Majority
such an interest was seriously challenged.
The capacity the added plaintiff, in turn, was alleged to be that of exclusive licensee of the patentee. There does not appear to be any doubt of that fact, and the inclusion of the corporation in the action cures any defect in parties of beneficial interest. The patentee was a corporation of Holland and, by the provisions of the regulations respecting Trading with the Enemy (1939), the legal title to the patent has been vested in the defendant Custodian. All interested parties are, therefore, before the court and whether as plaintiff or defendant would not, in the circumstances, appear to be material.
The appeal should, therefore, be dismissed with costs. Solicitor for the appellant: William A. MacRae.
Solicitors for the (plaintiffs) respondents: Smart & Biggar. LE COMITE PARITAIRE DE L'INDUS- TRIE DE L'IMPRIMERIE DE MONT- REAL ET DU DISTRICT
DOMINION BLANK BOOK COMPANY
LIMITED
DOMINION BLANK BOOK COMPANY
LIMITED
ASSOCIA- TION
Professional Syndicates Act, R.S.Q.,
1941, c. 162-The Collective
Labour Agreements' Act, (Q) 1 Geo. VI, c. 49; 2 Geo. VI, c. 52; 4 Geo. VI, c. 38.
The appellant brought an action against the respondent, praying inter L'INDSTRIE alia that a collective labour agreement, entered into between the respondent and its employees' association, mise-en-cause, under the provisions of The Professional Syndicates Act, be declared illegal and set aside, and that the respondent be ordered to abstain from
DisazT denying to the inspectors of the appellant access to its premises to inspect its books, etc., under the authority of a decree made by the DomiNioN Lieutenant-Governor in Council under The Collective Agreement The respondent contended that it was not subject to the decree, as the latter concerned the printing industry and printing was not its principal business; and it also pleaded that, after the promulgation of the decree, a collective Iabour agreement entered into between it and its employees became the law of the respondent and its employees and that they were no longer subject to the decree. The Superior Court maintained the appellant's action; but the judgment was reversed by the appellate court. The appellant moved before this Court for special leave to appeal, on the grounds that the issue between the parties involved future rights, as upon the decision to be rendered depends whether the relations between the respondent and its employees should be governed by the decree or by the agreement, they being inconsistent with each other, and that an important matter ought to be decided as to whether there was an implied partial repeal of the provisions of The Professional Syndicates Act by the provisions of The Collective Agreement Act.
Held, that special leave to appeal should be granted.
The matter in controversy in the appeal "involves matters by which rights in future of the parties may be affected" (Supreme Court Act, S. 41), and is of sufficient general importance to justify this Court in granting leave to appeal.
MOTION for leave to appeal to 'this Court, from the judgment of the Court of King's Bench, appeal side, province of Quebec, reversing the judgment of the Superior
Court, Bertrand J., and dismissing the appellant's action.
The appellant brought an action against the respondent, praying that a collective labour agreement entered into between the respondent and its employees association, mise-en-cause, under the provisions of The Professional
Syndicates Act, be declared illegal and set aside, that the respondent be ordered to abstain from denying to the inspectors of the appellant access to its premises to inspect its books, etc., under the authority of a decree made by the Lieutenant-Governor -in Council under the Collective
Agreement Act, that an interlocutory injunction granted to that effect be confirmed and that the respondent be ordered to pay to the appellant $105 as damages.
S.C.R.]
respondent, by its plea, contended that it was not subject to the decree concerning the printing industry; that, even if the respondent did exercise a trade contemplated by the decree, the latter did not apply to it because printing was not its principal business; and, finally, when the respondent, after the promulgation of the decree, formed with its employees a professional syndicate and deposited a collective labour agreement, permissible under The Professional Syndicates Act, with the Minister of Labour, that this collective labour agreement became the law of the respondent and its employees and they were no longer subject to the decree.
The judgment of the Superior Court maintained the appellant's action, declaring the agreement void in so far as incompatible with the -terms of the decree, confirming the interlocutory injunction and condemning the respondent to pay to the appellant $38.80 as damages. This judgment was reversed by the appellate court: Galipeault and St. Germain JJ. being of the opinion to dismiss the appellant's action because the Collective Agreement Act under which the decree had been made did not affect the power to enter into agreements between employers and employees under the Professional Syndicates Act, an !agreement under that statute being valid even if made subsequently to the decree, within the latter's field of operation and in terms incompatible with its provisions; St. Jacques J. being of :the opinion that if the agreement was radically void an action to set it aside was useless and that an injunction was not the proper remedy under the circumstances; Marchand J. being -of the opinion that the judgment of the Superior Court was not sufficiently precise in not indicating what part of the agreement was void and further that the injunction was a mandatory one and such an injunction is not known to the laws of Quebec; and Barclay J. being of the opinion that, while the action was well founded, the order was too vague and the case should be remitted to the Superior Court-to make it more precise. The appellant moved for leave to 'appeal to this Court.
Aim Geoffrion K.C. for the motion.
L. E. Beaulieu K.C. contra.
THE COuRT.-We have come to the conclusion that special leave to appeal should be granted in this case. In our view, the matter in controversy "involves matters by which rights in future of -the parties may be affected" and is of sufficient general importance to justify this Court in granting leave.
The costs of the application will follow the event of the Leave to appeal granted. Award of damages under...........
ADMINISTRATION OF ESTATES
ESTATES;
1;
AcTIONs 1.
ALIMENTARY
PROVISIONS - Legacy
Declared by testator to be exempt from seizure-Automobile accident - Damages awarded for hospital and medical expenses, and for incapacity resulting from injury- Execution of judgment-Amount of legacy liable to seizure-Compensation is
"alimony" within meaning of article 599
C.CP.1-In an action for damages resulting from an automobile accident, the was awarded a sum
$6,976.85, for hospital and) medical expenses, for disability and for loss of automobile. In execution of that judgment, less a sum of $200 being the value of the car, the respondent seized by way of garnishment, in the hands of the executors of the estate of the appe(liant's father, all sums bequeathed to the appellant under the will. The garnishees made a declaration that the appellant was entitled to one-third of the net revenue of the estate; but that the testator had- expressly declared such legacy to be given as an alimentary pension and upon the condition of it being exempt from seizure.
The trial judge ordered the garnishees to be discharged from the seizure. The appellate court, reversing that judgment, held that the respondent's claim showed an allimentary characteristic and could be included within the meaning of the words
"dettes alimentaires" and "aliments" contained in article 599 C.C.P.
Held that the judgment appealed from (Q.R.
K.B. 12)
should be affirmed and the appeal to this Court be dismissed.
Per
Hudson and Taschereau JJ.: Sums of money or pensions given or bequeathed as alimony, even though the donor or testator has expressly declared them to be exempt from seizue, may, however, be seized for debts similar to the one created by the judgment in this case.
Such a claim presents, indeed, a real alimentary character: the indemnity granted to the respondent is -precisely for hospital and medical expenses and for incapacity; and, moreover, the evidence established that the respondent 'had no other source of revenue.
The word "alimony", in its juridical sense, means the things absolutely necessary for the maintenance of a person.
The quasi-offence, from which
ALIMENTARY PROVISIONSthe respondent has been an innocent victim, has deprived him of these essential things. It is in order to enable the respondent to pay medical expenses and to procure the necessities of life, that the judgment has granted him compensation. This constitutes alimony within the meaning of article 599 C.C.P., and, therefore, any exemption from seizure of sums of money or pensions given as alimentary provisions cannot be raised against the payment of such compensation.-Review of the decisions rendered by the courts of Quebec and in France, since 1881, and of the opinions expressed by French authors the subject.
.......................
APPEAL-Jurisdiction--Collective labour agreement under The Professional Syndicates Act-Decree by Lieutenant-Governor in Council under The Collective Agreement Act-Whether relations between employer and employees to be governed by the decree or the agreement- Judgment by trial judge, declaring agreement void in so far as incompatible with decree, reversed by the appellate court- Motion for leave to appeal-Matter in controversy-Future rights-Matter of sufficient general importance-Supreme Court Act, section 41-The Professional Syndicates Act, R.S.Q., 1941, c. 162-The Collective Labour Agreements' Act, (Q) 1 Geo. VI, c. 49; 2 Geo. VI, c. 52; 4 Geo. VI, c. 88.1-The appellant brought an action against the 'respondent, praying inter alia that a collective labour agreement, entered into between the respondent and its employees' association, miseen-cause, under the provisions of The Professional Syndicates Act, be declared illegal and set aside, and that the respondent be ordered to abstain from denying to the inspectors of the appellant access to its premises to inspect its books, etc., under the authority of a decree made by the Lieutenant-Governor in Council under The Collective Agreement Act. The respondent contended that it was not subject to the decree, as the latter concerned the printing industry and printing was not its principal business; and it also pleaded that, after the promulgation of the decree, a collective labour agreement entered into between it and its employees became the law of the respondent and its employees and that they were no longer subject to the decree.
The Superior Court maintained the appellant's action; but the judgment was reversed by the appellate court.
The appellant moved APPEAL-Concluded before this Court for special leave to appeal, on the grounds that the issue between the parties involved future rights, as upon the decision to be rendered depends whether the relations between the respondent and its employees should be governed by the decree or by the agreement, they being inconsistent with each other, and that an important matter ought to be decided as to whether there was an implied partial repeal of the provisions of The Professional Syndicates Act by the provisions of The Collective
Agreement Act. Held, that special leave to appeal should be granted. The matter in controversy in the appeal "involves matters by which rights in future of the parties may be affected" (Supreme Court
Act, s. 41), and is of sufficient general importance to justify this Court in granting leave to appeal.
PARI- BOOK Co. LTD...............
2.-Amount of damages for personal injuries-Jury's award - Unreasonable amount-Mistaken view of the case- Case as put to the jury-Consideration of verdict by appellate court-New trial directed as to amount..............
3.-Interference by appellate Court on question of quantum of compensation on expropriation of land ..............
See 1, 2.
ASSESSMENT
AND TAXATION-International law - Constitutional law- Crown-Powers of municipalities in Ontario to levy rates on foreign legations and High Commissioners' residences.]- The following questions were referred to this Court:
Is it within the powers of the Council of the Corporation of the
City of Ottawa to levy rates on (1)
properties in Ottawa owned and occupied as Legations by the Governments of the French State, the United States of
America and Brazil, respectively, or (2)
on property in Ottawa owned and occupied by His Majesty in right of the
United Kingdom as the Office and Residence of the High Commissioner for the
United Kingdom, or (3) on property in
Ottawa owned and occupied by His
Majesty in right of Australia as the Residence of the High Commissioner for the
Commonwealth of Australia, and (4) is it within the powers of the Council of the
Corporation of the Village of Rockeliffe
Park to levy rates on property owned and occupied by the Government of the
United States of America as the Legation of the United States in Rockeliffe Park?
The said municipalities are in the province of Ontario.
said questions, opinions were given as follows:
Per curiam: Questions and should be answered in the negative, as the properties come within the exemption of Crown property in the Ontario Assessment Act. As to questions 1 and 4: Per the Ohief Justice and Rinfret and Taschereau JJ. (the majority of the Court): These questions should be answered in the negative. Per the Chief Justice: There are applicable certain general principles of international law (as applied in normal times and circumstances), accepted and adopted by the law of England (which, except as modified by statute, is the law of Ontario) as part of the law of nations. The general principle which governs the juridical position of the foreign minister is that he owes no allegiance to the state to which he is sent and that he is -not subject to its laws.
The inviolability of his residence, used as a legation, is one of the diplomatic immunities recognized Eng'lish law and acknowledged in all civilized nations as annexed to the ambassadorial character.
The legation, for all the ordinary affairs of life, is equally, with the ambassador himself, not subjected to the authority of the territorial sovereignty. Taxes and rates imposed by statute in general terms in respect of the occupation or the ownership of real property are not recoverable from diplomatic agents in respect of real property occupied or owned by them or their states and occupied and used for diplomatic purposes. Such a statute creates no liability to pay; and it cannot, consistently with principle, create any effective charge upon the property: the property is not subject to process, or to visitation by government officers; and the foundation of this privilege is that the foreign state and its ambassador are immune from coactio (in the sense of Lord Campbell's judgment in Magdalena Steam Navigation Co. v. Martin, 2 E. & E. 94) direct or indirect. The contention that 'property of a foreign sovereignty in use for diplomatic -purposes may, without infringement of the principles of international law, be subjected to such a tax as a charge upon the land, cannot be accepted. So long as the property is devoted to such use, the territorial sovereignty admittedly cannot enforce a charge; and if, in case of a sale, the charge is to stand as against the purchaser, the statutory proceeding is only a method enforcing indirectly the law territorial jurisdiction against public property of the foreign sovereign; it would be the assertion of a right over it adversely affecting it, because charge would affect the price for which it could be sold;
the creation of the charge would amount to the creation a jus in re aliena, to a subtraction from the property of the foreign sovereign; and would be inconsistent with the principle "of absolute independence every superior authority" which lies at the basis of the immunities conceded to a foreign sovereign and his property. The general language of the enactments imposing the taxation in question must be construed as saving the privileges of foreign states under the principles above stated. (It was pointed out that the principles governing the immunities of a foreign sovereign and his diplomatic agents and his property do not limit the legislative authority of the 'legislature having jurisdiction in the particular matter affected by any immunity claimed or alleged.) Per Rinfret J.:
A principle of international law Which has acquired validity in the domestic law of England and, therefore, in the domestic law of Canada, is that a foreign minister is not subject to the laws of the state to which he has been sent as a diplomatic representative; he enjoys an entire independence from its jurisdiction and authority; consequently, he is exempt from the jurisdiction of its courts. It is a necessary consequence of the legal impossibility of collecting the taxes against foreign states or diplomats that such taxes may not be assessed and levied on the properties owned and occupied by them and used for diplomatic purposes; nor, consistently with principle, can the municipal corporation create any effective charge upon the property, because, as this would affect the price for which the property could be sold later to an ordinary purchaser, it would only be an indirect way of coercing the foreign state. Per Taschereau J.: It is a settled and accepted rule of international law in practically all the leading countries of the world, that property belonging to a foreign government, occupied by its accredited representative, cannot be assessed and taxed for state or municipal purposes.
immunity of the foreign minister from legal process in the country where he is sent extends to the property of his state, which is exempt from all forms of taxation.
It is with this in mind that the
Assessment Act of Ontario must be read.
Concurrence expressed with the reasons of the Chief Justice. Per Kerwin J.: On the basis that the questions submitted refer to the powers of the councils of the municipal corporations to impose assessments, taxes and charges, and not to their powers or those of the corporations acting through their officers and agents to compel payment of these taxes, questions
1 and 4 should be answered in the affirmative.
As to the properties owned by the foreign states, there is nothing to prevent the ordinary procedure being taken (whatever may be the ultimate result thereof), that is, for the assessor to enter them on the assessment roll and the countries concerned as owners thereof, and for the collector's roll to be prepared and for the proper municipal authorities to enter in that roll the amount of taxes
90231-21 either for general or special rates or assessments; and for the tax collector to send a notice in the usual form showing the amount of taxes. Per Hudson J.: Questions 1 and 4 should be answered in the affirmative, meaning thereby that the council of the municipality can impose such taxes, but this is qualified by the fact that assistance of the courts would not be given to enforce payment so long as the diplomatic immunity continued. The Dominion 'has the right to give a status to diplomatic representatives, and the Province is bound to recognize their status, but not necessarily bound to accord them 'privileges in, matters falling within provincial legislative jurisdiction under s. 92 of the B.N.A. Act; the granting of the status does not carry with it immunities from provincial laws beyond those immunities recognized by the provincial legislature.
There is no legislation of Canada 'or of Ontario granting immunities in respect of foreign legations, so that, if any exist, it must be by virtue of general principles of international law or of imperial legislation, having the force of law in Ontario. A consideration of the extent of such immunities under such principles legislation leads to the conclusion that a couit would be bound to hold that in Ontario no action could be proceeded with against any foreign sovereign or state or its diplomatic representatives who pleaded immunity, in respect of taxes imposed by municipal corporations, and the same rule would apply to any proceedings in court calculated to disturb their occupation of the land. But such immunity or privillege is one from action or molestation; it does not destroy liability. The Ontario legislature, which is supreme in the matters of -municipal institutions and property and civil rights in the province, has not seen fit to exempt the land used for legations from municipal taxes. The tax when imposed creates a lien and charge on the land; and, on severance of diplomatic relations or disposal of the land by the foreign state or its representative, the lien might well become effective. Again, a substanital -part of municipal taxation is imposed to -pay for the services rendered by the municipality, such as water, sewerage, etc., which it would have a right to withhold until taxes are paid.-(References were made in the opinions to distinction between taxes which constitute payment for services rendered for the beneficial enjoyment of the particular property in respect of which they are assessed (as water rates, etc.) and those which are levied for general purposes.
As to the first class: Per the Chief Justice: There is no obligation to provide the envoy from a foreign state gratutiously with water, or electricity, and it would be generally agreed that where a tax is in the nature of the price of a commodity, the person enjoying the benefit of that commodity ought to pay the price (though, semble, he cannot be compelled to do so, since his person is inviolate and his house and goods are exempt from legal process).
Per Rinfret
J.: The Attorney-General of Canada admitted that the "rates" with which the
Court must deal in its answers do not include the charges imposed for such services or commodities. Per Kerwin J.:
The word "rates" as used in the questions should not be so restricted.)
CITY
HIGH
2.- Schools--Companies-Company designating portion of its assessment in municipality for separate school purposes
-Separate Schools Act, R.S.O. c. 862, s. 66-Notice by company in form B- Complaint against assessment for separate school purposes-Onus of proof as to compliance with s. 66 (3)-Effect of absence of evidence.]-Notwithstanding the filing by a corporation of a notice in form B pursuant to s. 66 (1) of the Separate Schools Act, R.S.O. 1937, c. 362, requiring the whole or a part of the assessments of the corporation to be entered, rated and assessed for separate school purposes, and entry accordingly by the assessor in the assessment roll, it is not necessary for a person filing a complaint against such assessment for separate school purposes to adduce any evidence to prove that the notice so filed by the corporation contravenes s. 66 (3) of said
Act, but in the absence of affirmative proof that the portion of assessments required by that notice to be so rated and assessed does not bear a greater proportion to the whole of the assessments of the corporation than the amount of the stock or shares held by Roman Catholics bears to the whole amount of the stock or shares of the corporation, the whole of the assessments of the corporation should be entered, rated and assessed for public school purposes. The rule deduced from the Act in Windsor Education Board v.
Ford Motor Company of Canada, Ltd.,
[1941] A.C. 453, that the normal course of assessment and rating for educational purposes is that the ratepayer is rated for public school purposes, and that the right to the statutory exception in favour of separate schools must be established, is a rule of substantive law, by which the burden of proof is fixed from the beginning upon those claiming the benefit of that exception.
Co. DoIso.... 268
3.-Constitutional law-Provincial legislation-Taxes on land declared to be special lien or charge upon crops until paid-Priority over all other claims, liens, privileges or encumbrances on crop&- Whether intra vires the legislature-Direct or indirect taxation-Municipal taxation -Conflict with Dominion legislation- Adjustment of priorities
Preferential lien granted to a bank for seed grain advances-Whether persons or corporations outside province affected-The Municipal District Act, Alta., 1926, c. 41-The District Act Amendment Act, Alta
1941, c 68, 8. 81-The Bank Act, R.S.6., 1927, c. 12, s. 88 (10)-Sections 91 and 92 B.N.A. Act................. 4.-Assessment Act, R.S.O. 1987, c. 272 -Company assessed under s. 8 for business assessment; also under s. 9 (1) (b) in respect of certain income-Income assessable as not being derived from business in respect of which company was assessable under s. 8-Appeal under s. 85, as being "on a question of law or the construction of a statute".......... 440 See TAx 2.
5.-For Income Tax cases, see ASSIGNMENT-of claims against defendant for royalties claimed under license agreement between owner of patents and defendant-Sufficiency of assignment- Sufficiency of notice thereof to defendant ..........................
BANKS AND BANKING.
BILL OF LADING.
BONA VACANTIA
BREACH OF PROMISE
MAR- RIAGE
BRIDGE-Railway bridge over highway -Height of-Injury to person...... 152 BULK
SALES
ACT (B.C.)-Declaration made by vendor pursuant to Bulk Sales Act-Statement proved to be false -Whether offence is perjury under section 172 Cr. C.-Substitution of lesser offences under sections 175 and 176 Cr. C. -Criminal Code, sections 170, 171, 172, 178, 174, 175, 176, 951 (1), 1016 (2)-Bulk Sales Act, R.S.B.C. 1936, c. 29-British Columbia Evidence Act, R.S.B.C., 1936, c.90 .........................
CARRIERS-The Transport Act, 1988
-Application to Board of Transport Commissioners for approval of agreed charge between shipper and competing carriers by rail-Relevant considerations for the
Board-Effects of agreed charge on business and revenues of other carriers.1-On an application to the Board of Transport
Commissioners under s. 35 of The Transport Act, 1988 (Dom., 2 Geo. VI, c. 53), for approval of an agreed charge between a shipper and competing carriers by rail, the Board is not precluded from regarding as relevant considerations the effects which the making of the agreed charge is likely to have on the business and revenues of other carriers, such as competing carriers by water. (Contra, per the Chief Justice and Rinfret J., dissenting.)
Sees. 35 (1)
(5) (13), 36 3 (2) of said Act particularly considered.
Re 1938
(Dom. c. 53).....................
2.-See 2.
CHEMICALS-Regulations as to-Controller of .............................
CIVIL CODE-Art. 14 (Prohibitive laws importing nullity) ................
2.- Art. 1241 (Presumption) ....... 165
3.- Arts. 1884 and following (Partnership) ............ .................
4.- Art. 2480 (Insurance)......... 189
5.-Arts. 8569, 2570, 8571 (Fire Insurance) .........................
6.-Arts. 288, 2861, 8268 (1), 267 (Prescription) .........................
CODE OF CIVIL PROCEDURE-Art.
87 (Joinder of causes of action)...... 127
2.-Art. 177 (6) (Dilatory Exceptions)
....................
3.-Art. 198 (Inscription in Law) .. 127
4.-Art. 442 (Trial by Jury) ...... 464
5.-Art 599 (Exemptions from Seizure)
...................
CODE NAPOLtON-Art. 1851 (Des prgsomptions) ........................ PoucY) 2.
COMPANIES-Trust company taking over deposits with loan company and agreeing to pay depositors-Moneys left unclaimed in hands of trust company- Winding-up of trust company-Whether moneys are property of Dominion as unclaimed dividends, or of the province as bona vacantia or under Vacant Property Act-Moneys held by liquidator as trustee for depositors-Winding-up Act R.S.C. 1987, c. 818, sections 189 and 140-Vacant Property Act, Man. 1940, c. 67.1-The Imperial Canadian Trust Company and the Great West Permanent Loan Company, both having charter -power to receive moneys on deposit, were closely associated in management. In 1924, the Loan Company, having decided to discontinue its deposit business, entered into an agreement with the Trust Company whereby the latter took over the deposits of the former on terms set out in the agreement. The amount of deposits so turned over was $124,249.16, and the Loan Company delivered to the Trust Company securities aggregating that amount in estimated value.
The Trust Company proceeded from time to time to dispose of these trust assets and to pay depositors and, on December 27th, 1927, had paid off $105,- 968.87, leaving an unpaid balance $18,280.29.
On that same date the Trust Company was ordered to be wound up under the Winding-up Act and the Montreal Trust Company was appointed as liquidator. In August, 1929, an immovable property, the only remaining security still undisposed of, was sold by the liquidator for $30,336.65 and the liquidator "set aside and earmarked", in 'May, 1930, the above sum of $18,280.29.
The liquidator paid out of that sum $8,435.89 to depositors who had filed claims pursuant to an order made by the Master in Chainbers, leaving a balance of $9,844.40. The Provincial Treasurer of Manitoba, by an application filed
December, 1937, claimed that sum as bona vacantia, and this is the subject-matter of the first appeal. Then, in April, 1940, the Manitoba legislature passed an Act called the Vacant Property Act, and, in July, 1940, Attorney-General
Manitoba claimed the same moneys under the provisions of that Act, and this is the subjectmatter of the second appeal. The Minister of Finance for Canada contended in both cases that the moneys were the property of the Crown in right of the Dominion as unclaimed dividends under sections 139 and 140 of the Winding-up Act. The appellate court held that the Dominion had jurisdiction over these moneys as part of its jurisdiction over bankruptcy and that its legislation should prevail. COMPANIES-Concluded
Held, reversing the judgments appealed from (48 Man. R. 45 and [19421 1 W.W.R.
65) that the first appeal should be allowed in so far as the judgment a quo directed the moneys in question to be -paid to the
Minister of Finance under the provisions of sections 139 and 140 of the Winding-up
Act; and that the second appeal should also be allowed and that it be directed that the moneys be paid to the Provincial
Treasurer for Manitoba under the provisions of the Vacant Property Act. Held that such fund was held by the liquidator in order to fulfil the trust agreement entered into in 1924 by the Trust Company and the Loan Company, and can be treated in no other way.
Accordingly, sections 139 and 140 of the Winding-up
Act can have no application.
These moneys were held by the liquidator as trustees for the individual depositors and not for the trust estate or anybody else.
Held that, as to the first action, the moneys in question cannot be treated as bona vacantia: they may have a discoverable owner, the possibility cannot be excluded that there may be many depositors still alive who have merely forgotten about their deposits, and, on the evidence, a general finding of abandonment cannot be made. Held that, as to the second action, these moneys were -held -by the liquidator in trust for the depositors within the meaning of the provisions of the Vacant
Property Act and that the claim of the
Attorney-General
Manitoba made under that Act should be maintained.
2.- Assessment and taxation-Schools- Company designating portion of its assessment in municipality for separate school purposes-Separate Schools Act,
CONSPIRACY
CONSTITUTIONAL
LAW-Power the Governor General in Council, under the War Measures Act, 1914, to delegate his powers to subordinate agencies-Order in Council same as Act of Parliament- Final responsibility for acts of Governor
General in Council resting upon Parliament-Enactment contained in Order in Council not open to review by courts of law-Regulations as to chemicals and Order by Controller of Chemicals declared intra vires-Applicability of the maxim: Delegatus non potest delegare.]-Held: Regulations respecting chemicals established by an Order in Council, which is expressed to be made pursuant to the powers conferred by the Department of Munitions and Supply Act and by the War Measures Act, are not ultra vires of the Governor General in Council either in whole or in part, except paragraph four which is ultra vires. Paragraph four of the Order in Council provides that the compensation, to which a person may be entitled whenever
Controller Ohemicals takes possession of any chemicals, or equipment, or real or personal property, shall be as prescribed and determined by the Controller, with the approval of the Minister of Munitions and Supply.
Such paragraph is in conflict with section 7 of the War Measures Act, which enacts that, whenever any property has been expropriated by the Crown, the claim for compensation must be referred by the Minister of Justice to the Exchequer Court of Canada or to other mentioned courts.
Held, also: An Order of the Controller of Chemicals, appointed by these Regulations, relating to the control of the 'production and consumption of, as well as the dealing in, glycerine, is not ultra vires of the Controller either in whole or in part.-No opinion was expressed by the Court, such questions not having been referred to it, as to the meaning or the application of any of the Regulations or of the Order of the Controller. authority vested in the Governor General in Council by the War Measures Act, (its constitutional validity having been finally determined in Re Gray, 57 S.C.R. 150 and Fort Frances case, [19231 A.C. 695), is legislative in its character; and an order in council passed, in conformity with the conditions prescribed by, and the provisions of, that Act, i.e. a legislative enactment such as should be deemed necessary and advisable by reason of war, have the effect of an Act of Parliament: In re Gray, supra. Held, further, that the Governor General in Council has the power, under section 3 of the War Measures Act, to delegate his powers, whether legislative or administrative, to subordinate agencies (Boards, Controllers and other officers) to make orders, rules and by-laws generally of the nature of those the Controller of Chemicals is empowered to make by the Regulations above mentioned.
But, under the War Measures Act, the final responsibility for the acts of the Executive Government rests upon Parliament. Per Rinfret and JJ.-Parliament its abandoned its control.
The subordinate instrumentality, which it ihas created for exercising the powers, remains responsible directly to Parliament and depends upon the will of Parliament for the continuance of its official existence.
Per Davis J.
Parliament has not effaced itself, and has fulil -power to amend or repeal the War
Measures Act or to make ineffective any of the orders in council passed in pursuance of its provisions. Per Kerwin J.- If at any time Parliament considers that too great a power has been conferred upon the Governor General in Council, the remedy lies in its own hand. Per
Rinfret and Taschereau JJ.-The advisability of the delegation of 'his powers to other agencies is in the discretion of the
Governor General in Council; and once the discretion is exercised, the resulting enactment is a law by which every court is bound in the same manner and to the same extent as if Parliament had enacted it.-Comments as to the applicability of the maxim Delegatus non potest delegare.
10, 1941, P.C. 4996,
2.-Time for redemption in action for specific performance of agreement for sale of land-Constitutional validity of The
Alta., c. 87, s. 2.1-There was in question the constitutional validity of of The
Judicature Act Amendment Act, 1942 (c.
37), adding to of The Judicature Act,
Alberta, paragraph (ddd), which extended the time for redemption, under any order nisi or order for specific performance theretofore granted in an action for foreclosure of mortgage or in respect of an agreement for sale of land, respectively, in any case where no final vesting order or cancellation order had been granted, for one year from the coming into force of the enactment; and also specified the time to be fixed for redemption by the order nisi or the order for specific performance in any such action commenced before or after the passing of the enactment, at one year from the date of the order;
provided however that in any action coming under above provisions the judge might on application decrease or extend said period of redemption having regard to circumstances in respect of certain matters specified; and, by clause (iii), provided that nothing contained in the enactment should apply to "(a) any action in which a permit is not or was not required pursuant to the provisions of
The Debt Adjustment Act, 1987; or (b)
any action authorized by a permit granted by the Debt Adjustment Board; or any action in which the consent of the debtor has been obtained."
The objection to the enactment was that as a whole it was colourable and its real purpose was to give indirectly some effect to The Debt Adjustment Act, 1937, which had been held ultra vires. Held (reversing the Supreme
Alberta,
Appellate
Division, W.W.R. 607):
The enactment was not ultra vires. Standing by itself (excluding clause iii), it was a normal exercise of provincial legislative -power; concerned property and civil rights within the -province and procedure in civil courts relating thereto.
As to clause (iii), gave creditors the benefit of provisions of an Act which would shorten the prescribed time for redemption, and, in any event, clause (iii) was severable and, The Debt Adjustment Act, 1987, had finally been held ultra vires, could have whatever.
3.- Provincial legislation-Taxes on land declared to be special lien or charge upon crops until paid-Priority over all other claims, liens, privileges or encumbrances on crops-Whether intra vires the legislature-Direct or indirect taxation-Muni- -cipal taxation-Conflict with Dominion legislation-Adjustment of priorities- Preferential lien granted to a bank for seed grain advances-Whether persons or corporations outside province affected-The Municipal District Act, Alta., 1926, c. 41- The Municipal District Act Amendment Act, Alta., 1941, c. 68, s. 81-The Bank Act, R.S.C. 1927, c. 12, s. 88 (10)-Sections 91 and 92 B.N.A. Act.]-Section 31 of the Alberta Municipal District Act Amendment Act, 1941, amending the Municipal District Act by adding new sections and 354b, enacts, inter alia, that "all arrears of taxes outstanding as at the date of the coming into force of the Act" (and also the taxes in any year thereafter) "in respect of land in any municipality, shall be a special lien or charge upon all crops grown or to be grown on the said land until the said taxes are paid, and such lien or charge shall have priority over all other claims, liens, privileges or encumbrances on such crops except as set out in The Crop Liens Priorities Act." that section is intra vires the legislature of the province of Alberta: the enactment making the land tax a first lien upon the crops until paid is an enactment strictly within the ambit of section B.N.A. Act. Per the Chief Justice and Davis, Kerwin and Hudson JJ.-The legislation enacted by section is a legitimate exercise of the power of the legislature in relation to direct taxation and matters merely local and private, the matter of the legislation being strictly provincial and the aim of the legislation obviously being to place obstacles in the way of persons seeking to avoid payment of the land tax. Under the system of municipal assessment and taxation provided by the Municipal District Act, the tax is a land tax, and the means authorized for enforcing payment are generally of the same type as those which have been employed by the provinces for that purpose for over fifty years. The liability of the owner, or of a purchaser or a mortgagor with even an economic interest of the slightest, to pay taxes on the assessed value of the land is a liability which has in a pecuniary sense no necessary relation to the value or nature of the taxpayer's interest in the land. Furthermore, the special lien which is created by section 354 is enforceable by the statutory proceedings under which the interest of everybody in the land, excepting the interests specified in the enactment, is extinguished by the sale; subject to a recognition of these interests, the land, irrespective of the persons who may have legal interests in it, is treated as an econome thing upon which a contribution by way of a tax is levied and which may, if necessary, be sold for the purpose of obtaining payment of that contribution.
A provincial legislature cannot delegate to a municipality authority to levy a tax which it cannot levy directly:Attorney-General for Ontario v. Attorney-General for the Dominion ([18961 A.C. 348, per Lord Watson at
364). But there is no ground upon which it can be affirmed that a direct tax upon land, or in relation to land, loses its character as a direct tax by reason of the fact that moneys due in respect of it are declared to be a lien upon the crops grown upon the land both before and after severance, as provided by section
As to the point raised that the personal liability to pay imposed by section 354 (a)
(4) is in effect an indirect tax because the taxpayer will seek to recoup himself from the persons directly liable to pay the tax, it must be observed that the tax is a single tax which when once paid is extinguished and until paid is a lien on the crop.
A purchaser of the crop takes it cum onere. Furthermore, the persons affected are prohibited from receiving, or accepting any such crop or any part of the proceeds of the sale of such crop until the tax has been paid.
Also, if certain provisions of the Bank Act and other
Dominion statutes conflict with section it may be that, to that extent, this section will be overborne by such Dominion legislation in particular cases in which a conflict arises. Assuming the primacy of the first-mentioned legislation, and that the provincial legislation would be displaced in case of such a conflict, it does not follow that the provincial legislation is ultra vires; the provisions of the Tax
Act have full effect in all cases in which the facts do not bring the Dominion legislation into play.
Attorney-General for Ontario v. Reciprocal Insurers ([1924] A.C. 328, at 345, 346); McColl v. Canadian Pacific Railway Co. ([19231 A.C. 126, at As to section 88 of the Bank Act and especially subsections dealing with seed grain, fertilizer and binder twine, it must be observed that, while the Dominion Parliament has exclusive jurisdiction in relation to banks and banking, it does not follow that banks are taken out of the province.
They remain within the province and subject to validly enacted provincial laws: they and their property are subject to taxes imposed by a province in the lawful exercise of its authority in relation to direct taxation. Canadian Pacific Railway Co. v. Parish of Notre Dame de Bonsecours ([1889] A.C. 367).
But the question whether a lien arising under these provisions of the Bank Act possesses priority over a tax lien as the one in this case, ought to be reserved for decision in a concrete case between a bank and the taxing authority. The effect of the provisions of section 31 is not to impose a liability upon persons and corporations outside the province. Attorney-General for Ontario v. Reciprocal Insurers ([19241 A.C. 328, at 345). Per Rinfret and Taschereau JJ.-The legislation enacted by section 31 is nothing else than legislation in municipal matters imposing a municipal tax and providing security to assist in the collection of that tax. Such legislation was meant to be confined to local transactions, and it must be so construed; it is legitimate taxation within the province in the exercise of the powers devolved upon provincial legislation in relation to municipal institutions in the province, within the provisions of section 92 B.N.A. Act. If, in a sense, such legislation affects subject-matters reserved to the Dominion Parliament it does so only collaterally and in no wise so as to entail unconstitutionality or, as a consequence, invalidity. Charges or imposts, authorized by provincial legislation, acting within its sphere, ought not to be declared unconstitutional upon the ground of an apparent conflict or a dispute, as to the priority, between a lien, such as the one enacted in section and liens created by Dominion legislation. In such case, it would be purely a matter for the courts to decide and to adjudge the respective priorities enacted by Dominion and provincial legislation: Silver Brothers Ltd. v. Hart ([19321
A.C. 514;
[1929] S.C.R. 557). Also, section 31 is not directed to trade and commerce as understood under the decided cases, not to any of the specific heads of section B.N.A. Act; and if it affects any of the matters under that section, it is only "as a necessary incident to the lawful powers of good government within the province." Ladore v. Bennett
([1939] A.C. 468 at 482).
The tax imposed by section 31 (if it is a tax, as, in reality, it is the same tax enacted in the main Act, for which a new debtor is made liable) is not an indirect tax or an indirect method of recovering the tax on the ground that the general tendency would be for the purchaser to pass the tax on to the owner of the land. Such tax is a tax on land, a municipal tax and is not, as to its incidence, to be regarded in the same aspect as taxes upon commodities to which
Mill's formula concerning taxation is generally applied.
City of Halifax v. Fairbanks Estate ([19281 A.C. 117, per Viscount Cave, L.C. at 125).
VALIrY 31
D iSaTr ACr 1941, c. 53,
.........................
4.-Natural Resources Agreement of
1929, section 2-Timber leases issued by
Dominion-Increase of dues by province on renewals-Whether ultra vires the province-Right of province to alter dues at discretion-"Terms" of licences-Dues alleged to be prohibitive-Acceptance by licensee of licenses issued by province- The Dominion Lands Act (D), 1908, c. 20
Provincial Lands Act (Alta.), 1931, c. 48, and 1939, c. 10.1-The plaintiffs, appellants, for many years prior to 1930, were holders of licenses to cut timber.
These licenses, issued for one year but renewable, had been granted by Dominion officials under the authority of the Dominion Lands Act. The ground rentals and annual dues were increased by regulations from 1886 until 1930, when the rates payable were per square mile for ground rental and $1 for dues per 1,000 feet board measure.
In 1929, an arrangement, the
Natural Resources Agreement, was made between the Dominion of Canada and the province of Alberta, under which all
Crown lands were to be transferred by the
Dominion to the province, subject to outstanding obligations which the province undertook to implement; and on the 1st of October, 1930, the provincial officials took over the administration of these lands. In 1931, the Provincial Lands Act was enacted and the Dominion Lands Act ceased to have force of law in the province. Under the authority of the Provincial Lands Act, the province, for each of the years 1931 to 1939, issued licenses to the appellants or their predecessors in title in practically the same form as theretofore issued by the Dominion.
These licenses were formally accepted, signed and sealed by the appellants; and similar renewals were issued in each year until
These licenses contained a clause that the licensee should be entitled to renewal of his license from year to year, provided that such renewal should be subject to the payment of such rental and dues and to such terms and conditions fixed by the regulations in force at the time the renewal was made. In 1940, by order in council passed under the authority of a new Provincial Lands Act enacted in 1939, new regulations were made for the disposition of timber lands belonging to the province and the fixing of dues thereon. On the 25th of July, 1940, it was provided that the licensee of timber berths acquired pursuant to regulations theretofore established under the Dominion Lands Act should pay dues at the rate of $2.50 per 1,000 feet board measure, and on the 28th of May, 1941, the rate was increased to $3. On May 30th, 1941, by order in council, it was also provided that the Minister of Lands and Mines was authorized to grant licenses for the fiscal year ending March 31st, 1942, for the operation of these same berths, subject to the payment of dues on all timber cut under such licenses, the rate being made $1.75 per 1,000 feet.
The appellants brought an action to have it declared that the province had no power to increase the dues payable by them as licensees beyond the sum of $1 per 1,000 feet, being the sum payable at the date of the transfer by the Dominion to the province; and it was contended that, if it has such power, it has not effectively exercised it. The trial judge held that the order in council of the 30th of May, 1941, fixing the rate of dues at $1.75 per 1,000 feet, was intra vires of the province; but he declared that the regulations passed by orders in council of the 25th of July, 1940, and of the 28th of May, 1941, in so far as they fixed the rate of dues at $2.50 and $3 per 1,000 feet were ultra vires. The appellants appealed to the Appellate Division from the first part of the judgment of the trial judge; and the respondents cross-appealed from the second part of that judgment. The Appellate Division dismissed the appellants' appeal and allowed the respondents' crossappeal. Held, affirming the judgment of the Appellate Division ([19421 2 W.W.R. 554), that the provincial regulations at present being enforced were not ultra vires and that the appeal should be dismissed.
Held.-The provincial government had the right to increase the rates of dues payable by the appellants over the amount of $1 per 1,000 feet named in the Dominion Government regulations at the time of the transfer. The Dominion licenses then in force were not conditional on the observance by the province of the regulations passed by Federal orders in council under the Dominion Lands Act. The terms of the transfer agreement from the Dominion to the province amount to a statutory novation, as held by the Judicial Committee in In re Timber Regulations for Manitoba ([19351
A.C.
Moreover, upon the facts in the present case, it must be held that the power possessed by the Dominion to vary the dues became vested in the province.
The appellants, after the transfer, each year for nine successive years, applied for, received and accepted licenses from the Provincial
Government, thus formally and definitely accepted its jurisdiction and agreed to abide by its regulations and paid the fees imposed by the Provincial Government.
Held, also, that the authority so transferred has not been limited or fettered by the "terms"
of the Natural Resources
Agreement (approved and confirmed by statute), and specially by clause 2 under which the province had agreed to carry out the terms of every subsisting lease or arrangement and not to alter or affect any of these terms. In construing the terms of that agreement, sanctioned by legislation which in effect amounts to a constitutional limitation, it must be held that the provincial authorities have the right to alter the dues in their discretion, provided that the alteration is not done with the purpose, or with the effect, of nullifying the agreement.
question, as to whether such point has been reached, must be determined according to the facts in each particular case.
present case, there is no adequate evidence on which to decide such question, as held by the appellate court. At the argument, it was submitted on behalf of the respondents that the orders in council when properly interpreted do not impose any rate after March 1st. 1942; and, accordingly, the appellants will still be entitled to apply again to the courts in the event of any attempt being made to enforce, in the future, rates which they may deem prohibitive.
5.-Validity of Oil and Gas Wells Act,
Alberta, 1931, c. 46...................
6.- Assessment and taxation-Crown- Powers of municipalities in Ontario to levy rates on foreign legations and High
Commissioners' residences........... 208
Trust company taking over deposits with loan company and agreeing to pay depositors-Moneys left unclaimed in hands of trust company-Winding-up of trust company-Whether moneys are property of Dominion as unclaimed dividends, or of the province as bona vacantia or under Vacant Property Act-Moneys
CONSTITUTIONAL LAW-Concluded held by liquidator as trustee for depositors -Winding-up Act R.S.C. 1927, c. 213, sections 139 and 140-Vacant Property Act, M an. 1940, c. 57.................... 8.-Military and naval forces of United States of America-Present in Canada with consent of Dominion Parliament for military operations in connection with present war-Whether exempt from criminal jurisdiction of Canadian courts-If not exempt, whether Dominion Government, or Governor General in Council under War Measures Act, have jurisdiction to enact legislation to grant such exemption .......
.............. CONTRACT-Action for damages for breach of promise of marriage-Evidence -Statute of Frauds, R.S.O. 1937, c. 146, s. 4-Limitations Act, R.S.O. 1937, c. 118, s. 48 (1) (g)-Corroboration (Evidence Act, R.S.O. 1937, c. 119, s. 10).1-The action, brought in 1941, was for damages for breach of promise of marriage. Plaintiff alleged that she and defendant became engaged in 1908, to be married when defendant had improved his prospects in life, and that lie broke the engagement in 1941. At the trial, Makins J., on motion for non-suit, withdrew the issues from the jury and dismissed the action, holding that there was in 1919, if the engagement still existed, a breach of it; that since that time the parties had not been engaged; and the Limitations Act (Ont.) barred right of action; also that the Statute of Frauds (s. 4) applied. His judgment was set aside by the Court of Appeal for Ontario
O.W.N.
513; 4 D.L.R. 150), which held that, on plaintiff's evidence, if accepted by the jury, the jury might have found that promises were made which would not come within the Statute of Frauds and also might have found no breach of engagement before 1941; that there was evidence in support of plaintiff's case that should have been submitted to the jury and, therefore, there should be a new trial.
Defendant appealed. Held: The appeal should be dismissed. Per the Chief Justice and Davis J.: There was some evidence open to the construction, if the jury so viewed it, that the promise was a continuing one up to shortly before the writ was issued and that the breach first occurred then; or the jury might have inferred from the evidence that the parties mutually abandoned the contract when neither party insisted on its performance for an inordinate length of time; or the jury might have found that a breach occurred at least as early as 1919 when, according to plaintiff's evidence, defendant was in a 58()
financial position to marry. These were all questions for the jury, and the direction for a new trial should be sustained.
(1) As to the Statute of Frauds (R.S.O.
1937, c. 146, s. 4):
However the case might stand in respect to the promise of
1908, there was evidence (for the jury's consideration) of later promises that were not within the statute.
(It was pointed out that the rule is that, even if any promise be made in the expectation that it will not be performed within the space of one year, the statute does not apply if it is possible that the promise can be performed, or is not incapable of being performed, within a year).
Limitations Act (R.S.O. 1937, c. 118):
There was evidence which the jury was entitled to consider, of new promises by words or conduct, and if the jury believed that evidence and if they found that a breach of any one of such new promises occurred within six years before the action was begun, s. 48 (1) (g) of the Act would not apply.
Such a result would necessarily involve a finding that any earlier agreement to marry had been ended by mutual arrangement and therefore s. 54 (1)
of the Act could not operate.
(3) As to corroboration (s. of the Evidence Act,
R.S.O. 1937, c. 119):
Corroboration must be evidence of a material character supporting the case to be proved. It may be afforded by circumstances. The evidence relied on as corroborative need not go the length of establishing the promise relied on; it is sufficient if it supports the plaintiff's evidence that the promise was made; and evidence showing that an engagement existed, such evidence being not inconsistent with the precise engagement sworn to by plaintiff, may fulfil the requirement. There was material evidence, other than that of plaintiff, in support of a promise that the jury might find on the evidence was made within the period fixed by the Limitations Act.
(4) As to evidence of certain witnesses, it was held that their testimony as to what they observed of the relations between plaintiff and defendant was admissible but not their statements that plaintiff and defendant were regarded in the community as an engaged couple. Morr v. TRorr..... 256
2.-Sale of goods-Date of delivery- Common carrier-Bill of lading-Goods
"for export"-Place of delivery "West St.
John"-Goods remaining at St. John pending instructions from consignee- Non-acceptance by consignee-Liability for damages resulting therefrom-Substantial performance of contract by common carrier-Carrier ready to deliver goods when notified by consignee as to place of delivery-Failure of consignee to give such notice-Practice or method of handling cars from one place to another by means of two railway companies-Practice forming part of contract or tacitly annexed to it-Evidence as to such practice-Admissibility-not varying but explaining written contract.1-The appellant company entered into a contract with the plaintiffs respondents, on October 2nd, 1939, to purchase 5,000 sacks of potatoes, to be delivered on or before the 18th October, 1939.
They were accepted for shipment from Prince Edward Island by the Canadian National Railway Company respondent, the destination specified in the bill of lading being "West St. John, for export" with instructions to "notify Furness Withy & Co. Ltd."
The Canadian National Railway Company brought the shipment to the end of their railway line in East St. John, on the 16th of October, 1939.
To get the cars to West St. John, it was necessary to turn them over to the Canadian Pacific Railway Company to haul them another six miles to West St. John on that company's line. Notice of arrival of the last car was given by the railway respondent to Furness Withy, the "notify party", on the 17th of October, 1939, which, in turn, at once notified the appellant company. were many verbal, telephone and wire communications, relating to the delivery of the potatoes, between the appellant company and the two railway companies. Finally on the 30th of October, 1939, the potatoes were refused by the consignee, the appellant, on the ground that they had not been delivered at West St. John, as the contract called for. The evidence established that, for at least twenty years, the method of handling cars brought by the respondent railway at St. John, for export at West St. John, has been to retain them on the tracks of the respondent railway until their contents could be received at West St. John, either for loading on a vessel or for storage in a dock shed; and it was found by the trial judge that such practice was known to both the appellant company and the plaintiffs respondents. The potatoes, after they were refused by the appellant company, were transferred to refrigerator cars and eventually sold at a loss.
The plaintiffs respondents brought action against the railway company for damages because of their alleged failure to deliver the potatoes in time, and they joined the appellant company as defendant, claiming, in the alternative, from it the purchase price of the potatoes. The case was tried before Richards J., who found the railway company liable to the vendors, because of its failure to deliver the potatoes in accordance with their contract and dismissed the action against the appellant company. The Appeal Division set aside the judgment against the railway company and directed that judgment be entered against the appellant company in favour of the plaintiffs respondents with costs, including the costs of the railway company. The
Pirie Company appealed to this Court.
Held that the judgment appealed from
M.P.R. 353) should be affirmed. Per
Rinfret and Taschereau JJ.-The result of the insertion of the words "For export"
on the bills of lading was that the goods to be carried and delivered were indicated as intended to be exported by water from Canada, such a purpose entitling the goods to be carried at a lower rate. The indication "West St. John" was a vague description of the territory where the potatoes were to be delivered, and the particular place where the purchaser intended to have the potatoes unloaded and to accept them was unexpressed in the bills of lading.
The respondent railway company was at all times able, ready and willing to execute delivery by transferring the cars to West St. John sheds by means of the Canadian Pacific Railway Company and when it accepted to carry the potatoes to their destination, the respondent was entitled, according to usage and practice known to the appellant company, to have a shed indicated to it by the latter as soon as the potatoes had reached the place from which the cars would have to be switched to the exact destination.
It was only by failure to give the proper instructions on the part of the appellant company that the respondent railway was prevented from delivering at the exact shed, in West St. John, where the appellant company wished to accept delivery.
Both respondents carried out their contract towards the appellant company as far as they were able to do it; and, so far as the latter is concerned, it must be held to the contract exactly as if it had received delivery of the goods. Per Rinfret and Taschereau JJ.-Under the circumstances, the practice or method of handling cars from St. John to West St.
John must be held to have formed part of the terms of the bill of lading and do not come into conflict with any express.
terms of the contract; the evidence in that respect was both admissible and applicable.
The exact place of delivery was unexpressed in the contract, and the practice or usage was not excluded either expressly or impliedly by the terms of the bills of lading. Such custom was not only reasonable but, in fact, necessary. A general usage of that character must be taken to be tacitly annexed to all contracts relating to business with reference to which they are made, unless the terms of such contract expressly or impliedly exclude them. Metzner v. Bolton (9 Ex. 518 at
521), Meyer v. Dresser (16 C.B. ns. 646 at 660) and Produce Brokers Company Ltd. v. Olympia Oil and Cake Ltd. ([19161 1 A.C. 314, at 324).
In such a case the presumption is that both parties knew of the practice and usage and contracted accordingly.
Per Davis J.-The appellant company must be held liable. It knew perfectly well what it meant by stipulating for "delivery at West St. John", with instructions to notify F. W. & Co. at St. John.
Moreover, the evidence as to what was so meant was admissible, not for the purpose of contradicting or varying the written contract, but to explain it: such evidence was relevant to the true meaning and effect of the contract: Norden Steam Company v. Dempsey (1 C.P.D. 654).
The appellant company, at the time it made the contract, intended to sell and export the potatoes from the western harbour of St. John. The vendor substantially performed its part of the contract when the potatoes arrived at the railway terminal in St. John and the shipping agents were notified. It was for the purchaser to arrange for transportation on an outgoing boat and for a berth on the docks or to take delivery at the railway terminal. It did neither, and must take the consequences. Per Kerwin, Hudson and Taschereau JJ.-The designation of "West St. John" as the place for delivery of the goods under the contract was incomplete.
The seller was entitled to assume that it was the intention of the buyer to ship the goods by sea and, therefore, it was necessary for the buyer to specify the ship and the dock in West St. John before delivery could be completed. The buyer was notified of the arrival of the goods in St. John in ample time to have the shipment placed wherever he wished in West St. John within the time specified in the contract.
He failed to designate such place and it is not now open to him to complain that delivery was not made as provided in the contract. Sutherland v. Allhusen (14 L.T. ref. F. W. PIM LD. RY. 3.-Patents-License agreement between owner of patents and defendant-Effect of subsequent adjudications as to validity of the patents, and of filing of a disclaimer, on defendant's liability for royalties under the agreement-Plaintiff, as assignee of owner of the patents, suing defendant for royalties - Sufficiency of assignment Sufficiency of notice thereof to defendant.1-Plaintiff sued as assignee of C. Co. to recover from defendant minimum monthly royalties claimed under an agreement of May 28, 1935, whereby C. Co. granted to defendant a non-exclusive and non-transferable license to use the improvements under two Canadian letters patent, no. 265960 and no. 311185, to make and sell certain goods, and defendant agreed to pay C. Co. monthly in advance a minimum monthly royalty, and certain royalties, so far as these exceeded in any year the minimum monthly royalties, for shirts manufactured by defendant with parts, etc., "made with or containing cellulose acetate or other derivative of cellulose". C. Co. agreed that as long as the license remained in effect and defendant paid the royalties, it would not sue defendant for infringement of any patent then owned or controlled or thereafter acquired or controlled by C. Co. and relating to the specified goods.
agreement, defendant admitted the validity of the patents and agreed not to contest their validity and not to become voluntarily a party to any procedure disputing the validity or tending to impair the value of any of the inventions or letters patent covering the same, during the period of the license and at all times thereafter "except as to such patent or patents as may be adjudicated invalid by a court of competent jurisdiction whose decision no appeal is or can be taken". Patent no. 311185 was held invalid by a judgment of the Exchequer
Court of Canada on March 26, 1936, and no appeal was taken from that deesion.
During litigation as to patent no. 265960,
C. Co., on April 3, 1937. filed a disclaimer restricting in terms the scope of the claims, and by judgment of the Judicial
Committee of the Privy Council, of January 23, 1939, the claims in the patent "as made by the patentee in the specification as originally filed" were declared invalid.
Defendant paid royalties down to July,
1937, but not thereafter. Plaintiff claimed that the right which it now sought to enforce was acquired by it under what was called a "participation agreement", of
May 1, 1939, between C. Co. and plaintiff, in which, inter alia, C. Co. covenanted that it was the owner of some named
Canadian patents, among which was included patent no. 265960 (but not patent no. 311185), and granted to plaintiff an exclusive license throughout Canada, with the right to grant sub-licenses, "to make, use or sell articles of apparel under said letters patent or any other patent * * * owned by [C. Co.] relating to the uniting of fabrics by fusion for use in articles of apparel" (para. 1 (a)); and C. Co. assigned to plantiff all claims for royalties which C. Co. might have against the licensees "under licenses heretofore granted by it under any of the patents referred to in paragraph (a) hereof
*
*
* account of manufacture or sale
*
*
* occurring before May 1, 1939" and "all royalties and claims for royalties on account of manufacture or sale * * * occurring from and after May 1, 1939, which [C. Co.] may have against its licensees under licenses heretofore granted by it under any of the patents within the field of the exclusive license granted in paragraph 1 (a) hereof". Plantiff claimed the amount of minimum monthly royalties from August 1, 1937, to April 1, 1940, inolusive, with interest. Held (Rinfret J. Plaintiff should have judgment against defendant for the amount claimed, with interest. (Judgment of the Court of Appeal for Ontario, [19421 O.R. 271, reversed).-Defendant's covenant in the agreement of May 28, 1935, to pay to C. Co. a fixed monthly sum, irrespective of the exercise of any of the rights granted to it, was an independent covenant and remained operative and effective notwithstanding the adjudications made with respect to the two patents specifically mentioned in the agreement. The agreement of May 1, 1939, was sufficient to make over the debt now sued for, and, if proper notice of the assignment was given to defendant, plaintiff was entitled to sue in its own name; and a letter from plaintiff's solicitors to defendant before action, reading: "Our clients, [naming the plaintiff], have had some correspondence with you with respect to the royalties due under the agreement of May 28th, 1935, between yourselves and [C. Co.], the royalties under which have been assigned to our client" and demanding settlement, was sufficient notice under the relevant statute (R.S.O. 1937, c. 152, s. 52); all that is necessary is that the express notice in writing to the debtor should give him to understand that the debt has been made over by the creditor to some third person; if the debtor ignores such notice, he does so at his peril.
v. LTD..... 422 4.-Municipal corporation-Construction of water-works and fire-fighting system-Agreement to pay a sum over twenty-five thousand dollars-By-law authorizing a loan not exceeding ten thousand dollars and providing for a special tax sufficient to pay costs of construction and maintenance-Reports by municipality's engineer accepted and adopted by resolutions-Claim by contractor for cost of works over ten thousand dollars- Liability of the corporation-Absolute nullity of contract if not in conformity with the "Act respecting certain works in municipalities", R.S.Q.,
1941, c. 236- Quantum meruit-Whether contract valid under the "Act to grant certain powers to municipal corporations to aid the unemployed" 95-96 Geo. V, c. 9- Resolutions of the municipal council also illegal ........................
CONTRACT-Concluded
5.-Alleged illegal agreement in restraint of trade as defence to action for infringement of patent............
6.-See Or
CONTROLLER OF CHEMICALS
Orders of ........................
COPYRIGHT-Musical work performed on coin-operated gramophone placed in restaurant under arrangement between owner of gramophone and owner of restaurant-Injunction asked by owner of public performing right in the musical work-Copyright Amendment Act, 1931
(Dom., 1981, c. 8) and amendments- Effect or application of subs. 6 (a) of s. 1OB-Copyright Act (1921, c. 24; R.S.C.
1-Defendants V. Bros. carried on the business of installing in restaurants, etc., and looking after, electrically operated phonographs, with disc records, so arranged that a musical work could be performed by depositing a coin in the machine. They installed such a machine
(with records, which were changed from time to time) in the restaurant of defendant R. Co., under arrangement that
V. Bros. received per week and, subject to that, the receipts from performances went to R. Co.
Plaintiff society owned the public performing right in a musical work "Star Dust", which was performed by said machine in said restaurant, and sought to restrain defendants from public performance thereof. Under
The Copyright Amendment Act, 1931,
(Dom., 1931, c. 8) as amended, a society, etc., carrying on a business such as plaintiff's (dealing in performing rights) must file at the copyright office lists of musical works in current use in respect of which it has the right to grant performing licenses, and file statements of all fees, charges or royalties which it proposes during the next ensuing year to collect, in respect of performance of its works in
Canada; and in case of neglect to file such statements, action to enforce any remedy for infringement is forbidden, without written consent of the Minister.
After certain proceedings, such statements are considered by the
Copyright
Board and, with any alterations made therein by the Board, are certified by it as approved. The statements so approved are to be the fees which the society may sue for or collect in respect of the issue or grant by it of licenses for performance during the ensuing year, and it shall have no right of action for infringement against any person who has tendered or paid the approved fees. By subs. 6 (a) of s. 10B, in respect of public performance
COPYRIGHT--Continued gramophone (in any place other than a theatre which is ordinarily and regularly used for entertainments to which an admission charge is made), no fees, etc., are collectable from the owner or user of the gramophone, but the Board shall, "so far as possible", provide for the collection in advance from gramophone manufacturers of appropriate fees, etc., and shall fix the amount of the same. Plaintiff had filed a statement of fees, etc., which it proposed to collect for grant of licenses, including license for public performance of "Star Dust", and by the kind of machine in question; but the Board had not, under said subs. 6 (a), provided for the collection in advance from gramophone manufacturers of fees, etc., covering such a performance; and defendants had paid no fee, charge or royalty. Held, per Rinfret, Kerwin and Taschereau JJ. (the majority of the Court): Plaintiff was entitled to an injunction. The absence of provision by the Board for collection from *the gramophone manufacturers under said subs. 6 (a) did not justify defendants in giving the public performance complained of. Subs. 6 (a) forms part of the Copyright Act (R.S.C. 1827, c. 32) and stands to be construed in the light of all the provisions of that Act. As no fee, charge or royalty had been paid by or for defendants, they had acquired no right to such performance. It was to no purpose to argue that, though plaintiff had complied with the Act, the Board had not, so far, provided for collection from the gramophone manufacturers. In the circumstances, plaintiff's rights, and remedy by injunction against infringement thereof, under general provisions of the Copyright Act, remained unaffected.
A license from a copyright owner permitting the manufacture phonograph records does not by itself entitle the purchaser of a record from the licensee to use it for the giving of public performances. Per the Chief Justice and Davis J.: As to public performances coming under said subs. 6 (a), it is clear from the statutory provisions that owners or users of gramophones have a statutory license for which no fees, charges or royalties are to be exacted from them; their statutory license is not in any way conditional upon the actual payment of fees prescribed by the Board and payable by gramophone manufacturers.
Further, a supposed statutory intention that such owners or users, who are relieved from payment of charges, should be exposed to proceedings by owners of performing rights, and might be obliged, for permission to perform, to pay any charge demanded, would be a result quite incompatible with the policy of the legislation. (It was pointed out that a public performing right is a statutory right resting upon COPYRIGHT-Concluded the enactments of the Copyright Act,
1921, which in effect came into force in
1924, and with which, and as part of which, are to be read and construed the provisions of The Copyright Amendment
Act, 1931, and its amendments; and that the legislative adoption of the plan embodied in the latter Act and its amendments is a recognition of the fact that dealers in performing rights, which rights are the creature of statute, are engaged in a trade which is affected with a public interest and may, therefore, be properly subjected to public regulation.) But said subs.
6 (a) has no application to performances by means of the instruments supplied by
V. Bros. and operated under the terms of the mutual arrangements between them and the restaurant keepers. Subs. 6 (a)
should be construed and applied in the light of the objects which Parliament had in view, which, as disclosed by the legistation itself, do not embrace the protection of those engaged in such a business as that of V. Bros.; and the restaurant keepers stood in the same case with
V. Bros. from this point of view. Therefore defendants are liable to pay the statutory charges determined under the Act, independently of subs. 6 (a); and cannot be enjoined in respect of such performances if such charges are paid or tendered.
................
CORROBORATION
CRIMINAL LAW - Conspiracy-Charge of offences under The Opium and Narcotic Drug Act, 1929 (Dom., c. 49)--Corroboration-Admission in evidence of certain written statement-Substantial wrong or miscarriage of justice (Cr. Code, s. 1014
(2)) -Insufficiency of explanation to jury
-Appellant convicted, while another accused, charged with him, found not guilty on subsequent separate trial-Trail Judge expressing his personal opinion to jury as to character of witnesses-Objection to count because of vagueness and generality to be taken before plea (Cr. Code, s. 898).1 and B. and C. were charged on an indictment containing counts: 13 for conspiracy relating to the possession, distribution and sale of drugs; two for conspiracy relating to, respectively, the signing of prescriptions and the signing of orders, in respect of a drug; and one charging them with selling a drug; all within the meaning of and contrary to the provisions of The Opium and Narcotic
Drug Act, 1929 (Dom., c. 49).
C. was given a separate trial, which took place subsequent to appellant's trial, and C. was found not guilty.
Appellant, on trial before Major J. and a jury, was convicted on all counts. His appeal to the Court of Appeal for Manitoba was dismissed, Robson J.A. dissenting, [19421 2 W.W.R. 580; [19421 3 DL.R. 500; and he appealed to this Court. Held: A new trial should be directed because (agreeing with certain grounds of dissent in the Court of Appeal) : (1) Certain evidence referred to by the trial Judge as corroboration could not be considered by the jury as such; it was merely evidence of opportunity. (2) A certain written statement obtained by the police from one E. P. (a person mentioned in the indictment in connection with certain charges) was improperly admitted in evidence; s. of the Canada Evidence Act had no application;
the fact that accused's counsel had referred to the statement in cross-examination was not sufficient to permit it to be put in evidence; the statement was made when accused was not present, and, while the majority of the Court of Appeal considered that there was nothing therein that E. P. did not say in the witness box, there were matters referred to in the statement which were clearly hearsay; it could not be confidently stated that no substantial wrong or miscarriage of justice had occurred, within the meaning of s. 1014 (2), Cr. Code. (3) While the trial Judge's general statement to the jury of the law of conspiracy might be unimpeachable, it was of the utmost importance in this case that the application of the law to the facts should be explained fully to the jury, particularly so far as the evidence relating to C.'s activities were concerned; the counts charging conspiracy to have C. unlawfully sign prescriptions and orders, required a much fuller explanation than was given.
In disagreeing with certain grounds of disent in the Court of Appeal, this Court held: (1) The fact that C., on a separate trial as aforesaid, was found not guilty, was no reason in law that appellant should be acquitted. (2) On the new trial, it would be for the jury to say if the conspiracy alleged between
C. and accused was proved beyond a reasonable doubt; evidence of C.'s actions on which, together with any other relevant evidence, the jury might so find, was admissible. (3) The trial Judge was within his province in expressing his personal opinion as to the character of the police witnesses, as he made it clear throughout his charge that all questions of fact were for the jury and that the jury was not bound by his opinion.
(4) The objection taken to a count of the indictment because of vagueness and generality, should have been taken under s. 898, Cr. Code, before the accused pleaded.
19431
2.-Perjury-Declaration made by vendor pursuant to Bulk Sales Act-Statement proved to be false-Whether offence is perjury under section 172 Cr. C.- Substitution of lesser offences under sections 175 and 176 Cr. C.-Criminal Code, sections 170, 171, 172, 178, 174, 175, 176,
951 (1), 1016 (2)-Bulk Sales Act, R.S.B.C.
1936, c. 29-British Columbia Evidence
Act, R.S.B.C., 1936, c. 90.-The Bulk Sales
Act of British Columbia provides that the vendor of any stock in bulk shall give to the purchaser a list of his creditors with the amount of all accounts owing by him in connection with his business.
Such statement had to be verified by the solemn statutory declaration of the vendor.
The respondent sold his caf6 business and gave the required statement to the purchaser, declaring that he did not owe any debts.
The declaration proved to be false and he was convicted on a charge of perjury.
The conviction was quashed by a majority of the appellate court. Held, affirming the judgment appealed from (58 B.C.R. 51), Kerwin and
Hudson JJ. (dissenting)
, that the respondent did not give a false statement under oath while called as a witness in a judicial proceeding (s. 170 Cr. C.) nor did he give a false oath in a judicial proceeding in the manner contemplated by . section
Cr. C., and therefore, cannot be charged of having committed the crime of perjury under these sections.
Per Rinfret and
Taschereau JJ.: Section 170 Cr. C., defining perjury, enacts that it may be comnitted only "by a witness in a judicial proceeding"; and section 172 Cr. C. provides that "every one is guilty of perjury who *
*
*".
So, any violation of this last section amounts to perjury: it must necessarily be perjury as defined in section 170 Cr. C. and, therefore, in a judicial proceeding. Per Davis J.: The concluding words of section 176 Cr. C.: "makes a statement which would amount to perjury if made on oath in a judicial proceeding" show that section 172 Cr. C. is limited to false statements made on oath in a judicial proceeding. Per Kerwin J.
Section 172 Cr. C. contains no reference to section 170 Cr. C. nor does it state that the enumerated acts must be done by a witness or in a judicial proceeding.
By section 172 Cr. C., Parliament has enacted that every one who does the things specified is guilty of a crime (perjury).
In view of the plain language of that section, a person falling within its terms is just as guilty of what
Parliament has chosen to call perjury as one who falls within the ambit of section
Cr. C--The respondent's solemn statutory declaration contains the statement that such declaration was of the same force and effect as if made under oath and by virtue of the Canada Evidence Act. The declaration having been proven to be false, the respondent was guilty of perjury under section 172 Cr. C. Per Hudson J. dissenting: The taking of the statutory declaration falsely, by the respondent, is perjury within the meaning. of section 172 Cr. C. As to the questir . whether or not a conviction could or should have been made for a lesser offence under sections and 176 Cr. C., pursuant to sections 951 (1) and 1016 (2) Cr C., Held that the respondent could not have been found guilty under Cr. C. Per Rinfret and Taschereau JJ.: There is no evidence that the commissioner, before whom the respondent gave the statutory declaration, was an officer authorized by law to receive a statement or a declaration of the particular character mentioned in section 176 Cr. C.-No opinion expressed as to whether that section contains the elements of a lesser offence. Per Davis J.:
Perjury, as defined in the Criminal Code (s. 170) does not "include"
the commission of the offence defined in section 176 Cr. C.; and perjury was the only offence charged in this case. Per Kerwin J.: The offence dealt with in section 176 Cr. C. is not a lesser offence but a different one, as the declaration mentioned therein simpliciter is not the same as the statutory declaration referred to in section 172 Cr. C. Held, also, that it is not open to this Court to decide the question whether the respondent may have been found guilty of a lesser offence under section 175 Cr. C., as there was no dissenting opinion on that point in the Appellate Court. THE KINo v. .....................
3.-Evidence-Statements by accused to police officers before charge or arrest made-Admissibility.1-The appeal was from the affirmance by the Court of Appeal for Manitoba (two Judges dissenting) of appellant's conviction of having unlawfully received gasoline ration books, knowing them to have been stolen. Two police officers, bearers of a search warrant, had gone to appellant's home (before any charge or arrest was made) and talked to him, one of them, H., stating that "it would be better" for appellant to return the books. At the end of their visit they told appellant that he was to accompany them to the police barracks to talk to A., a police inspector, whn, on their arrival, talked to and questioneA appellant. Later some gasoline ration books were received by the police from some person through the mail. At the trial, evidence was given by the police officers of statements by appellant in the aforesaid interviews, the evidence of A. in this respect being that mainly relied on by the magistrate in convicting appellant.
No ration books had been found on appellant or in his home, nor was he identified at the trial as one to whom stolen ration books had been sold or delivered. Held: The conviction should be quashed. Per the Chief Justice and Keizrin J.: Evidence of statements by appellant to A. (and also of statements by appellant to H., if they occurred after
H.'s said statement) were inadmissible, as having been made under fear of prejudice or hope of advantage exercised or held out by a person in authority (Ibrahim v.
The King, [1914] A.C. 599, at 609; Sankey v. The King, [19271 S.C.R. 436, at 440).
On the record it must be held that there was no evidence that appellant ever had the books or that the books sent through the mail were some of those that had been stolen. Per Rinfret, Hudson and Taschereau JJ.: Before being questioned by said officers, who were persons in authority, appellant should have been warned, and the burden was upon the Crown to show that the proper warning was given.
Though not yet arrested, appellant was practically in custody.
Physical custody was not necessary, under the circumstances, to make inadmissible the evidence of appellant's statements made under questioning without the proper caution having been given; the same rule should apply as when a person has been arrested.
because the reasons that justify the rule in that case are equally applicable when the suspect is threatened with being charged with the commission of a crime.
Principles stated in Rex v. Knight and
Thayre, 20 Cox's Cr. C. 711, at 713; Lewis v. Harris, 24 Cox's Cr. C. 66, and Rex v.
Crowe and Myerscough, 81 J.P. 288, should govern the present case. The appeal should, therefore, be allowed, and, as there was no evidence left to substantiate the charge, the conviction should be quashed and applicant acquitted.
4.-Speedy trial before County Court
Judge-Criminal Code, Part XVIII-One trial on three charges set forth on single charge sheet-Improper proceeding-New trial.]-Three separate informations were laid against respondent.
He was committed for trial on all three.
A single charge sheet setting forth three charges was prepared by the Crown Prosecutor, and on this the respondent was arraigned and elected to be tried speedily under
Part XVIII of the Criminal Code. There was one trial on all three charges before the County Court Judge and respondent was convicted on each charge. Held
(affirming judgment of the Court of Appeal for Ontario, [19421
O.W.N. 503;
D.L.R. 511):
The conviction should be set aside and a new held; it was improper to try
CRIMINAL LAW-Concluded the three charges together.
Sec. 856 of the Criminal Code (allowing joinder of counts in the same indictment) cannot be read into Part XVIII. THE KINa v. ........................ 5.-See
(PuBuc Poucy) 1, 2.
CROWN-Expropriation of land-Amount of compensation-Appellate Court not interfering with award by Court of first instance when latter has acted on proper principles of law and amount awarded is supported by the evidence-Consideration of factors in arriving at award, including postponed value over present market value-Date to which interest allowed on amount awarded R.S.C. 1927, c. 64, s. 82.............. 49 2.- Assessment and taxation-International law-Constitutional law-Powers of municipalities in Ontario to levy rates on foreign legations and High Commissioners' residences ..................... 3.-Workmen's
Employee of Dominion Government injured in course of employment in Province of Alberta through negligence of servants of railway company, an employer in an industry within scope of Workmen's Compensation Act, Alta., 1938, c. 23-Action by said employee against railway company for damages-Question whether right of action affected by said Act, particularly s. 24 (6), or affected by dealings with and actions by Workmen's Compensation Board-Operation and effect of Government Employees
Act R.S.C. 1927, c. 80, as amended in 1931, c. 9......................
CROWN LANDS-Transferred by Dominion of Canada to Province of Alberta- Natural Resources Agreement of 1929- Timber licenses issued by Dominion- Increase of dues by Province........ See 4. CUSTOM OR USAGE
DAMAGES-Negligence-Motor vehicle -Fatal accident-Deaths of wife and infant child-Damages-Measure of-Pecuniary loss-Loss of expectation of life- Loss of wife's services-Claims under the Administration Act, R.SB.C., 1936, c. 5, and the Families' Compensation Act, R.S.B.C.,
1986, c. 93.1-The appellant's wife and infant daughter, while on a DAMAGES-Continued public street, were struck by an automobile operated by one of the respondents and owned by his father, the other respondent, and they were so severely injured that the wife died within a few hours and the daughter within a few days thereafter. The appellant brought two actions, one as administrator of his wife's estate for damages for loss of expectation of her life under the Administration Act and also for damages for his benefit personally as husband and for the benefit of her daughter (represented by him as her administrator) under the Families' Compensation Act; and, in the second action, the appellant sued as administrator of his daughter's estate for damages for loss of expectation of her life. The two actions were consolidated; and the respondents admitted judge awarded damages, first, under the Administration Act, for loss of wife's expectation of life, $1,000, and for loss of child's expectation of life, $750, and, secondly, under the Families' Compensation Act, for loss of wife's services, S125; and the trial judge added that "the above amounts are without abatement". The appellant, as administrator of his wife's estate, appealed to the Court of Appeal on the ground that the damages of $1,125 were insufficient; and the respondents crossappealed on the ground that nothing should have been awarded for loss of the wife's services. Both the appeal and the cross-appeal were dismissed. Held, affirming the judgment of the Court of Appeal
([1942] 3 W.W.R. 719), that the appeal to this Court should be dismissed with costs. The principle of law applicable to a claim for compensation in cases as the present one has been clearly stated by the
Judicial Committee in Grand Trunk Railway Co. of Canada v. Jennings App.
Cas. 800), where it was held that the right to recover damages is restricted to actual pecuniary loss sustained.
Under the circumstances of this case and applying such principle to the evidence, which is meagre and inconclusive, it cannot be held that the trial judge and the majority of the appellate court were clearly wrong, and this Court ought not to interfere with the assessment of damages.
Per Rinfret, Hudson and Taschereau JJ.-The point raised by the appellant, that the trial judge failed to allow to the estate of the infant, for the death of the mother, damages to which the infant was entitled under the Families'
Compensation Act, is not well founded.
The Court is entitled to inform its mind of subsequent events throwing light upon the realities of the case: Williamson v.
John I. Thornycroft and Co. ([19401
2 K.B. 658). Although the amount allowed for loss of expectaton of life is not ques- DAMAGES-Continued tioned, it cannot be ignored when considering the award which should be made to the appellant in respect of the loss of his wife's services:
Davies v. Powell Duffryn Associated Collieries Limited ([19421 A.C. 601).
The total amount awarded under either headings went to the appellant himself, so that he received in respect of the two headings an aggregate of $1,125 in respect of the wife's death, and he recovered a further sum of $750 in respect of his child's death, both these events having taken place within a few days. Therefore, when the realities of this case are taken into account, the amount of damages awarded should not be disturbed. Per Kerwin J.-The expression used by the trial judge "The above amounts are without abatement" would be idle, unless it is construed as meaning that he had fixed the damages of the husband, under the Families' Compensation Act, at $1,125, and deducted from it the amount allowed under the Administration Act. And, in this, the trial judge did exactly what the House of Lords, in Davis v. Powell Duffryn Associated Collieries Limited ([1942] A.C. decided was proper. Construing the direction for judgment in that way, there is nothing to indicate that the trial judge did not take into consideration all relevant matters.
On the assumption that $1,125 was fixed as the damages under the Families' Compensation Act, there should not be an abatement of one-half of the $1,000 awarded under the Administration Act because the husband would be entitled to that proportion and the child, represented by her father as administrator, to the balance. The trial judge, the child having died, undoubtedly treated the matter in a realistic manner, knowing that the full amount allowed under the Administration Act would go to the husband. The gain in money to the husband under that Act accrued to him by reason of the death of his wife although one-half came from another source, and the total should therefore be deducted from the award under the Families' Compensation 2.-Amount-Personal injuries-Jury's award-Unreasonable amount-Mistaken view of the case-Case as put to the jury -Consideration of verdict by appellate court-New trial directed as to amount.] action was for damages for injuries to plaintiff caused by his being struck by an automobile owned by one defendant and driven by the other defendant. At trial, upon findings of a special jury, judgment was given for plaintiff for $165,000; which was affirmed by the Court of Appeal for Ontario.
Defendants appealed. Held: There should be a new trial, DAMAGES-Concluded directed only to the amount of damages.
Plaintiff occupied a unique position in his business and was particularly helpful in dealing with workmen. He suffered greatly from his injuries and will have a permanent disability. But he was not totally incapacitated from exercising his calling, including the use of those special qualities that made him so valuable in a factory.
A jury appreciating the evidence could not reasonably have awarded him $165,- 000, or, to use the words in Tolley v. J. S.
Fry & Sons Ltd., [1931] A.C. 333, at 341,
"the jury took a biased or mistaken view of the whole case". When an appellate court is considering whether a verdict should be set aside on the ground that the damages are excessive (there being no error in law), it is not sufficient, for setting it aside, that the appellate court would not have arrived at the same amount; its rule of conduct is as nearly as possible the same as where the court is asked to set aside a verdict on the ground that it is against the weight of evidence;
this is the rule in contract cases (Mechanical and General Inventions Co., Ltd. v.
Austin, [19351 A.C. 346, at 378), and the same rule applies in cases of tort. Per
Davis J.: There must be a very plain case of error to induce an appellate court to interfere with the amount of compensation awarded by a jury in a case of personal injuries, and particularly so when a first appellate court has declined to interfere.
But in the present case, though
.plaintiff's injuries were very serious and he was entitled to substantial damages, the amount awarded was so unusually large that one would naturally examine the record with great care, not only to see if there was some justification for it, but to see if the case was put fairly to the jury on the whole of the evidence.
Two errors stood out very strikingly: (1) The case was in effect put to the jury as if plaintiff were such a complete physical wreck as a result of the accident that his earning capacity had gone forever, and, on the evidence taken as a whole, the case should not have so gone to the jury. (2)
The case went to the jury on the basis
(and on which it was plain that they arrived at so large an amount) that the amount of the financial success of a particular business venture of plaintiff, which extended over a period of only a few years, might properly be treated as a measure for estimating the annual amount which might reasonably be contemplated, but for his injuries, to be his future earnings; and this method of calculating loss of probable future earnings was not, on evidence, justified.
..........................
3.-See
3;
90231-31
DEVOLUTION
OF ESTATES-Testator's widow taking under The Dower Act, Man. (Cons. A. 1924, c. 53)-Her life estate in the homestead-Sale of the homestead by consent-What should go to her from the proceeds-Basis of Division.1-A testator's widow was entitled to and did elect, rather than take under his will, to take under The Dower Act, Man. (then Cons. A., 1924, c. 53).
Under that Act she was entitled to a life estate in his homestead and also an amount equal in value to one-third of his net estate (including the value of the homestead). After she had been in possession of the homestead for a time, it was sold, with her consent, and the price received. There was a dispute as to what should go to her from the proceeds. Adamson J. (47 Man. R. 390) held that she was entitled to be paid forthwith $1,400, being one-third of said sale price, and that said $1,400 when paid should be payment pro tanto on the amount equal in value to one-third of the testator's net estate (to which amount she was entitled as aforesaid) and that, in addition, she was entitled to receive for her life the income of the remaining twothirds of said sale price, which two-thirds should be kept intact in the hands of the executor of the testator's estate and not distributed until after the widow's death. The judgment of Adamson J. was affirmed (without written reasons) by the Court of Appeal for Manitoba.
The widow appealed. Held, that for said holding (appealed from) there should be substituted the following: The net proceeds of the sale of the homestead should be divided in proportion to the respective values of the life estate and of the remainder, the widow accordingly receiving out of such proceeds the share representing the value of the life estate. In re MoRIcE v. ......
94, 545 DIVORCE-Law of New Brunswick- Divorce sought on ground of respondent's adultery-Decree granted, notwithstanding petitioner's adultery-Exercise of trial judge's discretion.]-Under the law of New Brunswick (Statutes of New Brunswick, 1791, c. 5, and 1860, c. 37, mainly referred to), the Court of Divorce and Matrimonial Causes of that Province has jurisdiction to grant a divorce from the bond of matrimony on the ground of adultery of the petitioner's spouse, and the fact that the petitioner has himself (or herself) committed adultery is not an absolute, but only a discretionary, bar to granting the decree.
(The law relating to divorce, in England and in New Brunswick, historically discussed, with regard particularly to the latter point.) judgment of Baxter CJ., Judge of the said Court (16 M.P.R. 191), granting a husband's cross-petition for divorce on the ground of his wife's adultery, notwithstanding an act of adultery by the hus- DIVORCE-Concluded band (subsequent to his wife's adultery), which judgment was reversed by the Appeal Division, N.B. (16 M.P.R. 405), was restored; this Court holding that the law was as stated above; and that there appeared to be no error in principle in the considerations underlying the exercise by the trial Judge of his discretion, and therefore there was no justification for reversal of his decision.
G. v. G. ... 527
DOWER ACT, MAN.
ELECTIONS-Application for mandamus directing Clerk of the Crown in Chancery for Ontario to issue writ for election to
Legislative Assembly to fill vacancy created by death of member-Legislative
Assembly Act, R.S.O. 1937, c. 12, 8. 34- Officer under control of and answerable to
Legislative Assembly ............
EVIDENCE-Will - Validity - Will prepared by one who benefits under it- Attitude of suspicion to be taken by the
Court-Onus to remove suspicion-Evidence-Findings at trial.............. 61
See WL.
2.- Criminal law-Conspiracy-Charge of offences under The Opium and Narcotic
Drug Act, 1929 (Dom., c. 49)-Corroboration-Admission in evidence of certain written statement-Substantial wrong or miscarriage of justice(Cr. Code, s. 1014
(2))-Insufficiency of explanation to jury
-Appellant convicted, while another accused, charged with him, found not guilty on subsequent separate trial-Trial Judge expressing his personal opinion to jury as to character of witnesses-Objection to count because of vagueness and generality to be taken before plea (Cr. Code,
8. 898) .........................
3.--Criminal law-Perjury-Declaration made by vendor pursuant to Bulk Sales
Act-Statement proved to be false- Whether offence is perjury under section
172 Cr. C.-Substitution of lesser offences under sectons 175 and 176 Cr. C.-Criminal Code, sections 170, 171, 172, 173, 174,
175, 176, 951 (1), 1016 (2)-Bulk Sales Act,
R.S.B.C.1936, c. 29-British Columbia Evidence Act, R.S.B.C., 1936, c. 90..... 103
4.-Negligence-Motor vehicle-Injury to passengers-Judgment against driver- Seizure by garnishment in hands of insurance company-Public liability indemnity policy-Driver convicted of criminal offence-Insurance company declining liability-Concurrent findings as to absence
EVIDENCE-Concluded of criminal negligence-Rule of public policy-Applicability of rule-Whether decision of a criminal court is res judicata in subsequent civil action-Suficiency and admissibility at the trial of document purporting to prove conviction-Art. 1241 C.C.-Art. 1351 C.N.-Sect. 284 Cr. C. 165 See (Pusuc LIBaumrry 5 -- Shipping-Bill of lading-Wheat in bulk-Foundering of ship-Loss of cargo -Unseaworthiness -Seaworthiness at beginning of voyage-Severe storm-Peril of the sea-Prima facie liability-Burden of proof-Findings of fact-The Water Carriage of Goods Act, 1936, (D), 1 Edw. VII, c. 49.........................
6.-Criminal . law-Statements by accused to police officers before charge or arrest made-Admissibility ......... 250 7.--Contract-Action for damages for breach of promise of marriage-Evidence -Statute of Frauds, R.S.O. 1937 c. 146, s. 4-Limitations Act, R.S.O. 1937, c. 118, S. 48 (1) (g)-Corroboration (Evidence Act, R.S.O. 1937, c. 119, s. 10) ....... 256 8.-Assessment and taxation-Schools-- Companies-Company designating portion of its assessment in municipality for separate school purposes-Separate Schools Act, R.S.O., 1937, c. 362 s. 66-Notice by company in form B-Complaint against assessment for separate school purposes- Onus of proof as to compliance with s. 66 (3)-Effect of absence of evidence. ........ 9.--as to custom or usage......... 275 EXECUTORS
ADMINISTRA- TORS-Claim by defendant, administrator of an estate, that certain mortgage investments had been made for and allocated to the estate-Transaction attacked as amounting to a sale by defendant to itself as administrator-Accounting-Interest.1-This Court held (affirming a holding of the Court of Appeal for Saskatchewan, [1942] 1 W.W.R. 163) that the defendant company, the administrator of an estate, had not the right, however honest were the circumstances, to allocate to the estate as investments thereof, certain mortgage securities which had been taken by defendant in its own name for moneys advanced out of its own funds; that the transaction amounted to a sale by defendant to itself as administrator, .
EXECUTORS AND ADMINISTRA- TORS-Continued which the law does not permit. (Also this
Court expressed doubt whether the allocation was sufficiently proved.) The Court declined to hold upon the evidence, as contended by defendant, that the allocation, rather than being a disposal by defendant of securities which it had taken to itself, was in fact only the concluding step in making the investments for the estate. It was held that, in the accounting to be made by defendant in the estate, defendant must be held. to have, as funds of the estate uninvested, the sums debited to the estate for such investments, and also was liable to account for and be debited with interest thereon at 5 per cent.
per annum from the date when the principal sums were so debited to the estate, with half-yearly rests down to the final passing of the accounts; and defendant could not charge for any sums expended by it in connection with the mortgaged lands or in protecting the mortgages as securities, nor should it be charged with the receipts.
v. AL.............
2.-Payment by executors to an alleged creditor of estate-Action by an heir alleging illegality of such payment- Executors taking reasonable precautions and acting "en bons pares de famille"- Executors not to be sued personally- Action by legatee must be for accounting or for "riformation de compte"-Action not for one particular act of misadministration, but must cover whole administration of executors.]-An action was brought by the appellant, owner of the residue of her mother's estate, who was not enttled to any revenue from the estate until her father's death, against the respondents, the executors, personally only, in connection with the payment of certain debts made by them as such executors.
appellant prayed for a declaration that the alleged creditor could not and did not make any advances or loans to the deceased, that the executors did not legally satisfy themselves that the alleged creditor made advances or loans to the deceased, that consequently the executors personally were debtors jointly and severally liable to the estate in the sum so paid and that they be ordered to pay that sum into the capital of the estate. The judgment of the trial judge, dismissing the apppellant's action, was affirmed by the appellate court. Held, affirming the judgment appealed from ([19421 KB. 466), that the appeal must fail. The respondents, and the trial judge so held, before making the impugned payment, took reasonable precautions and have acted
"en bons phres de famille"; and the appellant has not proven the accusations of fraud and of reckless administration, as
D] EIX
EXECUTORS AND ADMINISTRA- TORS-Concluded alleged in her statement of claim. Held, also, that the appellant could not bring action against the respondents personally. Under such circumstances as in this case, the recourse of an interested party, if any, is not by direct action for a specific amount, but is by way of a demand for accounting when there has been none, or by "r6formation de compte", when there has been one. Held, also, that, under the laws of Quebec, a dissatisfied heir has not the right, as in this case, to sue for a particular act of misadministration, and thus unduly multiply the recourses to the courts of justice. The demand must cover the whole administration of the executors or the period for which the plaintiff is entitled to an accounting.
Davidson v. Cream (27
Can. S.C.R. 362; Q.R. 6 KB. 34). Held, further, that the rule is, in such cases, that the defendants must be sued in their quality of executors, and not personally.
It is as administrators that they owe an accounting, and their personal liability is involved only for the residue, if there is any. MUSSEN v. 3.-See
1;
AcroNs 1. EXPROPRIATION OF LAND-Expropriation by Crown-Amount of compeneation-Appellate Court not interfering with award by Court of first instance when latter has acted on proper principles of law and amount awarded is supported by the evidence-Consideration of factors in arriving at award, including postponed value over present market value-Date to which interest allowed on amount awarded -Expropriation Act, RS.C. 1927, c. 64, s. SS.]-On an expropriation by the Crown under the Expropriation Act, RB.C. 1927, c. 64, of certain city property, the Crown offered $408,640 and the owner claimed $600,000.
Maclean J., late President of the Exchequer Court of Canada, awarded $497,500.
The Crown appealed. The President did not act on any wrong principles of law, and this Court should not interfere in the amount awarded. In expropriation cases, when a Court of first instance, in determining the amount to be awarded, has acted upon proper principles, has not misdirected itself on any matter of law, and when the amount arrived at is supported by the evidence, an Appellate Court should not disturb its finding. (Vizina v. The Queen, 17 Can. S.C.R. 1, at 16, referred to). In arriving at his conclusion, the President took many factors into consideration and examined them in a very detailed and precise manner. He did so with the view of giving to the property its value at the time of the expropriation, and, doing so, dealt properly with its postponed value over its present market value. The value to the owner consists in all advantages which the land possesses, present or future, but it is the present value alone of such advantages that falls to be determined. The future advantages, therefore, may be taken into account in determining the value of the property, but in so far only as they may help to give to the property its present value. (Cedars Rapids Manufacturing and Power Co. v. Lacoste, [19141
A.C. 569, at 576). Held, also, that the owner was entitled to interest at 5 per cent. per annum from the date the land was taken by the Crown to the date of the judgment of this Court, for, an appeal having been taken to this Court, the date of its judgment becomes "the date when judgment is given" within the meaning of s. 32 of the said Expropriation Act. (The discretion of the Minister of Finance to allow interest under s. 53 of the Exchequer Court Act may be exercised only from the date of the final determination of the amount until payment by the Government).
THE KING v. ELGIN RELTY
Co. LrD.......................
2.-Expropriation by railway company
-Amount of compensation-Method of valuation used by trial judge-Appellate court will interfere on question of quantum, when satisfied that amount allowed by trial judge is clearly excessive-Lands not subdivided into lots-Evidence, as to value of lands, tendered and accepted as if so subdivided-Trial judge proceeding on wrong principle in fixing value on such evidence-Present value of all advantages which lands possess, present and future, to be fixed by trial judge-Damages must be assessed once and for all-No reservation to claimant of any right to recover further amounts.]-About 29 acres of the lands of the respondent company were expropriated by the appellant railway company and were taken by the deposit of three plans, on November, 1936, October, 1937, and March, 1940. The respondent company, in October, 1940, brought an action for 847,480, being $28,20 as value of the lands at $1,000 per acre, $11,416.41 as damages to the lands and 87,244.19 as an amount alleged to be payable to the province of Quebec on the basis that a plan would be prepared later by the respondent subdividing the expropriated lands and that under a clause of an agreement with the province, a sum of $30 would have to be paid for every subdivided lot having an area of 5,000 square feet or less. The appellant company calculated its total liability at $50 per acre or a total
The trial judge, estimating the value of the lands as if they were subdivided lots, awarded the sum of $28,820,
EXPROPRIATION OF LANDbeing $1,000 per acre, deducted $7,532.40 representing the amount which may be payable to the province under the above agreement and 81,000 as the estimated cost of making and registering a plan of subdivision, added 83,000 for depreciation of neighbouring lots still owned by the respondent, and, as a net result awarded the respondent the sum of $23,287.60. The trial judge reserved the mines and minerals in the lands expropriated and also reserved to the respondent the right to recover from the appellant a sum of $7,244.19 or such other sum as the respondent would have to pay to the province and also any future damages resulting from the expropriation. The railway company appealed. Held, Rinfret and Taschereau JJ. disenting, that the appeal should be allowed, the judgment appealed from set aside and for it substituted a judgment reciting an undertaking of the appellant (set forth in the reasons for judgment) and declaring that the lands expropriated, excepting the mines and minerals therein and thereunder, are the property of the appellant. Held, also, Rinfret and Taschereau dissenting, that this Court ought to interfere on the question of quantum, as the amount allowed by the trial judge is clearly excessive. Trudel v. The King (49 Can. S.C.R. 501), and that, upon consideration of the facts and the evidence in the case, the indemnity to be granted for the lands and for all damages resulting from the expropriations should be reduced to the sum of $8,705. Held, also, that the trial judge, in fixing the value of the lands expropriated, proceeded upon a wrong principle, and that is always a ground upon which this Court will set aside an award. The trial judge proceeded upon evidence tendered and accepted as if the lands had been subdivided and did not fix the present value of all advantages which the lands possess, present or future. Cedars Rapids Manufacturing and Power Co. v. Lacoste ([19141 A.C. 569, at 576). Rinfret and Taschereau JJ. dissenting. Held, by the Court, that right to claim further sums from the appellant should not have been reserved to the respondent, as in expropriation cases damages must be assessed once and for all. In any event, the allowance of $7,244.19 or any part thereof, which the respondent may have to pay to the province under the agreement, could not be allowed as damages nor could it enhance the value of the lands expropriated and therefore, such allowance could not be claimed by the respondent from the appellant.
Per Rinfret and Taschereau JJ. (dissenting)
: This Court ought not to disturb the findings of the trial judge as to the valuation of the expropriated lands. The trial judge "has acted upon proper principles, has not misdirected himself in any matter of law and the amount arrived at is supported by the evidence". The King v. Elgin Realty Co.
(1943 S.C.R. 49).
The trial judge has taken into account the hypothetic or speculative value of the lands for the sole purpose of enabling him to find out their actual selling value and the method used by the trial judge in fixing such value as if the lands had been subdivided, was a proper one, as subdivision of the lands was the best use the respondent could make out of its property.
RY. Co. v. GoLD
MINE INC. 1939..........
FAMILIES COMPENSATION ACT, B.C.
-Award of damages under.......... 197
FIRE INSURANCE
GAS AND OIL LEASES
GLYCERINE-Order of Controller of
Chemicals relating to control of production and consumption of, and dealing in. 1
See LAW 1.
GOVERNMENT
COM- PENSATION ACT (DOM.)-R.S.C. 1927, c. 80, as amended in 1931, c. 9-Operation and effect of...................
GOVERNOR GENERAL IN COUNCII- Powers of, under War Measures Act- Delegation of powers .................
GRAMOPHONE - Public performance
HUSBAND AND WIFE-Action for damages for breach of promise of marriage
...................
INCOME TAX-Deductions in computing income-Legal expenses incurred in defending suit against using certain words in connection with sale of products-Income
War Tax Act, R.S.C. 1927, c. 97, S. 6
(a) (b).1-In computing income for purposes of income tax under the Income
INCOME TAX-Continued
War Tax Act, R.S.C. 1927, c. 97, in the ordinary course legal expenses are simply current expenditures and deductible as such. In the present case it was held that legal fees and expenses incurred by respondent in successfully defending a suit for an injunction against alleged infringement of registered trade marks by using certain words in connection with the sale of respondent's products, fell within that general rule; in that suit the question in issue was whether or not said trade marks were valid, and the right upon which respondent relied was not a right of property, or an exclusive right of any description, but the right (in common with all other members of the public) to describe its goods in the manner in which it was describing them.
The Minister of National Revenue v. The Dominion Natural Gas Co., Ltd., [1941] S.C.R. 19, distinguished.
Appeal from judgment of Maclean J., [1942] Ex. C.R. 33, dismissed. REVENUE v. KEL- LT0....... 58 2.-Assessment Act, R.S.O. 1987, c. 272 -Company assessed under s. 8 for business assessment; also under s. 9 (1) (b) in respect of certain income-Income assessable as not being derived from business in respect of which company was assessable under s. 8-Appeal under s. 85, as being "on a question of law or the construction of a statute".]-Appellant company manufactured radios and other articles and, in respect of land occupied for that purpose, it was assessed by respondent city for business assessment as a manufacturer, under s. 8 (1)
(e) of The Assessment Act, R.S.O. 1937, c. 272. Prior to 1934, appellant had also owned and operated on other land, as part of its business, a broadcastng station, but in 1934 a broadcasting company was incorporated to which appellant transferred certain capital assets including land, buildings and equipment used in the operation of the broadcasting branch of the business, and from that time the broadcasting company operated said station (and was assessed under s. 8 (1) (k) of said Act for business assesment in respect of the land occupied for that purpose). For its said transfer, appellant received the broadcasting company's issue of capital stock and bonds. Certain directors of appellant were also directors (and one of them was also manager) of the broadcasting company; the companies had the same president and secretary;
the broadcasting company's books and its book-keeper were at appellant's head office (on land in respect of which appellant was assessed for business assessment); the broadcasting station was used to advance by advertising the sale of appellant's radio receiving sets without INCOME TAX-Concluded charge.
Respondent assessed appellant for income tax on a sum received as interest on said bonds of the broadcasting company held by appellant.
disputed respondent's right to do so, claiming that the sum was not, within the meaning of s. 9 (1) (b) of said Act
Macdonell Co.
Ct. J., on appeal from the Court of
Revision, held that the sum was not taxable. On appeal by way of special case stated under s. 85 of said Act, his decision was reversed by the Court of Appeal for
Ontario, [19431 O.R. 1. Held (affirming judgment of the Court of Appeal): The sum in question was asessable. To escape assessment under s. 9 (1) (b), income of appellant would have to be derived from its business in respect of which it occupied land and was liable for business assessment; that business was the business of manufacturing and selling its products;
from which the income in question was not derived. Held, also, that respondent's appeal to the Court of Appeal was competent, being "on a question of law or the construction of a statute" within the meaning of s. 85 (1) of said Act (cases bearing question reviewed).
...............
INJUNCTION
INSCRIPTION IN LAW
INSURANCE (FIRE)-Insurable interest
-Property not "owned" by insured as its real owner-Policy null and void-Meaning of "owned" in statutory condition no. 10-Salaried employee doing business on behalf of owner-Employee being the person insured in the policy-Insurer aware of nature of insured's interest- Knowledge of real situation by agents or representatives of insurance company- "Prate-nom"--Effect of declaration by person carrying on business under a firm name-Arts. 1834 and foll., 2480, 2569,
2570,
2571,
C.C-Statutory condition no. 10-Quebec Insurance Act, R.S.Q., 1925, c. 248, sections 240, 241, 242.1-An insurance policy, covering against loss by fire property which it not "owned" by the insured as its real owner (statutory condition no. 10), thus lacking a material element essential to its validity, must be declared to be null and void (art. 2480
C.C.).
The word "owned", in statutory condition no. (s. 240 of Quebec Insurance Act, R.S.Q., 1925, c. 243), must be
INSURANCE (FIRE)-Concluded construed as meaning "owned as owner" (propridtaire). Therefore, where a salaried employee, being entrusted by the owner with the possession and control of a retail business which is registered in the name of such employee, with the acquiescence of the owner, has insured against fire, under his own name, the moveables and effects connected with such business, such employee cannot recover under the policy in case of loss. The moneys payable by the insurance company through loss by fire of goods thus owned by the employer are not part of the insolvent estate of the employee, and the trustee in bankruptcy, now respondent, was not entitled to claim these moneys under the policy. Such policy must be declared to be contrary to law, even if the evidence discloses that agents or representatives of the insurance company not only knew of the real ownership of the goods, but had advised or suggested themselves that the policy should be so issued in the name of the employee as insured; representations of any kind must be "contained in the policy or made part of it". (Art. 2570 C.C.). Moreover, it is extremely doubtful that the courts would consider as valid an insurance policy issued in contravention with the imperative provisions of the law (arts. 2480 and 2570 C.C.; statutory condition no. 10), even if it was established that the insurer had been acquainted with the real situation and was aware of the exact nature and character of the insured's interest.
A person acting as figure-head for another (prite-nom) is essentially a mandatory; his interest can only be that of a mandatory and can never acquire that of the mandator, the owner. Assuming that his title may confer on him an "interest appreciable in money in the thing insured" (art. 2571 C.C.), the nature of such interest must nevertheless be specified in the policy (art. 2570 C.C.).
Therefore, a pr~te-nom cannot insure as owner property owned by the person whom he represents. The mere fact that a person files with the prothonotary of the Superior Court, pursuant to arts. 1834 C.C. and following, a declaration that he is carrying on business under a firm name other than his own, does not import to the public the meaning that such person is the owner of the building or of the goods or effects therein contained. Judgment of the Court of King's Bench (Q.R. 71 K.B. 224) reversed.
INS. v. .........................
POLICY)-Motor vehicles-Negligence -Collision-Claims for damages to car and injury to passengers-Action in warranty by defendant against insurance com- POLICY)-Continued pany-Public liability insurance policy- Intoxication of driver-Excessive speed- Whether drivers acts amounting to criminal misconduct-Concurrent findings- Rule of public policy-Whether "intoxicated person" driving the car means owner the car-Criminal negligence-Elements constituting it.]-An automobile, owned and driven by one Dickson while alone in the car, came into a head-on collision with another automobile belonging to one Weir and driven by one Cameron. The two drivers were killed and the occupants in the other automobile were seriously injured. As a result of the accident, three actions were instituted against the respondent, the mother and the universal residuary legatee of her son,
Dickson, Weir claiming damages for his car and for bodily injuries and the widow of Cameron asking compensation for the death of her husband. The respondent, defendant, took three actions in warranty against the appellant insurance company under a public liability indemnity policy issued in favour of Dickson. The appellant denied its liability on the ground that, at the time of the collision, Dickson was driving his car in a state of intoxication and at a dangerous and illegal rate of speed, that such reckless conduct constituted an act of gross negligence as well as a crime and that, upon the rule of public policy, no indemnity can be recovered for the loss resulting therefrom.
The trial judge maintained the three principal actions three corresponding actions in warranty; and the appellate court, dealing only with the latter, dismissed the appeals. Held that the judgments appealed from should be affirmed.
There were concurrent findings in the courts below that intoxication of the driver Dickson had not been proved, and that negligence and reckless driving on his part and excessive speed of his car have not been such that they would amount to criminal misconduct. That being so, there was no ground for the appellant company to invoke what was contended to be a rule of public policy, which under some circumstances might disentitle a plaintiff to recover on a policy of indemnity insurance. Clause 5 of the policy stipulated that the insurance company would not be bound to indemnify the insured, if the accident occurs "while the automobile, with the knowledge and consent or connivance of the insured, is being driven * * * by an intoxicated person".
Held that the words "intoxicated person"
do not mean the owner of the automobile: such clause applies and makes the policy void, when the "intoxicated person" is not the owner, but one who drives with the consent of the owner.
Home
Insurance Co. v. Lindal and Beattie
POLICY)--Continued
([1934] S.C.R. 33) foll.-Davis and Hudson JJ. expressing no opinion. Held, also, that, in order to allow a court to see in driver Dickson's acts the distinguishing marks of criminality, there should be proved a high degree of negligence and a "moral quality carried into the act" before it becomes culpable. Rex v. Greisman (46 C.C.C. 172, at 178) approved. Davis and Hudson JJ. expressing no opinion. INS. v. DIcKsoN ........
............ 143 2.-Negligence-Motor vehicle-Injury to passengers-Judgment against driver- Seizure by garnishment in hands of insurance company-Public liability indemnity policy-Driver convicted criminal offence-Insurance company declining liability-Concurrent findings as to absence of criminal negligence-Rule of public policy-Applicability of rule-Whether decision of a criminal court is res judicata in subsequent civil action-Sufficiency and admissibility at the trial of document purporting to prove conviction-Art. 1241 C.C.-Art. 1851 CN.-Sect. 284 Cr. C.1- The respondents, seizing plaintiffs, were awarded $5,000 damages resulting from an automobile accident, in an action brought against the respondent Daoust, the driver of the car in which they were passengers. In execution of that judgment, the plaintiffs took a seizure by garnishment in the hands of the appellant insurance company, invoking the terms of a public liability indemnity policy issued by the appellant company in favour of the owner of the car. The chauffeur, Daoust, after the accident, was charged before a magistrate's court with the indictable offence of causing grievous bodily injury under the provisions of section 284 Cr. C. and, after trial, was found guilty and fined "$50 and costs or thirty days", although the penalty under section 284 Cr. C. is two years' imprisonment. The appellant company, in its declaration as garnishee, declined to admit liability under the policy on the ground that the driver had been found guilty, and it was contended convicted, of a criminal offence due to the manner of his operation of the motor car at the time of the accident. The appellant company therefore contended that the maintenance of Daoust's claim would be against the rule of public order, that a court of justice will not allow a criminal or his representative to reap by the judgment of the court the fruits of his crime; and it further alleged that the conviction of Daoust constituted res judicata as to the fact that he had committed a criminal offence. A document, purporting to be the record of Daoust's conviction in the magistrate's court, was filed as an exhibit and admitted at the trial; and the appellant relied upon POLICY)-Continued it as proof of the conviction. Held that the judgment of the Superior Court, maintaining the seizure by garnishment in the hands of the appellant company by the respondent plaintiffs, which judgment was unanimously affirmed by the appellate
(Q.R.
K.B.
231), should not be disturbed. There were concurrent findings in the courts below that the chauffeur Daoust, in driving the automobile the way he did and thus causing injury to the plaintiffs, was guilty of negligence, but not to the extent that it would amount to that sort of negligence which is characterized criminal
Hudson J. was of the opinion that the appeal should be dismised with costs.
Held, also, per Rinfret, Kerwin and Taschereau JJ., that a judgment rendered by a court of criminal jurisdiction has not the effect of creating before the civil courts the presumption juris et de jure resulting from the authority of a final judgment
(art. 1241 C.C.)-(The decision under the
English law and most of the commentators of the French law (art. 1351 C.N.)
are also in accord with such holding. The contrary opinion of some commentators is due to the difference between the French and the Quebec laws.)
Moreover, even assuming that a decision in a criminal court could be considered as res judicata in a civil action, the fulfilment of the conditions required by article 1241 C.C. is lacking in the present case. Held further, that, accordingly, this Court has not to decide the point, raised by the appellant company, as to the applicability of the rule of public policy above mentioned.
In any event, the courts should apply such doctrine only in "clear cases" and when offence has been
"conclusively proven": Home Insurance Co. of New
York v. Lindal ([19341 S.C.R. 33, at 39).
-Davis
J., after referring to the opinions expressed in the Beresford case ([19381
A.C. 586), cites with approval the dictum of Lord Esher in the Cleaver case ([1892]
1 Q.B. 147) that the application of that rule of public policy to the performance of a contract "ought not to be carried a step further than the protection of the public requires".
As to the sufficiency and the admissibility of the document, certified by the Clerk of the Peace, purporting to prove the conviction of the driver charged with a criminal offence:
The reception of that document at the trial (without deciding the question of its alleged irregularity), was inadmissible in an action as the present one, and such conviction, which cannot be considered as res judicata between the parties, has,therefore, to be established by ordinary evidence. Per Davis J.-If the record of a
POLICY)-Concluded conviction in a criminal court is admissible at all at the trial of a civil action, it would only be presumptive evidence of the commission of a crime.
FoNciAiRE DAOUST........... INTEREST-On award on expropriation of land by Crown ................... INTERNATIONAL LAW-Military and naval forces of United States of America -Present in Canada with consent of Dominion Parliament for military operations in connection with present war-Whether exempt from criminal jurisdiction of Canadian courts-If not exempt, whether Dominion Government, or Governor General in Council under War Measures Act, have jurisdiction to enact legislation to grant such exemption.1-The following questions were referred to this Court: 1. Are members of the military or naval forces of the United States of America who are present in Canada with the consent of the Government of Canada for purposes of military operations in connection with or related to the state of war now existing exempt from criminal proceedings prosecuted in Canadian criminal courts and, so, to what extent and in what circumstances?
If the answer to the first question is to the effect that the members of the forces of the United States of America are not exempt from criminal proceedings or are only in certain circumstances or to a certain extent exempt, has Parliament or the Governor General in Council acting under the War Measures jurisdiction to enact legislation similar to the statute of the United Kingdom entitled the United States of America (Visiting Forces) Act, 1942? On these questions, opinions were given as follows: Per curiam: Question should be answered in the affirmative. The Dominion Parliament, more especially under head of section of the B.N.A. Act, has jurisdiction to enact legislation similar to the statute of the United Kingdom entitled The United States of America (Visiting Forces) Act, 1942, i.e. to exempt visiting
American troops during present war from the criminal jurisdiction of the Canadian courts. The Governor General in Council, acting under the War Measures Act, has also jurisdiction to enact similar legislation. As to question 1: Per the Chief Justice and Hudson J.:-As a preliminary observation:
In virtue of the Order in Council of the 15th of April, (set out in the reasons infra), as amended by the Order in Council of the INTERNATIONAL LAW-Continued
6th of April, 1943, the service courts and service authorities of the United States of
America may, subject to the provisions of the first-mentioned Order in Council, in relation to members of its forces (military, naval and air) present in Canada, or on board a Canadian ship or aircraft, exercise within Canada all such powers as are conferred upon them by the law of the
United States in matters concerning discipline and internal administration.
code of discipline in force in the United
States army is very sweeping in its provisions and seems to be broad enough to embrace almost any offence against the criminal law of this country.
As to the jurisdiction of Canadian courts: First, as to land forces. There is no rule of law in force in Canada which deprives the Canadian civil courts (that is to say, non-military courts) of jurisdiction in respect of offences against the laws of Canada committed by the members of such forces on
Canadian soil. The Canadian criminal courts do not in fact exercise jurisdiction in respect of acts committed within the lines of such forces, or of offences against
.discipline generally committed by one member of such forces against another member in cases in which the act or offence does not affect the person or property of a Canadian subject. Secondly, as to naval forces.
The members of a crew of an armed ship of the United
States are exempt from the jurisdiction of the criminal courts of Canada in respect of an offence committed on board ship by one member of the crew against another member of the crew and generally in respect of acts which exclusively concern the internal discipline of the ship.
As regards offences committed on shore by members of the crew, they are not exempt from the jurisdiction of the criminal courts of Canada, but the criminal courts of Canada do not exercise jurisdiction in respect of such offences where the
,offence is one committed by one member of the crew against another member of the crew, except at the request of the commander of the ship. Per Kerwin and
Taschereau JJ.: The members of the military and naval forces of the United
States of America present in Canada with the consent of the Canadian Government for purposes of military operations in connection with or related to the state of war now existing, whether such members are attached to a unit or ship stationed in
Canada or elsewhere or are absent on duty or on leave from their unit or ship stationed here, are exempt from criminal proceedings prosecuted in Canadian criminal courts.
This immunity may be waived by the United States and in any event does not apply to members of the forces who may enter Canada as tourists
INTERNATIONAL LAW-Continued or casual visitors. The powers of arrest, search, entry or custody by Canadian authorities are not interfered with. Per Rand J.: The members of United States forces are exempt from criminal proceedings in Canadian courts for offences under local law committed in their camps or on their warships, except against persons not subject to United States service law, or their property, or for offences under local law, wherever committed, against other members of those forces, their property and the property of their government; but the exemption is only to the extent that United States courts exercise jurisdiction over such offences. Per The Chief Justice and Hudson J.: The United Kingdom has never assented to any rule of international law by which British courts are restricted in their jurisdiction in respect of visiting armies or members of them; in other words, no rule of international law, by which the visiting forces of an Ally in the United Kingdom would be exempt as of legal right from the jurisdiction of the British civil courts, has ever been a part of the law of England. This applies equally to Canada: fundamental constitutional principle with which it is inconsistent is a part of the law of every province of Canada, the constitutional principle by which a soldier does not, in virtue of his military character, escape the jurisdiction of the civil courts of this country. Nothing short of legislative enactment, or its equivalent, can change this principle. Per Kerwin J.: The general rule is that every one in Canada is subject to the laws of the country and to the jurisdiction of its courts. But there are exemptions grounded on reason and recognized by civilized countries as being rules of international law which will be followed in the absence of any domestic law to the contrary. By international law, there exists an exemption from criminal proceedings prosecuted in Canadian criminal courts of the visiting members of the United States forces; and, as a result of the order in council of April 6th, 1943 (set out in the reasons), nothing that had been done by Canada should be taken as prejudicing or curtailing such exemption. The Government of Canada having invited into the Dominion the military and naval troops of the United States of America as a part of the scheme of defence of the north half of the Western Hemisphere and, therefore, not merely for the benefit of the United States but for that of both parties and, in fact, for the benefit of all allied nations in the present conflict, the invitation must be taken to have been extended and accepted on the basis that complete immunity of prosecution in Canadian criminal courts would be extended to members of the United States INTERNATIONAL LAW-Concluded forces. Per Taschereau J.:
There exist rules of international law adopted by the civilized nations of the world granting immunity to organized forces visiting a country with the consent of the receiving
Government. These immunities are not based on the theory of exterritoriality, but they rest on the ground that "a sovereign"
extending the invitation "is understood to cede a portion of his territorial jurisdiction, when he allows the troops of a foreign prince to pass through his dominions". Schooner Exchange case (7 Cranch
These rules of international law have been accepted by the highest courts of the United States and some of them, applicable to the present case, have also been accepted by the Judicial Committee;
their existence must be acknowledged and they must be treated as incorporated in our domestic law.
There is nothing in the laws of the land inconsistent with their application within our territory.
Per Rand J.: Constitutional principle in
England has for several centuries maintained the supremacy of the civil law over the military arm. That principle, however, cannot be said to be infringed by jurisdiction in a military court of the
United States over its own forces which for the purposes of both countries are temporarily on Canadian soil. But that principle stands in the way of implied exemption under international rules, when the act complained of clashes with civilian life. The question is what is the workable rule implied from the invitation, that fits into the fundamental legal and constitutional system to which it is offered. It is from the background of that system that the invitation and its acceptance must be interpreted. It cannot be said to be clear that there has been a recognition of either a usage or principle, emanating from rules of international law, by the parliament or the courts of this country or of Great
Britain that would raise the immunity against the constitutional safeguard of accountability before a common tribunal.
That safeguard, however, is concerned primarily to vindicate, not Canadian courts, but Canadian civil liberty.
It does not, therefore, stand in the way of a rule limited to the relations of members of a foreign group admitted into Canada for temporary national purposes with persons other than members of the Canadian
........
2.-Assessment and taxation-Crown--- Powers of municiualities in Ontario to levy rates on foreign legations and High
Commissioners' residences .......... 208
JUDICATURE
AMENDMENT ACT, 1942, ALTA., C. 37, S. 2-Constitutional validity ................... JURY-Form of questions to jury as to negligence of driver of motor vehicle, where by statute onus is on him to disprove negligence causing damage... 272 extend delay-Right to jury trial forfeited and cannot be revived-Rule not one of mere procedure-Conditions prescribed for jury trial are imperative-Jurisdiction of jury extinguished after expiration of delay-Article 442 C.C.P. ............. 464 LEASE
LIABILITY INSURANCE
LIBEL-Action for-Prescription... 127 LIMITATION
ACTIONS- Sufficiency of notice filed under s. 67 The Surrogate Courts Act, R. S.0.
1937, to save claim from being affected by The Limitations Act, R.S.O. 1937, c. 118-Material particulars lacking in notice but supplied in affidavit attached-Whether delivery of a certain unsigned memorandum was effective to avoid operation of The Limitations Act.1-This Court affirmed the judgment of the Court of Appeal for Ontario, [19421 O.R. 226, holding that plaintiff was entitled to recover from defendant, executor of B. deceased, upon a certain promissory note made by the deceased to plaintiff, and that defendant was not entitled to recover against plaintiff the amount of a certain account, claimed as owing plaintiff to the deceased's estate, on the ground that defendant's remedy was barred by The Limitations Act, R.S.O. 1937, c. 118.
Held (1) That a certain notice of claim which plaintiff had filed under s. 67 (1) of The Surrogate Courts Act, R.S.O. 1937, c. 106, was a substantial compliance with said s. 67 so as to save plaintiff's claim upon the promissory note now sued upon from being affected by The Limitations Act, notwithstanding that certain material particulars regarding the promisory note were not given in the notice itself but were given in a verifying affidavit attached thereto.
(2) That the delivery by plaintiff to defendant of a certain memorandum, not signed Plaintiff. in which appeared the sum now claimed owing plaintiff to the deceased's estate and a list of payments made which in amount more than covered it (which payments, defendant claimed, were in fact not made on the acount now claimed for) did not
(even if the memorandum could be regarded as an admission by plaintiff that there was a pending unsettled account;
and, semble, it could not be so regarded)
have the effect of avoiding the operation of The Limitations Act against the account claimed to be owing to the deceased's estate. v. 45
2.-Action for damages for breach of contract of marriage-Limitations Act,
R.S.O. c. 118, s. 48 (1) (g) .....
3.-(Precription) See
MALICIOUS
PROSECUTION - Claim for damages for-Issue as to absence of reasonable and probable cause for prosecution-Questions relevant to that issue- Trial Judge's charge to jury.]-On a claim plaintiff recovered judgment at trial, on the findings of a jury. The Supreme
Court of Alberta, Appellate Division,
[19421 1 W.W.R. 646, set aside the judgment and ordered a new trial, on the ground, as stated by Ford J.A., that the trial Judge's charge to the jury "may have resulted in confounding the real issue of the absence of reasonable and probable cause for the prosecution with the question of the guilt or innocence of the plaintiff, and that the learned Judge failed to keep in mind that it is the facts, honestly and reasonably believed to exist and to be true, operating upon the mind of the prosecutor, as distinct from the explanation made at the trial by the plaintiff, which alone are relevant on the issue of the absence of reasonable and probable cause."
Plaintiff appealed to this Court, asking that the judgment at trial be restored; and defendants crossappealed, contending that, on the evidence, and in view of requirements of the law as to facts to be proved, the action should be dismissed. Held: (1) Plaintiff's appeal should be dismissed, on the above ground stated in the Appellate Division.
Defendants' cross-appeal should be dismissed (Davis J. dubitante). CuawLrr
FmE Co. 82
MANDAMUS - Elections - Application for mandamus directing Clerk of the
Crown in Chancery for Ontario to issue writ for election to Legislative Assembly to fill vacancy created by death of mem- MANDAMUS-Concluded ber-Legislative Assembly
Act, R.S.O. 1937, c. 12, s. 34-Oficer under control of and answerable to Legislative Assembly.] -This Court affirmed the dismissal of appellant's application in the Supreme Court of Ontario for an order in the nature of a prerogative writ of mandamus directing the Clerk of the Crown in Chancery for Ontario to issue a writ for the election of a member of the Legislative Assembly of Ontario for an electoral district to fill a vacancy created by the death of the member therefor. The issue of the mandamus would constitute an intrusion upon the privileges of the Legislative Assembly. Sec. 34 of The Legislative Assembly Act (R.S.O. 1937, c. 12) does not confer jurisdiction upon the courts in relation to Parliamentary elections; any duty imposed by s. 34 upon the Clerk of the Crown in Chancery is imposed upon him in his character of an officer under the control of and answerable to the Legislative Assembly.
BuLMER...... 265 MASTER AND SERVANT-Workmen's compensation-Employee of Dominion Government injured in course of employment in Province of Alberta through negligence of servants of railwaty company, an employer in an industry within scope of Workmen's Compensation Act, Alta., 1938, c. 23-Action by said employee against railway company for damages-Question whether right of action affected by said Act, particularly s. 24 (6), or affected by dealings with and actions by Workmen's Compensation Board-Operation and effect of Government Employees Compensation Act, R.S.C. 1927, c. 30, as amended in 1931, c. 9.............. 451 MILITARY AND NAVAL FORCES OF UNITED STATES OF AMERICA MORTGAGE-Foreclosure-Time for redemption-Constitutional validity of The Alta., c. 37, a. 2.................... MOTOR VEHICLES-Negligence-Trial -Pedestrian struck by motor vehicle- Action for damages-Findings of jury- Evidence-Form of questions to jury as to negligence of driver of motor vehicle, where by statute onus is on him to disprove negligence causing damage.1-In an action for damages by reason of the death of plaintiff's son caused by his being struck, while walking on a highway, by a motor car driven by one of the defendants, the trial Judge, on the jury's answers to questons put to them, dismissed the MOTOR VEHICLES-Concluded action. The Court of Appeal for Ontario
([1942] O.W.N. 288) set aside the verdict and judgment at trial and ordered a new trial. The Supreme Court of Canada now restored the judgment at trial, holding that there was evidence properly submitted to the jury upon which they might reasonably find, as they did, a verdict for the defendants.
It was stated in this
Court, per the Chief Justice and Davis,
Kerwin and Hudson JJ., that the proper course was not followed in respect of the form of certain questions submitted to the jury (which appear in this report infra);
that the proper procedure was that laid down in Newell v. Acme Farmers Dairy
Ltd., [1939] O.R. 36, as expressed in the headnote in the report of that case
(quoted in the reasons for judgment in this Court in the present case); and it was pointed out that some observations made in this Court in Landreville v.
Brown, [19411 S.C.R. 473, were not sanctioned by the majority of the Court.
..................
2.-Negligence - Collision - Claims for damages to car and injury to passengers- Action in warranty by defendant against insurance company-Public liability insurance policy-Intoxication of driver-Excessive speed-Whether driver's acts amounting to criminal misconduct-Concurrent findings-Rule of public policy- Whether "intoxicated person" driving the car means owner of the car-Criminal negligence-Elements constituting it. 143
3.-Negligence-Injury to passengers- Judgment against driver-Seizure by garnishment in hands of insurance company liability indemnity policy- Driver convicted of criminal offence-Insurance company declining liability-Concurrent findings as to absence of criminal negligence-Rule of public policy-Applicability of rule-Whether decision of a quent civil action-Sufficiency and admissibility at the trial of document purporting to prove conviction-Art. 1241 C.C.- Art. 1351 C.N.-Sect. 284 Cr. C..... 165
MUNICIPAL
CORPORATIONS - Contract-Construction of water-works and fire-fighting system-Agreement to pay a sum over twenty-five thousand dollars- By-law authorizing a loan not exceeding ten thousand dollars and providing for a special tax sufficient to pay costs of construction and maintenance-Reports by municipality's engineer accepted adopted by resolutions-Claim by con- MUNICIPAL CORPORATIONStractor for cost of works over ten thousand dollars-Liability of the corporation-Absolute nullity of contract if not in conformity with the "Act respecting certain works in municipalities", R.S.Q., 1941, c. 236-Quantum meruit-Whether contract valid under the "Act to grant certain powers to municipal corporations to aid the unemployed", Q., 1935, 25-26 Geo. V, c. 9-Resolutions of the municipal council also illegal.]-The respondent corporation entered into a contract with the appellant for the construction of water-works and for the installation of a fire-fighting system, and agreed to pay to the appellant, as costs of the enterprise, a sum of $26,066.00. At the same time as the signing of the contract, a by-law was passed authorizing the corporation to borrow a sum not exceeding $10,000.00 and stipulating that "to provide for the payment of the costs of construction, maintenance and administration *
*
*, the council of the municipality was authorized to levy each year a special tax on all property", taxable or not taxable. It was stated that the by-law was passed "in order to remedy to unemployment under the authority of the Act 25-26 Geo. V, c. 9". The preamble of the by-law also declared that 70 per cent, of the costs would be paid by the provincial government "and the balance, to wit: $10,000.00, would be at the expense" of the corporation.
During the period of construction and at the completion of the works, the corporation's engineer made a preliminary and a final report, estimating the value of the works at over $10,000.00, and both reports were accepted and adopted by resolution of the municipal council. The sum of $10,000.00 was paid by the Corporation. The appellant claimed by his action a further sum of $16,779.23 as balance due under the contract. The Superior Court maintained the action; but this judgment was unanimously reversed by the appellate court. Held, affirming the judgment appealed from, that the respondent corporation was not liable for the amount claimed by the appellant. The by-law, which has authorized the contract with the appellant and has ordered the works, provided for the appropriation of the entire requisite amount only to the extent of $10,000.00, and no special tax has been imposed to provide for any amount exceeding that sum, in conformity with the Act respecting certain works in municipalities, R.S.Q., 1941, c. 236.
Any agreement with the appellant contrary to the provisions of that Act is null and does not bind the Corporation; such law, being prohibitive, imports nullity (Art. 14 C.C.); and it does not matter whether the contract is one for a fixed sum or at unit prices. Moreover, the appellant, in his evidence, has made admissions that the contract should be so construed. Held, also, that the appellant cannot put his claim on a basis of quantum meruit, as the contract has been made under certain conditions clearly specified and necessarily limited by the law. Rodovski v. California Associated Raisin Co. ([19261 S.C.R. 292).
Held, also, that the appellant can neither invoke, in support of his claim, the benefit of the provisions of the Act to grant powers to municipal corporations to aid the unemployed, Q., 1935, 25-26 Geo. V, c. 9, which Act is referred to in the by-law.
Even assuming that this Act would take away the municipal corporations from the application of the other Act (R.S.Q., 1941, c. 236), a municipal corporation can only contribute "to aid unemployed
* * * either out of its general funds, or by means of loans which it may authorize by by-laws". In this case, as already stated, it was expressly specified the by-law that the sum to be borrowed would not be in excess of $10,000.00.
Held, further, that, such contract being illegal and null, such illegality and nullity cannot be wiped away by a mere resolution of the municipal council purporting to accept and approve the execution of the works, and such resolution cannot either be taken as a ratification of a contract which the law declared to be null.
MacKay v. City of Toronto ([19201
A.C. 208).
MUNICIPAL DISTRICT ACT AMEND- MENT ACT, 1941, ALTA., C. 53, S. 31
-Constitutional validity ........... 295
NATURAL RESOURCES AGREEMENT of between Dominion of Canada and Province of Alberta-Transfer of
Crown lands to Province-Timber licenses issued by Dominion-Increase of dues by
Province ................
See 4.
Motor vehicles
Collision-Claims for damages to car and injury to passengers-Action in warranty by defendant against insurance company- Public liability insurance policy-Intoxication of driver - Excessive speed - Whether driver's acts amounting to criminal misconduct-Concurrent findings- Rule of public policy-Whether "intoxicated person" driving the car means owner the car-Criminal negligence-Elements constituting it...............
See (PUuc LIABIDTY
PoLIcY) 1.
NEGLIGENCE-Concluded
2.-Motor vehicle-Injury to passengers against driver-Seizure by garnishment in hands of insurance company-Public liability indemnity policy- Driver convicted of criminal offence-Insurance company declining liability-Concurrent findings as to absence of criminal negligence-Rule of public policy-Applicability of rule-Whether decision of a quent civil action-Sufficiency and admissibility at the trial of document purporting to prove conviction-Art. C.C.- Art. 1851 C.N.-Sect. 284 Cr. C. .... 165 See (PUBuc LIABIrY PoLIcY) 2.
3.-Motor vehicles-Trial-Pedestrian struck by motor vehicle-Action for damages-Findings of jury-Evidence-Form of questions to jury as to negligence of driver of motor vehicle, where by statute onus is on him to disprove negligence causing damage .................
See MOron VEHICLES 1. 4.-See 1; 1; OIL AND GAS LEASES-Effect upon lease of subsequent legislation preventing performance of a condition-Whether lease frustrated - Constitutional law Validity of Oil and Gas Wells Act, Alberta, 1981, C. 46.1-The appellant held under a lease from the owner "the right and interest of the lessor in all the petroleum" in a certain parcel of land. The respondent held under a prior sublease the petroleum and natural gas rights in the same parcel of land. Under the last agreement, it was agreed that the respondent should drill an oil well within a certain time, and within twelve months after completion of the first well it would drill a second well and that, in default of so doing, it should be deemed to have abandoned the property, except the first well and the five acres surrounding it, and the appellant was to be entitled to re-enter. spondent drilled the first well, but did not drill the second well owing to the fact that certain regulations under The Oil and Gas Wells Act, Alberta, 1931, c. 46, enacted after the execution of the lease, prohibited the drilling of a well within 440 yards of any producing well.
The effect of these regulations was to make it impossible for the respondent to drill a second well on a forty-acre plot such as was covered by the lease.
The respondent brought an action for a declaratory judgment that there was no default or abandonment and that its right in the premises still continued. The trial judge held that the respondent was entitled to the declaration as claimed and a majority of the appellate court affirmed his decision. Held OIL AND GAS LEASES-Concluded that the judgment appealed from ([1942]
1 W.W.R. 138) should be affirmed. When all the provisions of the sublease agreement are read together, it cannot be said that the respondent was in default within the contemplation of the particular clause providing for the drilling of the second well. The Oil and Gas Wells Act, Alberta, c. 46, is not ultra vires of the provincial legislature.
One LD. v.
LTD..... 37
OPIUM AND NARCOTIC DRUG ACT- Charge of offences under............. 98
See CIMxNAL 1.
ORDER
COUNCIL-Under
War
Measures Act, etc.................
See LAw
PATENT - Infringement - Invention of improvement in plug valves-Specification and claims limiting invention to improved method of attaining an old object-Monopoly limited to particular mode described
-No infringement unless same thing taken and same result attained in substantially the same way.]-Plaintiffs claimed that defendant had infringed their rights under a patent for an invention relating to an improvement in plug valves (used, e.g., in pipe lines) of the type in which lubrication of the bearing or seating surfaces of the valve is effected by forcing lubricant under pressure into the contact joint between the plug and the valve seat in the casing. An object of the invention was to provide the valve with a system of lubricating grooves of such arrangement as to prevent leakage, with the arrangement being such as to effect the cutting off from the supply of lubricant under pressure of any grooves becoming exposed to the line fluid when the plug was being turned. Held: Plaintiffs' patent in suit and every claim therein were limited to a tapered plug valve, while defendant did not make use of a "tapered valve" but used a cylindrical valve; and that fact was sufficient, in view of the nature of the patent, to defeat the claim for infringement, as the principle of the valves was different; defendant's type of valve was entirely different from that of plaintiffs.
On this ground, the dismissal of the action by Maclean J. ([19421 Ex. C.R. 138 and
156) was affirmed. (This Court also stated that "other material differences and distinctions in important particulars" might be pointed out between the methods adopted respectively in plaintiffs' patent and by defendant to accomplish their results.) The patented invention could not be said to consist in the discovery of a new principle or of a method of attaining a new result; the specification and the claims limited the invention to an im- PATENT-Continued proved method of attainng an old object. In such a case the monopoly is limited to the particular mode described (Tweedale v. Ashworth, 9 R.P.C. at 128, and other cases, cited).
The patentee was limited by the patent claims to the precise mechanism described and there could be no infringement unless defendant had taken the same thing and attained the same result in substantially the same way. CO. v. 2.-Infringement - Subject-matter-Invention - Anticipation - Alleged illegal agreement in restraint of trade as defence to action for infringement-Combines Investigation Act, R.S.C., c. 26-Patent Act (D.) 25-26 Geo. V, c. 30-Criminal Code, s. 498.1-The action, brought by the respondent Thermionics Limited, is one for the infringement of two patents, the Langmuir and the Freeman patents, acquired by it by way of assignment from the patentees, both patents relating to devices known as vacuum tubes used in radio sets. The other respondents are licensees under the patents so assigned. The appellant, Cutten-Foster & Sons Ltd., was reselling radio tubes, imported into Canada and sold to it by the appellant, Philco Products Ltd., which tubes are alleged to infringe both patents. The Langmuir patent is entitled "Electron Discharge Apparatus"; and the invention relates to electric discharge devices which are provided with three electrodes, namely, an "electron-emitting cathode", a "co-operating anode" and a "conductor constituting a grid" which regulates the flow of electrons. This "combination" was claimed to include a highly evacuated envelope and structural features which are alleged to be novel and to co-operate to increase the range and capacity of such devices. The Freeman patent had for its principal object the provision for radio service of a tube which may be used in the ordinary receiving and amplifying circuits with alternating current on the filament, thereby eliminating, it is contended, the major alternating current hums or noises which were due to three different factors, i.e., the electrostatic, thermal and magnetic effects. A complete detailed description of the patents is contained in the judgments. The appellants also contended that the assignments of the patents to the respondent, Thermionics Ld., were invalid on the ground that they had been given for an illegal consideration, having been made as a result of an agreement between the respondents whereby they could fix, control and unreasonably enhance the prices at which radio tubes were to be sold to dealers in, and users of, these tubes, thereby restricting competition and detrimentally affecting the public, con- [Ex. C.Rt. PATENT-Continued trary to the relevant provisions of the
Combines Investigation Act and of section
498 of the Criminal Code. The trial judge denied to the appellants the right to adduce evidence to establish facts and things in support of their above-mentioned contentions. The trial judge also held that both patents were valid and that they had been infringed by the appellants. Held that, as to the Langmuir patent, the appeal of Philco Products Limited should be allowed, and, as to the Freeman patent, the appeal should be dismissed. The
Chief Justice and Hudson J. would dismiss the appeal, and Rinfret J. and Taschereau J. would allow the appeal of
Philco Products Limited, in connection with both patents. Held that the combination of the features referred to in the
Langmuir .patent does not afford subjectmatter, and, as between the respondents and the appellant Philco Products Limited, the patent granted on Langmuir's application is invalid. The Chief Justice and Hudson J. dissenting. Held that the
Freeman patent was a true combination patent and a novel and useful device, that there was subject matter in it and that the appellants have infringed. Rinfret J. and
Taschereau J. (dissenting)
. Held, also, that, as to the Freeman patent, the defence of anticipation has not been established.
Rinfret and Taschereau JJ. (dissenting)
.
Held, also, that the appellant Cutten- Foster & Sons Ltd. was bound by a clause in an agreement entered into by it that it
"admits the validity of the letters patent under which radio tubes are or may be licensed", and that, by reason of such admission, the Langmuir patent is valid as between it and the respondents. Held, further, that the defence, based on an alleged offence against the relevant provisions of the Combines Investigation Act and of section- 498 of the Criminal Code, should fail. Assuming the transactions between the respondents or some of them and Thermionics Ltd. were illegal and void, the patents were still vested in them and they were entitled to enforce those rights (Sections 54 to 57 of the Patent
Act). Judgment of the Exchequer Court of Canada ([19411 Exe. C.R. 209) varied.
Pnco v. THERMI- AL......................
3.-Validity - Invention - Remedies licensee against infringer-Measure, basis, of damages.]-In an action for infringement of a patent for alleged new and useful improvements in the producton of fibres or threads from glass, slag and the like meltable materials, the judgment of
Maclean J., [19421 Ex. C.R. 73, in favour of the plaintiff was now reversed and the action dismissed by this Court on the ground that there was not invention in the claim sued upon (claim 1) of the
90231-4
D EX
PATENT-Continued patent.
Rand
J. dissented.
Plaintiff claimed to be the licensee of the rights conferred by the patent. The Custodian, as being the person in whom had become vested the patentee's interest in the patent, was a party defendant. was a question (assuming a valid patent) as to plaintiff's right to maintain the action; and with regard thereto opinions were expressed as follows: Per Davis and Taschereau JJ.: For the purposes of s. 55 of the Patent Act (Dom., 1935, c. 32) a licensee is a "person claiming under" the patentee "for all damages sustained" by such person by reason of infringement. The profits made by an infringer are not the measure of the damages sustained by a licensee.
In the present case there was nothing in the evidence to guide the Court in ascertaining whether any damages were sustained and nothing to lay the basis for a proper ascertainment of damages, if any were sustained; in the peculiar circumstances of the case, plaintiff never having made any commercial use. of the patented process so far as the evidence disclosed, either in this country or in the United States, it was difficult to see that it had suffered any damages; but plaintiff, if the patent were to be held valid, would be entitled, at its own risk, to a reference as to amount of damages. Per Kerwin J.: If it were held that the claim of the patent sued on was valid, plaintiff, as exclusive licensee, would be entitled to the usual order of restraint against an infringer. As to damages: An exclusive licensee claims under patentee within the meaning of s. 55 of the Patent Act (supra) and the presence of the Custodian as a party defendant in this case would be sufficient if plaintiff had worked the invention in Canada. This did not occur and there was no basis for the fixing of any damages suffered by plaintiff.
A claim for damages suffered by the Custodian (as being the person for the time being entitled to the benefit of the patent)
might be permitted amendment in a proper case; but even then it was doubtful if any further evidence could be adduced which would assist in coming to a conclusion as to the damages suffered by him, when the patent was not worked in Canada. Per Rand J. (who, dissenting, held in favour of validity of the patent, and who would dismiss the appeal from the judgment in the Exchequer which granted, inter alia, an injunction, right to recover damages, if any, or profits, if any, made by reason of infringement, as plaintiff might elect, and enquiry as to damages or profits): The action was maintainable, all interested parties being before the Court. SPUN LTD.
4.---Contract-License agreement between owner of patents and defendant- Effect of subsequent adjudications as to validity of the patents, and of filing of a disclaimer, on defendant's liability for royalties under the agreement-Plaintiff, as assignee of owner of the patents, suing defendant for royalties-Sufficiency of assignment-Sufficiency of notice thereof to defendant ................
.....
PERFORMING RIGHT
PERIL OF THE SEA
See SHnsiNa.
PERJURY
PETROLEUM
PLEADINGS
PRACTICE
PROCEDURE- Inscription in law-Action in damages resulting from series of offences and quasi-offences - Alleged conspiracy - Declaration containing 117 paragraphs- Inscription in law against all paragraphs but four, the latter being mere recitals- Conclusions not attacked-Offences and quasi-offences committed over two years before service of action-Prescription of damages-Some paragraphs containing libellous statements-Plantiff alleging knowledge within a year before service of action-Such paragraphs not to be rejected on inscription-in-law-Delay of prescription under article 2262 (1) C.C.
reckoning from day libel came to knowledge of party aggrieved-Conspiracy alleged to constitute continuous delict-- Whether prescription runs from date of cessation of conspiracy-Damages prescribed from date of each of overt act constituting conspiracy-Libellous statements contained in legal proceedings- Whether prescription runs from date of service or from date of final judgment- Dismissal of action in toto, although conclusions not attacked-Joinder of causes of action-Articles 2232, 2261, 2262 (1),
2267 C.C.-Articles 87, 177 (6), 192 C.C.P.]
appellant company, owning and operating a number of stations for the sale of gasoline and oil in the province of
Quebec, brought an action against the respondent company, a competitor in the same trade. The appellant, alleging the existence of a conspiracy, between the respondent and four other parties not be- PRACTICE AND PROCEDUREfore the Court, to prevent it from operating or to hinder its business, claimed damages resulting from a series of offences and quasi-offences alleged to have been committed declaration, or statement of claim, contained 117 paragraphs.
The respondent filed an inscription in law against all but the three opening paragraphs and the last one, the former being purely introductory recitals and the appellant merely stating in the latter its option for a jury The offences and quasi-offences were alleged to have been committed in 1934, 1935, 1936 and 1937.
The writ of summons was served upon the respondent on August 5th, 1940. More particularly, paragraphs 95 to 110 inclusive contained allegations of libellous statements made by the respondent against the appellant; and it was further alleged, as a fact (par. 116), that the appellant learned only in the month of December, 1939, that these statements were due to the acts and deeds of the respondent. The Superior Court maintained the inscription in law on the ground that the appellant's action was prescribed (art. 2261 C.C.) and the debt absolutely extinguished (art. 2267 C.C.), and, although not prayed for, dismissed the action in toto. This judgment was affirmed by the appellate court. that paragraphs 95 to 110 inclusive, part of paragraph
115 and paragraph should not have been rejected by the courts below and that, otherwise, the judgment appealed from, as to the other paragraphs, should be affirmed. The appeal to this Court was allowed accordingly, with costs. Held, also, that, the appellant alleging (par. 116) that, in fact, he acquired knowledge of his rights against the respondent (those stated in par. 95 to 110 inclusive) less than a year before he served his action upon the latter, the appellant's action as brought, and on the strength of that allegation, was well founded in law, as far as those paragraphs were concerned, by force of articles 2232 and 2262 (1) C.C., it should not have been dismissed on an inscription in law but should have been allowed to go to trial pro tanto. Charpentier v. Craig (Q.R. 22 K.3. 385) and Beaubien v. Laframboise (Q.R. 40 KB. 196) foll.- There was clearly, in these paragraphs, allegations of libellous statements by the respondent, and the appellant learned only in December, 1939, that these statements were due to the acts and deeds of the respondent. On an inscription in law, all allegations of fact must be taken as proven. Therefore, as to the above paragraphs, the course of prescription was suspended, as, up to that date, it had been "absolutely impossible for" the appellant "in law or in fact" to bring its action against the respondent (art. 2232 C.C.)
and such action was brought en temps utile, i.e. within one year from that date
(art. 2262 (1) C.C.) .- Under this last article, an action for libel is prescribed by one year, reckoning not merely "from the day that it came to the knowledge of the party aggrieved", but from the day the party aggrieved acquires the knowledge of the identity of the person who has made the libellous statement; this is a question of fact which cannot be disposed of on an inscription in law.
It is a well-known principle of the law of prescription, recognized by the Civil Code (art. 2232), that contra non valentem agere non currit prescriptio. As to the appellant's ground of appeal that, its action being wholly based on a conspiracy between the respondent and other parties, it constituted therefore a continuous delict with the result that prescription would run only from the date of the cessation of the conspiracy, Held, concurring with the opinion of the appellate court, that. prescription is distinct and separate in respect of each of the overt acts alleged to have been committed by the respondent and that the damages suffered as a consequence of these overt acts are prescribed from the date on which each one of them has been committed.
As to another ground of appeal: some of the allegations in the declaration referred to certain actions, termed illegal and vexatious, brought before the courts against the appellant by different individuals at the alleged instigation of the respondent, and it was contended by the appellant that the period of prescription should not be computed from the date of the service of these actions, but from the date when they had been finally disposed of by judgment. Decisions relied on mainly in support of this ground of appeal were Bury v.
The Corriveau Silk Mills Co. (M.L.R.
3 S.C. 218); Lapierre v. Lessard (Q.R. 38
K.B. 373) and The mayor of the city of
Montreal v. Hall (12 Can. S.C.R. 74).
The appellate court held that these cases did not apply because the appellant's action was not directed so much towards the merits of the proceedings instituted by the individual parties, but towards the conspiracy of which these actions were alleged to have been overt acts. Held that the appellant's declaration may be susceptible of such interpretation; but, in any event, the proceedings in question were not instituted by the respondent, and, for that reason, there is a doubt that the above decisions can find their application in an action in damages brought, not against those who instituted the proceedings, but against the respondent, which was not a party to those pro- PRACTICE AND PROCEDUREceedings. Paragraphs I to 3 and 117 of the declaration were not attacked by the inscription in law, nor were the conclusions thereof, and the respondent did not pray for the dismissal of the action. Nevertheless the Superior Court dismissed the action in toto, and that judgment was affirmed by the appellate court. The appellant contended that the court had no such authority, or that, at least, he should have had an opportunity of being heard on that point. Held that, it being unnecessary to express any opinion on the merits of this point, it is doubtful whether the point could have been considered as a mere question of practice and procedure in which this Court should not have interfered; but that the present judgment, at all events, should not be taken as an approval of the course followed in the premises by the courts appealed from. Quarre whether, in view of the declaration setting out several causes of action, this joinder of causes was permissible under art. 87 C.C.P. and whether such procedure should not have been inquired into by the Superior Court, had the respondent raised the point by dilatory exception under paragraph 177 (6) of that code. Joy Om v. Om Co. IrD. ........ extend delay-Right to jury trial forfeited and cannot be revived-Rule not one of mere procedure-Conditions prescribed for jury trial are imperative- Jurisdiction of jury extinguished after expiration of delay-Article 449 C.C.P.]- The appellant brought an action against the respondents for damages caused to him through the death of his son, killed by the respondent company's truck driven by the other respondent, and made option in his statement of claim for a trial by jury. On the 12th of December, 1941, the trial resulted in a disagreement. On the 7th of February, 1942, counsel for the appellant prepared a motion to call a new jury and to fix the date of the second trial, and counsel for the respondents agreed in writing to the motion. But, on the day fixed for the trial, objection was entered by counsel for the respondents against the hearing of the case by a jury, on the ground that the consent given by him was not valid. The trial judge overruled the objection, and, after verdict by a jury, awarded $3,199.60 to the appellant. The appellate court reversed this judgment on the sole ground that the appellant had forfeited his right to a jury trial, and the record was sent back to the Superior Court for trial before a judge without a jury. Held that the appeal to this Court should be dismissed. Per
Kerwin, Hudson and Taschereau
JJ.
When both parties to an action have forfeited their right to a jury trial through the expiration of the delay prescribed by article 442 C.C.P., either of them cannot, even with the consent of the other, revive such right, no more than they could give a valid consent to a jury trial when the law does not grant right to it. The obligation, imposed by that article and drawn up in imperative terms, is more than an ordinary rule of procedure prescribing a delay, which rule the parties would at liberty follow or extend. The right to a jury trial is subordinate to the conditions which are intimately connected with it.
The law has not only granted a right to the litigants, but it has also conferred jurisdiction to twelve persons to hear the case and has imposed upon them the obligation to perform their duties, when the request has been made to the court within the prescribed delay. Consequently, when the delay has expired, a conditional right has been lost because the condition has not been fulfilled; and the jurisdiction of the jury has passed away and cannot be re-established, even with the consent of the parties.
Co., LTD.......... 464
3.-Summary procedure under ss. 52, 54 of The Unfair Competition Act,
(Dom.) .......................
See MARKs 2.
4.-See LAw 4; Moron
PRESCRIPTION
See AcroNs;
PROMISE OF MARRIAGE-Action for damages for breach of..............
RAILWAYS-Bridge over highway- Height of-Injury to person-Standard of maintenance-Whether statutory height to be maintained as structure originally constructed, or maintained continually at such height-Bridge and land owned by railway company-Level highway raised by works of third parties-Knowledge of railway company of possible danger and previous accident-Whether railway company had means to cope with situation-Government Railways
R.S.C., 1927, c. 173, s. 19.1-The respondent brought an action for damages against the railway company appellant, arising out of the death of his son, whose head was struck by a beam of a railway bridge over a highway. The bridge at the point
RAILWAYS-Continued of contact was only 10 feet 4 inches above the highway, and it was contended that it should have been maintained at all times by the appellant company with a clearance of at least 12 feet.
The railway company pleaded that the bridge had been constructed originally with a clearance in excess of the 12 feet required by statute, but that in subsequent years improvements made from time to time by the municipal corporation and by the provincial highway authorities resulted in raising the level of the travelled road to such an extent as to diminish. the original clearance. The statutory provision under which the railway bridge had been built in 1912 was the same as the one now contained in section 19 of the Government Railways Act, R.S.C., 1927, c.:173, where it is provided that "the span of the arch of any bridge * * * shall be constructed and continually maintained at
* * * a height of not less than twelve feet *
Held, Rinfret and Taschereau JJ. (dissenting)
, that the section must be construed as compelling the railway company to maintain the structure as it was when originally constructed, provided it was constructed within the statutory requirements, and that the railway company was not required under the statutory provision to raise the bridges on their line, and with them necessarily the whole grade of the line in the neighbourhood, whenever a municipality or a provincial government should think proper to raise the surface of the highways passing under them.
Carson v. Village of Weston ([1901] 1 Ont. L.R. 15) approved and applied. Per Rinfret and Taschereau JJ. (dissenting).-Under section 19 of the Government Railways Act, R.S.C., 1927, c. 173, it was the duty of the appellant railway company to build the subway with a clearance of at least twelve feet; but, in this case, the railway company, being the owner of both the subway and the land over which it was built, where the public had access and to which it was invited, had the further duty to maintain this clearance continually, and, having failed to do so, must be held liable. Moreover, the argument of the appellant that the lowering of the clearance was not the result of its own acts, but of the acts of third parties, the provincial and municipal authorities, cannot be upheld: the acts of third parties may constitute an answer to a claim in damages only if it be shown that they cannot be imputed to the defendant and could not have been foreseen or prevented by him. Upon the evidence, the appellant railway not only contributed to the raising of the road, but knew it had been raised by the provincial and municipal authorities; it was aware of the danger and had been warned by the fact that 6()6
RAILWAYS-Concluded another accident had happened previously at the same place and was also aware through representations made by public bodies and a petition before the Board of
Transport. Moreover, the appellant railway company -had at its disposal the appropriate means to cope with the situation, by applying to the courts for an injunction to prevent, on its own property, the performance of these works by third parties or by summoning the latter, if the work had been done without its knowledge and consent, to restore the premises to their original state. Judgment of the
Court of King's Bench (Q.R. [19421 K.B.
345) reversed, Rinfret and Taschereau JJ.
v. ....................
2.-Expropriation of land by railway company-Fixing of amount of compensation-Method of valuation-Reservation of right to claim further sum-Interference by appellate court .........
3.---See 1; CotTRAcr 2; WORK- RES JUDICATA-Whether decision of a quent civil action..........
.....
See (PuBLIc
POLIcy) 2.
RESTRAINT
OF TRADE-Agreement in, as defence to action for infringement of patent ..........................
SALE OF GOODS-Date of delivery- Common carrier-Bill of lading-Goods
"for export"-Place of delivery "West St.
John"-Goods remaining at St. John pending instructions from consignee- Non-acceptance by consignee-Liability for damages resulting therefrom-Substantial performance of contract by common carrier-Carrier ready to deliver goods when notified by consignee as to place of delivery-Failure of consignee to give such notice-Practice or method of handling cars from one place to another by means of two railway companies- Practice forming part of contract or tacitly annexed to it-Evidence as to such practice-Admissibility-Not varying but explaining written contract.......... 275
SALE OF LAND-Action for specific performance of agreement-Time for redemption-Constitutional validity of The
Alta., c. 37, s. 9.....................
SCHOOLS-Assessment and taxation- Companies-Company designating portion of its assessment in municipality for separate school purposes
Separate Schools Act, R.S.O., 1937, c. 362, s. 66- Notice by company in form B-Complaint against assessment for separate school purposes-Onus of proof as to compliance with a. 66 (8)-Effect of absence of evidence ........................ SHIPPING-Bill of lading-Wheat in bulk-Foundering of ship-Loss of cargo -Unseaworthiness-Seaworthiness at beginning of voyage-Severe storm-Peril of the sea-Prima facie liability-Burden of proof-Findings of fact-The Water Carriage of Goods Act, 1936, (D), 1 Edw. VII, c. 49.1-The appellants, plaintiffs, seek to recover from the respondent, defendant, the value of a cargo of wheat in bulk delivered to and received by the defendant on board its ship Arlington at Port Arthur, Ontario, on April 30th, 1940, for carriage to and delivery at Owen Sound, Ontario. The wheat was shipped under bills of lading issued by the respondent, by the terms of which the shipment was subject to all the terms and provisions and all the exemptions from liability contained in The Water Carriage of Goods Act, 1936, 1 Edw. VII, c. 49, and the Rules as provided in the schedule of the Act. The Arlington foundered while on Lake Superior on May 1st, 1940, and, with her cargo, became a total loss. The appellants' action for damages was dismised by the late President of the Exchequer Court of Canada. The trial judge found that the cargo was properly loaded and stored, that the ship was not unseaworthy because she was not provided with either longitudinal bulkheads in the cargo holds or with shifting boards, that the carrier used due diligence to make seaworthy, generally, the ship and her equipment, including the tarpaulins and the equipment for securing them in place and that they were in fact seaworthy at the commencement of the voyage and that the presence of slack water in one of the tanks had no real bearing on the case. Held, affirming the judgment of the Exchequer Court of Canada, Maclean J., ([19421
159), Davis J. dissenting, that the findings of the trial judge were findings of fact which ought not to be disturbed by this Court and that upon them the shipowner respondent was not liable. The respondent has acquitted itself of the onus put upon it to show the cause of the loss and bring itself within the exceptions: Gosse Millard v. Canadian Government Merchant Marine, Limited ([19271 2 K.B. 432; [1929] A.C. 223) and negligence causing the loss has been negatived. There was more than a prima facie case of loss by 60~7 SHIPPING-Concluded peril of the sea, the evidence disclosing that the storm was a severe one, and the mere fact that none of the other ships in the vicinity suffered in the same way as did the Arlington does not detract from this evidence.-The shortness of the time that elapsed between the sailing of the ship and its foundering is a circumstance to be taken into consideration in deciding whether the ship was unseaworthy Ajum
Goolam Hassen and Co. v. Union Marine
Insurance Company, Limited ([19011 A.C.
363, at 366); Lindsay v. Klein A.C.
194, at 203).
Per Davis J. (dissenting)
.
Findings of fact by the trial judge lose much of their weight if the question of the peril of the sea was not the vital point for consideration and such test was in law not the primary test of liability in this case.
Pope Appliance Corporation v. Spanish
River Pulp and Paper Mills, Limited
([19291 A.C. 269, at 273). The bald statement of fact that the ship sank within a few hours after leaving port raised by itself the heaviest sort of burden on the respondent to dislodge prima facie liability, and the foundering of the ship without any other explanation than the existence of a strong gale puts one on his enquiry as to the seaworthiness of the ship at the beginning of the voyage. There was no peril of the sea, as the weather was what might be expected in the spring on Lake
Superior.
Upon the evidence, the re- . spondent has not satisfied the burden that lay upon it in the circumstances to show that the ship was seaworthy at the beginning of the voyage or that the loss was not due to its unseaworthiness.
PARRIsH
&
LTD. v. BURKE TowING
& I/rD .................
STATUTE OF FRAUDS-R.S.O.
1987, c. 146, s. 4-Action for damages for breach of promise of marriage.............. 256
See CONRACT 1.
STATUTE OF LIMITATIONS
See AcTioNs.
TIMBER-Timber licenses issued by Dominion of Canada-Transfer of Crown lands by Dominion to Province-Natural
Resources Agreement of 1929 between
Dominion and Alberta-Increase of dues by Province ...................
See CoNsTrruTroNAs LAW 4.
TRADE MARKS-Petition to expunge respondent's mark from
Register- Whether petitioner's and respondent's marks "similar" within meaning of s. 2
(k) of The Unfair Competition Act, 1932
(Dom., c. 38).1-The appellant and respondent companies were canners of vegetables, etc.
Appellant used the trade
TRADE MARKS-Continued mark "Garden Patch", registered in 1929, and the trade mark "Summer Pride", which appellant commenced to use in 1935 but which by oversight was not registered.
commenced to use, and registered, the trade mark "Garden Pride".
Appellant petitioned to have respondent's said trade mark expunged from the Register, on the ground that its registration did not accurately express or define respondent's existing right in respect of the mark since respondent was not entitled to use it owing to the reasonable apprehension of confusion consequent upon its use between appellant's goods and those of respondent bearing it. Held: Said trade marks "Garden Patch" and "Garden Pride" were not, nor were said trade marks "Summer Pride" (assuming that the Court could take it into consideration, notwithstanding its non-registration) and "Garden Pride", "similar", within the meaning of s. 2 (k) of The Unfair Competition Act, 1982 (Dom., c. 38); and therefore the dismissal of appellant's petition by Maclean J., [19421 Ex. C.R. 22, should be affirmed. FINE FooDs oF
V. MErCALFM Foons, LD. .....................
2.-Application to expunge from Register the words "White Clover" as applied to "butter", in view of prior registration of same words as applied to "hydrogenated cottonseed and vegetable oils"- Question whether, on the evidence, the wares are "similar" within ss. 2 (1) and (1) (f) of The Unfair Competition Act, 1982 (Dom.)-Summary procedure under es. 52, 54, of said Act.1-In the Register of Trade Marks, appellant in 1934 caused to be registered the words "White Clover" as applied to hydrogenated cottonseed and vegetable oils (which are used for shortening in baking); and respondent in 1941 caused to be registered the same words as applied to butter.
applied to the Exchequer Court under s. 52 of The Unfair Competition Act, (Dom.) to have respondent's words expunged from the Register. The application was heard and determined on evidence adduced by affidavits (under s. 54 of said Act) and exhibits filed. Exchequer Court, Maclean J. dismissed the application, holding that the two products were quite different things, that primarily they were made and sold for different purposes or uses, that upon the evdence there was no probabilty of, and no evidence of, confusion, and that the use of the mark by respondent to indicate butter produced by it was not at all likely to cause purchasers to think that such butter was produced for sale by appellant. On appeal to this Court: Held (The Chief Justice and Davis J. dissenting): TRADE MARKS-Concluded
The appeal should be allowed and appellant's application granted.
Though the constituent elements, and appearance, of the two wares are entirely different, yet it was proved that they are dealt in by wholesale and retail grocers and in stores of the latter very often appear alongside each other; both are purchased by the general public and butter is used for shortening, though, in view of the difference in price, possibly not to the extent suggested by appellant.
A consideration of all the evidence leads to the conclusion that retail grocers would infer that appellant, who had for some years put out shortening under name
"White
Clover", had manufactured butter sold under the same name; and though the wrappers on the two wares indicate clearly the names of the respective manufacturers, and particularly careful purchasers might examine the wrapper to ascertain the manufacturer, yet the two wares are so associated with each other as to cause the great majority of the purchasing public to infer that the same person assumed responsibility for their character and quality. Therefore the wares are "similar"
Chief Justice (dissenting) agreed with the conclusion in the Exchequer Court and concurred with the observations in this
Court of Davis J. (dissenting). Per Davis
J. (dissenting):
Opinion expressed that the summary procedure under said ss. 52 and 54 was never intended to be used in cases such as this, where substantial issues of fact might lie at the very foundation of the right to the relief sought. Quite apart from the procedure taken, the findings of the trial judge were such that this
Court would not be justified in interfering with his judgment dismissing appellant's application. PsocTon & v. Co.
LTD..........................
3.-Legal expenses incurred in defending suit against using certain words in connection with sale of products-Deduction in computing income ................
See TAx 1.
TRANSPORT ACT, 1938-Dom., 2 Geo.
Board of Transport Commissioners for approval of agreed charge between shipper and competing carriers by rail--Relevant considerations for the Board-Effects of agreed charge on business and revenues of other carriers ..................
TRIAL-Motor vehicles - Pedestrian struck by motor vehicle-Action for damages-Findings of jury-Evidence
-Form of questions to jury as to negli- TRIAL-Concluded gence of driver of motor vehicle, where by statute onus is on him to disprove negligence causing damage............... See MoTon 1. extend delay-Right to jury trial forfeited and cannot be revived-Rule not one of mere procedure-Conditions prescribed for jury trial are imperative- Jurisdiction of jury extinguished after expiration of delay-Article 442 C.C.P. 464 TRUSTS AND TRUSTEES-Claim by defendant, administrator of an estate, that certain mortgage investments had been made for and allocated to the estate -Transaction attacked as amounting to a sale by defendant to itself as administrator-Accounting-Interest ........... 89 USAGE
VACANT
PROPERTY
MAN., 1940, C. 57
WAR MEASURES ACT-Powers of Governor General in Council under-Regulations under-Orders of Controller of Chem icals ........................... WILL-Validity-Will prepared by one who benefits under it-Attitude of suspicion to be taken by the Court-Onus to remove suspicion-Evidence-Findings at trial.]-Where a will is prepared by one who benefits under it, it should be viewed with suspicion and the Court should be vigilant and jealous in examining the evidence in support of the instrument and should, not pronounce in its favour unless the suspicion is removed and unless it is judicially satisfied that the paper propounded is the true will of the deceased. present case (where a beneficiary under a will had prepared it and conducted its execution) the trial Judge pronounced in favour of the validity of the will. His judgment was reversed by the Court of Saskatchewan,
W.W.R. 385, which held (Martin, CJ.S., dissenting) that the trial Judge had failed to assume adequately the attitude of suspicion required by the rule above stated, and that, under the circumstances in question and on the evidence, a finding WILL-Concluded in favour of the validity of the will was not justified. Appeal was brought to this
Court. Held (Hudson J. dissenting): The appeal should be allowed and the judgment of the trial Judge restored. He was, as shown by a careful reading of his judgment, well aware of said rule of law and had it in mind when considering the evidence. His findings, made in face of contradictory evidence and based on the credibility of the witnesses, should not lightly be disturbed. Reasons of Martin,
C.J.S., dissenting, in the Court of Appeal
(cited supra) approved. Per Hudson J.,
Under the circumstances of the case, the onus was heavily on appellant, and, on the evidence, he had completely failed to remove the suspicion created by those circumstances; and had failed to establish that the deceased fully understood what he was doing in disposing of his property in the terms of the alleged will. The trial Judge failed to realize the strength of said onus. In re
WINDING-UP
R.S.C.,
1927,
C. 213, SS. 139, 140
WORDS
PHRASES - Delegatus non potest delegare (applicability of m axim ) ..............................
See ConSuTIoNAL LAw 1.
2.-"Owned" (in statutory condition no. 10 under Quebec Insurance Act, R.S.Q.
1925, c. 243)...................
WORKMEN'S COMPENSATION-Employee of Dominion Government injured in course of employment in Province of
Alberta through negligence of servants of railway company, an employer in an industry within scope of Workmen's Compensation Act, Alta., 1938, c. 23-Action by said employee against railway company for damages-Question whether right of action affected by said Act, particularly s. 24 (6), or affected by dealings with and actions by
Workmen's
Board-Operation and effect of Government
Compensation Act,
R.S.C. 1927, c. 30, as amended in 1931, c. 9.1-Plaintiff, a resident of the province of Alberta, was employed by the Dominion Government as a postal clerk. While engaged in his duties on a railway mail car in defendant's train in said province, he was injured through negligence of defendant's employees.
Certain forms in use in the administration of The Workmen's Compensation Act, Alberta, 1938, c. 23, were completed and sent to the
Workmen's Compensation Board of the
WORKMEN'S COMPENSATIONprovince. The Board paid plaintiff's medical and hospital expenses, charging at first the amount thereof to the Dominion Government's deposit with the Board, but later transferring the charge so that it was made, purportedly under the power given by s. 24 (6) of said Act, against the account of defendant, which was an employer in an industry within the scope of the Act. The Dominion Government continued payment of plaintiff's salary while he was off duty through his injuries, but later the said Board charged against defendant an amount equal to the compensation to which plaintiff would have been entitled had his salary not been paid, and (after getting completed a form of assignment by plaintiff) paid that amount to the Dominion Government. Plaintiff sued defendant for general damages. A defence was raised that, by force of s. 24 (6) of said Act, there was no right of action against defendant; that its only liability was under that section, and, by the Board's action in assessing against it the said expenses and compensation, defendant's liability had been discharged. Held (reversing judgment of the Supreme Court of Alberta, Appellate Division, [19431 1 W.W.R. 93): Plaintiff was entitled to maintain his action. His right of action was not destroyed by said s. 24 (6). A consideration of said s. 24 (6), and the language and scheme of said Act as a whole, makes it clear that s. 24 (6) is dealing only with cases in which both the workman and his employer are bound by the Act; and the employer in this case, the Crown in right of the Dominion, is not so bound, and neither, then, is its employee. The designation, in Schedule 2 of the Act, of "employment by Dominion Government" as an employment to which the Act applies must be taken, in view of s. 2 (h) (which in the definition of "employer" includes the Dominion - Crown "in so far as the latter, in its capacity as master, may submit to the operation of the Act"), as implying the words "as an employer within the Act"; and until there is a submission under s. 2 (h) the Dominion Government is not such as employer, and s. 19 creating the right to compensation does not operate in favour of its employees.
The enactment of the Government
Compensation Act, R.S.C. 1927, c. 30, as amended in 1931, c. 9, (hereinafter called the Dominion Act), had not the effect of a submission by the Crown under said s. 2 (h) of the Workmen's Compensation Act
(hereinafter called the Provincial Act).
What the Dominion Act does is to make full provision for the creation of rights in, and the payment of compensation to, Dominioi4 Government employees; for the purpose of administration, either the existing machinery under the compensation laws of the various provinces, or new machinery set up under the Dominion Act itself, may be used; the authority given by the Dominion Act to the Provincial
Board is strictly limited and the right of
Dominion
Government to is unencumbered a referential incorporation of provisions of the Provincial Act dealing with consequential matters; by s. 3 (1) of the Dominion Act, which gives a right to compensation to employees, it is the liability of the Dominion Government to pay and the amount of compensation which are to be determined, not the resulting effects upon collateral rights against third parties; to suggest that the enactment of a special code of provisions with the powers (as given in the Dominion Act) of carrying them into administration without reference to the provincial Board, is a submission in any sense of the term to a provincial Act constituting another code, is to disregard the precise and individual character of the Dominion enactment. As to the contention that plaintiff by his dealings with the Board had so brought himself within the Provincial Act as to be estopped from asserting a right which that
Act purports to have abolished: What plaintiff did was clearly under the procedure of the Dominion Act; the Board
WORKMEN'S COMPENSATIONfunctioned as contemplated by that Act, and its forms were conveniently used to enable it to make the necessary determination of the Dominion Government's liability for and the amount of compensation; it was only the circumstance that an employer under the Provincial Act was legally responsible for the injury that gave rise to the questioning of those steps; and an erroneous assumption by the Board that all provisions of the Provincial Act were applicable to Dominion Government employees was no warrant transmuting appropriate measures under the Dominion Act into like proceedings under the Provincial Act. As to the contention that the Board had found that plaintiff, as an employee of the Dominion Government, was a workman under the Provincial Act and that such a finding, by s. 10 of that Act, was not open to question: In dealing with plaintiff the Board was acting not under the Provincial Act but as the administrator of the Dominion law; its .assumption, therefore, that plaintiff was a workman within the meaning of s. 24 (6) of the Provincial Act and its action under said s. 24 (6) in relation to defendant were by reason of what it conceived to be the true effect of the Dominion enactment; but to action by the Board in that capacity said q. 10 has no application. CNG Rv. Co. ........................... 00231-4
Cases cited
- A.C. 453 A.C. 453
- Act of Parliament: In re Gray Act of Parliament: In re Gray, supra
- A.C. 328 A.C. 328 345
- A.C. 367 A.C. 367
- Attorney-General for Canada v. Attorney-General for Quebec / Re Silver Bros. Ltd. scr-1929-557
- A.C. 468 A.C. 468 482
- A.C. 599 A.C. 599 609
- 3 W.W.R. 719 3 W.W.R. 719
- A.C. 333 A.C. 333 341
- 1 W.W.R. 163 1 W.W.R. 163
- Minister of National Revenue v. Dominion Natural Gas Co. Ltd. scr-1941-19
- Home Insurance Co. of New York v. Lindal scr-1934-33 par 116
- O.R. 36 O.R. 36
- A.C. 223 A.C. 223
Statutes and regulations cited
-
- s. 1014
-
Exchequer Court Act
- s. 53 of the Exchequer Court Act
- sections 240
- 241
- 242.1
- section 284
-
- s. 67
- s. 34
-
Patent Act
-
Unresolved citations
- s. 35 of The Transport Act, 1988
- sections 139
- 140 of the Winding-up Act
- section 7 of the War Measures Act
- section 3 of the War Measures Act
- paragraph (ddd)
- Section 31 of the Alberta Municipal District Act
- paragraph (a)
- s. 32 of the said Expropriation Act
- s. 85 of said Act
- s. 240 of Quebec Insurance Act
- ss. 52
- 54 of The Unfair Competition Act
- section 19 of the Government Railways Act
- s. 52 of The Unfair Competition Act
- s. 54 of said Act