondent may move to dismiss for delay.. .. ..
8........ To vary minutes of judgment dissatisfied party may move Court to vary...47
2 c.d. notice to opposite party.. .47 not to stay entry of judgment, if considered frivolous or prejudicial.. ....
to be based only on ground minutes not in accordance with judgment, or omission.... ....
To set aside suggestion adding party
Court or Judge may direct taking of evidence...53
All interlocutory applications in appeal to be by motion supported by affidavits filed with Registrar. notice to be served 4 c.d. before hearing.. .. ............ affidavits and material to be filed 2 c.d. before hearing.. notice of motion to set out fully grounds upon which it is based..
in motions to quash for want of jurisdiction pleadings and judgments below to form part of material filed.. ........ how notice to be served...55 service of notice to be accompanied by affidavits filed.. setting down motions before Court...57 to be heard first day of session or first day of week when in session.. ..
party may cross-examine deponent making affidavit.. .... expenses of cross-examination of deponent at discretion of In appeals from Registrar to Judge to set forth grounds of objection..
to be served 4 d. after decision, and 2 c. d. before hearing, or as allowed..87 to be brought on first Monday after delays or as soon thereafter as can be heard...88 to be set down in book for purpose by preceding Saturday.. Notice
In Canada Gazette when convening special session, Form A.. Of hearing appeal.. ....
..........................
Form of Notice of Hearing Appeal (Form B)..
Of hearing appeal to be served d. before session at which to be heard....
Notice-Concluded
How Notice of Hearing of Appeal to be served............. Notice when Dominion statute in question in appeal.. .. 19(2) Notice when Provincial statute in question in appeal.. .. 19(3) Service of, when party appears in person...24-25
Of filing suggestion adding party to appeal...52
In motions in interlocutory applications, 4 c. d. before hearing How served, in interlocutory applications...55-56
11-12 Requiring production of deponent making affidavit for cross-examination...58
Of discontinuance...62
In appeals from Registrar to Judge.. .. ....
Of dissatisfaction of taxation of costs...96
Of Cross-Appeals...100
Upon payment of money out of Court...105
Time for services of, before 6 p.m. or 2 p.m. Saturday.. .. Service of, after 6 p.m. deemed following day.. ............ Service of, after 2 p.m. Sat., deemed Monday.. .......... Vacations not reckoned in computation of time for, under Rules. Writ of execution, renewal.. ..
Oaths
Administration of, by Registrar.. ..
Objection, Formal
No defeat of proceeding in Court by (see sec. 90 of the Act).. is Office Hours
Time of, a.m. to 4 p.m., except Saturdays when 10 a.m. to 1 p.m. 116(1) during vacations, a.m. to 1 p.m....116(2)
Orders
Of Court, to be settled and signed by Registrar...41
When requiring person to do any act, to state time, and copy served to contain endorsement as to penalty if neglect to obey. By Registrar, valid and binding as by Judge sitting in Chambers.. By Registrar, to be signed by Registrar.. .. .. ....
.. .. ... Appeals from Registrar's, to Judge, by motion, on notice.. .. .. ... 86-87 to be served 4 d. after decision and 2 c.d. before hearing, or as allowed...87 hearing, first Monday after delays, or as soon after as can be. to be set down in book for purpose by preceding Saturday.. Time of day for service of.. ....
Stay of execution or relief against......................
Of Judge or Judge in Chambers may be enforced as order of Court...139
No execution on, against Crown, for payment of money or costs Registrar may certify to Minister of Finance, on application, purport of, for payment of money.. ..
Enforcement or execution of-See "Writs"
Parties
Word, includes body politic or corporate and H. M. The King, and H. M.'s Attorney-General.. .. ......
May appear in person in appeal by filing suggestion.. .... .. If no suggestion filed or order for change, solicitor below deemed so in appeal.. .. ..............
......
......
.. .... When in person below, may elect counsel in appeal.. ....
...... Domicile by, appearing in person, for services.. .24
Adding parties upon death, or other cause, Form C.. .... 0(1) Court may add respondent, with or without application.. .... 50(2) Suggestion adding, may be set aside.. .....
Notice of filing suggestion adding, to be served upon other parties. Motion to set aside suggestion adding party.. ..............
Intervention, by interested person, by leave.. .. ..
6..l.. .. Costs of intervention by, as ordered.. ..
Party and party costs, taxation of. . ........
91-99 Execution of judgment or order by, time.. ....
134-136 Payment (into Court)-See "Money"
Postponement
Of hearing of appeal...39
Poundage Fees
Of execution.. ....
Sheriffs' and Coroners', Form N...138
Praecipe
For Writ, Form M.. ..
Printing (See Case, etc.)
Dispensing with, or copying, of documents or plans...14
Privy Council (Judicial Committee of)
Subject to printing documents in chronological order, case may be printed according to regulations in appeals to His Majesty in Council.. ..................
...............
12(9) Proceedings
Stay of, upon service of motion to quash appeal...5
Stay of, upon motion to set aside suggestion adding party.. .. ... Authority of Registrar in.. .........
No defeat of, in Court, by formal objection (see a.90 of the Act) Extending or abridging time in.. ..
Registrar to keep books for recording.. ...
Computation of time in...112-115
To enforce payment of money or act, under judgment...120-121 Quashing Appeal-See " Motions"
Quorum
Adjournment for want of.. ....................
...... Record
Original record to be transmitted to Registrar with certified case. 14(2) References
By Governor in Council or Board of Railway Commissioners.. . Case inscribed only by order of Court or Judge, after notice to interested parties.. ..
Factums filed as in appeals.. ......................
Registrar (See also "Judge in Chambers ")
To settle and sign orders and judgments of the Court... Appointment with, for settling judgment.. ...............
Jurisdiction of, Judge in Chambers, except granting writs of habeas corpus or certiorari.. ...........................
May refer any matter to Judge..
Order or decision by, in Chambers, valid and binding as by Judge sitting in chambers.. ..............
To sign orders made by Registrar...85
May appeal from order or decision by, to Judge.. .8 appeals from, how made, motion...87 appeals from, when to be brought, set down...88
Sittings of, for transaction of business.. .. ...............
Fees to be paid to, Form H...90
Taxation of costs by.. .............................
91-94 Power and authority of; examination, oaths, etc.. ..
Review of taxation by...96-97
Appeal to Judge from taxation by.. ..
98-99 Books to be kept by, for recording proceedings.. ..
Writs to be sealed in office of.. .. .....................
Book to be kept for entry of writs, by..128
Enforcement of order of "Judge in Chambers".............139 Acting Registrar, appointment, powers of...141
Re-hearing
Only by leave or at instance of Court.. .................
Sittings by Registrar for transaction of business under.. .. .. Non-compliance with, may be excused under special circumstances Vacations not reckoned in computation of time under.. ........ Schedule-RSee "Forms"
Security (See also " Money ")
If case not filed within 40 d. after allowance of, respondent may move to dismiss appeal.. .. ..
4.............. When given below, certificate to accompany case setting forth nature, with copy of any bond or other instrument, by which security given, annexed.. .. ..
4............... Payment of money into Court.. ..
Payment of money out of Court.. ......................
105-106 Service (See also " Time ")
Of notice of hearing of appeal...16-19
Upon party to appeal appearing in person...24-25
When change of attorney or solicitor.. ....
..............
Court may order substitutional service when prompt personal service cannot be effected.. .. ..........
8............ Affidavits of service to state particulars...28
Of copy of appointment and draft minutes for settling judgment.. Of notice of suggestion adding party to appeal.. ............ Of notice of motion in interlocutory applications.. .....
. 11-12 Of notice in appeals from Registrar to Judge.. .. .. .. .. .. .. .. Of notice of cross-appeals.. ..
Of notices, summonses, etc., time for, before 6 p.m., or Saturdays, 2 p.m... ....
After 6 p.m. deemed effected following day.. ..............
After 2 p.m. Saturday deemed effected following Monday........115 Time of Vacations not reckoned in computation of time under Session
Notice of special session to be published in Canada Gazette.. Adjournment of sittings of, if no quorum..
Setting Down
Ex parte appeals.. ..
9............ Appeals, 14 d. before session.. .. ..
No inscription without leave, unless case filed 20 c. d. before session.. ..
Appeals to be beard in order of.. ..
Motions before Court.. .57
Appeals from Registrar to Judge.. ....
Sheriff
Writ of venditioni exponas may issue upon return of, to compel sale of property seized, Form K...123
Sale of lands, goods, by, mode of...124
Writ of execution, endorsement of direction and particulars on writ, to.. ........................
Writs of execution, notice of renewal, to.. ......
Fees and poundage of, Form N.. ..........
Sittings
By Registrar, for transaction of business...89
Of Court, adjournment of, if no quorum...111
Solicitor-See " Attorneys"
Special Session
Notice of, to be published in Canada Gazette, Form A.. .... .. Stamps
Fees by, to be paid to Registrar, Form H...
.
. Stay of Execution
Court or Judge may grant, against judgment or order.. .. Stay of Proceedings
Upon service of notice of motion to quash appeal.. ......
5.... Upon motion to set aside suggestion adding party to appeal.. Suggestions
To appear in person, when represented by counsel below, form of. If no suggestion of change filed, solicitor below deemed solicitor on appeal.. ......
......
....
................
To appear by attorney in appeal, when in person below.. .. .. 7.. Of domicile, for service of papers, by party appearing in person Adding parties, upon death or for other cause.. ....
.... Notice of, to other parties.. ..
Motion to set aside suggestion adding party to appeal...53 Summonses
Time of day for service of.. ..
Tariff
Fees to be paid Registrar, Form H...90
Fees, to be taxed between party and party, Form I.. ........ Taxation (See also " Costs ")
For printing case; power of Registrar to exceed..
.. .. .. .. ... When appeal abandoned by delay, upon application.. ...... Of party and party costs, Form I...91
Fixed sum may be directed, in lieu of...92
Set-off of costs, on...93
References on, by Registrar to Judge.. ......
Power of Registrar on, to administer oaths, examine witnesses, direct production of documents, etc...95
Review of, by Registrar, before issue of allocatur.. ........ 96-97 Appeals from, to Judge.. ..
98-99 Time
" Month " means calendar month where lunar month not expressly mentioned...2
Enlarging or abridging, in appeal or proceeding...108
May be granted after time allowed.. ................
Computation of, when clear days not prescribed.. ........ When less than 6 d., days offices closed not reckoned in computation of..
In proceeding expiring day offices closed, held duly done if taken next day open.. ...........................
For services of notices, etc., before 6 p.m., except Saturday, 2 p.m In services after 6 p.m., deemed effected following day.. ......... In services after 2 p.m. Saturday deemed effected following Monday Of office hours...116
Vacations not reckoned in computation of, under Rules.. ...... Translation
Factum or points for argument, Judge may require, at expense of party...102
Judgments and opinions below, Judge may order, at expense of appellant...103
Vacations
Office hours during, 10 a.m. to 1 p.m....116(2)
Christmas Vacation, Dec. 15th to Jan. 10th................
Long Vacation, July and August.. ..
Time of, not reckoned in computation under Rules.. ..
Venditioni Exponas, Writ-See " Writs"
Witnesses
Examination of, by Registrar...95
Writs-(See " Certiorari," " Habeas Corpus")
Fieri facias, to enforce judgment or order for payment of money Attachment or commital, to enforce judgment requiring abstaining any act.. ....
Fieri facias, exccution of according to exigency, Form J......122 Writs-Concluded
Venditioni exponas, may issue upon return of sheriff, to compel sale of property seized, Form K...123
Mode of selling lands and goods, by sheriff...124
Of attachment, to be executed according to exigency.. .. Of attachment, not to issue without order of Court or Judge, Form L..
"Writ of execution"
to include writs fieri facia*s, attachment, and subsequent writs...127
Term "issuing execution against any party" defined..
.. .. .. Preparation of, in office of Atty. Gen. or by attorney suing out the same...128
Sealing of, in Registrar's office.. ..
Entry of, books to be kept for.. ....................
Praecipe for, Form M.. ...........................
Of execution, not to issue without production of judgment or order Of execution, officer to be satisfied proper time elapsed to entitle Execution, may levy interest, poundage, and expenses of execution in every case...130
Of execution, for recovery of money, endorsement of direction and particulars to sheriff on..
interest 5 per cent from entry of judgment or order, if sought to be recovered.. ..
Of execution, in force only 1 y., unless renewed.. .......... Of execution, renewal of before expiration.. ..
Of execution, evidence of renewal of.. ..................
Execution, may issue 6 y. from judgment or order.. .. .. .. .. Execution, after 6 y., or change by death or otherwise, by leave Execution, stay of, or relief against.. ..
Amendments to, how made.. ..
Sheriffs' and coroners' fees and poundage, Form M.. ..
Order of Judge in Chambers, enforcement of.. ..
Crown, no execution on judgment or order against, for payment of money.. ....
Crown, Registrar may certify to Minister of Finance purport of judgment against, for payment of money...........140
Cases cited
- Holden v. Minister of National Revenue A.C. 526
- A.C. 181 A.C. 181 189-190
- A.C. 535 A.C. 535
- Cushing v. Knight Cushing v. Knight, supra
- Sisters of St. Joseph of the Diocese of London v. Fleming scr-1938-172
- O.R. 694 O.R. 694
- O.R. 281 O.R. 281
- 2 W.W.R. 433 2 W.W.R. 433
Statutes and regulations cited
-
- section 41
- s. 87
- s. 37
- s. 86
- s. 36
- s. 88
- ss. 1018
- sections 8
- section 5
- s. 41
- s. 29
- s. 41 of the Supreme Court Act
- section 104 of the Supreme Court Act
- s. 90
-
- section 57
- section 68
- section 45
- section 78
- 80
- section 82
-
Unresolved citations
- section 2
- section 11
- section 38
- sections 2
- 11
- Section 11
- Section 41
- Section 5 of the Income War Tax Act
- s. (2)
- s. 6 of the Income War Tax Act
- s. 3 of Income War Tax Act
- s. 3 of said Act
- s. 5 of The Public Schools Act
- s. 40 of said Act
- Section 266 of the Merchants' Shipping Act
- s. 31 of The Patent Act, 1935
- ss. (2)
- s. 29 of the Unfair Competition Act
- section 65 of the Dominion Controverted Elections Act
- section 66 of the Dominion Controverted Elections Act