Majority
although they all arose out of the same transaction, and the real object of part 18 would, in large measure, be defeated. Section 710 in part 15 shows with what specific DEURT language such a limitation of trial has been prescribed.
Rand J. The ground, then, upon which the court below proceeded lay in a misconception of what the Balciunas judgment (1) decided and the appeal must be allowed but, as the accused had appealed as well on the facts and this ground has not been considered below, I would return the case to the Court of King's Bench to be dealt with accordingly.
Appeal allowed.
ANGUS C. WILKINSON
(DEFENDANT).
*Nov. 14. *Nov. 23. MARY
SHAPIRO
JOSEPH
SHAPIRO
(PLAINTIFFS)
...........
RESPONDENTS.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Judgment of the Court
KELLOCK J.-We are all of opinion that this appeal should be dismissed. The appeal is from an order of the Court of Appeal for Ontario, dated November 18th, 1943, (1) [1943] O.R. 806; [1944] 1 DL.R. 139.
allowing an appeal from a judgment at trial, of McFarland J., with a jury, dated June 9th, 1943, by which the action was dismissed.
The respondents brought the action to recover damages for personal injuries sustained by the respondent Mary
Shapiro and for expenses incurred by her husband, the respondent Joseph Shapiro, as the result of an accident happening on or about the 27th September, 1942, while the first named respondent was crossing from north to south on Bloor Street West, in the City of Toronto, in the neighbourhood of Manning Avenue. Whilst so doing, she was struck by an automobile, owned and driven by the
The jury in answer to the question, "Has the defendant
Angus Wilkinson satisfied you that the loss or damage of the plaintiffs did not arise through negligence or improper conduct on his part", answered in the affirmative.
appeal to the Court of Appeal was on the ground of misdirection and non-direction in the charge of the learned trial judge.
In his charge, the learned trial judge, after explaining to the jury the meaning of the term "negligence", pointed out to them that the accident was not one requiring the respondents to prove negligence on the part of the appellant but was governed by the provisions of section 48, subsection 1, of The Highway Traffic Act, which he read.
He then proceeded:- (The italics -are mine.)
The learned judge then turned to the questions to be submitted to the jury and proceeded:- (His Lordship then read the first question.) The jury were then charged that that question had to be answered "Yes, or No" and that, if the answer were in the affirmative, the jury need not answer any of the later questions except the question as to damages. The later questions were the Vn"rao.
usual ones in actions of this character, as to negligence on the part of the plaintiff and the respective degrees of the negligence of plaintiff and defendant.
The learned judge then proceeded to deal with the evidence and said: "as I see it, the negligence of the defendant, alleged by the plaintiff, was," in certain particulars which the learned judge set out seriatim.
No doubt counsel for the respondents, in his address to the jury, had referred to certain conduct on the part of the appellant as constituting negligence, but the statement of claim did not allege negligence on the part of the appellant at all, and it was not required that it should do so. The learned judge then proceeded to comment on the evidence dealing with the conduct of the respondent Mary Shapiro and the appellant's account of the accident.
He then stated: "I think you have heard enough to enable you to come to a decision as to whose negligence caused the accident, or whether both were negligent." After dealing with the question of damages, his Lordship later returned to the first question and repeated his instruction that if the jury found that the appellant had satisfied them that he was not negligent, and answered the first question in the affirmative, they should then proceed to the question of damages but, if they answered question 1 in the negative, they should deal with the other questions. He then said: "Remember that the onus is upon the defendant. Any ten of you may agree on the answer to any question, it is not necessary for you to be unanimous."
Objection was taken by counsel for the respondents on the ground that the learned trial judge had not adequately explained to the jury the meaning of section 48, subsection 1, and the learned judge was referred to Winnipeg Electric Company v. Geel and Newell v. Acme Farmers Dairy Limited (2).
The learned judge recalled the jury and on the question of onus said:- His Lordship then referred to the sections of The Highway Traffic Act dealing with the requirements as to lights and horns, and the jury were instructed that the onus was upon the defendant to satisfy the jury that the section as to lights was observed and that the non-operation of the horn was justified under the circumstances.
Essentially two points arise on this charge: First, the instruction with regard to the first question submitted to them -that the appellant could satisfy the burden of proof cast upon him by section 48, subsection 1, by showing that the damage suffered by the female respondent was caused "in part" by her negligence.
The second point arises in connection with the manner in which the learned trial judge further dealt with the onus cast upon a defendant by the subsection and his putting of the case to the jury as though their task, under the section, were to examine the conduct of the appellant in certain particulars only so as "to come to a decision as to whose negligence caused the accident, or whether both were negligent", to employ the language of the learned trial judge.
The appeal to the Court of Appeal was allowed, Riddell J.A., dissenting. Laidlaw, J.A., who wrote the majority judgment and with whom Gillanders, J.A., agreed, held that the trial judge was in error in his charge with regard to the first point and that the jury, so charged, could not properly deal with the question as to whether or not the appellant had satisfied the onus of proof resting upon him. We find ourselves in agreement with Laidlaw, J.A., on this point. The appellant could not satisfy the burden placed upon him by showing that the damages were caused in part by the female plaintiff's negligence. His obligation was to satisfy the jury that the loss or damage did not arise through any negligence or improper conduct on his part. If they are so satisfied, that is an end to the matter; if they are not, it would then be open to them to find that the female plaintiff's negligence caused or contributed in part to the accident in accordance with the provisions of The Negligence Act, R.S.O. 1937, c. 115. With regard to the second point arising on the charge as above referred to, this was criticized by Laidlaw, J.A., V. 'but he thought it unnecessary to determine whether this would form a good ground of appeal in view of his opinion on the other point.
With regard to this aspect of the learned trial judge's charge, we think it falls far short of what is required in explaining the nature of the onus cast upon a defendant by subsection 1 of section 48 of The Highway Traffic Act and is quite misleading. If the jury were to be put in a position to discharge their duty, it was essential that the learned trial judge should direct them properly as to the law and as to how that law was to be applied to the facts before them, as they might find them. As to the relevant law, it is only necessary to refer to Lord Wright in the Privy Council in Winnipeg Electric Company v. Geel (1), and to the judgment of Duff J., as he then was, in the same case (2). We find ourselves in agreement with the statement of the law of Middleton, J.A., in Newell v. Acme Farmers Dairy Limited (3), as follows:- It is not necessary to repeat or amplify these authorities. They indicate the requirements of a satisfactory explanation of the effect of the legislation under consideration. The charge in the case at bar does not comply with these requirements and we think that a verdict based on it cannot stand. What the learned judge said to the jury after they were recalled was quite inadequate to rectify the error existing in his previous instructions to them. The appeal should be dismissed with costs.
Appeal dismissed with costs. Solicitors for the appellant: Haines & Haines.
Solicitor for the respondents: J. M. Friedman.
ADMISSION-Made by party in proceedings-Effect to be given to ......... 302
See 5.
APPEAL-Refusal of special leave to appeal-State of facts to which proceedings in lower courts related and upon which they were founded no longer existing.-An application was made to this
Court under a. 41 of the Supreme Court
Act for special leave (this having been refused below) to appeal from. the judg- ([19431 O.R. 501) affirming the striking out by Hope J. ([19431 O.R. 319)
notice of motion in the nature of quo warranto for an order that respondents show cause why they, as was alleged, did each unlawfully exercise or usurp the office, functions and liberties of a member of the Legislative Assembly of Ontario during and since the month of February,
1943, contrary to the provisions of the
B.N.A. Act (s. 85), whether or not the same were lawfully amended by The Legislative Assembly Act (R.S.O. 1937, c.
s. 3), notwithstanding The Legislative
Assembly Extension Act, 1942 (Ont., 6
Geo. VI, c. 24), which, it was alleged, was ultra vires. Since the date of the judgment of the Court of Appeal, the "then present" Legislative Assembly was dissolved.-Held: Leave to appeal should be refused. Though the application by way of quo warranto was for the purpose of obtaining a judicial pronouncement upon the validity of said Ontario enactments, yet the direct and immediate object of the proceeding was to obtain a judgment excluding respondents from sitting and exercising the functions of members of the "then present" Legislative
Assembly; and, that Assembly having been dissolved since the judgment of the
Court of Appeal, the judgment sought could not now be executed and could have no direct and immediate practical effect as between the parties (except as to costs).
It is a case where, the state of facts to which the proceedings in the lower courts related and upon which they were founded having ceased to exist, the sub-stratum of the litigation had disappeared; therefore, in accordance with well-settled principle, the appeal could not properly be entertained. The fact that some important question of law of public interest was or might be pertinent to the consideration of the issue directly and immediately raised by the proceedings does not affect the application of the principle.
2.---Jurisdiction-Practice and procedure -Motion to quash by respondent and motion for leave to appeal by appellant- Principal action, action in warranty and action in sub-warranty-Amount awarded by principal action less than 8,000- Defendant in sub-warranty condemned to pay that amount plus costs of principal action and of action in warranty-Whether such costs may be added to amount granted by principal action so as to raise the "amount of value of the matter in controversy" to a sum of 8,000-Sispreme Court Act, R.S.C, 1927, c. 35, s. 40. 3.-Jurisdiction - Appeal to Supreme Court of Canada-Supreme Court Act (R.S.C. 1927, c. 35), s. 38-Judgment appealed from "made in the exercise of judicial discretion"-Exception in 8. 88 of "proceedings in the nature of a suit or proceeding in equity * * *".-On motion to quash an appeal to this Court from the judgme-t of the Court of Appeal for Ontario, [19441 O.R. 49, which (reversing an order of Mackay J.) denied to the present appellant a mandamus to compel the warden and the treasurer of a county to execute and deliver a tax deed of land of which the present appellant had become the purchaser at a tax sale: Held: Motion to quash granted.
One ground on which the judgment appealed from was based wap that -in the circumstances the discretion of the Court should be exercised against allowing the mandamus; therefore the judgment was one "made in the exercise of judicial discretion" and appeal was barred by a. 38 of the Supreme Court Act (R.S.C. 1927, c. 35); the case did not fall within the exception in a. 38 of "proceedings in the nature of a suit or proceeding in equity * * *": while power resided in the Court of Chancery in England and now exists in the Supreme Court of Ontario to grant mandatory injunctions in suits or proceedings in equity, such jurisdiction was not and is not exercised against public officers to compel them to do their duty. v. 150 4.-Juridiction
Court Act, R.S.C. 1927, c. 86-"Judicial proceedings" (ss. 86, 2 (e) )-Security on appeal (s. 70) -Not required from Crown in right of a province.]-The judgment of the Supreme Court of Alberta, Appellate Division, [19441 1 W.W.R. 385, fixing the value of certain property for succession duty purposes at a less sum than the value determined by a commissioner appointed under
28 of The Succession Duty Act, R.S.A.
1942, c. 57, was held to be a judgment in a "judicial proceeding" (within sa. 36 and
2 (e) of the Supreme Court Act, R.S.C.
1927, c. 35); and a motion to quash an appeal therefrom was dismissed-Sec. 70 of the Supreme Court Act, requiring security on appeal, does not apply to an appeal by or on behalf of the Crown in right of a province; there is no reason to restrict the meaning of the word "Crown"
(as used in the excepting provision of s. 70
(2) ) to the Crown in right of the Dominion.
..................
5.-Jurisdiction - Intended appeal to
Privy Council-Judgment of this Court certified by registrar to proper officer of court of original jurisdiction-Motion for stay of proceedings.1-When, as provided by section 53 of the Supreme Court Act, a judgment of this Court has been finally
"certified by the registrar to the proper officer of the court of original jurisdiction"
and "all proper and necessary entries thereof" have been made, the practice of this Court, following the decision in
Peters v. Perras ( (1909) 42 Can. S.C.R.
361), has been to refuse to entertain an application for a stay of proceedings for the purpose of an appeal from said judgment to the Judicial Committee of the
Privy Council.
DE v. DomNmoN BooK
...................
6.--Jurisdiction - "Final judgment"
8. 2 (b) ).]-An action was dismissed by the trial Judge on the sole ground of res judicata, other matters sought to be litigated not being considered. On appeal it was held that the plea of res judicata failed, the judgment of the trial Judge should be set aside, and the case should proceed to be tried on its merits.
defendant appealed to this Court; and a motion was made to quash the appeal for want of jurisdiction because, so was contended, the judgment appealed from was not a final judgment.
This Court had jurisdiction to hear the appeal; the judgment appealed from was a "final judgment" as defined in the
Supreme Court Act (R.S.C. 1927, c. 35, e.
(b)).
7.-Contract - Debtor and creditor ment between creditor and debtors- Transfer of debtors' assets to creditor- Creditor assuming payment of their debts
-Failure by debtors to fulfill conditions of agreement-Action by creditor, to annul agreement, brought against both debtors A and B.-No plea filed by B.-Action dismissed by trial judge-Appeal by A. alone, to appellate court, allowed-Appeal by creditor to Supreme Court of Canada -No notice of such appeal served on B. -Motion by creditor to put B.'as mis-encause granted by this Court-Whether B. regularly before the Court-Power of this defendants..................... 8.-Jurisdiction Motion to quash - Claim of 82,000 under contract of lease- Trial judge holding lease void, but granting 81,066.66 as reasonable value for use and occupation of premises - Appellate court holding lease valid and awarding amount claimed, i.e, 82,000, with interest from date of service of action-Appeal to Supreme Court of Canada-Amount or value of matter in controversy-Whether same is the difference between sums granted by the appellate and trial courts or whether it is the sum of 82,000, plus interest, granted by the appellate court-Section Supreme Court Act.]-The respondent claimed from the appellant a sum of $2,000 for five unpaid rental instalments under the terms of a lease of water rights and property rights. The trial judge held that such instrument, being a lease in perpetuity, was void and of no effect; but he gave judgment in favour of the respondent for $1,066.66, amount representing a reasonable value for the use and occupation of the leased property for a certain period of time. On appeal by the respondent, the appellate court held that a valid subsisting lease terminating in 1956 was in effect and binding upon the parties and maintained the action as brought, condemning the present appellant to pay the sum of $2,000, with interest from the date of the service of the action. The appellant having appealed to this Court, the respondent moved to quash the appeal for want of jurisdiction, on the ground that the amount of the matter in controversy was merely the difference between the sum of $2,000, claimed in, the action and awarded by the appellate court and the sum of $1,066.66 awarded by the trial judge, i.e., a sum of $933.34, which would be insufficient to clothe this Court with jurisdiction.
(Supreme Court Act, e. 39).
Held that an appeal lies to this Court from the judgment appealed from.
The decision of the trial court, having been set aside, is no longer in controversy in the appeal before this Court. The matter upon which this Court will 45()
have to pronounce is whether at the time of the action the lease in question was still subsisting, and the true controversy in the appeal before this Court is the full amount of the condemnation pronounced by the appellate court. Therefore, the amount of the matter in controversy is more than $2,000, since the appellant is entitled to add to the amount of $2,000 granted by the appellate court the interest from the date of the service of the action up to the date of the judgment of the appellate court. This case is not similar to the one where the plaintiff only recovers part of the amount claimed for in the trial court and succeeds in having the amount increased in the appellate court.
Berthiaume v. Laurier [19341 2 D.L.R.
797 dist.
v. Sr. Co. LTD.
.....................
9.-Leave to appeal to Supreme Court of Canada granted by provincial Court of Appeal on terms which left no issue to be decided between the parties-Court declining to hear appeal.] against whom judgment had been given in the Court of Appeal for Ontario directing that respondent recover $350 damages, with costs of the action and of the appeal, was granted by said Court leave to appeal to this Court (the Supreme Court of
Canada) on appellant undertaking to pay to respondent in any event of the cause the amount of the judgment (3350) and costs of the trial, of the appeal to the
Court of Appeal and of the appeal to this Court.
Held: This Court should decline to hear the appeal, on the ground that there was no issue before it to be decided between the parties. It may now be regarded as well settled that this Court will not decide abstract propositions of law (even if to determine the liability as to costs, which was not the case in the present instance); and this situation may not be affected by the fact that the provincial Court of Appeal has granted leave to appeal to this Court. Semble, a provincial Court of Appeal, in giving leave to appeal, and in suitable cases, may impose terms upon the appellant as a condition of his being permitted to appeal to this Court; he may be asked to undertake to pray for no costs in this Court, or even to meet the costs of both sides in any event, or to be put on terms of a similar character, provided the terms for leave to appeal are not so framed as to take away from the respondent any interest in the result of the appeal whatever.
APPEAL-Concluded
10.-Criminal law-No possible appeal to Supreme Court of Canada under s. 1026 Cr. Code, by person found guilty on summary conviction............. See 2.
11.-Jurisdiction-Amount in controversy in the appeal (Supreme Court Act, R.S.C. 1927, c. 35, 8. 89).
Dauy ........................
12.--Criminal law-Application for leave to appeal to Supreme Court of Canada under e. 1025, Criminal Code-Whether Judgment sought to be appealed from conflicted with judgment "of any other court of appeal" "in a like case". .. 264 ASSESSMENT AND TAXATION-Assessment Act R.S.O. 1987, c. 272-Company assessed under s. 8 (1) (e) for business assessment, and also, under s. 9 (1) (b), in respect of income received by way of dividends or. interest from other companies-Nature and operations of the latter companies in relation to company assessed-Income assessable as not being derived from business in respect of which the company was assessable under s. 8 (1) (e).]-Appellant was a company incorporated by letters patent under the Dominion Companies Act and had its head office in Toronto, Ontario. It manufactured aluminum products at its plant in Toronto and was assessed in Toronto as a manufacturer for business assessment under s. 8 (1) (e) of The Assessment Act, R.S.O. 1937, c. 272. It was also assessed by the City of Toronto, under s. 9 (1) (b) of said Act, in respect of certain income and it disputed its liability to such income assessment.
It received said income by way of dividends on shares in, or interest on moneys advanced to, certain other companies, hereinafter called "subsidiaries", whose operations, all necessary for appellant's purposes, included, by one or other of the subsidiaries, the mining of bauxite (in British Guiana), water and rail transportation, wharf and dock operation, and production and sale of power.
Appellant owned all the issued shares of all the subsidiaries except one and in that it owned over half of the issued shares. There was a degree of connection between appellant and each subsidiary in directorate personnel. The subsidiaries did service for or business with others besides appellant. Appellant contended that the businesses of the subsidiaries were integral parts of appellant's business in respect of which appellant was assessed under s. 8; that the subsidiaries acted as agents, or under such arrangement as constituted them agents, of appellant in its said business; and were operated in such a way in relation to appellant as made that operation the carrying on of appellant's said business; and that the income in question was not assessable, having been derived from the business in respect of which appellant was assessed for business assessment. Held, affirming the judgment of the Court of
Appeal for Ontario, [19441 O.R. 66, that appellant was assessable, under s.9 (1) (b), in respect of the income in question, as not being derived from the business in respect of which it was assessed under s.
8. The businesses respectively carried on by the subsidiaries were in each case the subsidiary's own business and not the business or part of the business of appellant in respect of which it was assessable for business assessment. (City of Toronto v. Famous Players' Canadian Corp. Ltd.,
[1936] S.C.R. 141, distinguished.)
.......................
BILL OF LADING.
CIVIL CODE-Arts. 368, 371, 872 (Dissolution of corporations) ...........
2.-Art.
(Vacant Estate) ....
See SucCEssION
3.-Art.
(Seizin of heirs) ....
Art. 891 (Seizin of legatees)
5. - Art. 918 (Testamentary Executors)
....................
6.-Art. 1063
(Offences and quasioffences) ..........................
7.-Art. 1065 (Effect of obligations) 175
Art. 1488 (Sale) .............
CODE OF CIVIL PROCEDURE-Art.
50 (Superior Court) .............
COLLECTIVE LABOUR AGREEMENT.
COMPANY-Enemy Property-Custodian 2.-Tax sale-Immoveable owned by Company. ......................... CONSTITUTIONAL LAW-Industry and Labour-The Industrial Standards Act, R.S.O. 1937, c. 191-Constitutional validity of the Act and of regulations made thereunder-Sufficiency, for compliance with the Act and regulations, of proceedings taken for creation of a schedule under the Act-Validity of the schedule. 349 Debtor and creditorment between creditor and debtors-Transfer of debtors' assets to creditor-Creditor assuming payment of their debts--Failure by debtors to fulfill conditions of agreement-Action by creditor, to annul agreement, brought against both debtors A. and B.-No plea filed by B.-Action dismissed by trial judge-Appeal by A. alone, to appellate court, allowed-Appeal by creditor to Supreme Court of Canada-No notice of such appeal served on B.-Motion by creditor to put B. as mis-en-cause granted by this Court-Whether B. regularly before the Court-Power of this defendants.] - The appellant company, manufacturer soft drinks, had a claim of $2,966.52 against the defendant and the mis-en-cause, both distributing as jobbers its products in a certain territory. The debtors being unable to meet their obligations, the appellant company made with them a settlement called "assignment and transfer of assets". The debtors, by that agreement, transferred to the appellant all their assets, including a bottling machine as described in a contract of conditional sale passed between the debtors and the vendor. In consideration of the transfer, the appellant company undertook to pay their debts; and the debtors bound themselves to pay off a lien still existing on the machinery amounting to $1,917.70, at the rate of $60 per month and to reimburse the appellant company the monies paid by it to clear off their debts. Later on, the appellant company took proceedings against the defendant and the mis-en-cause and asked for the cancellation of the agreement on the ground that they had failed to fulfill their obligations under it. The defendant alone contested the appellant's action, alleging mainly that it was the latter that had not fulfilled its obligations by not paying the respondent's debts. The trial judge main- CONTRACT-Continued tained the appellant company's action, which judgment was reversed by the appellate court. The mis-en-cause filed an appearance but did not plead.to the action, so that judgment was rendered against him ex-parte; and he did not appeal, although made a mis-en-cause by the defendant before the appellate court.
*The notice of appeal before this Court was served only upon the defendant's attorneys. The defendant urged, as a ground of appeal before this Court, that the judgment of the appellate court refusing to annul the contract constituted res judicata as to the mis-en-cause and that, as to the defendant, the contract could not be annulled because his co-signer has not been served with a notice of appeal before this Court. But, before the hearing of the appeal, this Court granted a motion by the appellant company that Pelletier be put into the case as third party.
Held, reversing the judgment appealed from and restoring the judgment of the trial judge, that, upon the facts of the case, an action for annulment of the agreement was the proper remedy to be exercised by the appellant, that the defendant and the mis-en-cause were the first who failed to fulfill their obligations and that consequently the appellant company was justified in discontinuing to pay their debts: the -appellant company was not bound to fulfill its own obligations when the defendant and the mis-en-cause were refusing or neglecting to fulfill theirs.
Held, also, that the mis-en-cause Pelletier was regularly before this Court and that a judgment annulling the contract between the appellant company and the two defendants before the trial court could validly be rendered by this Court. The appellant company, by being granted its demand to put Pelletier as mis-en-cause in the appeal before this Court, has been relieved of any forfeiture .which it may have incurred by not serving to Pelletier a notice of appeal to this Court. Moreover, a statement signed by Pelletier that he did not intend to appear nor to plead was produced by him before this Court, and nevertheless, he filed a factum and was represented by counsel at the hearing.
The decision of this Court in La Corporation de la Paroisse de St-Gervais v. Goulet
([19311 S.C.R. 437) does not apply, as the facts in that appeal were totally different from those in the present appeal.
J.
L/fiE v.
2.- Railways-Negligence-Transportation by railway of locomotive crane embodying a car structure on wheels-Shipper undertaking to "get it ready for shipment"-Insecure fastening of crane body
CONTRACT-Concluded to frame of. its car, causing derailment of crane-car and of other cars in the train- Claim against railway company for damage to crane-Counterclaim by railway company for damage to its property- Nature of contract-Haulage-Duties, liability, of shipper, of railway company- Railway Act, R.S.B.C. 1936, c. 241. 3.-Mortgage - Liability of mortgagore as between themselves-Mortgagors each owning a parcel of land included in the mortgage-Dispute as to who was primarily liable-Facts and circumstances in evidence-Onus of proof.
........................
4- International law-Company-Certificates of shares-Transfer of-Enemy property-Custodian of. ........... See LAw CRIMINAL LAW-Murder-Written confession-Statement in confession admitting theft of a revolver-Evidence at trial that revolver was weapon with which deceased killed-Admissibility of whole confession-Relevancy of theft-Effect of judgment of this Court in Thiflault v. The King [19831 S.C.R. 609--Comments as to extent of that decision as to the admissibility of a confession in whole or in part.]-On a charge of murder the possession by accused of the weapon (revolver), with which the murder was committed, at the time of the killing was a relevant fact to be proved by the Crown. The evidence of the theft of the revolver was admissible; it was admissible because it was relevant as showing how the accused obtained possession of the revolver. Therefore the mention of the fact that the revolver was stolen in the confession of the accused did not vitiate that confession as evidence.-In Thiffault v. The King ([19331 S.C.R. 509), the decision of this Court was that the evidence pointed to the conclusion that the statement tendered in evidence was not a correct statement of what the accused had said and intended to say; and it was also held that a document, professing to embody the effect of admissions obtained in the way the admissions were obtained in that case and containing inter alia a record of an admission of a fact that would be inadmissable as evidence against the accused and was calculated to prejudice him, ought not to be admitted as evidence against him.-The decision of this Court in the Thiffault case does not lay down that, where a document contains a true record of a declaration by an accused which, it is established to the CRIMINAL LAW-Continued satisfaction of the trial judge, was a voluntary statement in the pertinent sense, the whole declaration must necessarily be excluded because it contains a statement of some irrelevant fact. If the declaration was obtained in circumstances and in a manner which makes it otherwise unobjectionable, and if the statement of the irrelevant fact can be separated from the rest of the document without in any way affecting the tenor of it, then the trial judge in most cases would probably be able to effect the exclusion of the objectionable statement while permitting the unobjectionable part of the document to go before the jury. To this course in such circumstances there could be no objection.
Rex v. Sampson (62 C.C.C. 49, at 51) approved, subject to the observations in the judgment. But where a written declaration by an accused contains statements of facts prejudical to the accused and not relevant to the issue, the trial judge may find it necessary to scrutinize with exceptional care the circumstances in which the declaration has been obtained.-Judgment of the Court of Appeal ([19431 2 W.W.R.
449; [1943] 3 DL.R. 584) affirmed.
2.-Appeal--No possible appeal to
Supreme Court of Canada under s.
Cr. Code, by person found guilty on summary conviction.]-There is no possible appeal to the Supreme Court of Canada under s. 1025 of the Criminal Code by a person found guilty on summary conviction under Part XV of the Code. S. 1025, under the special conditions therein mentioned, applies to an appeal by a person convicted of an indictable offence, and this really means a conviction on indictment as would appear from s. 1013.
(S.
765, and Attorney-General of Alberta v.
Roskiwich, [19321 S.C.R. 570, also cited.)
Au Ou v.
3.-Appeal--Application for leave to appeal to Supreme Court of Canada under a. 1025, Criminal Code-Whether judgment sought to be appealed from conflicted with judgment "of any other court of appeal" "in a like case".1-On an application, pursuant to s. 1025, Criminal
Code, for leave to appeal from the judg- [19441 O.R. 230, dismissing the applicant's appeal from his conviction on a charge of unlawfully obtaining a sum of money by false pretences and with intent to defraud, contrary to s. 405 (1), Criminal
Code, the applicant's contention being that the court which tried him had no jurisdiction: Held (dismissing the application), that the judgment in The King v.
CRIMINAL LAW-Continued
O'Gorman, 15 Can. Crim. Cas. 173, was not "in a like case" within said s. 1025; also that said judgment in The King v. O'Gorman, which was rendered by the Court of Appeal for Ontario, as was also the judgment now sought to be appealed from, was not a judgment "of any other court of appeal" within said s. 1025. As- 4.-Accused charged on three counts of conspiracy-Speedy trial before Court of Sessions-Only one trial on the three charges-Only one complaint or information charging accused with the three charges, one preliminary inquiry and one option-Not the same as if several couny arise from separate informations and commitments, each charging distinct offences -This case distinguished from decision of this Court in The King v. Balciunas ([19431 S.C.R. 317).1-The accused, respondents, were charged on five counts, one for conspiracy to commit fraud, two for conspiracy to commit indictable offences and two for having committed the substantive offences themselves. The trihl having been limited to the three conspiracy counts, the accused, having elected to be tried speedily under part 18 of the Criminal Code, were found guilty, but on appeal the conviction was set aside and a new trial was ordered.
The decision of the appellate court was based on the ground that the trial judge upon speedy trial had no jurisdiction to try the three different counts in the indictment at the same time, that Court being of the opinion that it was contrary to the rule laid down by this Court in The King v. Balciunas ([19431 S.C.R. 317).
The Crown appealed to this Court, leave having been granted under section 1025 of the Criminal Code.-Held that the appeal should be allowed.
The judgment of this Court in the Balciunas case (supra) should not be considered as governing the present case, the true effect of that decision being that it is limited in its restriction of trial to cases where the several counts arise from separate informations and commitments.-The procedure was different in the two cases. In the present case, there was only one complaint which charged the respondents with the three conspiracy offences, there was only one preliminary inquiry referring to the three counts and there was only one charge sheet and one option.
In the Balciunas case (supra), three separate informations were laid, each charging a distinct offence; there was a commitment for trial in each of the cases, although the three charges were set forth on a single charge sheet, there was one speedy trial on all three charges CRIMINAL LAW-Concluded and the accused was convicted on each charge. Therefore, in the Balciunas decision, it was a case of a joinder for trial purposes of charges originating in different complaints, or in different and distinct commitments, or, in short, a joinder of different cases; and it was held that it was improper to try the three separate charges together. TEE v. 435
CROWN-Taxation (municipal)-Crown's interests-Tax levied against owner of land leased to Crown-Buildings erected on such land by the Crown-Valuation of land including value of buildings as improvements- Whether property "vested ii or held by" the Crown has been taxed
-Whether tax has been levied on Crown's interests - Vancouver Incorporation Act,
B.C. Statute, 1921 (2nd session), c. 55, as.
2 (9) (10) (11), 87, 89, 40, 45, 46, 48, 49,
2!-Expropriation-Lease of municipal airport by Crown-Expropriation of land surrounding it-Residue of land remaining property of owner-Land subdivided into building lots-Amount of compensation- Method of valuation-Evidence as to value of land-Damage to adjoining land caused by operation of airport-Damages due to noise, dust or danger to persons or property-Servitude of "non aedificandi"
created by Federal orders in council- Whether claimant entitled to such damages as owner of adjoining land. ...
3.- Shipping-Damage-Claim against the Crown for damage to vessel-Assessment of damages-Basis for assessment- Amount awarded-Disallowance of interest-Petition of Right on behalf of and for benefit of underwriters-Allowance for loss of profits during period for repairs.
...................
4.-Appeal-Supreme Court Act, 1987, c. 85-Security on appeal (s. 70)-Not required from Crown in right of a province. ..........................
CUSTODIAN OF ENEMY PROPERTY.
..................................
DAMAGES-Quantum-False representation to deprive lessee of benefit of contractual right to renew lease-Measure of damages-Special damages-Loss of pro- DAMAGES-Continued fits-Questions as to mitigation of loss- Matters for consideration in assessing loss -General damages not recoverable.]- Plaintiff bought as a going concern from defendant K. a store business, which he called the "Oasis", in the city of Halifax, and took a lease from K. of the store premises for five years with right of renewal for a like term, subject only to sale of the premises by K., and with a first option to purchase.
During the term of the lease K. represented to plaintiff that he had decided to sell the premises and had an offer of $25,000, which was beyond what plaintiff was willing to pay. Plaintiff, being told that the property was sold, and pursuant to notice to quit, and failing to get a renewal, which he was anxious to have, vacated the premises by the end of the term and moved the business to another store (called the "Rendezvous") operated by him. He later sued K. and the other defendants (K.'s wife and her brother) for damages, claiming that the representation of such sale was false and that defendants conspired to defraud him.
At trial, the jury found that the alleged sale was not a bona fide sale, and found for plaintiff special damages of $18,000 and general damages of $2,000, for which amounts plaintiff recovered judgment, which was sustained by the Supreme Court of Nova Scotia en banc, that Court, however, dividing equally as to sustaining the assessment of damages M.P.R. 124). Defendants appealed to this Court as to the assessment of damages.-The special damages awarded were (as assumed in this Court from items claimed and the charge to the jury) mainly on account of loss of profits which plaintiff would have made in a renewal term; other items being moving expenses, loss of forced sale of fixtures, etc., and loss by closing business for moving.- After receiving notice -to quit but while the lease was running, plaintiff acquired another business, called
"White Cross", his purpose being, so he said, to try to recoup the loss to be suffered by losing the "Oasis". He operated all said stores (the three at one time before vacating the "Oasis") successfully. Some time after he vacated the premises held under said lease, they were reopened under management of K. or his wife.-Defendants contended inter alia, that the trial Judge's instructions to the jury on the question of plaintiff's loss of profits through losing the "Oasis" for a renewal term should have included a direction to take into account in mitigation of damages the probable profits of plaintiff's "White Cross" business during the same period.-Held: The judgment at trial should stand as to DAMAGES-Continued the amount awarded for special damages, but no general damages should be allowed.
Davis J., dissenting, would order a new trial as to damages.-Per the Chief Justice and Rand J.: (1) The damages from the deceit in this case were the same as the consequences of a breach of the obligations from which plaintiff's rights and interests arose, and were to be determined on the rules applicable to contractual defaults.
The person who has suffered from such a wrong is entitled, so far as money can do it, to be placed in as good a position as if the contract had been performed. With this there is the parallel duty on his part to take all reasonable measures to mitigate the loss consequent upon the breach.
Any steps required by such duty must arise out of the consequences of the default and be within the scope of what would be considered reasonable and prudent action.
The duty is limited by considerations of class of venture and risks; but where there has been an actual performance within those consequences, whether or not within the duty, the benefit derived may be taken into account. But the performance in mitigation and that provided or contemplated under the original contract must be mutually exclusive, and the mitigation, in that sense, a substitute for the other; or, stated from another point of view, by the default or wrong there is released a capacity to work or to earn; that capacity becomes an asset in the hands of the injured party, and he is held to a reasonable employment of it in the course of events flowing from the breach. In the present ease the question was whether or not the
"White Cross" business could be looked upon as incompatible with that closed by the fraud; or, in the other sense, whether the capacity to be released to plaintiff by the result of the fraud was necessary to the continuance of the "White Cross"
business. The facts did not admit of any such conclusion; and there was no evidence on the basis of which a jury should have been instructed to take account of the "White Cross earnings.
Also there was no evidence that the trading situation in Halifax was such as to offer to plaintiff the conditions and inducement of still another successful business venture; and this was sufficiently decisive, as once a prima facie case for damages is presented, the onus at least for proceeding with the evidence is then cast upon the party asserting a claim for mitigation.
It may be that, as in the ordinary case of dismissal from employment, the facts raising a prima facie case for damages to themselves contain evidence of potential earning power and raise a presumption that
DAMAGES-Continued the capacity to work has a calculable value; but in the present case there was no evidence from which a necessary or reasonable transfer of earning capacity from the one store to another could be inferred, and that was decisive on the point.
(2) It was not a case where the damages should be limited to the value of the leasehold interest of which plaintiff was deprived (Re Schulte-United Ltd., [19341 O.R. 453, distinguished). (3) It could not be said that the jury, acting as reasonable men, could not have found special damages in the amount awarded. (4) As to the general damages: Where actual damages themselves are the -gist of the remedy, the causing of those damages being itself the wrong done, the rule of general damages has no application. As to allowance of "general damages" in the sense in which that expression is, for instance, applied to allowance for pain and suffering in the case of personal injury through negligence: It is not clear in the present case how any such matters (referred to in the trial Judge's charge as "general worry, upset of business, being subjected to what he regards as illegal action") could be treated as natural and direct consequences of the fraudulent representations, but, in any event there was no attempt made to prove them. Per Kerwin J.: The jury were entitled to award as damages such amount of profits as they considered plaintiff would have secured under a renewal lease for five years (taking into consideration profits previously made and all the vicissitudes of business enterprises) subject always to sooner determination in the event of a bona fide sale; such profits were neither too remote nor too uncertain to serve as the basis of estimate of the amount of damages. There was no basis for a deduction from such amount of an annual sum, such as a yearly salary at one time earned, as the value of plaintiff's yearly earning ability. Nor should there be any deduction of the amount of profits made or likely to be made at plaintiff's other stores; the starting or acquiring of them could not, under the circumstances, be said to have arisen "out of the consequences of the breach" (applying the rule in breach of contract cases). The amount awarded for special damages was such as a jury, doing their duty, could award. On plaintiff's cause of action, he was not entitled to anything beyond what he proved in the way of special damages. Per Taschereau J.: Though the amount awarded as special damages seemed high, this Court would not be justified in interfering.
The case was not one where general damages might be awarded. Per DAMAGES-Concluded
Davis J., dissenting: What plaintiff was illegally deprived of was his right to obtain the renewal term---an estate in land. Where, one is deprived of a right to acquire a freehold or a leasehold interest in land, whether the deprivation arose out of contract or in tort, his damage is the difference between the price at which he was entitled to obtain the property, and the value of the interest in the property to him. In the present case, based on his rental under the contract for renewal and a rental representing what the renewal would be worth to him, it would be the present value of the probable and reasonable difference, subject to the ordinary contingencies, which should determine the loss. The estimated profits or earnings that might be made on the property in the conduct of a particular business by a particular person, when other business premises more or less advantageous are available, is not the proper test of the loss suffered; in other words, the personal element in the management and conduct of the business is the determining factor in whether pro-fits, large or small, may be reasonably anticipated and is too remote a test to be regarded as the basis for the calculation of damages for the loss of a right to acquire leasehold (or freehold) interest in real property (Re Schulte-United Ltd., [19341
O.R. 453, referred to).
But the present action was fought out on the footing that the profits which might reasonably be expected on a renewal term were measure of damages, and the jury were charged along that line without objection;
and that might cause a disposition to let the assessment stand.
But the total amount awarded was grossly excessive on the evidence.
The jury were in effect told, contrary to defendant's contention, that nothing should be allowed by way of. deduction from gross profits for the cost of the management of the store, which was the personal labour of plaintiff himself; and even on the basis of estimated profits of a business, something substantial should be deducted from gross earnings for the personal management of the business. There should be directed a reassessment of the damages.
DEBTOR AND CREDITOR-Contractment between creditor and debtors- Transfer of debtors' assets to creditor- Creditor assuming payment of their debts
-Failure by debtors to fulfill conditions of agreement-Action by creditor, to annul agreement, brought against both debtors
A and B.-No plea filed by B.-Action
DEBTOR AND CREDITOR-Continued dismissed by trial judge-Appeal by A. alone, to appellate court, allowed-Appeal by creditor to Supreme Court of Canada -No notice of such appeal served on B.- Motion by creditor to put B. as mis-encause granted by this Court-Whether B. regularly before the Court-Power of this defendants..................... ELEVATOR ....................
EMPHYTEUTIC
LEASE - Power of school commissioners to acquire immoveable property by such lease. ....... EMPLOYER AND EMPLOYEES-Collective labour agreement, under The Professional Syndicate Act, as to wages and hours of labour-Decree by Lieutenant- Governor in Council under The Collective Agreement Act respecting same-Whether relations between employer and employees to be governed by the decree or the agreement-Agreement null and void if in conflict with the decree - The Collective Agreement Act a law of public order and its provisions obligatory-The Professional Syndicates Act not repealed by The Collective Agreement Act-Both Acts coexist, but first Act must yield to second Act in case of conflict-Whether judgment is susceptible of execution-Terms of injunction-Whether in conformity with Code of Civil Procedure-Printing operations-Whether employers not printers owing to innovations of modern machinery-Printing not principal business of employer-An Act respecting workmen's wages, 1 Geo. VI, c. 49, amended by 2 Geo. VI, c. 62-The Collective Labour Agreements Act, S Geo. VI, c. 61- The Collective Agreement Act, R.S.Q., 1941, c. 16.1-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. At the same time as the action, the appellant made a demand for an interim injunction, and, later, for an interlocutory injunction which were both granted. The Superior Court maintained the appellant's action, Continued declared illegal, irregular and null that part of the agreement conflicting with the decree, confirmed the interlocutory injunction, ordered the respondent to cease to refuse access to its establishment and further condemned the respondent to pay damages in the amount of $33.80.
judgment was reversed by the appellate court, though its members did not agree on the reasons for their decisions. Held, reversing the judgment of the appellate court and restoring -the judgment of the trial judge, that the collective labour agreement invoked by the respondent is null and void: such agreement cannot have the effect of withdrawing the respondent from the application of the decree previously passed under the Collective Agreement Act. The legislature, by the imperative and unequivocal text of that Act (sections 2, 9, and 13)
intended to bind all employees and employers who are engaged in a similar trade or business. It is as a consequence of the legal extension conferred by the decree, that all those performing work of the same nature or kind become subject to its provisions.
It is furthermore a law of public order, which stipulates in clear terms that the provisions of the decree respecting hours of labour and wages, in a given undertaking, are obligatory, thus rendering null and void all agreements violating or coming in conflict with its dispositions. Under The Professional Syndicates Act, any agreement respecting the conditions of labour, not prohibited by law, can form the object of a collective labour agreement, the aim of that law being to enable the working classes to deal collectively with their employers; but such agreement is the law of the parties only and no greater advantages can be derived from these agreements than from those entered into between ordinary corporations or individuals.-A further step was made later with the enactment of The Collective
Agreement Act, which recognized labour agreements, and further declared, which was the essential feature of the law, that not only the signators to the agreement would be bound by it but also all those exercising in a given region a similar trade.
The scope of the collective agreements was thus considerably extended, and even the dissenting employees and employers were bound by the decree.
The agreement, stipulating wages and hours of labour, invoked by the respondent violated the decree passed under. The Collective Agreement Act and is therefore null and void. But the judgment of this Court should not be interpreted as meaning that
EMPLOYER AND EMPLOYEESthe provisions of The Professional Syndicates Act have been in any way repealed by The Collective Agreement Act. Both laws coexist, and professional syndicates may enter into labour agreements with their employers under the condition, however, that their terms do not conflict with the existing law. The private agreements made under the first Act between employers and employees must necessarily yield to the imperative provisions of the second Act in the territory covered by the decree.
Held, also, that the judgment of the trial judge is susceptible of execution, that it is not affected by any vagueness and that the terms of the injunction granted by him are in conformity with the Code of Civil Procedure. Held, also, that, upon the evidence, the respondent is engaged in printing operations and that the contention of the respondent, that its employees are not in that trade but are mere operators requiring very little training because of the perfection modern machinery, is admissible. LE L'INDUSTRIE DE DisTRIcO ........... ENEMY PROPERTY - Custodian of - EQUITY-Enforcible right against fund- Subrogation-Sublessees of oil rights in land financing drilling of well by issue of royalty certificates-Sublessees failing to complete, and committee for royalty holders completing well after arranging with holders of mechanics' liens for postponement of liens in favour of cost of completion and operation-Production not sufficient, after payment of cost and prior claims, to pay lienholders-Royalty holders' committee receiving dividend on claim against estate of a deceased sublessee- Claim by lienholders against fund created by said dividend.1-M. and W. were sublessees of petroleum and gas rights certain land. In the sublease they had covenanted to drill a well to commercial production or to a certain depth. As a financing plan, they entered into an agreement with T. Co. as trustee (in which they covenanted, inter alia, to carry out their covenants in the sublease), under which royalty certificates were issued and sold covering 70 per cent. of the production of the well (the remaining 30 per cent. being set aside for prior rights, etc.). and W., after drilling for a time, were unable to complete. The royalty holders appointed a committee with full powers to EQUITY-Continued assume the position of M. and W. to complete the well and make arrangements and settlements with others having claims.
To that committee M. and W. assigned their rights and interests in the well, and all property and equipment connected therewith.
Plaintiffs had supplied materials to M. and W. and had registered mechanics' liens, which (as declared later in an order of court) attached the interests of M. and W. and all others claiming by, through or under them in the petroleum and natural gas in and under the land, and the right to take same, and the well drilled, etc.
An arrangement was made between the committee and plaintiffs by which the committee might proceed to complete the well and, subject to costs of completion and operation and certain prior claims, the lienholders were to have the first claim against production proceeds.
The committee completed the well and operated it for a time but production was only sufficient to pay their costs so incurred and claims having priority to plaintiffs' claims, and plaintiffs remained unpaid. Meanwhile M. had died and the committee filed a claim against his estate for money expended in bringing the well into production, the basis of the claim being that such expenditure was incurred because of breach by M. and W. of their covenant to drill the well.
Said claim against the estate was allowed and a dividend paid thereon, which was paid to
T. Co. to be held in trust, pending disposition of the present action, in which plaintiffs (who had also claimed against
M.'s estate and received a dividend, which they credited) claimed payment out of said trust fund. Defendant G. (appellant)
was by an order of court named to defend the action for the benefit of all persons interested.
Held (affirming judgment of the Supreme Court of Alberta, Appellate
Division, [19431 1 W.W.R. 42): Plaintiffs were entitled to the fund to the extent of the unpaid balance of -their claims. Per
Rinfret, Kerwin, Hudson and Taschereau
JJ.: Plaintiffs had a right enforcible in equity. Plaintiffs had waived their liens only to the extent of the committee's expenses and payments, for which the committee had reimbursed itself out of production.
If the committee were now paid the fund in question, its cost of bringing the well into production would be reduced pro tanto; and the result would be a surplus of proceeds of production to which plaintiffs' liens attached.
Per Rand J.: The royalty holders, through their committee, were entitled to recoup their outlay for completion of the well out of two funds: their claim against M.'s estate and the proceeds of production of
EQUITY-Concluded the well. As to the latter fund, plaintiffs had postponed their charge.
The right against the estate was unquestionably the primary source for payment of said outlay; the proceeds of production, under the postponement, became the secondary or surety fund for that payment; and upon satisfaction by the royalty holders of their debt out of production, plaintiffs became entitled to be subrogated to the committee's claim against the estate. proof made by the committee against the estate was, therefore, in trust for plaintiffs to the extent of plaintiffs' claims. Viewing the transaction in the converse aspect, if the estate dividend had been paid before completion of the well (or even before appropriation of the proceeds of first production), the committee would have been under a duty in relation to plaintiffs to apply the dividend toward the cost of that work; and this would have augmented the production proceeds to a like extent and that increase would have been available to the satisfaction of plaintiffs' claims. v. Co. I r
.......................
EVIDENCE - Criminal law - Murder - Written confession-Statement in confession admitting theft of a revolver-Evidence at trial that revolver was weapon with which deceased killed-Admissibility of whole confession-Relevancy of theft- Effect of judgment of this Court in Thiffault v. The King [19881 S.C.R. 509- Comments as to extent of that decision as to the admissibility of a confession in whole or in part. .................. 2.-Onus of proof
Will - Validity Testamentary Capacity ............ See WILL 1.
3.-Onus of proof- Contract-Mortgage.
.........................
4.-Presumption of fault
Burden of proof-Motor Vehicles Act, R.S.Q., 1926, c. 85, 5S, ss. 2. ................... See Moron 1. 5.- Negligence-Motor vehicles-Trial- 1937, c. 288-Nature and extent of the onus-Trial Judge's charge to jury. 443 EXPROPRIATION-Lease of municipal airport by Crown-Expropriation of land surrounding it-Residue of land remaining property of owner-Land subdivided into EXPROPRIATION-Continued building lots-Amount of compensation- Method of valuation-Evidence as to value of land-Damage to adjoining land caused by operation of airport-Damages due to noise, dust or danger to persons or property-Servitude of "non aedificandi" created by Federal orders in council-Whether claimant entitled to such damages as owner of adjoining land.]- On the 10th of July, 1940, the Federal
Government, as a war measure, leased a municipal airport, already existing since
1936, at Cap de la Madeleine, Quebec, where an aviation school had also been established. In order to enlarge the runways, the Crown expropriated some land, surrounding the airport, belonging to the respondent, the latter remaining owner of property adjoining the airport and the expropriated land. The property of the respondent had been subdivided into lots some years previously.
On the 28th of
February, 1942, as the Crown had made no move to compensate him, the respondent obtained a fiat authorizing him to claim by petition of right due coinpensation. The respondent claimed $162,911.51, being the value at 91 cents a square foot of 514,648 square feet of the expropriated land and damages at the same rate to
1,200,210 square feet of adjoining land belonging to him. These damages, it was alleged, resulted from the general operation of the airport, and more especially from the noise, from the dust raised by the starting and the landing of the air machines and from the danger to persons and property; and damages were also alleged to have been created by a servitude or easement "non aedificandi" or
"altius non tolendi" established by certain orders in council and zoning regulations passed by the Federal authorities. The
Crown offered an indemnity of $3,000.
The Exchequer Court of Canada granted to the respondent a sum of $36,278.16, being $23,159.16 as the value of the ex-, propriated land, i.e. 514,648 square feet at
4J cents per foot, and $13,122 for damages to respondent's property adjoining such land and the air-port, this latter amount being arrived at by allowing 30 per cent depreciation on the value of the land estimated at the same price as the expropriated land. The Crown appealed to this
Court, first on the ground that the value of 41 cents per square foot fixed by the trial judge was too high, and secondly that the respondent had no right to claim damages caused to his adjoining property, even if any existed. Held, reversing the judgment appealed from, that the amount which the respondent was entitled to recover from the Crown, for the land expropriated, should be reduced to $10,292.96.
EXPROPRIATION-Continued Upon the evidence, the amount of 41 cents per square foot fixed by the trial judge is clearly excessive, and the price per square foot should be reduced to two cents. Held, further that the respondent was not entitled to any damage which may have been caused to the residue of his property adjoining the expropriated land and the airport. Per Rinfret, Taschereau and Rand JJ.-The respondent's claim was brought under the Expropriation Act, which provides that the party expropriating must pay, besides the value of the land actually expropriated, a compensation for land "injuriously affected" as a result of -the expropriation. But, in this case, it is not the expropriation itself which had "injuriously" affected the respondent's adjoining land. As to the depreciation, if any, resulting from orders in council and regulations, passed under the War Measures Act, creating a servitude of "non aedificandi" or "altius non tolendi", these orders id council were antecedent to the expropriation and would have created the same servitude, if there had been no expropriation. The respondent, therefore, must suffer such prejudice, the same as citizens generally suffer from different kinds of restriction imposed under the present state of war. The depreciation alleged to have resulted from the operation of the aeroplanes, especially from noise, dust raised by them and danger to person and property, may present a different aspect, as these inconveniences would have existed even in the absence of the orders in council; but the respondent is also precluded from claiming any relief on that account. The respondent having subdivided his land into lots, each of them possessed a different entity with no relation to the neighbouring lot; and, although the respondent remained the owner of all the lots, each of them was independent from the other. The principle laid down by the decision of the Judicial Committee in Holditch v. Canadian Northern Ontario Ry. ([9161 1 A.C. 536, at 540) should be applied to the present case.
Each lot taken apart does not confer any advantage to the neighbouring lot; and, therefore, the respondent is not entitled to compensation from the fact that, upon the compulsory taking of some of the lots, he is prejudiced in his ability to use or dispose of the remaining lots: the respondent is in no better position than he would be, if the expropriated lots would have been the property of another person. The mere unity of ownership does not add any value to the lots: there is a lack of such a connection between all the lots from which it would follow that, through the loss of EXPROPRIATION-Continued some of them, the others would be depreciated by the privation of the advantages that they had and which were derived from the expropriated lots. Therefore no compensation ought to be awarded on account of noise, dust or danger which may result from the use of the expropriated land.
City of Montreal v.
McAnulty Realty Co. ([19231 S.C.R. 273)
discussed.
Per Davis and Kerwin JJ.- In a claim arising under expropriation proceedings, the mere fact that a property has been subdivided into lots does not preclude, in all cases, the owner from claiming that lots still retained by him have been injuriously affected when others have been expropriated. But, in this case, there is no evidence of the existence, in relation to the adjoining land, of that unity of possession and control conducing to the advantage or protection of the property as one holding. Therefore, the respondent is not entitled to any allowance for depreciation of any lots retained by him due to the construction or operation of the airport. Per Davis J.-The respondent's claim in respect of his adjoining property for damages caused by the general operation of the airport, has never been made the subject-matter of petition of right and, consequently, no fiat was ever granted by the Crown to litigate such claim: there was no power in the trial judge to amend the claim in the petition of right by allowing this additional and totally different claim in respect of other lands than those expropriated and covered by the petition of right.
THE KINo v. HAuIN .............
FOREIGN EXCHANGE
CONTROL
ORDER-(under War Measures Act) 226
FOREIGN STATE..............
See LAW 1.
GARAGE-Negligence-Person on leaving garage injured by tripping over sill in doorway-Whether operator of garage liable in damages-Whether sill a concealed danger to a person exercising ordinary care. .......................
GOLD EXPORT ACT-(Dom. 1982, c.
s). ...............................
HAULAGE.
HUSBAND
AND WIFE-International law-Will-Spouses domiciled and married in the United States of America- 22144-3
HUSBAND AND WIFE-Concluded Spouses returning to province of Quebec where domicile reacquired - Subsequent death of husband-Statute of State of New Hampshire as to "The rights of surviving husband or wife"-Action by widow under that statute-Whether Quebec testamentary law should be applied... 284 See 2. 2.-International law - Automobile acident
Injury to wife Action for damages by husband-Husband suing as head of community-Consorts married in Quebec without contract, but domiciled in the state of Massachusetts, U.S.A.-Separation as to property being the rule under law of that state-Right of husband to recover damages-Hospital and out-of-pocket expenses made by him recoverable under both laws-Damages for loss of companionship (consortium) or for loss of wife's services (servitium) not recoverable under Quebec law-Damages for probable future expenses recoverable under Quebec law, such as payment of help necessitated through wife's disability. ............................ 3.-Property (Timber Licenses)-Purchased by husband and assignment thereof taken in his wife's name-Husband suing her to recover the property-Rebuttal of presumption of gift-Alternative contention against husband of intent to protect property from creditors.]-COLE INCOME TAX-Income War Tax Act (Dom.)-Computing amount to be assessed-Deductions claimed for losses- Nature of business carried on-Capital losses-Whether investments were of fixed or circulating capital.1-Appellant claimed that in computing the amount of its assessment for income tax under the Dominion Income War Tax Act certain losses which it suffered should have been allowed as deductions; that in the taxation year in question and previously it was carrying on the business of financing other concerns engaged in or interested in the development of prospective oil properties and in trading and dealing in oil lands, leases, oil stocks, etc., and in the taxation year in question it was not in receipt of income within the meaning of said Act but made a loss.
Respondent claimed that appellant's business in respect of which it claimed the deductions was the development of oil or gas properties by the investment of its capital for said purpose, and for its benefit of a share in the production of such properties as gains or profits to it from such outlay of capital, and that no deduction could be allowed INCOME TAX-Continued for such investments or outlay by virtue of s. 6 (1) (b) of the Act. Held (affirming judgment of Maclean J., [19421 Ex.
C.R. 56):
The deductions claimed for by appellant should not be allowed. Per
Rinfret, Davis, Hudson and Taschereau
JJ.: On the evidence it could not be said that appellant carried on the business of buying and selling oil shares or oil properties; it acquired shares and properties but there was no record of its having sold any; the only reasonable inference from the method of conducting its business was that its purpose was to acquire oil properties and hold them with the hope that ultimately they might become producing wells, as was the case in the particular enterprise which resulted in profits;
its real business was aptly described as
"oil operators"; its moneys invested in oil shares and its loans made were in their nature capital investments; and were investments in the nature of fixed, and not of circulating, capital.
Per Kerwin J.:
On the facts, what appellant sought to deduct from its admitted income was a loss of capital, and that was prohibited by a. 6 (1) (b) of the Act.
IrD. V.
..........................
2.- Exemptions -"Income"- Annuities
-Exemption claimed as to monthly payments received from an insurance company-Whether income derived from "annuity contract" "like" Government annuity contracts-Decision of the Minister
-Income
War Tax Act (R.S.C. 1927, c.
97, and amendments), ss. 8 (1) (b), 5
(k) (and, by reference, s. 8 of c. 24, 1930, and s.6 of c. 43,1932).]-The Income War
Tax Act (R.S.C. 1927, c. 97, and amendments)
defines
"income"
as including
Minister in respect of any question arising under" such exempting provision shall be "final and conclusive". Said legislation of 1930 had exempted the income to the extent of 85,000 "derived from annuity contracts with the dominion or provincial governments or any company incorporated or licensed to do business in Canada effecting like annuity contracts".
Said legislation of 1932 had exempted 81,200 only, "being income derived from annuity contracts with the Dominion Government or like annuity contracts issued by any
INCOME TAX-Continued
Provincial Government or any company incorporated or licensed to do business in Canada", but preserved, as to income arising out of annuity contracts entered into prior to the 1932 legislation, the exemption provided by said legislation of Appellant in 1918 entered into a contract with an insurance company which entitled him, after paying premiums for 20 years, to receive, at his option, either a lump sum, or monthly payments during his lifetime with the payments going thereafter to his wife, if surviving him, during her lifetime, and with a guaranteed period of payment of 20 years. During the payment of the premiums the contract constituted a policy of insurance and on appellant's death the monthly sums would become payable to his wife, if then living, for her lifetime, with the same guarantee of 20 years. There was provision in the contract for payment of dividends, for cash surrender values, loan values and paid-up term insurance options. After paying the premiums for 20 years, appellant elected to receive the monthly payments, commencing January 1, 1939. For the amount so received in 1940, $1,500, he claimed exemption from income tax, for the whole amount or alternatively for $1,200.
Held, affirming judgment of Thorson J., [19431 Ex. C.R. 202, that the payments so received were subject to income tax, without exemption. Per the Chief Justice, Kerwin and Hudson JJ.: The income from a company, in order to be exempt under said legislation of 1930 as properly interpreted, must be derived from an annuity contract which was "like" annuity contracts being issued by the Dominion or a province, and, in order to be exempt under said legislation of 1932, must be derived from an annuity contract which was "like" annuity contracts being issued by the Dominion.
The contract of 1918, in question, was not, on the evidence, a "like" contract, as required. It was of no avail to say that by 1939 the insurance feature had gone and there was then only an annuity contract like those of the Dominion: the rights and obligations upon appellant's exercise of his option were determined by the contract of 1918, the company's payments were in fulfilment of its promise of 1918, and pursuant to what was really appellant's direction as to how the benefits which had accrued to him should be satisfied. Dealing with a further point, raised only before this Court, it was held that in view of s. 3 (1) (b) of the Act as it now stands (so enacted since the decision in Shaw v. Minister of National Revenue, [19391 S.C.R. 338), taxation of the payments was not objectionable on the ground INCOME TAX-Concluded that they were in the nature of a return of capital.
Per Rand and Taschereau
JJ.: The language used in the legislation of 1930, on its true construction, must be taken to refer not only to the company but to the contract out of which the payments arise; and the question is whether appellant's contract was an annuity contract like those at the time issued by the
Governments mentioned. In the exempting legislation now in question, what is dealt with is an "annuity contract entered into" prior to certain dates. The contract here was "entered into" in 1918 and it is that contract which must be considered, not the situation existing after
January 1, 1939 (when, so appellant contended, all insurance features had dropped and, whatever the contract was before, it was then an annuity contract with the characteristics of Government contracts):
the payments arising in 1939 flowed from the obligations created in 1918; what the legislation contemplated was an annuity contract as of the time it was made, not as of any moment thereafter which might mark the beginning of some stage of performance under it.
Assuming that the contract in question could properly be described as an "annuity contract" (of which doubt was expressed), the circumstance of insurance and other features differentiating it from a Government annuity contract were ample grounds upon which the Minister could rule, as he did, that the contract in question was not
"like" a Government annuity contract;
no error in the interpretation of the statute on his part had been shown and his exercise of judgment in this case should be held to be, under the legislation, within his exclusive field of determination.
(It was remarked that no question arose as to whether the sums received by appellant were or were not income within the statutory definition; the amount received during 1940 was included in his return, and it was only on the question of the right to the exemption claimed that this appeal turned.)
v. MIN- . ....... 167
INDUSTRY
AND LABOUR-Constitutional law-The Industrial Standards Act,
R.S.O. 1937, c. 191-Constitutional validity of the Act and of regulations made thereunder - Sufficiency, for compliance with the Act and regulations, of proceedings taken for creation of a schedule.under the Act-Validity of the schedule.]-Appellants called in question the constitutional validity of The Industrial Standards
Act, R.S.O. 1937, c. 191, and regulations made -pursuant thereto, and claimed that, in any event, a certain schedule, purport- 22144-33
INDUSTRY AND LABOUR-Continued ing to have been established pursuant to the Act, and which was approved by the Minister of Labour and on his recommendation declared to be in force by the Lieutenant-Governor in Council, of wages and hours and days of labour for the Men's and Boys' Clothing Industry for the Province of Ontario, and which purported to confer upon the Advisory Committee appointed pursuant to the provisions of said Act and schedule, inter alia, the power to collect certain assessments of money from appellants and other manufacturers engaged in the industry administer enforce schedule, was illegal, void and ultra vires, because (so it was alleged) certain proceedings and conditions required for the creation of the schedule were not properly taken or observed. Held: The said Act and regulations were not ultra vires; and they were sufficiently compiled with in the creation of the schedule in question. Judg- [1943] OR. 526, affirming judgment of Mackay J., [19421 O.R. 518, dismissing appellants' action, affirmed.
Dealing specifically with questions raised, this Court held as follows: The giving to the Industry and Labour Board of its powers under s. 5 (c) and (e) of the Act is not ultra vires the provincial legislature. The said Board in exercising its powers under the Act is not a court of justice analogous to a superior, district or county court; it would seam to be merely an administrative body, but in any event, it does not come within the intendment of s. 96 of the B.N.A. Act.
Clause (1) of s. 7 of the Act (as to assessment of and collection from employers employees) clauses 16 and 17 of the regulations (as to collection of assessments from employees by, and remittance by, employers) cannot be said to authorize the imposition of an indirect tax. If the assessment be a tax, it is a direct tax. Assessment may be justified as a fee for services rendered by the Province or by its authorized instrumentalities under the powers given to provincial legislatures by s. 92 (16) of the B.N.A. Act (Shannon v. Lower Mainland Dairy Products Board, [19381 A.C.
The Act, regulations and schedule are not ultra vires as encroaching upon a field occupied by the Dominion in the Combines Investigation Act (R.S.C. 1927, c. 26, as amended); the legislature would have authority to enact anything which is found in the schedule; and such legislation (and -therefore the combined effect of the Act, regulations and schedule) cannot be said to be a "combine" within the meaning of the Dominion Act. The notice in the present case (described 4(63 INDUSTRY AND LABOUR-Concluded the judgment) convening the conference of the employers and employees in the industry for the purpose mentioned in s.
6 of the Act, was sufficient in point of form; and the extent and manner of notification (publication of the notice in three Toronto newspapers and notification, giving date of the conference and calling attention to the newspaper advertisements, to employers named in a list on file in the Department of Labour, and to various union representatives) was, in the circumstances (set out in the judgment), sufficient. As long as the Minister of Labour and his officers act in good faith, all such matters must be left to their discretion.
They were justified in proceeding upon notice to those employers whose names appeared on the departmental list and to the officials of various unions who, in the industrial standards officer's opinion, represented the great majority of the employees engaged in the industry.
The Minister and his officers were also justified in omitting custom tailors from the conference.
It was quite apparent that in the view of the industrial standards officer (and in the view of the trade) custom tailors did not come within the industry as designated and defined.
Even if that were not so, under clause f of s. 7 of the Act the schedule could and did classify employers by omitting custom tailors from the industry. As to objection to the procedure taken in the carrying on of the conference:
By the first branch of s. 8 of the Act, it was the prerogative of the
Minister, and his alone, to determine whether a schedule was agreed to by a proper and sufficient representation of employers and employees; and such a determination is not reviewable by the courts.
The fixing by the schedule of different minimum rates of wages in two areas or sections of the province (the schedule providing that minimum rates fixed to apply in certain counties might be 124% less in the rest of the province)
was not unauthorized. By s. 4 (2) of the
Act, the zone designated by the Minister
(in this case the whole of the province)
could be divided into separate zones by the conference. This was done and, within the meaning of said s. 4 (2), the Minister, by his approval of the schedule submitted to him, approved such division, whereupon the area as divided was "deemed to be the designated * * * zones for the industry affected".
BoyB' v. THE
INJUNCTION - Terms of - Whether in conformity with Code of Civil Procedure. ................................... INSURANCE
(AUTOMOBILE) - Accident-Injury to passenger-Policy issued to automobile company-Use of a motor car by an oflicial--"Omnibus" clause eliminated from policy-Endorsement clause providing for liability in case of "pleasure use"-Liability of the insurer-Whether company only person "insured" under policy.
The appellant companies issued an indemnity policy to an incorporated company doing business as "garage and automobile sales agency".
One Dean, an official of the latter company, invited the respondent for a drive in an automobile belonging to that company and met with an accident. The respondent was severely injured, obtained a judgment against Dean for $2,532.50 damages and seized in the hands of the appellant companies all sums of money which they might owe to Dean as being his insurer. The appellant companies declared that they had issued a policy to the automobile company and that no insurance by the terms of the policy extended to the defendant Dean. A clause of the policy provided that the insurer agreed to pay on behalf of the "insured"
all sums which the insured would be by law obligated to pay, and another clause, known as the "omnibus" clause, had been by consent eliminated from the policy; but an endorsement clause provided that the policy would apply inter alia to any damages caused by "the ownership, maintenance or use of any automobile * * * and also for pleasure use". The respondent contended that, even if the defendant Dean was not protected as the result of the elimination of the omnibus clause, he was nevertheless entitled to the benefits of the policy on the ground that the user of the automobile "for pleasure" not connected with the business of the automobile company was covered by the terms of the endorsement clause. The trial judge and the appellate court held that the policy extended to the defendant Dean.
On appeal to this Court, held, reversing the judgment appealed from ([19431 K.B.479), that under the policy the only person insured was the automobile company and that it was only on behalf of the latter that the obligation to indemnify would arise.
In this case, it was not the "insured", but the defendant Dean who had been obligated to pay damages to the respondent: the judgment was against Dean personally and, as he was not the "insured", the appellant companies were not liable.-The endorsement clause attached to the policy did not change the
"insured", which remained the automobile company; it merely described the risk.
The words "for pleasure use" cannot have the effect of re-establishing the "omnibus"
clause which had been eliminated.
policy, as amended, did not provide that all persons driving an automobile belonging to the insured company for "pleasure use" would be protected by its terms;
but the proper construction of the endorsement clause was that the insured automobile company was entitled to be indemnified when one of its automobiles would be used for "pleasure" in such a way that its liability would be involved.
...................
INTERNATIONAL LAW-Foreign state
-Suit brought against it by a lawyer for professional services-Jurisdiction of Canadian courts-Proceedings of a disciplinary nature instigated by foreign state before council of Bar-Whether acceptance of jurisdiction by foreign state-Waiver of the exemption-Declinatory exception.]
-A sovereign state cannot be impleaded before the courts of a foreign country.
Such indisputable principle is based on the independence and dignity of the state, and international courtesy has always honoured it.
Proceedings of a disciplinary nature instigated against a lawyer before the council the Bar by a foreign state cannot be considered as tantamount to a renunciation by that state of its privilege of immunity.
An action for fees for professional services and an accounting, directed against the
Republic of Poland and impleading the
Bar of Montreal as mis-en-cause, should be dismissed for want of jurisdiction.
2.-Will
Husband and wife
Spouses domiciled and married in the United
States of America-Spouses returning to province of -Quebec where domicile reacquired-Subsequent death of husband- Statute of State of New Hampshire as to "The rights of surviving husband or wife"-Action by widow under that statute
-Whether testamentary law should be applied.]--The respondent's husband, born in the province of Quebec, removed in 1926 to the state of New
Hampshire, in the United States of America, where he established his domicile.
In 1937, he there married the respondent without a marriage contract and, therefore, by the law of that state, the spouses were separate as to property.
In 1939, they returned to the province of Quebec, where they reacquired domicile. The respondent's husband, on June 26th of that year, made his last will, and be died on April 18th, 1940.
He bequeathed $1,000 to the respondent, out of an estate of about $15,000.
The only immoveable was situated in Quebec; and the balance of his estate were moveables situate some in Quebec and some in New Hampshire. The respondent, in order to claim a greater share of her husband's estate under a statute of New Hampshire, executed a renunciation of -the benefits conferred upon her by the will; and she brought an action against the appellants, the residuary legatees under the will, in order to recover the benefits which she alleged were conferred upon her under the New Hampshire statute which contained provisions for a certain share of the property of a deceased husband or wife to go to the survivor whether the deceased dies testate or intestate. Held, reversing the judgment appealed from, that under Quebec law the terms of the New Hampshire statute are not applicable to the circumstances of this case; and, therefore, the respondent's action ought to be dismissed. Per The Chief Justice and Kerwin and Taschereau JJ.-In the absence of a contract, either actual or implied, by which proprietary rights are acquired, the law of the domicile at the time of death should determine whether any limitation was imposed upon the disposing power of a testator as to moveables.
The same result follows as to immoveables, as those in this case are situate in Quebec. Per Hudson and Rand JJ.-The New Hampshire statute is one that has to do not with the fact of marriage but with married people; and it is, at most, a law of distribution or succession of property in New Hampshire which is owned at the time of his or her death by a married person. The provisions of that statute are in no sense predicated on marriage within the state nor are they referable only to such a marriage.
It is not, therefore, a law creating "a conjugal association" as to property to which the law of Quebec will give effect upon the death of one of the consorts.
De Nicols v. Curlier ([19001 A.C. 21), Stephens v. Falchi (119381 S.C.R. 354), and Berthiaume v. Dastous ([1938] A.C. 79), disc. 284 3.-Husband and wife - Automobile accident-Injury to wife- Action for damages by husband-Husband suing as head of community-Consorts married in Quebec without contract, but domiciled in the state of Massachusetts, USA.-Separation as to property being the rule under law of that state-Right of husband to recover damages-Hospital and out-of-pocket expenses made by him recoverable under both laws-Damages for loss of companionship (consortium) or for loss of wife's services (servitium) not recoverable under Quebec law
-Damages for probable future expenses recoverable under Quebec law, such as payment of help necessitated through wife's disability.]-Where a husband, purporting to act as head of the community of property, brings an action for damages resulting from bodily injuries suffered by his wife following an automobile accident in the province of Quebec, and it appears that the consorts, though married
Quebec, without a marriage contract, had their domicile in the state of Massachusetts, in the United States of America, where separation as to property is the rule in such a case. Held that the husband is governed, being domiciled
Massachusetts, by the laws of that state as to his status and capacity and all his other rights are to be determined by the laws
3f Quebec.
The laws of Massachusetts and Quebec are both applicable, one in respect of some of the damages claimed by the husband and the other in connection with other kind of damages. Held, also, that the husband was entitled under both laws to recover hospital and other out-of-pocket expenses made by him as a result of the accident.
Held, by a majority of the Court, that the husband was not entitled to the item of damages covering the loss of his wife's companionship (consortium). Hudson and Rand JJ.
would have allowed an additional sum of
$1,000 in compensation of such loss. Held, further, reversing the judgment appealed from on that point, that damages for probable future expenses were recoverable by the husband under Quebec law. These expenses were alleged by the husband to have to be incurred by him for the payment of a maid, housekeeper or other kind of help that will be necessitated to help or replace appellant's wife owing to her permanent disability resulting from the accident. Per The Chief Justice, Taschereau J. and Thorson J. ad hoc: These future expenses are distinguishable from damages resulting from loss of wife's services (servitium), which services are not recoverable under Quebec law. Judgment appealed from (Q.R. [19431 K.B.
184) reversed.
V. 317
4.-Companies-Contracts- Certificates of shares in Canadian company issued from an office of the company in the
United States to a German corporation as registered holder-Subsequent state of war against Germany - Certificates, endorsed with transfer in blank signed by such registered holder, bought in 1919 in Germany by a United States citizen- Transfers registrable only at said United States office-Right to the shares as between the purchaser and the Canadian Custodian of enemy property - Consolidated Orders Respecting Trading with the Enemy, 1916 (and order of court thereafter)-Treaty of Versailles (signed 28th June, 1919)-Treaties of Peace Act, 1919 (Dom., 1919, 2nd Sess., c. 80) Treaty of Peace (Germany) Order, 1920-Situs of the shares-Jurisdiction of Canada.]-The claimant, as administratrix of B.'s estate, claimed, as against the Canadian Custodian of enemy property, right of ownership of 470 shares of common stock of the C.P. Ry. Co., a company incorporated by special Act of the Parliament of Canada. B. was a citizen of and resident in the United States.
The Government of the United States, at war with Germany from April 6, 1917, granted on July 14, 1919, a general license (subject to exceptions) to trade with the enemy. B. went to Germany in September, 1919, and in October, 1919, -purchased there the shares in question, receiving 48 certificates of shares, all in the same form and dated between 1894 and 1913, and being in the name of one or the other of two German banking houses as registered holders, which were at all relevant times enemy alien corporations. Each certificate was countersigned by the company's transfer agent and registrar of transfers in New York (U.S.A.)
and on each was endorsed a transfer in blank signed by the registered holder. These certificates formed part of a group of certificates issued by the company to the said two banking houses covering a total of about 140,000 shares. They were so issued in order that the shares might be traded in on the stock exchanges in Germany and certain other European countries as bearer securities without being presented for transfer at a transfer office maintained by the company upon each transfer of ownership.
The certificates covering the said 140,000 shares were registered in the company's transfer office which it had been authorized to establish and had established in New York and transfers were registrable on the books of that office and nowhere else. Dividends on shares so transferable were payable at New York in United States funds. On April 23, 1919, the shares standing in the name of the said two banking houses (as well as other shares) had been the subject of an order of the Superior Court of Quebec made under the Consolidated Orders Respecting Trading with the Enemy, 1916 (enacted under the authority of the War Measures Act, R.S.C. 1927, c.
206); which court order in its terms vested the shares in the Custodian; and when B., in November, 1919, presented his certificates for transfer and registration in his own name at the company's New York office, that office (having received a copy of the order, with instructions) refused acceptance of the transfers. The certificates have since remained in the possession of B. or the claimant. Held: The shares in question were vested in the
Custodian, and did not at any time belong to B. or the claimant.
(Judgment of Thorson J., President of the Exchequer
Court of Canada, [19441 Ex. C.R. 30, affirmed).
The Consolidated Orders Respecting Trading with the Enemy, 1916
(particularly ss. 6 (1) (2), 1 (1) (d) ), The
Treaty of Versailes (signed on June 28,
(particularly paragraphs (b) and
(d) of Article 297, and paragraphs 1, 3, of the Annex to Article 297), The Treaties of Peace Act, (Dom., 1919 2nd Sess., c. 30), The Treaty of Peace (Germany)
1919, vested the shares in the Custodian, and that order was confirmed, and all subsequent dealings with the shares by the Custodian were authorized, by the
Treaty of Versailles and by The Treaty of Peace (Germany) Order 1920.
While the Governor in Council (enacting the said Consolidated Orders Respecting Trading with the Enemy, 1916, and The Treaty of Peace (Germany) Order, 1920) could not prevent the share certificates from being physically endorsed by the holder and handed over to a purchaser, he could provide that no transfer should confer on the transferee any rights or remedies in respect of such securities.
The situs of the shares, as distinguished from that of the certificates, was in Canada; and the conditions under which title to the company's shares might be acquired was exclusively matter for the law-making authority of Canada. The fact that the company was authorized to, and did in fact, establish a transfer office in the
State of New York where, only, transfers of the shares in question were registrable, could not make any difference; this was a mere matter of convenience and did not detract from the power of Canada to deal with the title to the shares of the Canadian company.
(Spitz v. Secretary of
State of Canada, [19391 Ex. C.R. 162, approved. The King v. Cutting (dealing with a different -problem), [19321 S.C.R.
410, at 414, 418, referred to.
The consederations which applied in Rex. v.
Williams, r19421 A.C. 541, cannot affect the matter for consideration in the present
INTERNATIONAL LAW-Concluded case).
Even assuming that a transfer of the certificates to B. (in Germany) was valid by German law, yet such transfer did not, in the language of s. 6 (1) of said Consolidated Orders of 1916, "confer on the transferee any rights or remedies in respect thereof".
JUDGMENT - Whether susceptible of execution...................... JURY TRIAL-Whether there were questions which should have been submitted to jury. ..........
....... 2.-Judgment on findings of jury- Variation by court of appeal-Restoration of judgment at trial. ......... See 8.
3.-Negligence - Motor vehicles - Evidence-Action for damages for injuries to person struck by motor car-Onus of proof under s. 48 (1) of Highway Traffic Act, R.S.O. 1937, c. 288-Nature and extent of the onus-Trial Judge's charge to jury. .............................. LESSOR
LESSEE-Damages- Quantum-False representation to deprive lessee of benefit of contractual right to renew lease-Measure of damages-Special damages-Loss of profits-Questions as to mitigation of loss-Matters for consideration in assessing loss-General damages not recoverable................... MINES AND MINERALS - Trust-Prospector given mission under agreement, with knowledge disclosed to him as to mineral area-Subsequent staking by him of claims in same area for benefit of himself and others-Whether fiduciary relationship between him and other parties to first agreement-Whether latter entitled to share in prospector's interests acquired through said subsequent staking -Constructive trust............. 111 MORTGAGE-Sale of land-Agreement, in form one for sale of land, held to be in reality a mortgage-Time declared "to be the very essence" of the agreement- Right to redeem after default....... 360 MOTpR VEHICLES - Negligence-Collisijf-Injury to pedestrian-Accident at intersection of street-Traffic governed by light signals-Accident following collision MOTOR VEHICLES-Continued between two motor cars-One car having right of way and the other going against red light-Action against owner and driver of both cars-Presumption of fault-Burden of proof-Motor Vehicles Act, R.S.Q.,
1925, c. 35, s. 68, ss. 2.}-The appellant's minor son, when crossing St. Lawrence boulevard, at the intersection of Sherbrooke street, on the north side of that street, in the city of Montreal, was struck and severely injured, after two automobiles had collided at that point.
One of the automobiles belonging to one
Gignac and driven by his employee Pelchat was going in a northerly direction, and the other automobile owned by the respondent Alexander Wise, and in charge of his brother, the other respondent, was proceeding towards the west on Sherbrooke street. At that intersection, the traffic is governed by light signals; and, at the moment of the impact, the respondent's automobile, as well as the appellant's son, had the right of way, the green light being in tkeir favour. It was also proven that Gignac's automobile was hit on the right side, a few inches behind the rear axle. After the collision, the appellant's son was found under a tramway facing a southerly direction, but which had stopped in obedience to the red signal.
On behalf of his son, the appellant brought an action for damages against the owners and drivers of both automobiles. The trial judge condemned the respondents and Pelchat jointly and severally to $17,447.20, but dismissed the action against Gignac on the ground that,
'at the moment of the accident, Pelchat was not in the performance of his employment. The appellate court, allowing the respondents' appeal, dismissed the action as to them. The appeal against
Gignac before that court is still pending,
Pelchat having filed no appeal.
affirming the judgment appeared from, that, upon the evidence the respondents have committed no fault; and, also, that any presumption of fault, if such presumption did exist, has been rebutted by them.
Subsection 2 of section 53 of the Motor
Vehicles Act (R.S.Q.,
1925, c. 35) provides that "Whenever loss or damage is sustained by any person by reason of a motor vehicle on a public highway, the burden of proof that such loss or damage did not arise through the negligence or improper conduct of the owner or driver of such motor vehicle shall be upon such owner or driver". Per the Chief Justice and Taschereau J.:
The presumption which the law thus creates is not a presumption that the driver of an automobile has caused damage. It is a presumption that he is liable when it is proven that
MOTOR VEHICLES-Continued he has caused damage, and he has therefore the onus of showing that he committed no fault which contributed to the accident.
But, before such presumption of liability may arise, it is incumbent upon the plaintiff to establish that it is the person, from whom the damage is claimed, that is the author of such damage.
There must necessarily exist a relation between the driver of the automobile, and the damage suffered by the victim. And in order to establish such a connection between the driver and the damage suffered, it is not of course necessary in all cases, for the plaintiff, to show that he was struck by defendant's automobile. It may very well happen, as it does often, that the damage may be attributed to a driver who does not actually hit the victim, but acts in such a way that he causes another one to run over a pedestrian. But it is only when such or similar facts are shown to exist that the presumtion created by section 53 of the Motor Vehicles Act starts to operate, because then only the driver is linked in some way to the mishap. In the present case, nothing of the kind is revealed by the evidence. But. even if such a presumption would exist, it has been rebutted by the respondents. Per Kerwin J.: There is no question, as to the persbn at fault, involved in the construction of section 53 (Maitland v. McKenzie, 28 O.L.R. 506): that is, while the appellant must prove that loss or damage was sustained by reason of respondent's automobile, the tribunal of fact need not determine, so far as the onus is concerned, whether the driver operated the car in a negligent manner or not. There is no evidence that the appellant's son would have been struck by Pelchat's car, even if respondent's car had not been on the highway, and no such inference may properly be drawn. The victim was struck after the collision between the two cars occurred; and the respondents, in view of the evidence on that point, were bound -to displace the onus that rested upon them under section 53. But, upon, the evidence the respondents have satisfied such onus. Per Hudson J.: The plain meaning of section 53 is that a plaintiff must first satisfy the court that the loss or damage was sustained by reason of the motor vehicle; and, once the court is so satisfied, then the onus is on the defendant (owner or driver) to prove if he can that the loss or damage did not arise through his improper conduct. Per Rand J.: Assuming there was such evidence of a nexus in fact between the collision and the injury as to give rise to the statutory presumption against the respondents, and also MOTOR VEHICLES-Continued that their automobile was proceeding through the intersection at a speed greater than that permitted by the civic by-laws or the motor law of the province, there was no evidence of a dangerous speed nor that the driver was negligent after he became aware of the other car. Upon the evidence, the respondents have exculpated themselves from the presumed responsibility enacted by section 53.
BoxEN- 2.-Insurance-Accident-Injury to passenger-Policy issued to automobile company-Use of a motor car by an official-- "Omnibus" clause eliminated from policy
-Endorsement clause providing for liability in case of "pleasure use"-Liability of the insurer-Whether company only person "insured" under policy . ..... 77
3.-Negligence - Plaintiff, after getting off standing vehicle and starting to cross road, colliding with passing motor car driven by defendant, who had not sounded horn-Suit for damages-Court holding, in the circumstances of the case, that plaintiff's damages were caused by the fault of both parties and that (under
The Contributory Negligence Act, N.B.)
damages should be apportioned equally between them.
4.-Negligence - Action by gratuitous passenger in motor car against owner and driver thereof for damages for personal injuries sustained in accident-Whether
"gross negligence" by driver contributing to injury (s. 74B of Motor Vehicle Act,
R.S.B.C., 1986, c. 195, as amended by
5.-Negligence-Injury to pedestrian on highway-Presumption of fault created by section 53 of the Quebec Motor Vehicles
Act-Such presumption of fault may be rebutted by defendant
Motor
Vehicles Act R.S.Q., 1941, c. 142, s. 53. 194
6.-International law wife-Negligence-Automobile accident- Injury to wife-Action for damages by husband-Husband suing as head of community
Consorts married in Quebec without contract, but domiciled in the state of Massachusetts, U.S.A.-Separation as to property being the rule under law of that state-Right of husband to recover damages - Hospital and out-ofpocket expenses made by him recoverable under both laws-Damages for loss of companionship (consortium) or for loss
MOTOR VEHICLES-Concluded of wife's services (servitium) not recoverable under Quebec law-Damages for probable future expenses recoverable under Quebec law, such as payment of help necessitated through wife's disability. 317 7.-Negligence - Evidence - Trial - 1937, c. 388-Nature and extent of the onus-Trial Judge's charge to jury. 443 MUNICIPAL LAW-Tax sale-Immoveable owned by company-Purchaser-Redemption exercised by creditor of company-Company having ceased to exist at time of redemption-Company appearing as owner on valuation roll-Whether right of redemption exists-Municipal Code, sections 726, 727, 754, 755-C.C. Arts 368, 371, 372.1-When an immoveable belonging to a company is sold at a tax sale, the purchaser, in an action "en passation de titre" against the municipal corporation, cannot ask that the redemption exercised by a creditor for and on behalf of that company be declared null and void and set aside, on the ground that, at the time of the redemption, the company had ceased to exist, its charter then alleged to be extinct and to have been forfeited de jure by non-user during three consecutive years.
When the right of redemption is exercised under sections 754 and 755 of the Municipal Code, the original purchaser, to whom the immoveable has been adjudicated, has no more rights than to receive back the money paid plus interest. In this case, the creditor was entitled to exercise that right on behalf of the company, even assuming the forfeiture of its charter. It is not the duty of the secretary-treasurer of a municipal corporation to investigate as to who may be the real owner of an immoveable offered for sale. He is concerned only with what appears on the valuation roll, and, in this case, the company appeared in the roll as owner of the immoveable sold.
2.-Taxation-Crown's interests. .. NEGLIGENCE-Person on leaving garage injured by tripping over sill in doorway- Whether operator of garage liable in damages-Whether sill a concealed danger to a person exercising ordinary care.]- Plaintiff was driven (about 1.30 p.m.) into defendant's public garage in a motor car driven by B. who left the car there to be parked.
The car entered the garage through a large folding door composed of four sections, which door was opened to admit the car and then closed.
one of the sections there was a small exit door, which had a sill, 101 inches high, to provide stability for the section, since the large door was suspended from the top and did not quite touch the floor.
In leaving the garage, B. opened the small door and stood aside.for plaintiff to go through.
Plaintiff did not see the sill and -tripped on it and was injured.
She was wearing spectacles equipped with bifocal lenses. She sued defendant for dam- The trial Judge, on motion for non-suit, dismissed the action, holding that plaintiff by the exercise of ordinary care could have seen the sill and avoided injury.
His judgment was reversed by the Court of Appeal for Ontario ([19431
O.W.N. 179; 2 D.L.R. 291), which held that the sill constituted a concealed
'danger.
Defendant appealed.
Held (the
Chief Justice and Kerwin J. (dissenting)
):
The appeal should be allowed and the judgment at trial restored.
The sill did not constitute a concealed danger to any person. exercising ordinary care.
2.-Elevator-Sudden fall from upper floor - Injury to passengers - Damages paid by insurer of owner-Claim by insurer, under subrogation, against contractor who installed elevator-Liability resulting from offence or quasi-offence-Probable failure of safety blocks-Blocks made of cast iron-Expert evidence such material used at time of construction-Whether forged steel should have been employed- Quaere as to liability of owner of building
-Certificate of inspection - Statement therein that elevator was in good order- Duties of inspector-Failure to mention kind of material of safety blocks-Whether in certain cases certificate should mention improvements since date of construction.1-On February 24, 1938, one of the elevators in use in the H8pital du
St-Sacrement, at Quebec, fell from the second floor of the building to the bottom of the elevator pit, causing injuries to a number of passengers.
Under the terms of its insurance policy with the hospital, the appellant company made a settlement of the claims filed by the injured persons, and disbursed a total sum of
S7,453.48 which included the costs of repairs to the elevator, for which sum the appellant took subrogation from its assured and the injured persons. The appellant company then brought an action to recover that amount against both the general contractor for the building of the hospital and the present company respondent, which under a sub-contract had built and installed in 1926 the elevator; but the appellant company proceeded only against the latter. As there could not be any contractual fault of the respondent, the action had to proceed on the basis of its delictual or quasi-delictual responsibility, and the burden of proof was on the appellant. The precise cause of the failure of the elevator, the cause of its fall, has not been clearly demonstrated; but the injuries to its passengers were probably brought about by the failure of the brake appliance consisting of safety blocks, with which the elevator was equipped, to arrest the descent of the elevator and their rupture in the emergency which arose at the time of its fall. The main ground raised by the appellant was that the respondent furnished safety blocks made of cast iron, alleged to be a defective material and too weak to stand a violent shock, while such appliances should, in accordance with good practice, have been fabricated of cast or forged steel, thus effecting more security. other ground of appeal was that, for many years, periodical inspections of the equipment were made by the respondent company, and, on the very day of the accident, an inspection had been made by an employee of the respondent and, as in previous occasions, a certificate was given to the appellant company attesting that the elevator was in good order.
The trial judge maintained the appellant's action, but the appellate court reversed that judgment, holding that the evidence of the expert witnesses, as to the propriety or impropriety of using cast iron at the time the elevator was constructed from the point of view of safety, was contradictory and conflicting and permitted of no definite conclusion upon the point. Held, affirming the judgment appealed from (Q.R. f19431 K.B. 511), that, under the circumstances of this case, the respondent company was not liable. result from the evidence of the expert witnesses, although somewhat contradictory, is to the effect that, at the time the elevator was built and installed, safety blocks of either cast iron or forged steel were used by experienced and competent contractors and were both giving entire satisfaction.
So, at that time, the respondent company was at liberty to choose between two methods of construction then usually employed by leading men of art, more so for an elevator as the one in this case, and there has IS.C.R. been neither imprudence nor negligence on the part of the respondent company to have adopted one of these methods rather than the other, i.e. to have given preference to cast iron safety blocks.
Quaere whether, if the action for damages had been brought against the hospital, owner of the building, the same conclusion would have been arrived at when determining the liability of the hospital, i.e. whether the hospital, as owner of the elevator, may be held to be bound to modify its construction along with the modern improvements made from time to time for the safety of the users of the elevator. Held, further, that the respondent company was not liable on the ground that the certificate of inspection ought to have contained a statement that the safety blocks were-of cast iron or did not mention improvements made since the construction of the elevator.
The duties of the inspector were to verify, as a prudent man would do, the condition of the elevator and to report any defects which may imperil the safety of the passengers.
Under the circumstances of this case, to ask more from the inspector and to exact from him more than a reasonable competency and the care of a prudent man, would be tantamount to constitute him a warrantor or a re-insurer of the appellant company.
Rand J. dubitante. Per
Rand J.: The inspection and certification may, under certain circumstances, extend to features of construction, and the inspection is not necessarily that of the machine or thing as it is merely.
scope of the duty of an inspector is one which, in the absence of express terms, is to be gathered from the circumstances of its being undertaken;
but quaere, whether, in the ordinary case, an inspection should not require disclosure of a defect in design or material which was or should have been apparent to the inspector and which, since construction, experience has shown to be hazardous, and general and approved practice has condemned.
CO.
CIE F. X. .............
3.-Railways-Child, while passing between cars on spur track in railway grounds, crushed by cars being moved by switching operations - Railway company sued for damages-Action dismissed at trial on motion for non-suit-New trial ordered on appeal--Whether there were questions which should have been submitted to jury-Railway company's duty to child-Whether child a trespasser.]- At the end of a spur track in defendant's grounds at a flag station on defendant's line of railway, a railway car, acquired and converted into a school-room by the Department of Education of the Province of Manitoba, was, under an agreement with defendant, located and used as a school for the settlement in the vicinity. A barricade was erected on the spur track so that no railway operations thereon could extend to the track where the school car rested. For about two months before the accident in question a line of box cars had been on the spur track, with a gap of li or 2 feet between the two cars thereof nearest the school car, the nearer of said two cars being about 90 or 94 feet from the steps of the school car. A school girl, years old, who, with some companions, had left the school earlier than usual (as examinations were being held), went from the school along a certain used way beside the spur track but left the way and proceeded to go through the said gap and was crushed by the coupling of the cars by a switching engine operating at the farther end of the line of cars, and died from her injuries. The children had no warning of movement of the cars. Defendant's employees did not know that children were outside the school and near the train. There were facts in evidence, discussed in the judgments, as to previous warnings to children with regard to the railway tracks and cars, as to ways used or available for going home from school, as to distances and directions, and other circumstances.
Defendant was sued for damages. The trial Judge, on motion for non-suit, held that the girl was a trespasser in entering said gap, took the case from the jury and dismissed the action. The Court of Appeal for Manitoba, 51 Man. R. 33, ordered a new trial. Defendant appealed.
Held (Kerwin and Rand JJ. dissenting): Defendant's appeal from the order for a new trial should be dismissed.
On the evidence, there were questions which should have been submitted to the jury. Discussion as to duty to trespassers, and as to whether the girl should be considered a trespasser under the circumstances. Per Davis J.: Whether a person is really a trespasser is a question of fact (Grand Trunk Ry. Co. v. Barnett, [19111 A.C. 361, at 370) and was for the jury on a proper direction. The jury should have been asked whether on the evidence they thought that defendant knew or should have known of the likelihood of school children being about the cars at the time, and, if the jury thought so, then, was there a neglect of duty to the girl on defendant's part that caused the accident. Per Kerwin and Rand JJ., dissenting:
The trial Judge was right in taking the case from the jury and dismissing the action, as there was no evidence to submit to the jury upon which they might return a verdict that would justify a judgment against defendant. A finding that the girl was upon the tracks by defendant's permission would have been perverse, there being no evidence to justify it.
It was not a case where defendant's employees knew or should be held to have known or expected at the time in question that children were or were likely to be on or about the cars.
There was no allurement.
On its own property defendant was performing a normal and usual operation. The girl was a trespasser in entering the gap, and, putting defendant's duty towards her as such on the highest ground, it did nothing in breach of such duty.
(Canadian Pacific
Ry. Co. v. Anderson, [19361 S.C.R. 200, at 203, 208, cited).
Co. v.
4-Motor vehicle-Injury to pedestrian on highway-Presumption of fault created by section 53 of the Quebec Motor
Vehicles Act-Such presumption of fault may be rebutted by defendant-Quebec
Motor Vehicles Act, R.S.Q., 1941, c. 142, s. 68. The presumption of fault created by section 53 of the Quebec Motor
Vehicles Act against the owner or driver of an automobile is merely a presumption which is rebuttable: it does not constitute a liability defeasible only by evidence of fortuitous event or superior force (cas fortuit ou force majeure) or of a foreign cause not attributable to defendant. The judgment of the trial judge should be restored, as, upon the evidence, the respondent has entirely failed to rebut such presumption.
The appellate court had reduced by half the amount of damages granted by the trial judge on the ground that there had been contributory negligence.
v. THE KINo.
5.-Injury to pedestrian-Icy sidewalk
-Action against owner of building fronting it-Intervention by contractor who undertook to keep sidewalk in good condition-Liability of owner and contractor either under article 1053 C.C. or under city charter and by-laws--Admission by intervenant that care and maintenance of sidewalk under responsibility of defendant-Effect to be given to such admission.1-The respondent, having suffered injuries through falling on an icy sidewalk in the city of Quebec, brought action against the owner of the premises in front of which she had fallen.
The owner called in warranty his tenant who by the terms of the lease engaged himself to the maintenance of, and the removal snow from, the sidewalk.
The tenant in turn called in sub-warranty the appellant who had contracted with him to keep the sidewalk in proper condition and to protect him from claims for damages arising from sidewalk conditions. owner, defendant, did not put any plea; but the appellant in his place intervened and contested the claim on its merits. The principal grounds urged by the appellant was that neither under the provisions of the city charter nor the bylaws passed under it was there a duty on the owner, defendant, to keep the sidewalk free from the danger of ice and snow, and, in its absence, there was no liability either under the charter or under articles 1053 or 1054 of the Civil Code. But the appellant admitted a paragraph of the statement of claim, where it was alleged that the sidewalk was the property of the defendant and that both the defendant and his lessee engaged themselves to provide for its care and maintenance.
The respondent's action was dismissed by the trial judge; and the appellate court reversed that judgment, assessing the damages suffered by the respondent at the sum of $1,882. affirming the judgment appealed from, that the injury to the respondent was caused by the dangerous state of the sidewalk for which the defendant, the proprietor of the abutting land, must be held responsible.
Under circumstances of the case, the respondent's action was rightly brought against the owner of the building fronting the sidewalk, under the provisions of the city charter and of the by-laws passed under it. Held, further, that this Court must give effect to the explicit admission made by the appellant; and from the admitted fact that the care and the maintenance of the sidewalk were under the responsibility of the defendant results necessarily the appellant's liability in case of negligence or fault on his part in the execution of his obligation, so admitted, under his contract with defendant, thus giving rise to the application of article 1052 C.C.- Rand J. expressing no opinion. v. ....................... 6.-Motor vehicles-Evidence-Trial- 1937, c. 288-Nature and extent of the onus-Trial Judge's charge to jury.]- Plaintiff claimed damages for personal injuries caused by her being struck, while crossing a street in Toronto, Ontario, by a motor car driven by defendant. At trial, the jury, asked if defendant had satisfied them that plaintiff's loss or damage did not arise through negligence or improper conduct on defendant's part
(the question being framed with regard to the onus created by s. 48 (1) of The
Highway Traffic Act, R.S.O. 1937, c. 288), answered in the affirmative; and the action was dismissed. The Court of Appeal for Ontario ([1943] OR. 806) ordered a new trial, on the ground of error in the trial Judge's charge to the jury. Defendant appealed to this Court.
The appeal should be dismissed.
trial Judge, in charging the jury, erred in the following respects:
(1) In stating that "when a defendant is called upon to prove that the damage was not caused by his negligence or improper conduct, he might prove it by showing that it was caused, in whole or in part, by the negligence of the plaintiff".
Defendant could not satisfy the burden placed upon him by said s. 48 (1) by showing that the damages were caused in part by Plaintiff's negligence; his obligation was to satisfy the jury that the loss or damage did not arise through any negligence or improper conduct on his part; if they were so satisfied, that was an end to the matter;
if they were not, it would then be open to them to find that plaintiff's negligence caused or contributed in part to the accident in accordance with the provisions of The Negligence Act, R.S.O. 1937, c. 115.
(2) In putting the case to the jury as though their task under 'said s. 48 (1)
were to examine defendant's conduct in certain particulars only so as (in the language of the charge) "to come to a decision as to whose negligence caused the accident, or whether both were negligent".
(No doubt plaintiff's counsel, in addressing the jury, had referred to certain conduct of defendant as constituting negligence; but the statement of claim had not alleged negligence, nor was it required that it should do so.)
That manner of dealing with the onus fell far short of what is required in explaining its nature and was misleading.
A jury may properly find that a defendant has failed to meet the statutory onus
(each juror possibly having a different ground for so thinking) without being able to specify exactly in what the defendant's negligence consisted. Winnipeg
Electric Co. v. Geel, [19321 A.C. 690, at
695, 696; [19311 S.C.R. 443, at 446, cited.
Statement of the law in Newell v. Acme
Farmers Dairy Ltd., [19391 O.R. 36, at
NEGLIGENCE-Concluded
7.-Railways - Transportation by railway of locomotive crane embodying a car structure on wheels-Shipper undertaking to ."get it ready for shipment"-Insecure fastening of crane body to frame of its car, causing derailment of crane-car and of other cars in the train against railway company for damage to crane-Counterclaim by railway company for damage to its property -Nature of contract-Haulage-Duties, liability, of shipper, of railway company- Railway Act, R.S.B.C. 1936, c. 241. 8.-Damages-Collision between street car and truck-Action by injured passenger in street car for damages against owner and driver of truck and operators of street railway-Question as to whose negligence caused or contributed to the accident-Judgment at trial on findings of jury-Variation by Court of Appeal- Restoration of judgment at trial.]-CAN- 9.-Automobile - Collision - Injury to pedestrian- Accident at intersection of street-Traffic governed by light signals- Accident following collision between two motor cars-One car having right of way and the other going against red light- Action against owner and driver of both cars - Presumption of fault
Burden of proof-Motor Vehicles Act, R.S.Q., 1935, c. 35, s. 53, ss. .]- ..............
10.-International law wife
Automobile accident
Injury to wife-Action for damages by husband- Husband suing as head of community- Consorts married in Quebec without contract, but domiciled in the state of Massachusetts, U.S.A.-Separation as to property being the rule under law of that state-Right of husband to recover dam- Hospital and out-of-pocket expenses made by him recoverable under both laws-Damages for loss of companionship (consortium) or for loss of wife's services (servitium) not recoverable under Quebec law-Damages for probable future expenses recoverable under Quebec law, such as payment of help necessitated through wife's disability.]-......... 317 11.-See
OIL RIGHTS-Sublessees of oil rights in land financing drilling of well by issue of royalty certificates.]-........... Equrry
PROCEDURE-Motion to quash by respondent and motion for leave to appeal by appellant-Principal action, action in warranty and action in sub-warranty-Amount awarded by principal action less than 8,000-Defendant in sub-warranty condemned to pay that amount plus costs of principal action and of action in warranty-Whether such costs may be added to amount granted by principal action so as to raise the "amount of value of the matter in controversy"
to a sum of 8,000-Supreme Court Act,
R.S.C., 1927, c. S5, s. 40.1-Section 40 of the Supreme Court Act provides that
"where the right of appeal * * * is dependent on the amount or value of the matter in controversy such amount or value * * * shall not include * * * any costs".
These "costs" are the costs of the action which a party to that action is condemned to pay. The costs of other suits connected with the main action, which costs a party is condemned to pay in addition to the amount granted by the main action, really form part of, and should be added to, that amount in order to determine the "amount or value of the matter in controversy". In the present case, the amount granted to the plaintiff by the main action was a sum of
$1,882; but the appellant, defendant in sub-warranty, besides being condemned to pay that amount, was also ordered to indemnify in full the defendant in warranty and indirectly the principal defendant.
The costs incurred by these two defendants, which the appellant was thus obliged to pay, should be added to the principal amount for the purpose of determining "the amount or value of the matter in controversy".
With such addition, the amount in this case exceeded a sum. of $2,000, and, therefore, this Court has jurisdiction to entertain the appeal de plano.
Whether judgment is susceptible of execution-Terms of injunction- Whethqr in conformity with Code of
Civil Procedure. ...................
3.-Admission made by party-Effect to be given to such admission. .....
PRIVY COUNCIL-Intended appeal to- Motion for stay of proceedings. ....
PROPERTY (TIMBER LICENSES)- Purchased by husband and assignment thereof taken in his wife's name-Husband suing her to recover the property-Rebuttal of presumation of gift--Alternative
PROPERTY (TIMBER LICENSES)contention against husband of intent to protect property from creditors.]-CoLE .......
RAILWAYS - Transportation by railway of locomotive crane embodying a car structure on wheels-Shipper undertaking to "get it ready for shipment"-Insecure fastening of crane body to frame of its car, causing derailment of crane-car and of other cars in the train-Claim against railway company for damage to crane-Counterclaim by railway company for damage to its property-Nature of contract-Haulage- Duties, liability, of shipper, of railway company-Railway Act, R.S.B.C. 1986, c. 241.1-Appellant was a railway company subject to the British Columbia Railway Act (R.S.B.C. 1936, c. 241).
Respondent delivered to it for movement over its railway a locomotive crane which embodied a car structure on wheels by which it could be moved over railway tracks. Respondent (by its employees who engaged the railway service) had agreed to "get it ready for shipment".
Appellant's train, in which was the crane-car, had gone only a few miles (on a very curved road), when, at a curve, owing to insecure fastening of the crane body to the frame of its car, the wheels of the crane-car left the rails and it and other cars of the train were derailed. Respondent claimed damage to its crane, and appellant counter-claimed for expenses of repairing cars and track, clearing the wreck, etc., and for a freight charge for transporting, at respondent's request, the crane-car and its attachments to Vancouver. Held (reversing judgment of the Court of Appeal for British Columbia, 58 B.C.R. 420, and of Sidney Smith J., 57 B.C.R. 247): Respondent's claim should be dismissed and appellant's counterclaim allowed (Hudson and Rand JJ. dissenting as to part of the counterclaim). Per the Chief Justice and Kerwin J.: There was nothing to indicate that appellant was a common carrier of cranes such as the one in question. The contract was one for haulage of the crane on the terms offered by respondent that it would "get it ready for shipment", and in view of those terms and the cause of the accident, the damages arose from respondent's neglect.
At common law, while a common carrier of goods was an insurer, it was a condition precedent to its ability that any loss occurring while the goods were in its custody should not arise from the personal neglect or wrong or misconduct of the owner or shipper; and, on principle, that rule should apply to the contract of haulage; and the opera- RAILWAYS-Continued tion of the condition precedent is not affected by the provisions of s. 242 of the
Railway Act (B.C.) against impairment of liability in respect of the carriage of traffic (the crane was within the statutory definition of "traffic" as being "rolling stock", not as being "goods").
On the evidence, the imperfect nature of the preparation of tht. crane for shipment was not known to appellant, and (despite the rules of the Association of American Railways, of which association appellant was an associate member, but which rules embody "recommended practice" only as among, and for the benefit of, the railways themselves)
not something which appellant should have known. Per
Davis J.: The contract was one of haulage; and therefore appellant became merely a bailee for hire, and liable only for hire, and liable only for negligence after taking delivery.
It did not appear that appellant in any sense undertook any supervision over the preparation of the crane for shipment or that appellant had at the place of shipment any employee competent, as compared with respondent's employees, to judge of the sufficiency of measures taken in such preparation. Respondent undertook to get the crane
"ready for shipment", and there was no paramount duty on appellant to see that the crane was in proper condition for shipment. The issue of the action should be determined upon the basis of the particular contract and not on the general duty of a common carrier to a shipper of goods or to passengers.
As to the counterclaim, appellant's damages were the direct consequence of respondent's negligence and were recoverable.
Per
Hudson and Rand JJ.: The crane was not "goods" (it was assumed it could be brought within the expression "rolling stock" and was therefore required by the
Act to be accepted as traffic by railways)
nor was the service one of carriage; it was a form of haulage (not less so because for reward or because it was a movement of the crane as crane) in respect of which appellant was not a common carrier.
The matter for determination was the nature, scope and effect of respondent's undertaking to make the crane "ready for shipment" (a work which appellant could properly have required to be done by respondent).. The undertaking formed a precedent condition to appellant's undertaking and was not an infringement of s. 242 of the Railway Act
(B.C.)
(which provides against impairment of liability in respect of the carriage of traffic),
On the facts and circumstances in evidence, it must be held that respondent did not in fact rely upon ap- RAILWAYS-Continued pellant to confirm respondent's judgment that the measures taken in preparing the crane for the transportation were sufficient, nor, as a matter of law, should appellant be held to have had such reliance placed upon it, or be held to a knowledge of the best or "recommended" practice in such preparation.
Respondent took the risk of what it had done in preparation; there was no paramount duty on appellant towards respondent involving responsibility for the mode of security followed. Respondent acted on its own judgment alone, and offered the crane to be transported in the condition to which it had brought it; and it was that act, done in performance of respondent's own duty or engagement, that caused the derailment; and the failure of the means adopted was, therefore chargeable against it (as to its claim) and its claim must be rejected.
As to appellant's counterclaim: Though, no doubt, appellant did in fact rely upon respondent's work as sufficient for the train's safe operation, yet appellant knew the general nature of the hazard presented to the transportation; and, though not all of the safety means taken were disclosed, yet, in the situation and from the standpoint of appellant's own interest, there was sufficient known to place upon appellant the obligation of enquiry if anything further had been required. In such circumstances, the warranty implied in law against dangerous goods, assuming the principle, by analogy, to apply, did not arise. Nor could it be said that there was an undertaking implied in fact that the crane was sufficiently secured for the safety of train operation. There was no evidence to justify the conclusion that respondent took the steps it did otherwise than to protect its own property (semble, if that were not so, if in fact the security of the train had been a controlling purpose in the mind of respondent, it would be liable for all the consequences).
Respondent was prepared to accept the risk involved to its own property in the transportation of the crane as it was, but there was no evidence that it was accepting responsibility for that risk to any other property. Respondent, therefore, was not liable for the damage done to appellant's property. But appellant was entitled to recover on its counterclaim to the extent of the freight charge.
PAciic Ry. Co. v. RivER PowER Co. ......... 2.- Negligence-Child, while passing between cars on spur track in railway grounds, crushed by cars being moved by switching operations - Railway company RAILWAYS-Concluded sued for damages-Action dismissed at trial on motion for non-suit-New trial ordered on appeal-Whether there were questions which should have been submitted to jury-Railway company's duty to child-Whether child a trespasser.. 98
REVENUE-Sales tax-Contract of sale of machinery-Purchase price to be paid by monthly progress instalments during period of construction-Purchaser becoming insolvent before completion and delivery of machine-Claim by the Crown for sales tax on remaining instalments then not collected-The Special War Revenue
Act, R.S.C. 1927, c. 179, s. 86.1-The respondent company entered into a contract, on June 5th, 1937, for the sale of a pulp-drying machine to the Lake Sul-, phite Pulp Company for the price of
$488,335 payable in nine monthly -progress
.instalments of 848,800 each commencing
July 5th, 1937, and the balance of $49,135 when the machine would be in operation, title to pass on payment in full of the price.
Six instalments were paid to the respondent and the sales tax on them was paid by the latter to the appellant.
On February 5th, 1938, a petition in bankruptcy was filed against the Pulp
Company; and on the 11th of February, all work on the machine was stopped.
On February 22nd, an order was made for winding up under the Dominion
Winding Up Act and a liquidator was appointed. The Crown brought an action for the recovery from the respondent of the sum of $10,844.46 for sales tax and penalties on the instalments payable on the 5th days of January, February and
March, 1938, the tax being claimed under section 86 of the Special War Revenue
Act R.S.C., 1927, c. 179. The first proviso of that section enacts inter alia that "the tax shall be payable pro tanto at the time each of such instalments falls due and becomes payable in accordance with the terms of the contract, and all such transactions shall, for the purpose of the section, be regarded as sales and deliveries"
and the second proviso further enacts that "in any case where there is no physical delivery of the goods by the manufacturer or producer, the said tax shall be payable when the property in the said goods passes to the purchaser thereof". The contention of the Crown is that the case is within the first proviso and that, as the agreement formally provided for instalments on specified dates, when these dates arrived the tax eo instanti became an absolute obligation to the Crown divorced wholly from the contract. Held, affirming the judgment of
REVENUE-Concluded the Exchequer Court of Canada, [19431 Ex. C.R. 49), that there was no liability on the respondent for sales tax as claimed by the Crown.
Per The Chief Justice and Kerwin, Taschereau and Rand JJ.- The language of the first proviso, appropriate to a contract performed according to its original terms, presents difficulties in its application to one which has been modified or disrupted; and, therefore, such language is subject to interpretation. If, for instance, after some instalments and the related taxes had been paid, the parties had altered the agreement by either increasing or reducing the price, the incidence of the tax must thereafter vary accordingly.
And; in, case of disruption of the contract, to sustain the right to the tax, the instalment became payable must remain an obligation of an executory contract. In the present case, the fact of bankruptcy intervening is a circumstance fatal to the right of the Crown maintain information.. When, on February
22nd,
1938, liquidation order was made, the instalments for the balance of purchase price ceased to be "due" and "payable" within the meaning of the statute; the respondent could not have enforced payment of the remaining instalments and the essential condition of the tax that they should continue as effective obligations of a contract of sale was not existing when the information was issued. Per Hudson J.-The sales price, under the contract, was to be paid in instalments in the nature of progress payments although there was no provision that these instalments should be made in accordance with any particular rate of progress, but it must be assumed that it was the intention of the parties that the payments should not become payable until the respondent was making fair progress in its work. Therefore, it is doubtful, upon evidence of delays by the respondent, whether or not the instalments in respect of which the Crown claims ever fell "due" and "payable" in order to bring them within the terms of the first proviso. But, even if it were so, the second proviso must prevail, as the property in the goods never passed to the purchaser: the machinery was never completed, and thus was never capable of physical delivery in fulfilment of the contract. Forbes v. Git ([19221 A.C. 256) applied. THE KING Co. L/m. 371 SALE OF LAND-Mortgage-Agreement, in form one for sale of land, held to be in reality a mortgage-Time declared "to be the very essence" of the agreement-Right to redeem after default.]-In an action SALE OF LAND-Concluded claiming a right to redeem and for relief against forfeiture for default, in respect of an agreement which was in form an agreement of sale of land and which, inter alia, provided that on any breach of covenant by the purchaser he was to give up possession and the agreement was to be (at the vendor's option) void, and declared that time was "to be the very essence of this agreement", it was held, on the facts and circumstances (discussed in the judgment), that at the time of the agreement the purchaser had an equitable interest in the land which was not extinguished or surrendered, that the agreement was in its true nature and effect a mortgage from the purchaser to the vendor, and there was a right to redeem. (Judgment of the Court of Appeal for Ontario,
[19431
O.W.N. 463, affirming judgment of McFarland
J.,
[19431 O.W.N. 116, dismissing the action, reversed.)
SALES TAX-Revenue-Contract of sale of machinery-Purchase price to be paid by monthly progress instalments during period of construction-Purchaser becoming insolvent before completion and delivery of machine-Claim by the Crown for sales tax on remaining instalments then not collected- The Special War
Revenue Act, R.S.C. c. 179, s. 86.1- ...................................
SCHOOL LAW - Resolution of school commissioners for building of school house
-Awarding of contract-Action by ratepayers, under article 50 C.C.P., to quash resolution and annul contract-Superior
Court not acting as appellate court-Appeal by ratepayers to Magistrate's Court
-Cost of work paid by loan raised by means of promissory notes-Resolution merely stipulating that a tax "will be"
imposed and levied-Wording insufficient to create a tax-Tax must be actually imposed by the resolution void, but not resolution, which is amendable-Power of school commissioners to acquire immoveable property by emphyteutic lease-Art. 50 C.C.P.-School Code, articles 286, 9287, 244, 248, 508-Quebec
Municipal Commission Act, R.S.Q. 1941, c. 207, as. 2, 34.1-An action was brought by some ratepayers against the school commissioners of a municipality, under the provisions of article 50 of the Code of Civil Procedure, asking that a certain resolution passed by the commissioners, ordering the building of a school house, be declared illegal, irregular and null and that a contract entered into between
22144-4
SCHOOL LAW-Continued the commissioners and a contractor to do that work be set aside.
Held that the superintending and reforming power, order and control given to the Superior Court by article 50 of the Code of Civil Procedure are different from the power attributed to an appellate court; and 'the Superior Court cannot substitute its own opinion to the opinion of the persons or bodies mentioned in that article as to the decisions taken by the latter. In order to enable the Superior Court to exercise its power under that article, it is not sufficient that these persons or bodies have failed to perform some duties imposed upon them by law, but it is necessary that their conduct will give rise to an illegality or a denial of justice which would be equivalent to fraud.
Otherwise, as in the present case, the proper remedy of a ratepayer, if the school commissioners refuse or neglect to perform any of the duties imposed upon them by the School Code, is by way of an appeal to the Circuit Court or the Magistrate's Court under section 508 of the code. also, that school commissioners, when passing a resolution authorizing a contract of work for construction or improvement, have the right, with the approval of the Quebec Municipal Commission, to provide for the appropriation of the moneys required for paying the whole costs of the work by way of a loan secured by promissory notes, notwithstanding provisions of article 248 of the School Code, such section merely limiting the borrowing power of the commissioners to "temporary loans" by means of notes pending the collection of school taxes. The resolution of the school commissioners stipulated that, in order to provide for the payment of the notes and interest as they become due, a special annual tax will be imposed and levied on all taxable properties of the municipality. The respondents contended that no tax had been imposed by the resolution as the future sense had been employed in the wording of the resolution and that, consequently, when the contract had been awarded, and the loan effected, no tax was then in existence.
Held that the contract of work was illegally awarded by the school commissioners, as the terms of the resolution were not sufficient to create a tax. The exigencies of the law go further: it is necessary that a tax, which will be levied in the future, should actually be imposed by the *resolution, there being a radical difference between the imposition of a tax and its levy. The awarding of the contract was in contravention of the non-ambiguous provisions of articles 237 and 244 of the SCHOOL LAW-Concluded
School Code and the formalities therein prescribed must be strictly followed. But the contract alone is void, and the resolution itself is not illegal, as an incomplete resolution can always be amended.
Goulet v. La Corporation de la Paroisse de St-Gervais (Q.R. 50 K.B. 513)
approved. Held, further, that school commissioners have the right, under article
236 of the School Code, to acquire immoveable property by means of an emphyteutic lease.
Judgment of the Court of King's Bench (Q.R. [19431 K.B. 504)
varied.
SHIPPING- Damages- Crown against the Crown for damage to vesse- Assessment of damages-Basis for assessment-Amount awarded-Disallowance of interest-Petition of Right on behalf of and for benefit of underwriters-Allowance for loss of profits during period for repairs.]-In a -previous judgment, [19401
S.C.R. 153, this Court held that the Crown was liable in damages to the suppliant by reason of the suppliant's vessel having struck a submerged portion of a jetty;
but (by a majority) refused to allow the amount claimed, which was for a total loss of the vessel and its equipment, which occurred; the Court sustaining a finding at trial that after the collision the vessel's officers were negligent in not discovering sooner than they did the extent of the damage and in continuing the voyage; and being of opinion that the total loss would have been avoided had an attempt been made to return the vessel to the wharf or to beach it; and remitted the case for determination of the damages on the basis of the suppliant being entitled to all such damages as were directly and naturally attributable to the collision.
present appeal was by the suppliant from the subsequent determination of the dam- Held: The trial Judge had, in assessing the damages in respect of the vessel itself, correctly appreciated and properly applied the directions of this
Court; and had also properly disallowed interest on the amount awarded: the
Crown is not liable to pay interest unless the statute or contract provides for it; but the amount awarded should be increased by allowance for loss of certain supplies; and also by allowance for loss of profits during the period which would have been required for repairs: the fact that the suppliant's petition of right was submitted on behalf of and for the benefit of underwriters (subrogated to the suppliant's rights) did not justify disallow- SHIPPING-Continued ance for such loss of profits; the underwriters stood in the place of the suppliant and were "entitled to succeed to all the ways and means by which the person indemnified might have protected himself against or reimbursed himself for the loss" (Simpson v. Thomson, 3 App.
Cas. 279, at 284).
Co. v. 2.-Fire on board ship - Damage to cargo - Metal concentrates - Whether dangerous cargo
Bill of lading struction - Whether Water Carriage of Goods Act, 1936, incorporated in the contract of carriage-Warranty as to seaworthiness- Exemption from liability- Due diligence to make ship seaworthy- Actual fault or privity-The Water Carriage of Goods Act, 1986, (Dom.) 1 Edw. VII, c. 49-Imperial Shipping Act, 1894, 67-58 Vict., c. 60, s. 602.1-The owners of the Anglo Indian having agreed by a time charter to let the ship to a transport company, the latter entered into a charter party, on May 11th, 1938, with the owners of about 1,700 tons of mineral concentrates for their transport in bags under deck from the city of Quebec to Tacoma, in the state of Washington.
On the 18th of the same month, at Montreal, the transport company accepted a consignment from the appellant company of 2,402 packages of glassware, owned by it, for carriage and delivery to itself at Vancouver, via the Panama canal. After the ship had passed through the canal, certain concentrates commenced to heat, the ship caught fire and she put in to a harbour on the coast of California where the fire was extinguished.
It is admitted that the appellant's goods became a total loss, amounting to $4,235.13. appellant company then brought an action against the ship and her owners to recover these damages.
The bill of lading contained a number of conditions, all of which were agreed to by the appellant. Clause 24 of those conditions stated that the bill when issued from a port in Canada was subject to all the terms and conditions of, and all the exemptions from liability contained in, The Water Carriage of Goods Act of Canada, clause 25 referred to bills of lading from a port in the United States of America and clause 26 stipulated that, subject to clauses 24 and 25, the bill of lading, no matter where issued, shall be construed and governed by English law. Also, at the foot of the face of the bill, appeared in heavy black type the following: "This bill of lading is subject to provisions of The Canadian Water Carriage of Goods Act, 1986." The SmPPING-Continued trial judge held that this Act was not in force in May, 1938, but that, in view of the foot clause, the provisions of the Act and of the Rules scheduled thereto were incorporated into and formed part of the bill of lading; he also held that the concentrates were a dangerous cargo which rendered the ship unseaworthy and that the loss was directly attributable to such unseaworthiness.
But the trial judge, holding that the owners of the ship and the charterer, the transport company, had exercised due diligence to make her seaworthy, dismissed the appellant's action.
The appellant company contended that, the loss being attributable to the unseaworthiness of the ship, the respondents were responsible in damages to it, and it also challenged the finding of due diligence; while the respondents contended that, even if this Court should find that due diligence had not been exercised, the appellant company must fail.
that the finding of the trial judge, that the concentrates were a dangerous cargo which rendered the ship unseaworthy and that the loss of the appellant's goods was directly attributable to such unseaworthiness, should be upheld; but Held, affirming the judgment of the Exchequer
Court of Canada,
Admiralty
District, Taschereau and Rand JJ. (dissenting)
, that the respondents have shown that before and at the beginning of the voyage they exercised due diligence to make the ship seaworthy; and that, therefore, notwithstanding the unseaworthiness of the ship the respondents were not liable for loss of the cargo.
Held that the
Canadian Water Carriage of Goods Act,
1936 was in force at the time of shipment, i.e., in May, 1938. Per the Chief Justice and Hudson and Kerwin JJ.:-Therefore, it is unnecessary to express any opinion as to whether, in view of the foot clause of the bill of lading, the provisions of that Act should be considered as having been incorporated into and forming part of the bill. Per Taschereau and Rand
JJ.:-Whether the foot clause is looked upon as a conformity with the requirement of section 4 or a contractual reference, the effect of it is to incorporate the rules as part of the Act and to carry the intention of overriding any contrary provisions of the bill of lading.
As to the contention of the respondents that, even if the finding that due diligence has been used by them to make the ship seaworthy was wrong, they were still entitled to succeed, such contention being based on clause 2 (b) of article IV of the Rules which provides that "neither the carrier nor the ship shall be responsible for losi or damage arising or result- SHIPPING-Concluded ing from * * * (b) fire, unless caused by the actual fault or privity of the carrier", and the respondents relying on the decision of the House of Lords in Louis Dreyfus and Company v. Tempus Shipping Company ([19311 A.C. 726), where effect was given to the provisions of section 502 of this Imperial Merchant Shipping Act, 1894. Held, per The Chief Justice and Kerwin and Hudson JJ., that the respondents' contention is not well founded.-The law of Canada must be applied in this case, notwithstanding clause 26 of the bill of lading. Considering the purpose of the Water Carriage of Goods Act, if the direct cause of a loss is the unseaworthiness of the ship, even though fire was the proximate cause, the loss is not one arising or resulting from fire within the meaning of clause 2 (b) of article IV, even though it is proven that the unseaworthiness caused without the actual fault or privity of the carrier: that still leaves the clause free to operate where a loss is the direct result of fire only.-Dreyfus case (supra) not applicable. Per Taschereau and Rand JJ.:-Section 502 of the Imperial Merchant Shipping Act 1894, does not apply, as such provision, so far as it was in force in Canada, was repealed by the 13th schedule of the Canada Shipping Act, 1984.-Notwithstanding the express stipulation in the bill of lading that the contract was to be governed by English law, whatever effect might be given to it in a court outside of Canada, the Canadian courts are bound by the provisions of the Water Carriage of Goods Act, 1936, and section 502, if relied on as having been incorporated in the contract under that stipulation, clashes with section 8 of article III of the Rules and must in this court be deemed to be excluded from the bill of lading.-Moreover, the respondents have not brought themselves within the exception of section 2 (b) of article IV of the Rules. SIDEWALK
Icy condition - Injury to pedestrian-Action against owner of building. ..........................
SPECIAL WAR REVENUE ACT, R.S.C., 1927, c. 179..................
STATUTES-Construction -Attempt export gold without licence-Gold Export Act (Dom. 1932, c. 33) and regulations thereunder - Foreign Exchange Control Order (P.C. 7378, made under War Meas- STATUTES-Continued ures Act, R.S.C. 19e7, c. 206)-Conviction of attempt to export gold, and fine paid- Proceedings for declaration of forfeiture of the gold-Forfeiture provided for in
Foreign Exchange Control Order but not in Gold Export Act-Right to forfeiture
-Applicability of provisions of Foreign
Exchange Control Order-Applicability of maxim Generalia Specialibus non Derogant.}-Respondent was convicted, on a charge laid under the Foreign Exchange
Control Order, P.C. 7378, made on December 1940, under and by virtue of the
War Measures Act (R.S.C. 1927, c. 206), of having, on December 10, 1942, attempted to export fine gold from Canada without a licence from the Foreign Exchange Control Board, and was fined and paid the fine.
An information was then laid against him claiming a declaration that the gold be forfeited to the Crown.
Thorson J., [19431 Ex. C.R. 193, dismissed the information, holding that, since the prohibition of the export of gold of the kind in question is dealt with by
The Gold Export Act, Dom., 1932, c. 33, and regulations made under it, the principle underlying the maxim generalia specialibus non derogant should be applied; that the general term "property"
as defined in the Foreign Exchange Control Order should be construed as "silently excluding" gold of the kind in question; and therefore the provisions of that
Order had no application in the case;
and, there being no provision for forfeiture of gold in the governing special
Act (The Gold Export Act)
and the regulations made under it, there was no legal authority for ordering the forfeiture.
The Crown appealed.
The Foreign Exchange Control Order provides (inter alia)
that "in the event of any conflict between this Order and any law in force in any part of Canada the provisions of this
Order shall prevail"; that no person shall, without a licence from the Board, export any property from Canada; that "property" means and includes "every kind of property, real and personal, movable and immovable * * *"; that every person shall be guilty of an offence who attempts to commit an offence under the Order;
and for prosecution; and for forfeiture
(in addition to any other penalty imposed) of any property which any person attempts to export contrary to the Order.
The Gold Export Act gives power to the
Governor in Council to prohibit export of gold, whether in the form of coin or bullion, "except in such cases as may be deemed desirable by the Minister of
Finance and under licences to be issued by him: Provided that no such licence shall be issued to other than a Canadian
STATUTES-Continued chartered bank or the Bank of Canada"; and to make regulations; and the Act provides for prosecution and for penalty (which does not include forfeiture of the gold) against any person who, whenever a regulation made under the Act is in force, without a licence from the Minister exports or attempts to export gold. A prohibitory regulation was made in 1932, worded like and in conformity with the power given, which regulation was continued in force by orders in council, the last of which, so far as concerned the present appeal, was P.C. 9131, dated November 26, 1941, whereby the regulations of 1932 were continued until December 1942. Held (Rand J. dissenting): The Crown's appeal should be allowed and it should be declared that the fine gold in question be forfeited. Per The Chief Justice, and Kerwin and Taschereau JJ.:
Even assuming there is a conflict of legislation, the reason of the maxim generalia specialibus non derogant does not apply: the powers conferred respectively by The Gold Export Act and by the War Measures Act (under which the Foreign Exchange Control Order was made) were for different purposes; also The Gold Export Act and the regulations under it affect every one (including respondent, even though he could not have secured a licence thereunder, since a licence was to be issued only to a bank); further, the Foreign Exchange Control Order states explicitly that, in the event of conflict, its provisions are to prevail. In truth there is no conflict; the provisions can stand together; there is no reason why a licence should not be required under the Foreign Exchange Control Order as well as under The Gold Export Act and its regulations where that Act and its regulations are applicable; nor is the conclusion warranted that it was not the intention to embrace within the prohibition and the subjection to forfeiture of the Order an individual such as respondent who, ex hypothesi. would not be able to secure a licence. Per Hudson J.: There is no repugnancy between the enactments in question. Two measures were passed for different purposes and were to be enforced through different organs
Government. There could not properly be implied, from the existence of The Gold Export Act, an intention to exclude fine gold from the comprehensive terms of the Foreign Exchange Control Order. Per Rand J. (dissenting):
The argument for appellant proceeds on the assumption that the export of gold is on the basis of leave from both the Minister of Finance (under The Gold Export Act) and the STATUTES-Concluded
Foreign Exchange Control Board (under the Foreign Exchange Control Order), as distinguished from leave only from the
Board for other property; but, in relation to respondent, that assumption is false.
What The Gold Export Act does is to enable the Governor-in-Council to prohibit absolutely the exportation of gold, subject only to exportation by a bank acting under a licence from the Minister;
but to no one else is that licence available. It is not, then, a situation of export subject to two licences that can stand together.
The Foreign Exchange Control
Order necessarily contemplates an exportation which, under existing law, is possible; and there cannot be attributed to that Order the issue of a licence to respondent by the Board for an exportation which rests under an absolute prohibition by the terms of another existing law; such a licence would be wholly futile and abortive, and there should not be ascribed to the scope of the Order a subject-matter that would bring about such a result in its application. S. 24 (1)
of the Order (prohibiting export without licence) should be held not applicable to a case in which a licence from the Board could never, in any proper sense, have effect, in which, in fact, the issue of such a licence would be ultra vires of the
Board.
The absence of a licence from the Board is an essential ingredient of an offence under the Order and that presupposes a power to issue it. The Order's entire - prohibition is conditioned licence.
The penalty under The Gold
Export Act cannot be considered as supplemented, or the offence thereunder duplicated, by an Order, made under other powers and with a different object, when its language is inappropriate and its assumption inapplicable.
STAY OF PROCEEDINGS-Motion for
-Intended, appeal to Privy Council. 266
See APEAL 5.
SUBROGATION. .................
See EQurry.
SUCCESSION DUTIES-Quebec Succession Duties Act-Provision that no transmission of property of deceased be valid unless 'and until duties paid-Statutory suspensive condition, fulfilment of which has retroactive effect - Distinction between transmission of ownership and legal possession or seizin-Sale by heir without certificate as to payment of dutice--Action by buyer for resolution of sale on ground of absolute nullity--Subsequent payment of duties or certificate that no
EX
SUCCESSION DUTIES-Continued duties exigible-Validation of contract- Certificate tendered by seller to buyer, before plea, with costs then incurred- Contract held valid and action dismissed Succession Duties Act, R.S.Q., 1941, c. 80, s. 15, ss. 7a-Articles 401, 607, 891, 918, 1065, 1488 C.C.1-Subsection 7a of section 15 of the Quebec Succession Duties Act, R.S.Q., 1941, c. 80, provides that "no transmission of any property belonging to any deceased person at the time of his death shall take place, nor -shall any transfer thereof be valid, nor shall any title therein or thereto vest in any person, unless and until the duties exigible * * * have been paid in full (tant que les droits exigibles * * * n'ont pas 6t6 complitement pay6s * * *)". These provisions must be construed in the sense that the payment of the succession duties and the issuing of the required certificate as to such payment constitute a statutory suspensive dition, 'the fulfillment of which has a retroactive effect and renders valid deeds entered into by the heirs or legatees at a time when the exercise of their right had been so suspended.
Consequently, must be dismissed an action in nullity brought by a buyer against a vendor, on the ground that the latter had not paid the duties exigible upon the thing sold which formed part of the estate of a deceased or that a certificate to the effect that no such duties were exigible has not been delivered by the collector to the vendor, in as much as, before the filing of the plea, the vendor had delivered to the buyer a certificate of the collector showitg that there were no duties exigible.- The validity of the contract between the parties depends upon the law of sale, and the character of the sale in this case presents the ordinary case of an obligation, the performance of some part of it being delayed: the seller was thus entitled until judgment to remove the default. This the appellant has done before the pleadings were closed and, having also tendered the amount of costs then incurred, has discharged her obligation under the contract.
Gagnon v. La Coopdrative Fidrge de Qu6bec, (Q.R. 43 K.B. 57) approved. Per The Chief Justice and Kerwin, Hudson and Taschereau JJ.- The lawful or testamentary heir inherits of right at the death of the de cujus; but it does not follow necessarily that he will be entitled to take immediate possession of the estate, or, in other words, that he will have the seizin. In principle, the ownership of the thing is transferred simultaneously with the seizin; but the simultaneity of the transmission of both should not lead to confuse these two en- SUCCESSION DUTIES-Continued tirely distinct operations of the law, the former being related to the ownership of the thing while the latter affects only the legal possession of it; one may claim the ownership of a thing although admitting that its legal possession was subject to certain formalities, while inversely one may have the seizin of a thing without yet having the ownership of it.-When the seizen is thus suspended through some provisions of the law, it has a retroactive effect to the date of the death of the de cujus, whenever the condition imposed has been fulfilled or the bar to its operation has been removed.-The prohibition contained in subsection 7a that "no transmission of any property * * * shall take place * * * " does not come into conflict with the recognized principle of civil law that an heir inherits operatione legis of the estate of the deceased: the transmission of the property, from the moment of the death of the de cujus, is not subordinated to the payment of the succession duties:
the condition imposed by the statute merely suspends the transmission of the property, or, in other words, the legal possession of that property, i.e., the seizin.
It cannot be presumed that the legislator, by that subsection, intended to enact that, as long as the duties would not have been paid, the estate would not have any owner, with the result that the economy of the law would be destroyed and serious legal situations would thus be created: the sole purpose of the legislation is to safeguard the payment of the duties to the Crown.-The contract between the parties is not tainted with absolute nullity, and the appellant has validated the transfer made to the respondent. The only recourse of the respondent would have been by way of an action in resolution of the contract or for damages, if the appellant had failed to deliver to the respondent a valid title to the thing sold.
Per Rand J.-The language of subsection 7a cannot be construed as an absolute suspension of the transmission and as a prohibition of any contract which purports to deal with the transfer of property of a decedent before the certificate mentioned has been obtained.
The subsection does not forbid the execution and delivery of an instrument of transfer, much less does it prohibit a contract the effect of which could not in any manner defeat its purpose.
What the subsection does is to suspend final validity of a transfer so long as the conditions mentioned are not met: it contemplates the accomplishment or execution of assumed rights upon the payment of the duties. To declare that no transfer shall be valid while duties are
SUCCESSION DUTIES-Concluded unpaid is to assume the possible existence of acts or relations which, upon the payment, become eo instanti of full legal efficacy.
Interpreted in conjunction with the implied rights in the heirs or legatees, it becomes in effect a statutory suspensive condition.
It negatives any implication that until the duties are paid no binding engagement can be entered into. So construed, the necessities of the practical handling of estates are accommodated and the administrative sanctions of the statute left unimpaired. Judgment of the Court of King's Bench (Q.R. 1943 K.B. 314) reversed.
...........................
TAX-Resolution merely stipulating that a tax "will be" imposed and levied- When wording sufficient to create it- Tax must be actually imposed by the resolution..................... See SCHooL
TAX SALE.
..................
TAXATION-(municipal) - Crown's interests-Tax levied against owner of land leased to Crown-Buildings erected on such land by the Crown-Valuation of land including value of buildings as improvements-Whether property "vested in or held by" the Crown has been taxed- Whether tax has been levied an Crown's interests-Vancouver Incorporation Act, B.C. Statute, 1921 (2nd session), c. 55, ss. 2 (9) (10) (11), 37, 39, 40, 45, 46, 48, 49, 55, 56, 67, 58, 59, 60, 63, 67, 69, 73, 823- Land Registry Act, R.S.B.C., 1936, c. 140, s. 143-B.N.A. Act. s. 125.1-The respondent, The Canadian Northern Pacific Railway Company, owner of a large tract of land within the city of Vancouver, leased a vacant portion of it, on the 1st of January, 1923, to His Majesty represented by the Minister of Agriculture for the Dominion and the Minister of Agriculture of British Columbia jointly; and subsequently, as required by the lease, His Majesty, represented as above, erected thereon a building known as the "Vancouver Fumigation Station Building".
On the 1st of May, 1940, His Majesty, represented by the Minister of Munitions and Supply of the Dominion, leased from the respondent company another vacant portion of the same land, and subsequently a building known as the "Boeing Aircraft Building" was erected thereon for and at the expense of the Crown pursuant to a contract made between the Crown and the Boeing Aircraft of Canada Limited.
An action TAXATION-Continued brought by the Dominion and Province for a declaration that these buildings were not subject to taxation and by the railway company for a declaration that it was not liable to be assessed or taxed in respect of these buildings and was entitled to recover back taxes already paid by it thereon. The procedure laid down by the Vancouver Incorporation Act,
1921, (B.C.-12 Geo. V, c. 55) for the taxation of land is outlined in the judgments now reported.
Briefly, it is enacted that the City Treasurer, or the
Collector of Taxes, "shall make out a tax roll" in which there are set down, inter alia, "the name * * * of the assessed owner", "the value at which the land and improvements * * * are assessed" and
"the total amount of taxes imposed for the current year" (s. 59); it is also enacted that "all rates, taxes or assessments
* * * shall be due and payable * * * by the owner of the property upon which they are imposed * *
(sec.
63); and it is further enacted (s. 46)
that "all land, real property, improvements thereon * * * shall be liable for taxation, subject to the following exemptions: (1) All property vested in or held by. His Majesty or for the public use of the Province * * * and either unoccupied or occupied by some person in an official capacity".
On behalf of the respondents, it was contended that the buildings were the property of the Dominion and Provincial Governments and as such were non-assessable and non-taxable: their contention being that these buildings had been assessed as improvements and that the taxes had been. unlawfully levied and wrongfully collected in respect of them.
The trial judge maintained the respondent's action, except that the railway company's claim for repayment was restricted to one year's taxes which had been paid under protest, this decision. being based on the Crown's ownership of the two buildings and also on the ground that the buildings were
"held by" His Majesty within the meaning of section of the Vancouver charter. The Court of Appeal, Sloan J.A.
dissenting, affirmed the judgment of the trial judge.
Held, reversing the judgment appealed from
(58 B.C.R. 371),
Hudson J. (dissenting)
, that the respondents were not entitled to the relief claimed.
The provincial statute does not operate by way of attempting to impose any liability on the Crown in respect of any interest under the leases, and there has been no attempt by the city appellant to impose such liability on the Crown.
The respondent railway company, as registered owner of the land,
TAXATION-Continued is liable to taxation in respect of its value as assessed in conformity with the statute. The provisions of the statute do not contemplate the assessment, as a separate subject, of improvements in an assessed parcel of land. There has been a separate valuation of the buildings as improvements; but the value of the buildings has been taken into account only for the purpose of valuing the parcel land and calculating the tax to be paid in respect of it, and also in order to permit of the operation of other sections of the statute.
The Crown's exemption, provided by section 125 B.N.A. Act or by section 46
(1) of the Vancouver charter, remained unimpaired.
Per The Chief Justice and Rinfret J.-The "assessed owner" is liable for taxation, and he is liable in virtue of his ownership; the "assessed owner", in light of the provisions of the statute, must be construed as meaning the registered owner in fee. The holder of a lease, if registered, and the owner of a structure erected on a land of which he is not the owner, cannot be registered otherwise than as owner of a charge.
The property in this case has been valued in precisely the same way as it would have been valued if the lessees had been subjects, and not the Crown,. Per Davis J.-The parcel of land is wholly owned by the respondent railway company and the only levy of rates has been made against it on an assessment of the land and buildings thereon made under the valid provisions of statute.
No attempt has been made by the appellant city to assess or levy rates against the rights or interest of the Crown or to tax the Crown in respect of the buildings.
Per Kerwin J.-The proper construction of the provisions of the statute is that what is rateable or taxable is "land" as defined in the interpretation section.
Such taxation is founded upon the appearance in the assessment roll of such rateable land, together with the name of the registered owner. The rateable land includes buildings erected on it, but the land and improvements are assessable and taxable as a unit. levy under the Act is not only a tax on "land", but is also a tax against the owner. As to the former, the statute must be read as not applying to the Crown and the operation of the statute imposing the tax is limited to the respondent railway's interest.
As to the latter, there is no constitutional objection to taxing the respondent company on the basis of the total value of the land and improvements thereon, even though the improvements are the property of, or are held by, the Crown and are themselves not liable TAXATION-Continued to taxation.
Per Taschereau and Rand
JJ.-The general scheme of taxation provided by the statute is one of imposing, upon the interest of the private owner of the freehold estate or the private person in possession of Crown land, a tax based on the value of the totality of interest in the land, including improvements, thus including the value of the leasehold interest of property rented to private individuals or to the Crown. Assuming that the exemption in section 46 includes a leasehold interest of the Crown, that does not affect the fact that "rateable parcel of land" includes land so leased, or that the valuation of that parcel is without exclusion of the separate or exempt leasehold interest: the latter, possessed by the Crown, is neither taxed itself nor made the subject-matter of a tax lien.
Its value is included in that of the owner's interest as if the owner were in occupation, but that circumstance is unobjectionable and not in conflict with section 125 B.N.A. Act. Moreover, the inclusion, in the content of value, of an element created or added to the land by the Crown, does not constitute an indirect taxation of the Crown, contrary to section 125 B.N.A. Act. Per Hudson J.
(dissenting).-As to the Boeing Building:
The lease was of vacant land, the building was erected at the sole expense of the
Crown and was occupied and used exclusively for Crown purposes, and it was the intention of the parties to the lease that the building should be removed at the end of the term. Thus the Crown had the sole 'beneficial use and ownership of the building and the latter never became the property of the owner of the land. Therefore the tax levy based upon the assessed value of the building is a tax imposed on property "belonging to"
the Crown within the meaning of s.
B.N.A. Act and "held by" the Crown under s. 46 (1) of the Vancouver charter.
As to the Fumigation Station building:
The lease differs in some material respects from that of the Boeing property.
It contained a covenant by the Crown to erect the building, but there was no provision as to its disposition at the termination of the lease. The Crown had no more than a right to exclusive possession during the term; but there was sufficient to justify a finding that the property was "held by" the Crown within the meaning of section 46. The legislature has not chosen to make provision for distinguishing the interest of the Crown when a tenant and that of a registered owner of the freehold; nor has the appellant city attempted to make such distinction in the assessment and taxation
TAXATION-Concluded of the land. When the tangible property is rightfully in the possession of the Crown and "held by" the Crown within the meaning of the statute, then such property is exempt as long as the term and possession continue. What remains, that is the intangible property, be it either legal or equitable, which belongs to the owner, may be taxed but, if it is the intention of the legislature to impose such tax it should provide for the segregation of such interest and the imposition of the tax by a positive enactment. Car AL...................... TIMBER LICENSES. ........... TRAMWAYS - Collision between street car and truck - Damages - Injured passenger. ...
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See 8.
TREATY OF VERSAILLES-Treaties of Peace Act (Dom. 1919)-Treaty of Peace (Germany) Order, 190. .......... TRUST-Mines and Minerals-Prospector given mission under agreement, with knowledge disclosed to him as to mineral area - Subsequent staking by him of claims in same area for benefit of himself and others-Whether fiduciary relationship between him and other parties to first agreement-Whether latter entitled to share in prospector's interests acquired through said subsequent staking structive trust.1-Plaintiffs and defendant were prospectors.
Plaintiffs had in come across indications of asbestos in a place north of Bird river in Manitoba, and had staked and recorded claims, which lapsed; and had later at times prospected in the area. In 1937 plaintiffs disclosed the area to defendant and an agreement was made whereby defendant undertook "to stake and record a certain group of Asbestos Mineral Claims in the Bird River area of Manitoba" for the consideration of a one-fourth interest therein; plaintiffs were to pay the cost of recording and, for that and for "imparting the special knowledge in directing [defendant] to the geographical location for these staking operations", plaintiffs were to hold a three-fourths interest in the claims so staked. As found by this Court on the evidence, though the presence of asbestos was emphasized, any other discovery was contemplated; the parties knew that the district generally mineralized and that any staking would TRUST-Continued embrace all possibilities.
Plaintiffs furnished defendant with a small sketch and description of the location and directed where he could find a cache of mining tools.
Defendant went to the district and on his return reported that he had staked four claims but that there was no asbestos and it was not worth while to record them; and consequently plaintiffs did nothing further.
At a subsequent time defendant communicated with other parties regarding what he though were good prospects in said district and recommended them for further examination;
and in the result, under agreements, defendant made visits to the area and staked claims, which were recorded, and which ultimately became subjects of options, defendant being entitled to an interest in what might be realized for the claims.
Against this interest of defendant plaintiffs asserted a right. Held: Plaintiffs had bargained for defendant's mature judgment and for that not only on the possibility of asbestos; the expression in the agreement "asbestos mineral claims"
was descriptive of what had been originally staked (there was no such thing in the mining law as an "asbestos mineral a claim staked and recorded covered all minerals except a few specifically reserved by statute); plaintiffs desired an expert opinion on those claims in the totality of their possibilities. That was the measure of defendant's duty as the fiduciary of plaintiffs in acting upon their disclosure of their special knowledge of mineral indications; defendant undertook to apply his experience to everything found in the area of the claims and, on the strength of the opinion so formed, to stake, if that was called for, and to advise plaintiffs of that opinion.
Defendant owed to plaintiffs the utmost good faith in his examination of the structure, formation, and other evidence of the land to which he was directed, and a duty to give them an unreserved account of what he had found and what, in his judgment, the mineral prospect was.
He failed to observe that duty. Therefore, as to any interest held by defendant, acquired through the conversion and realization of property which he obtained through information gained in the course of the service he undertook for plaintiffs, he held it as a constructive trustee, and was liable to account to plaintiffs for their share of monies realized.
(It would have been proper to take his outlays into account, had there been evidence of any.) Plaintiffs' share of that interest and monies was three-fourths (whether they were entitled to that only-as the
Court was inclined to think-or to all,
TRUST-Concluded was not in question in this Court). (This Court directed amendment of the judgment for plaintiffs at trial, so as to exclude from its effect-certain properties which this Court held were not within the area in respect of which plaintiffs' rights applied.)
Judgment of the Court of Appeal for Manitoba, 51 Man. R. 129, reversed. McLEOD v. 111 2.-Will - Construction - Bequest of money "in full confidence" that legatee "will dispose of the same in accordance with the wishes which I have expressed to her"-Whether trust established. 253 See WILL 2.
WILL-Validity - Testamentary capacity -Onus of proof.]-Held, that a document propounded for probate as a deceased's last will should be declared not to be her last will, because it did not satisfactorily appear that it was executed by a competent textatrix.
(Judgment of the Supreme Court of New Brunswick, Appeal Division,
M.P.R. 147, which, by a majority, had affirmed judgment in the Probate Court admitting the document to probate, reversed.)
Per the Chief Justice and Kerwin, Taschereau and Rand JJ.: Facts in evidence cast on the whole case a doubt of the competency of the testatrix as required the Court to say that the onus of showing the document to be the will of a "free and capable" person had not been met.-There may be testamentary incapacity accompanied by a deceptive ability to answer questions of ordinary and usual matters: that is, the mind may be incapable of carrying apprehension beyond a limited range of familiar and suggested topics. A "disposing mind and memory" is one able to comprehend, of its own initiative and volition, the essential elements of willmaking, property, objects, just claims to consideration, revocation of existing dispositions, and the like.
Merely to be able to make rational responses is not enough, nor to repeat a tutored formula of simple terms. There must be a power to hold the essential field of the mind in some degree of appreciation as a whole, and this was not present here. Per Hudson J.:
Once testamentary capacity is called in question, the onus lies on those propounding a will to affirm positively the testamentary capacity (Robins v. National Trust Co., [1927] A.C. 515, at 519). The trial Judge's decision was on the assumption that the onus was on those attacking the will, and in this (on the issue of testamentary capacity) he was mistaken.
In view of that mistake and of the doubts he expressed in reaching his WILL-Continued conclusion, the rule, suggested from decisions in this Court, against disturbing concurrent findings of fact in the courts below did not apply, and it was the duty of this Court to review the evidence and come to its own conclusion, subject, of course, to the normal weight to be given to the trial Judg'e findings and to the opinions of the Judges in appeal.
On the evidence, the deceased's mental capacity at relevant times was open to some doubt, and the rule is that wherever a will is prepared and executed under circumstances which raise the suspicion of the court, it ought not to be pronounced for unless the party propounding it adduces evidence which removes such suspicion and satisfies the court that the testator knew and approved the contents of the instrument. (Hudson J. expressed
"some hesitation" in his conclusion against validity of the will.
Also, dealing with the issue of undue influence, he pointed out that the onus was on those asserting undue influence, and held that the findings below that undue influence had not been proved should not be disturbed.)
2.-Construction - Trust - Bequest money "in full confidence" that legatee
"will dispose of the same in accordance with the wishes which I have expressed to her" - Whether trust established.]- The testatrix died in January, 1937, having made her will and four codicils thereto. By the fourth codicil she bequeathed the amount of money which she might have on deposit in a named bank at her death to her daughter S. "in full confidence that she will dispose of the same in accordance with the wishes which I have expressed to her".
S. received said amount from the executor of the testatrix
WILL-Concluded and treated it as her own, and died intestate in June, 1940, without having disclosed any "wishes" of the testatrix mentioned in the codicil.
An action was brought on behalf of the residuary legatees of the testatrix against the administrator of the estate of S., claiming that the bequest to S. was a trust which S. failed to carry out and, in the absence of evidence showing the nature of the trust, the money should go to the residuary legatees.
The action failed. The words of the fourth codicil, taken by themselves or read with other provisions of the will and codicils, did not establish a trust; nor did the evidence establish that a trust was created. (Rules as to precatory trusts and secret trusts discussed.)
(Judgment of the Supreme Court of Nova Scotia in banco, [19441 2 D.L.R. 4, reversed.)
3.-International law wife-Spouses domiciled and married in the United States of America-Spouses returning to province of Quebec where domicile reacquired-Subsequent death of husband-Statute of State of New Hampshire as to "The rights of surviving husband or wife"--Action by widow under that statute-Whether Quebec testamentary law should be applied. ....... WORDS AND PHRASES- "Insured" ..................
2.-"Pleasure use" ............
3.-"Vested in or held by" ......
Cases cited
- O.R. 806 O.R. 806
- City of Toronto v. Famous Players' Canadian Corp. Ltd. scr-1936-141
- A.C. 79 A.C. 79
- Robins v. National Trust Co. A.C. 515 519
Statutes and regulations cited
-
- ss. 86
- 2
- s. 70
- section 53 of the Supreme Court Act
- s. 1026
- s. 8
- s. 9
- sections 2
- 9
- ss. 2
- ss. 8
- section 53
- s. 53
- Section 40 of the Supreme Court Act
- s. 242
- s. 86.1
- section 86
- section 508
- s. 602.1
- section 502
- section 8
- section 2
-
- s. 1025
- s. 1013
- s. 405
- section 1025
- s. 148
- s. 125
- sections 726
- 727
- 754
- 755
- section 125
-
- s. 15
- s. 143
- s. 125.1
- s. 59
- s. 46
- section 46
-
Unresolved citations
- Section 710
- section 48
- section 48 of The Highway Traffic Act
- s. 85
- s. 3
- s. 40
- s. 38
- paragraphs (b)
- section 53 of the Motor Vehicles Act
- sections 754
- 755 of the Municipal Code
- s. 242 of the Railway Act
- Section 502 of the Imperial Merchant Shipping Act
- section 15 of the Quebec Succession Duties Act