Majority
overpayments of income but including her share of income CAMON received since December, 1938, is far short of the amount of the overpayments received by Lucy during her lifetime. J
The appeal is allowed and the orders of the Master of i J the Rolls and of the Court of Appeal in Equity, Prince Edward Island, are varied so as to direct that the remaining assets of the Edward Roberson estate shall be transferred or paid over to the three named Camerons in equal shares, after payment thereout of the costs, expenses and compensation referred to in the order of the Master of the Rolls. The appellants shall have their costs in the Court of Appeal and in this Court against the respondents, the Administrators with the will annexed of Lucy Jane Roberson, deceased.
TASCHEREAU J.-For the reasons given by my brother Davis, I would allow this appeal.
Solicitor for the appellants: A. A. McLean.
Solicitor for the respondents the administrators with the will annexed of the estate of Lucy Jane Roberson, deceased: W. E. Bentley.
J. DONAT MARLEAU
APPELLANT; * March 12
13,14.
Oct 30. THE PEOPLE'S GAS SUPPLY COM- PANY LIMITED
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO Sale of Goods-Purchaser claiming damages for alleged breach of conditions implied by s. 15 of Sale of Goods Act, R.S.O., c. 180- "Goods supplied under a contract of sale "-Sale of acetylene gas supplied in tank-Explosion of tank in purchaser's garage-Cause of explosion-Evidence-Findings of trial judge-Pleadings-Allowance of amendment at trial-Effect and scope of pleadings as amended. Defendant, a manufacturer and distributor of acetylene and other gases, had delivered to plaintiff two tanks (or " cylinders ") containing acetylene gas which plaintiff required (to defendant's knowledge) to use in plaintiff's garage. Plaintiff had purchased from defendant the acetylene gas, but when it was used was to return to defendant the tanks (which defendant had purchased from the manufacturer * PRESENT:-Rinfret, Crocket, Davis, Kerwin and Hudson JJ. thereof) and (for retention after 30 days) pay a rental therefor. (A time limit was fixed for return but had not expired when the acci- Ident in question occurred).
Some time after said delivery, one of said tanks, which tank had not been used since delivery, exploded (whether from defect therein or from some immediately prior volume GAS explosion or other external cause in the garage, where plaintiff had been working at a welding operation, was a matter in dispute), and plaintiff was injured and his property damaged. He sued for damages. In his statement of claim he alleged that the explosion was caused by negligence of defendant "in storing under compression acetylene gas in a defective and unsafe tank, the bottom part of which, not being properly and securely welded and affixed to the remaining portion, suddenly and violently separated from it with the resulting explosion." There was no proof of any such improper or insecure welding. By amendment allowed at the trial, plaintiff added in his statement of claim a plea that he purchased the gas and hired the tank, having made known to defendant the purpose for which they were required and relying upon defendant's skill or judgment, the gas and tank being goods which it was in the course of defendant's business to supply; that the gas was purchased and the tank hired by description; that " the said gas and/or tank were not reasonably fit for the purpose for which they were sold and/or hired and were not of merchantable quality" and that plaintiff's damages were the direct and proximate result thereof. The trial judge found that the explosion " was due to some defect in the internal structure or set-up of the cylinder, using the words in their widest application " and " that the cylinder exploded by reason of extremely high internal pressure only, due to some internal structural defect," and gave judgment to plaintiff for damages. This judgment was reversed by the Court of Appeal for Ontario, ([19391 Ont. W.N. 367; [1939] 4 DL.R. 199) which held, on their view as to the issue raised by the pleadings and the lack of proof to support plaintiff on that issue, it was not open to the trial judge to enter upon a consideration of all the possible causes of the explosion or " to find that the explosion was due to some unknown defect in the cylinder not alleged by the plaintiff, and the nature of which the evidence does not disclose." Held (Rinfret and Kerwin JJ. dissenting): Plaintiffs appeal should be allowed and the judgment at trial restored.
Per curiam: Said amendment to plaintiff's pleadings at the trial was, having regard to the proceedings, discussions, and offering of terms to defendant, properly allowed, and plaintiff's pleadings, so amended, covered a claim founded in contract generally for breach of conditions implied under s. 15 of the Sale of Goods Act, R.S.O., 1937, c. 180.
Per Crocket, Davis and Hudson JJ.: Upon all the evidence there was warrant for the trial judge's finding as to the cause of the explosion and (though on the printed record a doubt as to such cause might exist in the minds of an appellate court) his finding should not be disturbed; and on that finding, and as the facts essential to give rise to the conditions implied by said s. 15 of the Sale of Goods Act were established, plaintiff was entitled to judgment for damages. APPEAL by the plaintiff from the judgment of the Court of Appeal for Ontario (1) which (reversing the judgment of the trial judge, Chevrier J.) dismissed the action, which was brought to recover damages for personal injuries and damage to property caused by an explosion in the plaintiff's garage which the plaintiff alleged occurred by reason of defect in an acetylene gas tank delivered by the defendant to the plaintiff. The material facts of the case sufficiently appear in the reasons for judgment in this Court now reported.
The appeal to this Court was allowed and the judgment at trial restored with costs throughout, Rinfret and Kerwin JJ. dissenting.
A. W. Beament K.C. for the appellant.
T.- N. Phelan K.C. and G.
J.-This is an appeal by J. Donat Marleau from a judgment of the Court of Appeal for Ontario dismissing an action brought by him against The People's Gas Supply Company Limited and thereby reversing the judgment of Mr. Justice Chevrier after a trial without a jury. The action should be dismissed, but as my reasons for that conclusion are different from those assigned by the Court of Appeal, it will be necessary to refer to the pleadings and the course of the trial and to state the facts in some detail.
The plaintiff was the owner of a building in the village of St. Isidore in the Province of Ontario, in which he conducted a garage business for the repair of motor cars, and he himself was a mechanic accustomed to doing acetylene welding. The defendant is a company engaged in the business of manufacturing and distributing acetylene and PO '8 other gases. About the thirty-first day of March, 1937, GAS the defendant delivered to the plaintiff, at his garage, two tanks of acetylene gas. There is no dispute as to the Kerwin J. arrangement under which this delivery was made,-the plaintiff purchasing the quantity of acetylene in the tanks and agreeing to pay a rental for the containers. The smaller of the two tanks (Exhibit 8) was placed on the garage floor against the north wall and was never used in any way. From time to time, as occasion required, the larger tank (Exhibit 13) was used by the plaintiff in connection with his welding operations. On the night of May 28th, 1937, while Exhibit 13 was so in use, Exhibit 8 exploded, injuring the plaintiff and damaging the building and contents.
In his statement of claim, the plaintiff alleged that the explosion was caused through the negligence of the defendant by storing under compression acetylene gas in a defective and unsafe tank, the bottom part of which, not being properly and securely welded and affixed to the remaining portion, suddenly and violently separated from it with the resulting explosion.
The tank alleged to be " defective and unsafe " was Exhibit 8. The defendant denied negligence and it was on that basis that the action proceeded and the trial commenced.
The trial continued for some days until the plaintiff's case was practically completed when counsel for the plaintiff applied to amend the statement of claim by adding the following:- The Plaintiff purchased the acetylene gas contained in the said tank from the Defendant and hired the said tank and the contents thereof (other than the said acetylene gas) from the Defendant having made known to the Defendant the purpose for which the said gas and tank were required and relying upon the skill or judgment of the Defendant, the said gas and tank being goods which it was in the course of the Defendant's business to supply. The said gas was purchased and the said tank was hired by description. The said gas and/or tank were not reasonably fit for the purpose for which they were sold and/or hired and were not of merchantable quality. The damages suffered by the Plaintiff as herein set out were the direct and proximate result of the said goods not being reasonably fit for the purpose for which they were sold and/or hired and not being of merchantable quality.
This application was opposed by the defendant but the trial judge allowed it. The question of terms was dis- S.C.IL.]
cussed, including one as to whether the trial should be adjourned for the purpose of giving the defendant an opportunity to prepare to meet the case put forward by the statement of claim as amended. Counsel for the plain- C tiff also offered to recall any or all of his witnesses so that J. they might be further cross-examined. After consideration, counsel for the defendant determined to proceed with the trial without asking for any adjournment.
Undoubtedly a trial judge has the right to grant an amendment during the trial of an action, and an appellate court may interfere with the judgment pronounced after such a trial, if the opposite party has suffered any injustice. In the present case the Court of Appeal considered that this had occurred but, in view of the facts that an adjournment was suggested and the privilege offered to counsel for the defendant to cross-examine again any, or all, of the plaintiff's witnesses, and that counsel then decided to continue with the trial, I am unable to agree. It is true that witnesses were present from a distance, including experts, but all these matters of expense could have been arranged. When counsel deliberately takes a stand under these circumstances, the party for whom he appears must abide by the consequences.
It was next argued that even with the amendment the defendant was only obliged to meet a claim of breach of contract confined to an allegation of negligence through a defective weld but the remarks of counsel for both parties on the motion to amend, and the amendment itself, are not, in my view, capable of that construction. As amended, the claim against the defendant is founded in contract, generally, as well as in tort.
From the amendment and the argument at bar, it appears that reliance is placed upon section 15 of The Sale of Goods Act, R.S.O., 1927, chapter 163, the relevant provisions of which are as follows:- It is said that these provisions clearly apply to the sale of the acetylene gas and that so far as the container is concerned, the plaintiff and defendant, as bailee and bailor for hire, are, in relation to the implied conditions, in the same position as vendee and vendor, citing Hyman v. Nye (1); Vogan v. Oulton (2).
It is also contended that the tank, although not actually sold, falls within the meaning of the expression "goods supplied under a contract of sale"' as used in section 15 of the Act, citing a decision of a Divisional Court, Geddling v. Marsh (3), and a decision of the New York Court of Appeals, Haller v. Rudmann (4), where the Geddling case (3) is referred to. There appears to be a difference of judicial opinion as to whether the obligation of a bailor is the same as that of a vendor but, in the view I take of the matter, it is unnecessary to determine the point.
The method of constructing tanks such as the one in question was described, and in fact the history of Exhibit 8 was given. It was not manufactured by the defendant but by a company in the United States. Steel plate of a certain specification was used to form a disc which was cut to the required length and a forged steel boss to carry a valve and a protecting cap was welded at the top. Through' the bottom, the cylinder was next filled, under pressure, with an approved porous filler consisting of asbestos plug discs,-this filler serving two purposes, (1) as a carrying or distributing agent for acetone, (2) to break up acetylene into small cells so that in the event of ignition taking place, propagation of the flame would be prevented. A convex bottom was next placed in position and welded. (It might here be interpolated that on the question of negligence the trial judge found no defect, as alleged, in this welding, and in this I agree).
Acetone was put in Mamu through the valve opening in the head of the tank. It was then subjected to an internal pressure of five hundred pounds of air and one out of the lot of two hundred, or less, that included Exhibit 8, was subjected to an internal hydro-static test of seven hundred and fifty pounds per square inch.
A special ring was attached by shrinking around the bottom of the cylinder to protect the weld from abuse in service.
Finally, in the convex bottom of the tank were inserted three fusible plugs each containing a core of some material having a low melting point, the purpose of these being to release internal pressure in the cylinder that might be built up due to external heat. Exhibit 8 was sold by the manufacturer to the defendant in April, 1931.
The history of the tank thereafter shows that from time to time the defendant charged the tank with acetylene gas and sent it to its customers. The method of charging was described and no fault has been found with it.
On the night of the explosion, May 28th, 1937, Marleau was welding a piece of metal and for that purpose was using Exhibit 13 in conjunction with an oxygen tank, the two being strapped together on a carrier or holder. Marleau was standing, facing north and seven to ten feet easterly from Exhibit 8, which still stood on the garage floor near the north wall and which had never been used. He completed the welding operation, changed the torch from his right to his left hand, turned off the supply of oxygen, and was about to turn off the acetylene when he heard an explosion, "felt a kind of forced air" on his left side, and became unconscious.
There was a pit in the garage that had been constructed in order to permit mechanics to work underneath motor cars. Marleau was found, after the explosion, in this pit,about twenty feet from where he had been standing. He was taken outside where it was discovered he had been burned on the hands and face, and the front part of his trousers and underwear had been torn away half way to his hips. An employee who had been working in the pit heard an explosion, felt a rush of air from the direction of the north wall and " something " burned him. The roof was blown off the garage and part of the walls knocked down.
One of two men who were standing near a motor car on the floor of the garage was killed.
A dent was discovered in the cement floor just where Exhibit 8 had PP' been standing; the weld-protecting ring that had been on the tank was found on the garage floor as was also the bottom of the tank but, instead of the latter being convex J. to the inside of the tank as it was prior to the explosion, it was concave. Two of the plugs from the bottom of the tank were picked up in the garage, not fused, and from the evidence it seems clear that they were forced out of their position when the bottom of the tank was deformed. The rest of the tank was found partly buried in the earth at a distance of about three hundred feet from the position it had occupied in the garage.
The plugs in the bottom of Exhibit 13 had fused. This tank, Exhibit 13, and the oxygen tank that had been in use with it, were found on the floor but, except for the gauge on the oxygen tank and the hose, undamaged.
The theory of the plaintiff was that Exhibit 8 had exploded from some internal cause, while the theory of the defendant was that there had been a prior external volume explosion in the garage, which caused Exhibit 8 to explode. It is common ground that an acetylene tank such as Exhibit 8 would explode only from one of these two causes, or from external heat, andit is also common ground that in view of the fact that the plugs on Exhibit 8 had not fused, the last alternative was excluded.
I agree with the trial judge that res ipsa loquitur does not apply. The tank was not under the control of the defendant at the time of the explosion as were the premises in question in United Motors Service Inc. v. Hutson (1). In Donoghue v. Stevenson (2), there was no doubt about the snail being in the bottle. In Grant v. Australian Knitting Mills Ld. (3), it was shown that the woollen garment, when purchased from the retailer, was in a defective condition owing to the presence of excess sulphites.
The question remains as to what caused Exhibit 8 to explode.
The trial jidge decided that there was no prior volume explosion and that, therefore, there remained only the plaintiff's theory to account for the explosion, and that there must have been some defect in the construction of the tank or in the method of charging it with acetone or acetylene gas. The issue does not depend upon the credibility of witnesses but upon the inference to be drawn from undisputed facts. What the proper inference should be may give rise to a difference of opinion and, after anxious J. consideration of the evidence, I have concluded that there was a prior volume explosion.
We have not here a case of Exhibit 8 standing in the garage and with nothing else occurring in the building that could have no possible relevance to an explosion. The opinion of Mr. Hazen, an expert called by the defendant, that there was a flash-back in the hose stretching from the torch to Exhibit 13 is corroborated by other evidence. Even Stryker, a witness called for the plaintiff, admitted that there might have been a flash-back. Mr. Hazen was also definitely of opinion that following this flash-back, there was a volume explosion in the garage, although he could not say exactly what caused it. He pointed to the elliptical form of the sides of Exhibit 8 after the explosion, and I agree that it is impossible to believe that this deformation was caused when the shell hit the ground some distance away. In view of the condition of the top of Exhibit 8, I find it difficult to believe that that tank went through the roof of the garage before there had been a .prior explosion causing the roof to be moved. There is also the evidence of the witness Dumas, who on the night in question was on the same street as the garage and about three hundred feet south of it, and who testified that he heard three detonations, the first two being not as loud as the last.
I have not overlooked that Mr. Pitts, the manager of the defendant company, testified that the presence in the tank of acetone was not a safety factor. In this he is quite wrong, as Mr. Hazen was clear that the absence of acetone, or a sufficient quantity of it, would have a tendency to make the tank more liable to explode. But, as a practical matter, Mr. Pitt's erroneous opinion has no application. The presence of acetone allows the tank to be charged with a greater quantity of acetylene than would otherwise be the case, and from the records it appears that the weight of Exhibit 8, without any acetone, was ninety-three pounds; the acetone put in by the manufacturer was twenty pounds; on each occasion that the tank was returned to the defendant, it was weighed in order to discover if it were deficient in acetone, and on three occasions acetone was added.
Assuming that section of The Sale of Goods Act applies to the container as well as the acetylene gas, my view is that there was a prior volume explosion which caused Exhibit 8 to explode. Whether that be so or not, there is not sufficient in the evidence to warrant the inference that the tank and its contents were not reasonably fit for the purpose for which they were intended or that they were not of merchantable quality. I would dismiss the appeal with costs.
J.-This action, as originally brought, claimed damages to the amount of $25,666.90, for the destruction of the plaintiff's garage and contents as well as other property and for personal injury suffered by the plaintiff in consequence of the explosion of an acetylene gas tank, through the alleged negligence of the defendant in storing acetylene gas in a defective and unsafe tank, the bottom part thereof " not being properly and securely welded and affixed to the remaining portion."
The respondent in its statement of defence admitted that it was the manufacturer and distributor of acetylene and other gases, but alleged that it did not manufacture tanks in which to distribute the gas but purchased them from a reliable manufacturer, and that if the tank in question was defective or unsafe it had no knowledge thereof. It also pleaded unavoidable accident and alternatively that the accident was due entirely to the negligence of the appellant.
The plaintiff joined issue on the statement of defence and gave notice that he desired the issues of fact to be tried by a jury, but when the case was called for trial at the L'Orignal sittings of the court in March, 1938, the presiding judge (Chevrier, J.) granted a motion of the defendant's counsel to strike out the jury notice on the ground that the pleadings involved the consideration of technical questions and expert testimony relating to the cause of the explosion, and the action was consequently one that could better be tried without a jury. The action, therefore, was tried as a non-jury case.
After the trial had continued for several days and the plaintiff's expert witnesses had been examined, crossa
's examined and re-examined as to the possible causes of the explosion, Mr. Beament, who had then joined Mr. Marion as the plaintiff's counsel, made an application to J. amend the statement of claim by adding a claim for breach of the implied conditions of the contract of sale and hire, under which the acetylene gas had been delivered to the plaintiff in the said tank, in that the said gas and/or tank were not reasonably fit for the purpose for which they were sold and/or hired, and were not of merchantable quality. Although Mr. Phelan, the defendant's counsel, strenuously objected to the allowance of the amendment upon the ground that it would shift the whole basis of the plaintiff's case from one of tort to one of contract and seriously prejudice the defendant if the trial were proceeded with upon that basis, inasmuch as he had in the preparation of the defence naturally considered the case only from the point of view of negligence, he stressed on the other hand the great expense already incurred by the defendant in connection with the attendance of its expert witnesses, which could not be fully compensated for by any terms that could well be granted on the suggested order for adjournment.
At the same time he admitted that the facts involved were the same, whether the question of the defendant's liability were considered from the viewpoint of negligence or that of breach of contract. After a long discussion between His Lordship and counsel, in which it appeared that the plaintiff did not intend to adduce any further evidence and offered to recall any witnesses already examined in order that the defendant's counsel might cross-examine them further if he desired and to submit to any terms that might be imposed, His Lordship intimated that he would allow the amendment, and granted a recess for two hours to afford Mr. Phelan an opportunity of considering whether he should prefer to have the trial adjourned to the next court or to proceed.
When the court reconvened Mr. Phelan announced his decision to proceed with the trial and expressly stated that he did not desire to further examine any of the plaintiff's witnesses. The trial was accordingly proceeded with upon the pleadings as amended and continued for another two or three days, which were mostly occupied with the evidence of Mr. Coakley, factory manager of the Pressed Steel Tank Co., of Milwaukee, from whom the defendant had purchased the alleged faulty tank and many other similar tanks, and that of two other expert witnesses. Practically the whole of the testimony of these three witnesses was directed to the defendant's claim that the explosion of the alleged defective tank, described in the case as Exhibit No. 8, was caused by a so-called external volume explosion, which had occurred in the garage immediately before in connection with a welding job, on which the plaintiff was engaged at his bench from 7 to 10 feet distant from that tank, though he was making no use of it for that purpose, and it had not been used since its delivery to the garage some weeks before.
At the conclusion of the evidence the learned trial judge heard the arguments of opposing counsel and reserved judgment thereupon. This he delivered some weeks later.
While stating in his reasons therefor that he could not find that the weld was defective, as alleged in the original statement of claim, he did expressly find that the tank exploded through no fault of the plaintiff and that its explosion was "due to some defect in the internal structure or set-up of the cylinder, using the words in their widest application", and further "that the cylinder exploded by reason of extremely high internal pressure only, due to some internal structural defect," and that it was not of merchantable quality. He allowed the plaintiff $13,565.95 for the damages sustained thereby.
The defendant thereupon appealed to the Court of
Appeal, which allowed the appeal and dismissed the action with costs on the ground that it was not open to the trial judge to enter upon a consideration of all the possible causes of the explosion or "to find that the explosion was due to some unknown defect in the cylinder not alleged by the plaintiff, and the nature of which the evidence does not disclose."
It is quite apparent, I think, from the reasons given for the judgment on appeal that the court altogether ignored the amendment of the plaintiff's statement of claim, which the trial judge granted on the trial in the circumstances above stated, and treated the case as one which could only be determined upon the basis of the original claim for negligence in connection with the improper and insecure welding of the base to the remaining portion of the tank. With all respect, I am of opinion that the Court of J Appeal was not justified in so holding, in view of the course of the whole trial and particularly of the defendant's election in the circumstances above stated to proceed with its defence on the amended statement of claim rather than take the suggested adjournment on terms, and that the defendant was in no way prejudiced by the amendment. It was, to my mind, not only open to but the duty of the learned trial judge to determine the question of the liability of the defendant for breach of the implied conditions of the contract of sale and hire under the added claim, as well as that for the negligence first charged. Although founded on tort, the claim was one which manifestly arose out of the relationship of purchaser or lessee and vendor or lessor as between the plaintiff and the defendant, and necessarily involved proof of the existence of some fault in the tank in question, to which its explosion and the resulting damage was attributable. The defendant's own plea of unavoidable accident or, in the alternative, that the evplosion of the tank was entirely due to the negligence of the plaintiff, called for the full investigation of all possible causes of the tank's explosion, and it was indeed to that issue, as the record discloses, that practically the whole of the evidence, apart from that bearing on the assessment of damages, was directed from the beginning to the end of the trial. The Court of Appeal having erroneously, as we think, concluded that, notwithstanding the allowance of the amendment, the case could not be considered as involving any claim for breach of the implied conditions of the contract of sale and hire beyond that charged in the original statement of claim, the question remains as to whether upon that branch of the case the learned trial judge was warranted in holding the defendant responsible for the explosion as having been caused by some internal structural defect in the tank, and for the damages the plaintiff sustained as a direct consequence thereof. Although the amendment itself does not say so, it is clear that the claim thereunder is based upon the law as declared in s. 15 of the Ontario Sale of Goods Act. This enactment is in its terms the same as that contained in s. 14 of the Imperial Sale of Goods Act, 1893, 56 & 57 Vict., ch. 71, and, like the latter, is a codification of principles long recognized by the common law of England. It cannot be questioned, I think, that the amendment sets up a good and valid cause of action. Whether there was a sale only of the acetylene and a mere bailment of the tank, there can be no doubt that the acetylene could only be supplied in a tank of a particular description nor that both the acetylene and the tank were supplied by the defendant under a contract of sale within the meaning of the law, as declared by s. 15 of the Ontario Sale of Goods Act. See Geddling v. Marsh (1).
Apart from the cause of the explosion, there was no serious dispute as to any of the factors essential to fix the defendant with responsibility as seller under the added claim. It was admitted that the defendant company was a manufacturer and distributor of acetylene and other gases, which could only be supplied to its customers in tanks specially designed and constructed in order to insure their safe transportation and storage when charged. The gas and tank, therefore, were clearly goods of a description, which it was in the course of the defendant's business to supply, and were in fact supplied to the plaintiff under its agreement of sale. That the defendant knew the particular purpose for which this and other similar tanks, charged with acetylene and oxygen, were required and, in the circumstances, that the plaintiff relied on the skill or judgment of the defendant, not only in relation to the manufacture of the gas, but the safety and security of the tanks in which the gases were delivered, can hardly be questioned upon the evidence as it appears in the record. The contract of sale, under which the defendant supplied these tanks and their contents to the plaintiff, must be taken, I think, to have carried with it an implied warranty that they were, not only of merchantable quality, but fit for the particular purpose for which they were supplied.
Both parties clearly recognized that the essential issue centred in the cause of the tank's explosion, and that the explosion could only have been brought about by one or other of three possible means. These were described as: 1st, the application of considerable external heat; 2nd, p m, external violence or concussion such as a prior or con- GAS SUPPLY temporaneous volume explosion, and 3rd, internal defect Co. LD. in the tank itself. It was common ground that if the first Crocket J. two of these possible causes were negatived, the explosion was necessarily attributable to the third. Mr. Coakley, the factory manager of the Pressed Steel Tank Co., from whom the defendant purchased this and other acetylene gas tanks, was asked if it was fair to say that this cylinder, Exhibit No. 8, did not explode by reason of any locally applied heat. His answer was:
A. The examination of it does not reveal evidence of any locally applied heat.
Q. And, if it did explode by reason of any locally applied heat, it would not comply with the Canadian Railway Commission specification No. 8, would it? Isn't that correct?
A. That is correct.
Q. So that you would not suggest that it could be locally applied heat that caused this cylinder to explode? A. I don't see how it could be. Q. So that we have eliminated one possible cause? A. No, it could be in a fire and heat would explode it. Locally applied heat is heat applied at only one point.
Q. There is no evidence of anything like that, is there? That external fire caused this explosion? A. I can't honestly say there is.
Q. In point of actual fact, I notice from the base of the tank that it looks as though those fusible plugs had been forced out? A. That would happen due to the bottom being reversed, the holes becoming larger.
Q. Whereas, if the cylinder had been subjected to heat, the plugs would have fused?
Q. Rather than being forced out, as they appear to have been? Q. So that, in your opinion, would negative the theory that this cylinder exploded by reason of extraneous heat? A. I can't see any reason for that.
Q. Now we are down to two possibilities, external shock or inherent vice in the cylinder itself?
A. That is right.
Q. And if the evidence were to satisfy His Lordship that this explosion of the cylinder, Exhibit No. 8, were not caused by external shock, then we would be left with one thing only, inherent vice? A. Yes, sir. The following questions and answers on the same subject appear in the cross-examination of Mr. Pitts, the President and General Manager of the defendant company: Q. If a cylinder explodes without any abnormal external cause, would that be evidence that the cylinder was defective in some respect? A. I think so, yes.
Q. That is, either the cylinder or its contents?
Q. Should a proper cylinder of that kind, properly charged, explode? A. No.
Q. And if, without any other cause, it does explode, that is evidence that either the cylinder or its contents are defective?
A. Without any Iother cause, yes.
Q. And a cylinder that will explode without external cause, you would hardly say it is fit for the purpose for which it is intended? A. If Co. it exploded without any cause, I would say it was an unfit cylinder. Crocket J. And from the cross-examination of Mr. Hazen, Vice-President of the Milton Hershey Co., Montreal-the defendant's principal independent expert witness:
Q. Now, talking of a cylinder in good condition and properly charged, you came to the conclusion that it can only be set off by one of two methods. I wrote them down as you gave them. The first one was violent concussion and the second one was the application of heat, and then you paraphrased "Violent concussion" by saying "violent shock." Is that right?
Q. So that, if this cylinder exploded, and assuming that, as you have sworn, that it was a cylinder in good condition, it must either have been the subject of the application of considerable heat or it must have been the subject of a violent concussion. Is that correct, Mr. Hazen? A. I would say so, yes.
Q. So that, if the evidence were to establish that, prior to the explosion of this cylinder, it had not been subjected to the application of considerable heat, nor had it been subjected to any violent concussion then we would be left with the only conclusion that it exploded by reason of some defect in the cylinder or in the contents themselves? A. That would be true, yes.
With external heat definitely eliminated as a possibility, as was conceded all around, there remained but one thing, other than inherent defect, to account for the explosion of the cylinder, Exhibit No. 8, viz.: that it had been subjected to concussion from a prior or contemporaneous volume explosion in the garage, whereby the internal pressure in this cylinder had been so increased as to cause it to blow up. Although Professor Jamieson of McGill University, another expert witness examined for the defence, testified that in his opinion an internal pressure must have developed of at least 1,350 pounds to the square inch before the cylinder blew up, and that a volume explosion such as Mr. Hazen had suggested could have increased the internal pressure in a cylinder to that extent, the defendant's whole case in support of the hypothesis of a prior volume explosion in the garage rested in the main on the suggestion of Mr. Hazen that a so-called flash-back had occurred in the oxygen tube of the welding apparatus the plaintiff was using at the time, from which flash-back a volume explosion might have developed in the garage by reason of its releasing gases, which subsequently became MARnynu ignited. The oxygen tube, in which he suggested the flashback occurred, led, of course, from the oxygen tank the SUPPLY plaintiff was using, and this naturally in conjunction with Cocket an acetylene tube leading from another tank containing Crocket J. acetylene, described as Exhibit No. 13, to the welding torch, in which the mixture of the two gases was controlled by valves. The oxygen and acetylene tanks were braced together on a rack situated a few feet east of the welding bench where the plaintiff was doing his welding job. Yet Mr. Hazen admitted that if gasolene fumes were the basis of the suggested volume explosion " they naturally did not come from the acetylene tank," and that, as far as gasolene fumes were concerned, the flashback had nothing to do with it. It is somewhat difficult to follow his varying statements in this connection, and I therefore quote from his evidence precisely as it appears in the record of his cross-examination:
Q. Assuming for a minute that it was gasoline fumes that caused this volume explosion, that heat of the torch itself would have been sufficient to ignite those fumes, would it not?
Q. And, therefore, the flash-back would have nothing to do with the ignition of gasoline fumes, if it were gasoline fumes that caused that explosion?
A. I think not.
Q. That is correct? A. I think so.
Q. So that, if the explosion was caused by gasoline fumes, the flashback has no relevancy?
A. Not at all.
By His Lordship: Q. Mr. Beament asked if your conclusion was that the only relevancy of the flash-back is if it was the cause of releasing from the acetylene tank in use sufficient acetylene to form an explosive mixture in the garage. A. It might have ignited them. I don't think it is likely, but it might have.
By Mr. Beament: Q. Would not the torch itself have ignited the gasoline fumes without any flash-back?
A. The torch? It would probably be out when the flash-back occurred.
Q. Mr. Hazen, please. If there were gasoline fumes in that room, they didn't come there suddenly, like that (snapping fingers)?
A. No. Q. Then the torch was going, admittedly, or certainly up to the time when the flash-back occurred. Isn't that true? A. Yes.
Q. A flash-back could not occur unless the torch was going? Isn't that true? A. Certainly.
Q. Could a flash-back occur if -the torch wasn't burning?
A. Certainly not.
By His Lordship:
You are going to leave me under the impression that there were gasoline fumes in the garage. I can assume for the sake of argument that there were. But I do not know whether there were or not.
By Mr. Beament: I am trying to eliminate gasoline fumes as a possibility, my Lord. I am trying to get the witness to say if there had been gasoline fumes in that garage, they would have been ignited M L long before by the torch.
By Witness: That is so.
SUrLY By Mr. Beament: Q. So that the flash-back has no relevancy to the Co. LD. ignition of the gasoline fumes? They would have been ignited anyway? Crocket J. A. Yes, they would.
Q. And, when we finally get down to it, the only thing to give relevancy to the flash-back is that it might have caused the escape of acetylene from the cylinder, Exhibit No. 13.
Is that the only relevancy of the flash-back, that it might have caused the escape of acetylene from Exhibit No. 13?
Q. That is the only relevancy of the flash-back?
A. As far as that cylinder is concerned.
Q. As far as anything is concerned?
Q. Then the only relevancy of the flash-back was that it might have caused the release of acetylene fumes from Exhibit No. 13 which, on ignition, might have exploded?
Q. You have examined the cylinder, Exhibit No. 13? A. Yes. Q. And you tell me that, as far as your examination would disclose, there was nothing defective about it? A. That is true, except that the plugs were melted out.
Q. But that has no relevancy to our discussion at the present time? A. Not now.
Then he admitted that the valve equipment that was on Exhibit No. 13 had not in any way been affected by the explosion and that there was no apparent place from which anything could escape, so that if there was an escape of acetylene consequent on the flash-back, if there was a flash-back, it must have taken place after the acetylene had passed through the valve. I may say here that both the acetylene and oxygen tanks, which the plaintiff was using in his welding job when the explosion occurred, admittedly were found intact on the floor of the garage after the explosion and also numerous pieces of burning asbestos saturated with liquid acetone containing acetylene in solution, which could only have come from the cylinder Exhibit No. 8 when it exploded. There was also evidence of portions of rubber oxygen and gasolene tubes of the welding apparatus having been burned in varying degrees while a length of about 7 feet of the rubber hose was entirely missing, which Mr. Hazen admitted might have been burned by an external flame.
Whether the balance of probability lay on the side of the defendant's claim that Exhibit No. 8 blew up in consequence of a prior volume explosion caused by a flashback in the welding apparatus or on the side of the plaintiff's claim that it exploded in consequence of its own , internal defect was the problem which it was the special duty of the learned trial judge to determine. This involved a careful consideration, not only of the testimony of Mr. Hazen and the other expert witnesses for the defence, but of the whole evidence on both sides, which the record shews His Lordship followed with the closest possible attention throughout. Having concluded, as he did, " that the cylinder exploded by reason of extremely high internal pressure only, due to some internal structural defect," I am not, after anxious consideration of all the relevant testimony, prepared to say ' that that finding was wrong, or that there was not sufficient evidence to warrant it. I would therefore allow the appeal and restore the trial judgment with costs throughout.
DAVIs J.-The action out of which this appeal arises was brought by the appellant, the owner and operator of a garage and motor car repair shop, against the respondent company, which is a manufacturer and distributor of acetylene and other gases, for damages for personal injuries and property loss sustained by him as the result of an explosion on his premises. The explosion was a very severe one, as is shown by the amount of the damages, and assessed by the trial judge at $13,565.95.
That a particular steel tank filled with acetylene gas which the respondent had sold and delivered under contract to the appellant had actually exploded on the appellant's premises at the time and in the place complained of, is not in dispute.
The base of the tank or container (commonly called "the cylinder") was found after the explosion on the floor of the garage, while the body of the tank, which had been blown through the roof of the garage, was found with its nose embedded in a field some 200 feet away from the garage. The explosion, whatever was its cause, practically demolished the garage building, killed a customer who was standing in the garage near an open door and caused serious and permanent injuries to the appellant himself.
The appellant in the ordinary course of his business carried on welding operations by the use of a mixture of oxygen and acetylene gases. The respondent manufactured and distributed both these gases and the appellant regularly purchased his supplies of these gases from the respondent. The respondent did not itself manufacture the tanks or containers into which it put the acetylene gas but it supplied and delivered the gas in tanks or containers which its customers were required to return when the contents had been used.
The container was not to be retained for more than 90 days and a nominal charge per week was made for its retention after 30 days. When the explosion in question occurred the 90 days had not expired, though nothing really turns on that point. There is no direct evidence as to how the explosion actually occurred and a mass of evidence was given, including much expert testimony, in an endeavour to indicate what really happened, but, as might well be expected under such circumstances, the real cause can only be inferred from the known facts.
Mr. Phelan, counsel for the respondent, in a very careful review of the evidence which extended to two large printed volumes, left me in a great deal of doubt as to what was the real cause of the explosion that did all the damage-in fact I think I should lean to the view that the explosion of the particular tank in question may have been caused by something that occurred at the moment in the welding apparatus which the appellant had been operating some 10 or 15 feet away from the corner of the building in which the particular tank had been resting for some two months, awaiting use when the contents of another tank then in use had been exhausted. This welding operation was being done on a table and the apparatus consisted of a torch and two rubber tubes leading from two separate tanks on the floor, one tank of oxygen and the other of acetylene. The appellant had finished his welding and had turned off the supply of oxygen to his welding torch and was preparing to turn off the acetylene when the explosion occurred.
It is difficult for me to believe that the unopened tank in question resting on its weight in the corner exploded of itself. But on the other hand, if the initial explosion occurred in the welding operation it is strange that the two tanks being used in the welding operation remained intact where they were on the floor near the welding table. From each of these tanks rubber hoses had led to the welding torch and the flow of gas was controlled by valves on the hoses. It is a question MA.u of fact, and the learned trial judge saw and heard a great many witnesses and, it is plain, very carefully followed the SUPny evidence. It requires more than a doubt or suspicion on my part, merely reading the printed evidence, to disturb J. the finding of fact of the trial judge. One thing is plain on the evidence and that is that the acetylene tank in the corner exploded and that it could not have exploded except from one of three causes: (1) external heat, or (2) external force, or (3) some inherent defect. No one suggested that there was any external fire or heat, and the trial judge has found definitely that the explosion was not caused by any external force, though the respondent's evidence was directed towards the theory that it was the force of an earlier explosion, called a " flash-back," in the hose of the oxygen tank which the appellant had been using in his welding operation that had caused the unused and unopened acetylene tank in the corner to explode. There seems to me to be much to support that theory and I was impressed with it; but the trial judge, after seeing the witnesses and hearing all the evidence, expressly excluded this as the cause.
The trial judge was very definite on that point:
Further, the trial judge found as a fact that the cylinder did not explode through any fault of the plaintiff. That left only some inherent defect in the tank or its contents as the cause of the explosion. The properties of acetylene gas and the complex process of handling and transporting the gas are, with detailed references to the evidence, set out in the respondent's factum as follows: Into the porous filling of the tank so constructed is inserted a liquid known as acetone which dissolves the acetylene gas later- forced into it MLU under pressure.
The acetone dissolves about twenty-five times its own volume of gas, thus increasing the economy of the container and furnish- PEopUB's ing at the same time a very definite safety factor because the acetone tends to prevent disintegration of the acetylene.
The learned trial judge in carefully considered written DavisJ. reasons gave judgment in favour of the appellant for the amount of the damages upon the finding that " the explosion was due to some defect in the internal structure or set-up of the cylinder, using the words in their widest application."
The respondent appealed to the Court of Appeal for Ontario and its appeal was allowed and the action was dismissed with costs. From that judgment an appeal was taken to this Court.
The real difficulty in the appeal turns on the pleadings. The difference between the view of the case taken in the Court of Appeal and my own view of the case is a difference in what is to be taken as the proper interpretation of the pleadings. The appellant in the first place put his claim in tort, and solely in tort, in the statement of claim. I quote paragraphs 2, 3 and 4 of the statement of claim:
2. On or about the 31st day of March, 1937, the defendant delivered or caused to be delivered to the garage of the plaintiff two tanks of acetylene gas required by the plaintiff.
3. The plaintiff carefully put aside, for future use, one of those tanks in the exact condition in which it was received from the defendant and proceeded to use the other tank for welding operations and was still using it for that purpose in the evening of May 28th, 1937, when the unused tank, through no interference or fault whatsoever on the part of the plaintiff or anyone in or near the garage, suddenly exploded.
4. The plaintiff alleges that the explosion was caused or brought about by and through the sole negligence of the defendant, its servants and employees, in storing under compression acetylene gas in a defective and unsafe tank, the bottom part of which, not being properly and securely welded and affixed to the remaining portion, suddenly and violently sep. arated from it with the resulting explosion.
At the trial, after the plaintiff had put in all his evidence over a period of some six days, his counsel moved the trial judge to grant an amendment to the statement of claim. The amendment asked for was in the following words:
5. (a) The plaintiff purchased the acetylene gas contained in the said tank from the defendant and hired the said tank and the contents thereof (other than the said acetylene gas) from the defendant having made known to the defendant the purpose for which the said gas and The application for the amendment was opposed by counsel for the respondent and there was considerable argument by counsel for both parties as to the amendment sought to be made. The appellant's counsel made it plain that he did not desire to offer any further testimony in the case even if the amendment were granted but simply desired to set up on the facts that had been already proved a case against the respondent in contract upon the ground that the acetylene gas and tank which had been supplied under a contract of sale were not reasonably fit for the purpose for which they had been supplied and were not of merchantable quality, and that the damages suffered by the appellant as disclosed in the evidence were the direct result. During the discussion on the application for the amendment Mr. Phelan said very properly that
The trial judge expressed the view that, the trial having then gone on for so many days and the amount claimed being a large amount, he was inclined to allow the amendment. "I think a very great hardship would be occasioned if I limited the scope of the action."
After a couple of hours' adjournment in which the respondent's counsel was given time to consider whether he would go on with the defence or take advantage of the trial judge's offer that the case could stand over till the next sittings of the Court (the case was being tried at L'Orignal without a jury), Mr. Phelan stated that the defence would go on rather than have the case stand over. The amendment was treated as duly made to the pleadings, and the trial proceeded.
There was no proof at the conclusion of the plaintiff's case when the amendment was asked for, nor any proof on the whole of the evidence, of the act of negligence alleged in the original pleading that "the bottom part" of the tank had not been "properly and securely welded p and affixed to the remaining portion."
And it is not contended by counsel for the appellant that there was any such proof. Obviously that was apparent to counsel for the appellant at the close of the plaintiff's evidence and was the practical reason for the amendment to put the case on the contractual relationship that existed between the parties on the sale of the acetylene gas. But when the case got to the Court of Appeal that Court took the view that the amendment must be treated as limited to the particular cause of complaint set out in the original statement of claim, that is, that the bottom part of the tank had not been properly and securely welded and affixed to the remaining portion, and that that was the only issue which the Court could consider. There being no evidence to support a claim based on that narrow ground, and that feature of the case being really conceded by the present appellant, the Court of Appeal appear, as stated by counsel to us, to have taken the view that the whole evidence could not properly be reviewed and considered by the Court on the wider basis of a claim in contract for failure to supply the goods reasonably fit for the purpose for which they had been sold. When the case came before this Court, without deciding at the time whether the amendment should be treated as so limited or not, we heard argument upon the whole of the evidence as if the amendment were wide enough to found the action in contract on the ground of failure by the vendor to supply the goods under the contract to the purchaser in reasonably fit condition. I think we are all of the opinion that the amendment cannot properly be read as limited to a claim in contract based solely on the allegation that the bottom part of the tank had not been properly secured to the upper portion. It must be apparent that such an amendment would have served no practical purpose, because, if it could not be proved as a fact that the welding at the base of the container had been defective and that that caused the explosion, then it did not matter that proof of negligence in that respect might not be necessary in an action on a contract for the sale of goods though it would be necessary in an action in tort, or, to put it another way, if you proved as a fact that the welding at the base of the container had been defective it would, in the case of a highly explosive liquid, be per se evidence of negligence and you would not need to fall back on a claim in contract. The practical view of the amendment, as it suggested itself to the trial judge as well as to counsel for the respondent was, in the words of Mr. Phelan during the discussion of the proposed amendment as above referred to, " to shift the whole basis of the plaintiff's case."
It is to be regretted that we have not had the advantage of a consideration of the case by the members of the Court of Appeal on the basis of the amendment being wide enough to cover a case of goods supplied under a contract of sale. The provisions of sec. 15 of the Ontario Sale of Goods Act (R.S.O., 1937, ch. 180) follow the Imperial Act, 56 and 57 Vict., ch. 71, sec. 14, in that where a buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller's skill or judgment and the goods are of a description which it is in the course of the seller's business to supply, whether he be the manufacturer or not, there is an implied condition that the goods shall be reasonably fit for such purpose.
And, further, when goods are bought by description from the seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality.
There can be no doubt on the evidence that the appellant as a motor car repair man was a regular customer of the respondent in the purchase of oxygen and acetylene gases for the purpose of his business, and that the respondent was a manufacturer and distributor of these gases and knew the particular purpose for which the gases were required and that the buyer relied on the seller's skill and judgment. That being so, and the facts in evidence being found by the trial judge to establish that the explosion of the acetylene tank in question was not caused by any external heat or by any external force or concussion but was caused by some inherent defect, the appellant was entitled to succeed in his action on the basis that the goods " supplied under a contract of sale," to adopt the exact words of sec. 15 of the Sale of Goods Act, were not reasonably fit for the purpose for which they were sold and that the breach of the statutory condition was the direct cause of the appellant's damages.
Something was said during the argument that, the tank or container not being sold but only its contents, the Sale DavJ. of Goods Act could not apply to the container. But both the container and its contents were " goods supplied under a contract of sale." Geddling v. Marsh (1).
Some of the items in the assessment of damages, particularly with reference to the wife's illness, may be doubtful, but no serious objection was taken before us to the amount of damages assessed by the trial judge, and I do not think, in any event, that we should be justified in considering any revision of the items upon which the learned trial judge reached his ultimate amount.
For the reasons above given, the appeal should, in my opinion, be allowed and the judgment at the trial restored with costs throughout.
HunsoN J.-I am in general agreement with the views expressed by my brothers Crocket and Davis. My chief difficulty was to ascertain, if I could, the immediate cause of the explosion of the cylinder supplied by the defendant.
On this question, the learned judges of the Court of
Appeal did not find it necessary to come to a conclusion.
Consideration of the evidence in the record leaves me in considerable doubt and, under these circumstances, I deem it my duty to accept the decision of the learned trial judge.
See remarks of Lord Esher in Colonial Securities v. Massey
(2); Bigsby v. Dickinson (3).
I would, therefore, allow the appeal and restore the judgment at the trial with costs throughout.
Appeal allowed with costs.
Solicitor for the appellant: L. P. Cecile.
Solicitor for the respondent: G. E. Edmonds.
ADMINISTRATION OF ESTATES-Administration proceedings in Court of
Chancery, Prince Edward Island-Order directing final distribution of estate-Question as to overpayment of income, by trustees in course of administration of the estate, to one of the beneficiaries- Adjustment in final distribution in the administration proceedings.]-In the course of administration of the estate of R., deceased, payments of income to his daughter L., for a certain period up to the time of L.'s death in 1934 included income to which, under rights as determined in accordance with the interpretation of R.'s will by this Court in 1937
(Cameron v. Haszard, [19371
354), the appellants were entitled.
administration proceedings in the Court of Chancery of Prince Edward Island, the Master of the Rolls made an order on March 22, 1939, affirmed by the Court of Appeal in Equity, directing the final distribution of R.'s estate, the order taking no notice of the fact of said overpayments of income to L. On appeal to this Court: Held: In directing the final distribution of R.'s estate the Court of
Chancery in the administration proceedings was not only entitled but was bound to take into account, in adjusting and settling the amounts for the final distribution between appellants on the one hand and L.'s estate on the other, the overpayments of income that had been made to L.; and according to such adjustment to make allowance to appellants in the distribution, to the extent that there were assets of R.'s estate, available for that purpose, being administered by the Court. (In the issues and circumstances of the case, it was not necessary to decide the question whether overpayments could be recovered brought back to R.'s estate in the administration proceedings, nor the question of the right to claim interest on overpay- AMENDMENT - Pleadings -Allowed trial-Effect and scope of pleadings as amended ..........................
Jurisdiction
Wages-Claims of several employees against same employer cumulated in a single action- Each claim amounting to less than $2,000
-Claims mentioned in the original action, added together exceeding 82,000 - Total amount of claims in the appeal before
Supreme Court of Canada less than
82,000-Fair Wages Act, Quebec, 1 Geo.
VI, c. 50.1-When several plaintiffs cumu- APPEAL-Concluded late in a single action their respective claims for wages, amounting each to less than $2,000, against a same employer, as permitted by the provisions of a provincial statute and judgment is rendered accordingly, no appeal lies to this Court from that judgment, even if the total of all the claims exceeds $2,000. L'Autorit6 Limithe v. Ibbotson (57 S.C.R. 340) followed. CousINs 2-Person arrested on criminal charge and remanded by magistrate to gaol- Later committed as mentally ill-Jurisdicdiction of Supreme Court of Canada to hear appeal ...................
See CoRPus.
APPEALS TO PRIVY COUNCIL. ARBITRATION - Award - Validity - Companies
President-Authorization to sign-Conduct of parties-Evidence as to alleged irregularities-Art. 142 C.C.P.- Privilege-Sub-contractor-Registration Notice or memorial- Whether affidavit Reservoir - Construction Crown property-Reservoir to form part of existing municipal aqueduct-Whether subject to privilege-Public domain-Arts. 2018 (a) (f), 2103 C.C............ ASSESSMENT AND TAXATION-Association for the welfare of youth-Incorporated by provincial statute-Exemption from municipal and school taxes-Same as that granted to religious or educational establishments-Exemption when property owned and occupied by corporation for its purposes-Whether Association entitled to exemption when practically the building is rented and leased for revenue.1-The appellant association was incorporated in 1916 by a special Act of the Quebec legislature (7 Geo, V, c. 110), its object being by section 3 "to assure to its members personal development by means of study circles, and to devote itself to all works of public utility within the domain of charity, education and moral, social, national and economic questions." Then in 1932, this statute was amended (22 Geo. V, c. 136), and, amongst additional powers thereto granted, the association was authorized to "install and equip, for the use of its members and of the public, establishments for the teaching and practice of physical culture and athletic and sporting exercises "; and, by section 4, it was en- Continued acted that "lands and other immoveables held as owner and occupied by the corporation for the above purposes are assimilated to the property of educational establishments as to exemptions from municipal and school taxes." Subsequently, the appellant association became owner of a property situated in the city respondent, it consisting of a large building in which there were offices, a theatre, a skating rink, badminton courts, billiard rooms, bowling alleys and restaurants. The theatre, two of the offices, and the skating rink were leased and a general admission fee was charged by the association for the privilege of using the other entertainment places, there being no difference in the fee depending on whether one of the public was a member of the association or not.
But there were two offices used by the association, one being occupied by a priest acting as chaplain and co-manager and the other serving as library and meeting hall for the members. The respondent city sued the appellant association for
$4,060.64 for municipal and school taxes imposed for the fiscal years of 1936 and
The appellant took the ground that its property was exempt from these taxes under the amended statute above mentioned; and it also urged that the chaplain's office and the library room, being used for the purposes of the association, and therefore not taxable, had been illegally assessed for taxation and that the whole valuation of the appellant's property was null and void; but, in its conclusions, the appellant merely asked for the dismissal of the respondent's ac- Judgment was rendered by the
Recorder's Court in favour of the respondent for the amount of its claim, less the sum of S94.35, the Recorder exempting the two offices from taxation;
and that judgment was affirmed by the appellate court.
There was no crossappeal in that Court or in this Court as to the partial exemption granted by the trial judge. Held that the judgment appealed from should be affirmed and the respondent city's action maintained. Per
Rinfret, Crocket, Hudson and Taschereau
JJ.-The theatre, the arena, the rented offices and the restaurants constituted for the benefit of the appellant association sources of revenues; and consequently the latter could not benefit from the exemption of taxes provided by the statute. The appellant's rights are the same as those of the religious institutions or educational establishments; and the clause creating an exemption from taxes has its application only when the properties are occupied by them for the purposes for which they have been established, and not solely to raise a revenue.-The other ground of appeal raised by the association that the valuation was null in toto
ASSESSMENT AND TAXATION- Continued for the reason that part of the building, not being taxable, had been assessed, must be dismissed, as there is no clear and positive evidence that these two offices were occupied by the association for the attainment of the purposes mentioned in the incorporating Act. Toronto Ry. Co. v. Toronto ([1904]
A.C. 809), Donohue v. Paroisse de St. Etienne de la Malbaie ([1924] S.C.R. 511) and Montreal L.H. & P. Co. v. Westmount ([19261 S.C.R. 515) discussed. Per Davis J.-The incorporating statute clearly enacts that the exemption is only while the property is owned and occupied by the appellant association for the purposes of the corporation. Moreover, the building cannot be assessed piecemeal; two or three rooms out of a large office building, for instance, cannot be left free from taxation and yet all the other rooms be subject to it; the building is either taxable or it is not taxable.-Whatever may be said as to the occupation of several different parts of the building, it is not disputed that two portions are rented for private office use and the theatre portion is leased on a yearly basis. On a fair interpretation of the statutory provision, the corporation to be entitled to exemption must occupy the immoveable property for its own purposes and it cannot be said to occupy the immoveable property when any substantial portion of it is in the occupation of others. The statute is not satisfied by showing that the corporation occupies some portion of the building for its own purposes. v. LA CIT: CHICOUTIMI ............... 2-Telephone company-Personal property in town-"Actual cash value"- Basis on which assessors must estimate- Rule 2 of section 17 of The Assessment Act, N.S. Statute of 1938, chapter 2.]- The appellant company provides telephone service throughout the province of Nova Scotia, including the respondent town. This appeal involves the municipal assessment of that town for 1939 in respect of the personal property of the appellant company within the municipality. The personal property consisted of certain central office equipment, switch board and testing apparatus, telephone poles, wires, cables, etc., some 300 telephone stations in residences and business places and equipment of various kinds. The total cost as installed from time to time amounted to $32,505.67. The Assessment Act, chapter 2 of the Nova Scotia Statutes of 1938 enacts by section 17, rule 2, that " all property liable to taxation shall be assessed at its actual cash value, such value being the amount which in the opinion of the assessor it would realize if offered at auction after reasonable notice." The assessors of the municipality fixed the value of the personal property in question at $10,800.
Then the appellant company, pursuant to section 28(2)
filed a sworn statement "of the actual cash value " of the property at a sum of
$3,200 and the assessors, by section 29, were bound to adopt such valuation. Bit the municipal clerk, as entitled by the statute, appealed to the " Assessment
Appeal Court," which restored the assessors' valuation of $10,800. The appellant's appeals, first to the County Court and later to the Supreme Court of Nova Scotia en banc, were dismissed, the latter Court holding that in assessing the personal property of a telephone company within a town the "actual cash value" thereof was to be estimated on the value of the property as it stands, an integrated system ready to operate within the town, dissociated from the rest of the company's system outside the town, and not at
" scrap-iron " value.
By special leave of the last mentioned Court, granted on terms, the appellant appealed to this
Court. Held, affirming the judgment of the Supreme Court of Nova Scotia en banc
M.P.R. 387), that the appeal should be dismissed and that the assessment fixed by the assessors at $10,800 which had been confirmed by all the Courts below, should be maintained. Per Crocket and Taschereau JJ.-The property should be assessed as it stands and not as discarded junk.
Moreover, the decision of the assessors should not be disturbed, as it has not been shown that they made their valuation without fully appreciating their duty under the statute. Per Davis
J.-Although it has always been a difficult problem to fix the value of such personal property as part of a telephone system within a given municipality, the three municipal assessors in this case were practical men engaged in assessment work for many years; and when their valuation has been confirmed by three successive courts the assessment should not be disturbed unless it has been plainly demonstrated to the Court that some error in principle has been applied and has resulted in an excessive amount; and this has not been shown. Per Kerwin and Hudson
JJ.-There is some evidence that the appellant's personal property has been assessed at its actual cash value in accordance with rule 2 of section of the
Assessment Act.
That value must be fixed without considering the property as an integral part of the appellant's system, and there is evidence from two witnesses that they had fixed the value on that basis. Therefore there should be no interference with the assessment.
Co.
AUTOMOBILES
CHURCHES-Status of Voluntary Associations-Incorporation of religious body by Federal Parliament - Powers -Jurisdiction of Courts - Ukrainian Greek Orthodox Church of Canada-Expulsion of priest by Church Court-Refusal of congregation to recognize sentence-Action for injunction-Spiritual jurisdiction of corporate body over congregations- Antimins-Return of it by expulsed priest to corporation.] -The respondent Mayewsky was since 1931 a priest of the Congregation of the Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress in Winnipeg.
He was tried in 1937 by a church court on charges of broadcasting services in defiance of the consistory's ruling and of acts of disloyalty and disobedience to the archbishop.
The court sustained the charges, whereupon the archbishop as bishop of the Ukrainian Greek Orthodox Church of Canada excluded the respondent priest from the priesthood of, and membership in, the said church. The Congregation ignored the sentence end the respondent priest continued to act as such. An action was then brought in the name of the appellant, the Ukrainian Greek Orthodox Church of Canada and of two individual, co-appellants before this Court, who claim to be members of the respondent Congregation and to sue on behalf of a minority of these members who are opposed to the continuance of the ministry of the respondent priest. The appellant corporation was incorporated by a special Act of the Parliament of Canada in 1929 (19-20 Geo. V, c. 98) for the purposes " of administering the property and other temporal affairs connected with the spiritual jurisdiction of the said Corporation."
All the congregations, parishes, missions of the Ukrainian Greek Orthodox Church of Canada "which are now included and are a part thereof, and which may at any time in the future become a part thereof" were by the Act constituted the Corporation. The respondent trustees are a body corporate registered under the Manitoba Church Lands Act (R.S.M., 1913, c. 31); they hold title to the church lands for the Congregation, by whom they are appointed for that purpose; but they have nothing to do with the appointment or maintenance of the clergy, nor do they exercise any spiritual jurisdiction or have any corporate concern with the ecclesiastical functions of the bishop or the church court. The appellants' claim in the action was for an injunction restraining the respondent Mayewsky from officiating any longer or conducting any further services as a priest of the appellant corporation or as a priest of the respondent congregation or parish or otherwise in the Cathedral; an injunction restraining the respondent trustees CHURCHES-Continued from procuring or permitting such officiating or conducting by the respondent
Mayewsky; the return and delivery to the appellant corporation of what is called the antimins and an injunction restraining the respondent Mayewsky from wearing and using the said antimins.
antimins (a singular word) is a piece of linen about the size of a handkerchief which was given into the possession of the respondent Mayewsky at the time of his ordination as a priest of the appellant corporation for use in the ministration of the sacraments of the church. A counterclaim was brought by the respondent
Mayewsky asking a declaration that he was a priest in good standing and that the purported disposition or expulsion of him as a priest was illegal, null and void, and for damages and other relief.
trial judge granted the injunction prayed for by the appellants and ordered the delivery of the antimins to the corporate appellant or to its Board of Consistory;
and he also dismissed the counter-claim.
The Court of Appeal, reversing that judgment in part, dismissed the appellants' action, but maintained the dismissal of the counter-claim. Both parties appealed to this Court by way of appeal and crossappeal. Held that the appeal should be dismissed with costs; and that the crossappeal should also be dismissed, but without costs, subject to the terms of an agreement between counsel as to variation of the order of the Court of Appeal, so as to provide that the dismissal of the counter-claim shall not be deemed an adjudication on any of the issues raised thereby other than those adjudicated upon in the main action. Davis and Hudson JJ. dissenting in part and holding that the respondent Mayewsky should be ordered to deliver up the antimins to the appellant corporation. Per Crocket J.- It was not intended by the federal statute of 1929 (by which the appellant corporation has been constituted) that the unincorporated church organization with all its congregations, priests and missions, together with their trustees as incorporated under provincial laws, should be merged in or absorbed by the corporate appellant, and the latter's so-called statutory charter has not deprived the trustees of the
Cathedral of St. Mary the Protectress of its rights to hold the Cathedral property as trustees for the congregation, or the congregation of its right to manage its own temporal affairs. The antimins, having no substantial monetary value, the mere demand for their delivery to the
Board of Consistory as the property of the corporate plaintiff would not, apart from all other considerations, be sufficient to justify the Manitoba Court in taking action by way of injunction. The manifest and sole purpose of this claim, as that
CHURCHES-Continued of the whole action, was to enforce obedience to a purely ecclesiastical sentence or decree. Per Davis J.-Under all the circumstances of this case, this Court should not interfere with the expulsion order of the Church Court by enquiring into the proceedings against the respondent priest, examining the nature of the charges and the character of the evidence and then setting aside such order. But it has not been proved that the Cathedral congregation at Winnipeg ever signified its intention to become a part of the appellant corporation as stipulated in the statute, or that the Consistory ever issued a certificate admitting such congregation to the corporation. That being so, the congregation never became a part of the corporation, and the corporation therefore has no legal right to interfere with the congregation in continuing the services of its present pastor. Nor has the appellant corporation the right to restrain the respondent Mayewsky from officiating in the charge of that congregation or from officiating elsewhere, so long as he does not officiate "as a priest of the appellant corporation."-As to appellant corporation's claim to the antimins: the property in it has at all times been in the appellant corporation, and the latter is entitled to the return forthwith of the same. Therefore, this Court should issue an order directing the respondent Mayewsky to deliver up forthwith the antimins to the appellant corporation and granting injunction against the respondent Mayewsky restraining him from officiating or conducting any services in Canada "as a priest of the appellant corporation" unless and until he may become reinstated in good standing as a priest of the said corporation, and, otherwise, the appellants' action should be dismissed. Per Kerwin J.-The minutes of the meetings of the several councils of the unincorporated Ukrainian Greek Orthodox Church of Canada, held from 1918 to 1929, established that that Church never had any jurisdiction over the lands owned by the several congregations, the title to which, so far as concerns the Cathedral congregation, is vested by virtue of the provincial enactment in trustees; and, moreover, the terms of several sections of the Act of incorporation of 1920 indicate that the Federal Parliament did not ever purport to vest these lands in the Corporation; nowhere in the Act is there any grant of spiritual jurisdiction to the Corporation over the several congregations; the statute limits the power of the Corporation to temporal affairs over which alone it has any jurisdiction. Furthermore, while the respondent Mayewsky is a priest of the unincorporated Church, he never was a priest of the appellant Corporation as he never became a "part" of it or a "mem- CHURCHES--Concluded ber" as defined in section 5 of the Act of
1929; and neither a declaration made to the Consistory of the Church by the respondent priest on September 17th, 1931, on his arrival in Canada nor the certificate issued to the priest the same day under the seal of the appellant corporation can confer upon the Corporation a power or jurisdiction that, according to the Special Act, it did not poss was incapable of assuming; it was not legally competent to the respondent
Mayewsky to give, or to the appellant corporation to accept or exercise, the jurisdiction claimed by the appellant corporation. Therefore, the appellants' action must fail.
As to the question of the return and the delivery to the Corporation appellant of the antimins, the obligation of the priest in the undertaking was to return it to the Consistory of the unincorporated church in case he ceased to be a priest of that church; and that event not having occurred, the claim must also fail. Per Hudson J.-The Cathedral congregation, respondent, never became a part of the corporate body, appellant, or subject to its control, either temporal or spiritual.
As to the appellants' claim to prohibit the respondent Mayewsky from continuing to act as a priest of the congregation, it amounts to no more than a claim to have the Court enforce what is a purely ecclesiastical decree; no property right is involved so far as the appellants are concerned and the corporation makes no contribution to the salary of the priest, nor to the maintenance of the
Cathedral Church. Moreover, this action is solely based on the powers of the appellant corporation, which is not shown to be vested with any authority to enforce spiritual discipline over priests or to disqualify them or to restrain any particular priest from officiating or any congregation from accepting his ministrations.- The appellant Corporation is entitled to the return to it of the antimins, irrespective of the validity or invalidity of the decree of excommunication.
CIVIL CODE-Art. 756 (Gifts)..... 318
See W.L 1.
2-Arts. 831, 893 (Will)..........
3- Arts. 944, 956 (Substitution) ... 318
4- Arts. 1054, 1055 (Offences and Quasi- Off ences) .................
313, 455
See 3.
See 3.
CIVIL CODE-Concluded
5- Arts. 1117, 1118 (Joint and several obligations) ....................... 6-Art.
1156 (Payment with subroga- 7-Art.
2018 (Privileges upon immoveables) ........................
&-Art.
2103 (Registration of real rights) ....... 9-Arts. 2242, 2260 (Prescription)..534 See Paomissoay CODE OF CIVIL PROCEDURE-Art. 1432 (Arbitrations) ..............
COLOURED PERSONS - Tavern - Refusal to serve beer-Damages..... 139 COMPANIES-Company wound up voluntarily-Resolution approving of reservation of sum for taxation, legal charges and other expenses to be used as liquidator with advice of certain persons might determine-Subsequent suit by shareholders for an accounting in respect of said sum reserved-Nature and form of the action -Right to relief-Companies Act, R.S.O., 1927, c. 218, ss. 229, 201.1-The shareholders of a company incorporated by letters patent under the Ontario Companies Act resolved at a special general meeting on May 2, 1932, that the company be wound up voluntarily under the provisions of Part XIV of the Companies Act, R.S.O., 1927, c. 218, and that defendant be appointed liquidator. On December 6, 1932, at a special general meeting of the shareholders, at which all were represented, defendant presented a statement showing the assets which had come into his hands as liquidator and other statements showing distribution among shareholders and accounting for receipts and disbursements;
it was explained, among other things, "that there has been reserved for taxation, legal charges, and other expenses the sum of $25,000 to be used as the liquidator with the advice determine." By resolution the liquidator's report was adopted and the plan of distribution approved.
On December 1932, the liquidator's return as to such meeting was filed in the Provincial Secretary's office as required by s. 229 of said Act, which provides that "on the expiration of three months from the date of the filing COMPANIES-Continued the corporation shall ipso facto be dissolved."
The said sum of $25,000 consisted of bonds of the face value of
$25,000. These bonds or proceeds thereof when received in 1933 by the liquidator from the company's custodian were of the value of $28,037.21.
The liquidator paid thereout certain sums on account of taxation, legal and other expenses.
Plaintiffs, shareholders in the company, in 1935 demanded distribution of said sum of $25,000, and later, suing on behalf of themselves and all other shareholders of the company of record in the year 1932 other than defendant, brought action against the liquidator. The claim endorsed on the writ was for an accounting of said sum of $25,000, and payment thereof and of interest, less the amount, if any, that might be found to be due and owing to defendant for his fees and disbursements as liquidator; and to recover possession of books, documents, etc., of the company. In their pleadings the plaintiffs claimed a declaration that the company had not been fully wound up or dissolved, an order that the windingup proceedings be continued under the court's supervision and that another liquidator be appointed in place of defendant, an accounting and payment of the amount with interest "that may be found to be due to [the company] or to the shareholders thereof,"
possession of books, documents, etc.
Held: (1) As against the plaintiffs, in the absence of fraud, the company was fully wound up and dissolved at the expiration of three months from the date of said filing of defendant's return with the Provincial
Secretary.
The minutes of said meeting of December 6,
1932, as to reservation of the sum of $25,000 could not be taken as an arrangement whereby defendant was to retain the moneys for himself in settlement of all matters, including protection against his liability for prospective claims for taxes, legal charges and expenses.
(3) (Reversing on this point the judgment of the Court of
Appeal for Ontario, [19401 OR. 28.) The relief of an accounting could be given to plaintiffs in the action as framed (even without calling in aid R. 183, Ontario
Rules of Practice).
Though plaintiffs sought a declaration (which could not be made) that the company had not been fully wound up or dissolved, yet their claim for an accounting was not subsidiary or consequential upon any declaration that might be so made. Sec. 201 (a)
of said Act (providing that, upon a voluntary winding up, the property of the corporation shall, subject to satisfaction of its liabilities, and unless otherwise provided by its by-laws, be distributed rateably amongst the shareholders)
referred to.
COMPANIES-Concluded
2- Arbitration-Award-Validit y-Companies-President-Authorization to sign Conduct of parties - Evidence as to alleged irregularities-Art. 1482 C.C.P.- Sub-contractor -Notice or memorial-Whether affidavit Reservoir - Construction Crown property-Reservoir to form part of existing municipal aqueduct-Whether subject to privilege-Public domain-Arts. 8018 (a) (f), 2108 C.C.............. CONDITIONAL
SALES - Conditional sale agreement not registered - Conditional Sales Act, R.S.O., 1987, c. 182, s. 8 (1)-Bailiff's sale under executions against conditional purchaser-Purchaser at such sale not "a subsequent purchaser claiming from or under" the conditional purchaser.]-T. purchased and took possession of a motor car under a conditional sale agreement, which was not registered as provided by s. 2 (1) of the Conditional Sales Act, R.S.O., 1937, c. 182. T. defaulted in payments and appellant, assignee of the conditional vendor, became entitled under the agreement to re-take from T. possession of the car, but did not do so. A bailiff, acting under executions against T., seized the car and, at bailiff's sale, sold it to respondent who took possession. Appellant sued respondent for the amount unpaid under the conditional sale agreement, or possession of the car. Respondent claimed that it was a purchaser for valuable consideration in good faith and without notice of appellant's claim and that the conditional sale agreement, for want of registration, was invalid as against it. Held (reversing judgment of the Court of Appeal for Ontario, [1940] O.R. 115): Appellant was entitled to judgment. Respondent, as purchaser from the bailiff, was not a subsequent purchaser claiming "from or under" T. within the meaning of s. 2 (1) of said Act, and therefore could not invoke that enactment; therefore respondent acquired only the interest in the car which the bailiff had the right to sell, that is only the execution debtor's (T.'s) interest or equity Co. LTD.................. CONSPIRACY-Criminal action for infringement of copyright........... CONSTITUTIONAL LAW-Appeals to His Majesty in Council and to the Judicial Committee from Canadian courts- Whether Parliament of Canada has jurisdiction to pass an Act amending the Supreme Court Act so as to abrogate jurisdiction of Privy Council to hear such CONSTITUTIONAL LAW-Continued appeals.]-A Bill, entitled "An
Act to amend the Supreme Court Act" was referred to this Court by Order of the
Governor General in Council for its opinion as to whether that Bill, or any of its provisions, was intra vires of the Parliament of Canada.
Such Bill purported to enact that "the
Supreme Court of
Canada shall have, hold and exercise exclusive ultimate appellate civil and criminal jurisdiction within and for Canada "; and, for the purpose of giving effect to that enactment, it was in substance provided that the jurisdiction of
His Majesty in Council and of the Judicial Committee to hear appeals from
Canadian courts was abrogated. Held, by the Court, that the Parliament of Canada was competent to enact such Bill in its entirety. Crocket J. was of the opinion that the Bill should be declared wholly ultra vires of the Parliament of Canada.
Davis J. was of the opinion that the Bill referred if enacted would be within the authority of the Dominion Parliament if amended to provide that nothing therein contained shall alter or affect the rights of any province in respect of any action or other civil proceeding commenced in any of the provincial courts and solely concerned with some subject-matter, legislation in relation to which is within the exclusive legislative competence of the legislature of such province.
No Acr
ACT."........
2-Provincial Act constituting board to regulate " coal and petroleum industries"
within the province-Price-fixing powers given to the board-Whether legislation intra vires of the legislature-The Coal and Petroleum Products Control Board
Act, B.C., 1987, c. 8-B.N.A. Act, section
92.1-The Coal and Petroleum Products
Control Board Act, B.C., 1937, c. 8, which provides for the appointment of a board to regulate and control within the province the " coal and petroleum industries "
and which more particularly empowers the board, by sections and 15, to fix the prices " at which coal or petroleum products may be sold in the province either at wholesale or retail or otherwise for use in the province," is intra vires of the legislature, since the pith and substance of the Act is to regulate particular businesses entirely within the province and such legislation is within the sovereign powers granted to the legislature in that respect by section 92 of the B.N.A. Act. Shannon v. Lower Mainland Dairy Products Board [19381 A.C.
708, followed. Comments as to when and in what manner a court has the right to
CONSTITUTIONAL LAW-Concluded interpret legislation by reference to extraneous material; in this case, such material being the evidence taken before, and the report of, a public enquiry under a Royal commission relating to the subject-matter of such legislation. On. DIsTrIBroRs
BaRIsH COLUMBIA.... 444 CONTRACT-Sale of goods-Damages- Action for damages for vendors' breach of alleged contract for sale of wine- Evidence and findings as to contract- Statute of Frauds, ss. 4, 17-Measure of damages-Sale of Goods Act, R.S.B.C., 1986, c. 250, s. 56 (2) (3)-Damages based on estimated loss of profits.]-The plaintiff's action was for damages for breach by defendants of an alleged contract (which contract was disputed by defendants) to sell to plaintiff 50,000 gallons of wine.
The trial judge found that there was a verbal contract made (to the effect claimed) based upon, but varying in some respects, certain written documents; that s. 17 of the Statute of Frauds did not apply, as pursuant to the contract there were accepted and actually received three carloads of wine as part of the 50,000 gallons; that s. 4 of the Statute of Frauds was not a bar to the action, as, though the parties expected that all deliveries would not be made within one year, yet, as the purchaser (plaintiff) might, if it saw fit, accelerate deliveries, there was a contract which was not incapable of being performed within a year. As to damages, he held that s. 56 (3) of the Sale of Goods Act, R.S.B.C., 1936, c. 250, had no application, as there was no available market where plaintiff could have procured wine to fill the contract; that s. 56 (2) contained the rule to be applied, namely, that the measure of damages was the estimated loss directly and naturally resulting, in the ordinary course of events, from the sellers' breach of contract; that plaintiff was entitled to recover the profits which it might have been expected to make on the sale of the wine which defendants did not deliver; on which basis, and accepting as a guide a certain estimate as to profits given in evidence, but also considering elements involved and making allowances, he fixed damages. The Court of Appeal for British Columbia reversed his judgment, holding that the documents and other evidence did not establish or support a contract such as that claimed. Held: On the documents and other evidence (and in view of the trial judge's findings on issues of fact involving questions of credibility) there was a contract established for sale of 50,000 gallons of wine as claimed. S. 17 of the Statute of Frauds had no applica- CONTRACT-Continued tion, there having been acceptance and actual receipt by plaintiff of goods under the contract.
S. 4 of the Statute of
Frauds was not a bar to the action, for the reasons (supra) given by the trial judge. His judgment on the question of damages (supra) for breach was not impeachable on the ground that he erred in the principle he applied or in the manner of his application of it to the particular facts. (As to the canon applicable by an appellate court as to assessment of damages made at trial, McHugh v. Union
Bank of Canada, [19131 A.C. 299, at 309,
2- Deed of transfer of property-Money consideration stipulated-Evidence of absence of such consideration-Deed not necessarily simulated-Deed valid if evidence of other real and valid consideration.]-Where a deed of transfer of property stipulated certain money consideration and it has been later established by evidence that such consideration has never been received by the transferer, it does not necessarily follow that the deed was simulated, if it has been also established that some other real and licit consideration for the transfer had existed.
The mere fact that false statements are contained in a deed does not necessarily constitute by itself elements of simulation: if the transferee has some legal right to get into possession of the property, the form under which it is transferred to him is not material. PERIAs v.
.......................
3-Physicians - Arrangement between plaintiff and defendant, both physicians, for defendant to purchase practice of third physician (retiring) with moneys furnished by plaintiff and to practise for fixed time and pay share of profits to plaintiff-Subsequent contracts for further periods of practice and division of profits
-Restrictive covenants against defendant practising within certain time and area- Validity, severability, of the restrictive covenants-Plaintiff suing for an accounting-Nature of the agreements-Consideration-Statute of Frauds (R.S.O., 1937, c. 146), s. 4-Question as to application of s. 47, 50, of Medical Act (R.S.O., 1937, c. 225), in view of plaintiff becoming disentitled to practise.]-Plaintiff and defendant, both physicians, arranged that defendant should in defendant's name purchase from C., a physician retiring from practising in the same town in which plaintiff practised, C.'s practice and certain equipment, plaintiff furnishing to defendant the money for the purpose;
and this was done. Plaintiff and defendant entered into an agreement whereby defendant was to " practise for " plaintiff
CONTRACT-Continued for three years, plaintiff to pay to defendant $300 each month and expenses of the practice and 10% of the net proceeds of the practice (determined after deducting expenses including defendant's said "monthly salary"). Defendant carried on the practice in the office formerly occupied as tenant by C., the building containing it having been purchased by plaintiff. Said three-year period began on May 1, 1930. On April 17, 1933, plaintiff and defendant entered into a second agreement whereby defendant agreed to continue the practice "for and on behalf of" plaintiff "and in his own name and with the same good will and co-operation between the parties as has existed in the past " to May 1, 1936, defendant to receive 50% of the net profits. On September 6, 1935, plaintiff and defendant entered into a third agreement in terms similar to those of the second agreement, the period of the third agreement to last until May 1, 1939. Each of the agreements contained a covenant by defendant not to practise within a certain area within a certain time. On certain settlements of accounts, defendant gave to plaintiff two promissory notes dated respectively January 1, 1934, and May 1, 1935. In October, 1935, plaintiff's name was struck from the register under the Medical Act (R.S.O., 1937, c. 225).
About September, 1937, defendant refused to recognize any claim of plaintiff on the promissory notes or under the agreements.
Plaintiff sued for payment of the notes and an accounting. Defendant pleaded that the second and third agreements were nuda pacta and failed wholly (as did also the promissory notes) for want of consideration, and that he had more than fully paid all moneys payable under the first agreement; he also attacked the agreements by reason of the restrictive covenants, and also pleaded the Medical Act aforesaid and the Statute of Frauds. At trial, McTague J.A. ([1939] O.R. 444) gave judgment to plaintiff for an accounting.
This judgment was reversed by the Court of Appeal for Ontario (ibid), which dismissed the action.
Held (per Rinfret, Davis and Kerwin JJ.; the Chief Justice and Crocket J. dissenting): Plaintiff's appeal should be allowed and the judgment at trial restored. Per Davis J.: Whether or not the restrictive covenants made by defendant in the agreements are unenforceable, they are clearly severable; in any case there was nothing in the evidence to support the contention that either the second or third agreement was made by defendant because of any thought or fear of enforcement of the restrictive covenant. While it cannot be said that a trust was created by the first agreement, there was consideration for all the agreements, and the CONTRACT-Continued court is not concerned with the adequacy thereof.
The plain intention of the parties, and it was fully carried out, was that defendant would practise by himself and in his own name, and it was only in the sense of sharing with plaintiff the earnings of the practice that the rather loose language in the agreements as to defendant practising "for"
or "for and on behalf of " plaintiff were used. As to the Medical Act, plaintiff's name was not struck from the register until October,
1935, and in any case it was the earnings from defendant's practice, carried on by himself and in his own name alone, which were covered by the agreements. Per
Kerwin J.: As to the second agreement, whereby defendant was to continue the practice "for and on behalf of" plaintiff for three years, defendant's contention that, if any consideration existed it did not appear in the written document and thus the agreement was not enforceable by virtue of s. 4 of the Statute of
Frauds (R.S.O., 1937, c. 146), is sufficiently met (apart from other items of consideration suggested) by plaintiff's promise therein to pay defendant 50o of the net profits.
By entering into the first agreement, defendant undertook in effect that he would at its expiration turn over to plaintiff the practice which he had been enabled to commence with plaintiff's money, unless some new agreement was entered into.
The new agreement being valid to the extent indicated, defendant is bound to account to plaintiff in accordance with its terms. Plaintiff did not contravene ss. 47 and 50 of the Medical Act and is not prevented because of those enactments from compelling an accounting. The validity of the restrictive covenants is not material in determining the present case. Per the Chief Justice and Crocket J. (dissenting): Plaintiff is not entitled to any rights as between himself and defendant on the footing that, in defendant's contract of purchase from
C., plaintiff was the principal contracting through defendant as his agent, or that defendant's rights under that contract were held by him in trust for plaintiff;
the contract between C. and defendant was a personal contract-C.'s patients were to be introduced to defendant (as to the true nature of the pith and substance of such a contract, May v. Thomson, 20
Ch. D. 705, at 718, referred to); further, it was well known to plaintiff and defendant that C. contracted in the full belief that defendant was contracting as principal and in particular in the full belief that defendant was not contracting as plaintiff's agent, and, in the circumstances, plaintiff could not have enforced the contract as a principal (Ferrand v. Bischoffsheim, 4 C.B., N.S. 710, at 717); further, the proposition of plaintiffs rights upon
CONTRACT-Continued the footing aforesaid was really based on the assumption that plaintiff and defendant were inducing C. to enter into the contract by industrious concealment in circumstances which imparted to that concealment the character of misrepresentation; and it is not open to plaintiff to base his case upon his own wrong; he cannot set up a relationship in support of his claim which rests upon fraud upon third parties (Jackson v. Duchaire, 3 Term Rep. 551, and other authorities cited). It was definitely understood plaintiff and defendant that the arrangement between them should be kept secret. The agreement between them did not contemplate the establishment of any such relationship as that of a partnership or that of principal and assistant. The patients treated by defendant in the course of his practice were his patients. If there was any vinculum juris which plaintiff could have invoked against defendants' resistance, it was that of debtor and creditor.
The restrictive covenants were void in law; such a covenant in gross would be contrary to public policy and unenforceable; and such a covenant is not valid and enforceable as subsidiary to the contract between plaintiff and defendant-a contract merely binding defendant to practise for three years and pay to plaintiff a share of the earnings. There was no consideration to defendant for his second and third agreements with plaintiff; at the expiration of the period of the first agreement, plaintiff had nothing to give to defendant. It was not competent in this action to go outside the writing to find consideration for defendant's promise, the agreement being within s. 4 of the Statute of Frauds. The promissory notes, which were given in settlement of moneys supposed to be payable under the second and third agreements, do not advance the matter. Though their production establishes a prima facie right, a presumption of valid consideration, yet the facts are all before the court and the only possible consideration was money supposed to be owing under defendant's promises given without consideration. A promise to pay money, unenforceable because not supported by a valuable consideration, can, itself, be no consideration for a promise to pay these sums, whether in the form of a promissory note or in any other form. Putting the point in another way: the direct and immediate cause of the making and delivery of the notes and the whole basis of the agreement embodied therein was the mistaken belief, common to both parties, that the amounts thereof were due and owing; and the notes are unenforceable because, by reason of such mistaken belief, they were void.
The mistake was one in respect of particular CONTRACT-Concluded private rights involving the application of general principles of law to the facts; a mistake due to ignorance in respect of a right which both parties supposed to exist.
On the principle of Cooper v. Phibbs
(L.R. 2 H.L. 149) and cases which have followed it, such a mistake vitiates the contract or the instrument under which it is given. (This sort of mistake is not the basis of a right to recover back money as paid under a mistake of fact, for there the mistake must be one of pure fact and not of mixed fact and law).
v. TIFFIN.............
4-Loan of money - Damages for breach
Contract between automobile dealer and finance company-Breach by latter-Right to substantial or nominal damages-Measure of damages.]-The respondent company, engaged in the selling of automobiles, brought an action for damages for breach of a contract whereby the appellant company agreed to finance the respondent's purchases of cars.
The trial judge held that the contract alleged had been proven, that the appellant had broken it and the respondent was entitled to substantial damages, and that, having found that the appellant company had full knowledge of the circumstances under which the contract was made and that the loss by the respondent of its franchise granted it by the car manufacturers and the consequent destruction of its business and its loss on the sale of the assets were natural and probable results which must have been within the contemplation of the appellant, the trial judge held that the damages should be assessed accordingly. This judgment was affirmed by the appellate court. Held that the appeal should be dismissed and that the respondent was entitled to the damages awarded by the trial judge. Hadley v. Baxendale (9 Ex.
341); Mennie v. Leitch (8 O.R. 397); The
South African Territories Limited v.
Wallington ([18981 A.C. 309); Prehn v.
Royal Bank of Liverpool (L.R. 5 Ex. 92);
Manchester and Oldham Bank Ltd. v.
Cook (49 L.T.R. 674); Wilson v. United
Counties Bank ([19201
A.C. 102)
discussed.
v. Dow
LIMITED...................
5-Sub-contractor - Registration ........................
COPYRIGHT-Action for infringement of copyright and conversion of infringing copies-Copyright in fire insurance plans and rating schedules-Ownership of copyright-Period of limitation established by
Copyright Act not a bar to relief where infringement is accomplished by fraudulent act of defendant-Criminal conspiracy
Disclosure of authorship of the works - Unpublished works - Author not identified -Copyright
Act, R.S.C., 1927, c. 82.1-The action is one for infringement of copyright, and conversion of infringing copies in fire insurance plans and rating schedules. In 1883, the Canadian Fire Underwriters' Association, an unincorporated body, was formed by the association of a number of fire insurance companies carrying on business in Ontario and Quebec, all the members of that Association at the date of the action being added as plaintiffs to the Underwriters' Survey Bureau Limited, a Canadian corporation incorporated in 1917. Prior to 1901, the fire insurance business in Canada was carried on under the minimum tariff system of rating. In 1900, or shortly afterwards, the Association decided to adopt the system of " rating schedules " for all buildings in protected areas, with the exception of residential risks, which remained subject to the minimum tariff system.
In this system, formulm known as rating schedules, which are applied to individual buildings, must be arrived at and expressed with precision. These specific rates are recorded on cards or books, which are issued to members and members' agents only. From the beginning, the Rates Committees of the Association had charge of all matters connected with rates. According to the constitution of the Association of 1914, it was provided, inter alia, that all then existing members of the Association and companies thereafter becoming members were binding themselves by signing a copy of constitution and by-laws, to observe same; and that the member, who may withdraw, was bound to release, or "forfeit," "any right or claim to any portion of the property or assets of the Association" and return to it all card ratings and specific tariffs received from the Association, rating schedules manuals not being placed in the hands of the agents but remaining in the hands of the officers of the Association. affairs of the Association are administered by officers elected annually by the members, and the expenses are met by an annual assessment upon all the members proportioned in each case to the premium income of the member for the year. the end of 1917, or the beginning of 1918, the Plans Department of the Association was taken over by the appellant, the Underwriters' Survey Bureau Ltd., a company incorporated for that purpose whose shares were held in trust for the members of the Association and its directors were officers of the Association. The plan committee of the Association, constituted in 1917, was charged with the duty of transacting the common business in respect of plans and with conducting the business of the Bureau.
Considerable sums of money derived from the contributions of the members of the Association to the common fund were spent in obtaining the necessary information for constituting the rating schedules and other material and in the actual production of the material itself, which material was intended for the exclusive use of the members of the Association.
As to the plans, those produced by the plan committee prior to the incorporation of the
Bureau and those made afterwards by the
Association up to the 1st January, 1924, were delivered to the Bureau with the intention that they should be the property of the Bureau, i.e., the legal ownership should be vested in the Bureau. There were also two classes of plans other than that made by the Bureau after the 1st of January, 1924: first, plans, the copyright to which was registered in the name of Charles Edward Goad, who died in 1910; and, second, plans, the copyright to which was registered in the name of Charles E. Goad Company; and the respondents claim title to these plans under assignment by the Toronto General Trusts Corporation, executors and trustees of the will of Charles Edward
Goad, through the members of the firm
Charles E. Goad Company and under a further assignment in 1931 from the
Charles E. Goad Company to the Bureau.
A large number of the Goad plans were partially or completely revised and reprinted by the salaried employees of the
Survey Bureau, some prior to the assignment of the Goad copyrights in 1931 and some subsequent to that. The respondents alleged that the appellant, not a member of the Canadian Fire Underwriters' Association, authorized others to make copies or reproductions of the plans and rating schedules and converted such to its own use.
The appellant denied respondents' title to copyright to the plans produced by C.
E. Goad and claimed by respondents to have been acquired by assignment from the C. E.
Goad Company in 1931.
The appellant further pleaded that the acts of the respondents in withholding from the appellant and others copies of the works in question constituted a combine and conspiracy within the meaning of the
Combines Investigation Act, R.S.C., 1927, c. 36, and the Criminal Code, R.S.C.,
1927, c. 36, s. 498; that the respondents acquiesced in the alleged infringement and conversion and are guilty of laches, and that the period of limitation applicable to such actions is a bar to relief.
Held that the appeal should be allowed in respect of the rating material brought into existence after the first of January,
1924, and in other respects dismissed (1). The "rating material," designating what were known as rating schedules or manuals and rate books, minimum tariffs and specific ratings but excluding the plans, was the property of the members of the Association at the date when the Copyright Act of 1921 came into force on the 1st of January, 1924.
These members were the owners, not only of the material itself, but of the common law, incorporeal, exclusive right of reproduction and became, by force of the statute (section 42 in the schedule), the owners of copyright in that material.
Material of that character was subject-matter for copyright and, not being published, the exclusive right of multiplying copies of it, or of publishing it, was a right which the common law, prior to the statute of 1921, gave primarily to the authors of it. As to such material produced after the statute came into force, the respondents have not adduced sufficient evidence to establish a title to copyright in it. The members of the Association are all incorporated companies and they or any one of them cannot be an author within the meaning of the Copyright Act. Any one or all of them, that is to say, all the members of the Association at any given time, could be the owner or joint owners of copyright, but they could acquire copyright only in one of two ways,either by assignment by some person having a title to the copyright or by one of the ways mentioned in the proviso to section 12 of the Act. As to the ground that the present case comes within subsection
(b), the respondents must, in order to succeed, show that the material in respect of which the question arises was made "in the course of his employment" by a person or persons "under a contract of service or apprenticeship" with the respondents or some of them. But from the evidence it must be inferred that this material was produced by employees in the course of their employment under a contract of service with the members of the Association for the time being.
And there is no evidence as to the practice in relation to the contracts under which the employees of the Association were engaged or in relation to the terms of their engagement.
It is not a mere abstract possibility, but a practical possibility, that for convenience some form of arrangement was resorted to by which there was no direct contractual bond between the members of the Association and the employees, or that in any case the work was done by persons who were independent contractors. plans: The plans copyrighted by Charles Edward Goad in his lifetime and those copyrighted by the Charles Edward Goad Company passed to the Underwriters Survey Bureau Ltd. by the deeds of transfer and assignment produced at the trial. As to nine plans made by the plan department of the Association in 1911 and
1917, copyright was vested by force of the
Copyright Act of 1921, s. 42, in the members of the Association at the date when the Act came into force, i.e., on the first of January, 1924.-Copyright in the revisions of the Goad plans vested in the
Bureau in virtue of the fact that these revisions were executed by the salaried employees of the Bureau in exercise of their functions as such.
As to plans and revisions of plans made by the Bureau after the statute of 1921 came into force on the 1st of January, 1924, these having been made by the salaried employees of the Bureau, the title vested in the Bureau in virtue of section (b)-As regards the copyright in the plans produced by the Bureau, including the revisions of the Goad plans, section 20 (3)
(b)
applies. Prima facie the legend " Made in Canada by the Underwriters' Survey
Bureau Ltd." implies proprietorship and such legend is found on these plans: the prima facie case has not been met. Held, also, as to companies which had ceased to be members of the Association and were not parties plaintiffs at the cominencement of the action, their interest in the copyrights was a bare legal interest since, on ceasing to be members of the
Association, they ceased to have any beneficial interest in such copyrights and the plaintiffs, as part owners, were entitled to protect their rights by suing for an injunction and for damages. Lauri v.
Renad ([1892] 3 Ch. 402); Cescinski v.
Routledge ([19161 2 K.B. 325) and Dent v. Turpin (2 J. & H. 139) ref. Held, also, as to tangible chattels including infringing copies, companies on ceasing to be members ceased to have any joint or several right of possession in any of the common property and the plaintiffs were, therefore, entitled to maintain trover or detinue in respect of such chattels. Held, also, as to the question of the Statute of Limitations, that that was ample evidence in support of the conclusion of the trial judge that there had been fraudulent concealment within the meaning of the rule; with the consequence that the limitation period began to run only on the discovery of the fraud, or at the time when, with reasonable diligence, it would have been discovered.
Therefore, the period of limitation established by the
Copyright Act is not a bar to the relief claimed by the respondents.
Held, further, on the question of criminal conspiracy: if the plaintiffs in an action for the infringement of copyright are obliged, for the purpose of establishing the existence of, and their title to, the copyright
COPYRIGHT-Concluded to rely upon an agreement and that agreement constitutes a criminal conspiracy, and their title rests upon such agreement and upon acts which are criminal acts by reason of their connection with such an agreement, then it would be difficult, on general principles to understand how such an action could succeed; but, in the present case, the conclusion of the trial judge, negativing the existence in fact of a criminal conspiracy is right. Held, further, as to the appellant's contention that the authorship of the work cannot in the case either of the plans or of the rating materials be ascertained, that, according to the provisions of section 20 (3) of the Copyright Act, the statute does not contemplate disclosure of authorship as a necessary condition of success in an action for infringement; but the provisions of that section do not go as far as creating a presumption that the name of the Association on the rating material should be regarded as the name of the publisher. As already stated, all the members of the Association being bodies corporate, none of them could be an author within the contemplation of the statute; and it cannot be found as a fact that the name Canadian Fire Underwriters' Association in these manuals, rate-books and other rating material is a name which answers the description of the statute, namely, that "a name purporting to be that of the *
* * proprietor of the work is printed thereon in the usual manner." Held, also, that, in the case of unpublished works (where the proprietor is shewn to have acquired a common law right prior to the Copyright Act of 1921 by evidence establishing facts requiring an inference that the work was done for the plaintiff and that the intention of all parties concerned in the production of the work was that the common law right should vest in him) the statute plainly contemplates the protection of that right; and the only possible protection is the recognition of the substituted copyright given by the statute. It would be then merely a matter of evidence: the ownership of the common law right must rest upon established facts and these facts can be proved by inference as well as by direct evidence.
Held, further, as to the duration of the copyright where that comes in question, that, if the owner of it cannot identify the author, the duration of it must be restricted to the period of fifty years from the date when the copyright or common law right, as the case may be, came into existence. Judgment of the Exchequer Court of Canada ([1938] Ex. C.R. 103) varied. MAssF & LTD. E AL.............. 218 CRIMINAL LAW-Murder-Admission of facts having prima facie no connection with crime, but liable to constitute circumstantial evidence-Rule, as to warning to the jury in case of evidence by accomplice, not binding on the trial judge when accomplice is not a witness-Objections to evidence in criminal trials-Ought to be decided at once by the trial judge and not be allowed under reserve of decision.]
-In a trial for murder, where the accused was charged with having caused the death of her husband by poisoning, facts, which prima facie may have no connection with the alleged crime, may nevertheless be allowed as evidence by the trial judge under certain circumstances. In the present case, the facts, whose admittance was objected to, were of such a nature as to establish the existence of feelings of animosity, and even of hatred, on the part of the accused towards her husband; and, in that case, such evidence was legal, not only to prove the intentions of the accused, but also to establish one circumstance which, added to other circumstances resulting from the evidence, was of a nature to justify a verdict of guilty against the accused.-The King v. Barbour,
[1938] S.C.R. 465; Rex. v. Hall, [19111
A.C. 47; Rex v. Bond, [19061 2 K.B.
389, and Paradis v. The King, [1934]
S.C.R. 165, ref. The well known rule, that the trial judge must warn the jury of the danger of finding an accused guilty on the uncorroborated testimony of an accomplice, need not be followed by the trial judge in his charge to the jury, when the alleged accomplice has not given evidence and when only certain statements made by him in furtherance of the common purpose were adduced in evidence.
Semble that, in criminal matters, at a trial before a jury, all objections to evidence should not be reserved for later adjudication by the trial judge, but should be overruled or maintained before such evidence be admitted. Some prejudice may be caused to the accused in the minds of the jury by certain evidence which may be given before it, even, if, later on, the trial judge rules that such evidence should be rejected and that the jury should not take it into account.
CLOTIER v. THE KiNG.............
CROWN - Railway subsidies - Construction of a branch line-Time for completion "to be essential and of the essence of the agreement"-Claims for subsidies for portion of line constructed at the date fixed for completion-Claim for services
(transportation for mails over portion of line receiving subsidies) pursuant to statute-The Railway Subsidies Act, 2 Geo.
Some time prior to 1912, the respondent had begun the construction of a branch line from a point on its main line of railway for a distance of about 175 miles. By the Railway Subsidies Act, (1912) 2 Geo. V, c. 48, the Governor in Council was authorized to grant a subsidy to the respondent for an extension of this branch line "not exceeding 50 miles" in length, a distance of 40-34 miles in length having at that time been already constructed.
In addition, the respondent and the Minister of Railways for Canada entered into two supplemental agreements in writing which provided for the construction of the railway extension, for payment of this subsidy in the manner and time therein set forth and in accordance with section of the Act, for the completion of the whole extension by August 1, 1916, declaring time "to be essential and of the essence of the agreement" and providing that "in default of completion thereof within such time the company shall forfeit absolutely all right and title, claims and demands, to any and every part of the subsidy or subsidies payable under this agreement whether for instalments thereof at the time of such default earned and payable by reason of the completion of a portion of the line, or otherwise howsoever." The respondent received 843,161.06 as payment on account of subsidy for the completion of ten miles of the road in the spring of 1915; and on August 1, 1916, 24*17 miles only of the line, in all, had been built, no further mileage ever having been constructed. The respondent, by its petition of right, claimed payment of the subsidy upon the line of railway so far completed, less the amount received on account; and it also claimed payment for services rendered in accordance with section 8 of the Act which provides that every company operating a railway, or portion of a railway, subsidized under the Act "shall each year furnish to the Government of Canada transportation for *
*
* mail
*
*
* over the portion of the lines in respect of which it has received such subsidy and, whenever required shall furnish mail cars properly equipped for such mail service" and that in or towards payment for such charges the Government of Canada "shall be credited by the company with a sum equal to three per cent per annum on the amount of the subsidy received by the company under the Act."
The Exchequer Court of Canada held that the respondent was not entitled to recover any subsidy whatever; and it also held that with regard to the payment for services rendered in accordance with section 8 of the Act, the continuous extensions of the respondent's branch line, upon which subsidies have been paid, must be treated as a single line of railway and as if constructed under one subsidy contract;
and it held further that the annual credits of interest upon subsidy as provided for in the Act were not cumulative. Held, affirming the judgment of the Exchequer
Court of Canada in this respect, that all rights in respect of subsidies accrued or accruing were subject to a radical condition that, unless the work was completed on the prescribed date, they would be forfeited if they had not already been liquidated in money, and therefore the respondent is not entitled to recover the amount of subsidies claimed by its petition of right. Per The Chief Justice:- The view upon which the Governor in
Council acted apparently was that the statutory authority to pay came to an end on the prescribed date if the work had not then been completed; clause 5 of the subsidy contract which declares the effect of failure to complete the whole line by the first of August, 1916, was intended to give effect to that view of the statute.
That condition was not overridden by the supplemental agreement;
when the Subsidy Act is considered as a whole the conclusion must be that clause
5 had not the effect of defeating the intention of the statute.
The enactment touching the date of completion cannot be regarded as directory merely and the
Governor in Council did not exceed the discretion necessarily vested in him respecting the subsidiary terms of the contract in exacting conditions intended to secure the due and timely completion of the lines subsidized. Held, also, varying the judgment of the Exchequer Court of
Canada, that, for the purpose of construing section 8 of the Act, each section of the line was a separate "railway or portion of railway subsidized under the Act";
and, therefore, the credit of three per cent per annum on the amount of the subsidy received could only be applied towards the payment of charges for services rendered upon the section of railway in respect of which the subsidy was granted and paid. Held further, affirming the
Canada, that the annual credits of interest upon subsidy as provided for in the Act were not cumulative. Judgment of the Exchequer
Court of Canada,
[(1938] Ex. C.R. varied. KING v. Ry. Co.........
2--Jurisdiction of Exchequer Court- Exchequer Court Act, R.S.C., 1927, c. 34, s. 19 (c) (as it stood in 1934)-"Public work"-Claim against Dominion Government for damage by fire through alleged negligence of persons employed on project organized and executed by Dominion
Government, for construction, etc., on provincial highway, under The Relief
Act, 1933 (Dom., 83-84 Geo. V, c. 18) and agreement (under authority of that Act) between Dominion and Province-Whether persons guilty of alleged negligence were "officers or servants of the Crown acting within the scope of their duties or employment" upon a "public work" within said s. 19 (c).]-The Government of Canada, under authority of The Relief Act, 1933 (Dom., 23-24 Geo. V, c. 18), entered into an agreement, dated August 21,. 1933, with the Government of the Province of British Columbia, by which the Dominion agreed to assume responsibility for the care of all "physically fit homeless men" and for that purpose to organize and execute relief projects. consequence of an agreement and request by the Province under said agreement of August 21, 1933, the Dominion instituted the project now in question, which consisted, by arrangement with the Province, of carrying out certain improvements, such as grading, widening and straightening, to a certain provincially-owned highway.
The arrangements provided that the Provincial authorities would indicate the nature of the work to be done, such as the line of any re-routing, the extent of widening, etc., but the actual work would be carried out by the men on the strength of the project.
All personnel connected with the project were so connected either as labourers or in an administrative or supervisory capacity under the authority of and conditions set out in certain Dominion Orders in Council, which provided, inter alia, for recruiting and organizing labour, and for transportation, accommodation, subsistence, care, equipment and allowance for the men employed, and included a provision empowering the Minister of National Defence, through the officers of his department, "to select and employ" "administrative and supervisory personnel." Appellant claimed against the Dominion Government for damage to appellant's property by fire, which damage, it was assumed for the purpose of certain questions of law raised, was sustained from a fire which originated from slash burning operations carried on by the project, the slash burning being done under provincial fire permit issued to the member of the project personnel then in charge of the work and the fire escaping through the negligence of such personnel in failing effectively to observe the directions as to patrol laid down by the permit. Held: The persons employed on the project were "officers or servants of the Crown acting within the scope of their duties or employment" upon a "public work," within the meaning of s. 19 (c) of the Exchequer Court Act, R.S.C., 1927, c. 34, as it stood at the relevant time (Judgment of Maclean J., [19391 Ex. C.R. 228, holding that the project was not a "public work" within the meaning of said s. (c), reversed.) The phrase "public work" ("chantier public"
m the French version) as used in said s. 19 (c) discussed, with references to statutory definitions of the phrase, the history of the section, and The King v.
Dubois, [1935] S.C.R. 378, and other cases.
For a work to be a "public work" within said s. 19 (c), it is not necessary that the work or its site be property of the Crown in the right of Canada. It is sufficient to bring the work now in question within the designation if (in the words of the definition in the Expropriation Act, to which reference should be had in ascertaining the classes of things contemplated by "public work" in said s. (c))
it was a work for the "construction, repairing, extending, enlarging or improving" of which public moneys had been
"voted and appropriated by Parliament,"
and if at the same time such public moneys were not appropriated "as a subsidy only."
Sec. 9 of The Relief Act,
(enacting that "any obligation or liability incurred or created under the authority of this Act
* * * may be paid and discharged out of the Consolidated Revenue Fund") is a sufficient voting and appropriation within the sense of this condition, and the moneys voted to defray the cost of the work in question were not "appropriated as a subsidy only."
It was a fair inference from the agreement, the Orders in Council and the agreed statement of facts that the particular area upon which the employees of the Defence Department were engaged was sufficiently defined by the arrangement between the representatives of the
Dominion Government and the representatives of the Provincial Government to bring it within the conditions of the decision in The King v. Dubois, supra.
KIN,.
....................
3-Negligence - Petition of Right for damages - Suppliant struck by motorcycle driven by R.C.M.P. constable on driveway of Federal District Commission
-Negligence of an "officer or servant of the Crown while acting within the scope of his duties or employment upon a public work" within s. 19 (c) of Exchequer
Court Act, R.S.C., 1927, c. 84 (as it stood in 196).1-The question occurred on August 23, 1936, on a driveway in the city of Ottawa, constructed and maintained by the Federal District
Commission, a body created by c. 55 of the Statutes of Canada, 1927.
The cost of construction of the driveway was defrayed out of moneys voted by Parliament for the purpose and the driveway is maintained out of such moneys. A part of the driveway passed through land used by the City of Ottawa for an agricultural exhibition and it was the practice of the Exhibition Association to obtain permission from the Commission to place barriers across the driveway at the east and west limits of the exhibition grounds for the purpose of preventing the public from gaining access to those grounds through from the Driveway; and such barriers were there on the day of the On the first day of exhibition week, G., a R.C.M.P. constable (who had been engaged as traffic officer on the Driveway in the previous year during exhibition week, when the same part of it had been closed to the public) was driving his motorcycle on the Driveway in discharge of his duty of patrolling it for the purposes (inter alia) of enforcing traffic regulations and protecting the Commission's property.
When, driving westerly, he reached the eastern limits of the exhibition grounds he received a signal to pass through the open gate of the barrier and proceeded on his way. In approaching the western limits of the grounds, on rounding a curve, he found his vision impaired by the sun, and when he became aware of the barrier there erected, though he immediately applied his brakes (which were in perfect order), he did not succeed in stopping until he had passed through and some few feet beyond the gate, which appellant, gatekeeper, was in the act of opening to allow G. to pass. Appellant was struck by the motorcycle and injured, and sued the Crown for damages. Held: (1) G. was negligent in not immediately bringing his motorcycle under control when he found his vision affected by the sun. Appellant was not guilty of contributory negligence. (2) G. at the time of the accident was an "officer or servant of the Crown" and "acting within the scope of his duties or employment upon" a "public work," within the meaning of s. (c) (as it then stood) of the Exchequer Court Act, R.S.C., 1927, c. 34. Conceding that he was not engaged in traffic control when in the part of the Driveway within the ambit of the exhibition grounds (though even there he was charged with protecting Crown propertyshrubs, trees, etc., on the Driveway border), yet even when passing through those grounds (to resume his duty as traffic officer beyond them) he was acting within the scope of -his duty as traffic officer upon the Driveway (The King v. Schobounst, [1925]
S.C.R. 458, the authority of which has been recognized in The King v. Mason [1933] S.C.R. 332, The King v. Dubois, [1935] S.C.R. 378,
The King v. Moscovitz, 119351 S.C.R. 404 and Salmo Investments Ltd. CROWN-Concluded v. The King [1940] S.C.R. 263).
Judgment of Maclean J., [19381 Ex. C.R. 311, dismissing appellant's petition of right, reversed.
v. 325
4---Construction of jetty-Accident to vessel-Damages .................
5--Construction of reservoir on property of the Croum-Whether subject to
Tavern- Refusal to serve beer to coloured persons-Discrimination
-Freedom of commerce-Monopoly or privileged enterprise-Licence Act, R.S.Q.,
1925, c. 25-Alcoholic Liquor Act, R.S.Q.,
1925, c. 37-Alcoholic Liquor Possession and Transportation Act, R.S.Q.,
1926, c. 38.1-The appellant, who is a negro, entered a tavern owned and operated by the respondent in the city of Montreal and asked to be served a glass of beer;
but the servants of the respondent refused him for the sole reason that they had been instructed not to serve coloured persons. The appellant brought action for damages for the humiliation he suffered.
The respondent alleged that in giving such instructions it was acting within its rights; that its business was a private enterprise for gain and that, in acting as it did, it was merely protecting its business interests. The trial judge maintained the action on the ground that the rule whereby the respondent refused to serve negroes in its tavern was illegal according to sections 19 and 33 of the Quebec
Licence Act. But the appellate court reversed that judgment, holding that the above sections did not apply and that, as a general rule, in the absence of any specific law, a merchant or trader was free to carry on his business in the manner he conceived to be best for that business. Held, Davis J. dissenting, that the appeal to this Court should be dismissed.
Per Duff C.J. and Rinfret, Crocket and
Kerwin JJ.: The general principle of the law of Quebec is that of complete freedom of commerce. Any merchant is free to deal as he may choose with any individual member of the public.
It is not a question of motives or reasons for deciding to deal or not to deal; he is free to do either. The only restriction to this general principle would be the existence of a specific law, or, in the carrying out of the principle, the adoption of a rule contrary to good morals or public order; and the rule adopted by the respondent in the conduct of its establishment was not within that class. Also, as the law stands in Quebec, the sale of beer in that province was not either a monopoly or a
DAMAGES-Continued privileged enterprise.
Moreover, the appellant cannot be brought within the terms of section 33 of the Quebec Licence Act, as he was not a traveller asking for a meal in a restaurant, but only a person asking for a glass of beer in a tavern. As the case is not governed by any specific law or more particularly by section 33 of the Quebec Licence Act, it falls under the general principle of the freedom of commerce; and, therefore, the respondent, when refusing to serve the appellant, was strictly within its rights. Per Davis J. dissenting: Having regard to the special legislation in Quebec establishing complete governmental control of the sale of beer in the province and particularly the statutory provision which prohibits anyone of the public from buying beer in the glass from anyone but a person granted the special privilege of selling the same, a holder of such a permit from the government to sell beer in the glass to the public has not the right of an ordinary trader to pick and choose those to whom he will sell.
The old doctrine that any merchant is free to deal with the public as he chooses has still now its application in the case of an ordinary merchant; but when the state enters the field and takes exclusive control of the sale to the public of such a commodity as liquor, then such doctrine has no application to a person to whom the state has given a special privilege to sell to the public. Judgment of the Court of King's Bench (Q.R. 65 K.B. 104) aff., Davis J. dissenting.
CHRISTIE v. ................ 2-Quantum-Action for damages for deceased's loss of expectation of life, under the Trustee Act, R.S.O., 1937, c. 165, s. 37 (as it stood prior to amendment by 2 Geo. VI, 44, 3)-Inadequacy of sum awarded by jury-New trial for re-assessment of damages.]-Plaintiff's daughter, aged 23 years, was killed in an accident which he alleged was caused by negligence of defendant.
Plaintiff sued for damages under The Fatal Accidents Act, R.S.O., 1937, c. 210, and also, as administrator of his daughter's estate, for damages for her pain and suffering and loss of expectation of life, under The Trustee Act, R.S.O., 1937, c. 165, s. 37 (as it stood prior to the amendment by 2 Geo. VI, c. 44, s. 3).
At trial the jury found defendant guilty of negligence causing the accident in the degree of 55%, and assessed .the damages under each Act respectively at 8500, and plaintiff recovered judgment for 55% thereof in each case.
Plaintiff's appeal to the Court of Appeal for Ontario was dismissed, and he appealed to this Court on the question of the quantum of damages. Held: The jury's assessment of damages DAMAGES-Concluded under The Fatal Accidents Act should not be disturbed. But there should be a new trial for assessment of damages under
The Trustee Act.
Cases dealing with awards for loss of expectation of life reviewed. Per the Chief Justice, Davis and
Taschereau JJ.: It is impossible to say in this case that $500 can, in any view, be proper compensation for the loss of expectation of life.
Per Crocket and
Hudson JJ.: Considering the age, state of health and prospects of deceased, the amount awarded was so small as to indicate clearly that the jury did not appreciate the nature of the remedy provided by the statute.
3---Caused to house by vibration through operation of cement-mixing trucks on highway
Motor vehicles
Limitation of action- Construction of statutes - Action for damages - Damages sustained more than twelve months prior to commencement of action barred by 8. 58 of Highway Traffic Act,
R.S.O., 1927, c. 251, as amended-"Damages occasioned by a motor vehicle." 174
4-Breach of contract-Loan of money
-Measure of damages.............
See 4.
5-Purchaser of goods claiming damages for alleged breach of conditions implied by s. 15 of Sale of Goods Act,
R.S.O., c. 180................
&---Contract--Sale of goods-Action for damages for vendors' breach of alleged contract for sale of wine-Measure of
DIVORCE-Husband and wife-Alimony
-Jurisdiction of New Brunswick Court of
Divorce and Matrimonial Causes-Allowance of permanent alimony upon divorce
-Matters to be considered-Discretion of trial judge-Review by appellate court.
DOMICILE-Marriage in foreign country between persons previously living in
Quebec-Matrimonial status-Action for damages by wife for personal injuries- Whether common or separated as to property--Conditions necessary to determine whether domicile of origin or of birth is changed and new domicile acquired.]-The respondent, a married woman describing herself in her statement of claim as being separated as to property from her husband and having been duly authorized by him, brought an action for
DOMICILE-Continued personal injuries against the appellant, the latter pleading inter alia that the respondent was commune en biens and that therefore any right of action belonged exclusively to her husband. There was no marriage contract between the consorts and by the law of Quebec they are presumed to have intended to subject themselves, as regards their rights of property, to the law of their matrimonial domicile, i.e., the domicile of the husband at the time of the marriage.
And the principal question at issue in this case is whether such domicile was in Quebec where in the absence of a marriage contract community as to property is presumed or was at another place where in such a case separation as to property would be presumed. The husband, born at St. Germain, Quebec, in 1894, went to the United States in quest of work in 1923. In the fall of that year, his father, mother, brothers and sisters followed him, but they returned to Quebec in 1928, several months before the marriage. respondent born at the same place in 1905, went in 1922 to Bristol, in the State of Connecticut, also in quest of work and remained there except for a period of eleven months during which she lived with her family in Quebec.
The marriage took place at Bristol in September, 1928, and two years later the respondent and her husband returned to St. Germain, with the intention of building a home somewhere in Quebec.
The husband also testified that he had taken out some papers connected with American citizenship; but these papers were not produced and the nature of the representations made for the purpose of obtaining them were not disclosed. The trial judge maintained the respondent's which judgment was affirmed by the appellate court. Held that it was incumbent upon the respondent to establish the existence of a regime of non-community of property in the matrimonial domicile. The only evidence as to foreign law consisted of an admission that the regime of community of property did not prevail in the state of Connecticut. It was, therefore, incumbent upon the respondent to establish a domicile in Connecticut. The evidence did not establish by strict and conclusive proof a fixed settled intention on the part of the husband to make his permanent residence in the state Connecticut or, in other words, a residence there, not merely for a particular purpose, not merely for the purpose of getting work there, but a permanent residence " general and indefinite in its future contemplation," and, therefore, from the facts and circumstances of the case, inference should be drawn that the husband had not acquired at the time of his DOMICILE-Concluded marriage a domicile in the state
Connecticut. If so, the law of his former domicile, i.e., the law of Quebec, must determine the matrimonial status of the respondent, and according to that law the respondent is presumed to be commune en biens. Therefore the respondent cannot sue in her own name for recovery of damages for personal injuries and her action should be dismissed.
The principles by which the courts are governed when it is alleged that a domicile of origin, or a domicile of birth, has been changed and a new domicile has been acquired are, first, that a domicile of origin cannot be lost until a new domicile has been acquired; that the process of the acquisition of a new domicile involves two factors,-the acquisition of residence in fact in a new place with the intention of permanently settling there: of remaining there "for the rest of his natural life,"
in the sense of making that place his principal residence indefinitely.
In other words, a domicile of origin is not lost by the fact of the domiciled person having left the country in which he was so domiciled with the intention of never returning; but it is essential that he shall have acquired a new domicile, that is to say, that he shall in fact have taken up residence in some other country with the fixed, settled determination of making it his principal place of residence, not for some particular purpose, but indefinitely.
Quaere as to admissibility of direct evidence intention.-Dictum
Mignault J. in Taylor v. Taylor ([1930]
S.C.R. 26) ref.
The strict rule as to concurrent findings of fact is not applicable to the circumstances of this case.
Judgment of the Court of King's Bench
(Q.R. 64 K.B. 484) reversed.
TorrlER v. RAJOTTE.........................
ESTATES-Administration of.
See EsTATEs.
EVIDENCE - Railway trainman killed while engaged in switching operations- Ao eye-witness of accident-Whether evidence sufficient to justify verdict for plaintiff or whether it was a matter of pure conjecture or speculation by the
............... 290
2---Contract between two physicians to purchase practice of third physician- Action by one for accounting-Nature of agreements-Consideration-Statute of
Frauds (Ont.)..................
3-As to alleged irregularities--Conduct of parties.
EVIDENCE-Concluded
4- Findings of trial judge....... 708 5- Findings as to contract......... 1 6- Evidence.
FAIR WAGES ACT (Que., 1 Geo. VI, 50)-Construction of section 22... 442 GARAGE-Explosion of acetylene tank- Cause of explosion-Damages. See SL.E
HABEAS CORPUS-Person arrested on criminal charge and remanded by magistrate to gaol--Later committed as mentally ill-Warrant of Lieutenant-Governor of Province, for conveyance to and detention in hospital, dated after expiration of remand on criminal charge-Invalidity of warrant--Criminal Code (R.S.C., 1927, c. 36), s. 970 (as enacted in 1935, c. 56, s. 15)-Appeal to Supreme Court of Canada from judgment of Court of Appeal for Ontario affirming refusal of release from hospital on habeas corpus- Jurisdiction to hear appeal
Supreme Court Act (R.S.C., 1927, c. 35), s. 36 (clause excepting from Court's jurisdiction appeals from judgments "in criminal causes and in proceedings for or upon a writ of habeas corpus * * * arising out of a criminal charge.").]-Appellant, arrested on a criminal charge, was remanded to gaol by a magistrate on January 3 (1938) until January 10. On January 7, appellant having been examined as 'to his mental condition, an information was sworn, under the Ontario Mental Hospitals Act (now R.S.O., 1937, c. 392), alleging that appellant was mentally ill, and on examination and inquiry by a magistrate he was committed as mentally ill. The warrant of the Lieutenant-Governor of Ontario, for appellant's conveyance to and detention in a specified hospital, was dated January 12, and on January 15 appellant was conveyed from the gaol to the hospital. The form of the warrant was that attached to the regulations issued under said Ontario Act and to be used where s. 32 (1) of that Act (R.S.O., 1937, c. 392) would apply; but the Court was told that the same form was used in Ontario when it was intended to proceed under s. 970 (as enacted in 1935, c. 56) of the Criminal Code. Appellant applied for his release from the hospital on habeas corpus. His application was dismissed by Hogg J. ([1939] 3 D.L.R. 627), his appeal to the Court HABEAS CORPUS-Continued of Appeal for Ontario was dismissed, and he appealed to this Court. Held (Rinfret and Crocket JJ. dissenting on the ground of want of jurisdiction):
The appeal should be allowed, and an order should go for appellant's release (the order not to issue until after a time fixed). Per the
Chief Justice and Davis and Kerwin JJ.:
Said s. 32 (1) of the Ontario Mental Hospitals Act could have no application, as appellant was not imprisoned " for an offence under the authority of any of the statutes of Ontario" or "for safe custody charged with an offence " under the authority of any such statutes; moreover, the proceedings (discussed) indicated that the-warrant was not issued as a result of proceedings commenced under said Ontario Act.
The warrant could not be said to be legally issued under said s. 970 of the Criminal Code, as at the time of its issue the remand on the criminal charge had expired and appellant was not then "imprisoned in safe custody charged with an offence"
within the meaning of s. 970 (1) (s. 680,
Criminal Code, also referred to by Davis
J.). There was therefore no authority for appellant's detention.
This Court had jurisdiction to hear and determine the appeal. The objection to jurisdiction on the ground that the proceedings were
"criminal causes" or "proceedings for or upon a writ of habeas corpus *
*
* arising out of a criminal charge" within the exception to this Court's jurisdiction in s. 36 of the Supreme Court Act was answered by the fact that after the expiry of the remand there was no criminal cause or charge in existence, and therefore the application for appellant's discharge could not arise thereout; it arose out of his detention in the hospital under the invalid warrant issued without any legal authority. Per Rinfret and Crocket
JJ. (dissenting)
: The appeal should be quashed for want of jurisdiction. It falls within the clause of s. 36 of the Supreme
Court Act which excepts from this Court's jurisdiction appeals "in criminal causes and in proceedings for or upon a writ of habeas corpus *
*
* arising out of a criminal charge."
The warrant, and the affidavits produced on the return of the habeas corpus order, shewed that the proceedings before Hogg J. and the custody from which appellant sought his discharge arose out of a criminal charge within the meaning of said excepting clause, and this in itself is conclusive against this Court's jurisdiction; the point now taken that, the period of remand having expired when the warrant was issued, the warrant was void and of no effect, while a point to be determined by
Hogg J. (had it been discovered and suggested before him) in considering the question of the legality of appellant's
HABEAS CORPUS-Concluded custody, is not one which this Court has a right to consider, as it involves a decision upon the merits of the habeas corpus application; the only point for this Court to determine upon the question of its jurisdiction is, not whether the question of the legality of appellant's custody at the time was rightly or wrongly determined, but simply whether the habeas corpus proceedings arose out of a criminal charge.
.(It would have been quite another matter, had the question come before this Court by way of appeal from the decision of a judge of this Court in the exercise of his concurrent original jurisdiction, as to issue of a writ of habeas corpus ad subjiciendum, under s. 57 of the Supreme Court Act).]-TRENHOLME HIGHWAYS.
HUSBAND
WIFE - Divorce - Alimony-Jurisdiction of New Brunswick Court of Divorce and Matrimonial Causes -Allowance of permanent alimony upon divorce-Matters to be considered-Discretion of trial judge-Review by appellate court.--Per curiam: The New Brunswick Court of Divorce and Matrimonial Causes has jurisdiction, upon the granting of a decree for divorce a vinculo matrimonii, to award permanent alimony or maintenance. The legislation, and its history, with regard to or affecting the Court's jurisdiction, discussed. MacIntosh v. Mac- Intosh, 54 N.B. Rep. 145, and Hyman v. Hyman, at cited. Respondent, who had been granted a decree of divorce from her husband on the ground of adultery, petitioned for an order for permanent alimony.
This was refused by the trial judge (Judge of the Court
Divorce
Matrimonial Causes) on the ground that the facts did not justify it. His judgment was reversed by the Supreme Court of New Brunswick, Division which awarded manent alimony M.P.R. 524); and its judgment was now upheld by this Court (per the Chief Justice and Kerwin and Hudson JJ.; Rinfret and Crocket JJ. dissenting as to said award in this case). Per Kerwin J.: Respondent was entitled to alimony unless some legal ground may be found upon which to base a refusal. Any discretion that may have been vested in the trial judge is a judicial discretion and the mere fact that he determined not to grant alimony does not absolve appellate courts from examining the record to see if that discretion was properly exercised.
On the facts shown by -the evi- HUSBAND AND WIFE-Concluded dence, respondent was not disentitled to alimony.
Per Hudson J.: Plaintiff is entitled to alimony on the grounds stated by Le Blanc J. in the Appeal Division
M.P.R. 524, at 545-552).
Per Rinfret and Crocket JJ. (dissenting)
: The Judge of the Court of Divorce and Matrimonial
Causes has the right to refuse to award alimony to a wife upon a decree divorce on the ground of her husband's adultery; and an appellate court is not justified in interfering with his discretion unless it plainly appears that that discretion was not judicially exercised.
the present case the trial judge's discretion was properly exercised in refusing upon the evidence to make an order for permanent alimony,
Division was not justified in reversing his decision.
(As to consideration of wife's earnings or means, especially where the parties have long lived apart, Goodhein v. Goodheim, 30 L.J. (P. M. & A.) 162,
Burrows v. Burrows, L. R. 1 P. & D. 554,
George v. George, ibid, p. 554, Holt v.
Holt, ibid, p. 610, and Bass v. Bass, [19151
P. 17, cited.
As to what does or does not justify in law a wife in leaving her husband's home, Currey v. Currey, 40 N.B.
Rep. 96, Hunter v. Hunter, 10 N.B. Rep.
593, Evans v. Evans, 1 Hagg. Cons. 35, and Russell v. Russell, [1897] A.C. 395,
2--Joinder of defendant's wife as party defendant in action for reconveyance of land.
INCOME TAX-Assessment of shareholder in respect of excess over par value received on redemption of shares by company-Question whether the "premium"
was "paid out of" the companys' "undistributed income on hand," within s. 17
(as it then stood) of Income War Tax
Act, R.S.C. 1927, c. 97.1-Sec. 17 of the
Income War Tax Act, R.S.C. 1927, c. 97, as it stood at the material date, provided:
a corporation, having undistributed income on hand, redeems its shares at a premium paid out of such income, the premium shall be deemed to be a dividend and to be income received by the shareholder."
A company (under due authorization) in 1929 created 5 per cent. cumulative convertible preference shares and increased its common shares, and, with the aid of proceeds of sale of these new shares, called in and redeemed its existing 7 per cent. cumulative preference shares of the par value of $100 each at $110 per share and accrued dividend.
The "premium" (of $10 per share) paid on such redemption was charged by the company against its "surplus account."
Appellants held shares thus redeemed and were assessed for income tax in respect
INCOME TAX-Concluded of the "premium" received, on the ground that it was a "premium paid out of undistributed income on hand" within said s. 17. The assessment was sustained by MacLean J., [1939] Ex. C.R. 41. appeal. Held (Davis J. dissenting): The appeal should be dismissed. Per the Chief Justice and Hudson J.: In view of the manner in which the company's surplus (as shown in its surplus account) was built up and -what it represented (as appearing from directors' reports, balance sheets, and other evidence), it must be held that in fact it represented undistributed income actually existing, though in various forms as current assets. The company, having cash on hand (whether derived from sale of shares or a loan), might treat this cash as the embodiment of the surplus. It was clear in point of fact that the directors, with the assent of the shareholders, did intend to pay the premium out of surplus, and, pro tanto, to reduce the surplus; and by resorting to the fund of which they made use, they thereby treated that fund as part of the surplus of undistributed income, therefore, as "undistributed income on hand." Therefore the conditions of s. 17 were fulfilled.
(Also, said premium, so called, was a premium within the contemplation of a. 17.)
Rinfret and Kerwin JJ. agreed with the reasons for judgment of Maclean J. (cited supra) in holding that the premium in question was a premium yaid out of the company's "undistribute income on hand" within the meaning of s. 17. Per Davis J. (dissenting): From the facts (discussed) in regard to source and constitution of the fund out of which the redemption payments were made, it cannot be said that the premium, so called, was "paid out of undistributed income on hand" within s. 17. Quaere whether the excess over par value, paid by the company in exercise of its right
(given by supplementary letters patent) to redeem at a fixed price without consent of holders of the shares, was strictly " a premium."
v. THE
REVENUE................ INSURANCE - (Automobile) under s. 205 of Insurance Act, R.S.O., 1937, c. 256, to recover from alleged insurers the amount unpaid of judgment recovered against driver of motor car for damages for injuries-Question whether driver was insured by "owner's policy" because driving with consent of "person named" therein (s. 198 of said Act)- "Owner's policy" (s. 183 (g))-Question whether motor car "owned" by "person named" in policy.]-The action brought under s. 205 of the Ontario Insurance Act, RS.O., 1937, c. 256, to INSURANCE-Concluded recover from defendants, as insurers, the unpaid amount of a judgment recovered in a previous action by plaintiff against
K. and J. for damages for injuries caused by a motor car.
The insurance policy was issued in the name of S. The ground of the plaintiff's claim in the present action was that K., the driver of the motor car, though not named in the policy, is thereby "insured" (within the meaning of said s. 205) in virtue of s. 198 of said Act. Held: The dismissal of the action by the Court of Appeal for
Ontario ([19401 1 D.L.R. 97) should be affirmed.
K. was not a person entitled by said s. 198 to indemnity under the policy.
In considering the question of the application of s. 198 to the facts of the case, that section must be read as subject to the definition of "owner's policy" in s. 183 (g).
Plaintiff's contention that K. came within s. 198 (1) by virtue of the fact that he was driving the car with the consent of S., the "person named" in the policy within the meaning of s. 183 (g) (that is, "named in" the
"owner's policy" under which the action is brought), rests, by the definition of
" owner's policy," upon the proposition that the car was "owned" by S. in the sense of that definition (s. 183 (g) ); and on the evidence, the decision of the Court of Appeal negativing such ownership by
S. should not be reversed.
INTOXICATING LIQUORS.
JUDGMENT-Judgment at trial on jury's findings-Reversed by appellate court- Want of justification for reversal... 433
See 5.
JURY-Railways-Motor vehicles - Accident-Damages-Wrongful withdrawal of case from jury-Power of appellate court in giving judgment on the evidence.. 491
See 6.
2- Inadequasy of sum awarded by jury
-New trial for re-assessment of damages. .........................
LIMITATION OF ACTIONS - Motor vehicles-Action for damages caused to house by vibration through operation of cement-mixing trucks on highway-Damage sustained more than twelve months prior to commencement of action.... 174
LOAN OF MONEY.
Damage sustained more than twelve months prior to commencement of action-Action barred by s. 53 of Highway Traffic Act, R.S.0, 251, as amended-" Damages occasioned by a motor vehicle."]-Plaintiff sued defendant for damages for injury to plaintiff's dwelling house in the city of Toronto through vibration caused by operation of defendant's cement-mixing motor trucks in the street in front of the house.
Permission had been granted (pursuant to authority under The Highway Traffic Act) by the City to defendant to operate said trucks on said street (otherwise the use of such trucks was prohibited by said Act).
Practically all the damage was sustained beyond 12 months prior to the date when the action was brought (though operation of the trucks continued for a time within that 12 months period).
Sec. 53 of The Highway Traffic Act (R.S.O., 1927, c. 251, as amended in 1930, c. 48, s. provided (subject to provisions not material) that "no action shall be brought against a person for the recovery of damages occasioned by a motor vehicle after the expiration of twelve months from the time when the damages were sustained." Held: The limitation in s. 53 applied, and plaintiff's action was barred.
As to construction of the plain words in s. 53, there were cited (per the Chief Justice and Davis and Hudson JJ.) the rule stated in the Sussex Peerage case, Cl. & F. 85, at 143 (accepted in Cargo ex "Argos," L.R. 5 P.C. 134, at 153, and referred to in Birmingham Corporation v. Barnes, [19341
1 K.B. 484, at 500), and (per Crocket J.) Winnipeg Electric Ry. Co. v. Aitken, 63 Can. S.C.R. 586, at 595, and British Columbia Electric Ry. Co. v. Pribble, [19261 A.C.
466, at 477, 478. Semble (per the Chief Justice and Davis and Hudson JJ.): Where damage is the cause of action or part of the cause of action, a statute of limitation runs from the date of the damage and not of the act which caused the damage; if there be fresh damages within the statutory period, an action in respect of those damages will not be barred (Crumbie v. Wallsend, [18911 1 QB. 503, following Darley Main Colliery Co. v. Mitchell, App. Cas. 127).
(In the present case the damages, if any, within the limitation period were negligible).
It being held that the action was barred, it was not necessary to determine whether or not, MOTOR VEHICLES-Continued in view of the authorized permission to operate the trucks, the operation could be regarded in law as constituting an actionable nuisance.
It was pointed out
(per the Chief Justice and Davis and
Hudson JJ.) that the authority to use the street was not obligatory but only permissive, and that even where there is a statutory obligation upon a person, that does not entitle him to invade the rights of others unless he can show that in practical feasibility the obligation could be performed in no way save one which involves damage to other persons (Manchester Corporation v. Farnworth, [19301
A.C. at 183. Also Provender Millers
(Winchester) Ltd. v. Southampton County
Council, 1939 W.N. 301, at 302, [19391
3 All E.R. 882 affirmed, 1939 W.N. 367,
[1939] 4 All E.h. 157, referred to). Durv. .........................
Negligence
Collision- One motor truck passing another while latter veering to left for purpose of making left turn- Responsibility for accident - Evidence - Findings-Highway Traffic Act, R.S.O.,
1937, c. 288, ss. 39(1) (c) (d), 12(1) (b).1 action was for damages by reason of a collision, at night on an Ontario provincial highway, between plaintiffs motor truck and defendant's motor truck, both going westerly, while plaintiff's driver was attempting to pass defendant's truck which was veering to the left for the purpose of a left turn to be made on to a side-road which it was approaching.
The trial judge found that the whole proximate cause of the accident plaintiff's driver's negligence gave judgment for defendant. The Court of Appeal for Ontario, [19391 O.R. 338, apportioned the blame for the accident,
75o against plaintiffs driver and 25% against defendant's driver, and gave judgment accordingly.
On appeal to this
Court, it was held that, in view of the findings at trial and the evidence (discussed), the judgment at trial should be restored.
(Davis J. dissented, holding that on the evidence defendant's driver was clearly guilty of negligence contributing to the accident, that there was evidence wrongly admitted, and that certain evidence given unduly affected the trial judge's view of the whole case;
rather than direct a new trial, he would take advantage of of The Negligence
Act, RS.O.. 1937, c. 115, and award onehalf the damages assessed.)
Secs. 39 (1)
(c) (left turn at intersection of highways), 39 (1) (d) (duty of driver before turning left), and 12 (1) (b)
(rear-view mirror)
of The Highway Traffic Act,
R.S.O., 1937, c. 288, considered with regard to matters in question.
&
........................
MOTOR VEHICLES-Continued 3-Automobile - Negligence - Car left unattended on a public highway-Unauthorized use of the car by employee- Injury to person-Liability of owner- Art. 1054 C.C. - Motor Vehicle Act, R.S.Q., 1925, c. 85, s8. 81 and 58.1-The respondent, engaged in a trucking business, operated a warehouse in the city of Montreal which was also used as a garage for its trucks. In May, 1937, the appellant was struck by one of respondent's trucks, operated by one of its employees and he sued the respondent for the damages resulting from the accident. This employee was not employed as a truck driver, but was simply a helper; he had no operator's licence and took the truck without the respondent company's knowledge, permission or consent and in breach of the company's instructions and regulations. The respondent had left the truck unattended on the street, with the key in the switch. The appellant sought to hold the respondent responsible both under Article 1054 C.C. and under sections and 43 of the Quebec Motor Vehicle Act. The action, tried before a jury, was dismissed by the trial judge, which judgment was affirmed by the appellate court. Held, affirming the judgment appealed from (Q.R. 66 K.B. 385), that the respondent was not liable.
Held, also, that Article 1054 C.C. had no application in the circumstances of this case. According to the evidence, the employee took the truck contrary to formal prohibition of his employer and exclusively for his own purposes and, therefore, could not be held to have been in the performance of the work for which he was employed. Moreover, the respondent cannot be held to be liable on the ground that the injury was caused by a thing under his care, as the real cause of the accident the employee's intervention; latter, in acting as he did, was a stranger vis-a-vis the respondent. Held, also, that section 53 of the Quebec Motor Vehicle Act, which places the onus on the owner of a car to establish that the loss or damage did not arise through his negligence or improper conduct, has no application under the circumstances of the case; the proximate cause of the appellant's injury was the independent act of the employee and not any conduct of the respondent. Moreover, 'the presumption of liability created by that enactment was amply rebutted by the evidence. Held, further, that the respondent cannot be found guilty of negligence, for having left the truck unattended on the street in front of the garage with its key in the switch in contravention of the provisions of section 31 of the Quebec Motor Vehicle Act. Prima facie, in view of the. sanction by penalty, the owner of a motor vehicle guilty of an offence under IS.C.R. MOTOR VEHICLES-Concluded that section by reason of which another person suffers harm is not responsible in a civil action.
Such section is a police regulation and is not intended to attach a civil liability. But, assuming that an offence against that section may entail civil consequences, civil responsibility can only arise when the damage caused is the direct consequence of the offence. In this case, the damage was the direct consequence of the act of the employee and it was, moreover, the direct consequence of his independent wrongful act; there was no relation of cause effect between the alleged negligence of the respondent and the accident which subsequently took place. Davis J. was of the opinion that it was unnecessary to decide the question whether, in a case of an alleged breach of a statutory duty, the imposition of a penalty leaves any room for an additional civil remedy, and held that, in all the circumstances of this particular case, the injuries sustained by the appellant were not the result of the respondent's breach of the statute in leaving the truck on a public highway unlocked; there was no causal relation.
4-Negligence-Collision- Trial judge's charge to jury
Alleged misdirection
Rate of speed-Question as to need of car lights burning-Substantial wrong or miscarriage-New trial.............. 331
See 4.
5-Railways - Negligence
&---Contract for loan of money between automobile dealer and finance company- Breach by latter-Measure of damages.
...................................
See 4.
7-Action to recover from alleged insurers amount unpaid of judgment against driver of motor car for damages for injuries ...........................
MUNICIPAL CORPORATIONS -Negligence-Injury from fall on icy sidewalk- Liability of municipality-Question as to
" gross negligence" within s. 480 (8) of
Municipal Act, R.S.O., 1987, c. 266.1- This Court dismissed (Crocket and Taschereau
JJ. (dissenting)
)
the plaintiff's appeal from the judgment of the Court of Appeal for Ontario, [1939] 4 D.L.R.
holding
(reversing trial), in an action for damages against defendant municipality for injuries to plaintiff from a fall on an icy sidewalk
MUNICIPAL CORPORATIONS on a street within the municipality, that, on the facts and circumstances in evidence, the municipality was not guilty of "gross negligence" within the meaning of s. 480 (3)
of the Municipal Act, R.S.O., 1937, c. 266, and therefore was not liable.
2-Negligence-Repairs to public buildings done by contract-Work of cleaning windows given by sub-contractor to independent contractor---Latter injured by fall-Transom bar of window frame giving way-Liability of city under paragraph 3 of article 1055 C.C....... NEGLIGENCE-Construction of jetty by Dominion Government-Upper portion of it destroyed by storm and lower portion remaining under water entirely submerged-Vessel striking such portion- Damages not immediately ascertained- Subsequent sinking of vessel-Responsibility of the Crown-Whether damages limited to damages at the time of the collision.]-The Dominion
Government undertook, in 1931, the construction of a jetty, projecting at right angles to the large Dominion Government breakwater at Port Morien, Nova Scotia. Before the jetty was completed, about 50 feet of the upper portion of the outward end broke away during a storm in 1932, thus leaving the lower portion of the outer cribwork and its rock ballast remaining in position but entirely submerged. Some two years later, in September, 1934, the towboat Oatrea, the property of the suppliant, equipped for wrecking and salvage operations, became a total loss at sea as a result of having struck the submerged portion of the jetty which, the suppliant alleged, had been left without any buoy or other warning to indicate its presence there. It was established by the evidence that the master of the Ostrea, considering the collision as slight, did not ascertain immediately the extent of the damage caused to his vessel.
The Ostrea continued on her way to her salvage work; but after proceeding for about 25 minutes, a distance of miles, she appeared to be filling with water, and, a few minutes after all the men on board left her in lifeboats, she sank with all her furnishings and salvage equipment. underwriters, being advised that the ship should be written as a total loss, paid the suppliant the sum of $20,016. suppliant then submitted a petition of right on behalf of and for the benefit of the group of underwriters who were subrogated to the rights of the suppliant in respect of the loss. The Exchequer Court of Canada, Angers J., held that, in the restoration and changes made in the jetty, there had been negligence on the part of the officers or servants of the Crown while acting within the scope of their duties or employment upon a public work; but he limited the relief to "the damages to the vessel directly attributable to the collision
*
*
*
, had such damages been ascertained immediately after the said collision." The respondent appealed and the suppliant cross-appealed.
Held, affirming the judgment of the Exchequer Court of Canada and dismissing the appeal to this Court, that, upon the facts of the case, the submerged cribwork, which was left with nothing to warn navigators of its presence, constituted a dangerous menace to navigation, and in leaving that obstruction without providing any such warning, the officials and servants of the Crown in charge of these works were chargeable with negligence for which the Crown is responsible by force of section (c)
of the Exchequer Court Act; but held, varying the
Canada and allowing the cross-appeal, that the amount of damages should not be restricted to those mentioned in that
Per Rinfret. Crocket
Kerwin JJ.: After the collision there has been negligence on the part of the ship's officers in not having discovered sooner than they did the extent of the damages;
and the total loss of the vessel and its equipment would have been avoided had an attempt been made either to return her to the wharf or to beach her at some nearby point. But the suppliant, although not entitled to damages as a total loss, should recover more than the cost of the repair of the vessel as allowed by the trial judge, and should be granted any other damages directly attributable to the collision. Per The Chief Justice and
Davis J.-The respondent is entitled to recover the total amount of damages claimed in the appeal.
Per The Chief
Justice:
The onus resting upon the
Crown, to shew that the loss of the vessel did not follow in the ordinary course as the "natural and reasonable"
result of running upon the obstruction under water, has not been discharged;
the Crown has not established such negligence of officers in charge of the ship as constituting novus actus intervenien8.
Canadian Pacific Ry. Co. v. Kelvin Shipbuilding Co. (138 L.T. 369) ref.
Davis J.-The appellant would be subjected to a diminution of damages only if it be proved that those in charge of the vessel were guilty of negligence (as opposed to mere error of judgment)
amounting to a novus actus interveniens which would have caused the extra damage; and there was no conclusive evidence that the vessel could have been saved from total destruction even if the leak in her had been discovered immediately after the collision. KING Co. ITD . .......................... 2-Accident-Damages-Railway trainman-Killed while engaged in switching operations-No eye-witness of accident- Verdict of jury in favour of plaintiff- Set aside by appellate court-Whether evidence sufficient to justify verdict or whether it was a matter of pure conjecture or speculation by the jury.3-An action was brought under The Fatal Accidents Act, R.S. Sask., 1930, c. 75, by the appellant, widow, of one John S. Danley, acting as executrix of his estate. Danley, an experienced railway trainman in the employ of the respondent company, was killed while engaged in his work of coupling and uncoupling of cars during switching operations on the night of October 8th, 1937.
On that night, he was seen to approach the point where two cars were about to be coupled; and, a very short time later, his dead body was discovered badly crushed partly beneath one of the cars. There was no eyewitness of the accident, and therefore no direct evidence as to what the deceased actually did at the very moment he met his death or as to exactly how the accident happened; but counsel for both the appellant and the defendant exposed to the jury their respective theory as to the cause of the accident, according to the evidence. There was no exception taken to the charge to the jury by the trial judge.
The jury found in favour of the appellant and awarded 'her $8,000 damages, bringing a verdict that Danley came to his death through the negligence of the respondent. The appellate court, setting aside the verdict, dismissed the appellant's action. The majority of the court, for the purpose of their determination of the appeal, assumed but did not hold that there was negligence on the part of the respondent company, Gordon J. being of opinion that there was no evidence of negligence; but the appellate court unanimously held that on the evidence the way in which Danley met his death was a matter of pure conjecture or speculation. On appeal to this Court, Held, Rinfret and Kerwin JJ. dissenting that the appeal should be allowed and the judgment of the trial judge restored.
Per Davis J.- A reasonable view, consistent with the appellant's right to recover, could be taken by the jury on the evidence; and their verdict, a verdict which reasonable men acting judicially could arrive at, ought not to have been disturbed. Viscount Dunedin said in Simpson v. L.M. & S. Ry. Co. ([1931] A.C. 351, at 364), "the question will always be whether "the proved facts will reasonably sup- "port the conclusion which has rested
"upon them." Per Hudson J.-There was evidence before the jury upon which they could reasonably have arrived at the conclusion that there was negligence on the part of the respondent. Per Rinfret and
Kerwin JJ. (dissenting)
.-Assuming negligence of the respondent and assuming
Danley did not know that a coupling apparatus was in a defective condition.
there was not evidence from which it might be reasonably inferred that the death of Danley was caused by such negligence of respondent. Upon the evidence the jury had before them, they could do no more than guess at the cause of the
RY. Co. ......................
3-Municipal corporations-Repairs to public buildings done by contract-Work cleaning windows given by subcontractor to independent contractor- Latter injured by fall-Transom bar of window frame giving way-Liability of city under paragraph 8 of article 1055
C.C.1-The city respondent had a contract with one C. to effect certain repairs in its City Hall building, and those pertaining to painting and glazing were delegated to a sub-contractor. The appellant was engaged by the sub-contractor to clean the windows. While doing that work, the appellant attempted to support himself on the transom bar of a window frame and, the transom bar giving way, lost his balance and fell to the pavement below.
The appellant brought an action for damages against the city. The answers of the jury contained in their verdict were to the effect that the accident had been occasioned by the common fault of the appellant and the respondent, the fault of the appellant consisting in "not taking sufficient precaution for his personal safety and using the transom bar for a purpose for which it was not intended," and the fault of the respondent being "the failure to keep the building in proper state of repair."
The trial judge, confirming verdict the jury, awarded
$12,600 but judgment was reversed by the appellate court. Held that the judgment appealed from should be affirmed.
The effect of the jury's answers was to eliminate any responsibility under article 1053 C.C. and to place the respondent's liability under article
1055 (3)
C.C.
The respondent therefore could be held legally responsible only for failure to keep the building in proper state of repair for the purpose for which it was intended.
The answer of the jury being that the appellant used the transom bar "for a purpose for which it was not intended," the jury thus negatived the application of article 1055
C.C. and the respondent cannot accordingly -be held responsible: the jury could not find a legal foundation where there was no legal obligation.
Judgment of the Court of King's Bench (Q.R. 66 K.B. 324) affirmed.
LEZNEK v. TnE CITY OF 4-Motor vehicles - Collision - Trial judge's charge to jury-Alleged misdirection-Rate of speed-Question as to need of car lights burning-Substantial wrong or miscarriage-New trial.]-The action arose from a collision between appellant's and respondent's motor cars. Each party claimed that the collision was caused entirely by the other's negligence and claimed damages.
Judgment was given at trial on the jury's findings in favour of respondent and an appeal to the Court of Appeal for Ontario was dismissed.
Appeal was brought to this Court on the ground of misdirection in the trial judge's charge to the jury. Held (the
Chief Justice dissenting): There should be a new trial, on the ground of misdirection. Per Rinfret and Kerwin JJ.: On construction of the trial judge's charge, there was misdirection in that he told the jury that appellant's allegation that respondent was travelling at an excessive rate of speed under the circumstances was not open to them since not exceeding statutory limit of 50 miles per hour; also in that he told the jury that respondent was under no obligation to have his car lights burning, and said: "As I remember it, every witness said that they could see 100 yards. Why would lights need be on if you could see 100 yards without lights.
There is no law in this province requiring lights on under those circumstances--that is, at any rate, after dawn and before duskduring the day-time." Such misdirection occasioned substantial wrong or miscarriage.
Appellant was entitled to a finding from the jury, not merely on the question as to negligent driving of his own car but also on the question of respondent's negligence, and in particular as to whether both drivers were negligent. Two allegations of negligence on the part of respondent were really withdrawn from consideration of the jury, and the Court should not place itself in the position of attempting to determine what, on a proper direction, would be solely within the province of the jury on these vital matters. Per Davis J.: The trial judge's directions virtually withdrew from the jury a consideration of the vital question as to the degree of care reasonably to be expected from both drivers under the fog conditions existing at the time. Per the Chief Justice (dissenting):
The trial judge told the jury in the most pointed way that, if they accepted appellant's account, then respondent's conduct amounted to negligence which was the cause of the collision. The issue at the trial was an issue of credibility and, the jury having rejected appellant's case, he ought not to have an opportunity of putting the same case or another case before another because accuracies in the charge which must, in view of the nature of the critical issue and the manner in which that issue was placed before have been quite innocuous.
Mc- 5--Street railways-Passengers in street car injured by sudden application of emergency brake-Brake applied because of alleged negligent conduct of an automobile driver-Claim for damages against street car company-Judgment at trial on jury's findings-Reversal by appellate court-Want of justification for reversal.]
a passenger in a street car of defendant corporation, while standing and picking up a parcel preparatory to disembarking, was thrown to the floor and injured by the sudden application of the emergency brake, and claimed damages.
Defendant corporation contended that the application of the brake was made necessary by the negligent conduct of the driver of an automobile with which the street car collided. The jury found that plaintiff's injuries were due solely to negligence of the corporation's motorman, in that he was "negligent in not looking or observing the road ahead of him; if he (the motorman) had been observing properly he would not have found it necessary to apply the emergency brake at all, thus avoiding the injury to the plaintiff"; and judgment was given for plaintiff against the corporation.
judgment was reversed by the Court of
Appeal for Ontario, on the ground that, on the evidence, the jury's finding was such that no twelve men with a proper appreciation of their obligations and duties could arrive at. Plaintiff appealed.
Held: The appeal should be allowed and the judgment at trial restored. There was evidence on which the jury were entitled to find as they did.
Per Crocket J.:
A study of the printed record might very well produce upon the mind of a trained judge sitting on appeal an impression contrary to the jury's finding, but that would not warrant him in substituting his own opinion upon a pure question of credibility for that of the jury, who heard the evidence and had the advantage of observing the witnesses' demeanour, unless he were convinced that the finding was one which was so manifestly wrong that no jury, which fully appreciated its duty as a sworn body, could have conscientiously made it; and, on the evidence, the reversal of the jury's finding was not warranted. Per Hudson J.: Although the carrier of passengers is not an insurer, yet if an accident occurs and a passenger is injured, there is a heavy burden on the carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger.
The care required is of a very high degree.
CoMMIssIoN .............. 433 6--Railways - Motor vehicles Plaintiff's motor car stalled on railway track- Plaintiff waving to approaching train and trying to push car off track-Train striking motor car and latter striking plaintiff in act of escaping-Claim against railway company for injury to plaintiff and damage to his car-Questions as to negligence of railway company and of plaintiff- Wrongful withdrawal of case from jury- Power of Court of Appeal in giving judgment on the evidence--Question as to application of s. 48 of Highway Traffic Act, R.S.O., 1987, c. 28s.]-Plaintiff in his motor car, going easterly, in daylight, while approaching a railway crossing, heard the whistle from defendant's train coming from the south. He applied his brakes, and the engine of his car stalled but the car kept going and stopped with its rear end over the east side of the railway track. He saw that the train was 1,000 feet or more distant, he alighted, went to the back of his car, waved signals to the train to stop, alternating with attempts to push the car off the track, until the train (which had kept sounding warning whistles) was near (60 or 70 feet away, when plaintiff first realized it was not going to stop, according to his evidence), when he ran to get behind a " wig-wag " signal post on the northeast corner of the crossing.
When he had nearly reached the post, he slipped and in falling threw his arm around the post and at that moment his car, being struck and thrown forward by the train, crashed into the post and crushed his arm. He sued defendant railway company for damages for personal injuries and damage to his car.
At trial with a jury, plaintiff was non-suited without submission of his case to the jury. The Court of Appeal for Ontario ([1940] 2 D.L.R. held that there was no evidence that defendant was the cause of plaintiff's personal injuries; that plaintiff himself was the sole cause; but that, with respect to the claim for damage to the car, plaintiff might be entitled in the verdict of a jury on the questions whether the train could have been stopped and whether it ought to have been stopped before it reached the crossing; and plaintiff was given a right to elect for a new trial limited to that claim, but as he did not so elect his appeal was dismissed. He appealed to this Court. Held: Plaintiff was entitled to have his claims, both for damage to his car and for personal injuries, submitted to a jury.
Per the
Chief Justice, Davis and Taschireau JJ.:
It was open to the jury to take the view that the train could have been stopped and that it was negligent not to stop it to avoid collision with the motor car on the ground that defendant's engine driver, seeing plaintiff and his car, his signals and attempts to move the car, had not exercised the reasonable care incumbent upon him to employ in order to avoid unnecessary injury to property and persons on the highway; and the jury might properly have considered that to this negligence was proximately due the emergency which plaintiff said confronted him when he first realized (if the jury accepted his evidence as to when he first realized) that the train was not going to stop.
If on these questions of fact the jury found against defendant, then the question of fact would remain for the jury whether plaintiffs injuries were solely the result of negligent conduct of himself or were, in part at least, caused by the negligence of defendant.
As to defendant's contention that, in view of plaintiff's direction in running and the way his injuries occurred, his injuries did not follow in the ordinary course of things from its negligence, if there was such-that issue depends upon the answer to the question (which was for the jury) whether or not plaintiff's conduct when he ran for safety was so unreasonable in the particular circumstances as to take it outside of the category, the ordinary course of things.
While remoteness of damage in itself is no question for the jury, issues as to reasonable conduct are questions for the jury. Where the evidence is such that it should have been submitted to the jury, the power of the Court of
Appeal to dismiss the action on the ground that on the whole of the facts in evidence only one reasonable conclusion could be arrived at (Ontario Judicature
Act, s. 26) is a power which must be exercised with caution and, generally speaking, only when it is quite clear that the Court of Appeal has all the available evidence before it (Paquin v.
Beauclerk, [1906]
A.C.
148, at
161;
McPhee v. Esquimalt & Nanaimo Ry.
Co., 49 Can. S.C.R. 43; Skeate v. Slaters,
[1914] 2 K.B. 429).
Sec. 48 of the Highway Trafic Act, R.S.O., 1937, c. 288, has no application to the present case, where the role of the automobile was simply that of a projectile moving under the impulse of a blow from a railway train delivered at a highway crossing.
Crocket J.: There was sufficient evidence to go to the jury on the question whether defendant's engineer could have avoided hitting the motor car by the exercise of due care; and it follows that there was sufficient evidence to leave to the jury upon the further issue as to whether plaintiff's injuries, which immediately followed, were the direct and natural consequences of the train hitting and throwing the car in the direction in which plaintiff ran; this involves consideration of the question whether plaintiff, when he realized or should have realized that the train would hit the car, could in the existing circumstances have avoided the injuries by exercise of reasonable care; and that was a question peculiarly for the Per Hudson J.: There was some evidence which might properly have been submitted to the jury as to whether or not defendant's employees saw or reasonably should have seen plaintiff's predicament in time to stop the train and avoid the collision, and, this being so, the claims both for damage to the car and for personal injuries should have been submitted; it is a question of fact whether or not plaintiff acted reasonably under the circumstances, and on this he was entitled to have an expression of the jury's views.
Ry. Co. ...................
7--Customers of recreation resort injured by collapse of bench, while attending concert-Concert not put on by proprietor of resort but with his permission -Liability of proprietor of resort-Relationship between customers and proprietor-Invitee, licensee with interest or bare licensee.]-The respondents, while attending an open-air concert at an island summer resort and recreation grounds which were operated by the appellant for profit, were injured through the collapse of a wooden bench on which they were seated, the uprights of the bench having rotted. The concert was not provided by the appellant but by one S. with the permission of the appellant. A steamship company, a "sister" or subsidiary company of the appellant, which was transporting passengers to the resort, issued to the public an illustrated folder depicting and enlarging upon the attractions to be found on the grounds; and in it was a list of the recreations available and included in that list was a paragraph entitled " Open-air entertainment " with a detailed description of same. The area, known as the " Shell" area and comprised within the above No. 1 Picnic Grounds hereafter referred to, on which the concert was held, was free to the public and S.'s revenue was from collections which he took up from- the audience. The appellant supplied the wooden benches and its employees placed them in position daily, but the appellant did not charge S. for the use of the stage or .761 NEGLIGENCE-Concluded share in the collections, and S. was not an officer or employee of the appellant. The respondents were members of a picnic party composed mainly of employees of a company in Vancouver and were transported to the island by the steamship company.
At their request, made some time previous to the latter, a small area known as No. 1 Picnic Grounds referred to in the folder had been set aside for their exclusive use as a common centre.
No fee was charged the public entrance to the resort: appellant's revenue was obtained from sale of food, hotel accommodation and boating, bathing and amusement facilities, although there was no evidence that respondents paid anything to the appellant for the use of such privileges.
The trial judge held that the respondents were invitees of the appellant and awarded them damages; and that judgment was affirmed by a majority of the appellate court. Held, affirming the judgment of the Court of
Appeal ([1940] 1 W.W.R. 209), that there was evidence to support the finding of the trial judge that in respect of the
"Picnic Grounds No. 1 " the respondents were " invitees " and that the appellant, who was the owner in possession of that property, was responsible for the invitation; that there was also sufficient evidence to support his finding that the locus of the mishap in which the respondents were injured was within the locality to which the invitation extended; and, further, that that was sufficient evidence to support his finding, concurred in by the majority of the Court of Appeal, that the appellant failed in its duty to keep the bench reasonably safe for the purpose for which the respondents and other "invitees"
were intended to use it. UNION
8--Motor vehicles - Collision - One motor truck passing another while latter veering to left for purpose of making left turn for accident-Evidence Findings-Highway Traffic Act,
R.S.O., 1987, c. 288, ss. 89 (1)
(d),
12(1) (b).........................
9-Automobile-Car left unattended on a public highway-Unauthorized use of the car by employee-Injury to person-- Liability of owner-Art. C.C.-Motor
Vehicle Act, R.S.Q., 1925, c. 81 and
......
See MoroR 3.
10-Municipal corporations - Injury from fall on icy sidewalk-Liability of municipality ......................
11-Negligence of an officer or servant of the Crown......................
PARTIES-Action for reconveyance of land-Joinder of defendant's wife as party PATENT - Alleged infringement - Substance of the invention-Specification- Claims.]-Anpellant sued for a declaration that its machine for casting diamond core bits and its sale or use in Canada does dent's patent, which related to a method and mold for setting diamonds and was, according to the specification, "especially designed for setting diamond-cutters in tools and devices."
Respondent in his specification claimed that his method prevented the "floating" of the diamonds which, being lighter than the molten metal poured into the mold to form the tool, were apt to become dislodged (to "float"); that he prevented this by placing them in a pattern-holder, then placing it in the mold, and then utilizing air suction to retain the diamonds in their seats during the arranging of them and during the pouring of the molten metal into the mold. Appellant used a process of centrifugal casting, in which the problem of preventing the diamonds "floating" was not encountered, and which process in itself did not, nor did the machine used therein, infringe respondent's patent; but, prior to the casting operation, appellant temporarily anchored the diamonds in place to a die plate by a thin film of adhesive which, when the die plate (with the diamonds thus previously anchored to it) had been transferred to the mold, would, at the outset of the casting operation, immediately disappear under the heat of the molten metal; and, in applying this adhesive, appellant used a machine and process of suction, to assist in arranging the diamonds and to retain them in place during the spraying of the adhesive. Held (reversing judgment of Maclean J., [1939] Ex. C.R. 121): Appellant should have the declaration as prayed. It is not the province of the court to guess what is or what is not the essence of respondent's invention; that must be determined examination his language;
and on construction of his specification, the primary thing at which he was aiming was to solve the problem of "floating" and he mastered that by using suction to retain the diamonds in place during the pouring of the molten metal into the mold; that was clearly indicated as an essential, if not the essential, part of the invention; and though he also used suction to keep the diamonds in place during their arranging, that was only after the diamond holder had been placed in the mold; and it cannot be said that the substance of respondent's invention was taken by appellant's process (which does not employ suction at all after the diamond holder has been placed in the mold or after the formation of the tool has begun by the introduction of the molten metal into the mold).
R.C.A.
Photophone Ld. v. Gaumont British Picture Corpn. Ld. et al., 53 R.P.C. 167, at
197, cited.
Further, respondent at the time he applied for his patent could not have got a patent for the process which appellant employs in sticking the diamonds on a die plate by the adhesive and for that purpose making use of suction while arranging the diamonds and while applying the adhesive; in the state of the art, the employment of such process would have constituted no patentable advance. Such process of appellant could not be said to 'be the "equivalent" or operation in another form of respondent's process of pouring the metal and employing suction during it. Also, on considerathose claims in respondent's specification alleged to be infringed, there was no description therein of a monopoly which clearly and plainly included a prohibition against anything the appellant does.
(As to function and effect of claims in a specification,
Electric &
Musical Industries Ld. et al. v. Lissen
Ld. et al., 56 R.P.C. 23, at 39, cited.)
J. K. SuT &
2-Re-Issue - Vilidity - Claims.]- Appellants sued
(under s. 60 of the
Patent Act, 1985) for a declaration that respondent's patent, a re-issue patent, relating to "frosted glass articles and methods of making same," was invalid and void, or a declaration that no valid claim thereof was infringed by the sale or use in Canada of appellants' electric incandescent lamps. The action was dismissed by Maclean J., President of the
Exchequer Court, [1939] 1 D.L.R. 412, and appeal was brought to this Court.
At the time of the re-issue, the relevant enactment in force as to re-issue patents was s. 27 of the Patent Act, R.S.C.,
1927, c. 150.
In the re-issue patent no change was made in the specification but change was made in the claims. In the re-issue patent there were four claims, the first two having been in the original patent (as claims 8 and 9) and the other two being introduced by the re-issue patent. The claims were:-1. A bulb for electric lamps and similar articles having its inner surface covered with rounded etching pits or depressions.
2. An incandescent electric lamp bulb having on its inner surface rounded etching pits or depressions.
3. A glass electric lamp bulb having its interior surface frosted by etching to such an extent as to be free from objectionable glare, said interior bulb surface being characterized by the presence of rounded as distinguished from sharp angular crevices to such an extent that the strength of the etched bulb is sufficient to withstand shocks due to commercial handling. 4. A glass electric bulb having its interior surface frosted by etching to such an extent that the light is sufficiently diffused to obviate glare, said interior bulb surface being characterized by the presence of rounded distinguished from sharp angular crevices, to such an extent that the strength of the bulb as compared to an unetched bulb of the same thickness has not been sufficiently reduced to preclude commercial handling. Held: The appeal should be allowed and respondent's patent declared invalid and void. Per the Chief Justice and Davis and Hudson JJ.: There may have been patentable invention in devising the method, dealt with in the specification, of strengthening frosted glass for the purpose (inter alia) of constructing glass bulbs; the real difficulty in respondent's case lay in the manner in which the claims are framed. As to claim 1: The word "covered" is an ordinary word and, using it in its ordinary sense, it is plain on the evidence that the surfaces of appellants' bulbs do not fall within that description (nor do the surfaces of respondent's bulbs as manufactured and sold by it), and therefore (apart from any question as to whether claim 1 embodies on its proper construction a patentable monopoly) there was no infringement.
Claim 2 is too broad to constitute a valid claim, extending in its application (in the light of the evidence as to existence or production of rounded depressions) to bulbs which have not been submitted to respondent's strengthening treatment or to anything that could properly be described as a strengthening treatment.
Claims 3 and 4 would have been invalid had they been introduced in the patent originally, and also theyare such as would give a new character to the invention and the re-issue patent is invalid accordingly.
The effect of the evidence is that the inventor had not produced a bulb which would "obviate glare" or be "free from objectionable glare" in the normal meaning of the words (and on the evidence "glare" is not a term definable by reference to any special usage in the art) and that he had not disclosed any means of doing so; further, as regards this characteristic the claim is too indefinite-the ordinarily skilled person is not given a sufficient guide as to its limits; further, on construction of the specification, the problem of glare was not one to which the inventor was applying himself.
Nor in the original patent did the problem as to sufficiency of the bulb to withstand the shocks of commercial handling present itself to the inventor; in his specification - he gives directions for producing a bulb with a high degree of strength as determined by the "bump" test, but he did not apply himself to the relation between strength as shown by that test and the sufficiency of the bulb to withstand the shocks of commercial handling.
As shown by the evidence, while the interior bulb surface of respondent's commercial lamp is (forming a contrast in this respect to the surface of the patent lamp) the surface of a lamp possessing, no doubt, the characteristic described in claims 3 and 4-a lamp combining resistance to shock sufficient for commercial purposes with a high degree of absence of glare, yet this was the result of much experimentation after the invention-experimentation directed to definite commercial ends which the inventor had not in mind and leading to a procedure different from his; and the re-issue provisions of the Patent Act cannot legitimately be employed for the purpose of ascribing this result to the inventor and remodelling his invention to make that invention conform to it. There was nothing to support the proposition that the specification in the original patent was "defective or inoperative" by reason of any of the causes mentioned in the statute. Moreover, as regards the re-issue patent as a whole, each of the four claims is in respect of an article, while the invention as described in the original patent is an invention of a process for strengthening frosted glass articles.
Per Rinfret and Kerwin JJ.: Upon construction of the specification and claims in respondent's original patent it is evident that if there was invention it was in a strengthening treatment and not in an article strengthened by any means whatsoever.
It is clear from the claims in the re-issue patent that what is now claimed is an article; it is not a correction of the original patent made " by reason of the patentee claiming more or less than he had a right to claim as new," but, if valid, is an entirely different invention;
and this an inventor and those claiming under him are not entitled to do.
A re-issue is not a grant of a new patent, but must be confined to the invention which the inventor attempted to describe and claim in the original patent. Fuso
ELeraic WoRKs
ALa.
GENERAL ELuEraic Co. . ........ 371
3- Infringement-Substance of the invention-Essential or non-essential elements.]-This Court dismissed defendant's appeal from the judgment of Maclean J.,
Ex. C.R. 277, holding that the patent in question was valid and had been infringed by defendant.
The patent was for improvement in fans and the invention related to fans for producing air currents and had for its principal object to provide such a fan with flexible fan blades of suitable material and shape (to give the blades stability for an efficient operation fan combined with sufficient flexibility to cause any portion of the moving blades to yield when a stationary rigid or semi-rigid member is brought in contact with them, and to be self-restoring to normal position when the intruded member is withdrawn.
This Court held that the substance of the invention lay in shaping the blade in such fashion as to maintain the rigidity of its base and body while leaving the edges sufficiently flexible to be harmless; and in this there was novelty and invention, and in substance this has been taken by defendant; that the bow-like slot in which the rubber blades were inserted, an element not taken by defendant, was only a particular means for maintaining the cupped shape of the base and body of the blade and thereby imparting to it the necessary rigidity; and, as a particular means only for maintaining this rigidit- which was the essential thing, it was non-essential.
SAMsON-UNTED 4- Invalidity-Existing art-Analogous user-No invention-Patent granted in October, 1933, attacked under a. 61 (1) (c) of 'Patent Act, 1935, c. 38-Patentee's rights not governed thereby-Said Act, s. 81, 82; Patent Act, R.S.C. 1927, c. 150, s.7A (as enacted in c. 81, a. 4); Interpretation Act, R.S.C. 1927, c. 1, s. 19 (1) (c).]-This Court dismissed an appeal from the judgment of Maclean J., [19381 Ex. C.R. 152, holding that defendant's patent in question was invalid. The patent was for improvement in hosiery and the manufacture thereof, and the alleged invention for which it was granted was described in the specification as relating "to full-fashioned hosiery, particularly of real silk, and to methods of and means for making the same." the Chief Justice, Rinfret and Kerwin JJ.: It is a case of analogous user. method in defendant's alleged invention was analogous to that already used in connection with other articles of wear; and the difference between the problem met by defendant's use of the method for his purposes and the problem solved a long time before by use of the method in connection with other articles was not sufficiently wide to justify the conclusion that defendant's application of the method involved invention.
The trial judge's finding that the problem met by defendant had not earlier presented itself as an acute one in the trade (thus negativing, as a factor, any existence of a long-felt and unsatisfied want) was warranted upon the evidence as accepted by him. doctrine of analogous user arises from the necessity appreciated by the courts that people must be safe-guarded against undue interference with the use of the accumulated stock of experience knowledge gathered in their own and other trades.
Disagreement expressed with the view (taken by the trial judge as a further ground against defendant)
that defendant's rights were governed by s. 61 (1) (c) of The Patent Act, 1935
(c. 32), in view of the fact that his patent was granted in October, 1933 (more than a year prior to the enactment of said s. 61 (1) (c) ), and in view of s. 81 of that Act, and of s. 37A (enacted in 1932, c. 21, s. 4) of the Patent Act, R.S.C. 1927, c. 150, which s. 37A was in force at all relevant dates. In view of s. (1) (c)
of the Interpretation Act (R.S.C. 1927, c. 1), defendant's rights under said s. 81 of said Act of 1935 could not be affected by s. 82 of that Act (repealing, inter alia, said s. 37A, enacted in 1932).
Per Davis
J.: Defendant's alleged invention lay within the limits of the existing art, m the sense that it was such a development as an ordinary person skilled in the art could naturally make without any inventive step.
..............
Validity-Infringement.]-An appeal from the judgment of Maclean J., [1939]
Ex. C.R. 282, dismissing plaintiff's action for alleged infringement of its patent for an invention relating to armoured electric cables, was dismissed.
An essential element in the alleged invention was a clearance space, to be made by unwinding one or more coils of the fibrous material covering the insulated conductor or conductors, to receive a protecting bushing within the end portion of the cut-off metallic outer sheath of the cable. Defendant manufactured and sold armoured cables, and sold, for the purpose of preparing a piece of the cable for installation, bags of bushings purchased from a
United States company which made them under a United States patent, which bushings were to be inserted over the fibrous material
(paper) covering the insulating conductors.
Per the Chief Justice,
Crocket, Davis and Hudson JJ.: Defendant did not infringe plaintiffs patent.
Defendant's cable did not infringe, as every element in it was old and well known at the date of the patent and there was no invention in the combination found in that cable; and there could be no invention in merely inserting one of the bushings sold by defendant for the purpose of preparing a piece of the cable for installation; the use of a bushing in electrical installations for purposes the same or closely analogous to that for which the patented invention employed it was well known long before that invention; the bushings sold by defendant could be readily inserted over the fibrous material
(paper) covering the insulated conductors in defendant's armoured cables; and in the article produced by so inserting the bushing there could be no infringement of plaintiff's patent, since the clearance space, an essential feature of plaintiffs patented invention, was left out. Per Kerwin J.: Plaintiff's patent was invalid for want of invention.
......................
6-Pleadings-In action for alleged infringement of patents, defendants seeking to plead an illegal conspiracy or combine-Question raised whether such defence could constitute a good defence in such an action-Insufficiency of the pleading in question-Application of the principle ex dolo malo non oritur actio.1- In an action for alleged infringement of patents of invention, defendants sought by amendment to plead "that the plaintiffs, or some of them, together or with others, have entered into an illegal conspiracy or combine contrary to the common and statute law of the Dominion of Canada, and, in particular, contrary to The Combines Investigation Act, (R.S.C., 1927, c. 26)
and The Criminal Code (R.S.C., 1927, c. 36) and are disentitled to any relief in this action because: (a) The assignments, transmissions, agreements or other means whatsoever, by which rights in the patents in suit are claimed, were made in pursuance, or as a result, of the said conspiracy or combine and were ineffective to convey such rights; or (b) in the alternative, if any rights in the patents in suit were acquired, such rights have been used, in this action and otherwise, in pursuance of the said conspiracy or combine in such a way as to disentitle the plaintiffs to any relief."
The question whether, in an action for infringement of a patent, such a defence could constitute a good defence was argued as a question of law before trial, and was determined in the negative by Maclean J. in the Exchequer Court of Canada. On appeal: Held: The proposed amendment, in the form in which it was put, was improper and was rightly rejected; but it should be open to defendants to apply to amend by proper and properly framed amendments. The principle ex dolo malo non oritur actio (stated in Gordon v. Chief Commissioner of Metropolitan Police, [19101 2 K.B. 1080, at 1098) is applicable to a case in which a plaintiff must necessarily, in order to establish his cause of action, prove that he is a party to an illegal conspiracy upon which his cause of action PATENT-Concluded rests; and applies to an action for infringement of a patent; if the plaintiff's title is founded upon an agreement which amounts -to a criminal conspiracy to which he is a party, and which he must establish in order to prove his title, then he cannot succeed. And it cannot be said that in no circumstances can the existence of an illegal combine be an answer to such an action.
If at the trial it appeared that the plaintiff's case was founded upon an illegal transaction to which he was a party, in the sense above indicated, it would be the duty of the trial judge to take notice of it and dismiss the action.
But here defendants are proposing to set up their objection in their pleading and in doing so they must observe the rules of pleading and allege the facts which constitute the illegality complained of and the connection of the plaintiff's cause of action with that illegality.
7-Action for infringement - Lack of invention.]-The action was for a declaration that three patents (two of them for an alleged new and useful improvement in seams .for woven wire belts, and the other for an alleged new and useful improvement in belts for Fourdrinier machines) had been infringed by defendant and for consequential relief.
The judgment of Maclean J., President of the
Exchequer Court of Canada, (1939] Ex.
C.R. 259, dismissing the action, mainly on the ground that, in view of the state of the art, there was lack of invention to support the patents, was affirmed.
v. THE WIRE WORKs
PHYSICIANS - Contract - Arrangement between plaintiff and defendant, both physicians, for defendant to purchase practice of third physician (retiring) with moneys furnished by plaintiff and to practise for fixed time and pay share of profits to plaintiff-Subsequent contracts for further periods of practice and division of profits-Restrictive covenants against defendant practising within certain time and area-Validity, severability, of the restrictive covenants - Plaintiff suing for an accounting-Nature of the agreements - Consideration - Statute of
Medical Act (R.S.O., 1987, c. 225), in view of plaintiff becoming disentitled to practise .......................
PLEADINGS.
PRACTICE AND PROCEDURE-Pleadings-Allowance of amendment at trial- Effect and scope of pleadings as amended. .......... PRESCRIPTION - Promissory note - Signed by two or more persons-Payment in full by one of them-Action against co-debtors to recover their share of the debt
Nature of the claim Whether commercial matter-Prescription of the action-Whether by five or thirty years - Articles 1117, 1118, 1156, 2242, 2260 (4)
C.C.-Bills of Exchange Act, s. 189.........................
PRIVILEGE-Sub-contractor - Registration-Notice or me moria -Whether affidavit necessary-Reservoir- Construction on Crown property--Reservoir to form part of existing municipal aqueduct- Whether subject to privilege - Public domain-Arts. 2018 (a) (f), 2103 CC.- Arbitration - Award - Validity panies-President-Authorization to sign -Conduct of parties- Evidence as to alleged irregularities-Art. 1482 C.C.P.1- The appellant in the first appeal, Concrete Column Clamps Limited, sued La Compagnie de Construction de Qu6bec Limit~e, appellant in the second appeal, to recover the sum of $75,173.55, representing the price for work done and materials furnished under a sub-contract with that company, the latter being the principal contractor under a contract with the city of Quebec, respondent in the first appeal, for the construction of an underground reservoir eventually to become the property of that city. construction was to pass through the National Battlefields, which are the property of the Federal Government. and the National
Battlefields Commission consented gratuitously to allow such construction on its land without relinquishing its right or ownership on behalf of the Dominion. The city of Quebec was made a party to the action, for the purpose of obtaining an order that the reservoir as well as the land itself should be declared subject to a privilege which would guarantee the payment of the sum due. Both the defendant and the misen-cause filed separate pleas. Before the case actually came to trial, La Compagnie de Construction and the Concrete Column Clamps agreed to submit the lawsuit to arbitrators, and their decision was that the latter company was entitled to recover a sum of 825,622.74.
This award of the arbitrators was deposited with the record of the case by order of Gibsone J. whose decision was affirmed by the appellate court. Then, after trial, the Superior Court, Privost J., dismissed in toto the action of the Concrete Column Clamps PRIVILEGE-Continued against the Compagnie de Construction, rejecting therefore the award of the arbitrators, and also refused to grant the conclusion of that action against the city of Quebec to the effect that the reservoir and the land upon which it had been constructed were subject to a privilege.
Concrete
Column
Clamps appealed to the Court of King's Bench, and that Court dismissed the appeal on the question of privilege; but reversed the judgment of the trial judge and allowed this last company the sum of
$25,622.74, being the amount awarded by the arbitrators. The ground raised in the first appeal is whether the appellant
The Concrete Column Clamps is entitled to its claims against the city respondent on the ground that the reservoir and the land upon which it has been constructed were subject to a privilege; and the questions at issue are whether such privilege has been legally drafted, whether the necessary notices have been given within the prescribed delay and finally whether the reservoir and the land can be subject to a contractor's privilege. In the second appeal, the question at issue is whether the award of the arbitrators is valid and binding between the parties. Held, affirming the judgment appealed from (Q.R.
67 K.B. 536) that the maintaining of
The Concrete Column Clamps's action against La Compagnie de Construction de Quebec for $25,622.74 by the Court of
King's Bench should be affirmed, as well as its decision dismissing the demand of the Concrete Column Clamps against the city of Quebec for a declaration of a
Held that the general rule, and it is an imperative one, that governs the registration of privileges (ant. 2103
C.C.) and which stipulates that a notice or memorial to which a sworn deposition of the creditor is annexed must be deposited at the registry office, also applies in the case of a claim by a sub-contractor.
Although supplementary formalities are imposed by article 2013 (f) in the case of a sub-contract. the sub-contractor must nevertheless perform the other essential formalities prescribed by the general rule contained in article 2103 C.C.-Sworn deposition must be given by the creditor whether registration is by way of notice or by way of memorial. In this case, no privilege could have been acquired by the claimant company as the latter has not accompanied its claim with the affidavit required by the Civil Code. Moreover, even assuming that the registration would be valid in law, no privilege could have been created, as there is no evidence in the record to establish that the amount awarded by the arbitrators were in payment of work done before or after the date on which notice of the contracts had been given to the city of Quebec.
Held,
PRIVILEGE-Concluded also, that, although the land upon which the reservoir has been constructed cannot be made subject to a privilege, such land being the property of the Crown, the reservoir itself may be so subject as a distinct immoveable. But, in this case, such reservoir, being connected with the municipal aqueduct then in operation, forms part of the public domain and consequently cannot be made subject to a privilege. Such reservoir, from the very beginning of the work, and not from the date of the completion of the work, was part of public domain by destination. Held, further, that under the circumstances of this case, the award of the arbitrators should be declared to be binding upon the parties who have agreed -to such submission.
v. CITY .......................
PRIVY
COUNCIL-Appeals to, from Canadian Courts-Jurisdiction of Parliament of Canada to abrogate them.. PROMISSORY NOTE-Signed by two or more persons-Payment in full by one of them-Action by the latter against codebtors to recover their share of the debt -Nature of the claim-Whether commercial matter-Prescription of the action -Whether by five or thirty years-Articles 1117, 1118, 1156, 2242, 2260 (4) C.C.- Bills of Exchange Act, s. 189.1-When a promissory note signed by two or more persons has been paid in full by one of them, an action by the latter to recover from any of the co-debtors the share or portion due by him is subject to the prescription of five years provided by Article 2260 (4) C.C. The claim of the holder against the signers, based upon a promissory note, is, at its origin, of the nature of a commercial matter; and the co-debtor who has paid it in full, having thus been subrogated in the rights of the creditor by operation of the law as to the share or portion of the note due by of his co-debtors, has therefore acquired himself a claim of the nature of a commercial matter against such codebtor.
PUBLIC DOMAIN.
"PUBLIC
WORK" - Claim against Dominion Government for damage by fire through alleged negligence of persons employed in project organized and executed by Dominion Government.. 263 RAILWAYS-Trainman killed while engaged in switching operations-Damages- Liability of railway company........ 290
2-Negligence - Motor Vehicle - Accident-Damages.................
See 6.
3-Street railways-Negligence.... 433
REAL PROPERTY-Action for reconveyance of land-Claim by defendant in respect of improvements made thereon- Right to relief-Parties-Joinder of defendant's wife as party defendant.]- Under an arrangement executors of a deceased's will and C., the executors delivered a deed of conveyance
(absolute in form but not intended to operate as an absolute conveyance) of certain land of deceased's' estate to
C., who, pursuant to the arrangement, mortgaged the land and turned over the proceeds to the executors for use in the administration of the estate.
C. was given an option to purchase, but if he did not exercise it within the time fixed he was to reconvey the land to the executors. C. did not exercise the option as such; but, bona fide believing though erroneously (as found at trial and by this
Court), that the result of certain later negotiations was (or, per Davis J., was so close to as to make practically certain)
a sale to him of the land, made considerable improvements thereon. He resisted the present action for a reconveyance, and alternatively claimed in respect of the improvements. Held: (1) C. must reconvey the land and account as to rents, profits, etc.
(2) C. should be paid from the estate such amount as the land had been enhanced in value by said improvements.
(3) The action as against C.'s wife, who, on the claim for reconveyance, had been made a defendant, should be dismissed. Per Crocket and Kerwin JJ.:
The facts that C. had had the legal title in himself (though subsequently transferred to the mortgagee), and bona fide believed that he had become the purchaser, under which belief he made the improvements, brings him within s. 36 of The Conveyancing and Law of Property Act,
R.S.O., 1937, c. 152. Per Davis J.: Good faith (found to exist in this case) is at the basis and of the essence of a claim for compensation in respect of improvements such those made by
Plaintiff's action was plainly a claim for an equitable right in the land (the legal estate had been conveyed to C. for the purpose of putting on the mortgage and
REAL PROPERTY-Concluded had then passed to and remained in the mortgagee, and it was the beneficial ownership that plaintiff sought to be established), and the relief given to C. in respect of the improvements was one which a court of equity had the power to give under all the facts and circumstances of the case. C.'s wife could have no right to dower in the land, which was held by C. in trust for deceased's estate (the only basis upon which a reconveyance to the estate was sought), and therefore (on the plaintiff's own claim) was not a party.
REVENUE-Sales tax-Petition of right to recover money paid to the Crown for sales tax-Goods sold and delivered- Special War Revenue Act, R.S.C., 1927, c. 179, secs. 86, 87, 87 (d), 105.]-By certain contracts entered into between the suppliant and His Majesty the King, represented by the Minister of Public Works for the province of Quebec, the suppliant undertook to erect the struetural steel superstructure of three bridges in that province, in consideration of the sums set out in each contract. suppliant erected the three bridges and was paid according to the contracts. In respect of the materials incorporated in the bridges, suppliant was assessed for sales tax, alleged due under the terms of the Special War Revenue Act, R.S.C., 1927, c. 17 and amendments. It paid under protest a proportion of the amounts so assessed to the Commissioner of Excise. The suppliant then claimed by way of a petition of right before the Exchequer Court of Canada a return of the moneys so paid on the grounds that no tax was payable by it in respect of the materials supplied in virtue of the contracts or, alternatively, that, if the materials were taxable, suppliant was entitled to a refund by reason of the fact that the materials were sold, if sold at all, to His Majesty the King in the right of the province of Quebec. Held, that the above transaction between the suppliant and the Crown in right of the province of Quebec must, by force of section 87 (d) of the Special War Revenue Act, be deemed to be a sale and that the suppliant was rightly chargeable accordingly for a sales tax. (The King v. Fraser Companies, [19311 S.C.R. 490 applied); but Held, also, that the suppliant was entitled to a refund of the money paid to the Crown appellant, pursuant to s. 105 of The Special War Revenue Act. The "transaction" in this case involved translation of the property in the goods to the provincial government, and, taking the provisions of sections 86 and 87 into account as a whole, such transaction must be deemed to fall within REVENUE-Concluded section 105.
"Goods" are "sold" within the meaning of that section when there is a sale that is such solely by force of the statutory declaration that it shall be deemed to be a sale for the purposes of the statute.
Section 105 is part of the statute transactions within declaration are, therefore, deemed to be sales for the purposes of the section.
Canada ([1939] Ex. C.R. 235) affirmed.
KING
.
....................
SALE OF GOODS-Contract-Damages
1986, c. 250, s. 66 (2) (8)-Damages based estimated loss of profits.]-The plaintiff's action was for damages for breach by defendants of an alleged contract (which contract was disputed by defendants)
to sell to plaintiff 50,000 gallons of wine.
The trial judge found that there was a verbal contract made
(to the effect claimed) based upon, but varying in some respects, certain written documents; that a. 17 of the Statute of
Frauds did not apply, as pursuant to the contract there were accepted and actually received three carloads of wine as part of the 50,000 gallons; that s. 4 of the
Statute of Frauds was not a bar to the action, as, though the parties expected that all deliveries would not be made within one year, yet, as the purchaser (plaintiff)
might, if it saw fit, accelerate deliveries, there was a contract which was not incapable of being performed within a year.
As to damages, he held that s. 56 (3) of the Sale of Goods Act, R.S.B.C., 1936, c. 250, had no application, as there was no available market where plaintiff could have procured wine to fill the contract;
that s. 56 (2) contained the rule to be applied, namely, that the measure of damages was the estimated loss directly and naturally resulting, in the ordinary course of events, from the sellers' breach of contract; that plaintiff was entitled to recover the profits which it might have been expected to make on the sale of the wine which defendants did not deliver;
on which basis, and accepting as a guide a certain estimate as to profits given in evidence, but also considering elements involved and making allowances, he fixed
The Court of Appeal
British Columbia reversed his judgment, holding that the documents and other evidence did not establish or support a contract such as that claimed.
appealed. Held: On the documents and other evidence (and in view of the trial
SALE OF GOODS-Continued judge's findings on issues of fact involving questions of credibility) there was a contract established for sale of 50,000 gallons of wine as claimed. S. 17 of the Statute of Frauds had no application, there having been acceptance and actual receipt by plaintiff of goods under the contract. S. 4 of the Statute of Frauds was not a bar to the action, for the reasons (supra) given by the trial judge. His judgment on the question of damages (supra) for breach was not impeachable on the ground that he erred in the principle he applied or in the manner of his application of it to the particular facts. (As to the canon applicable by an appellate court as to assessment of damages made at trial, McHugh v. Union Bank of Canada, [1913)
A.C.
299, at 309, RIcHMOND SIMPSON AL........................ 2-Purchaser claiming damages for alleged breach of conditions implied by a. 15 of Sale of Goods Act, R.S.O., 1937, c. 180-"Goods supplied under a contract of sale"-Sale of acetylene gas supplied in tank-Explosion of tank in purchaser's garage-cause of explosion-Evidence- Findings of trial judge-Pleadings- Allowance of amendment at trial-Effect and scope of pleadings as amended.]- Defendant, a manufacturer and distributor of acetylene and other gases, had delivered to plaintiff two tanks (or "cylinders") containing acetylene gas which plaintiff required (to defendant's knowledge) use in plaintiff's garage.
Plaintiff had purchased from defendant the acetylene gas, but when it was used was to return to defendant the tanks (which defendant had purchased from the manufacturer thereof) and (for retention after 30 days) pay a rental therefor.
(A time limit was fixed for return but had not expired when the accident in question occurred). Some time after said delivery, one of said tanks, which tank had not been used since delivery, exploded (whether from defect therein or from some immediately prior volume explosion or other external cause in the garage, plaintiff had been working at a welding operation, was a matter in dispute), and plaintiff was injured and his property damaged. He sued for damages. In his statement of claim he alleged that the explosion was caused by negligence of defendant "in storing under compression acetylene gas in a defective and unsafe tank, the bottom part of which, not being properly and securely welded and affixed to the remaining portion, suddenly and violently separated from it with the resulting explosion." There was no proof of any such improper or insecure welding. By amendment allowed at the trial, SALE OF GOODS-Continued plaintiff added in his statement of claim a plea that he purchased the gas and hired the tank, having made known to defendant the purpose for which they were required and relying upon defendant's skill or judgment, the gas and tank being goods which it was in the course of defendant's business to supply; that the gas was purchased and the tank hired by description; that "the said gas and/or tank were not reasonably fit for the purpose for which they were sold and/or hired and were not of merchantable quality" and that plaintiff's damages were the direct and proximate result thereof.
The trial judge found that the explosion
"was due to some defect in the internal structure or set-up of the cylinder, using the words in their widest application"
and "that the cylinder exploded by reason of extremely high internal pressure only, due to some internal structural defect,"
and gave to plaintiff
This judgment was reversed by the Court of Appeal for Ontario,
([19391 Ont. W.N. 367; [19391 4 DL.R.
199) which held, on their view as to the issue raised by the pleadings and the lack of proof to support plaintiff on that issue, it was not open to the trial judge to enter upon a consideration of all the possible causes of the explosion or "to find that the explosion was due to some unknown defect in the cylinder not alleged by the plaintiff, and the nature of which the evidence does not disclose."
appealed. Held (Rinfret and Kerwin JJ.
dissenting): Plaintiff's appeal should be allowed at trial restored. Per curiam: Said amendment to plaintiff's pleadings at the trial having regard to the proceedings, discussions, and offering of terms to defendant, properly allowed, and plaintiff's pleadings, so amended, covered a claim founded in contract generally for breach of conditions implied under s. of the Sale of Goods
Act, R.S.O., 1937, c. 180. Per Crocket,
Davis and Hudson JJ.:_ Upon all the evidence there was warrant for the trial judge's finding as to the cause of the explosion and (though on the printed record a doubt as to such cause might exist in the minds of an appellate court)
his finding should not be disturbed; and on that finding, and as the facts essential to give rise to the conditions implied by said s. of the Sale of Goods Act were established, plaintiff was entitled to judgment for damages. Though the tank was not actually sold but only the acetylene gas contained therein, yet both were "goods supplied under a contract of sale" within the meaning of said s. 15 of the Sale of Goods Act. Geddling v. Marsh,
[1920] 1 K.B. 668, cited.
Per Rinfret and Kerwin JJ. (dissenting)
: Upon the
SALE OF GOODS-Concluded evidence, the cause of the explosion of the tank in question was a prior volume explosion; and whether that was so or not, there was not sufficient in the evidence to warrant the inference that the tank (assuming, but not deciding, that said s. 15 of the Sale of Goods Act applied to it) and its contents were not reasonably fit for the purpose for which they were intended or that they were not of merchantable quality.
PEopLE's Co. LTD...... 3---Conditional sale.
SALE OF LAND-Action by vendor to recover from purchaser balance of purchase price-Inability of vendor to convey title because title lost through purchaser's default in covenant to pay taxes.] the vendor under an agreement for sale of land is unable to convey title to the land he cannot, by an action for enforcement of covenant, recover from the purchaser the balance of the purchase price, even though the vendor's inability to convey title is because his title was lost in consequence of default (known to the vendor) by the purchaser in his covenant to pay the taxes on the land (and, per the Chief Justice and Kerwin J., even though the purchaser had taken possession and accepted the vendor's title, or even if there were a primary obligation on the purchaser to the municipality to pay the taxes). But, semble, the vendor may have a right of action against the purchaser for damages for breach of the covenant to pay the taxes.
Royal Trust Co. v. Kennedy, S.C.R. 602, applied.
Co. LTD.... SALES TAX.
SHIPPING-Yacht stranded-Refusal by owner of offer to haul it off the shore- Alleged contract with master of yacht to pull yacht off-Claim for salvage services-Whether yacht in imminent danger or distress-Liability of owner of yacht.] pleasure motor yacht, while on a cruise from Galveston, Texas, to Nova Scotia, stranded on the southwest coast four or five miles northeast of Yarmouth on a smooth ledge at approximately high tide; and at low tide, she was lying practically high and dry with but a foot or two of water under her stern.
The owner of respondent yacht refused an offer made by the master of the appellant vessel to haul the yacht off the shore on the next tide for S1,000. Later on the same day, the managing 77()
SHIPPING-Concluded owner of the appellant vessel went in to the respondent yacht to negotiate with the yacht's master, knowing that the owner was staying at a hotel in Yarmouth, and offered to tow the yacht off and look to the insurance underwriters for his compensation, with the understanding that he would not hold the owner or the master of the yacht responsible for any charge. The master of the yacht accepted this offer.
Unknown to either the owner or the master of the yacht, the policy of insurance did not cover her while in Canadian Atlantic waters.
The yaoht was floated easily at high tide, was towed to Yarmouth and, some days later, proceeded under her own power to Halifax where it was found she had sustained practically no damage.
The trial judge found that the respondent yacht was in distress and danger, that the services rendered by the appellant vessel were voluntary and in the nature of salvage and he awarded compensation to appellant.
On -appeal, the
Exchequer Court of Canada held that the respondent yacht was not, at the time the services were rendered, in any imminent danger or distress, and dismissed -the appellant's action. Held that the dismissal of the appellant's action by the Exchequer Court of Canada ([1935]
Ex. C.R. 181) should be affirmed. According to the facts and circumstances of the case as found by the President of the
Exchequer Court of Canada, it has not been established that the yacht was at the time the salvage services claimed by the appellants were rendered, in any imminent danger or distress within the meaning of the Admiralty rule; and, therefore, the appellants rendered no services which can properly be regarded as salvage services in the sense of that rule. The Pretoria (5 Lloyd
L.R. 112) disc.
Moro
Shanalian
Dr. Brinkley II... 578
STATUTES-As to particular statutes dealt with, see under appropriate subject headings, throughout the index.
SUBSTITUTION.
See Wnr..
TAVERN-Refusal to serve beer to coloured persons-Damages .........
TRADE MARK-Alleged infringement of trade mark " Coca-Cola" by use of trade mark " Pepsi-Cola "--Counterclaim against registrations of " Coca-Cola
Delay and acquiescence-Burden with regard to confusion-Tests by comparison- Joining of descriptive words into compound word.]-4Plaintiff, The Coca-Cola Company of Canada, Ltd., and defendant, Pepsi-Cola Company of Canada Ltd., were each incorporated under the Dominion Companies Act, plaintiff in 1923, defendant in 1934.
Plaintiff claimed to be the owner of the .trade mark "Coca-Cola," to be applied to the sale of non-alcoholic beverages and syrup for the preparation thereof, which was registered in Canada, in distinctive script form, in 1905, registration being renewed in 1930, and was further registered in Canada, not in distinctive script but in ordinary typewritten form, in 1932. (In argument in this Court it was sought to support this latter registration by s. 28 (1) (b) of The Unfair Competition Act, 1982, a position not taken on the pleadings).
claimed to be the owner of the trade mark " Pepsi-Cola," to be applied to the sale of a non-alcoholic beverage, which was registered in Canada, in distinctive script form, in
906, and renewed in Plaintiff in 1936 brought action against defendant, claiming infringement of its trade mark by the use of defendant's trade mark. Defendant attacked the validity of plaintiff's trade mark and by counterclaim sought cancellation of the registrations thereof. Held: Plaintiff's action for infringement should be dismissed (judgment of Maclean J., [1938] Ex. C.R. 263, reversed). Defendant's attack against plaintiff's trade mark fails, except that this Court makes no order on defendant's counterclaim in respect of plaintiff's registration in 1932; subject to that, the counterclaim is dismissed. Per The Chief Justice and Rinfret, Davis and Hudson JJ.: Though "coca" and "cola" is each a descriptive word, it does not follow that a trader cannot join them into a compound which, written in a peculiar script, constitutes a proper trade mark. (In re Crosfield, [1910] 1 Ch. 130, at 145-6. and other cases, cited). If there ever was any legitimate ground for impeaching the 1905 registration of "cocacola," there has been such long delay and acquiescence -that any doubt must now be resolved in its favour. It would be a matter of grave commercial injustice to cancel the registration which has stood since 1905 and become widely used by As to defendant's contention that one of plaintiff's courses of dealingselling its syrup to some 80 different bottling concerns throughout Canada who add carbonated water according to standard instructions and then bottle the beverage and sell it as coca-cola to retail dealers-constitutes a public use of the word "coca-cola" as the name of a particular beverage and an abandonment of the word as a trade mark for the product of a particular manufacturer:-There may be some force in that contention, but the evidence at the trial was not developed sufficiently on this branch of the case to show explicitly how these bottling concerns or the retail dealers who purchased from them actually sold the beverage, and if said course of dealing were to be relied upon as an abandonment by plaintiff of its trade mark, the facts should have been plainly established.
had not established a claim for infringement from defendant's use of the trade mark "Pepsi-Cola." In the general attitude taken by plaintiff, its objection really went to the registration by any other person of the word "cola" in any combination, for a soft drink; and if such objection were allowed, then would virtually become the possessor of an exclusive proprietary right in relation to the word "cola"; and to this it was not entitled. (In this connection it was held that 30 certificates of registration of trade names or trade marks in which the word "cola" or "kola" in some form was used were admissible as some evidence of the general adoption of the word in names for different beverages or tonics.)
It cannot be said by tests of sight and sound that "Pepsi-Cola" bears so close a resemblance to "Coca-Cola" as to be likely to cause confusion in the trade or among the purchasing public.
Each case depends upon its own facts.
In the present case further circumstances that might be taken into account were:
that "Pepsi-Cola" as a registered trade mark in Canada had stood unimpeached since and the evidence disclosed that pepsin and cola flavour actually formed part of the ingredients of the beverage manufactured and sold by defendant as pepsi-cola; that no application in objection to defendant's corporate name was made by plaintiff following upon defendant's incorporation;
there was no evidence that anyone had been misled, and where a defendant's trade is of some standing the absence of any instance of actual confusion may be considered as some evidence that interference is unnecessary.
Under all the circumstances of the case, mercial injustice would follow the injunction sought by praintiff against defendant's use of the mark "Pepsi-Cola."
While the rules of comparison for testing an alleged infringement of a registered mark resemble those rules by which the question of similarity on an application for registration is tested, it is necessary to establish a closer likeness in order to make out an actual infringement than would justify the refusal of an application to register; the burden on a plaintiff in an infringement action is to show reasonable probability of confusion, while an applicant for registration must establish, if challenged, the absence of all reasonable prospect of confusion. Cases cited with regard to principles applicable to the use of trade marks included: In re Crosfleld, etc., [19101 1 Ch. 130 at 45-6; the Reddaway case, [19271 A.C. 406, at 413; Hall v. Barrows, 33 LJ. (N.S.) Ch. 204, at 207-8; the Payton case, 17 R.P.C. 628, at 634; the Pianotist 23 R.P.C. 774, at 777; the "Peps" and "Pan-Pep" case, 40 R.P.C. 219, at 223, 224. Per Kerwin J.: A comparison of the words "Coca-Cola"
and "Pepsi-Cola," their appearance in script, and their sound as pronounced and as likely to be pronounced by dealers and users of the wares of the parties, do not indicate that they are "similar" within the definition in s. 2 (k) of The Unfair Competition Act, 1982, (c. 38). The question in each case is one of fact (Johnston v. Orr Ewing, 7 App. Cas. 219, 220, cited), and in this case that question must be answered adversely to plaintiff's claim. Defendant's counterclaim against the 1905 registration of "Coca-Cola"
should be dismissed, but solely on the ground that there is no evidence that would warrant the court declaring that it was not registrable or ordering that the registration be cancelled. In view of s. 28 (1) (b) of said Act (without determining its precise meaning) and of the course that the trial took, neither party should be precluded in a properly framed action from litigating the question whether under s. 28 (1) or otherwise plaintiff could apply for and secure registration of the compound word "Coca-Cola," although the same compound word in script form had already been registered by it as a trade mark; the judgment at trial dismissing the counterclaim's attack against the 1932 registration. should be set aside, and it should be declared that this Court makes no order with respect to it. PEPsi-CoLA ID. v. 2-Action for alleged infringement- Use of surname-Plaintiff's registration of specific trade mark to be applied to named kinds of articles including articles not manufactured or sold by plaintiff but later manufactured and sold by defendant -Effect of agreements-Amendment of trade mark-Right of defendant to use of name-Word mark or design mark- "Design mark"--Condition for reliance upon trade mark as word mark-Distinction of goods-Similarity of goods-Conduct of parties-Production of certified copy of record of registration as conclusive evidence of certain facts-Unfair Competition Act, 1932 (Dom.), c. 88, ss. 2 (c), 2 (k), 2 18, 19, 28 (1), 28 (5) (c), 52; Trade Mark and Design Act, R.S.C. 1927, c. 201, as. 11 (e), 42, and Rules 10, 11, made under s. 42.1-Plaintiff company, which had assignments of patents and patent applications from, and agreements with one Schick, an inventor, registered in Canada on August 3, 1927 (on application dated March 21, 1927), under the
Trade Mark and Design Act (R.S.C. 1927, c. 201), a specific trade mark "'Schick', as per the annexed pattern and application," to be applied to the sale of razors and other articles, including
"shaving machines."
"Shaving machines" (operating by electric motor and without a blade)
were patented by Schick (and called
"Schick dry shavers") in November, 1928;
there had been and were subsequently agreements between Schick and plaintiff in respect thereto; but plaintiff never manufactured or sold "shaving machines."
In 1930 Schick, who had been released by plaintiff from all obligations relative to shaving machines, assigned his interest in patents and patent applications relating to shaving machines, and granted the sole and exclusive right to use the name
"Schick"
connection with shaving machines, to a company then recently incorporated., which rights, claimed, were subsequently acquired by defendant, Schick Shaver Ltd. Defendant manufactured and sold shaving machines and used the word "Schick" in association therewith.
Plaintiff (and its co-plaintiff, to which it had assigned its said trade mark) brought action in 1938, claiming that defendant had infringed its trade mark. Defendant, by counterclaim, asked
(inter alia) that plaintiff's trade mark be modified to exclude therefrom shaving machines.
By the judgment in the
Exchequer Court (Maclean
J., [19392
Ex. C.R. 108) the registration of plaintiff's trade mark was amended by striking therefrom the words "shaving machines";
plaintiff's action was dismissed, except that defendant was restrained from using the word "Schick" otherwise than in a way specified.
Plaintiff appealed from the judgment. Defendant cross-appealed, asking removal of said restraint.
Held:
Plaintiff's appeal should be dismissed and defendant's cross-appeal allowed. Per the
Chief Justice and Hudson J.: Plaintiff could not rely upon its trade mark as a word mark unless, at all events, it had established that the word "would at the date of registration have been registrable independently of any defined form or appearance and without being combined with any other feature" (Unfair Competition Act, 1982, c. 38, s. 23 (5) (c) ).
No attempt was made to comply with that condition.
Moreover, of the Rules made under authority of s. 42 of the
Trade Mark and Design Act (R.S.C. 1927, c. 201), it is not seriously open to dispute that the registration of plaintiff's trade mark was a registration under R. (of surname "presented in a distinctive form, or accompanied by a distinctive device") and not under R. 10 (registration of surname upon evidence that the mark has "through long-continued and extensive use thereof in Canada acquired a secondary meaning, and become adapted to distinguish the goods of the applicant"); it would have been difficult to the point of practical impossibility to show that the surname "Schick" had in its very brief period of use prior to the application for the trade mark become distinctive in Canada of the applicant's wares in the sense of R. 10. R. 10 was validly made and was intended to, and did, give effect to s. (e) of the Trade Mark and Design Act, which provided for refusal of registration "if the so-called trade mark does not contain the essentials necessary to constitute a trade mark, properly speaking" and thus imposed a condition for valid registration
(Canadian Shredded Wheat Co. Ld. v. Kellogg Co. of Canada Ld., 55 R.P.C. 125).
It follows that plaintiff's mark was only a "design mark having the features described in the application therefor but without meaning being attributed to the words" (s. 23 (5) (c) of the Unfair Competition Act, 1988)-"a trade mark consisting of an arbitrary and in itself meaningless mark or design" (s. 2 (c) of that Act, defining "design mark"); it is in this sense only that plaintiff could have any exclusive rights in respect of its trade mark; it has no exclusive rights in respect of the use of the surname "Schick" because for the purpose of determining its rights the letters in its mark are to be emptied of all such meaning; the design is the only thing which plaintiff is entitled to have protected; and defendant is entitled to use the name "Schick", provided that its design is not the same or "similar" (as defined in s. 2 (k) of that Act) to plaintiff's design; and the evidence quite failed to establish such sameness or similarity.
On the evidence, "shaving machines" are recognized by the trade as entirely distinct from any goods made or sold at any time by plaintiff and it cannot be rightly affirmed that at the date of registration of plaintiff's mark it was carrying on or had any intention of presently carrying on any business which included the manufacture or sale or dealing in or with such machines in the trade mark sense.
The trade mark registered was a specific trade mark and, as the trade mark of plaintiff, it could not, in the circumstances, have any meaning as applied to such machines. Plaintiff could not have a trade mark in respect of such machines within the meaning of the provisions of said Trade Mark and Design Act, and consequently its registered mark was not valid in relation to such goods. It was not established (as a basis for alleged infringement of plaintiff's mark, even as amended by striking out "shaving machines") that "shaving machines" are goods similar to the goods in which plaintiff deals, within the tests of similarity set forth in s. 2 (1) of the Unfair
Competition Act, 1982. Moreover, as regards the whole issue of infringement, plaintiff's conduct in permitting until a quite recent date the Schick companies to use the name "Schick" in connection with their goods justifies the conclusion that it was not seriously apprehensive of any risk of confusion that could be of any commercial importance. With regard to plaintiff's contention based on es. 18 and
23 (1) of the Unfair Competition Act, that the production of a certified copy of the record of registration was conclusive evidence of certain facts, questions as to the meaning and effect of those enactments were discussed; but decision on those questions was deemed unnecessary because (1) plaintiff's argument left untouched the point that its mark was a design mark and the consequences thereof;
and (2) ss. and of said Act must be read together, and as "it appears"
(s. 19) from the undisputed facts that plaintiff was not entitled to register its mark as a trade mark for shaving machines, effect must be given to s. 19 against plaintiff's contention. Per Kerwin
J.: Even if plaintiff was entitled to rely upon s. of the Unfair Competition Act, s. 18 must be read in conjunction with s.
Defendant is entitled to succeed on its counterclaim that said registration plaintiff's trade mark should be amended by striking therefrom the words "shaving machines" and therefore the foundation of plaintiff's action disappears. It appears from the history and the agreements (discussed in the judgment) of Schick, plaintiff company, and the companies bearing Schick's name, that plaintiff's registration
"does not accurately express or define"
(s. 52 of said Act) plaintiffs existing rights with reference to shaving machines, and that the rights to manufacture and sell shaving machines and use the name "Schick" as a trade mark in connection therewith is now vested in defendant company, which is, therefore, an interested party under s. 52 of said Act and is entitled to the order made by the Exchequer Court amending the plaintiff's registration as aforesaid.
Per Taschereau J.: In view of the fact that the articles which were understood to be referred to by the words
"shaving machines" were not patented until after registration of plaintiff's trade mark, and in view of the agreements
(discussed in the judgment)
Schick and plaintiff company and of the
TRADE MARK-Concluded transactions of Schick and the companies bearing his name, plaintiff's registration, in so far as it covers "shaving machines", is irregular and should be amended by striking those words from it, and defendant has the right to use the word "Schick"
connection with such machines.
LTD....................
TRANSFER OF PROPERTY.
USUFRUCT.
See WILL.
WATER-COURSE - Dams - Lease from Government-Order in Council-Flooding of lands-Damages-Jurisdiction to entertain claims-Whether Superior Court or Quebec Public Service Commission-Work connecting two provinces- Watercourse Act, R.S.Q., 1925, c. 46, s. 12.]-The Montreal Engineering Company, later replaced by the Chats Falls Power Company whose name was subsequently changed to that of the respondent company, was authorized by Order in Council to erect, operate and maintain a dam in the river Ottawa, at Chats rapids, such Order purporting to be given pursuant to sections et seq. of the Quebec Watercourse Act. The appellants, alleging that they were riparian proprietors of certain properties situated west of Chats Falls and although admitting that the water level of the river was not in consequence of these works raised above the ordinary high water mark, claimed that they were nevertheless entitled to recover damages in virtue of section of the Watercourse Act on several grounds mentioned in their statement of claim. Section 12 enacts that
The owner or lessee of any such work shall be liable for all resulting therefrom person, whether by excessive elevation of the flood gates or otherwise.
(2) Such damages shall be assessed and fixed by the Quebec Public Service Commission." The respondent contested the appellants' right claim further alleged that the Superior Court had no jurisdiction to entertain the claim under paragraph (2) of section 12. The trial judge dismissed the appellants' action, finding upon the evidence that no damages had been sustained. The appellate court affirmed that decision on many grounds, holding inter alia that the Superior Court had no jurisdiction because such damages should have been assessed by the Quebec Public Service Commission under section of the Act. The appellants also advanced before this Court a new contention that the dam of the respondent WATER COURSE-Continued company, being part of a single work connecting the province of Quebec with the province of Ontario, was, therefore, part of a work which the former province was without legislative competence to authorize. Held that the finding of the trial judge that no damages had been sustained by the appellants should not be disturbed, such finding being amply supported by the evidence. Held, also, reversing the judgment of the appellate court on that point, that under articles
7295 and 7296 of R.S.Q.
Superior Court possessed jurisdiction to entertain an action for damages such as the present and to give judgment for such damages as might be assessed. Section 12 of the present Watercourse Act is not new legislation; similar legislation having been passed in 1856 (19-20 Viet., ch. 104), subsequently appearing as chapter 51 of the Consolidated Statutes of
Lower Canada (1861) and again as articles
5535 and 5536 RS.Q. (1888).
Since the first enactment in 1861, there has been a series of decisions in the province of
Quebec in which it was held that the right to damages given by the statute was one which could be \enforced by action in any competent court; and the legislature of
Quebec by re-enacting in 1888 and again in 1909 the legislation first passed in
1856 and later embodied in chapter 51 of the Consolidated Statutes of Lower Canada (1861) must be taken to have given statutory sanction to the course of decision culminating in the judgment of this
Court in Breakey v. Carter (Cassels Digest, 2nd ed. 463). By force of articles
7295 and 7296 of
R.S.Q.
Superior Court would have been, so long as that legislation remained unchanged, competent to entertain such an action as the present. It must be taken that, by these articles, the legislature declared an action for damages under article 7296 (1)
to be competent in the Superior Court.
Terms more explicit than those contained in paragraph 2 of section would be required to deprive the courts of Quebec of the jurisdiction they possessed under the then existing statute. Subsection 2 of section 7296 R.S.Q. (1909) was providing for the ascertainment of damages by experts; and by enacting section 12 of the Watercourse Act to replace ss. 2 of s. 7296 R.S.Q., the legislature must be deemed not to have taken away the jurisdiction of competent courts. The more natural interpretation of the action of the legislature in enacting section 12 would be that recourse to experts for assessing damages was being replaced by the Public Service Commission and that competent courts had not been deprived of jurisdiction. Held, further, that the appellants' ground of appeal based on the
WATER COURSE-Concluded contention that the dam was part of a simple work connecting the province of Quebec with the province of Ontario was not open to the appellants in this court. Upon the facts, the dam was a work wholly situated within the province of Quebec, constructed there under the authority of a provincial statute and the property in relation to which the appellants allege they had suffered prejudice was also situated in that province. Prima facie, therefore, the reciprocal rights and liabilities of the parties must be governed by the law of that province. It was not alleged in the pleadings that this dam affected the flow of the river south of the interprovincial boundary, and the issues of fact which might have to be considered for the purpose of examining this contention of the appellants are not among the issues to which an order was directed, or which were considered by the courts below, or presented to those courts by the pleadings or otherwise. Judgment of the Court of King's Bench (Q.R. -65 K.B. 504) aff. V. POWER Co........... WILL-Substitution-Legacy of usufruct to grandchildren-Right by substitutes to dispose by will under certain conditions- Lapsing of such legacy-Interpretation- Intention of testator-Arts. 756, 831, 893, 944, 956 C.C.]-By his will in authentic form one L. C. Gravel bequeathed to his wife the usufruct of the remainder and residue of all his estate; and by clause four of his will he bequeathed, subject to his wife's right of usufruct, the remainder and residue of the same property to his daughter, Maria Gravel, wife of Louis Joseph Lajoie, to hold and enjoy as institute, subject to the obligation of delivering over the ownership thereof to her issue in the first degree.
By clause nine of his will he disposed as follows: "It is my will and intention that any substitute inheriting the ownership of my property, in the event of the opening of his legacy, be placed in possession thereof as actual owner only when he has attained the age of thirty, and that until then he have only the use and usufruct thereof, without power to sell, pledge or alienate any part of his share of capital or of realty, while being allowed to dispose thereof by will, in the event of death before attaining such age providing it be in favour of his children of full age or, in default thereof, in favour of any one of the substitutes of his choice under the said substitution, while nevertheless having the right to bequeath the right of enjoyment of his share to his consort, but during widowhood onlir, whether he have issue or not, and in default of such WILL-Continued a will, the share of any of the said substitutes under the said substitution dying while of age but under thirty shall devolve to his children or, in default of children, to the other substitutes under the said substitution, according to the conditions hereinbefore provided in the event of the decease under age of any substitute under the said substitution without leaving issue of full age." L. C.
Gravel's wife died in Montreal on August
16th,
1900, her daughter Maria
Gravel also died in Montreal on September 16th, 1916. By this last decease the substitution created by L. C. Gravel's will became open and the property thereby affected devolved to the seven children of Maria Gravel. Marguerite Lajoie, one of these children, who was one of the substitutes, made on December 13th,
1919, at the age of 24 years and some months, a will in authentic form whereby she disposed of the estate she inherited from her grandfather, in the following terms: "3. Desiring to avail myself of the rights conferred upon me by clause nine of the solemn will of my grandfather, the late Louis Charles Gravel, *
*
* dispose by will of my share in his estate as one of the substitutes under the said will, I give and bequeath to my abovenamed husband the use and usufruct during his lifetime, or until his remarriage, of my share in the said estate of my late grandfather above named, as one of the substitutes under the said will, and to my two sisters Hortense Lajoie and Blanche
Lajoie, in equal parts, the ownership of my said share in the said estate, subject to the said usufruct of my said husband during his lifetime or until his remarriage."
When she made her will Marguerite Lajoie was childless; and it is only on August 21st, 1925, that is at the age of thirty years and nearly ten months, that she gave birth to her first child, Louise Clerk. Marguerite Lajoie, left a widow in 1926 at the age of thirtytwo, married the appellant at the age of thirty-five and died at the age of forty leaving no other will but the one above mentioned. Her lawful heirs, that is, her daughter Louise Clerk and her husband
Oscar Benoit, accepted her succession. In his own name, as well as in his capacity of tutor to his minor daughter, the appellant asked that the bequest to the respondent be declared null and void. Held, reversing the judgment of the Court of
King's Bench (Q.R. 68 K.
117), that clause 3 of Marguerite Lajoie's will was to take effect only in the event of her dying under the age of thirty without leaving any children; and that, this contingency not having occurred, the legacy dependent upon it remained without effect: it lapsed from the moment that
WILL-Continued the condition to which it was subject was fulfilled
Marguerite Lajoie's attaining the age of thirty.-In order to determine "what was the real intention of" the testatrix, a "fair and literal meaning" must be given to the terms and expressions which she used to manifest it (Auger v. Beaudry, [1920] A.C. 1010); and in doing so, the conclusion must be that the testatrix did not intend to avail herself of the unlimited right to dispose by will and the general power conferred upon her by the Civil Code, but that she only wished to "avail herself of the rights" conferred upon her by her grandfather's will, i.e., that she wished merely to provide for the contingency arising in the event of her dying before the age of thirty years. v. LAJOIE..... 2-Construction-Provisions for benefit of testator's wife and direction that "all income taxes which may be payable in respect of" said provisions "shall be paid out of my estate by my trustees"-Wife receiving income from other sources also -Extent of indemnification by the trustees in respect of wife's income taxes, in view of effect of taxing Acts in increasing rate of tax on gradual scale as amount of net income increases, in imposing surtax, and in treating sum paid by trustees for income tax as part of wife's income.]- By clause 3 of the testator's will, he gave and devised to his trustees his residence in Toronto known as "Castle Frank" upon the following trusts: During his wife's lifetime, so long as she remained his widow, and so long as she desired to use Castle Frank as her residence, they were to keep it up in suitable condition; pay all taxes, insurance, repairs, etc.; allow her to occupy it free of rent (the furniture, etc., were given to her outright); bear the expense of maintenance and management, to cover the cost of which they were to pay her $2,250 monthly. If she should cease to occupy it as her home, she was to be paid $75,000 out of the general estate, the monthly allowance of $2,250 should cease and in lieu thereof she was to be paid S2,000 monthly during her widowhood. After the testator's death she continued to occupy Castle Frank as her residence and home. Clause 4 of the will directed (inter alia) that " all income taxes which may be payable in respect of the said above provisions for my wife shall be paid out of my estate by my trustees." The testator's wife received also under the will (clause 16) a portion of the residuary estate and the income
(not given free from income tax), during life and widowhood respectively, from two other portions thereof. Also she had income of her own. Under WILL-Continued the income taxing Acts, the tax is computed by applying, to the whole net income of the tax-payer, rates which increase on a gradual scale as the amount of the net income increases, and by imposing a surtax on incomes exceeding a certain amount. Therefore the testator's widow paid a higher rate because of the addition of her benefits under clause 3 of the will (so far as they were assessable as income against her) to her income from other sources. Also, under said taxing Acts, the sum paid by the trustees for income tax as directed by clause 4 of the will, is treated as part of her income.
The questions in issue arose under said clauses 3 and 4 of the will and had to do with the extent to which the testator's widow was entitled to be indemnified by the trustees in respect of income taxes assessed against her. Held: The trustees must repay to the testator's widow under clause 4 of the will only such proportion of the whole of the income tax assessed against her in respect of each year's income under each Statute imposing an income tax upon her income, as the total amount expended or paid out in such year by the trustees under the provisions of clause 3 and of clause 4 of the will (to the extent that the same is or is deemed to be assessable as income against her under the provisions of such Statute)
bears to the total amount which is or is deemed to be assessable as income against her in such year under the provisions of such Statute. (Rinfret and Davis JJ. did not feel justified in taking a contrary view to the judgments in In re Bowring,
[1918] W.N. 265, and the Fleetwood- Hesketh case, [19291 2 K.B. 55, which, though not binding on this Court, carry the greatest weight. Were it not for those judgments, they would have held
(as was held by MeTague J., [19391
O.R. 59, before whom the questions came in the first instance) that the amount of the allowance to the testator's widow for maintenance and management of Castle
Frank (which under the will are paid upon a condition) should not increase the burden of her income taxes beyond the amount which she would have had to pay in any year, were such allowance not received by her). Judgment of the Court of Appeal for Ontario, [1939] O.R. 245, varied to the extent that (by effect of above holding) the trustees must (subject to the principle of an apportionment as above) indemnify the testator's widow against any tax payable in respect of the sum paid by the trustees under clause
4 of the will for income tax. (The holding below that the deductions and exemptions allowed under the taxing Acts are to be calculated as belonging to and
WILL-Concluded intended for the exclusive benefit of the testator's widow-subject to an apportionment by consent, with regard to deductions in respect of charitable donations -was not disturbed). IN 353 WORDS AND PHRASES - ........ 2-"
Actual cash value
3-----"Design mark"............... 4-"
Gross negligence".......... 5-" Owner's policy
6- " Public work
263, 325 See 2, 3.
WORKMEN'S COMPENSATION ACT- New Brunswick statute of c. 86, section 7-Injury sustained by a girl stenographer operating embossing machine- Whether an "accident" within the meaning of the Act.]-The respondent employed as a stenographer in the credit department
Irving
Oil
Company, Limited at Saint John, N.B., from March, 1938, until the end of March, 1939.. In December, 1938, in the course of her employment, she was asked to operate a new hand-embossing machine for making addressograph plates. The first morning she operated it she complained to the office manager that the machine was too heavy for a girl to operate, and that the first night she noticed a sore spot in her back, notwithstanding which she operated the machine again the next day. About two weeks or so later, she was again called upon to operate the machine and did so for two days or so. In the meantime, while employed about other office work, the sore spot continued. In consequence of her condition, she consulted several doctors and eventually had to undergo an operation. Section 7 of the New Brunswick Workmen's Compensation Act, ch. 36 of 1932, reads as follows: "When personal injury or death is caused to a workman by accident, arising out of and in the course of his employment in any industry within the scope of this part, compensation shall be paid to such workman or his dependents, as the case may be, as hereinafter provided
* * *." On June 5th, 1939, the respondent applied to the Workmen's Compensation -Continued
Board for compensation. The Board disallowed the claim on the ground that there was not sufficient evidence that the injury claimed for had been caused by an accident.
On the submission of a further statement, the Board held an investigation with the result that the
Board, upon a reconsideration of the entire case, made a new ruling and found:
" 1. That the personal injury of which the appellant
(now respondent)
plains arose out of and in the course of her operating their embossing machine in her employment within the scope of
Part I of the said Act (The Workmen's
Compensation Act,
1933, ch.
36 and amendments) and 2. That the said injury
WORKMEN'S COMPENSATION ACT was not caused by accident." The respondent having obtained permission to appeal to the Appeal Division of the Supreme Court of New Brunswick, that Court allowed the appeal and held that the injury caused to the respondent was caused by accident within the meaning of the Workmen's Compensation Act. Held, affirming the judgment of the appellate court (14 M.P.R. 499), that the personal injury, which the respondent suffered in the course of her operating the machine, was an accidental injury within the meaning of the statute. T.EED ................
,
INTERPRRTATION
1.-Dans les rigles suivantes, A moins que le contexte ne s'y oppose, I'expression "juge" ou "juge de la cour" signifie tout juge de la Cour supreme, et I'expression "juge de la Cour supr8me en chambre" ou "juge en chambre" comnrend aussi le registraire si6aeant en chambre en vertu des pouvoirs h lui ,onf6r6s par les rigles 82 A 89 inclusivement.
2.-Dans les rigles ci-dessous, les expressions suivantes ont les significations particulibres qui leur sont attribubes outre leurs diverses significations ordinaires, k moins que, dans le sujet ou contexte, il ne se trouve quelque chose qui s'oppose A une telle interpr6tation, savoir:
(1) Les mots 6crits au singulier comprennent le pluriel, et les mots 6crits s.u pluriel comprennent le singulier;
(2) Les mots qui impliquent le genre masculin comprennent les personnes du sexe f6minin;
(3) L'expression "partie" ou "parties" comprend un corps politique ou constitu6 en corporation, ainsi que Sa Majest6 le Roi et le Procureur g6n6ral de Sa Majest6;
(4) L'expression "affidavit" comprend une affirmation;
(5) L'expression "la loi" signifie "la Loi de la Cour supreme";
(6) L'expression "mois" signifie le mois civil lorsqu'il n'est pas fait de mention sp6ciale des mois lunaires.
MOTIONS EN ANNULATION D'APPEL
3.-En tout temps apris qu'une ordonnance est rendue en conformit6 de la Loi de la Cour supreme, acceptant le cautionnement exig6 par la loi, I'intim6 peut demander h la cour une ordonnance en annulation d'appel.
RkGLE 4.-Lorsque l'appel est annul6, I'appelant peut, A la discretion de la cour, 6tre enjoint de payer la totalit6 ou une partie des frais de l'appel.
5.-Apris signification d'un avis de motion en annulation, toutes les proc6dures ultdrieures de I'appel sont suspendues jusqu'A ce qu'il ait t6 dispos6 de la motion, sauf ordonnance contraire de la cour ou d'un juge.' Une semblable motion doit 6tre inscrite pour audition sans retard 6vitable.
LE DOSSIER IMPRIM DOIT RENFERMER LES NOTES DU JUGEMENT 6.-Le dossier imprimb privu par la Loi de la Cour supreme et portant en attestation le sceau de la cour dont appel est interjet6 doit tre produit au bureau du registraire, et en plus des proc6dures mentionn6es dans ladite loi, il doit invariablement renfermer une transcription de toutes les opinions ou notes h l'appui du jugement prononc4 par les juges du tribunal ou des tribunaux inf6rieurs, ou un certificat sign6 par le greffier de ce tribunal ou de ces tribunaux ou un affidavit attestant que cette transcription ne peut Stre obtenue, et mentionnant les d6marches faites pour l'obtenir.
7.-Le dossier imprim6 doit aussi renfermer une copie de tous les jugements rendus par les tribunaux infirieurs, ainsi qu'une copie de toute ordonnance prorogeant le d6lai d'appel que peut avoir rendue le tribunal inf6rieur ou un juge dudit tribunal.
LE DOSSIER IMPRIM
PEUT RTRE REMIS AU TRIBUNAL INFARIEUR 8.-La cour ou un juge de ]a Cour supreme en chambre peut ordonner le renvoi du dossier imprim6 au tribunal inf6rieur pour y 6tre corrig6 ou compl6t6 par l'addition de toute pikce suppl6mentaire.
MOTION EN ANNULATION D'APPEL POUR RETARD
9.-Si l'appelant ne produit pas son dossier imprim6 en appel au bureau du registraire dans les quarante jours aprbs la r6ception du cautionnement privu par la loi, il est consid~rd comme ne poursuivant pas convenablement son appel, et l'intim6 peut demander le rejet de l'appel conform6ment aux dispositions de la loi h cet 6gard.
CERTIFICAT DE CAUTIONNEMENT
10.-Lorsqu'un cautionnement a 6t6 fourni h la cour dont appel est interjet6, le dossier imprim6 doit 6tre accompagn6 d'un certificat scell6 par la cour inf6rieure attestant que I'appelant h fourni un cautionnement convenable h la satisfaction de la cour dont le jugement est port6 en appel, ou d'un juge de ladite cour, et indiquant la nature du cautionnement au montant de cinq cents dollars, tel que requis par la loi. Est jointe au certificat une copie de toute obligation ou autre document en vertu duquel le cautionnement peut 6tre fourni.
LE DOSSIER DOIT RTRE IMPRIMP ET TRENTE EXEMPLAIRES DRPOSS AU BUREAU DU REGISTRAIRE
11.-L'appelant doit faire imprimer le dossier et en d6poser trente exemplaires au bureau du registraire, A l'usage des juges et des fonctionnaires de la cour.
2. Dbs que le dossier est imprim6, le procureur de l'appelant, sur demande, doit en faire parvenir trois exemplaires au procureur .de l'intim6.
FORMAT DU DOSSIER IMPRIME
12.-Le dossier imprim6 doit avoir le format demi-quarto. II doit tre imprim6 sur du papier de bonne qualit6, sur un seul c6t6 de la feuille, les pages imprim6es se trouvant h la gauche. Le caractere cic6ro (pica) doit 8tre employd (cependant le petit romain (long primer) est utilis6 pour les 6tats de comptes et les tableaux). Le format du dossier imprim6 est de onze pouces sur huit pouces et demi, et chaque dixibme ligne est num~rotee h la marge. Chaque page imprimbe doit avoir 47 lignes ou environ et comporter au moins 500 mots. 2. Lorsque des temoignages sont imprimbs, chaque page doit porter un en-tete 6nongant le nom du timoin et par qui il est cit6, et indiquant que la deposition est un interrogatoire, un contre-interrogatoire, ou selon le cas.
3. Tous les documents imprim6s ou 6crits produits comme pices sont r~unis et imprim6s au dossier dans 1'ordre chronologique, et quand plusieurs documents ont t produits au tribunal inf6rieur A titre de pice unique, ils doivent, pour les fins du dossier, Utre consid6rds comme pi~ces distinctes. 4. Les plaidoiries 6crites, jugements et autres documents sont imprim6s in extenso, sauf dispense du registraire.
5. La page liminaire indique le nom de la cour et de la province d'o 6mane l'appel, ainsi que l'intitul6 de la cause avec le nom de l'appelant en premier lieu, comme suit:
A. B.
(Demandeur ou d6fendeur, selon le cas.)
Appelant. (D6fendeur ou demandeur, selon le cas.)
Intimg.
Sont aussi ajout~s les noms des procureurs et correspondants.
6. Lorsque le dossier excide 300 pages, il doit 6tre reli6 en volumes distincts d'au plus 200 pages environ chacun.
7. Le prix fix6 pour I'impression de 30 exemplaires selon ]a forme prescrite par les pr6sentes rbgles ne doit pas excider 50 cents pour chaque 100 mots imprimbs dans une page de cicdro (pica) ou son 6quivalent, mais, dans certains cas, il est loisible au registraire d'accroitre ce montant.
8. Le d6but du dossier comporte une table alphab6tique 6nongant en d6tail tout le contenu du dossier en quatre parties, ainsi qu'il suit:
Partie I.-Chaque plaidoirie 6crite, decision, ordonnance, inscription ou autre document avec sa date, dans l'ordre chronologique.
Partie II.-Le nom de chaque t6moin, en indiquant s'il est cit6 par le demandeur on d~fendeur, son interrogatoire, contre-interrogatoire, ou selon le cas, avec le num6ro de la page.
Partie III.-Chaque pibce avec sa description, sa date et son num6ro, dans l'ordre de sa production.
Partie IV.-Tous les jugements des tribunaux infirieurs, ainsi que les notes A l'appui, et le nom du juge qui les a d6posies.
Lorsque le dossier est reli6 en plus d'un volume, chacun de ces derniers doit renfermer au commencement une table alphabitique de tout le dossier, sauf ordonnance contraire du registraire
9. Sous r6serve de la disposition concernant I'impression des documents dans l'ordre chronologique, si l'appelant le d6sire, le dossier peut tre imprim6 conformiment aux riglements qui s'appliquent aux format et caractare d'imprimerie dans les appels interjet6s A Sa Majest6 en conseil.
LE DOSSIER IMPRIM I NE PEUT PTRE REQU SI LES RRGLES NE SONT PAS OBSERVES
13.-Le registraire ne doit pas recevoir le dossier imprime sans Pautorisation de la cour, ou d'un juge, lorsque l'ordre pricit6 n'a pas 6t6 suivi ou qu'il appert que les fautes d'impression n'ont pas 6t6 convenablement corrig6es, et if n'est pas tax6 de frais pour un dossier non pr6par6 selon les rbgles.
2. Tout dossier produit et chaque exemplaire dudit dossier que les pr6sentes rigles enjoignent de produire sont acoompagn6s d'un certificat (Formule 0), sign6 par un procureur de l'appelant ou son correspondant A Ottawa, attestant que l'imprim6 a t collationn6 sur les originaux et reconnu conforme.
DISPENSE D'IMPRESSION.
DOSSIER ORIGINAL
14.-La cour ou un juge en chambre peut dispenser de l'impression ou de la reproduction de l'un quelconque des documents ou plans faisant partie du dossier.
2. Le dossier original de la cour dont le jugement est port6 en appel ainsi que les pikoes et la preuve documentaire produites dans la cause, doivent 6tre transmis au registraire avec le dossier certifi pr6vu par la loi.
FORMULE DE CONVOCATION SPtCIALE DE LA COUR
15.-L'avis convoquant la cour pour l'audition des appels en matibre d'61ection ou en matibre criminelle, des appels relatifs h l'habeas corpus, ou pour toute autre fin visbe par un article de la loi h cet 6gard, doit tre publi6 par le registraire dans la Gazette du Canada, conform6ment aux instructions du juge en chef ou du doyen des juges puin6s, selon le cas, et y 8tre ins6r6 pendant le ddlai pricidant le jour fix6 pour cette session sp6ciale que ledit juge en chef ou doyen des juges puinds peut prescrire. L'avis peut 6tre selon la Formule A de l'Annexe des prbsentes Rbgles.
AVIS D'AUDITION DE L'APPEL
16.-Apris la production du dossier imprim6, un avis de l'audition de l'appel doit tre donn6 par I'appelant pour la session alors prochaine de la cour, telle que fixe par la loi ou convoquie spicialement pour l'audition des appels conform6ment aux dispositions de ladite loi, s'il y a un d6lai suffisant h cette fin. Si, entre la production du dossier imprim6 et le premier jour de la session alors prochaine, le d6lai ne suffit pas pour permettre A l'appelant de signifier l'avis cidessus prescrit, alors l'avis d'audition doit 6tre donn6 pour la session qui suit la session alors prochaine.
FORMULE DE L'AVIS D'AUDITION
RhGLE 17.-L'avis d'audition peut tre selon la Formule B de l'Annexe des prisentes R~gles.
DtLAI DE SIGNIFICATION
RAGLE 18.-L'avis d'audition doit tre signifi6 au moins douze jours avant le premier jour de la session au cours de laquelle l'appel doit 6tre entendu. MODE DE SIGNIFICATION DE L'AVIS D'AUDITION
19.-L'avis est signifi6 A l'avocat ou procureur qui a occup6 pour l'intim6 au tribunal inf6rieur, A son lieu ordinaire d'affaires, ou h son correspondant d6sign6, ou au domicile 6lu dudit avocat ou procureur en la cit6 d'Ottawa. Si ce dernier n'a pas de correspondant d6sign6 ni de domicile 6lu en la cit6 d'Ottawa, l'avis peut 6tre signifi6 en 'affichant dans quelque endroit bien en vue au bureau du registraire et en en d6posant h la poste le mime jour une copie affranchie et adress6e audit avocat ou procureur.
Lorsque la validit6 d'une loi du Parlement du Canada est contest6e dans un appel A la Cour supreme, il doit tre signifi6 au Procureur gindral du Canada un avis d'audition 6nongant la question de juridiction soulev6e.
3. Lorsque la validit6 d'une loi d'une l6gislature provinciale du Canada eat contest6e dans un appel h la Cour supreme, il doit tre signifi6 au Procureur g~ndral du Canada et au Procureur g6n6ral de la province un avis d'audition 6nongant la question de juridiction soulev6e.
"R IPERTOIRE DES CORRESPONDANTS"
RkGLE 20.-11 est tenu au bureau du registraire de cette cour un livre intitul6 "R6pertoire des correspondants" dans lequel les avocats, procureurs, avouis et avouis-procureurs exergant prbs la Cour supreme peuvent inscrire le nom d'un correspondant en la cit6 d'Ottawa (ledit correspondant ayant lui-m~me droit d'exercer A ladite cour), ou 61ire un domicile en ladite cit6.
D] CLARATION DE L'APPELANT OU INTIMt QUI COMPARAIT EN PERSONNE
21.-Si un appelant ou intim6 qui s'est fait repr6senter par avocat ou procureur au tribunal inf6rieur d6sire comparaitre en personne dans l'appel, il doit, dbs que la cour dont le jugement est port6 en appel, ou un juge de ladite cour, a accept6 le cautionnement requis par la loi, transmettre au registraire une declaration en ces termes:
"A. v. B.
"Je, C.D., me propose de comparaitre en personne dans le pr6sent appel. (Sign6) C.D."
SI AUCUNE DRCLARATION N'EST PRODUITE
22.-Si aucune d6claration semblable n'est produite et tant qu'une ordonnance concernant le changement de procureur ou avocat n'a pas 66 obtenue tel que pr6vu ci-apris, le procureur ou avocat qui a comparu pour une partie quelconque au tribunal inf6rieur est cens6 son procureur ou avocat dans I'appel b cette cour.
DRCLARATION DE L'APPELANT OU INTIME QUI CHOISIT DE COMPARAITRE PAR AVOCAT
23.-Lorsqu'un appelant ou intim6 a comparu en personne au tribunal inf~rieur, il peut choisir de comparaitre dans l'appel par ministbre d'avocat ou de procureur. En ce cas, I'avocat ou le procureur doit produire une d6claration b cet effet au bureau du registraire, et dis lors toutes les pikes de proc6dure sont signifi6es audit avocat ou procureur tel que ci-dessus privu.
9LECTION DE DOMICILE PAR L'APPELANT OU INTIMA QUI COMPARAIT EN PERSONNE
24.-Un appelant ou intim6 qui comparait en personne peut, au moyen d'une diclaration produite au bureau du registraire, 6lire un domicile ou endroit en la cit6 d'Ottawa oii tous avis et pices de proc6dure peuvent lui 6tre signifi6s. La signification audit endroit de tous avis et pibces de procndure est r6put~e valable.
25.-Si un appelant ou intim6 qui a comparu en personne devant la cour dont appel est interjet6 ou qui a produit une d6claration sous le regime de la rfgle 21 n'a pas, avant la signification, 6lu un domicile en la cit6 d'Ottawa, toutes les pikces de proc6dure peuvent 6tre signifides par affichage dans un endroit bien en vue au bureau du registraire.
CHANGEMENT D'AVOCAT OU PROCUREUR
26.-Une partie h un appel peut, sur requ~te ex parte au registraire, obtenir une ordonnance pour changer son avocat ou procureur, et apris la signification de ladite ordonnance h la partie adverse, tous les avis et autres pices de proc6dure sont signifi6s au nouvel avocat ou procureur.
SIGNIFICATION PAR SUBSTITUTION
27.-Lorsque la signification personnelle d'un avis, ordonnance ou autre document est requise par les pr6sentes rbgles, ou autrement, et qu'il est d6montr6 A la cour ou h un juge en chambre que l'ex6cution d'une prompte signification personnelle est impossible, la cour ou un juge en chambre rendra l'ordonnance qui peut Atre 6quitable pour signification par substitution ou autre, ou pour la substitution d'un avis h signifier par lettre, annonce publique ou autrement.
AFFIDAVIT DE SIGNIFICATION
28.-Les affidavits doivent mentionner, quand, oii, comment et par qui a t6 effectu6e la signification.
FACTUMS A DfPOSER AU BUREAU DU REGISTRAIRE RhGLE 29.-Au moms quinze jours avant le premier jour de la session h laquelle l'appel doit 6tre entendu, I'appelant et l'intim6 doivent chacun d~poser au bureau du registraire, h l'usage de la cour et de ses fonetionnaires, trente exemplaires de son factum ou de ses motifs de discussion en appel.
TENEUR DU FACTUM
30.-Le factum ou les motifs de discussion en appel doivent comprendre les trois parties suivantes:
Partie I.-Un expos6 concis des faits.
Partie II.-Dans le cas d'un factum de l'appelant, un exposi concis 6nonqant avec clart6 et en d6tail h quel 6gard le jugement est r~put6 erron6. Lorsque la pr6tendue erreur a trait A l'admission on au rejet de la preuve, la preuve admise ou rejetke doit 6tre cit6e au long. Quand l'erreur pr6sum6e se rapporte au r~sum6 des d~bats que fait le juge au jury, le texte de I'allocution du juge et les objections de I'avocat sont 6nonc6s verbatim.
Dans le cas du factum de l'intim6, un expos6 concis des questions en litige dans l'appel et de l'attitude de l'intim6 h leur 6gard.
Partie III.-Un expos6 condens6 des d6bats 6nongant les points de droit ou de fait h discuter, avec renvoi particulier A la page et h la ligne du dossier, ainsi qu'aux autoritis invoquies h l'appui de chaque point. Lorsqu'une loi, rbglement, rigle, ordonnance on statut est cit6 ou invoqu6, il doit en 6tre imprim6 au long toute partie qui peut 6tre n6cessaire b la decision de la cause.
31.-Le factum ou les motifs de discussion en appel doivent 8tre imprim6s dans le format et de la manibre privus ci-dessus pour le dossier imprimb en appel, et ils ne sont recevables par le registraire que s'ils se conforment A toutes les exigences susmentionn6es relatives h ce dossier.
MOTION EN REJET D'APPEL PAR L'INTIMP POUR CAUSE DE RETARD DANS LA PRODUCTION DU FACTUM
32.-Si l'appelant ne produit pas son factum ou ses motifs de discussion en appel dans le d6lai prescrit (Rgle 29), il est loisible h 1'intim6 de demander, sous le r6gime des dispositions de la loi h cet 6gard, le rejet de l'appel pour cause de retard indfi.
L'APPELANT PEUT INSCRIRE EX PARTE SI LE FACTUM N'EST PAS PRODUIT
33.-Si 'intim6 omet de produire, dans le d6lai prescrit, son factum ou ses motifs de discussion en appel, I'appelant peut inscrire la cause pour audition ex parte.
ANNULATION DE L'INSCRIPTION EX PARTE
RhGLE 34.-Cette inscription ex parte peut 6tre rejet6e ou annulie sur requate A un juge en chambre, suffisamment appuy6e par affidavits.
LE REGISTRAIRE SCELLE LES FACTUMS PRODUITS EN PREMIER LIEU
RhGLE 35.-Le registraire doit garder le factum ou les motifs de discussion en appel produits en premier lieu et les sceller; -il ne doit dans aucun cas les communiquer A la partie adverse tant que cette dernibre n'a pas elle-mime apport6 et produit son propre factum ou ses propres motifs.
tCHANGE DE FACTUMS
RkGLE 36.-Dis que les parties ont d~pos6 leursdits factums ou motifs de discussion en appel, chacune d'elles doit, h la demande de l'autre, lui en transmettre trois exemplaires.
LE REGISTRAIRE DOIT INSCRIRE LES APPELS POUR AUDITION 37.-Le registraire doit inscrire les appels pour audition dans un livre qu'il tient h cette fin, au moins quatorze jours avant le premier jour de la session de la cour fix~e pour l'audition de l'appel. Mais nul appel dont le dossier imprim6 n'a pas t6 produit vingt jours francs avant le premier jour de ladite session ne doit 8tre ainsi inscrit sans l'autorisation de la cour ou d'un juge en chambre.
AVOCATS A L'AUDITION
38.-Sauf par autorisation pour des motifs particuliers, chaque partie dans un appel ne peut faire entendre que deux avocats. Un seul a le droit de r6plique.
AJOURNEMENT DE L'AUDITION
39.-La cour peut, h sa discretion, remettre ou ajourner l'audition b une date ult6rieure pendant la mime session, ou h toute session subs6quente. 40.-a) Les appels sont entendus dans l'ordre de leur inscription, et si l'une ou l'autre partie niglige de se pr6senter au jour voulu pour poursuivre ou contester l'appel, la cour peut entendre la partie adverse et rendre jugement sans l'intervention de la partie qui n6glige ainsi de comparaitre, ou elle peut ajourner l'audition aux conditions, quant au paiement des frais ou autrement, qu'elle prescrit.
b) Chaque fois que jugement est rserv6, les avocats occupant pour les parties sont censis assister au prononc6 de ce jugement, et h difaut de cette pr6sence, le prononc6 du jugement peut 6tre diff6r6.
COMMENT SIGNER LES JUGEMENTS
41.-Les ordonnances et jugements de la cour sont d6termin6s et sign6s par le registraire.
DPTERMINATION ET ENREGISTREMENT DU JUGEMENT RhGLE 42.-Le procureur de la partie qui a gain de cause doit obtenir du registraire une convocation pour d6terminer le jugement, et il doit en signifier une copie avec une copie du projet des minutes au procureur de la partie adverse au moins deux jours francs avant la date fix6e pour la d6termination du jugement. Le registraire doit v6rifier, de la manibre qu'il croit utile, que les minutes du jugement et I'avis de convocation ont t6 dfiment signifids.
RhGLE 43.-Si, aprbs convocation du registraire, une partie manque de se pr6senter lors de la d6termination d'un projet de jugement, le registraire peut proc6der en I'absence de ladite partie au riglement du projet.
44.-Si la partie qui a gain de cause ndglige ou refuse d'obtenir une convocation pour d6terminer les minutes du jugement, le registraire peut confier la conduite des proc6dures A la partie adverse.
RhGLE 45.-Le registraire peut ajourner A la date qu'il croit convenable toute convocation pour determiner le projet d'un jugement ou ordonnance, et les parties qui se sont pr6sent6es A la convocation sont tenues d'assister sans autre avis A cette convocation ajourne.
46.-Nonobstant les rigles pr6c6dentes, le registraire doit, chaque fois que la cour ou un juge l'estime opportun, d6terminer tout jugement ou ordonnance sans convocation et sans avis aux parties.
47.-Une partie micontente des minutes du jugement telles que d6termin6es par le registraire peut demander h la cour de les modifier aprbs avoir signifi6 au procureur de la partie adverse un avis de motion de deux jours francs. Ladite motion est inscrite pour audition A la session de la cour la plus rapprochie et la plus commode.
Toutefois, A moins qu'un juge de la Cour supreme n'en ordonne autrement, ladite motion ne saurait suspendre l'inscription du jugement si le registraire est d'avis qu'elle est futile ou causerait un prdjudice d6raisonnable A la partie qui a gain de cause. Cette motion doit reposer seulement sur le motif que les minutes telles que d6termindes, pour une ou plusieurs raisons sp6cifides dans l'avis de motion, ne concordent pas avec le jugement prononc6 par la cour ou qu'une question qui aurait dti tre d~cid6e a t6 oubli6e ou omise accidentellement du jugement ainsi prononc6.
RhGLE 48.-Chaque jugement doit porter la date du jour auquel il a tb prononc, sauf ordonnance contraire de la cour, et it devient op6rant h compter de cette date. Toutefois, sur autorisation sp6ciale de la cour ou d'un juge, un jugement peut 6tre antidat6 ou postdat6.
49.-Chaque jugement ou ordonnance dans une cause ou affaire enjoignant h une personne d'accomplir un acte y prescrit doit sp6cifier 1'6poque, ou le d-lai aprbs la signification du jugement ou ordonnance, pour l'accomplissement dudit acte; et sur toute copie du jugement ou de l'ordonnance A 8tre signifi6e A la personne tenue de s'y conformer, il doit 6tre inscrit un m6morandum ainsi congu ou A l'effet suivant, savoir: "Si vous, ledit A.B. nomm6 aux prbsentes, n6gligez de vous conformer au present jugement (ou A la pr~sente ordonnance) dans le d6lai y prescrit, vous devenez sujet A une procedure en execution aux fins de vous contraindre h vous y conformer."
ADDITION DE PARTIES PAR DtCLARATION OU AUTREMENT 50.-Dans chaque cas non deji privu par la loi oii ii devient n6cessaire d'ajouter, comme appelante ou intimbe, une partie additionnelle h l'appel, que cette proc6dure s'impose par suite du dicks ou de l'insolvabilit6 d'une partie ddjh inscrite, ou 'pour toute autre cause, cette partie additionnelle peutt tre ajout6e h l'appel par la production d'une declaration qui peutt tre selon la Formule C de l'Annexe des prisentes R~gles.
2. Dans tout appel, la cour peut, sur ou sans la requite de l'une des parties, ordonner qu'il soit ajout6 une partie ou des parties intim6es, lorsque, de l'avis de la cour, une telle ordonnance est juste, opportune et n6cessaire pour lui permettre de juger et r6gler efficacement et complitement la question en jeu dans I'appel, et lorsque, d'apris les faits produits devant elle, la cour est d'avis que ladite partie ou lesdites parties intim6es auraient da ftre ajouties par le tribunal dont la decision fait l'objet de l'appel.
Ladite ordonnance doit 6tre ridig6e dans les termes et doit contenir les instructions pertinentes que la cour estime &quitables.
LES D]1CLARATIONS PEUVENT RTRE REJET9ES
RhGLE 51.-La cour ou un juge peut, sur motion, rejeter la d6claration mentionnie h la rbgle pr6c6dente.
SIGNIFICATION DE L'AVIS
52.-L'avis de production de cette d6claration doit 6tre signifi6 b I'autre partie ou aux autres parties dans I'appel.
DtCISION DES QUESTIONS DE FAIT DPCOULANT D'UNE MOTION 53.-Sur une motion tendant A faire rejeter une d6claration, la cour ou un juge peut, h discretion, ordonner que soient entendus les timoignages devant un fonctionnaire ad hoc ou prescrire que les parties proc6deront devant le tribunal comp6tent pour y faire juger et decider toute question; en pareil cas, toutes les proc6dures en appel peuvent tre suspendues jusqu'aprbs I'audition, et l'adjudication sur ladite question.
MOTIONS
54.-Toutes requites interlocutoires en appel doivent s'effectuer par voie de motion appuy6e par des affidavits A produire au bureau du registraire. L'avis de motion est signifi6 au moins quatre jours francs avant la date de l'audition.
Les affidavits et pikoes devant servir h une motion doivent 6tre produits au bureau du registraire au moins deux jours francs avant I'audition de la motion. L'avis de motion doit 6noncer au long les motifs qu'elle invoque. Dans les motions en annulation pour d6faut de comp6tence, une copie des plaidoiries 6crites et des jugements des tribunaux inf6rieurs doit faire partie des mat6riaux d6posis.
55.-Cet avis de motion peut 8tre signifi6 A l'avocat ou procureur de la partie adverse en en remettant une copie au correspondant disign6, ou au domicile lu de l'avocat ou procureur A qui il est adress6, en la cit6 d'Ottawa.
Si l'avocat ou procureur n'a pas de correspondant d6sign6 ou n'a aucun domicile 61u en la cit6 d'Ottawa, si une partie A qui doit 8tre signifi6 I'avis de motion n'a pas 61u de domicile dans la cit6 d'Ottawa, cet avis de motion peut 6tre signifi6 en en affichant une copie dans quelque endroit bien en vue au bureau du registraire de cette cour.
AFFIDAVITS A L'APPUI D'UNE MOTION
56.-La signification d'un avis de motion doit 8tre accompagn6e de copies des affidavits produits A l'appui de la motion.
INSCRIPTION DES MOTIONS
57.-Les motions A pr6senter h la cour doivent tre inscrites sur une liste ou papier et avoir la prisdance sur l'audition des appels le premier jour d'une session quelconque et le premier jour de chaque semaine oft la cour est en session.
INTERROGATOIRE SUR AFFIDAVIT
RhGLE 58.-Une partie qui d~sire contre-interroger un timoin qui a fait un affidavit produit pour le compte de la partie adverse peut, avec l'autorisation d'un juge en chambre, signifier h la partie qui a produit cet affidavit, ou h son procureur, un avis par 6crit demandant la production du t6moin pour contreinterrogatoire devant le registraire on un commissaire autoris6 h diftrer les serments et ddsign6 par ce juge en chambre. Ledit avis est signifi6 dans le d6lai que le registraire peut prescrire sp6cifiquement; et h moins que ce t6moin ne soit produit en cons6quence, son affidavit ne peut servir A la preuve que si ]a cour ou un juge en chambre l'autorise sp~cialement. La partie qui produit ce t6moin pour 6tre contre-interrog6 n'est pas admise h r~clamer de celle qui exige cette production les d6penses occasionn6es en premier lieu, sauf autorisation du registraire.
ABANDON DE L'APPEL POUR CAUSE DE RETARD
RkGLE 59.-A moins que l'appelant n'inscrive l'appel pour audition dans Yannie qui suit la reception du cautionnement, l'appel est cens6 avoir t6 abandonn6 sans que soit n6cessaire une ordonnance de rejet, sauf si la cour ou un juge en ordonne autrement, et le registraire, h la demande de l'intim6, peut taxer les frais et 6mettre un certificat d'annulation.
INTERVENTION
RhGLE 60.--Sur autorisation de la cour ou d'un juge, une personne int6ress6e dans un appel entre d'autres parties peut y intervenir aux termes et conditions et avec les droits et priviliges que la cour ou le juge peut prescrire.
2. Les frais de cette intervention sont pay~s par la partie ou les parties, selon que l'ordonne la Cour supreme.
61.-Aucun appel ne doit tre entendu de nouveau, sauf avec l'autorisation de la cour sur requ~te sp6ciale, ou A la demande de la cour. DESISTEMENT
RkGIm 62.-Lorsque l'appelant a donn6 un avis de d6sistement A 1'intim6, ce dernier est admis A faire taxer ses frais par le registraire sans aucune ordonnance, A moins que l'avis de d6sistement ne soit signifi6 apris que 1'appel a t inscrit pour audition A la Cour supreme.
Dans le dernier cas, la cour doit rendre F'ordonnance, quant aux frais et autrement, qu'elle juge approprice.
RkGLES APPLICABLES AUX APPELS DE
LA COUR DE L'RCHIQUIER
63.-Les rigles pricitbes s'appliquent aux appels 6manant de la cour de 1'Echiquier du Canada, sauf dans la mesure la Loi de la cour de PEchiquier - le prescrit autrement.
LES RRGLES NE S'APPLIQUENT PAS AUX APPELS
EN MATIARE CRIMINELLE NI
D'HABEAS CORPUS
64.-Sauf les prescriptions ci-dessus, les rigles prdcities ne s'appliquent pas aux appels en matibre criminelle ni aux appels en matibre d'habeas corpus pr6vus A 1'article 57 de la loi.
DOSSIER DANS LES APPELS EN MATIERE CRIMINELLE ET D'HABEAS CORPUS
65.-Les appels en matibre criminelle peuvent 6tre entendus sur un dossier 6crit ou dactylographi6 et certifib sous le sceau de la cour dont le jugement est port en appel, lequel dossier doit renfermer tous les jugements et opinions prononc6s par les tribunaux infirieurs. L'appelant doit aussi produire sept exemplaires dactylographi6s ou imprim6s du dossier, et I'appelant et l'intim6 doivent produire chacun sept exemplaires d'un m6moire des motifs de discussion, sauf dans la mesure oii le registraire en accorde la dispense.
2. Dans les appels en matibre d'habeas corpus prevus h 1article 57 de la loi, il est produit un dossier imprim6 ou dactylographi6 renfermant les mat6riaux qui se trouvaient devant le juge dont la d6cision est port6e en appel, ainsi que le jugement dudit juge et un m6moire des motifs de discussion de Pappelant et de I'intim6, sauf dans la mesure oil le registraire en accorde la dispense, et sept exemplaires desdits dossier et m6moire doivent 6tre d6pos6s au bureau du registraire.
QUAND PRODUIRE LE DOSSIER
RkGLE 66.-A moins d'un ordre contraire de la cour ou d'un juge en chambre, le dossier 6crit ou dactylographi6 dans les appels en matibre criminelle et en matibre d'habeas corpus aux termes de Particle 57 de la loi, doit 6tre produit quinze jours francs avant celui de la session de la cour oii l'appel doit 6tre entendu.
67.-Dans les appels en matibre criminelle et dans les appels en matibre d'habeas corpus pr6vus & 1'article 57 de la loi, avis de l'audition doit 6tre signifi6 au moins cinq jours avant celui de la session oil Pappel doit 6tre entendu.
APPELS EN MATIPRE D'tLECTION
68.-Sauf dispositions contraires de la Loi des 6lections f6d6rales contestbes et des trois rigles suivantes, les Rbgles de la Cour supreme, dans la mesure oii elles sont applicables, s'appliquent aux appels en matibre d'6lections contest6es.
69.-Dans les appels en matibre d'61ections contesties, I'appelant doit obtenir du registraire, sur paiement des droits ordinaires pr6vus h cette fin, une copie certifide du dossier ou la partie dudit dossier qu'un juge en chambre peut ordonner d'imprimer, et faire imprimer quarante-cinq exemplaires de ladite copie certifi6e selon la forme privue aux pr6sentes pour le dossier dans les appels ordinaires. Dis que l'impression est termin6e, iI doit en communiquer au registraire trente-cinq
(35) exemplaires imprimbs, dont trente (30) A l'usage de la cour et de ses fonctionnaires, et cinq (5) h 1'usage de 'intim6. Le registraire doit les remettre, sur demande h cette fin, h 1'intim6, A son procureur ou h son correspondant d~sign6.
2. Pour l'impression dans les appels en matibre d'61ection, i1 est accord6 sur taxation les mimes allocations que pour 1'impression du dossier dans les appels ordinaires.
FIXATION DE LA DATE D'AUDITION
70.-Dis que le registraire a regu le dossier imprim6 dfiment certifi6 par le greffier de la cour a quo, 1'appelant, aprbs avis, doit demander h un juge en chambre de fixer une date pour l'audition et d'inscrire 'appel. Apris d6faut d'une semaine, l'intim6 peut demander l'annulation de 1'appel.
DISPENSE D'IMPRESSION DU DOSSIER OU FACTJM DANS LES APPELS EN MATIPRE D'ILECTION
RAGLE 71.-Dans les appels en matibre d'6lection, un juge en chambre, sur requfte de 'appelant ou de l'intim6, peut rendre une ordonnance dispensant de l'impression de la totalit6 ou d'une partie du dossier, et peut aussi dispenser de la transmission d'un factum ou des motifs de discussion en appel. HABEAS CORPUS
72.-Les requites pour brefs d'habeas corpus ad subjiciendum se formulent par voie de motion 6, l'effet d'obtenir une ordonnance qui, si le juge le prescrit, peut 6tre rendue ex parte d'une manibre absolue pour 1'mission du bref en premier lieu; ou le juge peut ordonner une assignation pour '6mission du bref et, A sa discr6tion, dif6rer la requfte h la cour. Cette assignation et cette ordonnance peuvent ftre selon les Formules D et E 6noncies respectivement A l'Annexe des pr~sentes R~gles.
73.-Si une assignation est accord6e pour l'6mission du bref, une copie doit en 6tre signifide au Procureur g6n6ral de la province dans laquelle a 6t6 4mis le mandat d'incarc6ration, et elle est rapportable dans le d6lai que l'assignation prescrit.
74.-Lors du d6bat provoqu6 par I'assignation pour l'mission d'un bref, le juge, A sa discretion, peut prescrire que soit ridig~e une ordonnance pour la lib6ration du prisonnier au lieu d'attendre le rapport du bref. Ladite ordonnance constitue une autorisation suffisante pour le ge6lier, constable ou autre personne de libbrer le prisonnier.
75.-Le bref d'habeas corpus doit, si possible, 6tre signifi6 A la personne meme a qui it est adress6.
Si la chose est impossible ou si le bref est adress6 h un ge6lier ou autre fonctionnaire public, la signification s'effectue en remettant le bref h un serviteur ou reprisentant de la personne qui a op6r6 l'emprisonnement ou la contrainte par corps, A l'endroit oil le prisonnier est incarcr6 ou emprisonn6.
Si le bref est adress6 A plusieurs personnes, I'original est communiqu6 on remis A la personne principale, et des copies sont signifibes ou remises A chacune des autres personnes de la mime manibre que le bref. Ce bref d'habeas corpus peut 6tre selon la Formule F 6nonc6e h l'Annexe des pr~sentes R~gles.
76.-Si la personne h qui est adress6 un bref d'habeas corpus ne s'y conforme pas, le juge ou la cour, sur un affidavit de signification et de disob6issance, peut 6tre saisie d'une demande d'arrft pour risistance au tribunal. L'affidavit de signification peut tre selon la Formule G 6nonce A l'Annexe des pr6sentes Rbgles.
77.-Le rapport du bref d'habeas corpus doit renfermer une copie de tous les motifs de l'incarc6ration du prisonnier inscrits sur le bref ou sur une feuille de papier d6tachie y annex~e.
78.-Avec l'autorisation de la cour ou d'un juge, le rapport peut 6tre modifi6 ou remplac6 par un autre.
79.-Lorsque le bref d'habeas corpus est rapport6, lecture est donn6e du rapport en premier lieu, puis est pr~sentie la motion pour la lib6ration du prisonnier ou pour son renvoi h une autre audience, ou pour modifier ou annuler le rapport.
QUESTIONS DRF RRES
80.-Lorsqu'une question est dif~rde A la cour par le gouverneur en conseil ou par la Commission des transports du Canada, le registraire ne doit inscrire l'affaire que sur les instructions et l'ordre de la cour ou d'un juge, aprbs avis h tous les int6ress6s. Toutes les parties h la question dif6rde produisent ensuite leurs factums de la manibre, selon la forme et dans le d6lai prescrits pour les appels A la cour.
APPELS DES DPCISIONS DE LA COMMISSION DES TRANSPORTS 81.-Lorsqu'un appel est interjet6 d'une d6cision de la Commission des transports du Canada, conformiment aux dispositions de la Loi des chemins de fer, I'appel a lieu sur un dossier dont les parties conviennent, on advenant un d6saccord, que la Commission ou son president doit r6gler, et le dossier doit renfermer la d6cision qui fait I'objet de l'opposition, et ce qui des affidavits, de la preuve et des documents est n6cessaire pour soumettre la question h la d6cision de la cour.
2. Les rigles 1 h 62 de la Cour supreme, les deux inclusivement, s'appliquent aux appels 6manant de la Commission des transports du Canada, sauf dans la mesure la Loi des chemins de fer le prescrit autrement.
82.-Sauf I'octroi des brefs d'habeas corpus et la d6cision sur ces derniers, ainsi que l'octroi des brefs de certiorari, le registraire peut accomplir toute chose et exercer toute autorit6 et juridiction b cet 6gard qu'un juge de la cour sidgeant en chambre, en vertu d'une loi ou coutume ou conform6ment h Ia pratique de Ia cour, pouvait, le 23e jour de juin 1887, ou, par la suite, aurait pu accomplir, effectuer ou exercer.
RhGLE 83.-Si le registraire est d'avis qu'une question est du ressort d'un juge, il peut la lui d6f6rer, et le juge peut Ia d6cider ou la renvoyer au registraire avec les instructions qu'il croit utiles.
84.-Sous r6serve de la rbgle 86, une ordonnance ou d6cision rendue par le registraire si6geant en chambre est aussi valable et ex6cutoire pour tous les int6ress6s que si elle avait t6 rendue par un juge en chambre.
85.-Le registraire signe toutes les ordonnances rendues par lui si6geant en chambre.
86.--Sauf dispositions contraires des pr6sentes Rigles, quiconque est l6s6 par une ordonnance ou decision du registraire peut en appeler b un juge de la Cour supreme.
87.-Les appels interjetis d'une decision du registraire A un juge de la cour s'effectuent par voie de motion apris qu'un avis 6nongant les motifs d'opposition a t6 signifi6 dans les quatre jours qui suivent Ia d6cision formant 'objet de la plainte et deux jours francs avant la date fix6e pour l'audition de la motion, ou signifi6 dans tout autre d6lai qu'un juge de ladite cour ou le registraire peut accorder.
88.-Les appels interjets d'une decision du registraire A un juge de la cour sont pr6sentes pour audition le premier lundi qui suit I'expiration des d6lais pr6vus A la rbgle pr6c6dente, ou dbs qu'ils peuvent tre entendus par Ia suite, et inscrits au plus tard le samedi pr6c6dent dans un registre tenu h cette fin au bureau du registraire.
89.-Pour l'exp6dition des affaires sous le r6gime des pr~sentes Rgles, le registraire, h moins qu'il ne soit absent de Ia ville ou empich6 par la maladie ou autre cause valable, doit si~ger tous les jours juridiques, sauf durant les vacances de Ia cour, h dix heures du matin ou h toute autre heure qu'il peut d6signer au besoin par un avis affich6 dans son bureau.
HONORAIRES A VERSER AU REGISTRAIRE
90.-Les honoraires mentionnis dans Ia formule H 6nonc6e h 'Annexe des pr6sentes Rgles sont vers6s au registraire sous forme de timbres pr&par6s h cette fin.
FRAIS
91.-Les frais de l'appel entre parties sont tax6s conform6ment au tarif d'honoraires mentionn6 dans la Formule I 6nonc6e h I'Annexe des pr6sentes Rigles.
92.-La cour ou un juge peut ordonner le paiement d'une somme fixe pour les frais au lieu de prescrire le paiement de frais b taxer.
93 -Lorsque, en vertu d'une ordonnance ou d'instructions de Ia cour, d'un juge, ou autrement, une partie admise A recevoir des frais est susceptible d'en payer h une autre, le registraire peut taxer les frais que cette partie est ainsi susceptible de payer et peut en op6rer le remaniement par voie de d6duction ou de compensation, ou, s'il le juge h propos, il peut retarder I'allocation des frais que cette partie est en droit de recevoir jusqu'd ce qu'elle ait pay6 ou offert les frais qu'elle est susceptible de payer; ou ce fonctionnaire peut allouer ou certifier les frais a payer et en ordonner le paiement, et la partie qui y a droit peut les recouvrer de la meme manire que peuvent 6tre recouvr6s les frais dont le paiement a t6 ordonn6.
94.-Le registraire peut, lorsqu'il le juge & propos, r6server une question d6coulant de la taxation des frais A la d6cision d'un juge.
RhGLE 95.-Pour les fins de toute proc6dure dont il est saisi, le registraire a le pouvoir et l'autorit6 de d6f~rer des serments et d'interroger des timoins et, quant h la taxation des frais, il est autoris6 k demander la production des livres, papiers et documents qu'il estime n6cessaires.
RhGLE 96.-Quiconque est micontent de l'admission ou du rejet par le registraire de la totalit6 ou d'une partie des item que renferme un m6moire de frais tax6 par dernier, peut, en tout temps avant la signature du certificat d'admission de frais ou h toute date ant6rieure que le registraire peut fixer dans un cas quelconque, remettre A l'autre partie qui y est interess6e et pr6senter au registraire, par 6crit, les motifs qu'il y a de s'opposer b cette admission ou A ce rejet, en y sp6cifiant au moyen d'une liste r6dig6e dans une forme brbve et concise les item ou parties d'item contest6s, ainsi que les motifs et raisons de ces objections, et dbs lors il peut demander au registraire d'en reviser la taxation. S'il le juge i propos, le registraire, en attendant I'Ptude de ces objections, peut 6mettre un certificat de taxation ou d'admission de frais pour le solde du m6moire de frais ou h compte, et tel autre certificat de taxation ou d'admission de frais qui peut 6tre n6cessaire apres qu'il aura rendu sa decision sur ces objections.
RkGLE 97.-Sur une requite A cet effet, le registraire doit consid6rer et examiner de nouveau sa taxation h la lumibre desdites objections, et il peut, s'il le juge opportun, admettre d'autres preuves b leur 6gard.
98.-Une partie micontente du certificat d'admission de frais par le registraire h 1'6gard d'un item qui a fait l'objet d'une opposition comme susdit, peut, dans les deux jours qui suivent la date du certificat d'admission de frais, ou dans tout autre d6lai que le registraire peut accorder lorsqu'il signe le certificat d'admission de frais, interjeter appel h un juge de la Cour supreme de la taxation relative audit item, et le juge peut alors 6mettre l'ordonnance qui lui parait 6quitable; mais le certificat d'admission de frais par le registraire est d6finitif et p6remptoire quant A toutes les matibres qui ne sont pas contest~es de la manibre susdite.
99.-Cet appel doit 6tre entendu et d6cid6 par le juge sur la preuve qui aura produite devant le registraire, et il ne doit 6tre regu aucune preuve suppl6mentaire pour son audition, A moins que le juge ne l'ordonne autrement; les frais dudit appel sont A la discr6tion du juge.
100.-Il n'est pas nicessaire, en aucune circonstance, qu'un intim6 donne avis de motion par voie de contre-appel, mais si un intim6 a l'intention, lors de l'audition d'un appel, d'all6guer que la d6cision du tribunal infirieur devrait 6tre modifide, il doit, dans les quinze jours qui suivent la riception du cautionnement, ou dans tout autre dblai que peut prescrire la cour ou un juge en chambre, notifier son intention h toutes les parties qui peuvent y tre intkressdes. Le d6faut de donner ledit avis ne peut en aucune manibre restreindre le pouvoir de la cour, lors de l'audition d'un appel, de consid6rer la cause entibre comme ouverte; mais il peut, A la discr6tion de la cour, constituer un motif pour lajournement de l'appel, ou pour une ordonnance speciale quant aux frais. RGiol
101.-L'intim6 qui donne un avis de contre-appel doit produire au bureau du registraire, et de la manire ci-dessus prescrite quant h l'appel principal, un factum imprim6 ou les motifs de discussion en appel, et les parties A qui ledit avis a 6 signifi6 doivent aussi d6poser leur factum imprim6 de la manibre ci-dessue prescrite A Fi'gard de Pappel principal.
Les parties doivent 6changer entre elles les factums sur le contre-appel, et ce, de la manibre prescrite ci-dessus pour l'appel principal. Le factum sur le contre-appel peut 6tre inclus dans le factum sur 1'appel principal.
TRADUCTION DU FACTUM
RhGLE 102.-Un juge peut exiger la traduction, dans la langue qui lui est la plus familibre, du factum ou des motifs de discussion en appel de toute partie, et enjoindre au registraire de les faire traduire; il doit d6terminer le nombre d'exemplaires de la traduction A imprimer et le d6lai dans lequel ils doivent 6tre 46pos6s au bureau du registraire; la partie qui d6pose ledit factum doit en cons6quence le faire imprimer imm6diatement b ses frais, et elle n'est pas cens6e avoir d6pos6 son factum tant que le nombre requis d'exemplaires imprim6s de la traduction n'a pas td d~pos6 au bureau du registraire.
TRADUCTION DE DtCISIONS ET D'OPINIONS DE JUGES D'UN TRIBUNAL INFRRIEUR
RhGE 103.-Un juge peut aussi exiger que le registraire fasse traduire les d6cisions et les opinions des juges du tribunal inf6rieur. En ce cas, le juge doit fixer le nombre d'exemplaires de la traduction ' imprimer et le dilai dans lequel ils doivent 6tre d6pos6s au bureau du registraire; et ladite traduction doit ds lors tre imprimbe aux frais de l'appelant.
CONSIGNATION EN JUSTICE
RAGrz 104.-Les deniers & consigner en justice doivent 6tre vers6s h la Banque de Montr6al, succursale d'Ottawa, ou A toute autre banque autoris6e par le ministre des Finances.
2. La personne qui consigne des deniers en justice doit obtenir du registraire Finstruction, adresse A la banque, de recevoir les deniers.
3. La banque recevant Pargent au cr6dit d'une cause ou d'une affaire doit ddlivrer h cet effet un r6c6piss6 en double; le premier exemplaire est remis h la partie d6posante, et le second est envoy6 par la poste ou remis le mime jour au 4. Les timbres pour les droits exigibles sur les consignations en justice doivent 6tre appos6s sur le r6c6piss6 que la prisente rigle ordonne d'envoyer par la poste ou de remettre au registraire.
PAYEMENT DE DENIERS HORS DE COUR
RkGim 105.-Si des deniers doivent 6tre pay6s hors de cour, il est n~cessaire d'obtenir b cette fin une ordonnance de la cour ou d'un juge en chambre une fois qu'il en a 6t6 donn6 avis A la partie adverse.
RhGLE 106.-L'argent h verser hors de cour doit l'8tre sur le chque du registraire, contresign6 par un juge.
107.-Aucune proc6dure devant la cour ne peut 6tre rejet6e pour vices de forme.
DeLAI PROROGR OU ABRG
108.-Dans tout appel ou autre proc6dure devant la cour, cette dernibre ou un juge en chambre peut, par ordonnance, proroger ou abr6ger le d6lai imparti pour I'accomplissement de tout acte ou 'introduction de toute proc6dure, aux conditions (le cas 6chdant) que la justice de la cause exige; et cette ordonnance peut 6tre d6cern6e bien que la requite A cette fin ne soit pr~sentie qu'apris 'expiration du d6lai d6sign6 ou accord6.
INOBSERVATION DES RPGLES
RbGI
109.-La cour ou un juge peut, dans des circonstances sp6ciales, soustraire une partie A l'observation de I'une quelconque des dispositions des pr~sentes R6gles.
LE REGISTRAIRE DOIT TENIR LES REGISTRES NCESSAIRES 110.-Le registraire- doit tenir dans son bureau tous les registres appropri6s pour inscrire les procdures de toutes les poursuites et affaires dont la Cour supreme est saisie.
AJOURNEMENT POUR DFAUT DE QUORUM
RGLE 111.-Si, A quelque moment, il n'y a pas en cour le nombre n~cessaire de juges pour constituer quorum, afin d'expidier les affaires dont la cour est saisie, le juge ou les juges alors presents peuvent ajourner la stance au lendemain ou h un jour ultirieur, et ainsi de suite, de jour en jour, jusqu'A ce qu'il y ait quorum.
SUPPUTATION DES DfLAIS
112.-Dans tous les cas oil les rigles pr6c6dentes prescrivent un nombre de jours particulier non sp~cifi6s comme jours francs, leur supputation doit exclure le premier jour et inclure le dernier, A moins que celui-ci ne tombe un dimanche ou un jour d~sign4 par le gouverneur g~n6ral comme jour public de jeine ou d'action de grAces, ou tout autre jour de f8te l6gale ou non juridique pr6vu par les statuts du Dominion du Canada.
RiGLE 113.-Lorsqu'il est fix6 ou accord6, pour accomplir un acte ou intenter une proc6dure, un d6lai limit6 A moins de six jours b. compter d'une date ou d'un 6vinement, les dimanches et autres jours oii les bureaux sont fermis ne doivent pas 6tre comptis dans la supputation de ce d6lai limit&.
114.-Si le ddlai pour accomplir un acte ou faire une proc6dure expire un dimanche ou un autre jour o6 les bureaux sont ferm6s, et qu'en cons6quence cet acte ne puisse 6tre accompli ni cette proc6dure faite ce jour-1, alors, en ce qui concerne le ddlai A son sujet, l'acte est cens6 avoir t6 rigulirement accompli ou la proc6dure r6gulibrement faite si le fait se produit le premier jour oii les bureaux sont ensuite ouverts.
115.-La signification des avis, assignations, ordonnances et autres proc6dures doit se faire avant six heures du soir, sauf le samedi oi elle doit avoir lieu avant deux heures de l'aprbs-midi.
La signification faite apris six heures du soir les jours de semaine, sauf le samedi, est cens6e, aux fins de supputer tout d6lai postkrieur A ladite signification, avoir eu lieu le jour suivant. La signification effectu6e le samedi aprbs deux heures de l'apris-midi est censie, pour les m~mes fins, avoir eu lieu le lundi suivant.
116.-Le greffe de la Cour supreme est ouvert de dix heures du matin h quatre heures de 'aprbs-midi (sauf le samedi oi la fermeture a lieu h une heure) tous les jours de l'ann6e sauf les cong6s statutaires, les grandes vacances et les vacances de Nobl.
2. Pendant les vacances, le greffe est ouvert de dix heures du matin A une heure de 'aprbs-midi.
VACANCES DE NOIEL
117.-Les vacanOes de Noi1 commencent le 15 d6cembre et expirent le 10 janvier.
GRANDES VACANCES
RhGLE 118.-Les grandes vacances comprennent les mois de juillet et d'aoflt.
LES VACANCES DANS LA SUPPUTATION DES DlfLAIS 119.-Il n'est pas tenu compte de la durie des grandes vacances ni des vacances de No@1 dans la supputation des dilais fix6s ou accord~s par les pr~sentes Rigles pour l'accomplissement d'un acte.
BREFS
RkGLE 120.-Un jugement ou ordonnance, pour le paiement de deniers, emis contre toute partie h un appel autre que la Couronne, peut 8tre ex6cut6 au moyen d'un bref de feri facias A l'encontre des biens meubles et d'un bref de fieri facias A 1'encontre des biens immeubles.
121.-Un jugement ou ordonnance enjoignant h une personne d'accomplir un acte autre que le paiement de deniers ou de s'abstenir de tout acte, peut 8tre ex~cut6 au moyen d'un bref d'arr~t ou par mandat de d6pit. 122.-Les brefs de fieri facias h 1'encontre des biens meubles et immeubles doivent tre ex6cut6s selon leur teneur et peuvent 9tre selon la formule J de l'Annexe des pr~sentes Rigles.
RhGLE 123.--Sur le rapport du sh6rif ou d'un autre fonctionnaire, selon le cas, de "biens ou effets non vendus faute d'acqu6reurs", il peut 6tre 6mis un bref de venditioni exponas pour forcer la vente des biens saisis. Ledit bref peut 6tre selon la formule K de l'Annexe des pr6sentes R~gles.
RhGLE 124.-Dans la manibre de vendre et d'annoncer pour vente des biens et effets, le sh6rif ou autre fonctionnaire doit, sauf dans la mesure oi la teneur du bref l'exige autrement, ou sauf dispositions contraires des pr6sentes R~gles, observer les lois de sa province applicables h 1ex6cution de brefs semblables 6manant du plus haut tribunal ou des plus hauts tribunaux de premire instance qui s'y trouvent.
125.-Un bref d'arrit doit 6tre ex~cut6 selon sa teneur.
126.-Aucun bref d'arrit ne doit 6tre 6mis sans une ordonnance de la cour ou d'un juge. II peut 6tre selon la formule L de l'Annexe des pr~sentes R~gles.
RkGLE 127.-Dans les pr6sentes Rgles, l'expression "bref d'excution" comprend les brefs de fieri facias A l'encontre de biens meubles et immeubles, de saisie-arrit, et tous les brefs subsiquents qui peuvent tre 6mis pour leur donner effet. Et 1'expression "6mission d'ex~cution contre une partie" signifie l'6mission de toutes telles procddures contre sa personne ou ses biens applicables en l'espice. 128.-Tous les brefs doivent 6tre pripar6s au bureau du Procureur g~ndral ou par le procureur ou avocat qui les fait 6mettre. Le nom et l'adresse du procureur ou avocat qui les fait 6mettre, et, s'ils sont 6mis par I'entremise d'un repr~sentant, le nom et la risidence du repr6sentant, doivent 6tre inscrits sur ledit bref.
Chacun de ces brefs doit, avant son 6mission, tre scell6 au bureau du registraire et un prcecipe h cette fin est laiss6 audit bureau; dis lors, dans un registre tenu h cette fin au bureau du registraire, il doit 6tre fait une inscription de 1'6mission dudit bref, ainsi que de la date de l'apposition du sceau et du nom du procureur ou avocat le faisant 6mettre, et tous les brefs doivent 6tre attestis comme des jour, mois et un an de leur 6mission. Un precipe pour un bref peut 6tre selon la formule M de 1'Annexe des prdsentes Rgles.
RkGLE 129.-Aucun bref d'ex~cution n'est 6mis sans la production, au fonctionnaire qui l'4met, du jugement ou ordonnance sur lequel il repose, ou d'une ampliation du susdit indiquant la date de 1'enregistrement. Et le fonctionnaire doit v6rifier que le temps requis pour accorder le droit d'ex6cution au cr6ancier en vertu du jugement s'est 6coul6.
RhGLE 130.-Dans toute ex~cution la partie qui y a droit peut pr6lever I'ntir~t, sa commission (poundage fees) et les frais d'ex6cution, en plus de la somme recouvree.
RkGLE 131.-Chaque bref d'excution pour le recouvrement de deniers doit porter h l'endos des instructions au sh6rif on autre fonetionnaire auquel le bref est adress6, de prlever les deniers r6ellement dus et exigibles et dont le recouvrement est recherch6 en vertu du jugement ou ordonnance, en en enongant le montant, et aussi de prilever I'int6rit sur ce montant si le recouvrement en est recherch6, au taux de cinq pour cent I'an, h compter du jour de 1'enregistrement du jugement ou ordonnance.
RkGLE 132.-Un bref d'ex6cution, s'il n'est pas ex~cut6, ne reste en vigueur qu'un an h compter de son 6mission, sauf s'il est renouvel6 de la manibre privue ci-aprbs; mais ledit bref peut, en tout temps avant son expiration, sur autorisation de la cour ou d'un juge, 6tre renouvel par la partie qui le fait 6mettre pour une ann6e A compter de la date de ce renouvellement, et ainsi de suite au besoin pendant la dur6e du bref renouvel6, soit par une annotation h la marge avec une inscription du registraire de la cour, 6nongant les jour, mois et an dudit renouvellement, soit par un avis 6crit dudit renouvellement, donn6 par cette partie au sh~rif, lequel avis est sign6 par la partie ou par son procureur et revftu de la mime inscription. Un bref d'ex6cution ainsi renouvel6 est ex~cutoire et a droit h priorit6 suivant la date de sa d61ivrance initiale.
RkGLE 133.-La production d'un bref d'ex~cution ou de son avis de renouvellement, cens6 porter I'annotation mentionnie h la rbgle pr6c6dente, indiquant qu'il a renouvel6, constitue une preuve primzd facie de son renouvellement.
134.-A l'gard des parties originaires A un jugement ou A une ordonnance, iI peut en tout temps 6tre 6mis une ex6cution dans les six ann6es de l'obtention du jugement ou de la signature de I'ordonnance.
135.-S'il s'est 6coul6 six annbes depuis le jugement ou l'ordonnance, ou qu'un changement se soit produit 'pour cause de d~chs ou autrement dans les parties ayant droit h l'ex6cution ou qui en sont passibles, la partie qui pr6tend y avoir droit peut demander h la cour on h un juge I'autorisation d'6mettre une ex6cution en cons6quence. Et la cour ou le juge peut, s'il est convaincu que la partie requ6rante a droit de faire d6cerner un bref d'ex6cution, rendre une ordonnance . cet effet. La cour ou le juge peut imposer les conditions, quant aux frais ou autrement, qui lui paraissent 6quitables. RhGLE 136.-Une partie contre qui un jugement est prononc6 ou une ordonnance rendue peut demander h la cour ou un juge un sursis d'ex~cution ou autre recours contre ledit jugement ou ladite ordonnance, et la cour ou le juge peut accorder ledit recours aux conditions tenues pour 6quitables.
137.-Un bref peut en tout temps 6tre modifi6 sur une ordonnance de la cour ou d'un juge, aux termes et conditions, quant aux frais et autrement, qui sont tenus pour 6quitables, et toute modification d'un bref peut, par l'ordonnance qui l'autorise, Ztre d6clar6e r6troactive depuis la date de son 6mission ou depuis toute autre date ou d6lai.
138.-Les sh6rifs et coroners ont droit aux honoraires et commissions 6nonc6s dans la formule N de I'Annexe des prsentes Rigles.
139.-L'ordonnance d'un juge en chambre peut tre ex6cut6e de la mime manire qu'une ordonnance de la cour au m~me effet, et il n'est pas n6cessaire, dans aucun cas, qu'une ordonnance d'un juge devienne une d6cision ou une ordonnance de la cour avant son ex6cution.
140.-Aucune ex6cution ne peut tre d6cern6e sur un jugement ou une ordonnance rendue contre la Couronne pour le paiement de deniers. Lorsque, dans un appel, ii peut y avoir un jugement ou une ordonnance contre la Couronne enjoignant le versement de deniers pour des frais ou autrement, le registraire peut, sur requite de la partie ayant droit aux deniers, attester au ministre des Finances la teneur et la port6e du jugement ou de l'ordonnance, et ladite attestation doit 6tre exp6di6e ou d6pos6e par le registraire au bureau du ministre des Finances.
REGISTRAIRE SUPPLPANT
RAGLE 141.-En l'absence du registraire pour cause de maladie ou autrement, le juge en chef ou le juge en chef suppl6ant peut nommer un registraire suppl6ant qui exerce les fonctions du registraire.
Tous les pouvoirs et pr6rogatives attribu6s au registraire peuvent 6tre exerc6s par le registraire suppl6ant.
Dominion du
La Cour supreme tiendra une session sp6ciale en la cit6 d'Ottawa le pour i'audition des causes et 1'exp6dition des autres affaires qui peuvent 6tre porties devant elle (ou pour I'audition des appels en matibre d'lections, ou des appels en matibre criminelle, ou des appels dans les causes d'habeas corpus, ou pour le prononc6 de jugements seulement, selon le cas).
Par ordre du juge en chef ou de M. le juge
P. L.
Dat6 du
FORMULE B (R. 17)
Cour supreme
J. A., appelant, v. A. B., intim6.
Vous tes avis6 que le prbsent appel sera entendu h la prochaine session de la cour, qui aura lieu en la cit6 d'Ottawa, le
A procureur ou avocat de l'appelant, ou appelant en personne.
Dat6 du
FORMULE C (R. 50 (1) )
A. v. B.
Est requise (par suite de d6chs, d'insolvabilit6, ou selon le cas), la mise en cause de
(comme appelant ou intim6) au pr6sent appel. D'habeas corpus ad subjiciendum
Cour supreme
L'honorable juge
Apris lecture des divers affidavits de etc., produits le et aprbs avoir entendu M.
avocat (ou procureur de est ordonn6 que toutes les parties int6ress6es comparaissent devant moi (ou devant I'honorable juge
, ou devant la cour, selon le cas), A l'6difice de la Cour supreme, Ottawa, le h heure de 1' midi, aux fins d'6tablir pourquoi un bref d'habeas corpus ne devrait pas tre &mis enjoignant i de reprbsenter imm6diatement la personne de devant un juge de la Cour supreme, 6difice de la Cour supreme, en la cit6 d'Ottawa, pour etc. Dat6e, etc.
FORMULE E (R. 72)
D'habeas corpus ad subjiciendum
Cour supreme I
J
Apris lecture des divers affidavits de etc., produits le et apris avoir entendu les avocats (ou procureurs des deux parties ou, selon le cas):
Il est ordonn6 qu'un bref d'habeas corpus soit 6mis enjoignant au d'amener la personne de A. B. devant moi (ou l'honorable juge
) h l'difice de la Cour supreme, en la -cit6 d'Ottawa, le heure, pour subir et recevoir, etc....
Dat6e, etc.
FORMULE F (R. 75)
D'habeas corpus ad subjiciendum
VI, par la grce de Dieu, etc...............
h
Nous vous commandons d'amener A la Cour supreme du Canada devant Phonorable juge
, 6difice de la Cour supreme, en la cit6 d'Ottawa, le jour
, la personne de A. B., sous quelque nom qu'il puisse y 6tre d6sign6, que vous d6tenez sous votre garde, ainsi que de r6v61er la date et les causes de son emprisonnement et de sa d6tention, afin qu'il y soit trait6 suivant que Notre Juge, et alors, en d6cidera, et d'y rapporter, l et alors, notre pr6sent bref.
T6moin, etc......
A inscrire.
Par ordre de M. le juge le pr&sent bref est 6mis par, etc....
FORMULE G (R. 76)
D'habeas corpus ad subjiciendum.
Je, A.B., de etc., 6tant dfiment asserment6, jure et declare:
1. J'ai signifi6 personnellement, le h C.D. un bref d'habeas corpus 6mis sous le sceau de cette Honorable Cour, adress6 audit C.D., lui enjoignant de conduire imm6diatement la personne de devant (
) pour subir, etc. (d6crire l'ordre et la partie injonctive du bref) en remettant ledit bref d'habeas corpus audit C.D. en personne, a dans la province d
D6clar6 sous serment, etc....
FORMULE H (R. 90)
Sur I'entr~e de chaque appel .................................
Sur l'enregistrement de tout jugement, d6cret ou ordonnance de la nature d'un jugement d6finitif
.................................
Sur I'enregistrement de tout autre jugement, d~cret ou ordonnance ....
2 00 Sur d6pbt de tout document ou papier............................
Pour chaque recherche
.......................................
Pour chaque convocation ........................................
Pour chaque prorogation d'une convocation, ou requite en chambre. . Les item ci-dessus ne s'appliquent pas aux appels en matibre criminelle ni aux appels en matibre d'habeas corpus d6coulant d'une accusation criminelle.
Pour sceller tout bref (outre le d6pt)
..........................
2 00 Modification de tout document, bref ou autre papier ...............
Pour taxer tout m6moire de frais (outre le dp8t) ................. Pour tout certificat d'admission de frais .........................
Pour chaque fiat
............................................
Pour chaque renvoi, enquate, interrogatoire ou autre matibre sp~ciale d6f6r6e au registraire, pour chaque s6ance n'exc6dant pas une heure
................................................
Pour chaque heure additionnelle ou moins
........................
Pour chaque rapport du registraire sur un tel renvoi, etc............. Pour la consignation de -deniers en justice, ou de deniers d6pos6s au bureau du registraire, jusqu'h $200.00 inclusivement ............ Au-dessus de $200.00, il est vers6 un pourcentage au taux de un pour cent, jusqu'd une somme n'exc6dant pas dix dollars.
R6c6piss6 pour deniers
......................................
Collation, examen et attestation du dossier transcrit pour appel au Conseil priv6 ............................................... Collation de tout autre document, 6crit ou pibce de proc6dure avec l'original vers6 au dossier ou d~pos6 au bureau du registraire, le folio
.................................................
Pour tout autre certificat exig6 du registraire ..................... Pour copie ou tout extrait d'un document, 6crit ou pibce de proc6dure, le folio
..............................................
Pour chaque affidavit, affirmation ou serment d6fir6 par le registraire Pour toute commission ou ordonnance en vue de l'interrogatoire de t6moins ..............................................
FORMULE I (R. 91)
Taxables de partie 6 partie a la Cour supreme du Canada:
Pour I'expos6 de la cause exig6 par l'article 68 de la Loi lorsqu'il est pr6par6 et agr66. par les parties dans la cause, y compris la vacation aupris du juge en vue de la r~gler, le cas 6ch6ant, pour chaque partie .....
............................................ 25 00 Avis d'appel
.............................................
4 00 Sur consentement A un appel direct du tribunal de premibre instance A la Cour suprme
..................................... 3 00 Avis de cautionnement
......................................
2 00 Vacation pour fournir le cautionnement
.........................
3 00 Sur motion pour r6ception du cautionnement, le cas 6ch6ant .......... Sur motion en annulation de proc6dures en vertu de Particle 45, h la discretion du registraire, jusqu'
......
.................... 100 00 Sous reserve d'augmentation sur l'ordonnance de la cour ou d'un juge. Sur motion ex parte dpvant le registraire sidgeant en chambre, y compris les affidavits, etc.
................................... Peut 6tre augment6, h la discr6tion du registraire, jusqu'h, une somme d'au plus .................................................. 15 00 Sur les motions contest6es devant le registraire sidgeant en chambre, y compris les affidavits ......
............................ 15 00 Sous r6serve d'augmentation, h la discr6tion du registraire, dans les cas spiciaux, jusqu'h une somme d'au plus ..................
40 00 Sur motions devant un juge en chambre, y compris les affidavits, etc.. . 20 00 Sous reserve d'augmentation, A la discr6tion du juge, jusqu'h une somme d'au plus
......................................... 100 00 Les honoraires pour motions comprennent toutes les proc6dures pr6liminaires, avis, certificats, correspondances, r6daction d'ordonnance, leur riglement, et leur emission, mais ne comprennent pas les d6bours6s.
Sur les factums, A la discretion du registraire, jusqu' .............. 50 00 Sous reserve d'augmentation sur l'ordonnance de la cour ou d'un juge en chambre.
Pour grossoyer, b l'usage de l'imprimeur, la copie du dossier, tel que r6gl6, lorsque ladite copie grossoybe est r6ellement et strictement nicessaire, le folio de 100 mots ..............................
Pour la correction et la surveillance des impressions, les 100 mots .. . Sur le rejet de l'appel, si la cause n'est pas continu6e, h la discr6tion du registraire, jusqu'
................................
.. 25 00 Sous reserve d'augmentation sur I'ordonnance de la cour ou d'un juge. Declarations aux termes des articles 78, 79 et 80, y compris la copie et la signification
........................................ Avis d'intention de continuer les proc6dures aux termes de l'article 82 4 00 Sur d6p8t de deniers, aux termes de Particle 65 de la Loi des 6lections f6d6rales contest6es
.......................................
2 50 Avis d'appel dans les causes d'6lections limitant I'appel h des questions sp6ciales et d6finies en vertu de Particle 66 de la Loi des lections f6d6rales contest6es
..................................... 6 00 Allocation pour comprendre tous les honoraires au procureur et avocat pour audition de l'appel, A la discr6tion du registraire, jusqu'd . .. 200 00 Sous r6serve d'augmentation sur l'ordonnance de la cour ou d'un juge en chambre.
Pour l'impression des factums, les mimes honoraires que pour l'impression du dossier.
Outre les honoraires du registraire, le fonctionnaire taxateur fixe les frais raisonnables pour affranchissement postal et les d6bours6s n6cessairement encourus dans les proc6dures en appel.
Pour vacation du procureur au prononc6 du jugement .............. 25 00 Allocation, dans tout appel, au repr6sentant dfiment inscrit ......... 25 00 Sous r6serve d'augmentation, pour des circonstances sp6ciales, h la discr6tion du registraire, jusqu'h concurrence de ................ 100 00 Dans les causes ofi les procureurs au dossier sont domicili6s h Ottawa, ces derniers ont droit h la moiti6 de la pr6sente alloca- L'allocation ci-dessus n'est pas cens6e couvrir les services rendus comme avocat-conseil.
ieTi facias
A.B., (Demandeur, ou selon le cas) Appelant, C.D. (D6fendeur, ou selon le cas) Intim6. VI, par la grAce de Dieu roi de Grande-Bretagne, d'Irlande et des territoires britanniques au delh des mers, d6fenseur de la foi, empereur des Indes.
Au sh~rif de
Nous vous commandons de pr6lever sur les biens personnels de C.D., dans votre juridiction, la somme de $ ainsi que l'intir~t sur ladite somme au taux de six pour cent l'an, h compter du
(date du jugement ou de i'ordonnance, ou date a laquelle it est ordonng de payer des deniers, ou date & partir de laquelle i'ordonnance prescrit de compter l'intirdt, selon le cas), lesquels deniers et int6rts, dans une certaine action (ou certaines actions, selon le cas) oit A.B. est le demandeur et appelant, et C.D. et al, sont d6fendeurs et intim6s (ou dans une certaine affaire y pendante, intitul6e "Dans l'affaire de E.F.", selon le cas), par jugement (ou ordonnance, selon le cas) de Notre Cour supreme du Canada, en date du
, nous avons ricemment dans Notredite Cour, d~cid6 (ou ordonn6, selon le cas) de faire payer par ledit C.D. h A.B. ainsi que certains frais mentionn6s dans ce jugement (ou'cette ordonnance, selon le cas), lesquels frais out &t fix6s et allou6s par l'officier taxateur de Notre Cour, au montant de tel qu'il ressort du certificat dudit officier taxateur, en date du
. Et de pr6lever en outre sur les biens et effets dudit C.D., dans votre juridiction, ladite somme de
(frais), de mime que l'intirit sur ladite somme au taux de pour cent l'an, h compter du jour d
(Date du certificat de taxation. Le bref doit 6tre ridigg de manire . suivre la teneur du jugement ou de i'ordonnance) et de rapporter lesdits deniers et intirits, devant Nous en Notredite Cour, dbs l'ex6cution du present bref, afin de les verser audit A.B. conform6ment audit jugement (ou h ladite ordonnance, selon le cas) et de Nous indiquer, en Notredite Cour, dis son ex6cution, la manibre dont vous aurez ex~cut6 Notre bref, et d'y rapporter alors le pr6sent bref.
T6moin, I'honorable juge en chef de Notre Cour supreme du Canada, h Ottawa, ce
, en l'an de Notre Seigneur mil neuf , et dans la annie de Notre rigne. cent venditioni exponas
Province d
A.B., (Demandeur, ou selon le cas) Appelant,
C.D., (D6fendeur, ou selon le cas) Intimi.
VI, etc., (comme dans le bref feri facias)
Au sh6rif de
Attendu que par Notre bref, Nous vous avons r6cemment command6 de pr6lever sur les biens et effete de C.D. (6noncer ici tout le reste du bref de fieri facias), et que le vous Nous avez fait rapport, A Notredite Cour supreme du Canada, qu'en vertu dudit bref A vous adress6 vous aviez saisi les biens et effets dudit C.D. pour la valeur des deniers et intirfts susmentionn6s, lesquels biens et effets demeurent invendus entre vos mains faute d'acheteurs. En cons6quence, dsireux que ledit A.B. obtienne les deniers et int6r~ts susdits, Nous vous commandons de mettre en vente et de vendre, ou de faire vendre, les biens et effets dudit C.D. par vous saisis en la manibre susdite, et toute partie de ces derniers, au meilleur prix qui puisse en 6tre obtenu, et de Nous rapporter, A Notredite Cour supreme du Canada, dis l'ex6cution du present bref, les deniers provenant de cette vente pour qu'ils soient remis audit A.B., et d'y rapporter l et alors le prbsent bref. T6moin, etc.
(Terminer comme dans le bref de fieri facias).
FORMULE L (R. 126)
VI, etc., (comme dans le bref fieri facias)
Au shgrif de
Nous vous commandons de saisir la personne de afin qu'il comparaisse devant Nous, en Notredite Cour supreme du Canada, pour Nous rendre compte, non seulement de l'outrage au tribunal qu'il a, d'apris ce qui est allkgu6, commis envers Nous, mais aussi de toutes autres matibres qui lui seront et alors imput6es; et, en outre, de vous conformer et vous en tenir A l'ordonnance que Notredite Cour pourra rendre A cet kgard, et A cela ne manquez pas; et d'apporter ce bref avec vous.
T6moin, etc.
(Terminer comme dans le bref de fiei facias).
Province d
A.B., (Demandeur, on selon le cas) Appelant,
C.D., (D6fendeur, ou selon le cas) Intim6.
Scellez un bref de fieri facias adress6 au sh6rif de pour prilever, sur les biens et effets de C.D., la somme de $ avee intir&t sur ladite somme au taux de pour cent 'an, A compter pour les frais, ou selon le cas, d'aprbs le bref demand6).
Jugement (ou ordonnance) en date du
(Certificat de l'officier taxateur, dat6 du
(X.Y., procureur de la partie pour le compte de laquelle le bref doit 6tre imis).
FORMULE N (R. 138)
Chaque mandat pour executer une proc6dure, adress6 au sh6rif, lorsqu'il est confi6 & un huissier....
...........................
$ Signification d'une procedure, chaque d6fendeur (aucun honoraire n'6tant allou6 pour I'affidavit de signification en pareils cas A moins que la signification ne soit effectude ou reconnue par le sh6rif)......
Pour signifier d'autres pikes outre le parcours milliaire.............. Pour signification A chaque partie additionnelle................. Pour recevoir, enregistrer, inscrire et endosser tous brefs, avis ou autres pices, chacune
.........................................
Rapport de toutes proc6dures et de tous brefs (sauf un subpoena), avis ou autres pieces.........................................
Pour toute recherche qui n'est pas effectu6e par une partie dans une cause ou par son avocat......................................
Certificat attestant le rdsultat d'une pareille recherche, lorsqu'il est requis (une recherche pour un bref 6mis contre les biens immobi- Hers d'une partie comprend les ventes effectu6es en vertu d'un bref contre cette m~me partie et pour les derniers six mois) ......
Commission sur les ex6cutions et sur les brefs revitant la forme d'ex6cutions, lorsque la somme r6alis6e n'exchde pas $1,000, six pour cent. Lorsque la somme est sup~rieure h $1,000 et inf6rieure h $4,000, trois pour cent; lorsque la somme est de $4,000 et plus, un et demi pour cent, en plus de la commission alloude jusqu'h concurrence de
$1,000, h l'exclusion du parcours milliaire, pour aller saisir et vendre; et sauf tous d6bours6s n6cessairement occasionnis par l'entretien et le d6m6nagement des biens.
Inventaire pris lors de 1'ex6cution ou autre proc6dure, y compris la copie pour le d6fendeur, d'au plus cinq folios.....................
Chaque folio additionnel au-dessus de cinq.......................... Pour r6diger les annonces k publier dans la Gazette officielle ou autre journal lorsque la loi le requiert, ou pour les afficher dans un palais de justice ou autre endroit, et les transmettre, dans chaque poursuite. . ...
.........................................
Pour chaque avis n~cessaire de vente d'effets, dans chaque poursuite. Pour chaque avis d'ajournement de vente, dans chaque poursuite.....
La somme effectivement d6bours6e pour les annonces que la loi enjoint d'insbrer dans la Gazette officielle ou autre journal.
Pour amener un prisonnier contraint par corps ou sur habeas corpus, outre les frais de d6placement rbellement d6boursis, par jour....
6 00 Parcours milliaire reel et n~cessaire du palais de justice jusqu'A I'endroit de la signification de toute proc6dure, 6crit ou pikee, le mille Le registraire doit determiner les d6bours6s raisonnables et nicessaires, ainsi que les allocations, pour transporter ou retenir les biens.
Pour r6diger le cautionnement garantissant les biens saisis, s'il est pr6par6 par le sh6rif...................................
Pour chaque lettre 6crite (y compris copie) exig6e par une partie ou son avocat concernant des brefs ou procedures, lorsque l'affranchissement en a t6 pr6alablement acquitt6........................ Pour r6diger chaque affidavit n6cessaire, s'il est pr6par6 par le sh6rif..
Pour services non pr6vus plus haut, le registraire peut taxer et allouer les honoraires qui lui paraissent raisonnables.
CORONERS
Sont tax6s et allou6s aux coroners, pour services rendus par eux lors de la signification, de l'ex~cution et du rapport d'une pike de proc&dure, les m~mes honoraires que ceux accordis aux sh6rifs pour les m~mes services susmentionn6s.
FORMULE 0 (R. 13 (2))
(Intituld de la cause)
Je,
, atteste par les pr6sentes que j'ai personnellement collationn6 l'imprim6 ci-annex6 du dossier port6 en appel b. la Cour supreme du Canada, sur les originaux, et que cet imprim6 est une copie exacte et fiddle desdits originaux.
Procureur de i'appelant
(ou son correspondant a Ottawa) Conform6ment aux pouvoirs conf6r6s par Particle 104 de la Loi de la Cour suprime (S.R.C. 1927, c. 35), il est par les prbsentes ordonn6 que toutes les r~gles et ordonnances de la Cour supreme du Canada, actuellement en vigueur, soient abrog6es, et que les Rbgles qui pr6chdent, y compris l'Annexe des formules, soient et les susdites sont par les prisentes les Rhgles r~gissant la pratique et la proc6dure dans et pour la Cour supreme du Canada et dans les causes oil appel est interjet6 de tribunaux inf6rieurs ou autrement.
Dat6e h Ottawa ce quinzime jour de d6cembre, A.D. 1939.
LYMAN P. DUFF, juge en chef du T. RINFRET, juge,
L.-A. CANNON, juge,
OSWALD S. CROCKET, juge,
H. H. DAVIS, juge,
P. KERWIN, juge,
A. B. HUDSON, juge.
(Voir "Elections", "Cour de l'Echiquier", "Appels en matibre criminelle", "Habeas Corpus", "Commission des transports du Canada" et "Renvois")
Abandon
De 'appel, sauf ordonnance contraire, si l'appelant n'inscrit pour audition dans I'annie qui suit.. ..
Registraire peut taxer les frais et 6mettre un certificat de rejet.. Affidavit
"Affidavit" comprend "affirmation".. ..
De signification, doit mentionner d6tails...28
Ne peut 6tre rejet4 pour vice de forme, si la cour ou un juge l'estime recevable (Voir art. 90 de la Loi).. ..
Ajournement
De l'audition d'un appel.. ..........................
Convocation pour r6gler jugement ou ordonnance...45 Du tribunal, pour d6faut de quorum.. ..
Annexe-Voir Formules
Annulation d'appel-Voir Motions
Appel
Avis de convocation sp6ciale de la cour publi6 dans la Gazette du Canada.. ..
Avis de 'audition apris la production du dossier.. .... .. 6.. Formule B.. .. ..
6.................. Signification, douze jours avant le ler jour de la session Mode de signification.. .. ..
.. . ..
19 (1) Dans le cas de contestation d'une loi f6derale.. .. ... 19 (2) Dans le cas de contestation d'une loi provinciale.. Inscription de la cause pour audition ex parte.. .. ........ 33-34 Inscription, 14 jours avant le jour fix6 pour 1'audition.. .. .. Dans le cas, oji le dossier est pr6sent6 20 jours francs avant la session, sauf avec autorisation..
.. .. .. Ajournement de 1'audition par la cour.. .. ............
Dans l'ordre d'inscription...40a)
Dans le cas de n~gligence & se presenter, la cour peut proc~der ou ajourner.. ..
Addition de parties...50-53
Appel d61aiss4, apris une ann6e de retard, sauf ordonnance contraire.. ...............................
Intervention...60
Aucune r6-audition sans ordonnance ou permission ........ D6sistement.. ..................................
D'une ordonnance ou d6cision du registraire, h. un juge... 86-88 De la taxation par le registraire, & un juge...98-99
100-101 17-18 D61ai prorog6 ou abrig6 pour l'accomplissement de tout acte.. Dispense d'observation des rkgles .....................
Appels de la cour de PEchiquier
Les rfgles I h 62 s'appliquent, saul dispositions contraires de la Loi de Ia cour de I'Echiquier...63
Appels en matibre criminelle
Avis dans la Gazette du Canada lorsqu'une session sp6ciale est convoqu6e pour entendre les...15
Les rigles 1 6, 63 ne s'appliquent pas, saud dispositions contraires.. ..
Le dossier peut Stre 6crit ou dactylographi6.............. 65 (1) Le dossier doit renfermer les jugements et opinions des tribunaux inf6rieurs.. ..
65 (1) 7 exemplaires du dossier et du m6moire...65
Le dossier doit 6tre produit 15 jours francs avant I'audition.. Pr4avis d'audition de 5 jours.. ..
Appels en matiare d'blection
Avis dans la Gazette du Canada de la convocation spiciale pour entendre les,.. ....
............
.. ..........
Les rkgles s'appliquent, dans la mesure oit elles sont applicables, sauf dispositions contraires.. ................
Copie certifi6e du dossier doit Stre obtenue du registraire..
69 (1) 45 exemplaires doivent tre imprim~s...69
35 exemplaires doivent 6tre remis au registraire.69
Le registraire remet 5 exemplaires h l'intim6 sur demande.. 69 (1) Taxation des frais d'impression comme dans les appels ordinaires......
69 (2) L'appelant doit demander au juge de fixer une date pour l'audition et l'inscription..
Sur d6faut d'une semaine apris la r6ception du dossier par le registraire, I'intim6 peut demander le rejet de l'appel.. ..
Dispense d'impression de dossier ou factum...........71
Appels en mati~re d'6Iections contest~es-Voir appels en mati~re d'61ection. Appels ex parte
L'appelant peut inscrire la cause si Ilintim6 omet de produire son factum......................33
L'inscription peut rejet6e cur requ~te sufficamment appuy6e par affidavits.....................34
Si
Rune des parties nPgaige de se prgsenter e audition..e40a)
Arrks-Voir brefs
Assignations
Heures pour la signification...115
Audition
Avis de l'audition de 'appel, apr~s production du dossier..
Formule de 1'avis, formuic B.................17
Deux avocats seulement pour chaque partie; un seul a droit de r6plique, sauf cur autorisation..............38
La cour peut ajourner, A sa discr~tion..............39
Dane ordre de inscription des appels.
140a) Si 1'une ou 'autre partie n~glige de pr~sentew, la cour peut rendre jugement ou ajourner ....
....
......
........
Les frais scion que prescrits, loreque 1'audition est ajourn6e.. .. 0a) Aucune nouvelle audition sauf cur autorication ou ordonnance Des appels au juge des ordonnances on decisions du registraire 87-88 Des appels au juge de la taxation des frais............99
Avis
Dane la Gazette du Canada, de ]a convocation d'une session sp~ciale, formule A...................15
D'audition d'un appel...................16
Formule de 1'avis d'audition d'un appel, formule B........17
D'audition d'un. appel b. signifier jours avant la session au coure de laquelle 1'appel est entendu............18
Mode de signification de 1'avis d'audition d'un appel.......19
Quand une loi f6d6rale est contest6e en appel..........19
Quand une loi provinciale est contest6e en appel.......
Signification, quand ]a partie comparait en personne.......24-25 De la production d'unc d6claration relative h I'addition d'une partie A 'appel..9
Dane lee motions concernant les requ~tes interlocutoires, 4 jours francs avant I'audition.................54
Mode de signification dane lee requ~tes interlocutoires......55-56 Demandant la production du d6posant qui a fait un affidavit pour contre-interrogatoire..st.es-.-Voir58
D d
.
Dans ci appels interjet6s d'une decision du registraire un juge De m6contentement relativement 5, ]a taxation des frais. .
D contre-appeis.. ..............................
34100 S l'occacion du paiem nt de deniers hors de cour...
10......05 Avis--Fin
D61ais pour signification, avant six heures du soir ou deux heures de I'aprbs-midi le samedi.. ..
Signification apris deux heures le samedi est cens6e avoir eu lieu le lundi.. ..................................
n'est pas tenu compte des vacances dans la supputation des d6lais, en vertu des R~gles...119
Bref d'ex6cution, renouvellement.. ...
Avocats, Procureurs, Conseils
Certificat des, pour collationnement du dossier sur les originaux.. Signification de l'avis de I'audition de l'appel.. .19
Peuvent inscrire le nom d'un correspondant ou 6lire domicile.. La partie peut comparaitre en personne h I'appel en produisant une d6claration..
Si aucune d6claration de changement n'est produite, 1'avocat au tribunal inf6rieur est cens6 agir dans l'appel.. .. .. .. .. ... La partie peut comparMtre par avocat lorsqu'elle a comparu en personne au tribunal inf6rieur.. ....
..............
Changement d'avocats ou de procureurs par une partie it Pappel; signification & la partie adverse.. .. ..
8........ Deux avocats seulement pour chaque partie, et un seul a le droit de r6plique & 1'audition, sauf sur autorisation.. .... .. 9.. Sont cens6s assister au prononc6 du jugement...40b)
Signification des avis de motions...55
Pr6paration des brefs...128
Brefs-Voir certiorari, habeas corpus
Fieri facias, pour ex~cuter jugement ou ordonnance pour le paiement de deniers.. ..
Saisie-arrit ou mandat de d6p8t pour executer jugement enjoignant A une personne d'accomplir un acte ou de s'en abstenir Fieri facias, ex6cution selon la teneur, formule J..
Venditioni exponas, peuvent 6tre 6mis sur rapport du sh6rif pour forcer la vente des biens saisis, formule K.. ........... Mode de vente des biens-fonds et effets par le sh6rif.. .. Arrit, doivent Stre ex~cut6s selon leur teneur.. ....
.... Arrit, ne doivent 8tre 6mis sans l'ordonnance de la cour ou d'un juge, formule L.........
.........................
"Bref d'ex6cution " comprend les brefs de fieri facias, de saisiearrat et les brefs subs6quents...127
D6finition de 1'expression "emission d'ex6cution contre une Pr6paration, au bureau du procureur g6ndral ou par le procureur qui les fait 6mettre.. .. ......................
Scellis au bureau du registraire...128
Inscrits dans un registre tenu A cette fin...128
Praecipe, formule M...128
D'exdcution, ne sont pas 6mis sans la production du jugement ou de Pordonnance...129
D'ex6cution, le fonctionnaire doit virifier que ie temps requis s'est &cou16......129
Ex6cution, la partie peut prilever I'intirt, les honoraires et commissions et les frais d'ex6cution dans chaque cas.. .. .. ... D'ex~cution, pour le recouvrement de deniers, mention des instructions et d6tails au sh6rif, sur le dos.. .. .. .. .. .. Intirt 5 h compter de l'inscription du jugement ou de l'ordonnance, si le recouvrement est recherch6.. D'ex6cution, en vigueur un an seulement, sauf renouvellement D'ex6cution, renouvellement avant expiration.. ..
D'ex6cution, preuve de renouvellement...133
Exicution, peut 6tre 6mise dans les six ans du jugement ou de l'ordonnance.........
Ex~cution, apris six ans, ou pour cause de changement par suite de dbcs ou autrement, sur autorisation.. ............ Ex6cution, sursis, ou recours contre.. ..
Modifications, comment les apporter...137
Honoraires et commissions des shrifs et coroners, formule M.. Brefs-Fin
Ex6cution d'une ordonnance d'un juge en chambre........... Couronne, nulle ex6cution & son encontre sur jugement ou ordonnance, pour le paiement de deniers..
.. .. .. .. .. .. .. Couronne, le registraire peut attester au ministre des Finances la teneur d'un jugement contre la, pour le paiement de deniers.. ..
Cautionnement-Voir aussi deniers
Si le dossier n'est pas produit dans les 40 jours apris la r6ception du, l'intim6 peut demander le rejet de l'appel.. .. ... Lorsqu'il est fourni au tribunal infrieur, un certificat doit accompagner le dossier 6nongant la nature du cautionnement avec copie de toute obligation on autre document en vertu duquel est fourni
Consignations en justice.. ......
Paiement de deniers hors de cour...105-106
Certiorari, Bref de
D~cern6 par un juge ou la cour seulement...82
Chambre-Voir juge en chambre
Commission des transports du Canada, appels
Doivent 6tre sur dossier pr6par6 par les parties...81
Comment r6gler un d6saccord au sujet du dossier...81 Teneur du dossier, decision faisant i'objet d'une opposition, etc. Rgles 1 & 62 s'appliquent, sauf dispositions contraires de la Loi des chemins de fer.. .. ....
Commission des transports du Canada, renvois Voir renvois Comparution
En personne.. .. ..
7............ Si aucune d6claration concernant un changement n'est produite Quand il s'agit de comparaitre par avocat, lorsque la comparution a 6t en personne au tribunal inferieur.. .. .. .. .. .. .. Signification des avis et actes de proce6dure quand la comparution est en personne...24-25
Changement d'avocate ou de procureurs.. ..
D6faut d'assister h l'audition...40a)
Intervention d'un int&ress6 sur autorisation.. ..
Conseils-Voir avocats
Conseil priv6 (Comit6 judiciaire du)
Sous r6serve de l'impression des documents dans I'ordre chronologique, le dossier peut tre imprim6 conform6ment au rkglement qui rigit les appels & Sa Majest6 en conseil Consignations en justice-Voir deniers
Un avis de motion n'est pas nicessaire.. ...............
Si l'intim6 a l'intention de faire modifier le jugement du tribunal inf&rieur, avis toutes les parties dans les 15 jours apris la riception du cautionnement.. .. ..............
Le difaut de donner cet avis constitue motif d'ajournement, ou d'ordonnance sp6ciale quant aux frais, mais ne doit pas restreindre le pouvoir de Ia cour d'entendre l'appel.. .. ... Dans le cas d'un avis, un factum doit 6tre produit.. .. .. .. .. Factum sur contre-appels peut 6tre inclus dans le factum sur i'appel principal...101
Contre-interrogatoire
Du d6posant qui a fait un affidavit, avec autorisation, devant le Des t6moins, par le registraire.. ..
Convocation
Pour r6gler le jugement.. ..
42-46 Coroner
Honoraires, formule N...138
Correspondant
Signification de 1'avis d'audition de 1'appel.. ..............
R6pertoire des correspondants au bureau du registraire.. ....... Avocats, etc., peuvent inscrire le nom d'un correspondant ou 6lire domicile.. .....
Doit avoir le droit d'exercer h la cour ...
Signification de 'avis de motion..
..........
Allocation sur taxation des frais, formule I.
..
..... ANN. Cour
Convocation d'une session sp6ciale.. .. ..
Avis de session sp6ciale dans la Gazette du Canada, formule A.. Aucune proc6dure ne peut 6tre annul6e pour vice de forme (Voir art. 90 de la Loi) ..........
Ajournement pour d6faut de quorum.. ..
Couronne
Nulle ex6cution h son encontre pour le paiement de deniers.. Le registraire peut attester au ministre des Finances la teneur du jugement contre la Couronne pour le paiement de deniers.. Dics
Addition d'une partie h Pappel pour cause de, formule C.. Execution de jugement A la suite d'un,.. ..
Dicision
Par le registraire, autorit6.. ..
Question peut 6tre d6f~r6e au juge par le registraire pour.. Du registraire aussi valable et ex~cutoire que celle d'un juge en chambre...84
Appels d'une d6cision du registraire au juge, par motion sur avis 86-87 A signifier 4 jours apris la d6cision et 2 jours francs avant I'audition, ou selon ordonnance.. ...............
Audition, ler lundi aprbs les d6lais ou aussit8t que possible par la suite..
Doivent 6tre inscrits le saniedi pr4dent dans un registre tenu & cette fin....88
Dclarations
Pour comparaitre en personne, lorsque la partie a t6 reprbsent~e par avocat au tribunal inf6rieur, formule,.. ....
........ Si aucune d6claration de changement n'est produite le procureur au tribunal inf6rieur est cens6 agir en appel. .......... Pour comparaitre par avocat h l'appel, Iorsque la partie a comparu en personne au tribunal inf~rieur.. .. ..
7.......... De domicile, pour signification des actes, par ]a partie comparaissant en personne.. .. ..
7.. D'addition de parties, pour cause de d6cs ou autre...50 Avis aux autres parties...52
Motion tendant h faire rejeter une d6claration d'addition de parties h lappel...53
D61ai
"Mois" signifie mois civil lorsque le mois lunaire n'est pas express~ment mentionn.... .. ..............
...... Prorogeant ou abrigeant, dans un appel ou une procidure.. peut Atre accord6 apris le d6lai consenti...108
Supputation. lorsque des jours francs ne sont pas mentionns.. Inf6rieur h 6 jours, les jours oii les bureaux sont ferm6s ne sont pas comptis dans la supputation.. ..
S'il expire un jour oh les bureaux sont ferm6s, la procdure est cens6e r~gulibrement prise 11e premier jour oii ils sont ouverts Pour la signification des avis, etc., avant 6 heures du soir, sauf le samedi, 2 heures de I'apris-midi.. ................
Les significations apris 6 heures du soir oens6es faites le lendemain..
Les significations apris 2 heures de l'apres-midi le samedi sont cens6es avoir td faites le lundi suivant.. ..
II n'est pas tenu compte des vacances dans la supputation du d6lai en vertu des ges.
.
..
R6.-le 1Deniers
Consignations au greffe.. ..........................
104 (1) Instruction, adress~e A la banque, de recevoir les deniers.. 104 (2) R6c~piss~s, un exemplaire au registraire..
.. .. .. .. .. .. .. 104 (3) Timbres pour les droits exigibles sur les consignations sont appos6s sur Ia copie du r6c6piss6 remis au registraire.. .. ... 104 (4) Paiement de deniers hors de cour, sur ordonnance, apris avis A la partie adverse...105
Paiement de deniers hors de cour, sur chique du registraire contresign6 par un juge.. .106
Jugement pour le paiement de,.. ...
Dsistement
Lorsque avis est donn6 avant l'inscription, l'intim6 fait taxer ses frais; apris, selon que l'ordonne la cour.. ............ Domicile-Voir "correspondant", "avocats", "parties"
Dossier
Transmis au registraire avec le dossier certifi6...14
Attest6 sous le sceau de la cour dont appel.6
Doit 8tre produit au bureau du registraire...6
Doit contenir une transcription des notes A l'appui du jugement du tribunal inf6rieur, ou un certificat attestant l'impuissance de les obtenir.. .. ..
Doit renfermer copie de tous les jugements des tribunaux inf6rieurs.. .. ..............................
Doit renfermer copie de toute ordonnance prorogeant le dilai d'appel.. .. ..................
......
.. .. .... La cour ou un juge peut ordonner le renvoi du dossier au tribunal inf6rieur pour y tre corrig6 ou complt.. .. .. .. ... Doit 6tre produit dans les 40 jours apris l'admission du cautionnement, et l'intim6 peut demander le rejet en cas de retard Doit contenir un certificat attestant qu'un cautionnement a t6 fourni au tribunal inf6rieur.. .. ..
4.. Doit 6tre imprim6 par l'appelant...11 exemplaires doivent 6tre d~pos6s au bureau du registraire.. 3 exemplaires A l'intim6, sur demande..
Format, caractbre, etc... ..........................
12 (1) Chaque page des t6moignages doit porter un en-t~te 6nongant le nom du t6moin, par qui il est cit6 et la nature de l'interrogatoire.......
..............
12 (2) Documents produits comme piices sont r6unis et imprim6s dans l'ordre chronologique..
.. .. .. ..........
Documents produits au tribunal inf6rieur A titre de pikces uniques doivent 6tre consid6r6s comme piices distinctes Conclusions. jugements, etc., imprimbs in extenso, sauf dispense du registraire.. ....
....................
12 (4) Teneur de la page liminaire.. ....................
Volumes distincts lorsque le dossier excide 300 pages.. Frais d'impression doivent 6tre tax6s-Le registraire peut accroitre ce montant...12
Table alphabitique en quatre parties et en dMtail.. ...... Au cas de plusieurs volumes, chaque volume doit contenir une table alphab6tique.. ......................
Peut 6tre imprim6 conform6ment aux Riglements qui s'appliquent dans les appels interjetis A Sa Majest6 en conseil, sous r6serve de l'impression dans l'ordre chronologique.. .. .. .........................
12 (9) N'est pas requ, et il n'est pas tax6 de frais, s'il n'est pas conforme aux Rhgles.. ..................
Chaque dossier doit Atre accompagn6 d'un certificat de collationnement, formule 0.. ........................
Dispense d'impression des documents ou plans.. .......... 14 (1) Dossier original, pices et preuve documentaire doivent Atre transmis au registraire avec le dossier certifi..
.. .. .. Avis d'audition de l'appel apris la production du dossier, formule B, jours avant la session.. .. .. .. .. .. .......... 16-18 L'appel ne peut 6tre inscrit. sauf sur autorisation, A moins que Ie dossier ne soit produit 20 jours francs avant In session .. Juge peut exiger la traduction des jugements et opinions aux frals de l'appelant...................103
Etat des frais-Voir frais
Rbgle Exicution-Voir brefs
Passible d'une proc&dure en, dans le cas de n6gligence de se conformer au jugement ou A l'ordonnance..
.. .. .. .. .. Peut tre 6mise dans les 0 ann6es du jugement ou de l'ordonnance.. ..
Aprbs 6 annies ou aprbs changement pour cause de d6chs ou autrement, peut Stre 6mise sur autorisation...135
Sursis ou recours.. ......
Nulle ex~cution contre la Couronne pour le paiement de deniers Le registraire peut attester au ministre des Finances la teneur du jugement contre la Couronne pour le paiement de deniers.. Factum
30 exemplaires doivent 8tre produits 15 jours avant la session Se compose de trois parties.. .. ....
8.. Partie 1. Renferme un expos6 concis des faits.. .. .. 8.... Partie 2. Factum de l'appelant doit 6noncer h quel 6gard le jugement est rdput6 erron6, etc.. .. .. .. ... Lorsque la pr6tendue erreur a trait & l'admission ou au rejet de la preuve, cette preuve doit tre cit~e au long.. ..
Quand l'erreur pr6sumbe se rapporte au risum6 des d~bats que fait le juge au jury, le texte et les objections sont 6nonc6s verbatim.. .. ... Factum de l'intim6 renferme 1'expos6 concis des questions en litige et l'attitude de l'intim6 A leur 6gard.. ..
Partie S. Renferme un expos6 condens6 des d6bats 6noncant les points de droit ou de fait, la page et la ligne du dossier, et les autoritis invoquies.. Lois, riglements, etc., ou leurs parties invoquies, doivent 8tre imprimbs au long.. .. .... 8.... Mode d'impression.. ....
.........
Non recevable moins d'6tre conforme..
L'intim6 peut demander le rejet pour retard indfi de l'appelant h produire son factum...32
L'appelant peut inscrire ex parte, si l'intim6 omet de produire son factum .. .. .. ...
Inscription ex parte peut tre rejete.. .. .......
Le registraire doit sceller le premier factum produit.. .. .. ... Apr;s la production, chacune des parties transmet 3 exemplaires A6 la partie adverse...36
Sur contre-appel.....
. Traduction du, aux frais de la partie si La juge 1'axiga......102 Fieri facias-Voir brafs
Forme (Vice de)
N'annula pas les proc& ures devant la cour (Voir art. 90 de laLoi)....
Formules
Formule A, Avis de convocation d'une session sp6ciale .... .... cc B, Avis d'audition d'appel..............17
If
C, Avis de d6c~s. d'insolvabilit6, etc..........50
, Demnande de bref d'habeas corpus ad sub jiciandum It
E, Ordonnance pour bref d'habeas corpus ad sub ji.. ciendum...072
It F, Bref d'habeas corpus ad sub jiciendum ....
.... .... it 0, Affidavit de signification d'un bref d'habeas corpus ad sub jiciendum................76
H, Tarif d'honoraires verser au registraire de la. Cour supr3me du Canada...90
I, Tarif d'honoraires (de partie h partie).........91 J, Bref de fieri facias................122
Formule-Fin
Formule K. Bref de venditioni exponas.. ..
"
L, Bref d'arrat.. .. ........................
M, Praecipe pour bref.. ..................
"
N, Honoraires des sh6rifs et coroners.. .......... O, Dossier & certifier par un procureur.. .. 13 (2) Frais
De 'appel, en cas d'annulation.. .. ..............
.. .... D'impression du dossier.. ..........................
12 (7) Si une partie n6glige de comparaitre et si l'audition est ajourn6e Lorsque l'appel est abandonn6 pour cause de retard.. .... D'intervention selon ordonnance.. ..
60 (2) Quand I'appel est d6laiss6... ...
Honoraires A verser au registraire...90
Entre parties, formule I.. ........
Somme fixe peut 8tre prescrite au lieu de Ia taxation...92 Compensation.. ................................
-- Question d6coulant de la taxation de, d6f6r6e au juge par le registraire...94
Autorit4 du registraire en matibre de taxation.. .......... Revision de la taxation par le registraire avant la signature du certificat d'admission de frais.. ..
Opposition, par 6crit, signifi6e N la partie adverse.. Certificat pour le solde du m6moire non contest6 peut 6tre d6livr6 en attendant la d6cision.. .. .. .. .. Preuve suppl6mentaire, si le registraire le d6sire.. .. ... Appel au juge de la taxation du registraire doit tre interjet6 dans les 2 jours qui suivent Ia date du certificat d'admission de frais, ou dans tel autre d6lai accord6 par le registraire.. Nulle preuve supplimentaire requise, sauf sur instructions.. ......
Frais N la diserition du juge...99
Dans les contre-appels, ordonnance sp6ciale quant aux, lorsque aucun avis de contestation n'est donni pour faire modifier Ia d~cision du tribunal inf6rieur.. .. .. .. .. .. .. .. D'ex6cution...130
D'ex4cution, aprbs un d6lai de six ans ou lorsqu'il s'est effectu6 un changement dans les parties.. ................
Du bref, lorsque modifid.. .......
.
.
. Contre la Couronne, aucune ex6cution ne peut Stre d6cern6e.. Gazette du Canada
Publication de l'avis de convocation d'une session sp6ciale, formule A.. ......
Converneur en conseil, renvois au-Voir renvois
Grandes vacances-Voir vacances
Habeas corpns-Appels
Avis de convocation d'une session sp6ciale, Gazette du Canada, pour entendre les matibres d',...... ................
Les r~gles 1 N 63 ne s'appliquent pas, sauf dispositions contraires
Le dossier doit 6tre imprim6 ou dactylographi6...65
Le dossier doit renfermer les mat6riaux devant le juge dont est appel, et le jugement dudit juge...65
7 exemplaires du dossier et du m6moire N d6poser au bureau du 65 (2) Le dossier doit Stre produit jours francs avant I'audition.. Avis d'audition de l'appel, 5 jours avant l'audition.. ...... BREPs
Requfte pour bref par motion en vue d'obtenir une ordonnance
Le juge peut rendre ordonnance ax parte absolue, en premier lieu, ou ordonner une assignation pour I'4mission du bref Le juge peut d4firer la requite N la cour.. ..............
Assignation et ordonnance pour bref, formules D et E.. .... Copie de Passignation pour l'mission du bref doit etre signifie au procureur g6n6ral de Ia province.............73
R16gle Habeas corpus-Fin
BREs--Fin
Le juge peut presrire une ordonnance pour la lib6ration du prisonnier.. ..
Le bref doit 6tre signifi6 personnellement, si possible, 'individu h qui il est adress6.. .........................
Bref d'habeas corpus, formule F.. ..
Si le destinataire ne s'y conforme pas, il peut 8tre formul6 une demande d'arrit pour offense envers le tribunal........ Affidavit de signification du bref, formule G.. .. .......... Rapport du bref doit renfermer les motifs de I'incaro6ration. Rapport du bref peut Stre modifid.. .. .. ..
Lors du rapport et de sa lecture, il peut 6tre fait une motion pour liberation ou renvoi A une autre audience.. .. .. .. Un juge ou la cour seulement peut accorder le bref et prononoer sur le rapport du bref.. .82
10 heures du matin 1 4 heures de l'apris-midi, sauf le samedi oti Ia fermeture a lieu 1 heure.......116 pendant les vacances, 10 heures du matin
1 heure de l'aprbs-midi ..
116 (2) Honoraires-Voir "frais", "taxation"
A verser au registraire, en timbres, formule H.. ...
Tarif, entre parties, formule I.. ..
Sh6rifs et coroners, formule N.. ..
Honoraires de commission
Ex6cution...130
Sh6rifs et coroners, formule N...138
Impression-Voir dossier, etc.
Dispense d'imprimer ou de copier les documents ou plans Inscription
Appel ex parte.. ......
33-34 Appels, jours avant la session...37
Nulle inscription sans autorisation, h moins que le dossier ne soit produit 20 j ours francs avant la session.. .34
Appels doivent 6tre entendus dans l'ordre de leur.. .. Motions devant la cour.. .........................
Appel d'une d6cision du registraire au juge...88
Inscription
Ex parte.. ..
33-34 Appels, jours avant la session
Nulle inscription si le dossier n'est pas produit 20 jours francs avant la session, sauf sir autorisation.. ...........
Inscription des motions devant la cour.. ......
Inscription des appels interjet6s d'une d6cision du registraire h un juge...88
Insolvabilit6
Addition d'une partie A l'appel par suite d', formule C... Ex6cution de jugement A la suite d',.. ....
Intirts
Dans une ex6cution, 5 p.c. b compter de l'inscription du jugement ou ordonnance...130-131
Interpretation
Dfinition des mots et expressions.. ..
1.. ..
a............ Intervention-Voir parties
Par int6ress~s, sur autorisation...60
Frais d', selon que pregcrits par Ia cour...60
Jage
" Juge" ou "juge de la cour" signifle tout juge de Cour supreme.. .. ..........
Appels au, du registraire...86-88
Excution dune ordonnance du....g139
Juge en chambre-Voir aussi registraire
"Juge en chambre " ou "juge de la Cour supreme en chambre" signifie le registraire si6geant en chambre.. ............ Autorit6 et juridiction du registraire si~geant en chambre.. 82-85 Appels d'une ordonnance ou d&cision du registraire & un juge.. 86-88 Ex6cution d'une ordonnance du,.. ..
Jugement
Peut 6tre rendu par la cour, sans l'intervention de Ia partie qui n~glige de se pr6senter...40a)
Les avocats sont censis assister au prononc6 du jugement, s'il est r4serve...40b)
A d~faut de pr6sence, le prononc6 peut 6tre diff6r6.. ...... 40b) De la cour, doit Stre r6gl6 et sign6 par le registraire...41 Partie qui a gain de cause doit obtenir convocation pour d6terminer le, ..
Copie du projet des minutes et de la convocation h signifier 2 jours francs avant la date fix6e..
Registraire doit se convaincre que la signification a t6 dfiment effectu6e ......
Si une partie n~glige de se pr6senter, le registraire peut procder au rbglement..
...........................
La partie adverse peut proc6der si la partie qui a gain de cause n6glige d'obtenir une convocation.. ..
Le registraire peut ajourner la convocation pour r6gler... La cour ou un juge peut ordonner Ie riglement sans avis.. Une partie m6contente peut demander la modification des minutes.. ..
La demande de modification ne peut suspendre l'inscription si elle est consid6r6e comme futile ou pr6judiciable.. .. La motion doit reposer seulement sur le motif que les minutes ne concordent pas avec le jugement, ou qu'il s'agit d'une omission......................47
Doit porter la date du jour de son prononc6, et entrer en vigueur h compter de cette date, sauf ordonnance contraire ......
.........
.
.
.
.
.
. . Enjoignant A une personne d'accomplir un acte, doit sp~cifier '6poque, et la copie signifi6e doit porter au dos une mention quant aux peines pour d6faut de s'y conformer.. .. .. Ex6cution-Voir "Brefs".
Sursis d'ex6cution ou recours contre,.. ..
Nulle ex6cution sur, contre la Couronne pour paiement de deniers ou frais.. ..
Le registraire peut attester au ministre des Finances, sur demande, la teneur d'un jugement contre la Couronne pour paiement de deniers, on frais...140
Juridiction
Dans les motions en annulation pour d6faut de, les plaidoiries et jugements des tribunaux inf6rieurs doivent faire partie des mat6riaux d~poss ...........................
Du registraire, celle d'un juge de Ia cour si6geant en chambre, sauf la concession des brefs d'habeas corpus ou de certiorari L'ordonnance d'un juge ou d'un juge en chambre peut 6tre ex6cut6e comme ordonnance de la cour...139
Loi
Signifie la "Loi de la Cour supreme
Mandat de d6pat
Ex6cution du jugement ou de l'ordonnance par un,.. .. Ministre des Finances
Attestation par le registraire d'un jugement contre la Couronne pour le paiement de deniers.. ..
Motions
En annulation,
1intim6 peut demander une ordonnance en annulation apris l'ordonnance acceptant le cautionnement .. .. ... si l'appel est annul6, les frais sont la discr6tion de la cour.......................4
IMotions-Fin
En annulation-Fin suspension des proc6dures aprbs signification d'un avis, sauf ordonnance contraire..
nul retard inivitable pour l'inscription d'une motion.. Lorsqu'il y a retard dans la production du dossier, I'intim6 peut demander le rejet pour cause de retard.. .... .. .. .. Lorsqu'il y a retard dans la production d'un factum, I'intim6 peut demander le rejet pour cause de retard.. .... .. 9.. Pour modifier les minutes d'un jugement la partie m6contente peut demander A la cour de les modifier.. .. ...
avis de 2 jours francs A la partie adverse..47 ne suspendent pas l'inscription d'un jugement, si elles sont consid6rbes comme futiles ou pr6judiciables..
.. .. ... doivent reposer seulement sur le motif que les minutes ne concordent pas avec le jugement, ou qu'il s'agit d'une omission...47
Tendant 6, faire rejeter une d6claration relative h l'addition d'une partie la cour ou un juge peut ordonner la prise des d6positions.. Toutes les requites interlocutoires en appel s'effectuent par voie de motion appuyie par des affidavits produits au bureau du registraire...54
I'avis doit 6tre signifi6 4 jours francs avant I'audition les affidavits et pikees de proc6dure doivent 6tre produits 2 jours francs avant I'audition.. ......
I'avis de motion doit 6noncer au long les motifs qu'elle invoque...54 dans les motions en annulation pour d6faut de comp6tence, les plaidoiries et jugements des tribunaux inf6rieurs font partie des mat6riaux d~pos6s.. ..
mode de signification de l'avis...55 signification de I'avis doit 6tre accompagn~e des affidavits produits.. ..
inscription des motions devant ia cour...57 doivent Stre entendues le premier jour d'une session ou le premier jour de chaque semaine la cour est en session ..
une partie peut contre-interroger un d6posant qui a fait un affidavit...58 d6penses occasionn6es par le contre-interrogatoire du d6posant, & la discr6tion du registraire..
.. .. .. .. .. Dans les appels interjet6s d'une d6cision du registraire A un juge doivent 6noncer les motifs d'opposition.. ............
doivent Stre signifibes dans les 4 jours apr~s la decision, et 2 jours francs avant l'audition, ou selon que prescrit.. prdsent6es le premier lundi apris les d6lais ou aussit6t que possible par la suite.. .....................
inscrites le samedi pr6c6dent dans un registre teni cette finl.... ....
....
....
......
......
...
...... NoE1-Voir vacancas
Nouvelle audition
Seulement avec l'autorisation oti A la demande de cour.. Ordonnauces
Da la cour doivent 6tra d~termin6es et sign~es par le registraira. Enjoignant A, une personne d'accomplir tin acte, doivent sp&cifiar 1V6poque, et la copia signifi6e doit porter dos la mention des peines pour d6faut de s'y conformer.. .... .... Du registraire, valables et ax6cutoires comme celles d'un juga en chambre....
Du registraira, doivant 6tre sign~es par le registraire.......85 Ordonnances-Fin
Appel des ordonnances du registraire b un juge, par motion, sur avis.. ......
86-87 doit 6tre signifi6 dans les 4 jours aprbs Ia d6cisionj et 2 jours francs avant l'audition, ou selon que prescrit .... .. .... audition, le premier Jundi apris les ddlais, ou aussit6t que possible par la suite.. ..
inscrit le samedi pr6c~dent sur un registre tenu A cette fin.. Heures pour la signification des,.. ....
Sursis d'ex6cution ou recours contre.. ......
D'un juge ou d'un juge en chambre peuvent 6tre ex6cut6es comme ordonnances de la cour.. ..................
Nulle ex6cution sur, contre la Couronne, pour le paiement de deniers ou frais..
.. .. .. .. .. .. .. ..
.. ......
. Le registraire peut attester au ministre des Finances sur demande, la teneur des, pour paiement de deniers.. ...... Excution-Voir "brefs"
Parties
L'expression comprend un corps politique ou constitud en corporation, et aussi Sa Majest6 le Roi et le procureur g~ndral de Sa Majest6..
Peuvent comparaitre en personne h I'appel en produisant une d6claration...21
Si aucune dclaration n'est produite et aucun changement d'avocat n'est obtenu, le procureur au tribunal inf6rieur est cens6 le procureur en appel.. .. ............
...... Ayant comparu en personne au tribunal inf6rieur, peuvent choisir de comparaitre par procureur en appel..
.. .. .. Domicile des parties comparaissant en personne, pour fins de signification.. .. ........................
.... Addition par suite de d6chs ou autre cause, formule C.. .. ... La cour peut ajouter intimb, sur ou sans requite.. .. .. .. .. .. D6claration d'addition peut 9tre rejetie.. .. .. .. .. .. .. Avis de production d'une d6claration d'addition a signifier aux autres parties.. ........
Motions tendant & faire rejeter une d~claration d'addition .. Intervention par i.nt~ress6s, sur autorisation.60
Frais d'intervention des, selon que prescrit...60
Taxation des frais entre parties.. ..
91-99 16-17 Ex6cution d'un jugement ou d'une ordonnance, d6lai...134-136 Pices
Impression, disposition et table alphab6tique.. ............ 12 (3), (8) Doivent 6tre transmises au registraire avee dossier certifi6.. Praecipe
Bref, formule M.. ......
..........................
Preuve
La preuve documentaire doit 6tre transmise au registraire avec le dossier certifiS.. ........
14 (2) Procedures
Suspension, apr~s signification d'une motion en annulation d'appel Suspension, sur motion tendant b faire rejeter une d6elaration d'addition de parties.. .. ...
Autorit& du registraire.. ..
En cour, ne peuvent Atre annuldes pour vice de forme (Voir art. 90 de la Loi) .......
D61ai prorog4 ou abrig6.. ..
Le registraire doit tenir les registres pour les inscriptions... Supputation des d6lais.. ..........................
112-115 19-20 Pour obtenir le paiement de deniers ou 1'accomplissement d'un scte, en vertu d'un jugement...120-121
Procureur-Voir "avocats"
Procureur g~n&.a1
Compris dans 1'expression "(partie"..............2
Avis au, lorsque la validit6 d'une -loi est conteste ..
19 (2), (3) Pr6paTation des brefs au bureau du...128
Prorogation de dqilai-Voir dilai
Questions d6f6rbes
Par le gouverneur en conseil ou la Commission des transports Dossier inscrit seulement sur ordonnance de la cour ou d'un juge, aprbs avis aux int6ressbs.. .....
Factums produits comme dans les appels...80
Quorum
Ajournement pour d6faut de,......................
Registraire-Voir aussi juge en chambre
D6termine et signe les ordonnances et jugements de la cour Convocation avec, pour r6gler jugement..
Juridiction du, celle d'un juge en chambre, sauf concession de brefs d'habeas corpus ou certiorari...82
Peut d6f6rer toute question A un juge..83
Ordonnances ou d~cisions du registraire en chambre, valables et ex6cutoires comme celles d'un juge en chambre.. .. Signe les ordonnances du registraire...85
Appels A un juge d'une ordonnance ou d6cision rendue par le.. appels du, mode de proc6der, motion.. ..............
appels du, quand prdsent6s, inscrits.. ...............
S6ances du, pour 1'exp6dition des affaires.. ....
Honoraires b verser, formule H.. ..........
Taxation des frais.. ......
91-94 16-17 Pouvoirs et au-torit6; interrogatoire, serment, etc.. ..
Revision de taxation...96-97
Appel & un juge de la taxation du,...989
Registres b tenir pour I'inscription des procdures.. ..
Les brefs doivent 6tre scell6s au bureau du.. .......... Registres h tenir pour I'inscription des brefs....128
Exboution d'une ordonnance d'un juge en chambre.. ...... Registraire suppliant, nomination, attributions.. .......... Registraire suppl6ant
Nomination, attributions ..
Registree
Tenus par le registraire pour inscrire les proc6dures.. .. Tenus au bureau de registraire pour l'inscription des brefs.. RgIes
S~ances du registraire pour 1'expidition des affaires.. .. D6faut de se conformer aux, peut Stre excus6 dans circonstances sp6ciales......
.
.
..
Il n'est pas tenu compte des vacances dans la supputation des d6lais...119
Requ~tes-Voir aussi Motions
Au registraire pour une ordonnance changeant d'avocats ou de procureurs...26
Pour rejet d'une inscription ex parte.. .. ......
Pour ajouter une partie A l'appel.. ....
......
50 (2) En revision de taxation...96-97
Interlocutoires dans I'appel.. ..
En taxation de frais et pour l'6mission d'un certificat de rejet, quand l'appel est abandonn6...59
Pour nouvelle audition.. ..........
Pour autorisation d'6mettre une ex6cution, apris un d6lai de six ans ou un changement survenu pour cause de d6cbs ou autrement.. ..
Pour attestation au ministre des Finances d'un jugement rendu contre la Couronne pour le versement de deniers.. ...... Requtes ex parte
Au registraire pour une ordonnance afin de changer d'avocats ou de procureurs...e26
SineRkge
S~ance
Du registraire pour I'exp6dition des affaires.. .. ................ De Ia cour, ajournement pour d6faut de quorum,......... Serments
Le registraire a le pouvoir de d6f6rer les ................
Session
Avis d'une session sp6ciale doit 6tre publi6 dans la Gazette du .. ..
Ajournement des seances d'une, pour d6faut de quorum.. .... Session sp6ciale
Avis publi6 dans la Gazette du Canada, formule A.. .... .... Shirif
Bref de venditioni exponas peut 8tre d~cern6 sur rapport du, pour op6rer la vente de biens saisis, formule K.. ........ Vente de biens-fonds, effets par le, mode.. ..............
Bref d'ex6cution, instructions et d6tails mentionn6s au dos du bref...131
Brefs d'ex~cution, avis de renouvellement...132
Honoraires et commissions, formule N.. ....
Signification-Voir aussi D6lai
Avis d'audition de I'appel.. ..
16-19 A la partie h I'appel qui comparait en personne.. .......... 24-25 Dans le cas d'un changement d'avocat ou de procureur.. .... La cour peut ordonner Ia signification par substitution quand ne peut s'effectuer une prompte signification personnelle.. Affidavits de signification doivent mentionner d6tails.. .. .. ... D'une copie de Ia convocation et des projets de minute pour r6gler un jugement........................
De 1'avis relatif i la d6claration d'addition d'une partie A l'appel De I'avis de motion dans les requites interlocutoires...54-56 11-12 De 1'avis dans les appels du registraire A un juge...87
De l'avis d'un contre-appel...100
Des avis, assignations, etc., d6lais pour, avant 6 heures du soir, ou 2 heures de l'apris-midi le samedi...115
Apris 6 heures du soir, cens6e avoir eu lieu le lendemain.. .... Apris 2 heures de 1'apris-midi le samedi, cens6e avoir eu lieu le lundi suivant...115
Il n'est pas tenu compte des vacances dans Ia supputation des d6lais en vertu des R~gles...119
Sursis d'ex~cution
La cour ou un juge peut accorder, contre jugement ou ordonnance...136
Suspension des procedures
Aprbs signification de 1'avis de motion en annulation d'appel.. Sur motion pour faire rejeter une d6claration d'addition de parties A l'appel.. ....
Table alphabitique
Chaque volume du dossier doit renfermer; d6tails et disposition de Ia,...12
Tarif
Honoraires & verser au registraire, formule H...90
Honoraires A, taxer de parties h, parties, formule I.. ........ Taxation-Voir aussi "frais"
Pour impression du dossier; pouvoirs du registraire d'accroitre ce montant...12
Lorsque I'appel est abandonn6 pour cause de retard, sur requate, Les frais de partie h partie, formule I..91
Une somme fixe peut 6tre prescrite au lieu de Ia...92
Compensation lors de la...93
Renvois stir taxation par le registraire au juge..g94
Taxation-Fin
Pouvoirs du registraire de d6f6rer les serments, d'interroger les t6moins, d'ordonner la production de documents, etc.. .. Revision par le registraire avant 1'6mission d'un certificat d'admission de frais..
96-97 A un juge..
Timoins
Interrogatoire par le registraire.. ......................
Timbres
Honoraires sous forme de, A verser au registraire, formule H.. Traduction
Factum ou motifs de discussion, le juge peut 1'exiger, aux frais de la partie..
Jugements et opinions des tribunaux inf6rieurs, le juge peut en exiger la traduction aux frais de 'appelant .. .. .. .. .. .. Vacances
Heures de bureau, 10 heures du matin h 1 heure de 1'apris-midi 116 (2) Vacances de du d&cembre au 10 janvier.. ........... Grandes vacances, juillet et aoflt.. .....
II n'est pas tenu compte des vacances dans la supputation des d6lais, en vertu des R~gles.. .........
Venditioni exponas-bref de-Voir bref
Vice de forme
N'annule pas les proc~dures (Voir art. 90 de la Loi) .........
Cases cited
- Donohue v. Corporation of Parish of St.Etienne de La Malbaie scr-1924-511
- O.R. 115 O.R. 115
- O.R. 444 O.R. 444
- The King v. Barbour scr-1938-465
- The King v. Dubois scr-1935-378
- King v. Dubois King v. Dubois, supra
- The King v. Mason scr-1933-332
- Salmo Investments Ltd. v. The King scr-1940-263
- 3 D.L.R. 627 3 D.L.R. 627
- Russell v. Russell A.C. 395
- A.C. 351 A.C. 351 364
- 1 W.W.R. 209 1 W.W.R. 209
- 1 D.L.R. 412 1 D.L.R. 412
- Auger v. Beaudry A.C. 1010
- O.R. 245 O.R. 245
Statutes and regulations cited
-
- s. 19
- sections 19
- 33
- s. 37
- s. 3
- section 22
- s. 26
- ss. 89
-
- s. 61
-
- s. 189.1
- section 87
- sections 86
- 87
- section 105
- Section 105
- s. 66
- s. 28
-
Unresolved citations
- s. 15 of Sale of Goods Act
- s. 15 of the Sale of Goods Act
- section 15 of The Sale of Goods Act
- section 15
- s. 15 of the Ontario Sale of Goods Act
- s. 14 of the Imperial Sale of Goods Act, 1893
- section 3
- section 4
- section 17 of The Assessment Act
- section 17
- section 28(2)
- section 29
- section 5
- ss. 229
- 201.1
- s. 229 of said Act
- s. 8
- s. 2
- ss. 47
- 50 of the Medical Act
- section 33 of the Quebec Licence Act
- s. 205 of Insurance Act
- s. 198 of said Act
- s. 205 of the Ontario Insurance Act
- s. 53 of Highway Traffic Act
- section 53 of the Quebec Motor Vehicle Act
- section 31 of the Quebec Motor Vehicle Act
- s. 48 of Highway Traffic Act
- s. (1)
- s. 81 of said Act
- s. 82 of that Act
- s. 36 of The Conveyancing and Law of Property Act
- s. 105 of The Special War Revenue Act
- s. 52 of said Act
- Section 12 of the present Watercourse Act
- section 12 of the Watercourse Act
- Section 7 of the New Brunswick Workmen's Compensation Act