Majority
The present litigation, besides concerning the great number of members of the two labour associations in this case, is of much interest to all other unions which have been incorporated under the same statutory law; and the decision in this case may affect, in a general way for the whole province of Quebec, -the status of all labour unions and similar organizations.
The rights in future of the parties in this case are also affected by the judgment from which leave to appeal to this Court is sought by the appellant.
As already decided by this Court, the jurisdiction of the "highest court of final resort" in a province to grant special leave to appeal to this Court, under section 41 of the Supreme Court Act, is untrammelled, unlimited and free from any restrictions.
The proviso in that section, with its sub-classes (a) to (f) has no bearing as to the jurisdiction of the provincial courts and applies exclusively to the jurisdiction of the Supreme Court of Canada.
Canadian
Judgment of the Court
THE CHIEF JUSTICE.-Les intimbs sont des d6bardeurs risidant h Montreal et ils 6taient membres de l'Association appelante.
Le 17 mars 1939, ils furent expulsis de l'Association pour la raison qu'ils faisaient partie d'une autre association rivale de d6bardeurs dans le port de Montr6al, connue sous le nom de "L'Union Nationale Ind6pendante de 1'lle de Montr6al Incorpor6e".
11s poursuivirent alors l'Association appelante en recouvrement des dommages pour perte de salaire durant la saison de navigation de 1939.
(1) Q.R. [1945] K3. 353.
La Cour Supdrieure les d6bouta des fins de leur action; mais, sur appel A la Cour du Banc du Roi, (1) ils rdussirent faire infirmer ce jugement et h obtenir le maintien de leur r6clamation en dommages.
L'Association appelante demanda alors h la Cour du Banc du Roi la permission d'en appeler h la Cour Supr~me du Canada.
Cette demande lui fut refus6e, et elle fait maintenant une requ~te au m~me effet devant cette Cour. Cette requite expose que les jugements et les opinions, exprimbs respectivement par la Cour Sup6rieure et par la Cour du Banc du Roi, different h tel point que les questions en litige ne se trouvent pas d6finitivement rigl6es; que les droits futurs des parties sont en jeu; que les demandeurs eux-mimes, dans leur d6claration, riservent leur recours pour perte de salaire h 1'avenir; que 1'Association appelante est expos6e h des sommations et h des procks de la part des intim6s dans le but d'6tre r6int6gr6s dans l'Association; et que les questions soulev6es dans ce litige sont d'un int6r~t g6nbral et d'une importance telle qu'elles affectent mime l'ordre public.
Si 'on r6fbre au jugement de la Cour Sup6rieure, 'on constate qu'il d6cide que les deux associations dont il s'agit "itaient des Associations rivales de d6bardeurs dans le port de Montr6al".
D'autre part, la majorit6 de la Cour du Banc du Roi a 6t6 d'avis contraire, sauf la dissidence de l'honorable juge en chef de la province de Qu6bec. Or, comme le fait remarquer M. le juge Bissonnette, "les riglements de l'Association ne d6finissent pas ce qu'il faut entendre par "rivalit6"." Je vois par les notes des juges que les Associations comprennent des milliers de membres, et il y a done un int6r&t primordial A ce que la d~finition de ce qui constitue "rivalit6" soit d6finitivement 6tablie par la plus haute cour de justice.
Je vois m~me que l'interpr6tation donnie par les membres de la nouvelle Association comporte un tout autre sens que la signification attribu6e au mot "rivalit6" par les membres de la premiere Association.
Il se soulbve en plus la question de savoir si les statuts et riglements que l'Association entend appliquer aux intim6s ont force de loi, vu que les formalitis essentielles pour les mettre en vigueur n'auraient pas 6t6 remplies; et, en outre, que ces statuts et rkglements n'auraient pas 6t6 d6pos6s chez le Secr6taire de la province, en ob6issance A "A' Particle 2 du chapitre 255 des Statuts Refondus de 1925.
L'un des juges de la Cour du Banc du Roi 6met 6galement la pr6tention que la r6solution des intimis va audelh des pouvoirs conf6ris par le rbglement h 1'Association appelante.
De toute fagon, le r~sultat du litige d6pend de 1'interpritation que 1'on donne au mot "rivalit6" et au riglement dans lequel ce mot est employ6.
Il est donc juste de pr6sumer que ce litige int6resse h la fois le nombre consid6rable de d6bardeurs qui font partie des deux Unions, mais 6galement, d'une fagon g6nrale dans toute la province de Quebec, les diff6rentes
Unions qui ont 6t6 constitu6es en vertu du mime r6gime
16gal.
Cela me parait suffisant pour que permission d'appeler h cette Cour soit accord6e h l'Association appelante.
En autant que nous pouvons nous en rendre compte par les piices qui ont t6 soumises h cette Cour lors de l'argumentation de la requ~te pour permission d'appeler, cette cause affecte g6ndralement le status "des unions ouvribres" dans la province de Qu6bec.
La question de savoir si les intim6s appartiennent A une association rivale est sans doute une question de fait, mais celle de savoir ce qui constitue une association rivale, en 1'absence de la d6finition h laquelle nous avons r6f6rd, constitue une question de droit importante, (Quinn vs.
Guernsey (1) ).
L'expos6 que nous avons fait jusqu'ici d6montre, h notre avis, que les droits futurs des parties sont affect6s par les jugements qui ont t6 rendus, et le seront par celui que devra rendre cette Cour sur 1'appel qu'on lui demande la permission d'inscrire.
A proprement parler, la Cour du Banc du Roi, en disposant de la requite pour permission d'appeler qui lui a
6t6 soumise, ne s'est pas prononcie sur 1'existence des droits futurs, en donnant pour pr6texte que
Conune nous 1'avons d6jh fait remarquer a maintes reprises, en vertu de Particle la juridiction d'une cour d'appel dans une province pour permettre l'appel A la Cour Supr~me du Canada, est illimit6e et n'est restreinte Cj. par absolument aucune condition, sauf celles de Particle 36 et pourvu qu'il s'agisse d'un "jugement final".
Sans doute, ainsi que nous I'avons dit dans Forcier v. Coderre, (1),
Mais, si le fait que la validit6 d'une loi ou d'une ordonnance d'un corps 16gislatif, les droits, revenus ou toute somme d'argent payables A Sa Majest6, les rentes annualles ou autres matibres affectant les droits futurs des parties, un titre ou un intirit dans des propridtis immobilibres ou la validit6 d'un brevet peuvent 6tre consid6rds comme 6tant inclus parmi les raisons sp6ciales qui peuvent donner lieu A une permission d'appeler h la Cour Supreme du Canada, cette 6num6ration a, b, c, d, et f dans Particle 41 de la Loi de la Cour Supr6me ne concerne pas autrement les cours d'appel des provinces.
Cette 6numbration n'a pour but que d'exposer les cas oi la Cour Supr8me du Canada a juridiction pour permettre l'appel, lorsque les cours d'appel des provinces Pont refuse. En dehors des cas ainsi enumer6s, la Cour Supreme du Canada n'a pas juridiction pour permettre un appel, et mgme si elle 6tait d'avis qu'il s'agit d'une cause oi V'int6r~t en jeu est d'une importance suffisante pour le justifier, elle n'a pas le pouvoir de 1'accorder. Nous en avons eu un exemple tout r6cent dans la cause de Campbell Auto Finance Company Ltd. vs. Bonin (2) oii, quoique nous 6tions d'avis que permission d'appeler eut dfi 6tre accord6e, nous avons 6t6 forc6s de la refuser parce que la cause ne tombait pas dans 1'un des cas 6num6ris A Particle 41, et il s'ensuivait que nous n'avions pas juridiction pour permettre l'appel. Il en est autrement, nous 'le rip6tons, pour les cours d'appel provinciales dont les pouvoirs sont "untramelled, unlimited and free from any restriction" (Voir Canadian National Railway Co. vs. Croteau, (1); Fortier vs. Longchamp, (2) and Hand vs. Hampstead Land & Construc- "Ation Co. (3).)
Il est indiscutable que la cour d'appel des provinces a Ri-CJ le pouvoir de permettre un appel A la Cour Supr~me du
Canada, absolument dans n'importe quelle cause si I'int6r~t en jeu parait justifier cet appel, toujours sous les restrictions des articles 2 (b) et 36 de la Loi de la Cour
Supreme.
Dans le cas actuel, nous croyons que les droits futurs des parties sont affectis par le jugement dont on demande la permission d'appeler.
(Christie vs. The York Corporation (5); Fortier vs. Longchamp (6).)
Nous sommes donc d'avis que la requ~te de 1'appelante doit 6tre accord6e, frais A suivre; et que l'appelante doit avoir permission d'appeler h cette Cour h toutes fins que de droit.
Motion granted.
See AsSESSMENT 3.
ADMIRALTY
APPEAL-Criminal law-Accused, respondent, prosecuted for alleged infractions
Order in Council dealing with maximum ceiling prices-Accused convicted after speedy trial under Part XV of the Criminal Code- Order in Council federal authorities creating appeal to Supreme Court regulations--Regulations made the Order
Interpretation of the conditions imposed
Supreme Court of Canada still subject to sections 102 and of the Criminal Code.
the provisions of the Criminal
Code, there existed no right of appeal to provincial courts of appeal or to the Supreme Court of Canada from judgments rendered on summary conviction under Part
XV of the Code. But right of appeal to these courts was allowed, on certain conditions, by a federal order in council, coming into force on the 7th of June, 1943, from such judgments when rendered on convictions for offences against wartime regulations. Certain regulations were made and established by the order in council, amongst which those material to this appeal read as follows: an appeal shall lie to a provincial court of appeal, by leave of such court, on any ground which involves a question of law or of mixed law and fact; a further appeal from the judgment of the court of appeal shall lie to the Supreme Court of
Canada by leave of such Court; and it was also regulated that "sections 1023 to 1025 inclusive of the Criminal Code shall, insofar as the same are not inconsistent with this regulation, apply to any appeal to the
Supreme Court of Canada***". Held: That the effect of the regulations made by the order in council was not to give a right of appeal to the Supreme Court of Canada from any and all judgments or decisions of a provincial court of appeal, with the sole proviso that leave of the Supreme Court of
Canada be given by that Court; but Held:
That the result and effect of the regulations were that an appeal only lies to the Supreme
Court of Canada, by leave of that Court "on any questions of law on which there has been a dissent in the court of appeal" (s.
1023 Cr. C.) or "if the judgment appealed from conflicts with the judgment of any other court of appeal in a like case" (s. 1025
Cr. C.). The provisions contained in these two sections are not in any way inconsistent with the regulations and must be taken into account in any appeal to this Court under the regulations made by the order in council. Therefore, applying to the appellant's application for leave to appeal to this Court the regulations so interpreted, the motion should be dismissed: there having been no dissent in the Court below, this Court has no jurisdiction to grant leave, as the applicant has not shown that the judgment to be appealed from, in respect to the main point involved in the appeal, conflicts with the judgment of any other court of appeal in a like case. Box Co. LTD.
2.- Jurisdiction- Supreme
Court Act (R.S.C. 1997, 35), s. 89-"Amount or value" of the "matter in controversy" in the appeal-Appeal from judgment restraining appellant from proceeding with tax sale.- The City of Sydney appealed from the judgment of the Supreme Court of Nova Scotia in banco (18 M.P.R. 20) dismissing its appeal from the judgment of Graham J. (ibid) restraining it from proceeding with the advertised sale for arrears of taxes, or at any future time selling or attempting to sell for taxes, certain land which adjoined land of respondent, and declaring that the land in question was a public way and not assessable.
A motion was made to quash the appeal to this Court for want of jurisdiction. The taxes to which the proceeds of the advertised sale could be applied did not exceed $1,500. The value of the land in question was assumed to be $7,200. Held: The appeal should be quashed for want of jurisdiction, as "the amount or value of the matter in controversy" in the appeal did not exceed $2,000, within s. 39 (a) of the Supreme Court Act (R.S.C. 1927, c. 35). The "matter in controversy" was the right of the City to collect $1,500 of taxes through the sale of property. As to "the amount or value", it is the interest of the appellant that must be considered (Kinghorn v. Larue, 22 S.C.R. 347, at 349); and this was clearly the taxes; and their amount was the measure of value which determined the jurisdiction (Gendron v. McDougall, Cassels' Digest, 2nd Ed., p. 429, cited).
(Special leave to appellant to appeal to this Court was refused.)-Crry 3.-Jurisdiction-Action against incorporated company before Superior Court- Exception to the form-Defendant alleging company an emanation of the Crown-Could only sued way of petition of right in the Exchequer Court of Canada-Exception to the form dismissed-Whether "final judgment"-Supreme Court Act, section 2 (b).- In an action brought by the respondents against the appellant, a company incorporated under the provisions of the Dominion
Companies Act, the latter fyled an exception to the form, alleging that it was an emanation of the Crown and that it could only be sued by way of petition of right in the
Exchequer Court of Canada.
The judgment of the Superior Court, dismissing the exception to the form, was affirmed by a majority of the appellate court.
appellant company having appealed to this
Court, the respondents moved to quash the appeal for want of jurisdiction. Held: That the judgment, from which the appellant desires to appeal, is not a "final judgment"
within the meaning of section 2 (b) of the
Supreme Court Act and that this Court is without jurisdiction to entertain the appeal.
The action having been instituted in the province of Quebec, the judgment appealed from, as it has been already settled by several judgments both in that province and in this Court, is only provisional and does not determine, in whole or in part, any substantive right in controversy, as the decision is still open to. revision by the final judgment on the merits. Davis v. The
Royal Trust Company ([1932] S.C.R. 203)
and Willson v. The Shawinigan Carbide
Company (37 Can. S.C.R. 535) followed.
The present case is not distinguishable from the above cases and several similar decisions, on the ground that all these cases were only between individuals, while here the Crown is alleged to be in reality the party affected by the judgment appealed from. Such a distinction cannot be made, at least in respect of the point raised by the respondents and which has to do with the finality of that judgment. The Corporation of the City of Ottawa v. The Corporation of the town of Eastview et al. ((19411 S.C.R. 448)
and Quebec Railway, Light & Power Co. v.
Montcalm Land Co. ([1927] S.C.R. 545)
distinguished.
4.-Jurisdiction-Petition for leave to appeal-Seizure of automobile-Opposition third party-Agreement between the latter and possessor of car-Whether a sale or a pledge to guarantee loan-Question of general importance-Proper construction of section
41 of the Supreme Court Act-"Rights in juture" (subs. (c))-Must be rights of the parties in the appeal-Lack of jurisdiction if one of the parties is not before the Court- Provincial appellate courts-Their 3urisdiction to grant leave to appeal to this Court, untrammelled, unlimited and free from any restriction-Proviso of section 41, with its subclauses (a) to (f) applicable only to this
Court.-The respondent seized, in execution
.of a judgment against one Rivard, an automobile found in his possession, and the appellant company demanded by meanA of
-opposition the nullity of the seizure, claiming to be the owner of the car. The appellant company alleged that, according to a certain contract with Rivard, it had bought the automobile while the respondent contended that such contract did not constitute a sale, but simply a contract of pledge to guarantee the reimbursement of a loan. The Superior Court dismissed the appellant's opposition on the ground that the contract was simulated and was in reality an attempt to make the contract a pledge without the possession of the article pledged being in the hands of the appellant. The appellate court affirmed the judgment, holding that the appellant never intended to become the owner of the automobile, that in effect the agreement constituted a fraud against the law and that, consequently, the appellant acquired no rights in the automobile.
The appellant company moved for leave to appeal to this Court, on the grounds that the judgment to be appealed from appears to be in conflict with some decisions of this Court and that the questions in issue involved matters of public interest and important points of law by which rights in future of the parties may be affected. Held: That this Court has no jurisdiction to grant leave to appeal. Sub-section (c) of s. 41 of the Supreme Court Act, which provides that "the matter in controversy on the appeal (must) involve * * * rights in future of the parties", is not applicable to this case. The future rights of Rivard and of the appellant company may be involved in the appeal, but Rivard has not been made a party to the proceedings before this Court. Under that subsection, it is the "rights in future of the parties" in the appeal which must be affected; and the only rights of the parties in this appeal are their rights, present and immediate, arising from the allegations of the opposition and its contestation. also, that if this Court would have had jurisdiction or would have been in the place of the provincial appellate court, it would have decided without hesitation that this case was one of those where leave to appeal should have been granted, owing to the great importance of the questions therein raised, principally those concerning commercial matters.
Kellock J. expressing no opinion. Held further, that the jurisdiction of the "highest court of final resort" in a province to grant special leave to appeal to this Court, under section 41 of the Supreme Court Act, is untrammelled, unlimited and free from any restriction. The proviso in that section, with its sub-clauses (a) to (f) has no bearing as to the jurisdiction of the provincial courts and applies exclusively to the jurisdiction of the Supreme Court of Canada.
Kellock J. expressing no opinion. Arro FINANcE Co. v. 175 5.-Leave to appeal granted by appellate court-Motion to quash maintained by this Court-Appeal "manifestly devoid of merit and substance"-No issue left to be decided between the parties-Court declining to hear appeal-Action by wheat producer against the
Canadian Wheat Board for an accounting of operations of the Board-Orders in Council passed under War Measures Act, when matter before appellate court, removing substratum of plaintif's claim.-The appellant, a producer of wheat in Manitoba, who had delivered and sold wheat to the Canadian
Wheat Board, brought an action against the Board, on behalf of himself and other producers, before the Court of King's
Bench, asking among other relief for an accounting of the operations of the Board during the crop years of 1938 to 1942 both inclusive. The Board, besides submitting a statement of defence on different points of law and facts, launched a motion for an order dismissing appellant's action on the ground that, the Board being a servant or agent of the Crown, the Court of King's
Bench had. no jurisdiction, and, in the alternative, that the action was frivolous and vexatious. The motion was dismissed and the appellant appealed to the Court of
Appeal. While the matter was still before that court, an Order in Council was passed under the War Measures Act, reciting that there was no surplus in either of the first two years and providing for the distribution of the surplus in each of the other three years. The majority of the Court of Appeal, later, held that the Board was an agent of the Crown and that the appellant's action could not be brought in the provincial court-.
The appellant appealed to this Court upon special leave granted by the Court of
Appeal. The respondent Board moved to quash the appeal on the grounds that the appellant's claim and appeal were without substance and merit and that the appeal was wholly academic and futile, because, among other reasons, by the terms of the
Canadian Wheat Board Act and the Order in Council, the appellant had and has no right to sue. Held that the motion of the respondent Board should be allowed and the appeal dismissed. The Supreme Court of Canada will entertain favourably a motion to quash an appeal to this Court, if such appeal, though within the jurisdiction of the Court, is manifestly entirely devoid of merit and substance.
National Life
Assurance Co. of Canada v. McCoubrey
([19261 S.C.R. 277), and judgments therein referred to; De Bortoli v. The King ([19271
S.C.R. 454, at foot of 457 and at 458);
Bowman v. Panyard Machine & Mfg. Co.
([1928] S.C.R. 63); Cameron v. Excelsior
Life Ins. Co. ([1937] 3 D.L.R. 224); Laing v.
The Toronto General Trusts Corporation
([19411 S.C.R. 32) and Temple v. Bulmer
([1943] S.C.R. 265). More particularly, the recent decision of this Court in Coca-Cola
Co. of Canada v. Mathews ([1944] S.C.R.
385) is conclusive, where this Court held that it should decline to hear an appeal when there was no issue before it to be decided between the parties. In this case, the Order in Council has removed the substratum of the appellant's claim, even if the matter could be brought before the ordinary courts at all and should not have been initiated in the Exchequer Court of Canada. No opinion was expressed by this Court upon the judgment of the majority of the Court of Appeal.
v. THE 6.- Jurisdiction-Conservatory attachment not accompanied with a principal demand for pecuniary condemnation-Judgment, dismissing action, affirmed by appellate court-No amount or value in controversy in the appeal -Supreme
Court Act, s. 39.-The appellant's action was dismissed by the trial judge, on the ground inter alia that the conservatory attachment taken out by her was not accompanied with a principal demand for a pecuniary condemnation and that such a proceeding was a provisional remedy which cannot be taken out by itself without a claim, which is made the object of the principal demand. The judgment was affirmed by the appellate court and the plaintiff appealed to this Court. Held that this Court has no jurisdiction to hear the appeal.-The moveables, which the conservatory attachment was intended to be executed, even if they were of a value exceeding $2,000, are not in controversy in this appeal.
The only matter in controversy is whether the Courts below rightly decided that a conservatory attachment is only an accessory procedure, which cannot be taken out alone; and such right is not appreciable in money. Gatineau Power Company v. Cross ([1929] S.C.R. 35) 7.- Jurisdiction-Judgment by appellate court quashing appeal-Pledge in money given in place of regular security-Not furnished in conformity with article 1215a C.C.P.-No amount or value in controversy- Supreme Court Act, section 89.-Proceedings in appeal brought by the appellant were quashed by the appellate court on the ground that the security given by him was irregular and illegal, because he had f urnished, in lieu of the regular security required by article 1214 C.C.P., a pledge consisting of a sum of money which was not in conformity with the provisions of article 1215a of that code.
The appellant appealed to this Court. Held that there is no jurisdiction in this Court to entertain the appeal.- There is no amount or value in controversy in the appeal in accordance with the requirement of section 39 of the Supreme Court MORIN.
8.--Constitutional law--Criminal law- Habeas corpus-Conviction of applicant under Criminal Code-Applicationfor habeas corpus granted by ajudge of British Columbia by Attorney General to Appeal Court-Jurisdiction to hear appeal-Appeal Court reversing judgment and ordering rearrest-Provisions of section 6 of Appeal Court Act of B.C. granting right to appeal- Inoperative if applicant convicted for a criminal offence under Criminal Code- Exclusive jurisdiction of Federal Government to authorize such appeal-B.N.A. Act, sections 91 and (18).-The provisions of section 6 of the Court of Appeal Act of
British Columbia (R.S.B.C. 1936, c. 57), granting a right to appeal to the Court of
Appeal in a habeas corpus matter are inoperative, if the applicant for that writ is detained in custody by virtue of a conviction for a criminal offence under the Criminal
Code.-The Chief Justice dissenting. The
Dominion Parliament has exclusive jurisdiction to authorize such an appeal under section 91 (27) of the British North America
Act, 1867 ("Criminal law * * *, including the Procedure in Criminal Matters"); and a Provincial Legislature has no such power under section 92 (13) of that Act ("Property and Civil Rights in the Province").-The
Chief Justice dissenting. In re
9.-Petition' for leave to appeal-Labour
Unions-Alleged illegal expulsion of members
-By-law prohibiting members from belonging to a "rival" association-Definition of
"rivalry" not given-Uncertainty as to its meaning-Whether by-law passed in conformity with provincial statute-Whether resolution expelling member within the powers of the association under the by-law--uestion of general importance for all labour unions in the province-Future rights-Jurisdiction of provincial appellate courts to grant leave to appeal to this Court-Supreme Court Act, section 41; Professional Syndicates Act, R.S.Q.
c. s.
.- The respondents are longshoremen and were officers of the apellant association. An action for damages for loss of salary was brought by them against the association on the ground that they have been illegally expelled from it. A by-law of the association prohibited its members from belonging to a "rival" association, and it was claimed that the respondents violated the by-law. The Superior Court dismissed the action; but the appellate court reversed that judgment.
The appellant moved for special leave to appeal to this
Court.
Held that special leave to appeal should be granted.
The interpretation given to the word "rivalry" by the members of the appellant association differs from the one given by the members of an association preceding it; and that word is also differently construed by the two courts below.
There is therefore a primordial interest that the definition of what constitutes "rivalry"
should be definitively established by this
Court. The question whether the respondents are members of a "rival" association is obviously a question of fact; but the question as to what constitutes a "rival" organization, in the absence of any definition, is an important question of law. Questions are also raised whether the statutes and the by-laws of the appellant association are binding in law, on the grounds the formalities essential to put them in force would not have been fulfilled and, also, that these statutes and by-laws would not have been deposited with the Provincial Secretary in pursuance of section 2 of chapter 255, R.S.Q. 1928. Another ground of appeal is whether the resolution expelling the respondents is within the powers of the association under the by-law. The present litigation, besides concerning the great number of members of the two labour associations in this case, is. of much interest to all other unions which have been incorporated under the same statutory law; and the decision in this case may affect, in a general way for the whole province of Quebec, the status of all labour unions and similar organizations. The rights in future of the parties in this case are also affected by the judgment from which leave to appeal to this Court is sought by the appellant.
As already decided by this Court, the jurisdiction of the "highest court of final resort" in a province to grant special leave to appeal to this Court, under section 41 of the Supreme Court Act, is untrammelled, unlimited and free from any restrictions. The proviso in that section, with its sub-classes (a) to (f) has no bearing as to the jurisdiction of the provincial courts and applies exclusively to the jurisdiction of the Supreme Court of Canada. Canadian National Railway Company v. Croteau & Cliche ([1925]) S.C.R 384); Hand v. Hampstead Land and Construction' Company ([1928]
S.C.R. 428); Forcier v. Coderre ([1936] S.C.R. 550); Fortier v. Longchamp ([1941] S.C.R. 193) and Campbell Auto Finance Co. Ltd. v. Bonin S.C.R.
L'AssocIATIoN 10.-Matter allowed by trial judge in Admiralty case to be included in settling case on appeal, disregarded by this Court. 11 .- Mortgage-Foreclsoure-Order nisi- Whether interlocutory or final.
12.-Jurisdiction-Award on reference to Exchequer Court under s. 7 of War Measures Act-Whether appeal lies to Supreme Court of Canada-Exchequer Court Act, R.S.C. c. 84, s. 18, 19, 37, 82-Supreme Court Act, R.S.C. c. 85, ss. 85, 44- Contention that Exchequer Court was curia designata-Effect of provision for choice of court, etc., in making reference under s. 7 of War Measures Act.
13.-Judgment at trial against defendant- New trial ordered by Court of Appeal- Defendant, in formal notice of appeal to Court of Appeal, asking in alternative for new trial-Whether this affected adversely APPEAL-Concluded defendant's further appeal to Supreme Court of Canada, in view of stands taken defendant on the hearings of the appeals.
14.- Jury's findings-Principles applicable on question as setting them aside.
APPROPRIATION-of ships the Crown for naval services.
ASSESSMENT AND TAXATION-Companies-Company selling its assets to another company-Payment latter allotment and issue of shares in it to trustee for shareholders of the vendor company-Liability of vendor company tax under The Security Transfer
Tax Act, 1989, Ont. (1939, 45)-Secs.
1 (b), (a), 6 (1) (b), 19 of the Act, and Regulation 26 made under the Act-The
Security Transfer Tax Act, 1989, Ont. (1939, c. 45), imposes a tax, payable by the vendor, transferer or assignor, "upon every change of ownership consequent upon the sale, transfer or assignment" of a "security"
(defined by the Act to include any share of capital stock issued by any company), and authorizes regulations "determining what constitutes a sale, transfer or assignment within the meaning of this Act". By regulation 26, "if any company * * * makes distribution of or assigns to its shareholders assets consisting of taxable securities such distribution or assignment shall be deemed to constitute a sale, transfer or assignment of such securities within the meaning of the
Act". By s. 5 (1) (b) of the Act, the allotment by a company "of its shares in order to effect an issue thereof" shall not be subject to the tax. Appellant, a company, by an agreement sold its assets to another company, part of the consideration being payment by the latter of a sum to be satisfied by the allotment and issue by the purchasing company of 144,950 shaies of its capital stock to shareholders of appellant pro rata. Appellant was to surrender its charter as soon as possible. In accordance with the agreement, the directors of the purchasing company allotted the shares to a trustee for the shareholders of appellant to be distributed among such shareholders, delivery of certificates of shares in the purchasing company to be made on surrender for cancellation of certificates of shares in appellant.
Held: Appellant was liable to the tax imposed by said Act. (Rand and
Kellock JJ. dissented.) Per Kerwin J.: The effect in law of the agreement and other proceedings (keeping in mind the distinction between a share and the certificate of the share) was that appellaht became owner of the shares and (within the meaning of the Act and regulation 26) transferred or assigned them to its shareholders, and consequent upon that transfer or assignment there was a change of ownership from appellant to its shareholders. In contemplation of law there were two transactions, one between the two companies and the other between appellant and its shareholders. Per Hudson J.: The shares went to appellant's shareholders because, as such shareholders, they were entitled by law to the proceeds of the sale of appellant's assets. Under all the circumstances, it should be held that the purchasing company in making the distribution of shares did so on behalf of appellant, and that this in fact amounted to a distribution of taxable assets by appellant within the meaning of regulation 26. Per Taschereau J.: In determining whether appellant was liable for the tax, the substance and not the form of the transaction must be considered. In substance what was done was, issue of the shares in fulfilment of the purchasing company's obligation to appellant, and distribution, out of those shares, of appellant's assets (in contemplation of its voluntary liquidation) in fulfilment of appellant's obligation to its shareholders. That was what was covered by the procedure followed, and the direction to the purchasing company to issue the shares to appellant's shareholders did not change what was done in substance; this mere delegation did not affect or alter the legal relations existing between the parties. The absence of actual delivery and change of possession of certificates of shares by the purchasing company to appellant and by appellant to its shareholders-a purely physical formality, which is merely the evidence, and not a constituting factor of the rights of the shareholders-is irrelevant and has no bearing on the ownership of the shares; there was a legal change of ownership of the shares, which is what is taxable under the Act. Per Rand and Kellock JJ. (dissenting): The shares were never "issued" prior to their issue to the shareholders of appellant or to the trustee for them, and, therefore, there was no transfer or assignment or change of ownership thereafter to which the tax could attach. Appellant was never a shareholder of the purchasing company in respect to these shares; its only right under the agreement was to call for issue to third persons, namely, its own shareholders.
Once given that the agreement constituted a real transaction, as to which no question was raised, its contents determined the legal rights of the parties thereto, and they were entitled to have the transaction take the form which it did take (Partington v. Attorney-General, L.R. 4 H.L. 100, at 122; Maclay v. Dixon, [1944] 1 All E.R. 22, at 23; Inland Revenue Commissioners v. Duke of Westminster, [19361 A.C. 1, at 19, 24 et seq., 28, 31, cited. Swan Brewery Co. Ltd. v. The King, (1914] A.C. 231, discussed and distinguished). 2.-Municipal-Crown's interests-Construction and production contracts between
Crown and industrial company-Sale of land
Company to Crown and building of plant for war purposes by Company for the Crown
-Agreements stipulating Company to act on behalf of Crown and as its agent-Claim by municipal authority against Company for property and business taxes-Company erroneously described as "proprietor"-Company not liable for taxes-Company, under contracts, being the "agent" or "servant" of the Crown-Crown, and not the Company, being "occupant" of land and building- Sections 862 (a) and 363 of the Montreal
City Charter.-The Montreal Locomotive
Works Limited (hereinafter called the Company), on October 23, 1940, entered into a first contract (construction contract) with
The King in right of Canada (hereinafter called the Crown), where it was agreed, inter alia, that the Company would sell and transfer unto the Crown certain land in the city of Montreal and would construct thereon, for and on behalf of the Crown, as its agent and at its expense and subject to the supervision, direction and control of the
Crown, a new plant to remain the property of the Crown, and to be capable of producing gun carriages and tanks. On the same day, a second contract (production contract)
was passed between the Crown and the
Company, where it was agreed, inter alia, that the Company, acting on behalf of the
Crown and as its agent, would administer, manage and operate the new plant and produce therein, for the account of the Crown, gun carriages at a certain fee per gun and per tank. It is admitted that the new plant is, and has always been, the property of the
Crown, and that the City was so informed by the Deputy Minister of Munitions and
Supply. The Company was entered as proprietor in the valuation roll for the fiscal year beginning May 1st, 1941, and paid to the City $35,858.59 for taxes due under the assessment roll for that year.
After the new building, erected under the construction contract, was completed, the building and motor power were added to the assessment roll in the name of the company for
318,934.78 from November 1st, 1941, to
April 30th, 1942; and the Company was also entered on the tax roll for business tax on the same property for the same period for $3,425.22. Then, on the valuation roll for the fiscal year commencing May 1st,
1942, the Company was entered as occupant of the new building, motive power and land owned by the Crown and, on the assessment roll, was billed at the sums of $41,141.77 for property tax and $6,850.44 for business tax.
The Superior Court dismissed the claim of the City for the first item of $18,934.78 because the claim was directed against the
Company as proprietor and not as occupant; but, as respects the three other items, the Court held that the City's right against the Company as occupant had been established and condemned the Company to pay these amounts. The appellate court, by a majority of the judges, affirmed that judgment. Held, affirming the judgments of the Courts below, as to the first item, that the City cannot hold as valid the assessment and taxation of the Company for the amount claimed. The Company was in respect of that claim improperly assessed and taxed by the City as proprietor and not as occupant; it had been admitted, in the joint stated case submitted to the courts, that the new plant was, and always has been, the property of the Crown and that the City was duly informed of it.
Upon that very admission, it was obviously erroneous to describe the Company as proprietor. The valuation and assessment rolls, as they existed, could and can be supported only if the quality of owner or proprietor had been established in respect of the Company. The three other items were allowed by the Courts below against the Company, as to the property tax on the ground that the Company was during the material dates the occupant of the property and entered as such on the rolls, and as to the business tax on the ground that the Company occupied the premises for commercial and industrial purposes and was doing business at the new plant.
Held that, as to these items, the judgment of the appellate court should be reversed.-In order that the Company may be exempt from paying the taxes claimed by the City, it is not necessary that it should be either "an instrumentality of the Government, or an emanation of the Crown" (City of Halifax v. Halifax Harbour Commissioners [1935] S.C.R. 215).
It is sufficient if, looking at the contracts as a whole, the Courts are satisfied that the Company, for the purpose of the present decision, is nothing but the agent, or the servant, of the Crown. Such decision turns on the meaning of the two contracts and, upon their construction, these agreements clearly provide for a case of agency.
The Company is described throughout as the agent of the Although the use of this word is not in itself absolutely decisive, it is at least an indication of the intention of the parties; and it is that intention, gathered from the words used, that determines the nature of the contracts. There is absolutely nothing in the agreements inconsistent with the idea that the parties wanted the company to be anything else than an agent. Held also that, under the agreements, the Company is not the occupant of the building and land, at least within the meaning of that word in the City's Charter; and, a fortiori, it does not occupy it for industrial purposes. The Company never carried on or exercised a manufacture, either under section 362a or section 363 of the Charter; and these sections are inapplicable for the purpose of establishing the right of the City to prop- 7g()
erty tax as occupant or to the business tax*
The occupation is not that of the Company, but the occupation of the Crown; and the business carried on, in the circumstances of this case and under the terms of the agreements, is not carried on by the Company, but carried on by the Crown itself on its own property. City of Halifax v. Halifax Harbour Commissioners (1935]
S.C.R. 215),
City of Montreal v. Socidtd Radio-Canada
(Q.R. 70 K.B. 65), Regina Industries Ltd. v.
City of Regina ([19451 1 D.L.R. 220) and
City of Vancouver v. Attorney General of
Canada ([1944] S.C.R. 23) discussed. THE
KING V. THE CITY MONTREAL; THE CITY
MONTREAL V. MONTREAL
WORKS THE KING; MONTREAL Loco- WORKS THE CITY
3.-Companies-Tax imposed by provincial statute-Telegraph company and company working a telegraph system-Agreement between two telegraph companies-One company operating whole system of the other for agreed remuneration-Whether liable for tax
-Dismissal of claim for tax against owning company-Action in warranty by the latter against other company-Such action consequently dismissed-Defendant in warranty also intervening in the principal action- Question of the costs of action in warranty as between the two telegraph companies.-The
King, in right of the province of Quebec, claimed from the Montreal Telegraph Company (hereinafter called M.T.C.) $38,375.85, representing an annual tax of $1,000 for the years 1908-1909 up to 1938-1939, plus interest.
This amount was alleged to be due by that Company under the Corporation Tax Act, which imposed a tax on "every telegraph company and every other company working a telegraph system for the use of the public". By an agreement, dated
August 17, 1881, between the M.T.C. and the Great North Western Telegraph Company of Canada (hereinafter called G.N.W.- T.C.), the latter Company undertook for a period of ninety-seven years to work, manage and operate the system of telegraph owned and, before that date, operated by
M.T.C. Under that agreement the G.N.- W.T.C. bound and obliged itself to pay all costs and expenses of the M.T.C.'s system and to keep the property free and clear from all liens and encumbrances arising from taxes and assessments. On the ground that the tax claimed by the appellant was a tax included in, and covered by, the above conditions of the agreement, the M.T.C. took an action in warranty against the G.N.W.- T.C. to have the latter condemned to indemnify it against any condemnation which the Crown might obtain upon its claim.
While the G.N.W.T.C. pleaded to the action in warranty and denied its obligation to indemnify the M.T.C. and prayed for the dismissal of the action in warranty, it, nevertheless, filed an intervention in the main action and prayed that the latter be dismissed with costs. The trial judge dismissed the main action and recommended that the appellant pay the defendant's and intervenant's costs; and, on the ground that the action in warranty was nothing else than the exercise of an action in indemnity and therefore subordinate to the fate of the principal action, he dismissed that action with costs against the M.T.C. The appellate court affirmed this judgment in the main action and dismissed the intervention with costs for the reason that the intervenant had, at the same time, contested the action in warranty and intervened in the main action, which was held to be inconsistent; the action in warranty was also dismissed with costs against M.T.C., that action being held to be without legal basis as the principal action had been dismissed. The Crown on the main action and the M.T.C. on the action in warranty appealed to this Court.
Held, affirming the judgments of the Courts below on the principal action, that the Crown, appellant, cannot maintain its claim against the M.T.C. for a tax imposed by The Corporation Tax Act. The statute clearly contemplates, not alone a telegraph company, but a company doing business in the province and working there a telegraph system for the use of the public. The M.T.C. does not come within such description: that company, by the sole fact it made the agreement with the G.N.W.T.C. and collects the agreed remuneration, is not doing business in the province. Held, also, that the M.T.C. cannot be brought within the general clause of the taxing statute, concerning an ordinary "incorporated company carrying on any undertaking, trade or business" which is not otherwise taxed. Held, further, in as much as the principal action had been dismissed, that a decision on the merits of the action in warranty has become unnecessary and that the M.T.C.'s appeal from the judgment dismissing that action should also be dismissed (Archbald v. de Lisle, 25 Can. S.C.R. 1, followed), so that nothing remains between the parties to that action but a question of costs. Held that, under the circumstances of this case, while the G.N.W.T.C. should not be condemned to pay the costs of the M.T.C. in the action in warranty, it should at least get none of its own costs of that action against the M.T.C.; and the latter's appeal on that action should be allowed to the extent that the judgment of the appellate court should be modified accordingly. THE KING V. THE MONTREAL THE GREAT NORTH WESTERN CO. 4.- Building of a dissentient school- Borrowing of moneys by trustees--Bonds or debentures issued-Resolution adopted by Trustees under section 244 of the Education Act-Stipulating that a special tax "shall be levied annually"-Whether wording of resolution sufficient to create a tax-Whether resolution otherwise legal and regular-Privilege on immovable for school assessment-Property owned by dissentient when taxed and later sold to a Roman Catholic-Scope of the tax exemption granted to religious corporations under sections 251 (3) and 424-Issue of bonds or debentures authorized under section
246-Whether both the bonds or debentures and the resolution providing for their issue are validated thereby-The Education Act,
R.S.Q., 1925, c. now R.S.Q., 1941, c. 59.
-The respondents trustees, in 1925, passed a resolution to borrow a sum of $25,000 through an issue of bonds or debentures payable in thirty years, the purpose of the loan being the rebuilding of a school recently destroyed by fire. The resolution stipulated inter alia that "to provide for the annual interest and sinking fund of these debentures, a special tax * * * shall be levied annually upon all taxable property on the collection roll of the school trustees of this municipality at present in force * * * and on any other taxable property that may come under the control of the said school trustees during the term of these debentures; and all lands subject to the said tax now entered on the said roll * * * shall be bound and liable for the special tax, until the full and final payment and discharge of the said debt". At the time the resolution was adopted, the property, on which it is claimed special taxes are due, belonged to one Wright, a dissentient, subject to the jurisdiction of the respondents. In 1937, the property was sold to the appellant, a
Roman Catholic institution, exempt from the payment of school assessments by force of sections 251 (3) and 424 of the Education
Act. In 1938, 1939 and 1940, the respondents trustees passed resolutions by which the appellant's property was assessed at
$51.91, $52.09 and $904.47, the increase in the last assessment being the result of improvements and the construction of buildings for an amount exceeding $500,000. In
1941, the respondents brought against the appellant an hypothecary action for $1,016, representing the above mentioned assessments and interest.
The Superior Court dismissed the action; but the appellate court reversed that judgment and maintained the action as brought. On the appeal before this Court: The Chief Justice and Taschereau J. were of the opinion that the appeal should be allowed in full, Hudson and Estey
JJ. were of the opinion that the appeal should be dismissed and Rand J. was of the opinion that the respondents trustees were entitled to succeed, in part, in their action.
As a result, it was Held that the appeal should be allowed in part and the judgment of the appellate court be modified so that the amount of the taxes awarded to the respondents be reduced to accord with the value of the property as it appeared on the valuation and collection rolls in force in
1925. Per The Chief Justice: The respondents' action is an hypothecary action, i.e. an action to enforce an alleged hypothec or privilege, and they have failed to show that the resolution of 1925, nearly all of its clauses being illegal and ultra vires, was effective for the purpose of creating a privilege upon the immovable property then owned by Wright, which privilege would have followed the property into the hands of the appellant. Per The Chief Justice and Taschereau and Estey JJ.: The resolution of 1925 was not passed in conformity with the imperative provisions of sections 244 (1) of the Education Act. Under that section, "no issue of bonds may be made * * * unless there be imposed * * * an annual tax The resolution does not impose a tax immediately: it only states that a tax shall be imposed each year: "shall be levied annually".
A resolution providing for the imposition of a tax in the future does not meet the requirements of that section and is ineffective to operate a valid issue of bonds.
The School Commissioners of St. Adelphe v. Charest ([1944] S.C.R. 391) followed.
Per Estey J.: Such contention would have been available to the appellant, if it had been made before the approval of the resolution by order in council under section 246, the existence of this approval distinguishing this case from the above decision.
(Section 246 is further commented below.)
Per Hudson J.: The principle of that decision is not applicable to this case: in the Charest case, there was no definite imposition but rather a promise to do so in the future, while, in this case, there was an immediate burden imposed to be satisfied in a definite way; moreover, there was not in that case an issue and sale of bonds approved by order in council under section 246. Per Rand J.: Although, in the resolution, there is no express imposition and the future tense is used in the expression "shall be levied", the paragraph providing for the taxation should nevertheless be read to imply in fact a present imposition sufficient for the purposes of section 244. The rule of the Charest case should not be extended beyond the precise words that were there dealt with.
Justice: The resolution of 1925 declared that the "special tax * * * shall be levied annually upon all taxable property on the collection roll * * * at present in force". The respondents' action was not based upon the collection roll of 1925-1926 and the amounts for which the Trustees claimed a privilege result from the collection rolls of 1938-1939-1940, at a time when the appellant's property was not taxable. The respondents' claim is therefore contrary to the text of the 1925 resolution. Per The Chief Justice: The 1925 resolution cannot be reconciled with subsection (3) of section 244. The valuation of the property having been fixed once and for all on the collection roll ES.C.R. of 1925, it would be contrary to the text of the resolution, and therefore illegal, for the
,secretary-treasurer to assess that property for a different amount in collection rolls prepared by him under instructions given to him by subsequent resolutions.-The resolution contains also another illegality:
there is no provision, either in the Educa- .tion Act or in the Civil Code, which authorizes the creation of a privilege upon future property. Per The Chief Justice and Taschereau J.: The privilege for school assessments is not immediately created at the time of the adoption of the loan resolution, but comes into existence only after the collection roll comes into force.
Per The
Chief Justice: Such privilege, at the time it thus comes into existence, cannot be related back to the date of the original resolution, at least so far as the privilege or hypothecary claim is concerned. Per Hudson J.: The language of the 1925 resolution is clear and definite.
The property therein described was "bound and liable for the special tax'
(in each year) until the * * * final payment of the debt".
The levy sought by the present action is merely the maturing of the tax obligation imposed by the original resolution. The charge operates from the time the bonds are sold until they are finally paid in full. The purchasers of the bonds relied on the terms of the resolution and subsequent purchasers took with implied or express notice of them. Any withdrawal of property from the taxable area so defined would throw on the remaining properties a greater burden than was assumed by the property owners when the resolution was passed and it would deprive the bond holders of security assured to them when they bought the bonds. Under the circumstances, the Court would not be justified in refusing to give effect to the resolution unless compelled to do so by clear and definite mandate. Per Taschereau J.: There must be necessarily a personal debtor bound to pay a tax. It cannot be conceived that a tax imposed solely on an immovable could exist without a person having the legal obligation to pay it and against whom it could be legally claimed. Personal liability is from the beginning fastened on the owner of the immovable, because he is then under the jurisdiction of the school commissioners or trustees and the immovable is taxable because he owns it. Such personal liability ceased to exist when the owner originally liable has sold the property "in respect of which" he has been taxed; the liability is then incumbent on the purchaser, whatever his religion may be.
Per Estey J.: The school tax is primarily a property tax, but the Education Act, when read as a whole contemplates a personal liability upon the' owner. Therefore there would be a personal liability within the meaning of the Act upon the appellant. Per Taschereau J.: When a tax is "imposed" by virtue of a loan resolution under section 244, the immovables subjected to the jurisdiction of the Trustees are from that time determined in advance as bound to be later charged with a privilege for the annual tax in consequence of the combined effect of the original resolution and of the collection roll duly homologated, and such immovables cannot be withdrawn from the payment of the tax notwithstanding the fact that they become the property of another person and even if the latter is entitled to the exemption granted by the Education Act. Per Taschereau and Estey JJ.: The religious communities cannot claim the exemption granted to them by sections 251 (3) and 424, if they were not owners of the immovable at the time the tax has been originally imposed.
Per Rand J.: The language of section 244 should be construed to mean than an "annual tax",-annual in relation to the years of the terms, for instance, of a bond issue-, carrying implicitly the characteristic of a specific amount in relation to each separate parcel of land is declared, and that it is en marche to become definitive as a realizable exaction as each year is reached, and as it is extended on a collection roll. It is as if the resolution in 1925 were in the words: a tax of $30 on property "A" is now imposed for the year 1940, and as if it were repeated in 1940. An annual resolution is passed in advance: it describes a taxing effect to be attained in future. But the declaration of a potential tax in a certain amount in respect of each taxable immovable for each year during the currency of the obligation, as a specific imposition, can be made only by reference to the valuation or assessment roll, at the time of the resolution, in force. When the tax becomes levied in each year as the collection roll is completed, the time of payment is determined; but whether there is determined also personal liability for each year's tax, there is no need to enquire. The resolution, then, fixes as of its date the amount of the annual levy, the lands to be taxed, and the property valuations.
Section 391 provides for the homologation of the collection roll, and after the period for payment has expired the taxes become a special hypothecary charge upon the property taxed. Even if that section does not apply to a special assessment, the taxes, upon default of payment, would become a privilege upon the immovables under article 2009 and 2011 of the Civil Code. An order in council was passed, in pursuance of section 246 of the Education Act, stating that the Minister of Municipal Affairs had reported favourably that the Trustees be authorized to borrow moneys in conformity with the resolution of 1925, that all the formalities required by the law had been fulfilled and that accordingly authorization to borrow should be granted. Section 246 enacts that "every bond or debenture issued in virtue of a resolution (so) approved * * * shall be valid, and its validity shall not be contested for any reason whatsoever". Held that, under that section, not only the bond or debenture is validated, but the resolution providing for their issue must also be deemed to have been passed in conformity with section 244.
The Chief Justice and Taschereau J. contra.
Per The Chief Justice and Taschereau J.:
The intention of the legislature in enacting section 246 has been to put the validity of the bonds and debentures beyond all discussion so that the bondholders would have an absolute guarantee of the legality of the bond itself, notwithstanding the invalidity or illegality of the proceedings leading to its issue. But the section cannot be invoked in favour of a resolution which would be null and void.
Any issue that may arise between the Commissioners or the Trustees and a ratepayer is in no way affected thereby. Otherwise the result would be that the
Lieutenant Governor in Council would be made a judge of the validity and legality of all the loan resolutions adopted by the former and that the courts would be entirely ousted of their jurisdiction in the matter.
Per Hudson J.: The prohibition against the issue of bonds, in section 244 ceased to have any application here once the resolution to borrow had been approved as being adequate for the purposes of the section and the bonds certified, as they were, under section 246.
When sold they created a legal obligation.
The resolution and the order in council were duly registered. The purchasers of bonds were entitled to accept the certificates as conclusive. The appellant itself cannot complain of lack of notice when it bought the property. Per Rand J.: The bonds in this case, bearing the requisite certificate are admittedly valid, but there is created under section 246 more than a valid debt. The whole object of the section is to conclude such questions as those in the present case. The purchaser of a bond is entitled to the security he would have had if every preliminary or conditional step had been taken in exact accordance with the provisions of the statute and the purchaser cannot be told later that the condition essential to that validity did not in fact or in law exist. The special assessment is for the sole benefit of the bondholders.
They are the beneficiaries of that power to tax and the sufficiency of the resolution must be deemed concluded not only in relation to the bond as a debt, but also to the taxation intended to be appropriated exclusively to the payment of that debt. Per Estey J.:
The language. used by the legislature in enacting section 246 is clear and definite and, when read and construed with the other relevant sections of the Act and particularly section 244, its meaning is that the approval therein provided for applies to the validity of the resolution and includes both the validity of the bonds and the existence of the security. Comments upon the decision of this Court in Canadian Allis- Chalmers Limited v. The City of Lachine ([1934] S.C.R. 445).
DU Tuits v. THE ToWN AYLMER.................685. 5.-See 2.
BANKRUPTCY AND INSOLVENCY- Action by trustee to annul deed of sale- Practice and procedure-Party interested not Joined in the proceedings before the Court- Dismissal of action-Husband and wife- Married woman appearing as plaintiff- Want of marital authorization-Absolute nullity-Party to the deed not made defendant or mis-en-cause but acting as co-plaintiff with trustee-Whether sufficient to allow the Court to adjudicate--Arts. 176, 188, 1082 et seq. C.C.-The appellant Lamarre, acting as. trustee to the bankruptcy of an estate represented by a deceased trader's universal legatees, one of which unmarried and the other a married woman separated as to property, brought an action to annul the sale of an immovable property by the legatees to the respondent.
The two legatees were joined as co-plaintiffs, although they took no part in the conclusions taken in the statement of claim. husband was a party to the deed of sale for the purpose of authorizing his wife; but he did not authorize her to act as plaintiff in the case.
The jugdment of the Superior Court, maintaining the appellants' action, was reversed by the appellate court which held that the want of authorization by the husband to enable his wife to appear court constituted a cause of nullity of the Held, affirming the judgment appealed from (Q.R. [1943] K.B. 691) but on another ground, that the Superior Court could not pronounce the nullity of the contract of sale, as one of the contracting parties, i.e., the husband, had not been called before the Court. La Corporation de la Paroisse de St. Gervais v. Goulet ([1931] S.C.R. 437).
The appellants had based their action on three different grounds; but, before the Court, they urged only one of them, i.e. their right of action (action paulienne) under article 1032 et seq. C.C. Held, also, that the appellant Lamarre, in his quality of trustee representing the creditors, was entitled to bring alone the present action, as action paulienne; and, therefore, it was inmaterial whether the husband had authorized or not his wife to act as plaintiff, as her presence as such was entirely unnecessary.
Held, further, that, although the trustee could thus act alone, the appellant's action could not be maintained, as the legatees, as vendors, have not been made parties to the action as defendants or mises-en-cause; but, even if their presence as co-plaintiffs could be considered sufficient to allow the Court to adjudicate on the merits of the case, the wife would still be acting without the authorization of her husband. v.
BOARD OF TRANSPORT COMMIS- SIONERS FOR CANADA-Jurisdiction 16
BONDS-Of company-Redemption before maturity-Payment in American or Canadian fuids at the option of holder-Redemption date-Date of presentation-Exchange rate not same on those dates-Rate at which bonds are payable.....................
2.- BROKERS.
CARRIERS-Railway company-" Undertaking" of company declared "for general advantage of Canada"-Added power to operate auto bus service-"Subject to all provincial * * * enactments"-Tariff of tolls- Jurisdiction-Federal or provincial authority
-Whether auto buysses are "works"-Section
91 (29) and section 92 (10 c) B.N.A. Act. 16
2.- See RAILWAYS.
CHILDREN-Precautions against injury to.
.....................
CIVIL CODE-Arts. 176, 183 (Husband and wife-Judicial proceedings) .......
2.-Articles 857, 858 (Probate and proof of wills) ..........................
3.-Art.
990 (Consideration of contracts).
4.-Art.
1021 (Interpretation of contracts).
5.-Arts. 1082 et seq. (Avoidance of contracts and payments made in fraud of creditors)..............................
6.-Arts. 1053, 1054 (Responsibility for damage)...........................
.- Art. 1091 (Obligations with a term).
CIVIL CODE-Concluded
8.-Art.
1301 (As to wife contracting obligations)........................ See WIFE 2. 9.-Art.
1493 (Sale-Satisfaction of obligation of seller to deliver) ............. 10.-Art. 1585 (Sale-Obligations of buyer -Disturbance or cause to fear disturbance in his possession)..................... 11.-Arts. 1593 et seq. (Alienation for rent).............................. 12.-Arts. 1601, 1608, 1609 (Lease or hire of things).......................... 13.-Arts. 1657, 1660 (Termination of the lease or hirp of things) ............... 14.-Art. 2009 (Privileged claims upon immoveables).................... 15.- Art. 2011 (Privileged claims of assessments and rates upon immoveables) 685 CODE OF CIVIL PROCEDURE-Art. 288 (Discovery-Use of deposition taken)... 249 Arts. 1214, 1215a (Appeals to the Court of King's Bench-Security) ............. See 7.
COMPANIES-Bonds-Redemption before maturity-Payment in American or Canadian funds at the option of holder-Redemption date-Date of presentation-Exchange rate not same on those dates-Rate at which bonds are payable.-Where, in conformity with a trust deed, a company (appellant) elects to redeem, prior to maturity, some of its outstanding bonds on June 1, 1939, such bonds being payable in United States or Canadian funds at the holder's option and the holder (respondent) does not present the bonds on that date when the rate of exchange was "ths of per cent. but later forwards them to New York where, on September 20, 1939, the rate of exchange being per cent., they are presented to a paying agent, an American bank, with a demand that the amount be paid in American currency, but payment is.refused by the bank under instructions from the appellant company, the holder (respondent) is entitled to bring an action in Quebec asking that the appellant be ordered to pay in Canadian funds an amount sufficient to purchase the required United States funds at the rate of COMPANIES-Concluded exchange current on September 20, 1939.
. The privilege of receiving payment in two currencies was not limited to the day of maturity of interest or principal. The obligation of the appellant company, under the bonds, was not only to be ready and willing to pay the debt on the day fixed but to maintain that readiness until the debt was discharged.
On the other hand, there was no duty upon the holder (respondent) to present the bonds for surrender on any particular day, and, consequently, there was no default by the latter through failure to act until September 20th 1939. Judgment of the appellate court (Q.R. [19441 K.B.
700) affirmed.
LIFE
2.-Taxatson-Company selling its assets another company-Payment latter allotment and issue of shares in it trustee for shareholders of the vendor company- Liability of vendor company to tax under
The Security Transfer Tax Act, 1939, Ont.
45)-Secs. 1 (b), 2 (a), 5 (1)
of the Act, and Regulation £6 made under the Act.......................
3.-Taxation-Tax imposed by provincial statute-Telegraph company and company working a telegraph system-Agreement tween telegraph companies-One company operating whole system of the other for agreed remuneration-Whether liable for tax-Dismissal of claim for tax against operating company-Action in warranty by the latter against other company-Such action consequently dismissed-Defendant in warranty also intervening in the principal action- Question of the costs of action in warranty as between the two telegraph companies.. . . 669
4.- See WIFE 2.
COMPENSATION-Appropriationofships the Crown for naval services-Reference to
Exchequer Court under s. of War Measures
Act, R.S.C. 1927, £06, to determine compensation-Principles applicable in determining compensation-"Value of the vessel"
in s. 5 (1) of The Compensation (Defence)
Act, 1940 28)-Appeal-Jurisdiction- Award on reference to Exchequer Court under s. of War Measures Act-Whether appeal lies to Supreme Court of Canada-Exchequer
8£-Supreme Court Act, R.S.C. 1927, 35, ss. 35, 44-Contention that Exchequer Court was curia designata-Effect of provision for choice of court, in making reference under of War Measures Act.-Under 7 the War Measures Act, R.S.C. 1927, 206, the Minister of Justice referred to the
Exchequer Court respondent's claim for compensation in respect of two ships, the
Seaborn and the Sankaty, appropriated and acquired for naval services by the Crown.
In the Exchequer Court ([1944] Ex. C.R.
COMPENSATION-Continued
123) Angers J. awarded 8100 000 for the Seaborn and $205,000 for the Sankaty. Against the amounts of such awards the Crown appealed to this Court. Respondent moved to quash the appeal for want of jurisdiction, mainly on the ground that the Exchequer Court was curia designata and, no appeal being provided by the War Measures Act, there was no right of appeal. Argument was heard both on the motion to quash and on the merits of the appeal. Under said s. 7, if the compensation is not agreed upon, the claim shall be referred by the Minister of Justice "to the Exchequer Court, or to a superior or county court of the province within which the claim arises, or to a judge of any such court". (1) of The Compensation (Defence) Act, 1940 (c. 28), the compensation shall be "a sum equal to the value of the vessel * * * no account being taken of any appreciation due to the war". Held: (1) This Court had jurisdiction to hear the appeal. (Cases discussed.)
Per The Chief Justice: It is to be noted that, along with the authority or jurisdiction to each of the courts enumerated in the War Measures Act or to a judge thereof, there is not given special and independent powers. When once the reference is made, the court or the judge is to deal with the -matter in the ordinary way and according to the powers vested in the court by the general Act and the inherent powers already possessed.
Parliament's intention was clearly that the Exchequer Court, in a reference to it as in the present case, should act as a court in accordance with the provisions of the Exchequer Court Act and that all the provisions of that Act should apply to the reference.
The jurisdiction of the Exchequer Court, through the reference, was one "in any manner vested in the Court" within s. 82 of the Exchequer Court Act, and under said s. 82, read in connection with s. 44 of the Supreme Court Act, there was a right of appeal to the Supreme Court of Canada. Per Kerwin J.: 82 (1) of the Exchequer Court Act, taken in conjunction with ss. 35 and 44 of the Supreme Court Act, conclusively gives a right of appeal in this case. The words "in virtue of any jurisdiction now or hereafter in any manner, vested in the Court" in said s. 82 (1) are broad enough to include the present reference. S. 7 of the War Measures Act provides for the very vesting required by said s. 82
The option given to the Minister in making the reference under said s. 7 is not a ground for holding against a right of appeal in the present case. If a reference were made to a provincial superior or county court or a judge thereof, then whether any appeal would lie from the ensuing judgment would depend upon the ordinary jurisdiction of such court and the ments thereof.
Per Hudson, Taschereau and Kellock, JJ.: The option given under of the War Measures Act as to the court COMPENSATION-Continued or judge to whom the reference shall be made, is not a ground for holding against a right of appeal in the present case (James
Bay Ry. Co. v. Armstrong [19091 A.C. 624, at 630).
Per Hudson J.: S. 44 of the
Supreme Court Act, read with s. 82 of the
Exchequer Court Act, is ample to vest jurisdiction in this Court in this appeal. The matters referred to the Exchequer Court fell well within those comprised in its ordinary jurisdiction; and the procedure followed in that Court was in accordance with the normal practice of a suit carried on therein.
Per Taschereau J.: The trial Judge did not exercise any special jurisdiction with an appropriate machinery for that particular purpose, but dealt with the matter as a judge of the Court in the discharge of his ordinary judicial functions. Per Rand J.:
A reference to the Exchequer Court under s. 7 of the War Measures Act is not to be taken in any other sense than a reference by a departmental head (as under s. 37 of the Exchequer Court Act) and the effect of the reference is to place the claim within the ordinary procedure of the Court.
(Whether a similar reference allowed to a provincial county or superior court carries with it the ordinary rights of appeal under provincial law, it is not necessary to decide.
The language "or to a judge of any such court" in said s. 7 contemplates a judge exercising the original jurisdiction of his court.) The present proceeding was in the
Exchequer Court as such, and therefore an appeal lies under s. 82 of the Exchequer
Court Act. Per Kellock J.: S. 7 of the War
Measures Act vests jurisdiction in the
Exchequer Court within the meaning of s.
82 of the Exchequer Court Act, conditional only upon the exercise by the Minister of the power of reference given him by the
War Measures Act; and the combined effect of s. 82 of the Exchequer Court Act and s. 44 of the Supreme Court Act is to authorize an appeal to this Court.
(2) On the merits of the appeal: As to the Seaborn, the compensation should be reduced to $92 764 93 (the amount tendered by the Crown) (The Chief
Justice and Kerwin and Taschereau JJ., dissenting would have affirmed the judgment at the trial, except as to the rate of interest allowed).
As to the Sankaty, the case should be sent back to the Exchequer
Court for re-assessment.
The meaning of
"value of the vessel" within s. 5 (1) of The
Compensation (Defence) Act, 1940, and the principles to be applied and factors to be considered in determining that value, discussed, and cases referred to. As to the
Seaborn: Per Hudson J.: The award below failed to give due weight to the cost of the vessel to respondent, which, though not necessarily evidence of value, was, under the circumstances, practically the only evidence of value before the Court within the prescription of s. 5 of The Compensation
(Defence) Act, 1940. Also there were errors in amounts in items considered in reaching
COMPENSATION-Concluded the award. It is a case where this Court is justified in modifying the award and it should be reduced as aforesaid. Per Rand J.: The purchase by respondent of the Sankaty, admittedly much more suitable than the Seaborn for respondent's service, excludes any special value of the Seaborn to respondent as of the time of acquisition. In all the circumstances the general market value must govern the determination of the value of the Seaborn. But the trial Judge, in reaching his award, included items irrelevant to market value; and also indicated a regard to considerations of realized special adaptability, and no such element was admissible. There was not in the evidence sufficient to bring the market value to more than the sum tendered by the Crown, which, though relatively not much less than that awarded below, was so generous as to prevent this Court from exceeding it. Per Kellock J.: There was no evidence which enabled the trial judge, consistently with the proper principles to be applied, to assess the value of the Seaborn at any amount beyond that tendered by the Crown. Estey J. agreed in the conclusion of Rand and Kellock JJ. -Per the Chief Justice (dissenting): There was evidence upon which the trial judge could make the award he made; and, even though this Court might, in its own view, think there was possibly a small error of valuation, this Court should not, under the circumstances, interfere.
Per Kerwin J. (dissenting)
: It does not appear that the trial judge failed to observe the applicable principles and it cannot be said that the sum awarded was excessive so as to justify alteration of it. Per Taschereau J. (dissenting): The trial judge did not misdirect himself on the principles to be applied and took into account the proper elements in reaching his award, which was not clearly excessive; and therefore this Court should not interfere with his finding.
As to the Sankaty: Per Curiam: The trial judge erred in applying the principle of "replacement value" or "reinstatement" in reaching his award, as that was a method not in accordance with the direction in said s. 5 (1) of The Compensation (Defence) Act, 1940, on which the award must be based; and, as the evidence was not sufficient to enable this Court to ascertain the value on the proper basis, the case must be returned to the Exchequer Court for that purpose.
CONFLICT
LAWS-Negligence- Automobile-Person invited by driver who was also owner-Accident-Injury to passenger-Damages-Invitation made and accepted in Quebec-Accident occurring in Ontario-Negligence of driver proven-Conflict of laws-Whether Quebec or Ontario law applicable-Driver liable, if negligence actionable under Quebec law and punishable under Ontario law-Agreement by benevolent 50887-3
CONFLICT OF LAWS-Concluded driver to carry passenger as a favour-Not a contract of transport nor a "contrat de bienfaisance"-Arts. 1053 and 1054 C.C.- Criminal Code, s. £85-Highway Traffic Act
(Ont.) R.S.O., 1937, c. 288, as amended in
1939 by 8 Geo. VI, c. 20, s. 6.........
CONSTITUTIONAL
LAW-Carriers- Railway company-" Undertaking" of company declared "for general advantage of
Canada"-Added power to operate auto bus service-"Subject all provincial * * * enactments"-Tariff of tolls-Jurisdiction-Federal or provincial authority-Whether auto busses are "works"-Section 91 (29) and section 92 (10 c) B.N.A. Act.-The Quebec
Railway, Light & Power Compahy applied for an order of the Board of Transport
Commissioners approving its tariff of tolls for the carriage of passengers on the motor buses operated by it; while the town of
Beauport petitioned the Quebec Public
Service Board for an order by which the same tolls would be fixed.
The Board of
Transport Commissioners dismissed the company's application for want of jurisdiction; while the appellate court of Quebec reversing the decision of the President of the Public Service Board, held that that
Board was without jurisdiction to deal with such tolls on the ground that the railway company fell under the exclusive jurisdiction of the federal board. The decisions being contradictory, both the railway company and the town of Beauport appealed to this
Court. Held, Davis and Hudson JJ. dissenting, that the fixing of fares, or tolls, to be charged by the railway company in respect of its motor bus service, was within federal jurisdiction; but that federal legislation was lacking, as regulation of tolls over such service is not included in the powers granted to the Board of Transport Commissioners.
Per Davis and Hudson JJ.
dissenting.-Jurisdiction over the fares, or tolls, of the railway company's autobus system is vested in the province. Such jurisdiction has not been transferred to the Dominion under Dominion Acts and should be exercised by the Quebec Public Service
Board. Per Rinfret J. and Kerwin J.: A
Dominion Act of 1895 declared the "undertaking of the (railway) company * * * a work for the general advantage of Canada"
and thus brought the company under the legislative authority of the Parliament of
Canada (Quebec R. L. & P. Co. v. Montcalm
Land Co. [1927] S.C.R. 545).
The word
"undertaking" as used in the statute comprises the whole of the works of the company, not only the works existing in 1895 ut all its future enterprises.
The auto busses owned and operated by the company fall within the meaning of the term "works"
in head 10 (c) of section 92 B.N.A. Act and, therefore, can properly be brought and integrated into the "undertaking".
Per Rand
J.: The steam railway and the tramway system of the company are both within the legislative jurisdiction of the Dominion (Montcalm Land Co.'s case, supra). The works of the company are, in the jurisdictional aspect, to be considered as if they had been specifically set forth in section 91 (29) of the B.N.A. Act.
The federal legislation of 1939, adding the power to operate auto busses is within the scope of the legislative field appropriate to the subject matter of the declaration in the Dominion Act of 1895. It cannot be denied to such an undertaking modifications in operational means and methods designed more efficiently to carry out its original and essential purposes. The controlling fact is that the identity of the works is presented: they remain in substance the works of transportation dealt with by the declaration. Per Rinfret, Kerwin and Rand JJ.: The proviso of the amending federal Act of 1939 whereby the power to operate auto busses "subject to all provincial and municipal enactments" was conferred, does not g ive to the provincial Board jurisdiction to eal with the fares and tolls to be charged by the company. Such proviso made autobus service amenable to provincial laws for certain purposes, e.g. the right to license and regulate traffic, but the exclusive field of the Dominion as to regulation of rates is unaffected by that Act.' Per Davis J. (dissenting): The generality of the language of the sub-section (2) added by the Dominion Act of 1939, imposing a condition on the grant of the power to operate auto busses, is sufficient to involve the regulation and control by the province of the motor busses on the municipal and provincial highways of the province, and the fixing of fares or tolls, for uniformity or otherwise, by a provincial board comes within the condition, upon a proper construction of the subsection. Per Hudson J. (dissenting): The declaration contained in the Dominion Act of 1895 does not, and never was intended by Parliament to, extend to the operation of auto busses on the highways, either in respect of the regulations of rates or other- LIGHT Co.
TOWN
TOWN & POWER CO................. 2.-Foreshore-Public harbour-Dispute between Dominion and Province as to ownership-Provincial order in council recognizing Dominion's right-Power to pass-Validity of-Whether authorizing legislation necessary -Admission of fact contoined in order in council-"Public Harbour" in B.N.A. Act- Whether Coal Harbour a "public harbour"- Transfer of Crown land by Province to Dominion-Residuum of royal prerogative- Crown grant of land "with appurtenances"- Land or foreshore not included in-Prescription-Nullum Tempus Act-Riparian rights -Erection of building and making of fill on foreshore-Whether mesne profits due the Crown.-The Attorney General of Canada, on behalf of the Dominion Crown, sued to recover possession (and mesne profits) of the foreshore of a lot fronting on an indentation of Burrard Inlet, known as Coal
Harbour, in British Columbia. The action was maintained by the trial judge; but that judgment was reversed by a majority of the
Court of Appeal. Held that the judgment appealed from ([1944]
1 W.W.R. 615)
should be set aside and that the judgment at the trial, declaring the ownership and right of possession of the foreshore to be in the appellant and that the respondents were liable for mesne profits to the Crown, should be restored. Controversy over harbours in
British Columbia and disputes as to the ownership of the foreshores, as between the
Dominion and the Province, were resolved in 1924 by a provincial order in council (a reciprocal Dominion order in council being also passed in practically identical terms)
made without legislative authority or ratification, whereby it was agreed that six harbours therein mentioned, including Burrard Inlet, were declared to be public harbours within the meaning of schedule 3 of the B.N.A. Act, that they became the property of Canada thereunder and that the Province transferred to the Dominion any interest which it might have in the foreshores of these six harbours. The appellant contended that the executive authority of the Province had power to pass the order in council, while the respondents argued that it was lacking in legislative authority or statutory ratification.
Held, per the
Chief Justice and Kerwin, Hudson and
Taschereau JJ., that the Provincial order in council must be held as valid to the extent that it contains an unequivocal admission of fact that every piece of foreshore in every part of Burrard Inlet was at the relevant time used for public harbour purposes and thus became the property of the Dominion. There is nothing to prevent the Executive of the Province to make such admission. Tweedie v. The King (52 Can.
S.C.R. 197) ref. Per the Chief Justice and
Taschereau J.: The Provincial order in council, moreover, contained a valid recognition from the Province to the Dominion of the latter's jurisdiction over Burrard
Inlet including Coal Harbour and its foreshore. Per Rand J.: The Provincial executive cannot transfer "property" of the
Province, without legislative sanction, to another executive and legislative administration. The provincial function is exercised under provincial legislative control and that authority, in the absence of legislation, cannot extend to an act merely of transferring its own proper subject-natter to another executive: it would rather be a surrender than an exercise of function. But, where the situation of fact is, in the opinion of the government concerned, one of doubt and uncertainty, it lies within the authority of the provincial executive to give formal binding recognition to a claim asserted by the Dominion. The effect of the order in council is therefore limited to an agreement or acknowledgment of boundary at high water, and, as between the two jurisdictions, such an acknowledgment concludes the question.
But as to private rights different considerations arise; and in some cases, a third person remains entitled to contest the fact of Crown right ownership. The respondents may be entitled to advance their claim on the footing of the fact as found in the action, but they are entitled to no more; and where, in such case, they fail to establish a prescriptive right against either the Province or the Dominion, as here, they fail likewise in an answer to the claim of the appellant.
Justice and Taschereau J.: The orders in council, either from the Dominion or the Province, may not be lacking in legislative authority or ratification in view of certain statutory enactments referred to by the appellant; but, even if they were, these orders in council were Acts of the highest authority and they were acted upon by both parties to them for more than seventeen years when this action was instituted. They constitute, as already stated, an unequivocal admission that these harbours became the property of the Dominion, not only at the date of the orders in council, but also in 1871 at the time when British Columbia entered Confederation. Per the Chief Justice and Taschereau J.: The orders in council may also be upheld as valid, because both Governments, in acting as they did, were exercising powers which are part of the residual prerogative of the Crown, or because the transfer from one Government to another is not appropriately effected by ordinary conveyance: His Majesty the King does not convey to himself.-If, however, it had to be assumed that the orders in council were invalid without legislative approval, it should be pointed out that "The Land Act" of British Columbia imposed no restrictions on a transfer from the Province to the Dominion -When the Crown in right of the Province transfers land to the Crown in right of the Dominion, there is no real conveyance of property, since His Majesty The King remains the owner in either case and, therefore, it is only the administration of the property which passes from the control of the Executive of the Province to the Executive of the Dominion. Per the Chief Justice and Taschereau J.: Coal Harbour was part of a "public harbour" in 1871 and, as such, it came under the jurisdiction of the Federal Government.
The particular spot of the foreshore, in this case, is within the ambit of the harbour and forms a part of it. The trial judge so found, and that finding, coupled with that made by Duff J. in 1904 (Atty. Gen. for B.C. v. C.P.R. Co. B.C.R. 289 at 291) should be given preference over the decision of the Court of 50887-31
7g9 Per Kerwin and Hudson JJ.:
Upon the evidence alone, it cannot be found that the foreshore in question formed part of that public harbour, were it not for the two orders in council. In the Canadian
Pacific Railway case (supra), it is apparent that the question of fact was confined to the particular piece of foreshore there in question. The respondents also contended that, even if the order in council was effective without legislative approval, it was nevertheless subject to a prior grant from the
Crown provincial to the respondents' predecessors in title, that the grant was of an upland lot "with appurtenances" and that, these words being ambiguous, the intention of the Crown must have been to pass title to the foreshore. Held that the foreshore did not pass to the respondents under the grant. The language of the description in the grant is clear and the intent unambiguous.
There was no express grant of the foreshore and it is not to be implied.
Standing alone, the word "appurtenances"
does not include land: land cannot be appurtenant to land. Held also that the respondents have not discharged the onus of establishing acquisitions of the foreshore by prescription. The evidence is not sufficient under the Nullum Tempus Act (9 Geo.
III, c. 16) to establish that the respondents and their predecessors in title have had such possession of the foreshore as is sufficient to oust the title of the Crown. Held that this
Court does not concur in the holding of the trial judge, that the respondents "have never had any riparian rights over the said land arising out of their title to (their) lot or otherwise".
Held, per the Chief Justice and Kerwin, Hudson and Taschereau JJ.:
The erection by the respondents of a substantial structure and the making of a fill on part of the foreshore adjoining their lot cannot be justified as the exercise of riparian rights arising out of their title. The respondents are therefore liable for mesne profits to the Crown appellant. Per Kerwin, Hudson and Rand JJ.: It cannot be inferred from what was shown that by their acts the respondents intended to surrender rights attaching to their upland property.
Per Rand J.: In the circumstances, the appellant is entitled to mesne profits if any can be shown; but they must be profits arising beyond that use of the foreshore which may be found to be within the exercise of riparian privileges.
GENERAL
COLUMBIA..................
3.--Criminal law-Habeas corpus-Conviction of applicant under Criminal Code- Application for habeas corpus granted by a judge of British Columbia-Appeal by
Attorney General to Appeal Court-Jurisdiction to hear appeal-Appeal Court reversing judgment and ordering re-arrest-Provisions of section 6 of Appeal Court Act of B.C.
granting right to appeal-Inoperative if applicant convicted for a criminal offence under Criminal Code-Exclusive jurisdiction of Federal Government to authorize such appeal-B.N.A. Act, sections 91 (27) and 92 (18).-The provisions of section 6 of the Court of Appeal Act of British Columbia (R.S.B.C. 1936 c. 57), granting a right to appeal to the Court of Appeal in a habeas corpus matter are inoperative, if the applicant for that writ is detained in custody by virtue a conviction for a criminal offence under the Criminal Code.-The Chier Justice dissenting. The Dominion Parliament has exclusive jurisdiction to authorize such an appeal under section 91 (27) of the British North America Act, 1867 ("Criminal law * * * , including the Procedure in Criminal Matters"); and a Provincial Legislature has no such power under section 92 (13) of that Act ("Property and Civil Rights in the Province").-The Chief Justice dissenting.
In re 526 4.-Fees on proceedings before Justices under Part XV of the Criminal Code- Tariff enacted by section 770 Cr. C.-Validity-Intra vires-Ancillary power of the Dominion-Fees also payable under tariff enacted by provincial Act-B.N.A. Act, sections 91 (27), 92 (2) (14), 101-Criminal Code, sections 785, 736, 770, 1134-Officers of Justice Salary Act, R.S.Q., 1941, c. 24, s. 10.-Section 770 of the Criminal Code (Part XV) enacts that "The fees mentioned in the following tariff and no others shall be and constitute the fees to be taken on proceedings before justices under this Part". There exists also a provincial tariff providing for. payment by litigants, before the inferior courts of criminal jurisdiction, for services by officers of justice, which is higher than the tariff provided for in the above section. The Superior Court declared section 770 to be in certain respects ultra vires.
The appellate court reversed that decision; but gave leave to the Attorney General of Quebec to appeal to this Court. Held that the appeal should be dismissed. Per the Chief Justice and Taschereau J.: Section 770 Cr. C., although not being strictly legislation in relation to criminal law and procedure (section 92 (27) B.N.A. Act), is nevertheless within the competence of the Dominion of Canada, on account of its incidence upon criminal law and procedure; and, in such a*case, the field being occupied, the provincial legislation becomes inoperative.
Per Kerwin, Hudson and Estey JJ.: The provisions enacted by section 770 Cr. C. are necessarily incidental to the power to legislate upon criminal law and procedure under section 91 (27) of the B.N.A. Act.-Even if the fixing of the fees to be taken by officers of provincial courts, constituted and organized under section 92 (14) of the B.N.A. Act, may be said to be "Constitution, Maintenance and Organization", criminal law and procedure in criminal matters would be affected very seriously if the Dominion did not have the CONSTITUTIONAL LAW-Concluded power to provide the maximum fees that could be taken in criminal matters by provincially appointed officers and by witnesses. Held, also, that the terms of section
770 Cr. C. are of general application. The section is an imperative direction that no other fees shall be demanded or accepted;
and its terms should not be restricted to the case where the unsuccessful party has to pay costs to the other, as the result of an acquittal or conviction (sections 735 and
736 Cr. C.).
Judgment of the appellate court (Q.R.
[1945] K.B. 77)
affirmed.
v. ATron- CONTRACT-Agreement called "lease"- Enjoyment of water power rights and immoveables appurtenant thereto-Action for unpaid "rental" instalments-Renewal periods of 91 years-Same stipulated "for
Validity of agreement during current period- Whether agreement a "lease" in perpetuity- Such lease not contrary to law of Quebec- Resolutory condition in the agreement- Crown entitled to claim back power rights- Whether agreement contrary to public order- Validity of the agreement during current period-Agreement not illegal, and, if illegal, merely voidable-Articles 990, 1598, et seq.,
1608, 1609, 1657, 1660 C.C.-In an agreement, called a "lease", entered into in
1876, respecting certain water power rights in the Lachine canal forming a part of the public domain together with the immoveable appurtenant thereto, situated in the city of Montreal, it was stipulated that "at the expiration of said term of twenty-one years, from the first day of March, 1851, the period for the termination of the present lease, and at such subsequent period of twenty-one years thereafter forever, the parties of the first part shall grant, and the parties of the second part shall take, a renewal these presents * * * save and excepting only the amount of the yearly rent herein stated" for such subsequent period years, it being provided that, should the Crown at such period, increase the amount of the rent, the rent to be paid would be increased in the same ratio. It was also provided that the agreement could be resiliated at any time by the
Crown, in case the latter would require the water power, or any part thereof, for public purposes.
Pursuant to deeds of transfer, the respondent now stands, in respect of the deed, in the place and stead of the parties of the first part and the appellant in the place and stead of the parties the second part. The current twenty-one year period or renewal, having started on the first day of March, would thus expire in
The respondent brought an action against the appellant for $2,000, representing five unpaid "rental" instalments $400 each, which became due and payable respectively on July 1st, 1939 to July 1st, both inclusive.
The trial judge held that the agreement was a lease in perpetuity of property, and, as such, contrary to the law of Quebec, against public policy, and, therefore, void and of no effect ab initio; but, as the appellant had been in peaceable possession of the property and water rights for a period of time, he granted to the respondent a sum of $1,066.66 as representing the reasonable value for that use and occupation.
On appeal, the judgment of the trial judge was reversed.
The defendant company appealed to this Court. affirming the judgment appealed from (Q.R. K.B. 305) that the agreement was a valid subsisting one for the current period of years at the time the institution the respondent's action and that the action should be maintained for the full amount of $2,000 claimed by it.
Justice and Kerwin, Taschereau and Estey JJ.: The agreement not contrary to public order nor prohibited by law. Assuming it to be illegal on account of being made in perpetuity, it would then be merely voidable, remaining in existence until annulled by a judgment a court of justice; and it would be difficult for the appellant to succeed that ground in view of the absence in its plea any conclusions for annulment. But the agreement is not illegal.
lease, demise, of property in perpetuity is not contrary to the law of Quebec; perpetuity consideration acknowledged by the Civil Code and no text makes it contrary to public order or illegal; in fact, several grants recognized by the code are perpetual. The nullity of the agreement, therefore, does not arise in this case. Moreover, were there a question of perpetuity, the existence in the agreement a resolutory condition, resulting from the intervention of the Crown in claiming back the power rights for public purposes, would be sufficient to eliminate any doubt as to the validity of the agreement in that respect. Finally, as a result their own free will, the parties have renewed their agreement until 1956, and the agreement continues to govern their relations, duties, obligations and rights, at least until the expiration of that period. Per Rand J.: Whether the agreement is considered as bail 4 rente, louage or contrat innommg, it was at least within a de facto term of twenty-one years when the rent for which the action was brought accrued. & 2.-Alleged negligence in performance- Removal of equipment in kitchen of hotel- Oxy-acetylene torch used to cut ducts-Fire breaking out, damaging the hotel-Liability for the damage-Effect on liability of change made, at wish of hotel manager, in proposed place cutting the ducts during the work.- Appellant agreed to deliver and erect certain cooking equipment in the kitchen respondent's hotel and for that purpose to remove a range and canopy. To remove the canopy it was necessary to sever two ducts leading therefrom to a main duct, and appellant's man in charge of the work engaged a workman to do the cutting with an oxy-acetylene torch. It was intended to cut the two ducts near the canopy, but respondent's hotel manager expressed his with that, for the sake of a ppearance, they be cut near the main duct (which involved no more labour) and appellant's man in charge agreed that this be done. The hotel manager then left the kitchen. While the workman was using the torch, oil and grease which had accumulated in the main duct caught fire, resulting in a fire which damaged the hotel.
Held, affirming judgment of the Court of Appeal for Ontario, [1944]
O.R. 273, that appellant was liable to respondent in damages. Per the Chief Justice and Kerwin and Rand JJ.: In the circumstances in which the work was carried out, the cutting was done and intended to be done as in performance of the contract; and whether or not it was at a point originally not strictly within the contract, there was sufficient doubt as to what was intended to render the acquiescence in the hotel manager's suggestion a specification of the precise point of severance.
But even if the parties had looked upon it as a modification of the bargain, appellant's representative treated the act as performance under the contract, and must be taken to have had the implied authority of appellant to modify such an insignificant detail of performance, while keeping within the general scope of the work, having regard to appellant's interest in a satisfied customer. Per
Taschereau and Estey JJ.: The arrangement that the ducts be cut at the place desired by respondent's hotel manager was not a variation, alteration, or something outside, of the contract.
It was rather an item within the terms of the contract which came up necessarily and incidentally during the course of the work. It was an "arrangement as to the mode of performing" the original contract.
Those acting for appellant in doing the work must be treated as experts;
and while the hotel manager may have been the only one present at the work who knew when the main or any duct had been cleaned, he was not asked about it, and there was no evidence that he had knowledge of the risk, and proof of his having such knowledge was upon appellant. The duty was upon appellant to take reasonabes precautions against injury to the premisln and respondent was entitled to rely upoe appellant doing so.
(The Nautilus Steamship Co. Ltd. v. David and William Henderson & Co. Ltd., 1919 Sess., Cas. 605, and other cases, cited.)
rrD. v. CO.
3.-Lease with promise of sale-Farm land
-Rent when fully paid to be deemed sale price
-Lessor then to execute deed of sale with warranty of clear title-Loan guaranteed by hypothec-Payment of loan spread over a period of 25 years-Offer by lessee of balance due under lease-Lessor requested to give title -Refusal by lessor owing to existence of hypothec-Special clause in the agreement- Whether lessor bound to pay balance due on hypothec or lessee obliged to wait until last. payment due on hypothec before obtaining title-Articles 1021, 1091, 1493, 1535 C.C.- The respondent, in July, 1943, entered into an agreement, a lease with promise of sale whereby he took possession of a farm land belonging to the appellant, including buildings, stock and equipment. The rent was fixed at $13,000, $6,500 to be paid in cash at the signing of the agreement and the balance payable by annual instalments of at least $500, with privilege of pre-payment. The agreement also stipulated that, when the rent had been fully paid, it was to be deemed the sale price and then the appellant bound himself to execute in favour of the respondent a deed of sale of the property (un bon contrat de vente) with warranty of clear title (avec guarantie de titres clairs). The farm was one of two parcels of land formerly owned by the appellant, on both of which there had been placed by him in 1936 a hypothee for $4,000 in favour of the Agricultural Loan Commission, and the payment of that loan was spread over a period of twenty-five years. The appellant had in 1938 sold the other parcel to his son who had assumed the entire hypothecary debt and bound himself to his father to pay it. A special clause of the agreement, upon whose interpretation rests the decision of this case, stipulated inter alia that the respondent would not be obliged to pay the balance of the purchase price to the appellant as long as the hypothee due to the Commission would not have been paid by the appellant's son or by the appellant, the latter binding himself to request (devant faire demande) the Commission to consent to give a discharge (main-ievie) of the hypothec and to retain its privilege only on the parcel owned by the son; and, in case of refusal by the Commission, the respondent then would be allowed (pourra) to retain in his hands an amount of the annual payments equal to the balance then due on the hypothec.
A further payment of $1,500 having been made, the respondent on the 11th of March, 1944 offered to the appellant the sum of $5,163.92 being the balance in capital and accrued interest and called upon him to execute an appropriate deed of sale; but the appellant refused. The respondent then brought an action against the appellant asking that he be condemned to sign such deed and, in default thereof, that the judgment to be rendered serve as title. The appellant, in his plea, submitted that he was not able to give clear title to the respondent owing to the hypothec of the Commission which, he alleged, it was agreed the appellant would not be obliged to pay and contended that all the respondent could do, as long as that hypothec existed, was to retain into his hands an amount of instalments equal to the amount of the unpaid portion of the hypothec.
The respondent replied that the appellant has always been able to give discharge of the hypothec by paying the Commission a sum of $464.52, which the Commission declared in writing it was ready to accept. The respondent's action was dismissed by the Superior Court;
but that judgment was reversed by a majority of the appellate court.
affirming the judgment appealed from,
Rand J. (dissenting)
, that the respondent's action should be maintained. The stipulations contained in the special clause were exclusively for the benefit of the respondent and for his own protection, so as to allow him to suspend the annual instalments due by him until the property would be cleared of the Commission's hypothec; the respondent was the only party having the right to invoke that clause, but he was not bound to take advantage of it. There was nothing in the agreement to show that the respondent should wait until the last payment due to the Commission would be made before being able to obtain a title; while, on the other hand, there was nothing to lessen the obligation of the appellant to execute a deed of sale with warranty of clear title as soon as the respondent would have paid the full amount due by him. Moreover, as a fact, the Agricultural Loan Commission had no objection to give a discharge of its hypothee and had declared it was ready to do so on payment of a sum of $464.52.
appellant had only to pay that amount in order to get a main-lev~e and he was bound to do it. Per Rand J. dissenting.-The appellant, during such time as the obligation to the Commission was being performed according to its terms, was to be protected under the terms of the special clause against being called on to pay any of the moneys owing under it. The language of that clause necessarily imports the following interpretation: on the land there is a hypothee which must run according to the terms of the obligation of a third party unless the hypothecary creditor will voluntarily release it; in case he refuses, the completion of the agreement must await the performance of that obligation according to its terms; in that event, the respondent will pay interest on the balance of the rent-a significant provision-but since the appellant cannot give title before the maturity of the obligation; he can neither compel the payment of that balance nor be compelled to accept it as performance by the respondent entitling him to demand the contract of sale during that period of suspension.
TREMBLAY..........................
4.-Construction-Alleged breach-Whether contract ambiguous-Extrinsic evidence
-Conduct of parties-Party not replying to letters from other party which assumed rights consistent with latter's contention as to effect of the contract.-The action was for damages for alleged breach of agreement. Plaintiff had long been a customer of defendants, a firm of brokers. At the time of the agreement in question defendants had been carrying on account in plaintiff's name on which there was a debit balance of $180.11, but in respect of which they held 500 shares of a mining stock owned by plaintiff. They had also been carrying an account in the name of W., who, though she might herself instruct defendants, had authorized them to accept instructions from plaintiff on her behalf. In W.'s account there was an unsecured debit balance of $687.40, for payment of which defendants were pressing. Defendants held from each of them a "customer's card" authorizing defendants to sell securities without notice whenever they deemed that necessary for their own protection. On May 18, 1940, plaintiff addressed to defendants a document as follows: "This will serve as your authority to transfer my account in its entirety as it stands to-day into the account of [W.]. This courtesy is extended only upon the provision that you make no further alterations or dealings in the account of [W.I without my instructions and consent and that no further obligation be presumea against me in any way whatever".
Defendants transferred plaintiff's account (including the debit balance against plaintiff and said shares) into the account of W. At that time the market value of the shares was approximately equal to the said debit balances now consolidated. market price of said shares declined. May 30, 1940, defendants wrote to plaintiff that at the then market price of the shares W.'s account showed a certain deficit and "no doubt you will wish to adjust this, as well as supply some margin for" the shares. On June 18, 1940, defendants wrote to plaintiff: "We have for some time now been carrying a deficit in the account of [W.] which was occasioned by your request to not sell the [said shares] which you gave to the [W.] account.
Had we sold it at the time you deposited this stock as collateral to the account there would have been no deficit, and therefore we feel the fault of an existing deficit is entirely your own and the only fair thing is that we must ask you to make this up immediately if there is to be no further action taken in this regard". On July 19, 1940, defendants wrote notifying W. that as she had not responded to their margin calls, they would handle the liquidation of said shares at their absolute discretion, looking to her for any remaining deficit. Plaintiff received said letters to him, and a copy of said letter to W.; but made no reply.
On July 27, 1940, defendants sold the shares.
Plaintiff was notified of this, and wrote to defendants protesting against the sale as being contrary to the agreement expressed in said document of May 18, and asked defendants to replace the shares into the W. account.
In May, 1941, he sued defendants for damages.
His action was dismissed at trial and the dismissal was affirmed (by a majority) by the Court of
Appeal for Ontario, and he appealed to this
Court.
Held (affirming the judgments below): The action should be dismissed.
Rand J. dissented. Per Kerwin and Taschereau JJ.: The provision against further
"alterations or dealings", in said document of May 18, meant that plaintiff desired to protect himself against the possibility of W.
indulging in future trading. On the only reasonable construction of the document, defendants were entitled at any time to sell the shares under their general powers under said "customer's card" signed by W. Per
Kellock J.: When said document of May 18 is brought into relation with the circumstances existing at its date, an ambiguity is produced as to whether the sale by defendants was or was not a violation of its terms.
In such case extrinsic evidence was admissible for solving such ambiguity; and did so in defendants' favour: the reasonable inference from plaintiff's failure to reply to defendants' said letters between May 18 and
July 27 is that plaintiff put the same construction upon the document of May 18 as he knew they were putting upon it. Per
Estey J.: The effect of the agreement made by said document of May 18 and its acceptance, in the light of the facts and circumstances in evidence, was that thereafter all dealings on the account would be by plaintiff only, acting under his authority from
W.; that the shares were held as security for the total of both debit balances, and were subject to the terms of the "customer's card" signed by W., and could be sold as they were sold by defendants. If the document of May 18 be regarded as ambiguous, as it might well be, the subsequent conduct of the parties might be examined to assist in construing it; and in the light of defendants' said letters, which indicated their belief in their right to sell, and the ignoring of them by plaintiff, the effect of said document of May 18 and its acceptance must be taken to be as above stated. Per Rand J., dissenting: On the proper construction of said document of May 18, the account of
W., after plaintiff's account, including the security, was transferred to it, was in its entirety to remain as it was; the prohibition against "further alterations or dealings"
extended not only to action by W. but to action by defendants in relation to the security. As to defendants' said letters to plaintiff: that of May 30 contains no reference to sale without consent; that of June
18, written from defendants' head office in
Toronto whereas plaintiff's dealings had been with their branch office at Windsor, was evidently, from circumstances appearing in the evidence, written merely on the assumption of a case of ordinary collateral and the usual power of sale, and was not intended to indicate an interpretation of the document of May 18; also, to consider such
CONTRACT-Concluded communications as raising an obligation to reply on pain of an adverse inference is, in the particular situation, a perversion of the rule by which conduct may be shown; the rule that conduct in performance of a contract participated in by both parties may be used to resolve ambiguity, can have no application to the facts here. There was an "alteration" and "dealing" by defendants in violation of the agreement, and plaintiff was entitled to damages.
(Rules and considerations in determining damages in such a case, and with regard to the position and conduct of the parties, discussed. Plaintiff should have judgment for the value of the shares at the time of trial plus the amount of a dividend paid on the shares, less the total indebtedness of the W. account with interest thereon).
HOEFLE v. & COMPANY...................... 5.-Whether such delay in performance as to warrant repudiation-Measure and computation of damages for breach-Reference back for reassessment. W. A. V. & AL..................... 6.-Finding of contract on the evidence- Contract to sell all fuel wood produced at mill -No stipulation in contract as to its duration -Lack of reasonable notice of termination- Contract wrongfully determined-Damages. v. GILL ERS..............................
7.-See CONTRIBUTION.
COSTS-Trustees-Executors-direction in will that fund set apart for benefit testator's daughter-Executors and trustees the will also trustees of the fund-Unsuccessful action daughter against the executors and trustees with regard to the fund as set up- Question out of what fund (said fund or the residuary estate, or both) the solicitor and client costs incurred the executors and trustees in said action the extent that they exceeded the party and party costs) should paid.-By his will, T., who died in 1929, appointed his two sons and a trust company to be executors and trustees and gave to them all his estate upon trusts, one trust beingto set apart for thebenefitof hisdaughter, L., the sum of $100,000, revenue from which was to be paid to her during her life (should she become a widow she was to receive the corpus).
The residue of the estate was to go to T.'s two sons. In 1937, L. brought action against said executors and trustees, as such and also personally, complaining of the inclusion, in a partial setting up of said trust fund in 1929, of a certain mortgage.
She asked (inter alia) for relief with regard to the inclusion of that COSTS-Continued mortgage; that an agreement made in 1931, which was in the nature of a family settlement in regard to matters in dispute, and which contained an approval by her of said partial setting up of the fund, be set aside;
damages against the executors and trustees personally; and their removal as trustees of said trust fund and the appointment of new trustees.
She was unsuccessful in that action. The question now in issue was, out of what fund the solicitor and client costs incurred by the executors and trustees in that action (to the extent that the same exceeded their party and party costs)
should be paid. Barlow J. held ([1944 O.R.
31) that they should be paid out of the capital of the said trust fund. The Court of Appeal for Ontario held ([19441 O.R. 290)
that they should be paid out of the capital of the residuary estate. The question was brought to this Court.
Held (the Chief
Justice and Kerwin J. (dissenting)
): The solicitor and client costs in question should be spread over the capital of the estate, including said trust fund; and should be paid out of the trust fund and the residuary estate proportionately according to their respective values. Per Hudson J.: It was essential to the success of L.'s action that said agreement of 1931 should be set aside.
The Court is now entitled to assume that that agreement served the best interests of all parties, and was not disadvantageous to the trust fund set up especially for L.'s benefit.
Under all the circumstances, the executors and trustees were justified in defending the action on behalf of both funds
(said trust fund and the residuary estate)
as well as on their own behalf. Per Rand and Estey JJ.: The general principle is undoubted that a trustee is entitled to indemnity for all costs and expenses properly incurred by him in the due administration of the trust. These include solicitor and client costs in all proceedings in which some question or matter in the course of the administration is raised as to which the trustee had acted prudently and properly.
If the acts of the executors and trustees challenged in said action were properly done within their duty, they were entitled to indemnity for the costs in question within that general principle, without the need of a finding that, in addition to propriety, there was a benefit to the fund as against what was alleged ought to have been done.
The indemnity should extend to their whole costs incurred, as their defence personally was merely incidental to that in their representative capacity. Per the Chief Justice and Kerwin J., dissenting: The solicitor and client costs in question should be paid out of the capital of the residue of the estate.
In said action, though the executors and trustees were made defendants both as executors and trustees of the will and as trustees of the fund, any claim set up against them as trustees of the fund should be considered as negligible. If the action
COSTS-Concluded had succeeded, the residue of the estate would have been adversely affected; and the defence was really taken to protect that residue.
The principle which determines when liability lies for costs incurred by trustees applies to determine where such liability lies; and an estate which derives the benefit from a defence by trustees ought to bear the expense incurred by it; it would be inequitable to impose the expense of litigation, conducted for the benefit of one estate or fund, upon another.
THompsoN v. AL............ 2.- Of action in warranty .......... 3.-See
CRIMINAL LAW-Possession by night of implements of housebreaking-Ordinary of the accused's trade as truck driver-Proof of unlawful purpose-Lawful excuse-Onus of proof-Evidence-Sufficiency-Criminal Code, section 464a.-The appellant, a truck driver, was charged with having been found in possession by night, without lawful excuse, of instruments of housebreaking, contrary to section 464a the Criminal Code and was convicted before a judge of the County Court. The trial judge found that some of the instruments, but not all them, were tools a truck driver might use in his trade, while all of the instruments so found were capable of being used for purposes of housebreaking.
But he further stated that he was satisfied, in all the surrounding circumstances established in evidence, that at that particular time and place the tools were not in the appellant's possession for an innocent purpose, and, 'on the whole of the evidence", he found the appellant guilty. The conviction was affirmed by a majority of the Court of Appeal. The dissenting judge was of the opinion that the trial judge failed to apply the principle in Rex v. Ward (85 L.J.K.B. 483), where it was held that the accused had prima facie satisfied the onus cast upon him of proving that he had a lawful excuse for his possession of the tools and that the onus was then cast upon the prosecution proving affirmatively that the accused had no lawful excuse for being in possession of the tools at that particular time and place. Kellock J. dissenting, that, in the circumstances of this case and upon the evidence, the trial judge was legally warranted in drawing the conclusions he arrived at. The decision in Rex v. Ward (supra) does not apply. In that case, the trial judge had directed the jury that it was for the accused to establish to their entire satisfaction that his possession of the implements was lawful; while the Court of Criminal Appeal held that the jury had not been properly directed with regard to the onus of proof. In the present case the trial judge was sitting alone without a jury; it was not necessary for him to expound the law and then verbally apply it to the facts in giving his reasons for judgment; and it should be sufficient if it appears he was alive to the law and that he properly charged himself when reaching his finding upon the evidence. Moreover, the findings alone would he sufficient to take this case out of the application of the Word case. Per
Kellock J. (dissenting)
: The trial judge did not properly direct himself as to the law applicable as laid down in the Ward case. Therefore, the question for decision is as to whether or not he must "inevitably" have come to a conclusion of the guilt of the accused on the evidence, notwithstanding such misdirection; and this must depend upon whether the Crown discharged the onus of establishing beyond reasonable doubt that the accused had possession with guilty intent. The circumstances disclosed in evidence upon which the Crown can rely are not sufficient to make the result, that the accused was guilty, inevitable. There should be a new trial.
KING......
2.-Charge of rape-Evidence-Corroboration-Charge to jury-Misdirection-New trial.-The appeal was from the judgment of the Court of Appeal for Ontario (81
C.C.C. 319) dismissing (Laidlaw J.A. dissenting) appellant's appeal from his conviction on a charge of rape. The issue at the trial was whether or not the complainant voluntarily consented to the intercourse.
A witness, R., who had arrived at the scene of the alleged offence shortly after what took place, testified to there being a "matted down" area of about 20 x 6 feet. The complainant in her evidence had said nothing about such condition. Appellant testified that such condition existed before what took place. In charging the jury the trial Judge said that the evidence of R. and two other men corroborated the complainant's story in regard to some of the material aspects thereof and he followed by detailing certain matters of their evidence, including the condition of the area as described by R.
Held (Taschereau and Kellock JJ. dissenting): The conviction should be quashed and a new trial directed. Per the Chief Justice and Kerwin J.: It was not necessary that the complainant should have given some particular bit of evidence before an independent witness upon that point could corroborate her general story on the issue of consent. As part of the Crown's case, it was quite proper to show the condition of the particular area when R. arrived, and the jury would not be bound to believe appellant's evidence as to its condition before the occurrence.
But it was misdirection to say that evidence of the matted down condition of the area after the occurrence could constitute corroboration of a material aspect of the complainant's story as to which she had not testified. And it could not be said that the misdirection had caused no miscarriage of justice. Per Rand J.: It was beyond controversy on the evidence that the state of the surface of the area could not have furnished the slightest corroboration to the complainant's story or to the case of the Crown.
The charge to the jury was, therefore, in that respect, a misdirection in law and of such a nature that it could not be said that it might not have influenced the jury in reaching their verdict.
Per Taschereau and Kellock JJ. (dissenting)
: The reference in question in the charge to the condition of the area, having regard to its context, related, not to any supposed statement of the complainant as to the condition of the area which was corroborated by R., but to a reference earlier in the charge to the complainant's evidence as to the nature of the alleged assault, and would be so understood by the jury; and R.'s evidence as to the condition of the area was consistent with, and could properly be regarded as corroborative of, the complainant's evidence with respect to the struggle alleged by her to have taken place, unless it were clearly established as a matter of fact that the struggle described by her was of such a limited character that it could not have been the cause of an area of the extent described by R., and on that question the jury, if accepting complainant's evidence that she did not consent and was attacked, and giving due weight to the circumstances, might well have considered that no difficulty arose, and that was a question of fact, expressly left as such to, and entirely one for, the jury. There was really no question of law involved in the dissent in the Court of Appeal, but merely matters of fact, and therefore the appeal should be quashed. MCINTYRE v. KING............. 3.- Child drowned in oil well-Charge against owner of failing to guard the well adequately-Criminal Code, ss. 247, 284, 287 (b)-Child a trespasser-Duty and responsibility of owner of well.-The appeal was from the conviction of appellant by the Appellate
Division,
Alberta,
W.W.R. 503 (which set aside the judgment of acquittal at trial), under ss. 247, 284 and 287 (b) of the Criminal Code, of failing to guard adequately the cellar of an oil well of appellant, in consequence whereof a child of tender years was drowned therein. The well was not, and for some time had not been, in use, and there had been erected a structure around and over it as a guard against danger. The child, in company with other children, had climbed on the structure and in walking along was accidentally pushed off by an older boy into the water below. Held: The appeal should be allowed and the judgment of acquittal at trial restored. Per the Chief Justice and Rand J.: Sees. 247 and 284 embody the common law rule and, under them, apart from s. 287, appellant could not in the circumstances be held criminally responsible for the accident. The child was a trespasser.
Children were not tolerated about the well, there was no practice of playing there, and on the occasions when a few played there, they were, if seen, warned off by the owner's employees, chiefly because of danger from gas and fire and the pressure in the pipes. There was no object of fascination alluring children nor active conduct by the owner in disregard of children's known or necessarily apprehended presence.
In such circumstances the rule at common law that (with certain exceptions not present here) an owner of land is entitled to do with it what he pleases, and that trespassers move at their own risk and peril, is as applicable to children as to adults (Holland v. Lanarkshire, 1909 Sess. Cas. 1142, and other cases, cited).
As to s. 287 (b), assuming the excavation here to be within its scope, what is there contemplated, as indicated by its language, is the prevention of injury from hidden openings; the required fence or guard .
must protect the unwary; but when the existence of the opening is made evident
(as in this case) the purpose of the fence or guard is accomplished; the owner must protect the trespasser on the land from a trap, but he is not called on to protect against a subsequent danger from trespassing on the guard itself raised against that trap; and the scope of the duty is as limited in relation to children as to adults. Per Kerwin and
Estey JJ.: The evidence supports the trial
Judge's finding that the child was a trespasser; and, under the common law rule, of which s. 247 of the Criminal Code is a restatement, appellant, in the circumstances of this case, would not be liable to trespassers, including children (Hardy v. Central
London Ry. Co., [19201 3 K.B. 459, at 473, and. other cases, cited); the precautions taken and the warning and chasing away of children exonerated appellant from any suggestion of intention to injure or trap or of callous or wanton disregard of consequences.
As to respondent's contention (in the Appellate Division and in this Court) that the facts disclosed an offence under s. 287 (b)
(under which the charge was not laid and which was not brought to the trial Judge's attention) and that by virtue of ss. 951,
1013 (5) and 1016 (2) a conviction should now be directed-It is doubtful if the offence under s. 287 could, within the meaning of those sections, be an offence so included under s. 247, both because of the essentials required to constitute the offence and because it is a summary conviction rather than an indictable offence.
J.: The Appellate Division erred in finding a breach of the duty imposed by s. 287 (b).
The duty imposed by s. 287 (b) is to fence the excavation in such a manner that a person riding, driving or walking shall not fall therein accidentally. It would unduly stretch the scope of s. 287 (b) and do violence to its text, to hold that the fence must be so built that entrance is impossible. What is contemplated is to protect a motorist or pedestrian from a danger of which he is unaware and which may accidentally cause his death; it does not apply to the present case, where a trespasser succeeded in making his way to the excavation where the danger was obvious and was accidentally pushed into the water by a companion.
OIL Co. v THE 4.-Trial on charge of rape-Question whether trial judge should have charged jury as to possible alternative .findings of lesser offence-Question whether failure of accused to testify was made subject of comment, contrary to Canada Evidence Act, R.S.C. 1927, c. 59, s. 4 (5).-The appeal was from the judgment of the Supreme Court of Nova Scotia en banc dismissing appeal from appellant's conviction on a charge of rape. The appeal to this Court was on two questions of law on which there was dissent in said Court en banc, in connection with the trial Judge's charge to the jury, it being contended: (1) He erred in failing to instruct them as to possible alternative findings of a lesser offence, there being evidence to warrant such a finding. (The trial Judge withdrew from the jury a count of indecent assault contained in the indictment and stated, according to an affidavit offered to the Court en banc, that they "must find a verdict of rape or nothing"; and he directed his charge only to the count of rape.) The failure of the accused to testify was made the subject of comment, contrary to s. 4 (5) of the Canada Evidence Act, R.S.C. 1927, c. 59.
(The trial Judge stated: You heard the story of this woman * and her evidence is not denied * * * I can see nothing in the conduct of this woman that day, according to her evidence -and that is the only evidence we have as to her conduct excepting the other witnesses that came in here to tell the story of what she told them * * * It was his doing, according to the evidence and the only evidence we have * * *".) Held: The appeal should be dismissed (Taschereau J. dissented). Per the Chief Justice, Kerwin and Hudson JJ.: As to the first contention: On the evidence (discussed), the only evidence of the actual commission of the crime, on which the jury could reasonably have returned a verdict of guilty, pointed only to rape, if the jury believed the victim's story, or not guilty, if they did not believe her; and the trial Judge's charge in this respect was justified. As to the second contention: The trial Judge's remarks complained of could not be taken to have had any effect on the jury as being a comment obnoxious to s. 4 (5) of the Canada Evidence Act. (It was remarked that said words "her evidence is not denied" were no doubt referring to statements made by the victim, after the occurrence, to other persons, who gave evidence) (Rex v. Gallagher, 37 Can. Cr. C. 83, and Bigouette v. The King, S.C.R.
112, discussed and distinguished.
Opinion expressed that the latter case went as far on the subject in question as this Court would care to go). Per Taschereau J., dissenting:
As to the first contention (the second one is not dealt with): It was open to the juiy upon the evidence to find, if they saw fit, that the accused was guilty only of an attempt to commit rape (a lesser offence included in the major charge of rape), and the failure of the trial Judge to instruct them that such a verdict was open to them and that it was within their power to find the accused guilty of a reduced offence was fatal to the legality of the verdict, and therefore the conviction should be quashed and a new trial directed.
(The facts were not sufficiently clear to allow an appellate court to substitute, for the verdict found by the jury, a verdict of guilty of a lesser offence, as may be done in certain cases
1016 of the Criminal Code.)
THE KING...............
5.-Trial-Evidence-Appeal from affirmance court of appeal of conviction for murder-Appellant and others jointly indicted and tried together-Written confessions other accused admitted in evidence-Sufficiency and timeliness of warning trial
(several persons forming common intention to prosecute unlawful purpose, etc.)-Inapt illustration to jury-Application of the law to the evidence-No substantial wrong or miscarriage of justice (Criminal Code, s. 1014
(2)).
6.-Constitutional law-Habeas corpus- Conviction of applicant under Criminal Code
-Application for habeas corpus granted a judge of British Columbia-Appeal by
Attorney General to Appeal Court-Jurisdiction to hear appeal-Appeal Court reversing judgment and ordering re-arrest-Provisions of section of Appeal Court Act of B.C. granting right to appeal-Inoperative if applicant convicted for a criminal offence under Crimnal Code-Exclusive jurisdiction of Federal
Government authorize such appeal-B.N.A.
Act, sections and 92 (13).-The provisions of section 6 of the Court of Appeal
Act of British Columbia (R.S.B.C. 1936, c.
57), granting a right to appeal to the Court of Appeal in a habeas corpus matter are inoperative, if the applicant for that writ is detained in custody by virtue of a conviction for a criminal offence under the Criminal Code.-The Chief Justice dissenting.
The Dominion Parliament has exclusive jurisdiction to authorize such an appeal
CRIMINAL LAW-Concluded under section 91 (27) of the British North America Act, 1867 ("Criminal law * * *, including the Procedure in Criminal Matters"); and a Provincial Legislature has no such power under section 92 (13) of that Act ("Property and Civil Rights in the Province").-The Chief Justice dissenting. STORGOFF..................... 7.-Dismissal
Court of Appeal accused's appeal from conviction of theft- Dissenting opinion in that Court that there was no evidence to support conviction-Appeal to this Court dismissed.
8.-Appeal-Accused, respondent, prosecuted for alleged infractions of Order in Council dealing with maximum or ceiling prices-Accused convicted after speedy trial under Part XV of the Criminal Code- Order in Council federal authorities creating leave to appeal Supreme Court regulations-Regulations made the Order Interpretation of the conditions imposed Supreme Court of Canada still subject sections 1023 and 1025 of the Criminal Code..1 9.-Fees on proceedings before Justices under Part XV of the Criminal Code-Tariff enacted section 770 Cr. - Validity - Intra vires-Ancillary power of the Dominion -Fees also payable under tariff enacted provincial Act-B.N.A. Act, sections (27), 92 (2) (14), 101-Criminal Code, sections 735, 736, 770, 1134-Officers of Justice Salary Act, R.S.Q., 1941, 24, 10... 10.-See
Negligence - Motor vehicles - Evidence- Collision between Crown's vehicle Prima facie case of negligence-Onus loquitur as against Crown ............
2.-Foreshore-Public harbour-Dispute between Dominion and Province as to ownership-Provincial order in council recognizing Dominion's right-Power to pass-Validity of-Whether authorizing legislation necessary -Admission of fact contained in order in council-"Public Harbour" in B.N.A. Act- Whether Coal Harbour a "public harbour"- Transfer of Crown land Province to Dominion-Residuum of royal prerogative- Crown grant of land "with appurtenances"- Land or foreshore not included in-Prescription-Nullum Tempus Act-Riparian rights CROWN-Concluded
-Erection of building and making of fill on foreshore-Whether mesne profits due the
3.-Assessment and taxation (municipal)
-Crown's interests-Construction and production contracts between Crown and industrial company-Sale of land Company to
Crown and building of plant for war purposes
Company for the Crown-Agreements stipulating Company to act on behalf
Crown and as its agent-Claim municipal authority against Company for property and business taxes-Company erroneously described as "proprietor"-Company not liable for taxes-Company, under contracts, being
Crown, and not the Company, being "occupant" of land and building-Sections 362 (a)
and 868 of the Montreal City Charter.. . 621
4.-See
3;
DAMAGES - Personal injury - Amount awarded jury held so large that a jury appreciating the evidence could not reasonably have awarded it-New assessment ordered.
Co.
2.-See 4, 6.
DEBENTURES.
DEBT ADJUSTMENT ACT, 1937 (AL- BERTA).
DENTISTRY.
DEPENDANTS' RELIEF ACT (R.S.S.
1940, c. III).
DISCOVERY (EXAMINATION FOR).
EDUCATION ACT (QUEBEC)-Assessment and taxation-Building of a dissentient school-Borrowing of moneys trustees- Bonds or debentures issued-Resolution adopted Trustees under section 244 of the
Education Act-Stipulating that a special tax
"shall levied annually"-Whether wording of resolution sufficient to create a tax-Whether resolution otherwise legal and regular- Privilege on immovable for school assessment
-Property owned dissentient when taxed and later sold to a Roman Catholic-Scope the tax exemption granted to religious corporations under sections (3) and 424-Issue of bonds or debentures authorized under sec- EDUCATION ACT (QUEBEC)-Cone. tion 246-Whether both the bonds or debentures and the resolution providing for their issue are validated thereby-The Education Act, R.S.Q., 1925, 133, now R.S.Q., 1941, c.59 ..............................
ESTOPPEL. See 1.
EVIDENCE-Criminal law-Trial-Appeal from affirmance court of appeal of conviction for murder-Appellant and others jointly indicted and tried together-Written confessions other accused admitted in evidence- Sufficiency and timeliness of warning trial Judge to jury that confession put in is evidence only against person making it-Defining "murder" to the jury-Criminal Code, s. 259 (a) (b)-Criminal Code, 69 (2) (several persons forming common intention prosecute unlawful purpose, etc.)-Inapt illustration to jury-Application of the law the evidence-No substantial wrong or miscarriage of justice (Criminal Code, s. 1014 (2)). KING
2.-Dispute between husband and wife as to ownership of land-Findings of fact -Evidence-Accounting.
3.- Criminal law-Possession night implements of housebreaking-Ordinary tools of the accused's trade as truck driver-Proof of unlawful purpose-Lawful excuse-Onus proof-Evidence-Sufficiency-Criminal Code, section 464a................... 4.-Criminal law-Charge of rape-Evidence-Corroboration-Charge to jury-Misdirection-New trial .................
5.-Negligence-Motor vehicles-Crown- Collision between Crown's behicle and another vehicle-Claim for damages against Crown- Crown's vehicle skidding across highway into path of other vehicle-Prima facie case negligence-Onus of explanation-Nature onus-Whether onus discharged in the circumstances-Res ipsa loquitur as against 6.-Application to quash by-law of municipality-Allegations that by-law not in the public interest nor passed in good faith- Onus of proof....................... 7.- Shipping-Claim for damaged cargo -Practice and Procedure in Admiralty cases in Exchequer Court-Examination for discovery-Mere fact that transcription of examination was returned the court and deposited on trial judge's desk with other papers did not make it evidence-Art. 288 of Quebec Code EVIDENCE-Concluded
Civil Procedure not applicable, though action commenced and tried in Quebec-Examination, though allowed trial judge to be included in settling the case on appeal to
Supreme Court of Canada, should be disregarded...........................
8.-Life insurance-Provision in policy for "double indemnity" if insured's death resulted from "external, violent and accidental" cause, but not applicable in case of suicide-Insured burned to death in fire in his barn-Whether death "accidental"-Onus of proof-Presumption against suicide- Inferences from facts in evidence .......
9.- Criminal law-Trial on charge of rape
-Question whether trial judge should have charged jury as to possible alternative findings of lesser offence-Question whether failure of accused to testify was made subject of comment, contrary to Canada Evidence Act,
R.S.C. 1927, c. 59, s. 4 (5)........... 319
10. - Contract - Construction - Alleged breach-Whether contract ambiguous-Extrinsic evidence-Conduct of parties-Party not replying to letters from other party which assumed rights consistent with latter's contention as to effect of the contract .......
11.-Will-Action in contestation-Propate-Validity-Omus probandi-Res judicata-Object and effect of probate-Arts. 857 and 858 C.C........................
EXAMINATION FOR DISCOVERY.
.
EXCHANGE -Bonds of company
Redemption before maturity-Payment in American or Canadian funds at the option of holder-Redemption date-Date of presentation-Exchange rate not same on those dates- Rate at which bonds are payable.......
EXECUTORS
AND
ADMINISTRAT- ORS-Costs-Direction in will that fund be set apart for benfit of testator's daughter- Executors and trustees of the will also trustees of the fund-Unsuccessful action by daughter against the executors and trustees with regard to the fund as set up-Question out of what fund (said fund or the residuary estate, or both) the solicitor and client costs incurred by the executors and trustees in said action (to the extent that they exceeded the party and party costs) should be paid ...........
FORECLOSURE.
FORESHORE.
HABEAS CORPUS-Constitutional law- Criminal law-Conviction of applicant under Criminal Code-Application for habeas corpus granted by a judge of British Columbia by Attorney General to Appeal Court-Jurisdiction to hear appeal-Appeal Court reversing judgment and ordering rearrest-Provisions of section 6 of Appeal Court Act of B.C. granting right to appeal- Inoperative if applicant convicted for a criminal offence under Criminal Code-Exclusive jurisdiction of Federal Government to authorize such appeal-B.N.A. Act, sections 91 (27) and 92 (18).-The provisions of section 6 of the Court of Appeal Act of British Columbia (R.S.B.C. 1936, c. 57), granting a right to appeal to the Court of Appeal in a habeas corpus matter are inoperative, if the applicant for that writ is detained in custody by virtue of a conviction for a criminal offence under the Criminal Code.- The Chief Justice dissenting. The Dominion Parliament has exclusive jurisdiction to authorize such an appeal under section 91 (27) of the British North America Act, 1867 ("Criminal law * * *, including the Procedure in Criminal Matters"); and a Provincial Legislature has no such power under section 92 (13) of that Act ("Property and Civil Rights in the Province").-The Chief Justice dissenting. In re HARBOUR.
HIGHWAYS-By-law of Rural Municipality for closing of road-Validity-Application to quash-Municipal Act, R.S.M. 1940, c. 141-Period within which application to quash must be made (s. 389 (1))- Approval of Minister (Municipal Commissioner) (s. 478)-Jurisdiction of courts- Allegations that by-law not in the public interest nor passed in good faith-Onus of proof-"Excluded from ingress or egress" (s. 468)-Compensation (s. 468) not dealt with in by-law...................... 2.-See 2; RAIL- HUSBAND AND WIFE-Dispute between husband and wife as to ownership of land- Findings of fact below-Evidence-Accounting.
2.-Incorporated company formed exclusively of husband and wife-Hypothec given by wife as security for company's debts-- Validity-Husband's shares fully paid up- Allegation of fraud by the wife-Immaterial whether husband has more or less shares than IS.C.R. HUSBAND AND WIFE-Concluded the wife-Article C.C.-Where husband and wife are shareholders in an incorporated company, in this instance formed exclusively of both of them, the wife cannot guarantee the debts of the company, even if her husband's shares were fully paid up, because by so doing she obliges herself for her husband in contravention of article 1301 C.C.
Such obligation is an absolute nullity, or, in the words of the article, "is void and of no effect". Allegation of fraud on the part of the wife has no bearing in such a case.
Article 1301 C.C. is for the purpose of protecting the wife, has always been regarded as a matter of public order and must receive its application under all circumstances. In the present case, the deed of hypothee subscribed to by the wife was given not for her own benefit but for the security of the company's debts. It is immaterial whether the usband held more or less shires than the wife; it is sufficient that he held a substantial interest in the company. Trust & Loan
Company of Canada ([ 1904 1 A.
La Banque Canadienne Nationale v. Audet
([1931] S.C.R. 293) foll.
SILKS Co.
3.-Application by testator's widow under
The Dependants' Relief Act, R.S.S. 1940, c.
111-S. 8 (1) (2)-On finding that reasonable provision not made by will for her maintenance, question as to effect of s. 8 (2) as to extent of allowance to be awarded ......
4.-Insolvency-Acion by trustee to annul deed of sale-Practice and procedure-Party interested not joined in the proceedings before the Court-Dismissal of action-Husband and wife-Married woman appearing as plaintiff-Want of marital authorization- Absolute nullity-Party to the deed not made defendant or mis-en-cause but acting as coplaintiff with trustee-Whether sufficient to allow the Court to adjudicate-Arts. 176, 183,
1032 et seq. C.C...................
INDEMNITY.
INSOLVENCY.
INSURANCE (LIFE)-Provision in policy for "double indemnity" if insured's death resulted from "external, violent and accidental" cause, but not applicable in case of suicide-Insured burned to death in fire in his barn-Whether death "accidental"-Onus of proof-Presumption against suicide-Inferences from facts in evidence.-Plaintiff administrator of the estate of R., deceased, sued to recover under a "double indemnity"
clause in a policy issued by defendant insuring R.'s life (the amount payable simply on death had been paid). The "double indemnity" was payable "upon receipt of due
INSURANCE (LIFE)-Continued proof" that R.'s death "resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause". It was not payable if R.'s death resulted from (inter alia) self destruction or any violation of law by him. He was a successful farmer. He had an asthmatic condition but otherwise was well. On the day before the day on which he died, his wife, during a quarrel, threatened to leave him (as she had threatened in quarrels on previous occasions), and the next morning, on his asking if she still "figured on leaving him", she replied "yes" (though she had made no preparations to leave), and, according to her evidence, he said it would spoil his life, he "couldn't face it". Shortly afterwards his barn was found to be on fire; it was completely destroyed, and his remains were found in its ruins. The trial Judge dismissed the action ([1944] 1 W.W.R. 129), finding, in view of R.'s said statements, that he had committed suicide. That judgment was reversed by the Appellate Division, Alta., ([1944] 2 W.W.R. 68). Defendant appealed.
Held (affirming the judgment of the Appellate Division), that plaintiff should recover under the double indemnity clause. Rand J. dissented. Per the Chief Justice and Kerwin J.: It is evident from the trial Judge's reasons that, but for R.'s said words on the morning of the fire, he would have concluded that R.'s death was due to an accident within the meaning of the policy. An appellate court is in as good a position as the trial Judge, in such a case, to draw the proper inference; and, under all the circumstances, the evidence did not lead to a finding of suicide. There is a presumption against the imputation of crime.
That presumption is not overcome merely by proof of motive (also, there was no reasonable motive suggested in this case). The burden upon plaintiff to show that R.'s death came within the terms of the double indemnity clause did not require plaintiff to show that the fire itself was started accidentally.
Plaintiff was required only to produce such evidence as would warrant a court in finding that R.'s death, which undoubtedly occurred by reason of the fire, resulted from a bodily injury that was effected solely through an accidental cause (no question arises as to the cause being external and violent). The fire may have been started innocently by R. or innocently or intentionally by some one else; so long as R. did not start the fire with intention of committing suicide or place himself in the barn with that intention after a fire had been otherwise started, plaintiff must succeed. Per Taschereau J.: Plaintiff had satisfied the burden upon him to show that R.'s death resulted from an "external, violent and accidental cause" within the meaning of the double indemnity clause. All the circumstances as revealed by the evidence (and bearing in mind that courts act upon the "balance of probabilities") lead INSURANCE (LIFE)-Concluded to that conclusion.
The case is one where an appellate court may draw its own inferences from the proven facts.
Suicide is a crime and there is a legal presumption against the imputation of crime.
Motives are very unreliable and cannot be classified as an accurate determining cause of human deeds, which they often influence in different ways; taken alone, they have very little probative value; and those alleged in this case do not rebut the presumption against suicide.
Per Estey J.: The case is one in which an appellate court is in the same position as the trial Judge as to drawing inferences of fact. R.'s words to his wife on the morning of the fire, when read in relation to all the other facts, do not justify an inference of suicide.
On the issue of
"accidental" death, plaintiff was entitled to invoke the inference against suicide, which inference was not "destroyed or attenuated"
by R.'s said words.
On the evidence it must be found that the cause of death was the fire and that that was an "external, violent and accidental cause" within the meaning of the double indemnity clause.
Per Rand J., dissenting: To recover under the double indemnity clause, plaintiff must show death by accident. That onus remained on him; and if, with the presumption against suicide and its underlying probative force properly applied, the evidence compels the Court to say that on the whole case the probabilities of accident or suicide are in equal balance, plaintiff must fail. The presumption against suicide arises from mankind's experience that a human being normally and instinctively shrinks from it.
That general reaction the Court, in considering all facts before it, will keep in mind; but it, treated as a fact, is to be looked upon as any other circumstance in the particular situation.
In the present case there was in the whole of the circumstances, including the weight of the factors in experience, sufficient to leave the Court in doubt whether R.'s death was brought about by his intentional act or by accident;
and in that state of things plaintiff's burden had not been discharged.
The Appellate
Division had acted upon inferences which the undisputed facts did not warrant and at the same time had applied them to a burden of proof on defendant which the issue between the parties did not raise.
The action should be dismissed.
YORK
LIFE v. SCHLIrr. 289
JUDICATURE ACT AMENDMENT
ACT, 1942 (ALBERTA).
LABOUR UNIONS.
See 9.
LEASE-Agreement called "lease"-Enjoyment of water power rights and immoveables appurtenant thereto-Action for unpaid
LEASE-Concluded
"rental" instalments-Renewal periods of 21 years-Same stipulated "for ever"-Validity of agreement during current period-Whether agreement a "lease" in perpetuity-Such lease not contrary to law of Quebec-Resolutory condition in the agreement-Crown entitled to claim back power rights-Whether agreement contrary to public order-Validity of the agreement during current period- Agreement not illegal, and, if illegal, merely voidable-Articles 990, 1598, et seq., 1608, 1609, 1657, 1660 C.C........... 2.-See
LEAVE TO APPEAL.
See 1, 2, 4, 9.
LIFE INSURANCE.
See (LIFE).
LIMITATION OF ACTIONS-Prescription as against the Crown............. MESNE PROFITS.
MORTGAGE-Foreclosure action-Authorized permit of Debt Adjustment Board- Permit cancelled after action brought-Whether any effect from cancellation-Period redemption shortened order nisi-Whether order interlocutory or final-Jurisdiction judge making it-Judicature Act, section 34 (f)-Interpretation of sub-paragraphs (ii) and (iii)-Judicature Act, Amendment Act R.S.A., 1943, 139-Roy Plourde ([1943 S.C.R. 262) referred.-The respondent was granted a permit by the Debt Adjustment Board to commence and continue a foreclosure action against the appellants. Aside from filing and serving the statement of claim, no further steps were taken until after the cancellation of the permit by the Board. Immediately thereafter the appellants filed their statement of defence alleging the cancellation of the permit and that no permit authorizing the commencement or continuation of the action was outstanding as required by the Debt Adjustment Act, 1987. The respondent then moved for an order striking out the statement of defence and fixing the amount owing under the mortgage and a period within which the appellants might redeem. Upon the return of the motion, Sheperd J. found a sum of $9,246.69 to be due, fixed a redemption period of four months and directed that in default of payment the property might be offered for sale. No appeal was taken from that order and, upon default of payment, O'Connor J. directed a final order vesting the property in the respondent, which order was affirmed by the appellate court. The appellants contended before this Court that they have been improperly denied the MORTGAGE-Continued benefits of the Judicature Act Amendment
Act, 1942, whose provisions stipulating a redemption period of one year were alleged to be mandatory.
The judgments of the
Courts below were rendered at a time when that Act had been declared ultra vires by the Appellate Division and, subsequently, the Act was held by this Court to be intra vires. The appellants also contended that the cancellation of the permit placed them in a position as if no permit had ever been issued; that, the order nisi having been made without giving effect to the Act, such error vitiated the right to make the final order of foreclosure and vesting, and that the respondent had not made the required specific application to shorten the period of redemption fixed under s. 34 (f) of the Act.
Held that the appeal should be dismissed with costs. Held, also, that the order nisi cannot be regarded as an interlocutory order within the meaning of Alberta Rule No. 609, as it finally disposed of the rights of the parties. The order being valid and subject to appeal and no appeal having been taken, the final and vesting order was therefore validly made.
Estey J.: Section 34 (f) of the Judicature
Act Amendment Act, 1942, does not apply to the respondent's action. Sub-paragraph
(iii) (b) of paragraph (f) expressed in clear terms that such paragraph does not apply to "any action authorized by a permit granted by the Debt Adjustment Board".
Per the Chief Justice and Estey J.: The use of the words "any action authorized" in subparagraph (iii) (b) refers to the commencement as distinguished from a step in, or a continuation of the action.
The respondent's action, when commenced, was authorized by a permit, and the cancellation of the permit did not place the appellants in a position as if no permit had ever been issued.
Per the Chief Justice and Estey J.: Section
34 of the Amendment Act merely gives direction with respect to the terms to be granted in certain orders nisi, but it does not purport to confer jurisdiction on the judge. Any failure to follow or misconstrue its provisions is a mistake in law which would provide a proper basis for an appeal, but does not involve any question of jurisdiction. Per the Chief Justice and Kerwin and Estey JJ.: The judge at the time he made the order nisi for sale, was bound by the judgment of the Appellate Division declaring the Amendment Act ultra vires, and accordingly paid no attention to it.
Per Kerwin J.: However, he had power on an "application" to decrease the period of redemption, having regard to certain circumstances set out in the enactment; he did in fact decrease the period and whether he did so on "application" is immaterial as his order was not appealed from. Per Kerwin and Hudson JJ.: Even if this Court had power on this appeal to alter the terms of the order nisi, this case in view of its circumstances is not one where that should be done.
MORTGAGE-Concluded
Per Kellock J.: The order cannot be treated as no order, but should be treated as an order made under the jurisdiction which in fact existed.-The fact that the proviso in paragraph (f) of section 34 applies to clauses (i) and (ii) renders clear the meaning of the words "on application" in the proviso.
Where the case is one within clause (i), a special application must be made because the order nisi has already been made; while, if the case is within clause (ii), there is no good reason why the jurisdiction given by the proviso cannot be exercised on the application for the order nisi.
The notice of motion given by the respondent entitled the judge hearing the application to abridge or enlarge the period of one year under the jurisdiction given to him by the proviso.
Judgment of the Appellate Division ([1943] 3 W.W.R. 669; (1944] 1 D.L.R. 300) affirmed. MOTOR VEHICLES- Negligence-Automobile-Person invited driver who was also owner-Accident-Injury to passenger- Damages-Invitation made and accepted in Quebec-Accident occurring in Ontario- Negligence of driver proven-Conflict of laws -Whether Quebec or Ontario law applicable- Driver liable, if negligence actionable under Quebec law and punishable under Ontario law -Agreement benevolent driver to carry passenger as a favour-Not a contract transport nor a "contrat de bienfaisance"- Arts. 1053 and 1054 C.C.-Criminal Code, s. 285-Highway Traffic Act (Ont.) R.S.O., 1937, 288, as amended in -1989 3 VI, 20, 6.-The respondent, having accepted in Montreal an invitation from the wife of the appellant to accompany them on a trip to Ottawa, was seriously injured as the result of an accident occurring in Ontario.
The automobile was owned and driven by the appellant. The respondent's action for damages was maintained by the trial judge for an amount of $5,536.18, which judgment was affirmed by the appellate court. Held that the appeal to this Court should be dismissed. Upon the evidence, the negligence of the appel ant has been established; and the respondent was entitled to maintain her action, as such negligence, actionable under the law of Quebec, was punishable under the law of Ontario. Per The Chief Justice and Hudson, Taschereau and
Estey JJ.- The respondent has fulfilled the two conditions required in order to establish the liability of the appellant: first, the negligent act of the appellant was a quasi-offence for which the respondent would have recovered damages in Quebec, if the act had been committed in that province, and, secondly, the respondent has established that such act was "wrongful" i.e. "non justifiable", and therefore punishable under the law of Ontario, as it has been established that the 50887-4
MOTOR VEHICLES-Continued appellant has driven his car "without due care and attention", in violation of a statutory law of that province (Highway
Traffic Act, s. 27). Per The Chief Justice and Taschereau and Estey JJ.-An agreement between the benevolent driver of an automobile and a passenger whom he has invited to travel with him, as a favour, is neither a contract of transport, which necessarily implies an onerous remuneration, nor a contract of prestation of gratuitous services, generally called "contrat de bienfaisance".
Therefore, no "responsabilit6 contractuelle" can be incurred by a benevolent driver; and any claim by an invited guest must derive from an offence or a quasi-offence.
Canadian National
Steamships Co. Ltd. v. Watson
S.C.R. ref. McLEANv. 62
Highways
Crown-Collision between Crown's vehicle
Prima facie case of negligence-Onus loquitur as against Crown.-A Bren gun carrier owned by the Crown and driven in the course of his duties by a member of the armed forces of Canada, while proceeding westerly on a highway in Ontario about
1.45 p.m. on January 1943, skidded so that its rear part was across the south side of the road in the path of the suppliant's motor ambulance which was proceeding easterly on its right side of the road; and a collision resulted.
The suppliant's claim against the Crown for damages was dismissed by Thorson J., [1944] Ex. C.R. 17, who held that the suppliant had not established a case of negligence against the
The suppliant appealed.
(Kerwin and Rand JJ. dissenting): The appeal should be allowed and the suppliant should have judgment for damages.
driver of a vehicle meeting another vehicle on a bighway has a duty under s. 39 (7) of the Highway Traffic Act (R.S.O. 1937, c.
288), and there is a similar duty at common law, to allow to the other vehicle one half of the road free; and a breach of that duty, occasioning damage, will establish a prima facie case of negligence against such driver, casting upon him the onus of explanation
(the nature of this onus discussed).
Such explanation should (in the words of Lord
Dunedin in Ballard v. North British Ry. Co.,
60 Sc. L.R. 441, at 449) "show a way in which the accident may have occurred without negligence".
Such a way was not, in the circumstances of this case, shown by the mere fact of the skidding (which, by itself, is a "neutral fact", equally consistent with negligence or no negligence) nor by the evidence (on proper inference from the facts established by evidence accepted by the trial judge).
(The phrase res ipsa loquitur is applicable to a claim against the
MOTOR VEHICLES-Concluded Crown under s. 19 (c) (as enacted by 2 Geo. VI, 28) of the Exchequer Court Act. The negligence spoken of in s. 19 (c) may be established by legitimate inference from facts proved by the application of the phrase.)
Per Kerwin and Rand JJ., dissenting: The evidence did not justify a finding of negligence on the part of the driver of the carrier. Skidding on a slippery road cannot be taken per se as negligence on driver's part. Even if the doctrine res ipsa loquitur applies to the Crown (which it was unnecessary to determine), the explanation by a witness (who considered that the skid had been caused by the left tread striking a smooth or icy patch on the road, though he could not find any), taken in the light of the circumstances, was sufficient to displace any onus resting upon the Crown. & Co. LTD. v. THE KING ...... Negligence-Jury trial-Automobile collision-Highway with smoke- Driver turning to left avoid government truck-Head-on collision with approaching car-Finding of jury as to negligent act appellants' driver-Whether it comes within allegations of negligence in statement of claim -Charge to jury as to respective duty drivers-Trial judge reading from reported judgments - Mis-direction - Issues between parties not adequately presented nor sufficiently tried-New trial................ 4.- Collision-Action for damages-Jury's findings-Principles applicable on question as setting them aside............... 5.- MUNICIPAL CORPORATIONS-By-law of Rural Municipality for closing of road- Validity-Application to quash-Municipal Act, R.S.M. 1940, 141-Period within which application to quash must made (s. 389 (1))-Approval of Minister (Municipal Commissioner) (s. 473)-Jurisdiction of courts-Allegations that by-law not in the public interest nor passed in good faith- Onus of proof-"Excuded from ingress egress" 468)-Compensation (s. 468) not dealt with in by-law.-The appeal was from the judgment of the Court of Appeal for Manitoba (51 Man. R. 314) which (reversing the judgment of Donovan J., ibid) dismissed the present appellant's application for the quashing of a by-law of a Rural Municipality (the present respondent) for the closing of part of a government road allowance within the municipality. This Court now afirmed the dismissal by the Court of Appeal of the application to quash the by-law.
Hudson, Taschereau and Estey JJ.: (1) The period of one year within which, under s. 389 (1) of The Municipal Act, R.S.M. 1940, 141, such an application must be made is to be computed from the date of the passing of the by-law by the municipality, not from the date of approval of the by-law by the
Minister under s. 473 (before which date it does not come into force).
(2) Though such a by-law has been approved by the Minister under s. 473 (and notwithstanding that, under s. 473, it "when so approved shall be valid, binding and conclusive, and its validity shall not thereafter be questioned in any court * * "), the courts have jurisdiction to pass upon its validity. S. 473 does not authorize the municipality to go beyond its statutory powers, nor permit it to exercise its powers otherwise than in the public interest and in good faith.
(3) A by-law passed by a municipality, if not passed in good faith and in the public interest, is a nullity, and is not made otherwise by lapse of time, approval, registration or promulgation. (4) The onus of proving that a by-law was not in the public interest or passed in good faith is upon the applicant moving to quash -it. (5) Courts have recognized that the municipal council, familiar with local conditions, is in the best position of all parties to determine what is or is not in the public interest and have refused to interfere with its decision unless good and sufficient reason be established.
(6) The mere fact that the closing of a highway benefits some and adversely affects others does not determine the question of public interest.
All the circumstances must be surveyed. In the present case, regard should be had to the scheme of settlement that obtained in the municipality, the limited use of the highway in question, the fact that the municipality did not close all of the highway because of its desire to leave a way of ingress and egress to and from the applicant's land, and particularly the fact that the controversy had continued over a period of years during which the municipal council had had the question brought before it at the instance of both groups (those for and those against the closing) upon many occasions.
(7) The evidence did not establish that the members of the municipal council had acted, as alleged, "not in the public interest" or
"in bad faith and through fraud and partiality".
(8) As the closing was only of the easterly mile and a half of the road, leaving open the half mile passing westward along the north of the applicant's property, thereby preserving his way of ingress and egress westward to a north-south highway, he could not successfully contend that, within the meaning of s. 468 of said Act, he
"will be excluded from ingress or egress" so as to require provision for "some other convenient way of access". (9) The compensation or provision therefor, mentioned in s. 468, need not be dealt with in the by-law itself. The omission to do so does not affect the rights of the applicant with respect to any claim that he may have for compensation. (10) On the evidence it must be held that the Minister approved the by-law with
MUNICIPAL CORPORATIONSfull knowledge of the position taken by the municipality with respect to a certain other road which it had been suggested should be made passable as an alternative road to that closed.
A finding by the trial Judge and facts in evidence disposed in the Minister's favour of any question of bad faith or misconduct on his part. There was no evidence to suggest any collusion whatever between the municipal council and the Minister.
(12) See. 7 (1) of The Manitoba Expropriation Act (R.S.M. 1940 68) provides a method of closing highways (not required as such) of the Province's own initiative and without any consultation with the municipalities. It has no application in the present case.
v. THE 2.-Agreement between City of Ottawa and Ottawa Electric Ry. Co., ratified and confirmed 84, statutes of Canada, 194- Application City to Board of Transport Commissioners for decrease in fares chargeable Company-Question whether City had complied with proceedings required before making application-Form of resolution City Council-Interpretation of agreement, statute-Words of provision, whether imperative, or directory only ................
NEGLIGENCE-Motor vehides-Collision for damages-Jury's findings- Principles applicable on question as to setting them aside.-In a case tried by a jury, the question whether there is any evidence on any particular issue is distinct from that whether the jury's verdict may stand as being one to which reasonable men might have come. In the latter enquiry the principles to be followed are as set forth in McCannell v. McLean, S.C.R. 341, where it is said at p. 343: "The verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it".
If, however, there is no evidence then an appellate court has the right and the duty to set aside the verdict. The present action was for damages for death of a passenger in a motor car which collided with defendant's coach.
The jury found negligence against defendant and against the driver of the car in which the deceased was a passenger, and apportioned the fault. This Court held that, as to one finding against defendant by the jury, reading it in connection with all the answers of the jury, it was fairly arguable that it fell within negligence alleged, and, in accordance with the principles above mentioned, the action should not be dismissed; but, as to the other finding against defendant by the jury, there NEGLIGENCE-Continued was no evidence to support it, and as this wrongful finding might have influenced the jury in their apportionment of fault, there should be a new trial.
PAYNE.........
2.-Trespass to the person-Torts-Surgery - Indemnity -- Contribution - Judgment for damages against doctor and dentist for unauthorized extraction of teeth while patient under anaesthetic for purpose of another operation-In third party proceedings, indemnity or contribution claimed by dentist against doctor-Facts held not to provide a basis upon which indemnity could be recovered, but judgment given for contribution-Contributory Negligence Act, R.S.B.C. 1936, c. 5S.- Judgment had been recovered against appellant, a doctor, and respondent, a dentist, for damages for unauthorized extraction of some of plaintiff's teeth while she was under an anaesthetic for the purpose of an operation by appellant to remove her tonsils.
Respondent had not talked with plaintiff before making the extractions, but had had conversations with appellant, who had had conversations with plaintiff and made with respondent the appointment for extractions.
Respondent had taken third party proceedings against appellant, claiming indemnity or contribution in respect of any liability to plaintiff found against him, and at trial recovered a judgment for indenmnity (60
B.C.R. 395), which was, by a majority, affirmed on appeal 1 W.W.R. 405)
(the dissenting judges holding that respondent was not entitled to indemnity but was entitled to contribution on the basis of equal liability). On appeal to this Court: Held:
U pon the evidence, the facts did not provide a basis upon which respondent could recover from appellant by way of indemnity. The conversations between them were not such as to amount to a request, instruction or message from appellant to respondent which justified respondent in removing the teeth.
In the extractions being done without plaintiff's consent, both appellant and respondent were negligent, even though they may have believed, upon respondent examining the teeth, that they were acting in plaintiff's best interests (professional duty in such circumstances discussed). But the case was a proper one, under the provisions of the
Contributory Negligence Act, R.S.B.C. 1936, and respondent; their pleadings raised the question of fault and the evidence throughout was led with regard thereto and established that their fault or negligence led them to so conduct themselves that in law they committed a trespass; a trespass may be the result of negligent conduct; they should be held equally at fault and each should bear one-half of the total loss as fixed by the v.PARMLEY........................
3.- Motor vehicles-Highways-Evidence
-Crown-Collision between Crown's vehicle
NEGLIGENCE--Concluded
Prima facie case of negligence-Onus of loquitur as against Crown............ . 143 4.-Alleged negligence in performance of contract-Removal of equipment in kitchen of hotel-Oxy-acetylene torch used to cut ducts- Fire breaking out, damaging the hotel- Liability for the damage-Effect on liability of change made, at wish of hotel manager, in proposed place of cutting the ducts during the w ork ... .......................... 5.-Criminal law-Child drowned in oil well-Charge against owner of failing to guard the well adequately-Criminal Code, sa. 247, 284, 287 (b)-Child a trespasser-Duty and responsibility of owner of well ......... 6.-Jury trial-Automobile collision- Highway covered with smoke-Driver turning to left to avoid government truck-Head-on collision with approaching car-Finding of jury as to negligent act of appellants' driver- Whether it comes within allegations of negligence in statement of claim-Charge to jury as to respective duty of drivers-Trial judge reading from reported judgments-Mis-direction-Issues between parties not adequately presented nor sufficiently tried-New trial. 441 See TRIAL 2.
7.-Railways-Truck at night running into railway train standing across highway- Action for damages against railway company -Alleged condition of fog-Extent of duty of railway company-Sufficiency of its precautions by way of signs and warning signals. 609 8.- NEW TRIAL.
NULLUM TEMPUS ACT-9 Geo. III, c. 16.-Prescription as against the Crown. 385 ORDER IN COUNCIL-Giving right of appeal in cases of offences against wartime regulations-Extent of right of appeal to Supreme Court of Canada............ 2.-See
4; PARTIES-Insolvency-Action by trustee to annual deed of sale-Practice and procedure- Party interested not joined in the proceedings before the Court-Dismissal of action-Hus- PARTIES-Concluded band and wife-Married woman appearing as plaintiff-Want of marital authorization- Absolute nullity-Party to the deed not made defendant or mis-en-cause but acting as coplaintiff with trustee-Whether sufficient to allow the Court to adjudicate-Arts. 176, 188,
1082 et seq. C.C.....................
2.-See 4.
PHYSICIANS AND SURGEONS.
PRACTICE AND PROCEDURE-Insolvency-Action by trustee to annul deed of sale
-Practice and procedure-Party interested not joined in the proceedings before the Court
-Dismissal of action-Husband and wife- Married woman appearing as plaintiff- Want of marital authorization-Absolute nullity-Party to the deed not made defendant or mis-en-cause but acting as co-plaintiff with trustee-Whether sufficient to allow the Court to adjudicate-Arts. 176, 188, 1082 et seq.
C .C ...............................
2.-Mortgage-Foreclosure-Order nisi.
3.-.See 1; and, in general,
PRESCRIPTION-As against the Crown.
See LAW 2.
PROBATE.
PUBLIC HARBOUR.
QUEBEC PUBLIC SERVICE BOARD- Jurisdiction........................
RAILWAYS- Negligence-Truck at night running into railway train standing across highway-Action for damages against railway company-Alleged condition of fog-Extent of duty of railway company-Sufficiency of its precautions by way of signs and warning signals-Appeal-Judgment at trial against defendant-New trial ordered by Court of
Appeal-Defendant, in formal notice of appeal to Court of Appeal, asking in alternative for new trial-Whether this affected adversely defendant's further appeal to
Supreme Court of Canada, in view of stands taken by defendant on the hearings of the
50887-5
RAILWAYS-Continued appeals.-Plaintiff, while driving his truck through Carleton Place, Ontario, at night on November 30, 1942, ran into defendant's freight train which was standing across the highway, and sudtained injuries for which he sued defendant for damages. The usual railway-crossing signs were there as required by the Dominion Railway Act, and also defendant had erected a standard which carried a bell, which was ringing, and above the bell was a light, which was burning. The windows of the truck were closed. Plaintiff did not hear the bell nor see the light. There was conflicting evidence as to existence of fog. At the trial the jury found plaintiff and defendant equally in fault, finding that defendant's negligence was "improper protection of the crossing under existing weather conditions.
We feel that if this crossing had been protected by visible sign such as a wig-wag with light or flashing light, that the accident could have been avoided". The trial Judge gave judgment for plaintiff in accordance with findings of the jury. Defendant appealed to the Court of Appeal for Ontario, which ordered a new trial ([1940] O.R. 44). Defendant appealed to this Court.
While defendant's formal notice of appeal to the Court of Appeal asked in the alternative for a new trial, its counsel before that Court argued only for dismissal of the action and its counsel before this Court stated that defendant's appeal was from the refusal by the Court of Appeal to dismiss the action and, if he failed in that, he was satisfied to have the judgment at trial restored.
Held: (1) Defendant's appeal should be entertained. Under the circumstances, the rule set forth in Ainslie Mining. & Ry. Co. v. McDougall (40 Can. S.C.R. 270), Mutual Reserve v. Dillon (34 Can. S.C.R. 141) and Delta v. Wilson (Cameron's S.C. Prac., 3rd ed., p. 110) did not apply.
(2) Defendant's appeal should be allowed and the action dismissed. Assuming that the jury's finding above quoted was a finding that the fog was "so dense in front of you that you could not see", as testified to by plaintiff, there was no basis on which defendant could be held liable. Defendant was entitled to have its train standing where it was at the particular time; nothing was being done by defendant or its employees to create a dangerous situation; and even if the fog existed to the extent suggested, defendant was not required to take further precautions than it had done in the way of signs and warning signals.
There was no common law duty upon defendant under the circumstances to take special measures of warning to persons on the highway while the train was stopped on the crossing, and the jury was'not the tribunal to which Parliament had entrusted the duty of determining what permanent protection should be installed (Grand Trunk Ry. Co. v. McKay, 34 Can. S.C.R. 81, at 97). RY. Co. v. g()7 RAILWAYS-Concluded
2.-"
Undertaking" of railway company declared "for general advantage of Canada"
Added power to operate auto bus service- "Subject to all provincial * * * enactments"- Tariff of tolls-Jurisdiction-Federal or provincial authority-Whether auto busses are
"works"-Section 91 (29) and section 92
(10 c.) B.N.A. Act.................
See LAW 1.
3.- RES JUDICATA.
RIPARIAN RIGHTS.
See LAW 2.
SCHOOL LAW-Assessment and taxation
-Building of a dissentient school-Borrowing of moneys by trustees-Bonds or debentures issued-Resolution adopted by Trustees under section 244 of the Education Act-Stipulating that a special tax "shall be levied annually"- Whether wording of resolution sufficient to create a tax-Whether resolution otherwise legal and regular-Privilege on immovable for school assessment-Property owned by dissentient when taxed and later sold to a Roman
Catholic-Scope of the tax exemption granted to religious corporations under sections 251
(3) and 424-Issue of bonds or debentures authorized under section 246-Whether both the bonds or debentures and the resolution providing for their issue are validated thereby
-The Education Act, R.S.Q., 1925, c. 133, now R.S.Q., 1941, c. 59..............
SECURITY
TRANSFER
TAX
(Ont., 1939, C. 45).
See TAXATION 1.
SHIPPING-Claim for damaged cargo- Estoppel-Cane sugar bags stored in old open wharf-In bad condition before loading-Bill of lading-Goods shipped "in apparent good order and condition"-Margin notation
"Signed under guarantee to produce ship's clean receipt"-Whether shipowner prevented from proving bad conditions of goods-Proper stowage of cargo on ship-Examination on discovery-Transcription merely returned to trial court and deposited before judge-Should be disregarded before this Court.-The respondent company, by a written contract dated
January
25th,
1938, purchased through brokers from B. & Co., who also acted as agents for the appellant company,
1,150 long tons of raw cane sugar, which were to be shipped to Montreal by the ship
Colborne owned by the appellant company.
The bags of cane sugar came from various plantations and were stowed in tiers on an old wooden public wharf in Georgetown,
British Guiana.
The wharf was built on piles and with large seams between the planks which in places were broken; the
SHIPPING-Continued height of the wharf over the water at high tide was two to three feet at the cap of the wharf and within a few inches at the end of the foreshore; there was a corrugated iron roof, but otherwise it was an open wharf; the front end of the bags came to the edge of the roof, but were not otherwise protected. The bags had been on the wharf for from four to nine weeks when the Colborne proceeded to the wharf to load. The season of 1938 had been unusually wet, as a result of which and of the condition of the wharf about twenty-five per cent. of the bags were in bad condition, some being stained and some torn and re-sewn, when the loading began on June 12th and was concluded late on the 13th or early in the morning of the 14th.
The stained bags were stowed and scattered all over the four hatches. The ship was seaworthy in every respect, as the trial judge found. As the bags were loaded, a tally was kept by representatives of B. & Co., the shippers-sellers, and the results of the tally were noted on a sheet which was dated at the top June 10th and addressed to the Colborne. That document was endorsed, on June 13th, by the chief tally clerk: "Correct.
Many bags stained, torn and re-sewn", that signature was followed by that of the chief officer of the ship and, at the very bottom, was stamped the signature of B. & Co. as agents for the appellant. A received for shipment bill of lading, dated June 13th, was issued by the appellant through its agents B. & Co., stating that the appellant had received "in apparent good order and condition" from B. & Co. for shipment 10,350 bags of cane sugar; and in the margin appeared the stamped notation: "Signed under guarantee to produce ship's clean receipt". The Colborne arrived at Montreal on July 3rd, where, upon usual examination by the Deputy Port Warden and after chemical analysis, it was ascertained that the cargo was damaged and that one-third of the bags were badly stained. The respondent company then sued the appellant company for damages and based its claim on two grounds: first, that the appellant was estopped from relying upon the true facts by reason of its own statement in the bill of lading that the cargo was in apparent good order and condition when received for shipment; and, secondly, that in any event the cargo was improperly stowed in that wet bags were mixed with dry bags, which consequently damaged what otherwise would have been sound cargo. The appellant company contended that there was no unqualified statement in the bill of lading that the sugar was shipped in apparent good order and condition, upon which the respondent company could, or did, rely; and also contested the second ground of action raised by the respondent. The trial judge held that a clean bill of lading had been issued by the appellant at a time when the actual condition of the goods was known SHIPPING-Continued and that the appellant was estopped from setting up that the goods were not in good order and condition; he found the appellant company responsible for the damaged condition of the bags and directed a reference to determine the quantum of damages.
The appellant company appealed to this
Court. Held that the shipowner, the appellant company, under the circumstances of this case, was not estopped as against the holder of the bill of lading, the respondent company, from proving that the bags were not in good condition when shipped. More specially, the effect of the stamped notation on the bill was that the bill contained a qualified statement as to the condition of the goods and the first element in estoppel was therefore lacking. But, even if the bill could be construed as containing an unqualified statement, the respondent never relied on it. Silver v. Ocean Steamship Co.
([1930] 1 K.B. 416) disc. Held, also, that the cargo was properly stowed and that, in any event, even if the stowage was improper, the stained wet bags did not damage what otherwise would have been sound cargo.
An officer of the respondent company was examined on discovery on behalf of the appellant. A transcription of the examination was returned to the trial court and deposited on the judge's desk with other papers.
The only use made of it was a reference to it by counsel for the appellant in a written argument after the closing of the evidence. Later, when settling the case for this Court, the trial judge, upon an application by the appellant, allowed the inclusion of the examination in the case.
Held that the examination on discovery should be disregarded by this Court. Per
The Chief Justice and Kerwin, Taschereau and Estey JJ.: The mere fact of the transcription of such examination being returned to the trial court and deposited before the judge did not make it evidence. Under Rule
75 of the Rules in Admiralty, only such parts of an examination for discovery as are actually read at the trial become part of the record.
Also, in an Admiralty case in the Exchequer Court of Canada, article
288 of the Quebec Code of Civil Procedure does not apply although the action was commenced and tried in that province. Per
Kellock J.: The examination on discovery has not been put in at the trial; and, under the provisions of section 68 of the Supreme
Court Act, there is nothing which authorizes a judge settling the case to include items whichi do not form part of the proceedings in the court below. The appeal should be allowed and the respondent company's action dismissed.
LT. v.
DomiNIoN Co. .......
2.-Collision-Ship channel divided in two branches-One ship going up and the other down stream-Whether one or both ships at fault-Confusion created by successive blasts given by both-Required signals to be
SHIPPING-Continued given from a sufficient distance and within a sufficient time to allow ships to proceed safely -Danger arising from misunderstood signals -Absence of proper look-out.-The action brought by the respondents, owners of the S.S. Roberval, her master and members of the crew and owners of her cargo on board, and the counter-claim by the appellants, the S.S. Richelieu and her owners, arose out of a collision between the two ships in the river St. Lawrence, near Three Rivers. In the vicinity of that city, the regular ship channel divides into two branches, one practically parallel to the other. Roberval was proceeding down stream and was following the north branch, while the Richelieu was coming upstream, below a buoy in the ship channel east of the junction of the two branches. The Richelieu intended to proceed by the south branch and, seeing the Roberval, gave two short blasts of its whistle to indicate that it was directing its course to port, and in fact ported. Those on the Roberval say that they heard only one blast, which would indicate that the Richelieu was directing its course to starboard. Those on the Richelieu, not hearing any immediate answer from the Roberval, stopped their engines. Immediately thereafter, the Roberval answered with one blast and thereupon the Richelieu's engines were ordered full speed astern and three blasts of its whistle were given.
The collision occurred almost immediately: the stem of the Richelieu came in contact with the port side of the Roberval, the Richelieu being practically stopped at the time of the impact.
The trial judge, holding that the Richelieu alone was to blame for the collision, maintained the action and dismissed the counter-claim.
Held, per The Chief Justice and Hudson and Taschereau JJ., that, according to the facts of the case, both ships were to blame, that the responsibility should thus be apportioned and that the judgment appealed from should be modified accordingly.
Kerwin and Rand JJ. were of the opinion that the respondents' action ought to be dismissed in toto and the counter-claim allowed.
Justice and Hudson and Taschereau JJ.: When two ships are about to meet, the required signals have to be given from a sufficient distance and within a sufficient time to allow the respective crews to take the necessary steps to avoid any peril which may arise as the result of misunderstood signals. The Richelieu was late in signalling her intention as to which channel she would follow, and, under similar circumstances, ordinary prudent seamen would not have waited as long as she did to indicate the route she was to follow. At the time of the first blast given by the Richelieu, the distance between the two ships, half a mile, was too short, the blasts were given too late and the officers of the crews did not have the necessary time to avoid the peril created by the emergency resulting from the misunder- SHIPPING-Concluded standing.
The errors of the Roberval, in trying to pass port and her failure to stop her engines in proper time when the danger was imminent, contributed to two-thirds of the accident, and the Richelieu should bear one-third of the responsibility for her delay in giving the necessary signals. Per Kerwin and Rand JJ.: The Richelieu has acted properly at all times. The signals given by her were proper because the ship was taking a course "authorized by the Rules", and they were not given too late; she also acted properly, and not too late, in stopping its engines when hearing no reply to its signal and then in reversing its engines when it did hear the one blast from the Roberval. The cause of the collision was the absence of a p roper lookout by those on the Roberval.
If they had kept a proper lookout, they would have heard the Richelieu's two blasts, and, even then, the collision might have been avoided if the Captain of the Roberval, seeing what the Richelieu was actually doing, had altered his course to port and had slowed his engines.
S.S.
CIE
LAc LimuE
STREET RAILWAYS-Agreement between
City of Ottawa and Ottawa Electric Ry. Co., ratified and confirmed by c. 84, statutes of
Canada, 1924-Application by
City to
Board of Transport Commissioners for decrease in fares chargeable by Company- Question whether City had complied with proceedings required before making application- Form of resolution by City Council-Interpretation of agreement, statute-Words of provision, whether imperative, or directory only.
-An agreement between the City of
Ottawa and the Ottawa Electric Ry. Co.
(a company incorporated by Act of Parliament of Canada), which agreement was fatified and confirmed by c. 84, statutes of
Canada, 1924, provided, inter alia, for application for increase or decrease of fares on a certain part of the Company's railway.
Clause 9 (c) of the agreement provided that
"should the revenue to be derived from the operation of [said part of the railway]
appear likely to be more than sufficient, in the opinion of the City expressed by resolution, to provide during the five year period next succeeding the five year period then current, for [items specified in clause 9 (a)], then the City may notify the Company in writing, one year before the end of any five year period, that it considers the fares excessive", and, if no satisfactory adjustment was made within one month, the City might apply to the Board (now the Board of Transport Commissioners for Canada)
for a decrease in fares. The City Council at a meeting "received and adopted" a presented report of the City's Board of Control recommending that the City Clerk notify the Company that "in accordance with clause 9 of the" said agreement, it was the
STREET RAILWAYS-Continued City's "intention to apply for a reduction in the current tariff of fares"; and the City Clerk notified the Company that "under authority of clause 'c' of section 9 of the [said agreement], the City Council, at a meeting held on * * * passed a resolution and instructed me to notify your company that it considers the present fares excessive and if no satisfactory adjustment is made within one month from * * * it is the intention of the City to apply to the Board of Transport for such a decrease in fares during the next five year period as will allow a revenue not more than sufficient to provide for the items specified in clause 'a' section 9 of the said agreement". Later the City applied to the Board for an order decreasing the fares.
The Company contended, by way of preliminary objection that before giving the notice the City had failed to express by resolution the opinion that the revenue to be derived appeared likely to be more than sufficient to provide during the next five year period in question foi said items, as required by the said agreement and statute of 1924, and that therefore the City was not entitled to give the notice or maintain its application to the Board.
That question came before this Court, by leave of the Board of Transport Commissioners, on a ppeal from holdings of the Board. Held (affirming holdings of the Board, 56 C.R.T.C. 317), that the City was entitled to give the notice and to maintain its application.
Taschereau J.: The fact that the City Council's resolution, instead of reproducing the exact words of said clause 9 (c), adopted a report which proceeded by way of a reference to the clause itself, did not justify the Company's objection. Whether the terms of the clause be held as being imperative or directory, the condition therein stated in respect of the resolution was sufficiently complied with-indeed more than substantially-and the action taken by the City Council completely satisfied the requirements of the clause. The resolution necessarily imported the City's opinion that the Company's revenues appeared likely to be more than sufficient for the purposes in question, and in effect expressed that opinion. Also, no prejudice could result to the Company on account of the alleged omission in the resolution.
Also, it was not to be assumed (nor was there any evidence) that the resolution was adopted without due deliberation and after careful consideration. (The words of said Act of 1924, so far as material in this case, merely confirm and validate the agreement and make it binding as a contract between the parties; though the Act, because of its direction to the Board and because the agreement affects the interest of the general public, may not be considered merely as providing and imposing mutual obligations on the Company and the City. Also the Act, rather than conferring a privilege of applying to the STREET RAILWAYS-Continued
Board, really restricts the parties' rights in that connection; the Company is under the
Board's jurisdiction existing under the Railway Act, and said Act of 1924 limits the right of each party to apply to the Board as to fares, to the terms and conditions of the agreement.
The agreement as ratified by the Act, in so far as clause 9 (c) is concerned, only deals with the procedure whereby the Board's jurisdiction is to be set in motion; it indicates what form will be given to the application to the Boarda certain resolution of the City Council and the notice in writing to the Company). Per
Kerwin J.: The Act of 1924 did more than merely ratify and confirm the agreement;
and the agreement should be construed as a statutory enactment. Even considered as such, the first part of clause 9 (c), down to the word "resolution", is merely directory, not imperative, and the word "then" in the phrase "then the City may notify the
Company in writing" means no more than that the parties were making provision for the City's application; it does not mean that ithe City may give notice only if it should first specifically express its opinion by resolution. The lack of a resolution expressed in the precise words used in clause 9 (c) was not fatal to the City's application made after its notice to the Company.
There was nothing to indicate that thorough consideration was not given to the matter by the
City Council, nor was there any prejudice to the Company. Per Rand J.: The provisions of the agreement dealing with fares and the Board's powers over them must be taken to have become, by the Act of 1924, the subject of statutory enactment.
But the mere expression of opinion by the City in a formal resolution is not an imperative step to the right to raise the question of fares. To the language used by Parliament in restricting the power to deal with the fares, which involves the taking away of the general privilege under the Railway Act, there should not be attributed the intention of surrounding the public trust lying on the
City Council with conditional formalities of no substantive value. The formality intended to be secured was approval of the
Council before executive action should take place, and whether that approval should lie in a resolution formally expressing the opinion of the Council, to be followed automatically by executive action, or in one instructing the giving of the notice, would be a matter of indifference.
The essential protection to the Company was that there should be no unauthorized action; that behind any step by the executive should stand the knowledge, opinion and approval of the Council. That protection was present here. The resolution directing the giving of the notice, by the necessary implication of its terms, involved the opinion of the
Council essential to the propriety of its
Per Kellock J.: The principle of
STREET RAILWAYS-Concluded the decision in Halford v. Cameron's Coalbrook Steam Coal, etc. Co. 16 Q.B. 442, applies. The resolution of the City Council did "express" (giving to that word the meaning adopted in the Halford case: "represent in words", "exhibit by language" or "shew or make known") that the City was of the opinion specified in said clause 9 (c), and was sufficient, though the word "opinion" or a similar term was not used. OTTAWA RY. V. OF OTTAWA.......................... 2.- SUCCESSION DUTY-Valuation of property for-Land with theatre building thereon- Leased for term of years-Factors and considerations in determining value-Capitalization of revenue method in valuing land- Whether wrong principle applied in the circumstances-Amount determined by Commissioner, reduced by Court of Appeal, restored by this Court.-The dispute was as to the value of certain land in Edmonton, Alberta, for purpose of succession duty. The owner died in 1942. He had granted a lease of the land in 1918 for 35 years, at fixed rentals, which increased by $937.50 every five years, starting at $5,625 per annum and ending at $11,250 per annum. The lessees were to erect and furnish, at approximate costs respectively of $48,000 and $20,000, a theatre building on the land, to insure it, keep it in repair, and pay taxes, and had the right at end of the term to remove all fixtures (repairing any damage thus caused). On assignment to an assignee who assumed liability under the lease, the lessees were to be discharged from liability. The building had been erected and the rent paid.
Alterations had been made in the building in 1928 and 1939 at costs, respectively, of about $128,000 and from $80,000 to $90,000.
A Commissioner appointed under s. 28 of The Succession Duty Act, R.S.A. 1942, c. 57, determined the value at $108,300.
On appeal on behalf of the owner's estate, the Supreme Court of Alberta, Appellate Division, by a majority, fixed the value at $65,000 ([1944] 1 W.W.R. 385). On appeal by the Attorney General of Alberta, this Court now restored the amount determined by the Commissioner. Principles to be applied and factors to be considered in determining the value of such property under the circumstances, discussed, and authorities cited.
Justice and Rand J.: It may be that the true basis of valuation is the "exchange value" (what could be got in the open market), but this can only be so when such "exchange value" can be ascertained, and in this case it could not be obtained; there was no real evidence of any such value. The Commissioner had to value the land and the building qua theatre as it was at the time of the owner's death, and he had to take the conditions as he found them as SUCCESSION DUTY-Concluded of that date. It was proper for him to take into consideration the revenue-producing qualities of the property, and the value of the lease in effect at the date of the owner's death. The capitalization of revenue method (using 8 per cent. as an interest factor, and allowing a discount for contingencies)
used by him in determining the land value should not be held to be a wrong principle, in the circumstances with which he was faced as a result of the evidence before him.
As it could not be said that he had acted on any wrong principle of law, and as his valuation was supported by evidence, his finding should not have been disturbed.
Per Hudson and Taschereau JJ.: In the circumstances of this case, the capital value must in large measure be determined by reference to revenue-producing capacity of the property.
Factors tending to reduce the value attributable to the lease were taken into account by the Commissioner and a generous allowance made in respect thereof. Agreement was expressed with his finding. Per Estey J.: The Commissioner did not adopt a wrong principle in arriving at his valuation.
He would seem to have appreciated that he had to determine the market or exchange value. He had to determine the market value, and when, as in this case, no market existed, it was his task (a difficult one) so far as possible to construct a normal market and determine the value by taking into account all the factors which would exist in an actual normal market
(one not disturbed by factors similar to either boom or depression and where vendors, ready but not too anxious to sell, meet with purchasers ready and able to purchase).
A perusal of his report indicated that he had exhaustively studied the evidence and carefully examined the factors and had reached a reasonable conclusion, which should be sustained.
(Opinion expressed that the Commissioner was in error in considering "fixtures", which the lessees had right to remove at end of the term, to mean furnishings; which error would lead to placing a slightly higher valuation on the building; but, as there was no evidence as to what the fixtures were, or were worth and as so much of the valuations were and must be approximations, the error did not justify any revision.)
In re v. CoMPANY...........
SURGERY.
TAXATION.
TRANSPORT COMMISSIONERS FOR
CANADA-Jurisdiction.
TRESPASS (TO THE PERSON).
TRESPASSER-Precaution against injury to.
TRIAL-Criminal law-Evidence-Appeal from affirmance by court of appeal of conviction for murder-Appellant and others jointly indicted and tried together-Written confessions by other accused admitted in evidence-Sufficiency and timeliness of warning by trial Judge to jury that confession put in is evidence only against person making it- Defining "murder" to the jury-Criminal Code, s. 259 (a) (b)-Criminal Code, s. 69 (2) (several persons forming common intention to prosecute unlawful purpose, etc.)- Inapt illustration to jury-Application of the law to the evidence-No substantial wrong or miscarriage of justice (Criminal Code, s. 1014 (2)).
v. THE KING......438 2.-Negligence-Jury trial-Automobile collision-Highway covered with smoke- Driver turning to left to avoid government truck -Head-on collision with approaching car- Finding of jury as to negligent act of appellants' driver-Whether it comes within allegations of negligence in statement of claim- Charge to jury as to respective duty of drivers -Trial judge reading from reported judgments-Mis-direction-Issues between parties not adequately presented nor sufficiently tried -New trial.-The respondent's car, in which the other respondents were passengers, was being driven southwards when the driver noticed a cloud of smoke being carried across the highway about a mile ahead of him, the smoke covering about feet of the length of the highway.
As he approached the smoke, he noticed just ahead of it a government truck which was collecting weeds in the ditch to have them burned; and, when near the truck, the respondent's driver had observed another car in front of him drive around it and enter the smoke, and he proceeded to do likewise. He successfully passed the truck, but beyond it his automobile came into collision with the appellants' oil truck and trailer proceeding from the south.
Neither driver saw the other by reason of the smoke until the vehicles were a very short distance apart.
As a result of the collision, the respondent and the occupants of his car were injured and an action was brought for the resulting damages. In answer to a submitted question, the jury found that the appellants' driver was negligent because "he should have stopped before entering smoke and determined the cause of smoke, especially in view of the nature of his load"; and they found also that there was no contributory negligence on the part of the respondent's driver.
The Court of Appeal held that the trial judge had mis-directed the jury and ordered a new trial. The appellants limited their appeal to this Court to that part of the judgment whereby their application for dismissal of the action was refused. They contended that the answer TRIAL-Continued of the jury was not responsive to any of the allegations of negligence pleaded by the respondents and that the finding of the jury
(if the jury found that the appellant's failure to stop before entering the smoke caused the accident) in that respect was perverse;
and they urged that the respondents' action should have been dismissed as no other finding of negligence had been made. The respondents cross-appealed, asking that the judgment of the trial judge in their favour be restored. Held that the appeal and the cross-appeal should be dismissed and that the judgment appealed from ([1944] 1
W.W.R. 634) be affirmed.
On the appeal:
Per Hudson, Taschereau and Estey JJ.: It is unnecessary to decide the issue raised by the appellants' submission. If it be decided that the answer of the jury is responsive and not perverse, a new trial must still be had because there has been no appeal from that part of the judgment of the Court of
Appeal which has so decided.
If it be decided that the answer is not responsive and perverse, it is an answer of a jury deliberating under the influence of a misdirection.
A plaintiff's action should be dismissed upon such a basis, only if the charge of the trial judge has adequately placed the issues involved before the jury or if the Court finds that there is no evidence to support a verdict even if the charge had been without objection; and the present case cannot be so regarded. Per Rand and
Kellock JJ.: The answer of the jury with respect to the negligence of the appellant driver cannot be regarded as a finding which does not come within the allegations of negligence in the statement of claim. There may be some surplusage in the answer, but, regarded reasonably, these allegations were sufficiently wide to include what the jury has found. On the cross-appeal: Held that the judgment of the Court of Appeal ordering a new trial should be affirmed.
Per
Hudson, Taschereau and Estey JJ.: The pleadings of both appellants and respondents specifically raised issues as to the manner and position upon the highway in which the respective cars were driven; and each claimed that the negligence of the other caused the accident and adduced evidence in support of their respective contentions.
These facts and these issues have not been adequately presented to the jury by the trial judge. Per Rand and Kellock JJ.: The trial judge, from the reading of his charge, seems to have directed the attention of the jury to the conduct of the appellants' driver in proceeding into and continuing in the smoke as being conduct which the jury might well consider to be negligent, while he treated the conduct of the respondents' driver, if the jury considered it in any respect negligent, as though it did not matter, being something which the appellants' driver ought to have anticipated and guarded against. Both what the trial judge said himself and what he read from the
TRIAL-Concluded reported judgments had the effect of taking away from the jury the issue of negligence, on the part of the respondent driver, as being essentially irrelevant. The result has been that the issues between the parties have not been tried. Judgment of the Court of Appeal ([19441 1 W.W.R. 634) affirmed. 3.-Criminal law-Charge of rape-Evidence-Corroboration-Charge to jury-Misdirection-New trial................. 4.-Criminal law-Trial on charge of rape -Question whether trial judge should have charged jury as to possible alternative findings of lesser offence-Question whether failure of accused to testify was made subject of comment, contrary to Canada Evidence Act, R.S.C. 1927, c. 59, s. 4 (5)........... 319 TRUSTEES-Cost--Direction in will that fund be set apart for benefit of testator's daughter-Executors and trustees of the will also trustees of the fund-Unsuccessful action by daughter against the executors and trustees with regard to the fund as set up--Question out of what fund (said fund or the residuary estate, or both) the solicitor and client costs incurred by the executors and trustees in said action (to the extent that they exceeded the party and party costs) should be paid... 343 See CosTs 1.
VALUATION-Of property for purposes of succession duty...
..............
See DUTY.
2.- "Value of the vessel" within s. 5 (1) of The Comepnsation (Defence) Act, 1940- Meaning-Principles to be applied and factors to be considered in determining that value........ ..................... VERIFICATION.
WAR MEASURES ACT.
WARTIME REGULATIONS - Accused, respondent, prosecuted for alleged infractions of Order in Council dealing with maximum or ceiling prices-Accused convicted after speedy trial under Part XV of the Criminal Code- Order in Council by federal authorities creating leave to appeal to Supreme Court of regulations-Regulations made by the Order Interpretation of the conditions imposed by Supreme Court of Canada still subject to sections 1023 and 1025 of the Criminal Code... .1 WILL- Husband and Wife-Application testator's widow under The Dependants'
Relief Act, R.S.S. 1940, 111-S. 8 (1) (2)
finding that reasonable provision not made will for her maintenance, question as to effect of 8 (2) as to extent of allowance to be awarded.-On an application, under
The Dependants' Relief Act, R.S.S. 1940,
111, by the widow of a testator for an order making reasonable provision for her maintenance, if the widow has satisfied the Court of the condition stated in s. 8 (1) of the Act, namely, that the testator has by will so disposed of real or personal property that reasonable provision has not been made for her maintenance, she is entitled, under s. 8
(2), to an allowance which, in the opinion of the Court, is not less than the share of the testator's estate which she would have received if he had died intestate leaving a widow and children (i.e., one-third of the estate). Rand J. dissented. Per Rand J., dissenting: The underlying purpose and conception of s. 8 (1), which is reasonable provision for maintenance, is carried through into s. 8 (2), and what is envisaged is a determination "in the opinion of the Court"
of what the actual maintenance of the widow pecuniary dimensions of her actual living-in the circumstances of intestacy would have been and to take the amount so found as thd measure for determining the supplementary or original allowance called for by s. 8
The Court is to exercise its judgment upon the resources that would go into actual maintenance under intestacy and to determine to what extent that would be received from the intestate share. The minimum allowance for maintenance should be what the reasonable maintenance of the widow, under the circumstances of intestacy, would have drawn from her share of the estate.
v. SnAw..
2.- Action in contestation-Probate-Validity-Onus probandi-Res judicata-Object and effect of probate-Arts. 857 and 858 C.C.
judgment ordering the probate of a holograph will does not constitute res judicata. As a result of such probate, the will takes effect "until it is set aside upon contestation".
Art. 857 C.C.
In an action where a holograph will duly probated is contested, the burden of proof still continues to impose upon the beneficiary the obligation to establish the genuineness of the writing or of the signature of the testator. The probate thus has not the effect of shifting such burden to the party repudiating the will, the latter not having the incumbent duty of proving that the writing or the signature were forged.
There is a very wide difference between the "probate"
under the English Law and the "verification" under the civil law of Quebec. Dugas v. Amiot ([1929] S.C.R. 600) approved.
Billette v. Vallde not applicable to this case.
That decision was rendered upon an exceptional case and was essentially an "arret d'espice". .649
WORDS AND PHRASES-"Accidental" death, within provision in life insurance policy...............................289 2.-"Amount or value of the matter in controversy in the appeal" (within s. 89 (a) the Supreme Court Act, R.S.C. 1927, 85)...............................
"Appurtenances"................ 4.-"Excluded from ingress or egress" 468 of Municipal Act, R.S.M. 1940, c.141)............................
5.-"External, violent and accidental" cause, within provision in life insurance policy.............................
6.-"Final judgment" (within 2 Supreme Court Act)................. 7.-"In any manner vested in the Court" in s. 82 (1) of the Exchequer Court Act, R.S.C. 1927, 34...................
8.-"In virtue of any jurisdiction now hereafter, in any manner, vested in Court" in s. 82 (1) of the Exchequer Court Act, R.S.C. 1927, 84...................
9.- "Matter in controversy" (within s. 89 (a) of the Supreme Court Act, R.S.C. 1927, 35)............................
10.-"Or to a judge of any such court" in s. 7 of the War Measures Act, R.S.C. 1927, c.206............................
11.-"Rights in future of the parties" of the Supreme Court Act)... 12.-"Subject to all provincial and municipal enactments" (in an amending federal Act giving power to company to operate auto busses)............................ 13.-"Undertaking" (as used in statute declaring undertaking of company a work for the general advantage of Canada) ...... 14.-"Value of the vessel" in s. 5 (1) The Compensation (Defence)
(c.28)............................
15.-"Works" (in head 10 of s. 92 B.N Act).......................
Cases cited
- ibid ibid
- Lady Davis v. The Royal Trust Co. Et al. scr-1932-203
- Quebec R. L. & P. Co. v. Montcalm Land Co. scr-1927-545
- Bowman v. Panyard Machine & Mfg. Co. scr-1928-63
- 3 D.L.R. 224 3 D.L.R. 224
- Temple v. Bulmer scr-1943-265
- Gatineau Power Co. v. Cross scr-1929-35
- Forcier v. Coderre scr-1936-550
- Fortier v. Longchamp scr-1941-193
- City of Halifax v. Halifax Harbour Commissioners scr-1935-215
- City of Vancouver v. Attorney-General of Canada scr-1944-23
- Commissaires d'Ecoles pour la Municipalité de la Paroisse de St-Adelphe v. Charest et al. scr-1944-391
- Canadian Allis-Chalmers Ltd. v. The City of Lachine scr-1934-445
- Corporation de la Paroisse de St. Gervais v. Goulet scr-1931-437
- Montcalm Land Co.'s Montcalm Land Co.'s case, supra
- Banque Nationale Canadienne v. Audet scr-1931-293
- 1 W.W.R. 129 1 W.W.R. 129
- 2 W.W.R. 68 2 W.W.R. 68
- 3 W.W.R. 669 3 W.W.R. 669
- O.R. 44 O.R. 44
- 1 W.W.R. 385 1 W.W.R. 385
- Dugas v. Amiot scr-1929-600
Statutes and regulations cited
-
- sections 102
- sections 1023
- 1025
- s. 1025
- s. 89
- s. 39
- section 89
- sections 91
- section 91
- section 92
- section 363
- sections 251
- sections 244
- section 246
- Section 246
- section 244
- Section 391
- s. 6
- Section 91
- section 770
- sections 785
- 736
- 770
- 1134
- s. 10
- Section 770
- sections 735
- ss. 247
- 284
- 287
- s. 287
- s. 247
- ss. 951
- s. 259
- s. 69
- s. 1014
- section 6
- 92
- Sections 362
- 424
- s. 389
- s. 478
- s. 468
- s. 8
- section 34
- s. 34
- Section 34
- s. 285
- s. 27
- s. 473
- s. 92
-
- ss. 35
- s. 7
-
- s. 82 of the Exchequer Court Act
- s. 82
- s. 37 of the Exchequer Court Act
-
- section 68
- section 9
-
Unresolved citations
- section 6 of Appeal Court Act
- section 6 of the Court of Appeal Act
- s. 7 of War Measures Act
- section 244 of the Education Act
- subsection (3)
- section 246 of the Education Act
- s. 7 of the War Measures Act
- section (2)
- sections (3)
- paragraphs (ii)
- (iii)
- paragraph (f)
- paragraph (iii)
- s. 468 of said Act
- s. 28 of The Succession Duty Act