Majority
ELLEN McCLURE AND ANOTHER
RESPONDENTS. (DEFENDANTS)
..................
f
ON APPEAL FROM THE COURT OF APPEAL FOR
BRITISH COLUMBIA
ESTEY J.:-This appeal arises out of an action to prove in solemn form a will, dated November 28, 1929, of the late Elizabeth Amelia Brown. At the trial it was adjudged she did not possess testamentary capacity at the time she made the will. Upon appeal that judgment was reversed and probate directed.
This appeal is from the latter judgment.
Mrs. Brown's husband, John Brown, died June 18, 1919, leaving a will, the material parts of which provided a bequest to his wife of the furniture; the sum of $2,000; a monthly payment of $150 during her life; and a power of appointment over the residue of his estate.
It contained requests that his wife take care of his sister, Miss Esther Brown, and that by her will she should leave his entire estate to my said sister Esther Jane Brown for her life and after her death to my said grand-nieces Ellen and Eva McClure.
Mrs. Brown and the Royal Trust Company were named executors and trustees of his estate.
(1) [19451 3 W.W.R. 641.
In 1920 Mrs. Brown made a will giving substantial effect to her husband's wishes. About 1925 Miss Brown contracted arthritis and thereafter until her death in June 1927 she required a good deal of care and attention. Much of that time she was confined to her bed and at times a E yJ. nurse was employed, but in the main Mrs. Brown looked after and cared for her in a manner that was described as ''excellent".
Mrs. Brown paid the expenses incurred because of the illness of Miss Brown as well as the funeral expenses. She felt that the Trust Company should have paid the latter item but this it refused to do. On one occasion she asked the company for an additional allowance of $25 at Christmas, and this it also refused. She became "very indignant about" the Trust Company.
Then with respect to her late husband's will, she thought the payment of $150 per month was not enough and that she should have been left the entire estate. In fact, she described her husband's will as a "terrible will". In this frame of mind she decided in 1927 to exercise her right under the power of appointment and leave the estate of her late husband, not as he had expressly requested, but to her own niece Susie Sutcliffe and her nephew George Sutcliffe. - 1,
Mr. O'Brian, a barrister of Vancouver, had not only been Mr. Brown's solicitor, but had been a personal friend and after Mr. Brown's death he and Mrs. O'Brian continued to visit Mrs. Brown. Mr. O'Brian had drawn Mrs. Brown's will in 1920 and she now consulted him. As to that interview, he deposed as follows:
Mrs. Brown had made up her mind.
She refused the advice of her friend and solicitor and consulted another solicitor, Mr. Burnett. Under her instructions Mr. Burnett prepared a will in which she revoked her will of 1920 and exercised the power of appointment under her husband's will in favour of her niece Susie Sutcliffe and her nephew George Sutcliffe. She also left her own property to these relatives.
This will is dated October 4, 1927, and no question is raised as to her competency at that time. Two years later Mrs. Brown sent for Mr. O'Brian and executed a third will dated November 28, 1929, under which she revoked the will of 1927 and left all of her own estate EJ and the estate of her late husband, over which she had power of appointment, to Ellen and Eva McClure, nieces of her late husband. In so leaving the property to his nieces she complied with the request contained in the will of her late husband.
It is the validity of this last will dated November 28, 1929, that is the subject matter of this litigation. Mrs. Brown, except for one week in 1929, remained at Hollywood Sanitarium from July 12, 1929, until she died on June 24, The learned trial judge refused to grant probate basing his conclusions very largely upon the evidence of Dr. McKay that the testatrix was not capable of managing her own affairs and did not possess testamentary capacity. In the Court of Appeal Mr. Justice Bird, who wrote the judgment of the Court, was concerned about the weight that ought to be given Dr. McKay's evidence and concluded that the evidence of the other witnesses who had "opportunities for observation and knowledge of the testatrix" was sufficient
Then referring particularly to her mental difficulties Mr. Justice Bird concluded:
The contention of the appellants may be summarized as follows:
That the learned judges in the Court of Appeal Associated with this were other contentions that the learned judges had not given due consideration to the heavy burden of proof that rested upon the party propounding the will of a testatrix who is admittedly of unsound mind in at least some particulars, and that undue weight was given to lay witnesses as compared with expert opinion.
On its face it is a rational will and carries out the express wish of her late husband. Where, however, the question of testamentary capacity is an issue,
Smee v. Smee (1).
Mr. O'Brian deposed that 'on the day he received her instructions and prepared the will:
and Mr. Watson, who was present with Mr. O'Brian when Mrs. Brown gave her instructions, and who signed the will as a witness:
She was conversant with the details of her husband's estate, her own assets and the contents of her wills of 1920 and 1927. That in the latter she had left the property to the Sutcliffes contrary to her husband's request.
She also stated that she had deceived her husband in that she had accumulated a sum out of her housekeeping allowance and that she had not used this money to give Miss Brown proper nursing attention. It was not contended that anything said upon that occasion would justify a conclusion that she did not possess testamentary capacity.
It is, however, submitted that the statements made upon that occasion must be read in association with the other facts and circumstances disclosed in the evidence, and when so read support the appellants' contentions.
Mr. O'Brian first suspected something irrational about Mrs. Brown in the spring of 1928.
In July 1929 she voluntarily entered Hollywood Sanitarium, a privately owned and operated institution for the treatment of mental and functional nervous diseases.
She then gave her age as 64. In February 1930 an application for the appointment of a committee was heard by the Court in British Columbia, oWED and on March 17, 1930, judgment rendered that
THEVR TERoYAL Elizabeth Amelia Brown is, by reason of mental infirmity, arising from age or otherwise, incapable of managing her affairs.
Dr. McKay, who had specialized in psychiatry and EsteyJ. functional neurological conditions since 1907, and who since 1919 had been managing director and medical superintendent of the Hollywood Sanitarium, stated that when Mrs. Brown entered the sanitarium "she had certain peculiarities" and that she used to have an idea that there was gas in her room. It was either gas in her room or she was afraid of powder, that is such as dusting powder, it was either one of those two.
She had hallucinations and delusions which "were never very fixed at any time."
When questioned if Mrs. Brown worried, he replied: The only worries I can recall her possessing, was worrying regarding things she had done to her husband. That is the only thing that I can recall.
There may have been others, but I do recall that because it came up innumerable times. I mean many times. She used to talk about that she hadn't treated her husband well, and she hadn't lived up to his requests.
Mrs. Brown possessed a good memory and often talked with Dr. McKay about her life in Vancouver here, her life in Montreal, and even prior to coming to Canada, but never mentioned to him anything about a will.
He concluded his direct examination with a statement: I personally believe that she was competent (to make a will) for this reason * * * that she did not possess any delusions or hallucinations or illusions that would govern her one way or the other in constructing a will.
In cross-examination he was referred to his affidavit dated January 6, 1930, filed in support of the application for the appointment of a committee -to manage her affairs. This affidavit read in part as follows:
At the time of her admission she was restless, delusional and hallucinatory, her delusions being of the persecutory character.
She possessed hallucinations of taste, believing she could taste poison in her food.
She also had hallucinations of smell, claiming that she could smell gas which was being forced into her room with the idea of doing her bodily harm.
At times she is very disturbed which is altogether due to these false ideas that she possesses.
Owing to the delusions and hallucinations that were present, the said THE Mrs. Elizabeth Amelia Brown is incompetent to look after herself or her Macl-URE
Throughout his cross-examination there was much dis- Estey J. agreement between counsel and Dr. McKay, and finally the following appears:
Q. Well, what you said on the 7th of January, 1930, was, in your opinion-you said, owing to delusions, and hallucinations that are present, the said Elizabeth Amelia Brown is incompetent to look after herself or her affairs. That was your truthful opinion at that time?
A. Probably it was.
Q. If it was your truthful opinion at that time, then it means that, in your opinion, at that time she was not competent to make a will, does it not?
A. We would only be starting another argument, so I will admit it. This admission does not purport to embody the considered opinion of Dr. McKay but rather an opinion expressed to avoid another argument.
Another argument upon the question whether because she could not manage her own affairs it followed she was not competent to make a will. Just before this admission Dr. McKay stated:
"I don't think
*
*
* you have the right to combine those two features".
Such an admission as a matter of testing credibility would have weight, but as evidence in support of an essential factor in a cause of action it is for practical purposes of no value. When read in association with the whole of his evidence it falls far short of establishing that because a person is unable to manage her affairs she is incompetent to make a will.
Nor does it in this case provide evidence in support of the contention that her hallucinations and delusions were influencing or directing her thinking as she gave instructions and executed this will. Dr. McKay referred to hallucinations and delusions of a persecutory character and mentioned only those of taste and smell. He described them as of a minor character not fixed on any person or persons-never fixed at any timethere wasn't any category from the standpoint of medical diseases that I think I could conscientiously at all place her in.
It is significant that in referring to matters respecting her husband he classifies them as worries on her part. Throughout his evidence these hallucinations and delusions are not associated with her worries.
Apart from Dr. McKay's evidence there are the statements made to Mr. O'Brian and Mr. Watson on November 28, 1929, the day the will was made, and those to Mr. O'Brian and Dr. Gillies on January 23, 1930. Upon these dates she was concerned about changing the beneficiaries in her will that she might comply with the wish of her late husband, and throughout these conversations she made no mention of taste or smell, of poison or of bodily harm. Mr. O'Brian in October or November of 1927 had told her that the request of her late husband was binding on her conscience.
In consequence of the illness of Miss Brown and the funeral expenses, which she paid but thought the Trust Company should at least have paid the funeral expenses, Mrs. Brown had become annoyed at the Trust Company and felt her husband's will should have left everything to her. In that state of mind she had made the will of 1927. Now after a period of two years she viewed the matter differently. "Her husband's will was a proper one, although at one time she did not think so". She now felt she should respect the request of her late husband. Her conscience dictated that course.
It was always upon her mind; she was concerned about the legality of the will. It was written in the handwriting of Mr. O'Brian, was that sufficient, and then was it properly witnessed? In speaking of her feelings to Mr. O'Brian, Mr. Watson and Dr. Gillies, she used various phrases, but her strongest language appears in her conversation of January 23, 1930: This is a portion of the conversation when Mr. O'Brian and Dr. Gillies visited Mrs. Brown on January 23, 1930, in order that Dr. Gillies might converse with Mrs. Brown and express his opinion as to her competency to make a will.
Dr. Gillies made notes of the conversation but unfortunately upon changing his offices in 1933 these notes were lost. He had, however, a very definite recollection EsteyJ. that as he left the sanitarium he was of the opinion that -Mrs. Brown was competent to make a will.
As to the details of that conversation he said his memory was "extremely vague".
He did think she mentioned "she heard voices" but could not remember her making any mention of poison. He did not recall any hallucinations or delusions. Dr. Gillies therefore heard the foregoing statement as part of her conversation and was of the opinion that she was competent to make a will.
Mrs. Kane was in charge of the office of the sanitarium from July 1931, and apart from a year and a half in 1940 and 1942, she was there as long as Mrs. Brown lived. She saw Mrs. Brown practically every day and found her She never heard Mrs. Brown speak of either the Sutcliffes or the McClures, and never heard her mention either gas or poison. Her memory was good and she did speak of her late husband and of her late sister-in-law.
Mrs. Brown was very friendly with the staff and often came into the kitchen where the staff was having tea in the afternoons. That Mrs. Brown possessed certain hallucinations and delusions of the type and character described by Dr. McKay must be conceded. The possession of such does not invalidate a will unless they have brought about the will or constituted "an actual and impelling influence" in the making thereof: Sivewright v. Sivewright (1). Dr. McKay) describes her concern with respect to her husband's affairs as worries and does not associate the hallucinations and delusions therewith. The other witnesses make no reference to the hallucinations and delusions, and it may be that they looked upon her concern with respect to her husband's affairs in a manner that might be described as worries. Mr. O'Brian said she was "depressed and under great mental strain" and "tormented by her conscience". Mr. Watson said she
Messrs. O'Brian, Watson and Dr. Gillies, who heard her make the remarks the appellants so much rely upon, were definitely of the opinion that Mrs. Brown was competent Es-IJ. to make a will. A perusal of Dr. McKay's evidence as a E whole, including his admission, indicates that he believed she was competent to make the will.
The credibility of all of these witnesses is admitted. Mr. O'Brian had known Mrs. Brown over a long period of years and had been consulted professionally by her as early as 1920. Dr. McKay had her under his care as a patient since July 1929. It is possible that a person may conduct herself in a very rational manner, even making a rational will, and still be motivated and governed by insane delusions.
That is the reason the authorities require that in such a case as this "we have to go below the surface" and determine if in fact the will be or be not the result of a "free and capable testator".
In 1920 Mrs. Brown complied with her husband's request. In 1927, under the stress of circumstances then obtaining, she disregarded his request.
In the course of time and changing circumstances she concluded that she had made a mistake and her conscience now dictated that her husband's request should be complied with. In order to do so she made her will of November 1929.
The proved hallucinations and delusions are not upon the evidence connected with the motives and reasons that led to the making of this will in question.
Dr. McKay did not associate her hallucinations and delusions with her worries. In this regard it is significant that Mrs. Brown did not discuss her will with Dr. McKay and never mentioned the taste of poison or the smell of gas to Mr. O'Brian, Mr. Watson or Dr. Gillies. This is an indication that in her mind they were not related.
Her statements November 28, 1929, and January 23, 1930, already discussed, when read in relation to all the other facts and circumstances, are not more than the extreme or extravagant expressions of one's thoughts and feelings who finds herself in some such position as Mrs. Brown.
In my opinion, when the evidence in this case is submitted to the test, so often quoted with approval, set forth in Banks v. Goodfellow (1), and which has been adopted in this Court, particularly in Skinner v. Farquharson (2) and Ouderkirk v. Ouderkirk (3), Mrs. Brown's will must be regarded as valid.
Counsel for the appellants, in a very forceful and exhaustive presentation of this case, contended that the learned judges of the Court of Appeal
It is true that some of the early authorities go far to justify such a statement. The decision of Banks v. Goodfellow (4), makes it clear that these earlier authorities go too far. That while the burden of proof always rests upon the party supporting the will, and that the existence of proved hallucinations and delusions often presents a "difficult and delicate investigation", it remains a question of fact to be determined as in civil cases by a balance of probabilities. In the determination of this fact the contents of the will and all the surrounding circumstances must be considered by the jury or the Court called upon to arrive at a decision. If satisfied that at the relevant time the testator was not impelled or directed by hallucinations or delusions and was in possession of testamentary capacity, the will is valid. Boughton v. Knight (5); Smee v. Smee (6); Halsbury, 2nd Ed., Vol. 2, p. 38.
The appeal should be dismissed with costs.
J.:--I have had an opportunity of reading the judgment of my brother Estey and agree with him that the appeal should be dismissed with costs.
To what is said I wish to add only a few words. Qn the argument before us the point most pressed by Mr. Farris was that at the time of execution of the will the testatrix was suffering from delusions, and in particular from the delusion that she heard voices as from the dead which reproached her with having departed from her husband's * wishes in making a previous will.
Admitting that the evidence established that the testatrix did make the statements attributed to her, it does not seem to me that this is sufficient to invalidate a disposition of property which she should have made in the absence of any delusion. What she heard would appear after all to have been the "voice of conscience" under the circumstances.
In Banks v. Goodfellow (1), the general principle is stated thus:
The disposition of property here was entirely in accord with what might have been made by the most sane and well intentioned person.
J.:-Notwithstanding the able argument of Mr. Farris, I think the evidence shows the testatrix to have been competent to make the impugned will. Her general rationality was conceded, and the case against capacity depends upon showing the presence of insane delusionary hallucinations so related to matters admittedly disturbing her conscience as to have governed her mind in making the dispositions.
Those matters were, having saved money from household allowances without disclosure to her husband, having toward the end of his sister's life as a result of the financial pressure which the illness and necessary care of the latter made upon her become resentful of the limited allowance made to her under his will, and having failed in spirit at least to maintain toward the sister in her last days what a sense of duty to him as well as to her later seemed to dictate. That they gave rise to a body of deranged thought or sensations so rooted and substantial as to dominate her mind and pervert her judgment in the distribution of her husband's and her own property, is not, in my opinion, a proper conclusion from the facts disclosed.
Although Dr. McKay, in charge of the Home in which the testatrix lived voluntarily for 14 years, whose ability as a psychiatrist and veracity are unquestioned, knew of her notions of tasting poison in food and of smelling gas forced through keyholes to do her physical injury, and observed delusionary thought of a persecutory character, which "at times" disturbed her, he looked upon them as transient and erratic wanderings "never very fixed at any Rand J. time" rather than manifestations of deep-seated irrationalities; they were not directed toward any particular person or persons; nor could he say how long they lasted, but the implication is that they did disappear.
He did not know of any worry about the will of 1927 nor of her desire to make a new one.
But he rejected the view that these evanescent creations were associated morbidly in the true sense of mental disorder with such matters and that they were such as might influence her in making her will. That was the opinion also of Dr. Gillies who, though he saw her only once, made an examination specifically directed to competency;
and although she mentioned "hearing voices", nothing in her behaviour or speech betrayed or even indicated delusions or hallucinations in any way related to or connected with the property or the will. That her attention could be held to that field of her thought, over the whole of which his questions led her, and evoke no indication of delusionary ideas or sense irregularities that are said to have poisoned it and driven her to the change in beneficiaries she made, would seem to justify Dr. Gillies' confident assertion that at the time of that examination she was suffering from no such derangement.
Whatever their character, they were dissociated phenomena.
Mr. O'Brian observed the same behaviour under similar questioning in relation to the same matters, full understanding, good memory, no sign of disorder. Dr. McKay's affidavit says that "at times she was very disturbed" but there can be no doubt, from the evidence, that at the time of making the will, if that language means "insanely disturbed", it was not then descriptive of her condition. The deceased quite evidently had become deeply sensitive to the implications of her religious beliefs, and although under the pressure of straitening circumstances feelings of resentfulness had been aroused, when their cause had been removed and her mind become relaxed and reflective, that sensitiveness fastened upon and no doubt magnified the deviations from the rigid duty that then appeared so plain to her. But throughout this period she seems to have O'NEIL had an adequate awareness of herself, including her remorse. THE It was not that she heard voices from the grave; they Co. appeared to her to be "as if from the grave", she "felt sometimes she was going out of her mind", "the day sometimes seemed night and the night day", "she was at times in great torment", "there was no hope for her in the next world" and that she "would see neither her husband nor his sister" there.
But here she was recounting objectively these experiences: the subjective had not been victimized by any of them. It was a case of repentance for shortcomings in the closing years of her life.
Mr. Farris stresses the heavy onus on the respondents under the law laid down by Banks v. Goodfellow (1) and in particular the language of Cockburn C.J. at page 572: Where delusions are of such a nature as is calculated to influence the testator in making particular disposition, as was the case in Waring v. Waring (2) and in Smith v. Tebbitt (3), a jury would not in general be justified in coming to the conclusion that the delusion, still existing, was latent at the time, so as to leave the testator free from any influence arising from it; but in the present case the disposition was quite unconnected with the delusions, and consequently there is no reason to suppose that the omission to call the attention of the jury to this specifically can have affected the verdict.
lie suggests that what Lord Haldane says in Sivewright v. Sivewright (4):
The question is simply whether he understands what he is about. On the other hand, if his act is the outcome of a delusion so irrational that it is not to be taken as that of one having appreciated what he was doing sufficiently to make his action in the particular case that of a mind sane upon the question, the will cannot stand. But, in that case, if the testator is not generally insane, the will must be shown to have been the outcome of the special delusion.
It is not sufficient that the man who disposes of his property should be occasionally the subject of a delusion. The delusion must be shown to have been an actual and impelling influence.
must be qualified, but it appears to me to be quite within the principle of the earlier case. Once there is shown the existence of a delusion which is calculated to influence the testator in making the dispositions of a will, then the Court must be convinced that in fact the delusion had no such effect. What then is the test by which we can say that a (1) (1870) L.R. 5 Q.B. 549.
(3) (1867) L.R. 1 P. & D. 398. (2) (1848) 6 Moo. P.C. 341.
(4) 1920 S.C. (H.L.) 63. 77528-51 delusion is so calculated? Obviously its nature and subject matter, and its relation in the mind of the testator to the matters material to testamentary disposition. Here, assuming that in the two respects mentioned there were real delusionary notions, they cannot be said, by themselves, to be so calculated and it does not appear that in her mind Jthere was any connection between them and such matters. It is conceivable that the worry over what she looked upon as a moral dereliction gave rise to them-and there is a strange absence of evidence that from the making of the will until her death she was in the slightest degree disturbed -but they were not associated with. such matters in her complaints, and nothing in her behaviour indicated that they were so associated either consciously or unconsciously in her mind.
It was not fear but moral anxiety that actuated her. The principle, therefore, of Banks v. Goodfellow (1), on the facts, is strictly applicable and satisfied and we are remitted to her general capacity about which there is no question.
I agree with Bird, J. A. in his estimate of the weight to be given the statements in the affidavit upon which the case against capacity rests.
The evidence as a whole establishes the freedom of her mind from any effect of abnormal elements at the critical time; and she then directed the distribution requested in her husband's will, which in substance she had done nine years before. We are asked to find that reflection on her moral failure had given rise to insane fears that dominated her rational faculty in testamentary judgment; but whether it is to be taken that the will was made at a time free from disturbance, that it was not one of those "times" at which she was "very disturbed", or that her intelligence and moral sense rose above and clear of the influence of any such ideas that might have lurked in her mind, I am unable to do that. I would dismiss the appeal with costs.
J.:-This is an appeal from a judgment of the Court of Appeal for British Columbia dated 25th June, 1945, allowing an appeal from the judgment of Wilson J. which had dismissed an action brought by the respondents for the purpose of proving in solemn form a will of the deceased, Elizabeth Amelia Brown, dated November 28, O The trial judge arrived at his conclusion largely upon his view of the effect of the evidence of one of the medical witnesses of the respondents, Dr. J. McKay. Court of Appeal, however, even on the basis that Dr. McKay's opinion was in reality that the deceased lacked testamentary capacity, held that the other evidence was sufficient to satisfy the burden cast upon the respondents to satisfy the conscience of the Court that the document propounded was the last will of a free and capable testator. Upon the argument before us it was common ground that the testatrix had capacity to understand the nature of the act of making a will and its effect as well as the extent of the property of which she was disposing. The contention of counsel for the appellant was that the lack of testamentary capacity lay in want of sufficient comprehension and appreciation of the claims to which effect ought to have been given and that this was due to the existence of insane delusion. It was not contended that the case was in any sense one of total insanity.
In these circumstances counsel are at one that a burden of proof rests upon those propounding the will but they disagree as to the nature of that burden. Mr. Farris also complains that the Court of Appeal gave too much weight to the opinion of the lay witnesses. His contention is that in a case of this sort the evidence of medical experts is of paramount importance and that in any event no one, whether a professional or a lay witness, was justified in the circumstances in concluding that the delusions from which the testatrix suffered "could not" affect her testamentary capacity and that therefore the respondents must fail.
The leading authority in cases of this sort is of course Banks v. Goodfellow (1).
Mr. Farris lays emphasis on certain passages in the judgments in that case and in Smee v. Smee (2), and submits that a testator suffering from delusion lacks capacity to make a will if the delusion is capable of affecting the making of the will and that in such case no inquiry is to be made or can satisfactorily be o'NEu.
made as to whether the will was actually affected by the THE delusion.
TANco.
In an Ontario case, McIntee v. McIntee (1), the trial judge, Riddell J., held on a consideration of the authorities, Kellock J. including Skinner v. Farquharson (2), and Jenkins v. Morris (3), that whatever may be the law elsewhere, I think I am bound by authority to go into the question-not could the delusions possibly have an influence upon a disposition to be made by the testatrix?-but did the delusions influence or affect the disposition actually made.
The learned judge points out that in Skinner v. Farquharson (2), Taschereau J. said at p. 60- If the deceased's delusions had influenced the disposal of his property the respondent's contention should perhaps prevail.
But that is a question of fact.
He found internal evidence in the will before the Court that the delusions there in question had not in fact influenced the result. Davies J. in the same case at page 86 refers to Jenkins v. Morris (3) and to the head-note which states the mere existence of a delusion in the mind of a person making a disposition or contract is not sufficient to avoid it even though the delusion is connected with the subject matter of such disposition or contract; it is a question for the jury whether the delusion affected the disposition or In Jenkins v. Mirris (3), which was a case of a lease, Hall V. C. at page 680 has this to say on the point- It was in the course of the argument before me said that Banks v. Goodfellow (4) was only applicable where the delusion was wholly unconnected with the subject-matter of the disposition.
I do not find the rule of law laid down with this qualification, although no doubt in the course of the judgment, the disposition being wholly unconnected with the delusion, and the delusion not being calculated to influence the particular disposition, were mentioned.
It is manifest that where the delusion is connected with the disposition, such connection may in some cases shew beyond question that the testator had not testamentary capacity, whilst in other cases, if not in itself conclusive against testamentary capacity, it might have much weight in determining the point. I have not, however, to determine whether in every case where a delusion exists which is connected with the thing disposed of there can or cannot be testamentary capacity to dispose of that thing.
The delusion may be trivial, and whether so or not the conviction of a jury or judge may, unless forbidden by law, be that it did not affect the disposition.
(1) (1910) 22 O.L.R. 241.
(3) (1880) 14 Ch. D. 674. (2) (1902) 32 Can. S.C.R.
(4) (1870) L.R. 5 Q.B. 549. Reference may also be made to the judgments of the Lords Justices in the Court of Appeal.
With respect to the decision in Jenkins v. Morris (1), Viscount Haldane in Sivewright v. Sivewright (2), said at page 65- These authorities dispose of the contention above mentioned.
The husband of the testatrix had predeceased her in 1919, leaving him surviving his widow and a sister who in turn died in 1927. By the terms of his will the husband, John Brown, appointed his wife and the Royal Trust Company executors and left the testatrix a legacy of $2,000, plus an annuity of $150 per month, with a general power of appointment by will.
In default of appointment the estate was to go to the sister for life and after her death to two grand nieces of John Brown, namely, the respondents, Ellen and Eva McClure. The will contained the following clause:
In the year 1920, shortly after the husband's death, the testatrix made a will substantially carrying out the request of her late husband.
She later became dissatisfied with the terms of her husband's will and in 1927 executed a new will, leaving her own property and exercising her power of appointment over her husband's estate in favour of her own niece and nephew, the appellants, the Sutcliffes. On July 12, 1929, the testatrix was admitted as a voluntary patient into a sanitarium owned and operated by Doctor McKay, and remained in this institution until her death S.C.R.] I on the 24th of July, 1943, with the exception of one week in November, 1929. By the will here in question, which was executed on the 29th of November, 1929, the testatrix devised and bequeathed her own estate to the respondents, the McClures, and also exercised in their favour her power of appointment over the estate of her husband.
The wills of 1920 and 1929 were both drawn by Mr. C. M. O'Brian, who had also drawn the will of John Brown. He had been a visitor at the home of the testatrix before and after her husband's death and appears to have been on a basis of some friendship with them. The sister-in-law became ill in 1925 and in the following year became confined to her bed.
She required close medical attention and considerable nursing care at the hands of the testatrix. During this period the latter told Mr. O'Brian that she considered it most unfair that she personally should have to stand the expense of Miss Brown's illness.
She said to him that her husband ought to have left her his whole estate and that the provision he had made for her was quite insufficient. She said she considered the will "terrible." When Miss Brown died the testatrix, being called upon to pay the funeral expenses, requested the Royal Trust Company, the co-executor with her of her husband's estate, to advance the necessary funds.
Their refusal and an earlier refusal to advance her some $25 added fuel to the flames of her dissatisfaction. She had also been required to leave her home in order that it might be leased or sold which did not make her any the less dissatisfied. The result of all this is thus described by Mr. O'Brian:
It was following this incident that the will of 1927 came into existence.
Notwithstanding the circumstances the testatrix does not appear to have retained any particular dislike of Mr. O'Brian. He and his wife visited her on two or three occasions in the following two years, one of those at least being on the invitation of the testatrix.
Finally, as the result of a message from the testatrix, Mr. O'Brian, accompanied by a Mr. H. H. Watson, went to the sanitarium on November 28, 1929, taking with him some drafting paper, a copy of the 1920 will and, he thinks, a copy of the 1927 will also. He says that he had a discussion with the testatrix and that she appeared to him to be clear mentally.
Without detailing the evidence as to what occurred on this occasion it is sufficient to say that if the evidence of Messrs. O'Brian and Watson be accepted, (and the credibility of none of the witnesses is challenged) the opinion formed by Mr. O'Brian was well grounded.
The reason given by her at that time for changing her then existing testamentary disposition was that she was under great mental strain owing to the fact that she, as she said, had deceived her sister-in-law as well as her husband in concealing from them the fact that she had accumulated several thousand dollars from housekeeping allowances given her by .her husband and that she had not used these monies as she might have done to give Miss Brown proper nursing attention during her last illness. She went on to say that it was her firm desire to change the will of 1927 and to leave everything, not only her own estate, but the estate of her husband, to the McClures. Mr. O'Brian suggested to her that instead of drawing a new will she should execute a codicil to the will of 1927 but she would not have this. She did not want the Trust Company nor the executors named in the 1927 will to act, but requested Mr. O'Brian to act as her executor. During the course of the conversation the testatrix made several references to the fact that she had been a bad woman, that she had deceived her husband and sister-in-law and that she was tormented by her conscience and did not rest either night or day thinking about it. There was nothing, however, in the interview which indicated in any way to Mr. O'Brian that the testatrix was suffering from delusion.
Mr. O'Brian says he had suspected that there was something irrational about the testatrix in the spring or summer of 1928, but he does not give and was not asked any particulars and, as already stated, when he saw her in November, 1929, he thought she was perfectly rational. . As to the concern which the testatrix expressed for not having spent the money which she had accumulated in engaging nursing assistance for the sister-in-law, Mr. O'Brian says that at one time during the sister-in-law's illness the testatrix had not engaged a nurse and that he had then thought she should have done so. A nurse was at some time engaged but whether it was before or after that time does not appear.
In January, 1930, proceedings were initiated for the appointment of a committee to manage the affairs of the testatrix and on the 6th of that month Doctor McKay made an affidavit which included the following -paragraph: An order was subsequently made on March 17, 1930, declaring the testatrix and appointing a committee of her estate, pursuant to the provisions of R.S.B.C. 1924, c. 149.
While this proceeding was pending, and no doubt because of it, Mr. O'Brian visited the testatrix on January 23, 1930, taking with him Doctor Gillies, who testified that in his opinion she was on that occasion competent. He says that there was no indication that the testatrix entertained any delusion and that had such been the case his examination would have revealed it.
At this interview the testatrix showed that she was perfectly aware of the three wills she had made and referred to them, as well as to the assets of herself and her husband's estate.
She said she now thought her husband's will a proper one, although at one time she had not thought so and she again expressed regret at not having taken better care of Miss Brown and for her concealment of the housekeeping moneys she had accumulated.
She thought she might feel better if she was sure the McClure children would take.
She was concerned, as she had been on
November 28th previous, because Mr. O'Brian had drawn the will by hand, and she felt there might be trouble later and the McClures might be deprived of what she intended them to take. As described by Mr. O'Brian she went on to say that:
Mr. Farris stresses this part of the evidence, and apart from the other evidence it would require careful considera- However, each case has to be considered on the evidence as a whole, and so considered, the evidence satisfies me that at the time of the making of the will here in question, the testatrix had sufficient capacity to meet the requirements of the authorities in a case of this kind. I now come to the evidence of Dr. McKay and the view of the learned trial judge regarding it.
Dr. McKay, the proprietor and medical superintendent of the sanitarium, which is a private hospital, said in chief that according to the testatrix she would be seventy-eight at the time of her death but that in his opinion she was actually between eighty-five and ninety.
He describes how she was brought to the sanitarium by some friends and he says she was quite willing to stay there throughout her life. Mr. O'Brian also said that he had been consulted by the testatrix about going to the sanitarium and that he had advised her to go.
According to Dr. McKay, when she first entered the sanitarium the testatrix had certain peculiarities, that she was a "little erratic" on certain things ON~m and had certain ideas but not in any way directed "towards THm RoYAL any person or persons". To particularize he said that she used to have an idea that there was either gas in her room MCCNDRE or dusting powder and that she had hallucinations of taste and smell, but her delusions or hallucinations were never --- J "very fixed at any time". In his opinion she was quite competent to make a will in November, 1929, and he gave in chief ample basis for that opinion. He said that the only worries he could recall the testatrix having had were worries regarding things she had done to her husband, that she hadn't treated him well and had not lived up to the request in his will.
He stated that in his opinion the testatrix did not possess any delusions or hallucinations or illusions that would govern her one way or the other in making a will.
In cross-examination the affidavit already referred to was brought to the attention of the witness. He affirmed its correctness but said, as he had in chief, that as to the delusions they were of a minor character and were not fixed on any person or persons.
Cross-examining counsel proceeded on the 'View that a person who had been adjudged incapable of looking after his affairs under the provisions of the relevant Lunacy Act of British Columbia was per se incapable of making any testatmentary disposition. On that basis he cross-examined as follows:
Q. Now doctor, do you remember that on the 6th of January, 1930, you swore that owing to the delusions and hallucinations that were present, the said Mrs. Elizabeth Amelia Brown is incompetent to look after herself or her affairs?
A.
I only say this, Mr. McAlpine. I do remember the letter. I don't remember the document. I must have put it in there, and signed it, so I stand by it.
Q. So that on the 6th of January, 1930, she was in your opinion, incompetent to look after herself?
A.
Well, I signed it and don't go back on my signature.
Q. So that given the assumption that is so, if she were incompetent to look after herself, or incompetent to look after her affairs, she 'had not the testamentary capacity to make a will.
A. I don't think, Mr. McAlpine, you have the right to combine those two features.
Q. Please don't tell me what my right is. My right is to ask you questions- Mr. Robertson: And the witness has the right to answer the questions as he thinks.
Mr. McAlpine: The witness had no right to ask that and I say I have the right to ask that question.
O'NEIL The Court:
I do not see, myself, why you cannot answer it. It is really a simple question. A.
Well, I will answer it this way. If I put THE my name on there, I am liable for it. I mean I must have believed it at that time.
It would appear that the witness had answered the question Kellock J. which the learned trial judge appears to have thought had not been answered and that the witness did not agree that the two things were the same. All he appears to say in the above is that if he signed the affidavit he stands by what it says. In the cross-examination which follows counsel, however, proceeded on the basis that his own view that the two things were synonymous had been accepted by the witness.
Mr. McAlpine: Q. Now then, doctor, if you believed it at that time, you were then of the opinion -that this woman was incompetent to make a will. Is that correct?
A. No. I don't say that, because a will was not mentioned to me or anything of that kind.
Q. What has that got to do with it. You have sworn an affidavit that, owing to delusions and hallucinations that are present, the said Elizabeth Amelia Brown is incompetent to look after herself or her affairs. A. I say I signed it.
Q. Doctor, will you please listen. I may be stupid, and if I am in your opinion, please bear with me. I am asking you to answer a very simple question. If that was your opinion, on the 6th of January, 1930, it was your opinion that she thad not testamentary capacity to make a will, whether you knew she had made one or had not made one. that right?
A. I don't feel like answering that. But that must speak for itself, as far as I am concerned.
The Court: Doctor, I would like you to answer it. You are here to help me. You see, you said she was incompetent to look after ierself or her affairs. Now, I would like you to tell me, if you can, whether or not that incompetency to look after herself or her affairs would not be incompetency to make a will.
I think you can tell me that. A. That would be incompetency to look after her affairs.
Q. In your opinion she was incompetent to look after herself or her affairs. Does that also mean incompetency to make a will?
A. I feel now, and I will ask you, at this time, if I may explain.
I had a reason for giving that affidavit, which reason, of course, is for your lordship to hear. I felt that owing to my experience with these cases, I do certain things especially in the case of elderly people who have not any relatives to look after them, and I recommend as in this case, that a committee be appointed knowing she has no relatives, and I talked it over with Mr. Robert M. McGougan, who was then living, and I believe he had a committeeship or power of attorney, and I recommended that a committeeship be appointed to look after her affairs, and that is how I came to make that affidavit, because I had done that for the protection of these people for many, many years, knowing the pitfalls that result when such OV.
is not done.
Mr. McAlpine: Q. Now, doctor, are you seriously suggesting to his lordship that you committed perjury?
Q. Now then would you mind telling me-I think you have already said that your memory is not very good as to the condition of this woman Kellock J. when she first came in, for the first three or four months. In the first place. I understand you to agree that it would be your opinion when she was incompetent to look after herself or her affairs, that she was insane, is that right?
A.
If I signed that, I signed that, and therefore I hold myself responsible for it.
Q. I don't care what you bold yourself responsible for. What I want to know is-did you commit perjury.
A.
No.
Q. Well then, if you did not commit perjury, what you say in this affidavit of the 6th of January is true? A. Well, it must have been true. Q. Well, what you said on the 6th of January, 1930, was, in your opinion-you said, owing to delusions, and hallucinations that are present, the said Elizabeth Amelia Brown is incompetent to look after herself or her affairs. That was your truthful opinion at that time?
A. Probably it was. Q. If it was your truthful opinion at that time, then it means that, in your opinion, at that time, she was not competent to make a will, does it not? A. We would only be starting another argument, so I will admit it.
The Court:
I could not see very well, how you could avoid that admission. I take it your affidavit is true, and you say she is incompetent to look after her affairs.
For my part I find very little value in the answer thus extracted from the witness. In my opinion the basis of the question was a false basis and this, being pressed forcefully to the witness, who considered himself in an embarrassing position as the result of his affidavit if the basis upon which counsel proceeded was not false, but true, resulted in the answer above quoted.
I think it perfectly apparent that the real opinion of the witness was, that the testatrix had testamentary capacity in November, 1929, and I also think that is the result on the evidence as a whole.
I have not referred to all the evidence and I do not think it necessary to do so.
Its result I have already stated. With regard to delusion, I take the facts to be as stated in the affidavit of Dr. McKay, that the testatrix did have the hallucination that she could taste poison in her food and that she had also the hallucination that she could smell gas which had been forced into her room by somebody intending to do her harm. Neither with respect to taste or smell, however, did she lay the authorship upon any definite person. In my opinion the testatrix was prompted in making the will of 1929 by a change of view as to her T moral obligation and self-reproach with respect to her conduct in handling the housekeeping monies without taking her husband into her confidence.
There was no delusion about either.
Her frame of mind was based K on solid fact so far as these matters were concerned. The argument urged with much force by Mr. Farris is that the
"voices" the testatrix described in the interview of January,
1930, were in fact the voices of the husband and sister-in-law of the testatrix, that these voices reproached her for her conduct in their lifetime and urged her to give effect to the wish of the husband as expressed in his will and that will of November, 1929, was the result. I do not think that one should make these assumptions and conclude that this amounted to insane delusion which brought about the making of the will but that the will, made at a time when the testatrix showed full command over herself and full realization of all the elements necessary to competent willmaking, was the logical product of existing facts which should justly have produced such a will from a perfectly rational testator.
With respect to the declaration of the incompetency of the testatrix to look after her affairs in 1930, it is perhaps unnecessary to say that the existence of such an order is not, per se, synonymous with lack of testamentary capacity.
The statute under which the order was made, R.S.B.C.,
1924, c. 149, provides for management and administration of the estate of persons with regard to whom it is proved
(sec. 2 (d))
In Banks v. Goodfellow (1),
Cockburn C.J. refers with approval to a number of American authorities, including
Harrison v. Rowan (2), a case in the United States Circuit
Court for the District of New Jersey, where the presiding judge said
In his evidence Mr. O'Brian testified that in his opinion Mrs. Brown had never been capable of looking after her own affairs since her husband's death. Those affairs involved sales of real estate, leases and investment of monies. His evidence indicates that his opinion was founded on nothing more than that the testatrix was not a business woman and not capable of conducting such business matters.
The appeal should be dismissed with costs.
Appeal dismissed with costs. Solicitor for the appellants: E. A. Burnett.
Solicitor for the plaintiff respondent:
C. M. O'Brian. Solicitor for the defendants respondents:
E. M. C. McLorg.
ALLUVION-Accretion..............
APPEAL-Jurisdiction-Petition for leave to appeal-Appointment of respondent as civil service commissioner-Whether irregular and illegal-Respondent being over age limit of 65 and appointed as sole commissioner-Alleged to be in violation of Civil
Service Act-Petition asking for writ of Quo
Warranto and for payment of fine to the
Crown respondent-Leave to appeal refused-Sub-sections (b), (c) and (f) of section 41 of the Supreme Court Act not applicable.-The appellant, a registrar in charge of a lands registry office, was dismissed by orders in council. The respondent, sole member of the Civil Service Commission, had previously recommended, as required by the Civil Service Act, such dismissal to the Executive Council. The then took proceedings
(Quo
Warranto), asking inter alia that it be declared that the respondent was usurping the office of commissioner, that he be expelled therefrom and that he be condemned to pay to the Crown a penalty not exceeding $400, with rights to damages reserved. The main grounds of the petition were that the respondent, when appointed, was beyond the age limit of 65 years prescribed by the Act as the retiring age limit (s. 6) and that the order-in-council appointing him as sole commissioner was passed in violation of section 4 of the Act.
The respondent contended that he was lawfully exercising the functions of his office under the authority of an order-incouncil, and that the matter of such functions and of the Civil Service Commission belong to the executive, and not to the judicial authority, especially under the circumstances of the case. The Superior
Court dealt with the merits of the appellant's petition and dismissed it. The appellate court held, by a majority, that the appellant had not shown that he had the special interest required by article 987
C.C.P. to bring his proceedings, which were not, moreover, appropriate to the allegations and conclusions of his petition.
Upon a motion for leave to appeal to this
Court made by the appellant under subsections (b), (c) and (f) of section 41 of the
Supreme Court Act. Held that this Court has no jurisdiction to grant leave to appeal.
The sole fact that the respondent may be condemned to pay a fine to the Crown does not meet the requirements of sub-section
(b), which applies to a claim filed by the
Crown itself.
Such a fine is not part "of the matter in controversy on the appeal,"
as the appellant's action could be maintained without any fine being imposed.
77529-2
APPEAL-Continued
The "rights in future" of the appellant are in no way affected.
Any rights he may have would be decisively determined by any decision rendered upon the proceedings taken by him. The provisions of subsection (c), therefore, are not applicable. The salary of which the appellant may be deprived and the damages he may be entitled to, even if exceeding $1,000, cannot *be taken into account in order to make up "the amount or value of the matter in controversy in the appeal" within the provisions sub-section
2.-Jurisdiction-Amount in controversy -Inclusion of interest on judgment in computing amount-Principle applies whether judgment of first instance is affirmed or reversed by appellate court.-The interest running the judgment the court of first instance up to the date of the judgment of the appellate court must be included in computing "the amount or value of the matter in controversy in the appeal" to this Court.-Supreme Court Act, s.s. 39, 40. Such principle does apply, not only when the judgment of a court of first instance, allowing less than $2,000, has been affirmed by an appellate court, but also where such a judgment has been reversed by that court Bridge v. Eggett ([1928] S.C.R. 154) and Dominion Cartage Company v. Cloutier ([19281
S.C.R. 396) ref.
BEAUMONT......................... 3.-Jurisdiction-Liability to military service-Exemption of "a minister of a religious denomination"-Action by member of Jehovah's Witnesses to be declared within exemption-Dismissal of action-Petition for leave to appeal-"Rights in future"-Supreme Court Act, Section 41 (c).-The appellant brought an action against the Attorney- General of Canada, claiming a declaration that be was "a minister of a religious denomination,"
to wit. Jehovah's Witnesses, within the meaning of section 3, subs.
(2) (c), of the National Selective Service Mobilization Regulations, 1944, and that, therefore, the Regulations did not apply to him.
The trial judge held that, even assuming that the Jehovah's Witnesses were "a religious denomination", the appellant was not "a minister" thereof; and that judgment was affirmed by the appellate The appellant moved for special leave to appeal to this Court, under the provisions of section 41 (c) of the Supreme Court Act. Held that this Court has no jurisdiction to grant leave, and the application must be refused, on the ground that the appellant's present or future pecuniary APPEAL-Concluded or economic rights are not in controversy in this appeal. The decision appealed from is confined to the point that the appellant is not "a minister of a religious denomination", and the mere possibility that a lower Court might inappropriately use it against the appellant in connection with any rights he may have under other statutory enactments cannot alter the fact that, in the present appeal, his future rights are not involved.
v. Azron- ASSESSMENT
TAXATION.
BAIL-Jurisdiction-Petition for writ of habeas corpus-Dismissal by a judge of this Court.-Application for bail before same judge, pending appeal to Full Court-Whether judge has power to grant it or is functus officio-Section 58 Supreme Court Act.- A judge of the Supreme Court of Canada, who has rendered judgment refusing a petition for the issue of a writ of habeas corpus, ceases to have any jurisdiction to grant an application for bail by the petitioner, pending disposition of an appeal to the
Court itself from the judgment in question.
The judge, from the date of his judgment, is functus officio and the Court alone has jurisdiction to grant bail, provided the application for habeas corpus is brought before it by way of appeal.
BROWN
......................
BANKRUPTCY-Agreement between contractor and mason-Brick-wo k for houses under construction-Contractor supplying bricks, mortar and nails and mason furnishing labour and scaffolding-Mason hiring several helpers to perform work-Contractor becoming bankrupt-Claim by mason to be paid in priorty for amount representing his own bour and wages paid to helpers-Whether claim is "compensation of workman in respect of services rendered to the bankrupt", within the provisions of section 191 of the Bankruptcy Act, R.S.C., 1997, c. 11.-The bankrupt, a general contractor, entered into an agreement with the appellant who, described as master-mason on his business letterhead, was also known as a working mason.
The work to be done was the labour, including the scaffolding, for the brick-work
(lambrissage) of four houses under construction by the bankrupt, the latter to furnish the bricks and nails. The mortar was in fact supplied by the bankrupt, though the appellant was to furnish it under the
The work was actually performed by the appellant and by his son and some other workmen who were hired and paid by him. The appellant filed with the trustees in bankruptcy a claim for $1,018.20, being the amount due for his own work and the wages paid to his helpers, in order that the same be paid in priority under section 121 of the Bankruptcy Act, out of the distribution of the
BANKRUPTCY-Concluded bankrupt's property.
The trustees disallowed the claim for priority, the Superior Court sitting iu bankruptcy affirmed such disallowance appellate maintained that judgment.
Held, affirming the judgment appealed from, that the appellant's claim was not for "compensa- *
*
* workman in respect of services rendered to the bankrupt" within the meaning of paragraph 3 of section 121 of the Bankruptcy Act.
The word "compensation" may include personal work or labour performed by the claimant personally, but does not include wages earned on the work by his son and the other helpers employed and paid by the appellant- Upon the facts of the case, the appellant should be considered as a sub-contractor and not as a "workman."
LEFAIVRE........................... .CARRIER-Railway - Negligence-Shipment of horses-Claim for damages by shipper.................352, 392 CHILDREN-Precautions against injury to..........................1,
CIVIL CODE-Articles 1679, 1675, 1681 (Carriers)......................352, See 1, 2.
CODE OF CIVIL PROCEDURE-Articles 1066 (a) & seq. (Possessory actions) 473 See FRANCHISE.
COLLECTIVE LABOUR AGREEMENT ...... COMPANY-Winding-up-Assets realized by liquidator-Preference and common stocks re-imbursed in full at par-Distribution of surplus assets-Rights of preferred shareholders-Interpretation of terms of preference-Extent of priority-Equal division of surplus assets among preferred and common shareholders-Preferred shareholders receiving per share dividend greater than those received by common shareholders - Whether "equality" to be made between them before division-Seven per cent cumulative preference as to dividends-Right to higher dividend than specified by by-law--Claim for equalization as between preferred and common shareholders of certain dividends paid to them-Companies Act, R.S.C. 1906, c. 79, s. 47, 49.-The Porto Rico Power Company, incorporated in 1906 under the Dominion Companies Act with a capital of $3,000,000 divided into 30,000 common shares, increased its capital in 1909 and by creating each year preference stock for an amount of $500,000.
The by-laws, dealing with the rights of the preference shareholders, provided that such shares COMPANY-Continued shall be "entitled out of net earnings
*
*
* cumulative dividends at the rate of seven per cent. per annum for each and every year in preference and priority to any payment of dividends on common stock and further entitled to priority on any division of the assets of the company to the extent of its repayment in full at par together with any dividends thereon then accrued due and remaining unpaid."
Company, in
January 1944, then in voluntary liquidation under the Winding-up Act, had in its treasury more than $6,000,000.
The liquidator, after having made a preliminary distribution by which the preference and common shareholders were reimbursed in full at par, still had surplus money amounting to $500,000. Up to the winding-up of the Company, the preference shareholders had received the stipulated dividends of 7 per cent., aggregating per share $239.75 and $200.11 for the first and second issues;
while the holders of common stock had received in dividends a smaller aggregate of
$188.50.
The latter had received, until
1931, dividends lower than 7 per cent. per year; but, from 1931 to 1942, the annual dividend had been 8 per cent. and, in 1943,
49- per cent.
The liquidator, by way of p etition, then sought the direction of the ankruptcy Court as to the distribution of the surplus amount of $500,000, submitting that the holders of common shares were alone entitled to it. The preferred shareholders, represented by the respondents, claimed, first, that there should be an equalization as between them and the common shareholders of certain dividends paid before liquidation, and, so, that they should be paid the amounts in excess of 7 p er cent. received by the common shareolders from 1931 until liquidation, and, secondly, that they should then share equally with the common shareholders in the balance of $500,000.
These claims were disallowed by the Bankruptcy Court, which made an order in accordance with the conclusions of the petition. . On appeal, the dismissal of the first claim advanced by the preferred shareholders was affirmed, but it was held that the preferred and common shareholders were entitled to share equally in the distribution of the Company's surplus assets. The common shareholders appealed from that judgment before this Court and the preferred shareholders cross-appealed.
Held, affirming the judgment appealed from (26 C.B.R., 170), The
Chief Justice dissenting in part, that, under the by-laws of the Company, the preference shareholders, subject to their rights with regard to dividends and priority to be repaid at par, have otherwise all the rights of the common shareholders; and, once the preference and the common stocks have been reimbursed in full at par, the preference shareholders are further entitled to share pari passu in the distribution of all surplus assets of the Company with the
77529-1J
COMPANY-Concluded common shareholders.
Chief Justice (dissenting in part):-But for the very reason that the common and preference shareholders should be put on the same footing for the purpose of such division, they should have received previously
"equal treatment,"
outside priorities to which the latter are entitled, the fundamental principle of "equality" being basically the essence of the Canadian Companies Act.
In the present case, the preference shareholders did in fact receive per share dividends greater in the aggregate than those received by the holders of common shares; and, if the judgment appealed from is allowed to stand, there would be "inequality" between all shareholders. Therefore, before any division of surplus assets is made, the common shareholders should first be paid the sum representing the difference between the aggregate dividends paid to them and the aggregate dividends paid to the preferred shareholders; and, thereafter, the balance of the surplus assets should then be distributed equally between all shareholders. Held, also, that the claim of the preference shareholders that they should be paid on a basis of equality of dividends with the common shareholders must be dismissed. The preference shareholders are not entitled to any greater amount than 7 per cent. on their shares per annum, notwithstanding dividends at a higher rate having been paid on common shares in any year.
MCMASTER UNIVER- AL.-In - re 2.-Contract - Specific performance - Alleged contract for sale of shares in company -Borrowings by shareholders from company to purchase shares-Companies Act, R.S.O., 1937, c. 251, s. 96-Effect thereof in consideration of question of granting specific performance...........................
See CoNrAcT 1.
3.-Income tax-Companies-Income War Tax Act (R.S.C. 1927, c. 97, as amended), as. 9B (2) (a), 9B (4), 84 (as the same were enacted by 1982-83, c. 41)-Tax on nonresidents of Canada in respect of dividends received from "Canadian debtors"-Crown claiming from company for amount not withheld and remitted, from dividends paid to non-residents of Canada-Whether, in all the circumstances, the company (incorporated in England but carrying on its business in Canada) was a "Canadian debtor"-Whether legislation intra vires ................. CONSTITUTIONAL
LAW-Deportation of persons of the Japanese race-Power of the Governor General in Council under the War Measures Act-Order in Council same as Act of Parliament-Governor General in Council sole judge of necessity or advisability of CONSTITUTIONAL LAW-Continued measures taken by Orders-Considerations, which led Governor General in Council to adopt
Orders, not open to review by courts of law- Orders in Council dealing with deportation from Canada of Japanese nationals, naturalized British subjects of the Japanese race.
natural born British subjects of the Japanese race and of wives and children under 16 of these persons-Request in repatriation- Order in Council enacting British subject by naturalization to cease to either a British subject or a Canadian national-Order in
Council appointing a commission to make inquiry concerning the activities and loyalty during the war of persons of the Japanese race-Whether Orders in Council ultra vires in whole or in part-Comments on meaning of words
"deportation",
"exclusion",
4(exile",
"repatriation"-Person detained pending deportation "deemed to be in legal custody"-Whether recourse to habeas corpus abolished by provision of Order in Council- War Measures Act, R.S.C., 1927, c. 206, s. 8-National Emergency Transitional
Powers Act, 1945, 9-10 Geo. VI, c. 25- Naturalization Act, R.S.C. 1927, c. 138- British Nationality and Status of Aliens Act
(Imp.) 4-5 Geo. V., c. 17.-On the 15th of
December, 1945, three Orders, purported to be made pursuant to section 3 of the
War Measures Act, were adopted by the
Governor General in Council (nos. 7355,
7356 and 7357).
The reasons for the adoption of Order 7355 are stated in the preamble: "Whereas during the course of the war with Japan certain
Japanese nationals manifested their sympathy with or support of Japan by making requests for repatriation to Japan and otherwise; And whereas other persons of the Japanese race have requested or may request that they be sent to Japan; And whereas it is deemed desirable that provisions be made to deport the classes of persons referred to above;
And whereas it is considered necessary by reason of the war, for the security, defence, peace, order and welfare of Canada, that provision be made accordingly".
Section 2 then provides that Every person of sixteen years of age or over, other than a
Canadian national, who is a national of
Japan resident in Canada and who, (a) has, since the date of declaration of war by the
Government of Canada against Japan, on
December 8, 1941, made a request for repatriation; or (b) has been in detention at any place in virtue of an order made pursuant to the provisions of the Defence of Canada Regulations or of Order in
Council P.C. 946,
*
*
* as amended by P.C. 5637,
*
*
* and was so detained as at midnight of
September 1, 1945, may be deported to
Japan.
Every naturalized
British subject of the Japanese race of sixteen years of age or over resident in Canada who has made a request for repatriation may be deported to Japan: Provided that such person has not revoked in writing such request prior to midnight the first day of
CONSTITUTIONAL LAW-Continued September, 1945.
(3) Every natural born British subject of the Japanese race of sixteen years of age or over resident in Canada who has made a request for repatriation may be deported to Japan; Provided that such person has not revoked writing such request prior to the making by the Minister of an order for deportation. (4) The wife and children under sixteen years of age of any person for whom the Minister makes an order for deportation to Japan may be included in such order and deported with such person."
Order 7356 refers to Order 7355 and further provides that "Any person who, being a British subject naturalization
*
*
* is deported from Canada under the provisions and from the date upon which he leaves Canada in the course of such deportation, cease to be either a British subject or a Canadian national."
By Order 7357 provision is made for the appointment of a Commission "to make inquir concerning the activities, loyalty and the extent of co-operation with the Government Canada during the war of Japanese nationals and naturalized persons of the Japanese race in Canada
*
*
* with a view to recommending whether in the circumstances of any such case such person should be deported," and, also, to "mquire into the case of any naturalized British subject of the Japanese race who has made a request for repatriation and which request is final under the said Order in Council and may make such recommendations with respect to such case as it deems advisable."
Held that the Orders Council, apart from the question as to the validity of their provisions upon which opinions are hereinafter reported, contain legislation that could have been adopted by Parliament itself; that under the War Measures Act the Governor General in Council was empowered to adopt any legislation which Parliament could have adopted; that such legislation was, expressly and impliedly, adopted because' it was deemed necessary or advisable for the security, defence, peace, order and welfare of Canada by reason of the existence of war; that the Governor General in Council was the sole judge of the necessity or advisability of these measures and it is not competent to any court to canvass the considerations which may have led the Governor General in Council to deem such Orders necessary or advisable for the objectives set forth.-Re Gray (57 Can. S.C.R. 150); Fort Frances Pulp & Power Co. v. Manitoba Free Press ([1923] A.C. 695) and Reference re Chemicals ([19431 Per Rand, Kellock and Estey JJ:-Although
Orders
Council CONSTITUTIONAL LAW-Continued ceased to derive any force from the provisions of the War Measures Act from and after January 1, 1946, after that date, they derive their force from the National Emergency Transitional Powers Act, 1945 by reason of the existence of the emergency therein referred to. Held that subsections
(1) and (2) of section (2) of Order 7355 are intra tires of the Governor General in
Council. Per The Chief Justice and Kerwin, Hudson, Taschereau and Estey JJ.:
The provisions of the three Orders in
Council are intra tires, Hudson and Estey
JJ. excepting subsection (4) of section 2 of
Order 7355.
Per Hudson, Rand, Kellock and Estey JJ.:-Subsection (4) of section 2 of Order 7355 (deportation of wife and children under 16 of person ordered to be deported) is ultra vires.-Per Rand J.:- It is ultra vires in relation to wives and children under 16 who do not come within the first two classes and (2) of s. 2 of
Per Rand and Kellock JJ.:-Subsection (3) of section 2 of Order 7355 in relation to the compulsory deportation of natural born British subjects resident in
Canada is ultra tires. Per Kellock
J.:
Section 3 of Order 7355 is ultra tires insofar as it prevents such persons from withdrawing consent at any time and in any manner.
Per Rand and Kellock JJ.:-Order 7356 is intra vires insofar as it takes away incidental rights and privileges of persons of the Japanese race as Canadian nationals;
but it is ultra sires to the extent that it provides for loss of the status of a British subject by naturalization.
Per Rand J.:
Order 7357 is not ultra vires, subject to the observance of the requirements of the
Naturalization Act as to grounds for the revocation of naturalization.
Per Kellock
J. :--Order 7357 is intra sires save insofar as it may purport to authorize a departure from the provisions of the British Nationality and Status of Aliens Act, 1914. Per
The Chief Justice and Kerwin and Taschereau JJ.:-The powers of the Governor
General in Council, under section 3 of the
War Measures Act, are not strictly limited to such "deportation"
as means "the forcible removal of aliens."
Such word, in subsection (b), has not that exclusive meaning, and, according to quotations from reputed dictionaries, could well include the word "exile" which admittedly means the banishment of a national from his country.
However, subsection (b) also contains word
"exclusion"
which would be apt to cover the measures adopted through Order 7355.
Moreover, assuming that these measures are not strictly and specifically contemplated by the use of these two words, they are undoubtedly covered by the general terms of the War
Measures Act, the enumeration contained in the last part of section 3 being stated not to restrict the generality of the terms of the first part of that section.
Rand J.:-The words "deport" and "repatriation" are appropriate to the return to
CONSTITUTIONAL LAW-Continued his native country of an alien.
The power of Parliament to deal with aliens is unquestioned, and that field is under delegation to the Governor General in Council. obligation of his own state to receive him must be deemed correlated with the power of the foreign state to expel him. Per Kellock J. :-The consideration of the word "deportation" as the equivalent of "to remove into exile" or "to banish" involves the idea of penal consequences.. Such a meaning is not apt in the case of citizens who have committed no offence nor, in modern times, in application to a national born citizen of a country on the assumption that some other country is under some obligation to receive him by reason of some previous connection of the citizen with that country.
No country is under any obligation to receive the natural born citizen of another country and any attempt to force such a citizen upon another country would involve an infringement of sovereignty-The consent of Japan through General MacArthur is a consent to "repatriation," i.e. to restore a person to his own country and, thus, is no consent to the reception of natural born Canadians who have no country but Canada.
Per Estey J.:-The word "deportation"
has been restricted to aliens in-one case and applied to native-born in another.
The standard dictionaries do not agree as to its exact meaning.
Upon this reference, it is not necessary to precisely define the word. It is enough to emphasize that, as it is applied in law, it is a compulsory sending out of, or,. as stated in the Oxford Dictionary, "a. forcible removal," and that, while it need not be restricted to aliens, it does apply to, them.
Per Estey J.:-The terms of subsection (3) of section 2 of 7355 cannot be regarded as enacting compulsory deporta- The persons therein mentioned having expressed a desire to be repatriated to, Japan, the Governor General in CounciL decided to facilitate their going by perfecting the necessary arrangements. This matter is more one of policy for the Government than a question of jurisdiction. Section 9 of Order 7355 provides that "any person
*
*
* who is detained pending deportation deemed to be in legal custody," and section 5 of the War Measures Act enacts that "no person who is held for deportation under this Act
*
*
* shall be released upon bail or otherwise discharged or tried, without the consent of the Minister of Justice." Held that there is no conflict between these two sections.
Per Kellock and Estey JJ.:-The provisions of section 6 of Order 7355, relating to the sale of real and personal property of deportees by the CONSTITUTIONAL LAW-Concluded
Custodian of Enemy Property are not invalid as being repugnant to section 7 of the War Measures Act.
1945 (P.C. 7355, 7356
2.-Application of section 50A Exchequer
Court Act to proceedings in provincial courts-Its constitutionality........... 489
CONTEMPT OF COURT-Habeas corpus-Petitioners charged with criminal offence and committed for trial-Called as witnesses in another trial-Refused to be sworn and give evidence-Fear to incriminate themselves-Sentence to term in jail "under common law"-Pronounced after trial terminated-Alleged illegalities of sentence and committal-Inability to prepare defence in their own trials-No conflict with section 165.
Cr.
Canada Evidence
Act.......................538,
See CoRpus 2, 3.
CONTRACT-Specific performance - Alleged contract for sale of shares in company- Borrowings by shareholders from company to purchase shares-Companies Act, R.S.O.,
1987, c. 251, s. 96-Effect thereof in consideration of question of granting specific performance.-A.E., N.E. and L.E., brothers, were the directors of a company in which each of them held, in his own name,
176 shares. They were also entitled, as the residuary legatees named in the will of their deceased father (of which will they were the executors), to share equally in 176 shares of the company held by their father's estate. The said shares and three shares held, one each, by the wives of said brothers
(all fully paid up) were all the issued shares of the company.
A.E. sued N.E. for specific performance of an alleged agreement for sale to A.E. by N.E. of his shares, including (so A.E. claimed) the 176 shares in N.E.'s name and also his one-third interest in the shares held by his father's estate, making in all 2342 shares.
N.E. alleged that, though a sale by him to the company of the 176 shares held in his name had een proposed before it was learned that the company could not purchase its own shares, no agreement such as alleged by
A.E. had ever been made, and if any such agreement had been made it was not for more than 176 shares; and he contended that, in any event, it was not a case where specific performance should be ordered.
L.E. and the company were (on application in the action) added as party defendants.
Payments had been made to N.E., extending over a period of more than three years, by cheques of the company, charged in its books against A.E. and L.E. as (according to heading of the account) loans to them
CONTRACT-Continued jointly for the purpose of purchasing stock of the company from N.E.
It was contended that this method of payment involved loans to shareholders contrary to s. 96 of The Companies Act, R.S.O. 1937, c. 251, and, therefore, specific performance of the alleged agreement should not be granted; also that (if, as contended, the loans had not been repaid) it would be inequitable to grant specific performance because that would compel N.E. to part with his shares and yet remain liable to the company (under said s. 96) for the purchase money so loaned.
The trial judge found that there was a binding contract between A.E. and N.E. for the sale by N.E. to A.E. of 234' shares, and ordered specific performance, and ordered that on conveyance of the shares to A.E., he should hold them as trustee for himself and L.E. in equal shares (in accordance with what the trial judge found had been agreed) and should transfer to L.E. 1171 shares.
He also, as expressed in clause 5 of the formal judgment, ordered that the sum of $798.20 (by which amount he found that N.E. had been overpaid for the shares) should be a personal debt of N.E. to the company and that in the company's books the indebtedness to it of A.E. and L.E. should be reduced by that amount. The Court of Appeal for Ontario set aside the judgment at trial and dismissed the action, holding that by the evidence no binding contract was established for the sale of any shares from N.E. to A.E. On appeal to this Court: Held: On the evidence, and having regard to the trial judge's findings, the judgment at trial should be restored; except clause 5 thereof (above mentioned), which should be deleted from the judgment. It was proper (in view of findings at trial restored by this Court) that the order for specific performance should cover N.E.'s interest in the shares held by his father's estate. Per Kerwin J.: There was nothing to prevent a court of equity from acting in personam and directing N.E. to do whatever was necessary to carry out his contract, particularly when he had been paid for the shares. Per Hudson, Rand, Kellock and Estey JJ.: N.E. was in a position to deal with his interest in the estate's shares and no question arose in the action as to title or inability to convey. Per Kerwin J.: It was unnecessary in the present appeal to consider the effect of s. 96 of the Ontario Companies Act. N.E. had been paid and it could make no difference to him whence the money came.
A.E. did not rely upon any illegal act as part of his cause of action. The contention against the granting of specific performance because of possible personal responsibility of N.E. under s. 96 should be given no effect as a bar to the judgment granted at trial, in view of the fact that N.E. was one of the prime movers; and in this view, it was unnecessary to consider whether or not the loans by the company had been repaid.
Per Hudson CONTRACT-Continued
Rand, Kellock and Estey JJ.: While s. 96 of the Ontario Companies Act prohibits loans to shareholders, it provides its own penalty for disobedience and produces no other result. In any event, there nothing in s. 96 which affected the contract here in question, to which the company was not a party.
N.E. would have no responsibility under s. 96 for loans made up to the time he knew they were being made;
if he chose to assent to further loans thereafter and thus incurred liability, that was not a consideration which would make it inequitable to decree specific performance against him. But taking the matter on the basis of the trial judge's finding, that N.E.
knew the facts from the time of the first loan, it might be that N.E. would have a right to be indemnified by A.E. and L.E. in respect of any liability he might have to the company in respect of the purchase price of the shares, but that was a matter which should be left to be determined when the point arose and the issue was properly defined.
v. EANson.........
2.- Petition of right-Negligence-Bacon agreement between Canada and the United
Kingdom, 1940-Bacon Regulations, Order in Council December 13 and 27, 199- Bacon Board booking shipment for pork products to be furnished by suppliant- Products delivered at seaboard but no ship available for loading-Products deteriorated from being unattended-Whether Board bound to notify suppliant or put products in cold storage-Validity of claim by suppliant
Act, R.S.C., 1927, c. 34.-Suppliant, carrying on business as meat packers and provisioners, alleged that, on February 28,
1941, it was notified by the Bacon Board that the latter had booked shipment for pork products on a steamship scheduled to load at Saint John from March 12 to 15,
1941; that the suppliant proceeded to make arrangements accordingly and so notified the Board; that the products arrived at
Saint John on March 1941 and were delivered at seaboard but no ship was available on which to load them; that the
Board did not inspect the products until
March 29, 1941 when it advised the suppliant that some of them were rejected for slime, odour and mould; that the Board, knowing that no ship was available, failed to notify the suppliant and failed to put the products into cold-storage until shipping space would be made available; and that on the resale of the rejected products the suppliant suffered loss to an amount of
$4,508.86.
Suppliant claimed that the
Crown, through the Board, had purchased or requisitioned its property ant, alternatively, that it had suffered damages resulting from negligence of the Board.
A question of law was set down for disposition before trial of the action as to whether a petition of right lies, assuming the acts or omissions alleged in it to be established.
CONTRACT-Concluded
The President of the Exchequer Court of Canada held that the suppliant was not entitled to any of the relief sought in its petition. On appeal to this Court, Held, reversing the judgment appealed from, that the appellant's claim under section 19 (c) of the Exchequer Court Act,
"arising out of injury property resulting from the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment" might still be valid, even if the Board has no power to purchase or to appropriate. Therefore, the suppliant is entitled to proceed to trial on its petition of right. Co. v. THE KING...... 3.-Franchise-Act of provincial legislatoll-bridge-Exclusive right to cross river and years, to take possession of bridge and dependencies upon payment of their value- Crown then to have right to charge and collect tolls-Construction of the Act-Taking of possession by Crown not constituting expropriation in its strict sense-Crown solely exercising rights conferred to it by Act- Mere execution of clauses of contract between Crown and grantee-Franchise not perpetual, but ceasing to exist from date of taking of possession by Crown-Provision in Act of 1830 and subsequent enactment in 1940 as to taking of possession upon payment of value of properties-Taking of possession allowed without making immediate payment-Interest payable in amount of indemnity from date of taking of possession-Statute of Lower Canada (1880)
10-11 Geo. IV, c. 56- (Que.) (1940) 4 VI, c. 83 and c. 71- Arts 1066 (a) and seq. C.C.P......... See FRANCHIsE.
4.-Railway-Carrier-Shipment of horses -Claim for damages shipper .
. .352, CRIMINAL LAW-Subsection (2) of s. 69 Cr. C.-Prosecution of a common purpose by several persons-Police officers attempting to effect arrest of person charged with conspiracy -Firing almost simultaneous by three of 'them while in pursuit of the latter-Only one shot causing death-Two officers charged with manslaughter under subs. (2)-Verdict of guilty affirmed by majority of appellate court-Whether evidence sufficient to justify such finding-Direction by trial judge that subs. (2) applied-Misdirection rendering verdict defective and void-New trial ordered dissenting judgments-Power of this Court on appeal-Not limited to opinion expressed by dissent-Acquittal of accused can be pronounced by this Courtanting of new trial may place accused a second time in jeopardy-Jurisdiction-G-4rounds of dissent -This Court justified to look into reasons for judgment of dissenting judges of appellate court.-The appellants, members of the CRIMINAL LAW-Continued
Royal Canadian Mounted Police, had, on
May 7, 1944, together with another constable by the name of Massicotte and a corporal Dub6 who was in charge, gone to the village of St. Lambert, situated at some thirty miles from the city of Quebec, for the purpose of apprehending one Georges
Gu6nette wanted on a charge of having conspired with others to assist one Plante to escape from thee custody of a peace officer, some ten or more attempts having previously been made. These constables and three others had made on the same day an earlier trip and, after having searched the premises of Gu6nette's father unsuccessfully, decided to return to their headquarters in the city of Quebec.
After proceeding some distance, the four abovenamed constables turned about and went back to St.
Lambert on the chance that Gu6nette might have returned to his father's house thinking that the coast was clear, Corporal
Dub4 stationed the appellant Lizotte and
Massicotte outside the house, while he himself entered it followed by the appellant
Savard.
While so engaged, Dube's attention was attracted by a sound upstairs and he went up just in time to see Gu6nette jump from a window.
Savard immediately ran from the house in pursuit of
Gu6nette, and, seeing he was losing ground, and as Gu6nette ignored his calls to stop, he fired four shots in the air from his revolver. As Gu6nette still paid no attention, Savard lowered his revolver toward a point approximately, so he says, six feet to the left of Gu6nette so that the latter would not only hear the bullet but see the spurt of the ground where it hit. As
Savard fired this fifth shot, Guinette was in the act of jumping a fence, at a distance of more than two hundred feet from the house, and, as he reached the other side, he appeared to bend forward with the left hand resting on the fence and the right hand on the ground.
He then straightened himself and ran for a distance of approximately seventy-eight feet where he stumbled and fell face down.
According to medical evidence, he was then dead or died very shortly thereafter.
The appellant Lizotte and Massicotte also ran in pursuit of Gu6nette, Lizotte firing one shot in the air and a second one toward a point, he says, some thirty feet to Gudnette's right and Massicotte also firing one shot in
Gu6nette's direction.
indictment charged that the appellants "have together and illegally inflicted corporal wounds which caused the death of (Guinette), thus committing manslaughter."
In view of the uncertainty as to the identity of the person who had fired the fatal shot (only one bullet hit Guinette), counsel for the Crown at the opening of the trial declared expressly that the case fell within the provisions of subsection 2 of s. 69 Cr. C., and they submitted to the jury that the appellants had formed a common intention to bring about the arrest of Guinette by any means, that
CRIMINAL LAW-Continued such intention involved an unlawful purpose, namely, the use of force beyond the limits permitted by section 43 Cr. C., that each of the appellants was an accomplice in the commission of a crime by one or the other and tnat it was immaterial which of them actually fired the fatal shot, as the death of Gu6nette was or ought to have been known to each of them to have been a probable consequence.
Counsel for the Crown further submitted that the common wrongful intention originated from the acts of the appellants and their companions and the incidents occurring during their trip, which showed a fixed purpose to use more violence than necessary to take Gu6nette into custody, or that the common intent started to be illegal at the moment of the simultaneous firing by the appellants and -Massicotte. The trial judge, after having read subsection 2 of section 69 Cr. C., charged the jury in so many words that it applied; he also stated that there was no illegality attaching to the appellants' conduct prior to the moment of the firing, but that the illegality then started, if the jury was of the opinion that they had then used undue violence (s. 43 Cr. C.). The appellants were found guilty and condemned respectively to twelve and nine months' imprisonment.
conviction was affirmed by a majority of the appellate court, the two dissenting judges being of the opinion that a new trial should be granted.
Held that the appeal should be allowed, the convictions quashed and the appellants be discharged.
There is no evidence upon which a finding could be made that the appellants formed at any time a common wrongful intention as required by subsection 2 of section 69 Cr. C.-Moreover the erroneous directions given by the trial judge have necessarily influenced the jury's minds and have totally rendered defective and void the conclusion they have reached.-Their verdict, being thus illegal, must be quashed.- Counsel for the Crown also contended that, if the verdict was held to be illegal, the only remedy this Court could grant would be an order for a new trial, as the Court could not go beyond what was directed by the dissenting judgments: the appellants could then be proceeded against individually under subsection (1) of section 69 Cr. C. or additional evidence might be forthcoming which would make subsection (2) applicable.
Held that, in a case like the present, such an order ought not to be made, so as to permit an entirely new case to be made against the appellants. While the existence of a dissent on a question of law (s. 1023 Cr. C.) is a condition precedent for an appeal to this Court, the Court once seized of the appeal is not limited to the remedy considered appropriate in the dissent, but has complete jurisdiction to direct the remedy which in its opinion the Court appealed from ought to have granted (s. 1024 Cr. C.).
Under the circumstances CRIMINAL LAW-Concluded of the case and in view of the manner the case was deliberately proceeded with by the
Crown, the granting of a new trial would violate the fundamental right of an accused not to be placed for a second time in jeopardy.
Manchuk v. the King
S.C.R. 341 and Wexler v. The King [9139]
S.C.R. 350) foll. Per the Chief Justice and
Kerwin and Taschereau JJ. The Supreme
Court of Canada, when given jurisdiction to entertain an appeal on any question of law on which there has been dissent in the court of appeal (section 1023 Cr. C.), is justified, whether grounds of dissent are specified or not in the formal judgment of that court, to look into the reasons for judgment of the dissenting judges in order to find the grounds of dissent.-Reinblatt v.
The King ( (1933) S.C.R. 694) foll.
LIzoTTE THE
2.-Habeas Corpus-Accused sentenced to one year's imprisonment-Notice of appeal by
Crown-Accused served sentence and released from gaol before hearing of appeal-Appellate court increasing sentence-Accused rearrested and incarcerated-Whether illegally detained-Sections 1078 and 1079 Cr. 532
3.-Habeas corpus-Petitioners charged with criminal offence and committed for trial-Called as witnesses in another trial- Refused sworn and give evidence-Fear to incriminate themselves-Contempt of court
-Sentence to term in jail "under common law"-Pronounced after trial terminated- Alleged illegalities of sentence and committal
-Inability to prepare defence in their trials-No conflict with section 165
Cr.
C.-Section 5 Canada Evidence Act....
4.-Habeas corpus - Petitioner charged with criminal offence-Refused sworn as witness in another trial-Fear to criminate
"under common law"-Legality of sentence committal-Sections 165 and 180 Criminal
Code...............................
CROWN-Negligence-Petition of right- Injury minor children through explosion thunderflash-Alleged negligence of army officers in leaving live explosive in a field after manoeuvres-Small children later finding it, playing with and lighting it-Liability of the Crown-Negligence or fault of the children-Division negligence-Whether doctrine of contributory negligence applicable to the Crown, when cause of action arises in Quebec province-Exchequer Court Act,
R. S 1927, 34, section 19 (c), amended
2 VI (Dom.), 28, s. 1.-During the evening of October 10, 1942, a detachment of soldiers belonging to a Canadian regiment carried on military exercises on the course of the old Kent Golf Club, near the city of Quebec.
During these manoeuvres some seventy-five thunderflashes were used.
On October
31 one unexploded thunderflash was found on the adjoining farm of one Giroux by two boys who had been looking for golf balls, one of them being Marcel, minor son the respondent Dubeau. The boys opened the thunderflash and extracted bits of powder from it, which they ignited with matches and caused small explosions.
Marcel took home with him the thunderflash containing the remaining of the powder.
On the same evening, these two boys, with several others including Gaston, minor son of the other respondent Laperrihre, gathered the street.
After burning a small bit of the powder on the sidewalk, Gaston and the other boy who had found the explosive decided to ignite the remainder the powder in the thunderflash all at once. After two attempts had been made with no result, Gaston and Marcel, respectively and years age, thinking that the explosive had not been properly lighted, were about to pick it up, when it exploded causing severe injuries to the two boys. The respondents, in their qualities of tutors to their minor sons, by petitions of right, claimed damages from the Crown, alleging its liability for the negligence of its officers or servants in the exercise of their duties or employment.
The Crown contended that there was nothing in the case which was a nature to involve its liability, that the military exercises had taken place on private properties, that young Dubeau was illegally on such lands when he found the explosive and that there had been no negligence on the part of any of its officers servants while acting within the scope their duties or employment.
The Exchequer Court of Canada maintained the respondents' petitions of right, fixed the amount of the damages to a sum of about $15,371.00 in each case and then reduced such amount by one-third on the ground that the two boys were at fault to that extent. The
Crown appealed to this Court, and the suppliants cross-appealed, claiming that the Crown should be held liable for the full amount of the damages. Held, affirming judgments Exchequer Court of Canada ([1945] Ex. C. R. the Chief Justice dissenting, that, the appeals by the Crown should be dismissed and that the petitions right of the respondents be maintained for the amount of damages awarded by that Court. Held also that the cross-appeals by the respondents should be dismissed.
Rand J. (dissenting)
, was of the opinion that the full amount of the damages should be granted. Chief Justice
(dissenting)-A child, who is of sufficient age (at least over 7 years) and who also possesses requisite intellectual capacity and rational judgment, is legally liable to account for his acts: such doctrine is adopted by noted French authors and by a jurisprudence derived from many decisions rendered by the Quebec courts. Thus, when a child is found to be guilty of contributory negligence, he is evidently guilty of negligence and answerable for the full liability attached to his illegal act, unless there is evidence that another person has contributed with him to cause the damages: he is solely responsible, being causa causans.
In the present case, the military men cannot be charged with gross negligence for having willingly and knowingly left on the ground a dangerous explosive, as, upon the evidence, they were ignorant of the fact that a thunderflash had remained unexploded.
Assuming that, because the military men did not ascertain before leaving that no thunderflash was left unexploded, it would constitute negligence on their part, there is no evidence that they were aware, or should have been aware, that children would enter the ground after the manoeuvres had taken place; on the contrary, the evidence shows that there could not be such possibility.
Moreover, in view of the opinion expressed by the trial judge that the two boys possessed sufficient intelligence to have foreseen the possible consequences of their acts, they should be treated the same as if they had been adults; and the
Crown would not have been held liable if adults had committed these acts.
On the whole, the minor sons of the respondents have conducted themselves with the full knowledge of the possible consequences of their acts and they have suffered injury through their own want of prudence.
any event, there has been, from the time the explosive has been found to the time when the accident occurred, a sequence of intervening events which makes of the alleged negligence of the military men a most remote cause (causa sine qua non) of the accident and of the damages resulting from it, but not a causa causans.
Kerwin J.:-On the facts of the case, there was negligence on the part of the officers in charge of the military exercises, while acting within the scope of their duties or employment, in leaving, without making a search, the unexploded thunderflash, a dangerous article, on Giroux's farm, where the two boys on the day in question went with at least the implied permission of the owner.
Under all circumstances, steps should have been taken to see that all the thunderflashes used had been exploded;
and, in the absence of such steps, it should have been anticipated that an unexploded one would be found by children on Giroux's farm and that such children might so play with it as to cause injuries to themselves.
While the two boys were normal and intelligent enough to understand to a certain extent the imprudence of their acts, they were, nevertheless, of such an age as not fully to comprehend the dangerousness of their actions: such was the finding of the trial judge and it should not be disturbed.
Per Hudson and Estey JJ.:-The Crown
, appellant has failed to prove that after the manceuvres all the thunderflashes were accounted for and had, in fact, exploded. Notwithstanding that no permission had been obtained to use Giroux's land in any way, and in spite of the fact that these thunderflashes were thrown from a point adjoining it and in its direction, no effort was made to see that these thunderflashes did not reach it, nor to warn Giroux of the possibility that some of them might have reached his farm, upon which the boys who found the explosive were not trespassers. Under the circumstances, these facts constituted negligence.
The conduct of the two boys, having regard to their capacity, knowledge and experience, constituted also negligence, but that the boys were negligent, however, does not necessarily relieve the first party negligent of liability. Nevertheless, in spite of their partial knowledge of the possibility of injury with which they were confronted, they cannot be entirely excused because in part their negligent conduct has contributed to their own injuries.
Per Rand J. (dissenting on the cross-appeal)
:-A highly dangerous explosive has been unlawfully placed and left on land where two boys who shortly thereafter found it had permission to be. The high degree of care required of those who control such articles means the anticipation of a greater range of probable mischief and, in this case, reaching to the children injured. The natural consequences of that initial culpa extend then to the injuries suffered unless it can be said that at some point a new and independent actor has intervened. The intervening act in this case, if an adult had been concerned rather than a boy of 12, would be held to be new and independent; it was not a situation in which contributory negligence could operate; it would have been an intermeddling by a responsible person with what he would know could be dangerous. There are degrees of liability for consequences between two or more participants in a negligent cause, but there is no binding authority which attributes fractional liability or deprivation of right to an infant in proportion to his appreciation of a particular situation; in relation to a specific act, he must be either responsible or not responsible, there is no halfway culpability and these boys of 11 and 12 cannot be held to conduct that in the circumstances would have avoided the results which happened. The act of both boys, moving to pick up the explosive after the fuse had been lighted, not only negatives intelligence and general capacity which would have placed them in an older age or adult category, but demonstrates their inadequate appreciation of the danger they were courting. Their conduct then was normal, likely and, just as prudent behaviour in an adult, innocent: that excludes any qualification or limitation of the right to recover full damages from the Crown.-The Crown contended that its liability under section 19 (c) of the Exchequer Court Act is confined to cases where the injuries to person or property are exclusively
"resulting from the negligence of any officer or servant of the Crown", i.e. that there is no right of action against the Crown in a case of contributory negligence on the part of the Crown and the subject.
Held, per
Kerwin, Hudson and Estey JJ. that the
Crown's contention is not well founded when the cause of action arose in the province of Quebec.
The Chief Justice and
Rand J. expressing no opinion. Per the
Chief Justice:-There is no necessity to decide such question in view of the conclusion, arrived at, that the Crown was in no way liable for the accident. Per Kerwin
J.:-In cases between subject and subject in Quebec, damages must be mitigated in the case of common fault. This being the general law in that province, it is the law to be applied to the Crown under section 19
(c): it has been so settled by decisions in this Court. Per Hudson and Estey JJ.:- In many decisions of this Court as well as of the Exchequer Court of Canada, where action was brought under section 19 (c) and the cause of action arose in Quebec, damages were apportioned between the Crown and the subject, when the negligence on the part of servants of the Crown contributed to the loss, thus indicating a long accepted construction of that section. Per Rand
J.:-It is unnecessary to consider this ground of appeal, in view of the opinion above reported.-Semble that there nothing whatever anomalous in the view that what Parliament intended in creating liability of the Crown was to adopt the law then existing in each province, except as it might thereafter be amended or changed by
Parliament, but that in any event the interpretation placed on section 19 (c) since its enactment has established a jurisprudence which would now be too late to
DUBEAU...................
2.-Master and servant-Automobile- Collision-Member of Armed Services injured while riding as gratuitous passenger- Crown's disbursements for wages and medical and hospital services-Action by Crown to recover same from owner and driver of motor car-Civil wrong, actionable servant, prerequisite to right of master to recover expenses- Application of section 60 A Exchequer Court
Act to proceedings in provincial courts-Its constitutionality-Exchequer Court Act, section 50 A, enacted Dom. 1943-44, c. 95, s. 1- Motor Vehicle Act (N.B.) 1984, c. 90, s. 59.
-One
D., a soldier on active service in the
Canadian Army, being on leave of absence, was travelling to his home as a guest passenger with the respondent in the latter's motor car. A collision occurred and D. was severely injured. The Crown (Dominion)
disbursed a sum of $1,855.24 for wages paid and medical and hospital services furnished through its Army organization during the period of incapacitation.
The Attorney- General of Canada brought suit in the Supreme Court of New Brunswick to recover that amount from the respondent. Section 50 A of the Exchequer Court Act (enacted 1943-44, c. 25, s. 1) establishes a master-servant relationship between the Crown (Dominion) and a Canadian serviceman.
Section 52 of the Motor Vehicle Act (N.B. 1934, c. 20) negatives any right of action against the owner or driver of a motor car for loss or damage resulting from injury to, or death of, a gratuitous passenger. The actiQn was dismissed by the trial judge, and that judgment was affirmed by the appellate court. Held that the appeal to this Court should be dismissed. The Crown, while bearing under section 50 A the relation of master towards a serviceman, has no direct or specific right of recovery against a third person for expenses incurred through injury caused by the latter to the serviceman; such right depends on whether the serviceman himself has any right of action arising from the act of the third person.
Hence, where D., being a gratuitious passenger in the respondent's automobile at the time of his injury, could bring no action against the respondent, neither can the Crown.
Held also that the provisions of section 50 A applied not only to actions brought in the Exchequer Court of Canada, but also to proceedings brought in any provincial court. Per Kellock J.:- The constitutional validity of section 50 A may be supported under section 91 (7) of the B.N.A. Act.
3.-Master and servant-Negligence of officer or servant of the Crown-Soldier wrongfully firing live ammunition-Alleged failure of officer in charge to stop firing- Destruction of barn and contents-Extent of Crown's liability-Whether breach of duty by officer to owner of barn-Neglect of duty in respect of military law-Use of reasonable care by officer in charge-Exchequer Court Act, 1997, c. 84-Section 19 (c) as amended by 1988 (Dom.) c. 28, s. 1-Section 50 A, 1948-44 (Dom.) c. 95.-M., a soldier, took wrongfully a quantity of live ammunition from the gun stores and had it in his possession, while being transported by truck as part of a draft which was moved to another building. The draft was in charge of two non-commissioned officers, sergeant-major W. being in command and lance-corporal H. assisting him. During the trip some soldiers in M.'s truck fired blank ammunition, and M. fired live ammunition at least once before reaching Anthony's barn. The live ammunition was property of the Crown, the soldiers were not to fire except under orders of a superior officer and the orders were that the soldiers should turn in the ammunition at the close of military exercises.
When M. passed in front of respondent Anthony's barn, he directed a tracer bullet at a window, and the barn, and its contents belonging to respondent
Thompson, were destroyed by fire. In actions against the Crown under section 19
(c) of the Exchequer Court Act, the trial judge found that, while M. was not acting within the scope of his employment, there was liability on the Crown because of the negligence of the officers in charge of the draft in failing to stop the firing. Held, reversing the judgment of the Exchequer Court of
Canada (1946] Ex. C.R. 30), Kerwin and
Estey JJ. (dissenting)
, that the Crown was not liable.
The act of M. in shooting the incendiary bullet into the larn cannot, in any way, be treated as an act of negligence committed while acting within the scope of his duties; it was a wilful act done for his own purpose, quite outside of the range of anything that might be called reasonably incidental to them. The failure of the officers, in charge of the draft, was a neglect of duty only in respect of military law;
it did not constitute also a breach of private duty toward the respondents; and the rule of respondeat superior has no application.
Paragraph (c) of section 19 of the Exchequer Court Act creates a liability against the
Crown through negligence under the rule of respondeat superior, and it does not impose duties on the Crown in favour of subjects.
The liability is vicarious, based as it is upon a tortious act of negligence committed by a servant while acting within the scope of his employment; and its condition is that the servant shall have drawn upon himself a personal liability to the third person. If the liability is placed merely on the negligent failure to carry out a duty to the Crown and not on a violation of a duty to the injured person, then there will be imposed on the Crown a greater responsibility in relation to a servant than rests on a private citizen. But the words
"while acting" clearly exclude such an interpretation.
Per Kerwin and Estey
JJ. (dissenting)
:-W., an officer in charge of the draft, was a servant of the Crown as provided by section 50 A. of the Exchequer
Court Act and the damages claimed by the respondents resulted from his negligence while acting within the scope of his duties or employment within the meaning of section 19 (c) of that Act.
Per Kerwin J.
(dissenting):-W. should have known that the men in M.'s truck were discharging rifles and should have detected the live ammunition fired by M. before the truck reached the barn.
W. owed to the respondents a duty to prevent M. from firing and should have foreseen that damage would occur as a result of his failure to stop him.
Per Estey J. (dissenting)
:-The failure of
W. to use reasonable care to restrain M. was the cause of the destruction of the barn.
W. owed the duty to use care towards the respondents as residents along the highway, and his breach of that duty constituted negligence.
THE KING v.
CROWN-Concluded
4.-Petition of right-Contract-negligence-Bacon agreement between Canada and the United Kingdom, 1940-Bacon Regulations, Order in Council December 18 and 27, 1989-Bacon Board booking shipment for pork products to be furnished by suppliant- Products delivered at seaboard but no ship available for loading-Products deteriorated from being unattended-Whether Board bound to notify suppliant or put products in cold storage-Validity of claim by suppliant Act, R.S.C., 1927, c. 84.............. 5.-Shipping-Collision in harbour during fog-Petition of right-Claim for damages to tug and for loss of earnings-Both vessels at fault and fault in equal degree-Crown held liable for one-half the damage and loss sustained by suppliant-Crown also ordered to pay costs of action-Whether Crown liable for costs........................ 6.-Franchise-Act of provincial legislatoll-bridge-Exclusive right to cross river and years, to take possession of bridge and dependencies upon payment of their value-Crown then to have right to charge and collect tolls- Construction of the Act-Taking of possession by Crown not constituting expropriation in its strict sense-Crown solely exercising rights conferred to it by Ad-Mere execution of clauses of contract between Crown and grantee -Franchise not perpetual, but ceasing to exist from date of taking of possession by Crown-Provision in Act of 1880 and subsequent enactment in 1940 as to taking possession upon payment of value of properties- Taking of possession allowed without making immediate payment-Interest payable in amount of indemnity from date of taking of possession-Statute of Lower Canada (1880) 10-11 Geo. IV, c. 56-(Que.) (1940) 4 Geo. VI, c. 88 and c. 71-Arts. 1066 (a) and seq. C.C.P...................... See FRANcmsE.
CUSTODIAN OF ENEMY PROPERTY ..................
.................
CUSTOMS DUTY-Revenue - Goods imported and duty paid according to value fixed at port of entry-Minister's (National Revenue) power to re-determine value of goods for duty-Imposition of additional duty- Applicability of such power to goods already imported-Construction of section 41 of the Customs Act-Whether Minister's power is referable to past as well as to future importations-Alleged re-appraisal by
Customs appraiser under section 48-Whether Crown can claim, in the present cases, additional duty under such re-valuation-Customs Act, CUSTOMS DUTY-Continued
R.S.A. 1927, 42 and amendments, sects.
4, 20, 35, 88, 39, 40, 42, 48, 48, 52,
111, 112..........................
EMPLOYER
EMPLOYEES- Collective Agreement Act-Decree relating to retail trade-Employees to receive regular wages if store closed on certain days-Employees working voluntarily on such days to paid double wages-Store closed to the public owner "to respect his religion"-Whether working employees entitled to double time- Collective Agreement Act, R.S.Q., 1941,
168.-A decree relating to the retail trade in the city of Quebec, made under the authority of the Collective Agreement Act, provides that "Any regular employee shall be paid for the days when stores are closed:
New Year's Day, the day after New Year's
Day, Epiphany, Good Friday till 12.00
(noon), Ascension Day, St. John the Baptist's Day, Labour Day, All Saints Day,
Immaculate Conception Day, Christmas
Day and any other day the employer keeps his establishment closed to respect his religion" (section 3, par. 2(e)); and that
"no employer shall compel his employees to work on Sundays and on the days mentioned in subsection "e" of the present section and all work performed on these days shall be paid double time with respect to the regular wages of the said employee."
(section 3, par. 2
The appellant corporation, carrying on business as a retail merchant, closed its doors to the public on three days by way of observance of the
Jewish New Year and Day of Atonement.
Notice was also given that any employee desiring to work voluntarily would be at liberty to do so.
All employees, whether working or not, were paid the regular daily rates. On behalf of those who did work, the respondent Comit6 Paritaire claimed payment of double wages in addition to the regular wages already paid, together with certain percentages provided by the Act.
trial judge allowed one-half amount claimed for wages, as the regular wages had already been paid; and that judgment was affirmed by a majority of the appellate court. Held, reversing the judgment appealed from, that the obligation of the appellant company to pay double time must be confined to work performed on
Sundays and on the days specifically set out in clause (e).
Employees will receive their regular wages on days "that employer keeps his establishment closed to respect his religion," but clause (m) does not then apply.-Per The Chief Justice and Taschereau J.:-The appellant corporation was at full liberty to open or close its premises on these three days. They were working days which were converted into holidays by the sole decision of the appellant, and that makes them distinct from the days mentioned in (e), which are holidays binding upon all employers without question of race or religion.-Quaere whether a
CUSTOMS DUTY-Concluded commercial corporation can have a religion.
Per Hudson and Rand JJ.:-Clause (e) is limited in its application to a shop that is closed generally as to employees on the days specified.
The decree does not purport to require a closure either towards the public or the employees; but, once the shop is closed, the right to wages arises. The day of optional closing, which becomes a day mentioned in (e) only if it becomes generally a closed day, is by its nature excluded from (m) except in respect of special employees.
In this case, the shop was admittedly open generally to the employees.
As an open shop, it was not mentioned or enumerated in (e) which, in the optional case, means, to come under its operative effect.
Clause (m) has, therefore, no application to it and the ordinary terms of employment must apply. MAUR- X QUtBEC.. ENEMY PROPERTY-Bearer share warrants-Owned a citizen of France- Deposited with a bank situated in Holland- Sent to Canada in 1939 prior to war-Held a bank in Montreal-Holland, when invaded Germans, declared to be proscribed territory-Custodian of Enemy Property vested with the securities-Owners asking to get possession-Custodian asserting right to investigate before releasing control-Upon evidence, release allowed Custodian subject to payment of commission on total value assets-Whether Dutch bank an "enemy"- Whether Custodian entitled to commission- Consolidated Regulations Respecting Trading with the Enemy (1939,
28 (1) and (1).-The respondents' action brought for a declaration as to whether bearer share warrants, most of them owned by the respondent Baron de Rothschild, a citizen of France, have been at any time on or since the 2nd day of Suptember 1939 subject to the Consolidated Regulations Respecting
Trading with the Enemy These shares, being Royal Dutch Company, had been deposited with a bank named N. V. Commissie-en- Handelsbank, incorporated under the laws of Holland at Amsterdam; and thay had been sent by that bank early in 1939 to Canada to be held for it by the Royal Bank of Canada. On May 10, 1940, Holland was invaded by the German army; on the following day, by order-in-council, the Netherlands was declared proscribed territory and the above Regulations became applicable to it. Section 28 (1) deals with the reporting, to the Custodian, of enemy property in Canada by any person who holds or manages it. Section 44 (1) provides that "the Custodian shall have power to charge against all property investigated, controlled or administered by him but which is subsequently released * * * an amount not 'exceeding two per centum of the value of all such property * * *". On August 1, 1940, the respondents ENEMY PROPERTY-Continued claimed ownership and wanted to get possession of the shares, but the Custodian insisted on getting adequate proof of the respondents' claim and that they were not enemies.
Later, the Custodian, on the basis of evidence adduced, agreed to release control over these shares, subject to the payment of a commission of two per cent.
on their total value. The respondents contended that they were never enemies within the meaning of the Regulations, that the shares always belonged to them and were never subject to the Regulations and that the Custodian had no right to charge any commission against them. The President of the Exchequer Court of Canada agreed with the respondents' contentions and maintained their action. On appeal to this Court. Held, reversing the judgment of the Court below, that the respondents' property was within the time mentioned subject to both sections 28 (1) and 44(1) of the Regulations and that, therefore, their action should be dismissed.
Custodian had power, under section 44 (1), to charge against the respondents' property
"investigated, controlled or administered by him but * *
* subsequently released" the amount of two per cent. of the value of such property.
The language is precise to apply to the situation in this case; the property was held for an enemy;
it became subject to the direction of the
Custodian, and where other persons were claiming through that enemy, it must necessarily be investigated and either released or applied to the purposes contemplated by the Regulations.
Chief Justice and Kerwin, Rand and Estey
JJ.:-The Dutch bank was an enemy within the meaning of the Regulations and the property held by the Royal Bank of
Canada was reportable to the Custodian, under section 28. The residence of the bank on the 11th of May, 1930, must be deemed still to be in Amsterdam, in the absence of proof that, on the 10th, the central management and control and the seat of the bank's business had been transferred to a place outside of Holland.
There was evidence that, early in 1939, the original books (duplicate remaining
Holland), securities and records had been sent to London, England, but there was still property in Amsterdam, including the premises occupied by the bank and some amount of cash; and to attribute sole residence to a corporation elsewhere than at the place of incorporation requires a more complete and collective migration of its facilities and activities.
Per Hudson
J.:-The respondents' argument, that the securities, having been their property at all times, never did vest in the Custodian and as a consequence, the investigation was not done under the authority of the Regulations, is adversely answered by the fact that when Holland was occupied the securities were in Canada, held here for a bank in Amsterdam which, by reason of
ENEMY PROPERTY-Concluded the order-in-council of the 11th of May and the definition of "enemy" in the Regulations, became an enemy.
THE SEcRE- EXPROPRIATION - Compensation Value to owner-Gasoline servzce station- Allowable items-Expropriation Act, R.S.C. 1927, c. sections 2 (d) 8, 2.-The appellant company, a distributor of gasoline and oil products, purchased a corner lot in the city of Saint John, N.B., and erected a service station thereon,
Some years later, the Crown expropriated the property and the present action is to determine its value. The Crown offered a sum of $4,750, while the Company claimed an amount of over $21,000.
The Exchequer Court of Canada awarded $6,000 in all to the Company, after having estimated at $4,000 the fair market value of the land and improvements.
The Company appealed to this Court. Held, varying the judgment of the Exchequer Court of Canada Ex. C.R. 228), that the amount of compensation money to which the appellant company is entitled should be increased and that a sum of $8,697.88 should be awarded, consisting chiefly of the costs of the purchase of the land, of the making of a necessary fill-in and of the construction of the service station less fifteen per cent. for depreciation on the latter, plus expenses of removal and depreciation of equipment and compensation for compulsory taking.-Section 23 of the Expropriation Act provides that "The compensation money
*
* * adjudged for any land
*
*
* acquired taken
*
*
* shall stand in the stead such land
* *
*," and, by section "'land' includes
*
*
* damages, and all other things done in pursuance of this Act
*
*
*"
Per The Chief Justice and Kerwin J.:-The principle in this class of case is that the displaced owner should be left as nearly as possible in the same position financially as he was prior to the taking, provided that the damage, loss or expense for which compensation was claimed was directly attributable to the taking of the lands.
Per Hudson J.:-The value to be fixed is the value to the owner, bearing in mind its acquisition of the property for special purposes and the net earnings which it might receive therefrom until it had established other profitable outlets for its products. Per Rand J.:-The use of the word "damages" and the further language "and all other things done in pursuance of this Act" in section 2 (d) indicate the comprehensive sense in which the word is used and that it is intended to cover not merely the value of land itself, but the whole of the economic injury done which is related to the land taken as consequence to cause. Per Estey J.:-It is the market value of the property expropriated, plus allowances equivalent to the present worth of those advantages which the property possessed EXPROPRIATION-Concluded to the owner, that constitutes the compensation to which he is entitled.
Cedar
Rapids Manufacturing and Power Co. v.
Lacoste ([1914]
A.C. 569) and Pastoral
Finance Association Ltd. v. The Minister
([19141 A.C. 1083) ref.
LrD. v. TE KING.............
2.-Franchise-Act of provincial legislatoll-bridge-Exclusive right to cross river and years, to take possession of bridge and dependencies upon payment of their value-Crown then to have right to charge and collect tolls- Construction of the Act-Taking of possession by Crown not constituting expropriation in its strict sense-Crown solely exercising rights conferred to it by Act-Mere execution of clauses of contract between Crown and grantee-Franchise not perpetual, but ceasing to exist from date of taking of possession by
Crown-Provision in Act of 1830 and subsequent enactment in 1940 as to taking of possession upon payment of value of properties- Taking of possession allowed without making immediate payment-Interest payable in amount of indemnity from date of taking of possession-Statute of Lower Canada (1880)
10-11 Geo. IV, c. 56-(Que.) (1940) 4
Geo. VI, c. 33 and c. 71-Arts. 1066 (a) and seq. C.C.P..........................
FRANCHISE-Act of provincial legislature authorizing erection and exploitation of tollbridge-Exclusive right to cross river and years, to take possession of bridge and dependencies upon payment of their value-Crown then to have right to charge and collect tolls- Construction of the Act-Taking of possession by Crown not constituting expropriation in its strict sense-Crown solely exercising rights conferred to it by Act-Mere execution of clauses of contract between Crown and grantee-Franchise not perpetual, but ceasing to exist from date of taking of possession by
Crown-Provision in Act of 1880 and subsequent enactment in 1940 as to taking of possession upon payment of value of properties-Taking of possession allowed without making immediate payment-Interest payable on amount of indemnity from date of taking of possession-Statute of Lower
Canada (1830) 10-11 Geo. IV, c. 56- (Que.) (1940) 4 Geo. VI, c. and c. 71- Arts. 1066 (a) and seq. C.C.P.-The appellant company was vested with all the rights, prerogatives and privileges conferred to one
J.P., in 1830 by a provincial statute of
Lower Canada (10-11 Geo. IV, c. 56).
Under that Act, J.P. was authorized to erect and exploit a toll-bridge with its dependencies, for a league round, in the upper and lower part of the river J6sus, opposite the village of Sainte-Rose and was granted the exclusive right to cross the river and to charge tolls in accordance with the tariff established by the Act. But it
FRANCHISE-Continued was also provided that, after the expiration of a period of fifty years, the Crown would have the right at any time "to assume the possession and property" of the bridge and dependencies, upon paying to the grantee the "full and entire value", and it was further stipulated that, from the moment of that taking of possession, the Crown would be substituted to all the rights of the grantee to charge and collect the tolls. The Crown took such possession on July 1, Proceedings were taken by the appellant under the expropriation law (Arts. 1066 (b) and (c) C.C.P.) and the record was referred to the Public Service Board for the purpose of fixing the indemnity.
Subsequently the Crown made an offer of $109,398 which was refused. The appellant then filed its claim for $2,387,- 093, $1,848,000 being the alleged value of the franchise and $539,093 as value of the physical assets, damages, interest and other items. The Public Service Board fixed the amount of the indemnity at $109,899. Superior Court homologated that decision and the appellate court affirmed that judgment. Held that the appeal should be dismissed. Upon a proper construction of the Acts of 1830 and 1940, under whose provisions the appellant's claim must exclusively be decided, the appellant company has been granted by the courts below the full amount of compensation to which it was entitled. Held that, under the enactments of the Act of 1830, the taking of possession by the Crown, whenever effected, did not constitute an expropriation in its strict legal sense.
The Crown, by taking possession, did not do more than exercising the rights which had been conferred to it by the Act and to which the grantee had acquiesced in advance.
It is purely and simply the execution of the clauses of a contract passed between the Crown and the grantee.
Held, also, that, upon a proper construction of the Act of 1930, the franchise, which the grantee has acquired through that statute, ceased to exist from the moment of the taking of possession by the Crown and the grantee or his successors or assigns cannot lay any claim to the tolls collected thereafter.-The Act of 1930 stipulated that "it shall and may be lawful for His Majesty
*
*
* to assume the possession and property of the said bridge upon payment to the said J.P. the full and entire value which the same shall, at the time of such assumption, bear and be worth".
But by a subsequent Act, in 1940 (Que. 4 Geo. VI, c. 33), "The Minister of Public Works (was) authorized to take possession, in the name of His Majesty, of the toll-bridge * * * and dependencies
*
*
* and the Provincial Treasurer (was) authorized to pay to the grantee J.P. the full and entire value of the whole at the time when the Minister of Public Works shall so take possession thereof."
Held that the stipulation in the FRANCHISE-Concluded
Act of 1830 is susceptible of being so construed that the Crown could not have efficient possession, and become definitively owner, of the toll-bridge and dependencies, unless payment of their full and entire value had been made; but such preliminary condition, if it existed, has been set aside by the Act of 1940 and the Crown was granted the right, under that Act, to take possession and assume the ownership of those properties ipso facto without any previous obligation to pay the indemnity due the grantee or his assigns.
The only consequence resulting from the taking of possession thus made by the Crown is that, at the time of the payment of the indemnity ultimately determined and granted, the
Crown will be bound to pay interest on the capital of that indemnity from the date of the taking of possession.
THE Arron- GASOLINE HANDLING
ACT, R.S.O.
19, 37, c. 832, 8. 12.................
HABEAS CORPUS-Criminal law-Accused sentenced to one year's imprisonment- Notice of appeal by Crown--Accused served sentence and released from gaol before hearing of appeal-Appellate court increasing sentence-Accused re-arrested and incarcerated- Whether illegally detained-Sections 1078 and
1079 Cr. C.-The petitioner was convicted on September 22, 1944, in respect of three separate charges under section 436 Cr. C.
and was sentenced on each charge to be fined $5,000 or, in default of payment, to serve consecutively two years in gaol and, in addition, was further sentenced on each charge to serve one year in gaol, such sentence to run concurrently.
The petitioner paid the fines and served the additional sentence of one year.
On October
18, 1944, the Attorney General for Ontario gave notice of appeal against the additional sentence; but the appeal was not heard until May, 1946, at which time the petitioner, having served the sentence, had been released from gaol. The appellate court ordered that the sentence be increased on each of the charges for a further term of one year to run consecutively.
The petitioner was re-arrested and incarcerated.
He then moved for the issue of a writ of habeas corpus, claiming that he is detained illegally because there was no longer jurisdiction in the appellate court to increase the sentence imposed on him. The ground raised by the petition is that, under sections
1078 and 1079 Cr. C., the petitioner having undergone his sentence, this had "the like effect and consequences as a pardon under the great seal" and that, from that moment, he was "released from all further or other criminal proceedings for the same cause".
Held that the petition is not well founded and that the writ should not issue. Held,
HABEAS CORPUS-Continued further, that, as the same point has been submitted to the appellate court and that court had dismissed it, there would appear to be res judicata on the subject matter by a court competent to dispose of the objection; and the present petition, under the circumstances, might well be considered as an attempt to appeal indirectly from the judgment of the appellate court, where no direct right of appeal lies.
2.-Petitioners charged with criminal offence and committed for trial-Called as witnesses in another trial-Refused to be sworn and give evidence-Fear to incriminate themselves-Contempt of court-Sentence to term in jail "under common law"-Pronounced after trial terminated-Alleged illegalities of sentence and committal-Inability to prepare defence in their own trials-No conflict with section 165 Cr. C.-Section 5 Canada Evidence Act.-In March 1946, the accused were charged with violation of the Official Secrets Act and conspiracy to violate that Act. They were committed for trial and subsequently entered a plea of not guilty.
Their trials were to take place in eptember,
1946. In June, 1946, they were called as witnesses by counsel for the Crown in a case of The King v. Rose. They refused to be sworn and give evidence on the ground that their testimony may tend to incriminate themselves, although they were told by the trial judge that their refusal was in contradiction with the very wording of section 5 of the Canada Evidence Act. The petitioners were told to remain in attendance at the trial, and, being recalled later, still refused to give evidence. The trial judge then declared them in contempt of court and they were told to remain at the disposal of the Court. Some five days after the Rose trial terminated, the trial judge sentenced the petitioners "under the common law" to three months in jail, where they have been detained since. The petitioners moved for writs of habeas corpus, alleging that their detention was illegal and they were thus unable to prep are their full defence to the charges laid against them. The alleged illegalities are based on several grounds stated in the judgment now reported.
petitioners have not proved any illegality in the sentences and committals of the trial judge, who had full competence and jurisdiction to act as he did. There is no ground shown by the petitioners which would justify the ordering of the issue of the writs prayed for and the petitions, therefore, should be dismissed.-The refusal by the petitioners to be sworn was a direct defiance of a lawful order of the Court and an attempt to frustrate the course of justice: it was, moreover, a contempt in the face of the Court.-The explanation for their refusal cannot justify their conduct, because they could not then know that their answers might incriminate them and, HABEAS CORPUS-Concluded moreover, they were acting in direct opposition to the very wording of section 5 of the Canada Evidence Act.-The power to punish for contempt is inherent in courts of superior original jurisdiction, quite independent of enactments in codes or statutes relating to their disciplinary powers.- The trial judge, when imposing the sentence, meant evidently to exercise that inherent power, when he stated he was proceeding "under the common law".ection 165 Cr. C. does not conflict or interfere with such inherent power.-The trial judge was not compelled, either by the
Criminal Code or the jurisprudence concerning contempt of court, to render his sentence immediately; he had the power of delaying it until the end of the Rose trial.
IN IN
3.-Petitioner charged with criminal offence
-Refused to be sworn as witness in another trial-Fear to criminate himself-Contempt of court-Sentence "under common law"- Legality of sentence or commital-Sections
165 and 180 Criminal Code.-The petitioner, charged with a criminal offence, being called as a witness in a criminal trial, refused to be sworn and give evidence.
The trial judge delcared him in contempt of court and sentenced him "under the common law" to a term of imprisonment.
The petitioner applied for. the issue 6f a writ of habeas corpus before The Chief
Justice of this Court, and the application was dismissed.
petitioner then appealed to the Full Court from that order.
Held that the appeal should be dismissed.- The trial judge had the power and authority to make the committal order and, in proceeding to do so, had not infringed any rule of law.
GERSON..............
4.-Bail-Jurisdiction-Petition for writ of habeas corpus-Dismissal by a judge of this Court-Application for bail before same judge, pending appeal to Full Court-Whether judge has power to grant it or is functus officio-Section 58 Supreme Court Act.. 537
See BAIL.
HUSBAND AND WIFE-Trusts and trustees-Property, acquired through joint efforts of husband, wife and children, purchased in name of husband-Reciprocal will of husband and wife-Statements with respect to alleged agreement for benefit of survivor and children-Properties transferred by husband to wife-Whether presumption of gifts to wife- Death of wife leaving will disposing of whole properties to daughters-Whether wife trustee for husband alone or for all children and husband equally.....................
INCOME TAX-Income
War Tax Act
(R.S.C. 1927, c. 97, and amendments)- Deductions in computing income-Sums paid by taxpaying company to another company as
77529-3 commissions for performance of obligations assumed by latter under agreement-Disallowance in large part by Minister of National Revenue- of such sums as deductions-Whether Minister acted under, and applicability of, s. 6 (1) (i) or s. 6 (2) of Act-Whether Minister's discretion under s. 6 (2) properly exercised-Complaint that report of local inspector of taxation to Minister was not shown to taxpayer or transmitted to be filed in Exchequer Court-Whether function falling upon Minister was within his power of delegation to Deputy Minister of National Revenue for Taxation.-Appellant, a company incorporated under the Dominion Companies Act, 49-86 per cent. of whose shares were held by a certain English company, made an agreement with the English company in 1935, whereby, in consideration of performance of obligations assumed by the latter (not to sell in Western Canada, to transmit to appellant orders received from that territory, to select and test products supplied to appellant, to furnish information and technical knowledge, and to advise), agreed to pay to the English company a commission of 5 per cent. upon all cash received in respect of the net selling price of certain products both manufactured and sold by appellant after the date of the Pursuant to the agreement, appellant paid to the English company in 1940, and 1942, commissions of $17,381.94,
$29,325.85, and $39,480.91, respectively, for which it claimed deductions in computing its income under the Dominion Income War Tax Act.
The sums were disallowed as deductions except as to the sum of $7,500 in each year. From such disallowance, as affirmed by the Minister of National Revenue (acting by the Deputy Minister of National Revenue for Taxation), appellant appealed to the Exchequer Court. Its appeal was dismissed
([1945] Ex. C.R. 174); and it appealed to this Court. It contended (inter alia) that the commissions were an obligation imposed by a valid contract; that on the evidence they were reasonable and there was no evidence to the contrary; that s. 6 (1) (i) of said Act governed and that as the English company did not control appellant, no disallowance warranted; that s. 6 (2) was not applicable; and that in any case the Minister's discretion was not properly exercised; that a report to the Minister from the local inspector of taxation should have been before the Exchequer Court, to give opportunity to appellant to controvert any statements therein; that the function falling upon the Minister was not within his power of delegation to the Deputy Minister. Held (Kerwin J. dissenting): The appeal should be allowed and the matter referred back to the Minister to be dealt with by him according to the reasons of the majority of the Court. Per the Chief Justice: In view of an admission, binding respondent, as to the proportion of shares in appellant held by the English company, appellant must be taken not to be controlled directly or indirectly by the
English company, and therefore the disallowance of the deductions was not authorized under s. 6 (1) (i) of the Act, the provisions of which were applicable to the case, and the Minister could not act under s. 6 (2) in contravention of what was prescribed under s. 6 (1) (i); further, there was evidence, uncontradicted, that the advice and services of the English company were worth the amounts paid; further, s. 6 (2)
did not apply to the facts: the sums claimed as deductions were not "expenses" within the meaning of s. 6 (2) (which contemplates expenses in the ordinary course of business);
they were the price or consideration of the contract and of the due performance by the
English company of its obligations; without them there would have been no contract and appellant would not have been in business.
(The opinion was expressed that the assessment should be set aside to all intents and purposes, but, in view of conclusions by Hudson, Kellock and Estey JJ.
that the matter should be referred back to the Minister, such disposition was agreed to.) Per Hudson J.: S. 6 (1) (i) of the Act did not exclude the exercise of the Minister's discretion under s. 6 (2) under which he proceeded.
The sums for which appellant claimed deductions could not be considered as part of its "net profit or gain" under s. 3, and there should be special reasons to support the disallowance.
The Minister's ruling did not disclose reasons. The Court should know the reasons, so as to decide whether or not they are based on sound and fundamental principles. The report of the local inspector should have been before the Court under s. 63 (g) of the Act; appellant was entitled to see it and reply to it.
The matter should be referred back to
Minister for reconsideration.
Kellock J.: Having regard to the matters for which the commissions were paid, s. 6 (1)
(i) did not apply; and the Minister did not purport to act under it but expressly acted under s. 6 (2).
His discretion under s. 6
(2) should be exercised on proper legal principles.
Appellant had a statutory right to have deducted, in the computation of its net profits or gains, "expenses wholly, exclusively and necessarily laid out or expended" for the purpose of earning those profits or gains. For the Minister to disallow any excess over what was reasonable or normal for appellant's business, he first had to determine what was reasonable or normal. His formal decision threw no light as to the grounds upon which it rested.
He could not ignore the agreement between appellant and the English company nor its legal consequences; and there was nothing before the Court upon which it could be said that there was any unreasonableness attaching to the commissions or to the agreement to pay them.
What evidence there was, was to the contrary. The ground of the Minister's decision was unexplained and his decision was made to appear as a purely arbitrary one.
Whether the local inspector's report disclosed grounds for the Minister's decision the Court had no means of knowing. Therefore it was the duty of the Court to refer the case back to the Minister. Further, s. 63 (g) of the Act made the report of the local inspector evidence, and appellant was entitled to have it produced to him before the assessments were made and to have an opportunity to meet whatever it contained; and his not having been accorded this right was in itself a ground for setting aside the assessments and sending the case back for further consideration.-Per Estey J.: The Minister acted under s. 6 (2) of the Act, as stated in his decision and the correspondence; also s. 6 (1) (i) was inappropriate, in view of the matters for which the commissions were paid; moreover, there was no evidence before the Minister upon which he could determine by whom controlled
Apart from the local inspector's report, which was not produced before the Court, there were no facts before the Minister which provided a basis upon which a discretionary determination could be made that the items in question were excessive within the terms of s. 6 (2).
The said report, admitted by the Deputy Minister to have contained representations from the taxpayer, was "relative to the assessment" and should have been filed as required by s. 63 (g) of the Act.
As it was not so filed, and also as further information might well have been requested from and given by appellant, the case should be referred back to the Deputy Minister as provided under s. 65 (2) of the Act. Per Kerwin, J., dissenting: On the evidence it could not be said definitely that appellant was not "controlled directly or indirectly" by the English company within the meaning of s. 6 (1) (i) of the Act; in any event, s. 6 (2) (enacted in its present form subsequently to the enactment of s. 6 (1) (i)) conferred upon the Minister a power which he might exercise even if appellant had been able to bring itself within s. 6 (1) (i), and that power is a purely administrative one.
Even if it were held to be of a quasi-judicial nature, appellant was given a fair opportunity to be heard and to make its representations, and there was nothing to indicate that the discretion was not exercised on proper legal principles.
Appellant's payments to the English company fell within the term "expense" in s. 6 (2).
As the substantial matter in the appeal to the Deputy Minister (acting for the Minister) was the same as what was involved in the exercise of his discretion, the decision in Local Government Board v. Arlidge, [1915] A.C. 120, not only justifies but requires a decision that he was not obliged to produce any report from the local inspector.
It was held (per Kerwin,
Hudson, Kellock and Estey JJ.; the Chief
Justice not expressly dealing with the matter) that the Minister's duty in this case came within his power of delegation under s. 75 (2) of the Act. CANA- 2.- Liability for-Income War Tax Act
(R.S.C. 1927, c. 97, and amendments), s. 9
(1) (a) (b) (before its amendment in 1942)- "Residing or ordinarily resident" in Canada
"during" year-"Soourns".-Sec. 9 (1) of the Dominion Income War Tax Act (as it stood before amendment in 1942) required payment of a tax "upon the income during the preceding year of every person (a)
residing or ordinarily resident in Canada during such year; or (b) who sojourns in
Canada for a period or periods amounting to" 183 days "during such year".
Appellant was born in the province of New
Brunswick.
He had retired from business by 1923, and in that year, owing to a dispute over a village assessment, he sold his home in New Brunswick, declared Bermuda to be his domicile, went there and leased a house but didn't stay, and went to the United States and lived there, chiefly at Pinehurst, North Carolina, where in 1930 he built an expensive dwelling.
From 1925 to 1931 he made some visits to Canada, mostly short. In 1932 he rented a house in
New Brunswick where he spent a summer season in each of the years 1932, 1933 and
1934, of 134, 134 and 81 days, respectively, and in 1934, as his wife enjoyed being near her relatives and friends in New Brunswick, he built an expensive house there, and from 1935 to 1941 (inclusive) spent (in the warmer part of the year) an average of
150 days in each year (159 days in 1940, the year in question).
The rest of the year the house was closed except quarters for his wife and house-keeper which were open the year round. In 1941 the Dominion authorities asked him to file an income tax return for the year 1940, and, on his not doing so, fixed a tax against him, under s. 47 of the Act.
His liability to the Dominion of Canada for income tax was the question in dispute.
Held (Taschereau J. dissenting): Appellant was "residing or ordinarily resident" in Canada "during" the year
1940, within the meaning of said s. 9 (1)
(a), and was liable for income tax in
Canada.
meaning
"residing",
"ordinarily resident", "sojourns",
"during", discussed.
Commissioners of Inland
Revenue v. Lysaght, [1928]
A.C.
234;
Levene v. Commissioners of Inland Revenue,
[1928] A.C. 217, and other cases, discussed.
The word "during" in s. 9 (1) (a) meant
"in the course of" rather than "throughout".
(No ground against such construction was afforded by the fact that by
77529-3k subsequent amendment, in 1942, the words "at any time in" were substituted for "during".)
Per Kerwin J.: The frequency with which appellant came to Canada, his "routine of life" in that regard, the family ties of his wife, if not of himself, the erection and occupancy of his house, retention of servants, together with all the surrounding circumstances, make it clear that he was "residing"
rather than merely staying temporarily in Canada.
Assuming that he was a resident of the United States for the purposes of income tax there, a man may be a resident of more than one country for revenue purposes. Per Rand J.: The mode or nature of appellant's living in Canada brought him within the language of 9 (1) (a). Apart from any question of domicile, which would appear to be still in New Brunswick, his living in Canada was substantially as deep rooted and settled as in the United States, though in terms of time his home in the United States might take precedence.
He was at his place in Canada as at his "home", and the mere limitation of time did not qualify that fact. That brought him within the most exacting of any reasonable interpretation of "resides" or "ordinarily resident". Per Kellock J.: There was no difference between appellant's use of his Canadian home and that of his United States home or homes. The establishments were essentially of the same nature and were equally regarded by him as "homes" in the same sense. His residence in each was in the ordinary and habitual course of his life and there was no difference in the quality of his occupation, though he occupied each at different periods of the year. He came within the terms "residing" and "ordinarily resident" in Canada. Per Estey J.: Appellant selected the location for his residence in Canada, built and furnished it for his wife's enjoyment of her relatives and friends and his own enjoyment of golf nearby; his residence there was, in successive years, in the regular routine of his life; and, taking such facts into consideration, the conclusion must be that he was "ordinarily resident" there, within the meaning of s. 9 (1) (a). A person may have more than one residence, and the fact of his residence in the United States in no way affected the determination of the issue.
Per Taschereau J., dissenting: Appelant had in 1923 ceased to be a resident of Canada and his visits thereafter were of a temporary nature and did not justify a finding that he was "residing" or "ordinarily resident" in Canada; he was really a resident of the United States making occasional visits to Canada; and was not subject to income tax in Canada. 3.--Companies-Income War Tax Act (R.S.C. 1927, c. 97, as amended), ss. 9B (2) (a), 9B (4), 84 (as the same were enacted by c. 41)-Tax on non-residents of
Canada in respect of dividends received from
"Canadian debtors"-Crown claiming from company for amount not withheld and remitted, from dividends paid to non-residents of
Canada-Whether, in all the circumstances, the company (incorporated in England but carrying on its business in Canada) was a
"Canadian debtor"-Whether legislation intra vires.-Subs. 2 (a) of s. 9B (as enacted by statutes of 1932-33, c. 41, s. 9) of the
Dominion Income War Tax Act imposed an income tax of 5 per centum on all nonresidents of Canada in respect of all dividends received from "Canadian debtors", and subs. 4 of said s. 9B required the debtor to collect such tax by withholding 5 per centum of the dividend and remitting the same to the Receiver General
Canada.
S. 84 made any person, who failed to collect or withhold any sum as required by the Act, liable for the amount thereof.
Respondent was a company incorporated in England. Its registered office was in London, England.
It was registered in British Columbia as an extra-provincial
It carried on the business of supplying electric power and light and operating electric railways and motor buses in British Columbia.
Its head office was at
Vancouver, B.C. During the period in question its whole business, except such formal administrative business as was required by the statutes governing it or by its articles of association to be transacted at its registered office, was conducted and carried on in Canada.
All its directors and officers were residents of Canada.
All stockholders' and directors' meetings were held in Canada.
All its assets, except for certain records and books of account kept in London, England, and certain cash remitted there from time to time, were situate in Canada.
All the income from which the dividends in question were paid was earned in Canada. Its register of members in respect of the stock in question was kept at London, but, pursuant to an
Imperial statute, a Dominion register of members in Canada was kept at Vancouver, and stock registered in the Dominion register could be transferred only upon that register, and all other stock could be transferred only upon the register in London;
but there was provision for change registry.
The Attorney General of Canada claimed on behalf of the Crown against respondent for amounts not withheld and remitted by respondent in respect of dividends paid by respondent to holders not resident in Canada of its cumulative perpetual preference stock. Such dividends were paid by respondent's registrar and paying agent in London after funds had been remitted to London from Canada.
Held: Respondent was a "Canadian debtor"
within the meaning of said subs. (2) (a) of s. 9B and came withun the aforesaid requirements of the Act, and in respect of the dividends in question was liable for amounts
INCOME TAX-Concluded not withheld and remitted by it in accordance with such requirements.
(Judgment of Thorson J., [1945] Ex. C.R. 82, reversed). Said provisions of the Act, applied in accordance with such holding, were intra vires (B.N.A. Act, s. 91, head 3; Statute of Westminster, 1981 (Imp.), particularly s. 3 thereof; its effect discussed) and must be given effect by Canadian Courts. KING
4.-Revenue-Income-Expenses incurred by a member of a lkgislative assembly-While attending sessions of the legislature or travelling from seat of legislature to residence- Whether member entitled to deduct such expenses when making his annual income tax return-Income War Tax Act, R.S.C. c. 97, s. 5(1) (f) and 8. 6(1) (a). The appellant, a resident of Calgary, was in 1941 a member of the Legislature of the province of Alberta which meets at the capital city of Edmonton and received as such the sum of $2,000 as an allowance. In his income tax return for the year 1941, he deducted certain expenses and disbursements incurred for living expenses in the provincial capital while in attendance at legislative sessions and for travelling expenses from Calgary to Edmonton and return for week-ends during the time of such session. All of these deductions were disallowed by the Minister of National Revenue; and an appeal to the Exchequer Court of Canada was dismissed. Upon appeal to this expenses above mentioned are not such as the appellant is entitled to deduct under the provisions of the Income War Tax Act. 2. Such expenses are "not wholly, exclusively and necessarily laid out or expended for the purpose of earning the income" within the terms of section 6 (1) (a) of the Act. 3. Travelling expenses incurred by the appellant are not "travelling expenses *
*
* in the pursuit of a trade or business" within the meaning of the words used in section 5 (1) (f) of the Act. Judgment of the Exchequer Court of Canada ([1946] Ex. C.R. 18) affirmed.
INSURANCE (FIRE)-False representation by applicant for policy-Non-disclosure or denial of previous fires-Transfer of property-Request by transferor to place insurance. in name of transferee-Insurance company endorsing policy to cover transferee-Whether assignment or new contract-Right of transferee to recover on policy-Whether misrepresentation by transferor a defence action.-The appellant companies issued two insurance policies to the respbndent's husband on property owned by him consisting of a flour mill and equipment. During their currency, the property was conveyed to the respondent, and it is admitted that she is a bona fide purchaser INSURANCE (FIRE)-Continued for value. The policies were then taken to the local agent of the appellant companies by the husband, with the request that, as the property had been transferred, the insurance be placed in the name of his wife.
An endorsement was then affixed to the policies by the two companies in nearly the same terms, reading
*
* this policy is held to cover in her name only
*
*
* All other terms and conditions remaining unchanged."
A material misrepresentation was made by the husband in his application for insurance, when he stated that he never had a fire previously.
The trial judge found that the statement was knowingly false and such finding was not disturbed by the appellate court.
The property insured was totally destroyed by fire, and the respondent brought two actions against the appellant companies for the amount of the policies.
The trial judge held that the misrepresentation by the husband could be set up as a defence against the respondent's claim and no waiver of statutory condition No. 1 of
The Alberta Insurance Act could be inferred from the language the assent by the companies; and the actions were dismissed.
The Appellate Division, reversing that judgment, found that the effect of the request made by the husband on behalf of his wife and the endorsements on the policies by the companies was to create new contracts of insurance running direct to the wife as then owner of the property, and that the misrepresentation had no application to them; the respondent's actions were maintained.
Held, affirming the judgment appealed from ([1945]
W.W.R.
The Chief Justice and
Hudson J. (dissenting)
that, upon the facts and circumstances of the case, non-disclosure or denial of previous fires by the husband in his application for fire insurance cannot be set as a defence to the actions on the policies brought by the respondent against the appellant companies. Per The
Chief Justice and Hudson J. (dissenting)
:- The insurance policies, as between the original insured and the appellant companies, were void and unenforceable; but the effect of the assignment remains to be decided.-Though the misrepresentation was made by the husband and not by his wife, the husband was representing her in getting the approval of the companies to the transfer. The respondent must be held responsible for his acts as her agent, the respondent herself in her evidence proving such agency.
"Concealment or misrepresntation (by the agent) is to be imputed to his principal and any policy effected through him will be void."
Moreover, there was no change in the moral risk as the husband remained in control of the insured property after the transfer to his wife.
Under the circumstances, the respondent acquired no rights under the policies.
Kerwin and Estey JJ.:-The respondent was not a mere assignee, who thus would
INSURANCE (FIRE)-Conduded take nothing from policies avoided for misrepresentation.-In view of the manner in which the companies' local agent was apprised of the respondent's wish to have the insurance in her name, and of the evidence of representatives of the companies that they had no objection to the respondent as an insured, it follows that new contracts were entered into between the companies and the respondent. The respondent was a purchaser for value; and, in the ordinary course of business, it should be possible for a purchaser of insured property to enter into a new contract of insurance without being bound by all representations that had been made to the insurer by his predecessor in title.-The wording "all other terms and conditions remaining unchanged" must be taken to refer to such terms as are applicable to the new contracts and the answers to the questions as to previous fires, by the husband, do not constitute an applicable term.
Per Rand J.:-Assignment of a contract of fire insurance is essentially different from an ordinary assignment. The latter is a matter between assignor and assignee solely; but admittedly, and here by express terms, in such insurance it is a condition that there be assent by the The insured cannot by his own act substitute a new party to the contract and thereby change the moral risk and the interest in the subject matter insured. The effect of the company's assent is to substitute the assignee as the person insured, the transaction involves also a reapplication of terms, the entire group of relations undergoes a readjustment and what emerges is a completely new contract. In this case, therefore, a new contract based on the existing policies was entered into with the respondent. But its terms and conditions must be determined; and, in particular, was it made on the basis of the original application so as to constitute the misrepresentation a fundamental defect? The simple procedure of assignment furnishes the answer to that question. The request for approval of an assignment is in effect an application for a new contract of insurance; the company may require any information before giving consent and could insist upon an application de novo. But, if it does not see fit to do so, the company must be deemed to have been content to deal with the assignee on the footing of his own representations alone and should not be able to raise against the assignee any misrepresentation made by the assignor. FIRE INTERNATIONAL LAW-Enemy property-Bearer share warrants-Owned by a citizen of France-Deposited with a bank situated in Holland-Sent to Canada in 1989 prior to war-Beld by a bank in Montreal- Holland, when invaded by Germans, declared INTERNATIONAL LAW-Concluded to be proscribed territory-Custodian of Enemy
Property vested with the securities-Owners asking to get possession-Custodian asserting right to investigate before releasing control- Upon evidence, release allowed by Custodian subject to payment of commission on total value of assets-Whether Dutch bank an
"enemy"-Whether Custodian entitled to commission-Consolidated Regulations Respecting Trading with the Enemy (1989), s.s. 28
(1) and 44 (1).......................
JAPANESE RACE-Constitutional law- Deportation of persons of the Japanese race- Power of the Governor General in Council under the War Measures Act-Order in
Council same as Act of Parliament-Governor General in Council sole judge of necessity or advisability of measures taken by Orders- Considerations, which led Governor General in Council to adopt Orders, not open to review by courts of law-Orders in Council dealing with deportation from Canada of Japanese nationals, naturalized British subjects of the
Japanese race, natural born British subjects of the Japanese race and of wives and children under 16 of these persons-Request in repatriation-Order in Council enacting British subjects by naturalization to cease to either a British subject or a Canadian national- Order in Council appointing a commission to make inquiry concerning the activities and loyalty during the war of persons of the Japanese race-Whether Orders in Council ultra vires in whole or in part-Comments on meaning of the words "deportation", "exclusion", "exile",
"repatriation"- Person detained pending deportation "deemed to be in legal custody"-Whether recourse to habeas corpus abolished by pro'ision of Order in
Council-War Measures Act, R.S.C., 1927, c.206, s. 8-National Emergency Transitional
Powers Act, 1945, 9-10 Geo. VI, c. 25- Naturalization Act, R.S.C. 1927, c. 18- British Nationality and Status of Aliens Act
(Imp.) 4-5 Geo. V., c. 17..............
JEHOVAH'S WITNESSES-Member of- Whether "a minister of a religious denomination"-Exemption from military service. . 462
JUDGMENT-Recovery and registration of judgment against registered owner subsequent to unregistered transfer of land- Whether judgment attached to this land... 115
JURISDICTION-Judge of Supreme Court of Canada-Bail-Petition for writ of habeas corpus-Dimissal by a judge of this Court- Application for bail before same judge, pending appeal to court itself-Whether judge has power to grant it or is funcus officio
-Section 58 Supreme Court Act.......
JURISDICTION OF SUPREME COURT OF CANADA-Trial in criminal courts- Grounds of dissent-Court justified to look into reasons for judgment of dissenting judges of appellate court-New trial ordered by dissenting judgments-Power of this Court on appeal..................... LANDLORD AND TENANT-Real property-Tenancy at will-Quieting possession-Payment of taxes only by tenant- Whether paid as rent-Whether prevents running of statute of limitation-Proper inference from the agreement-Limitation of Actions Act, R.S.A. 1942, c. ss. 29, 30. Since 1921 or 1922, the appellant had been a tenant of a quarter section of land situated not far from the city of Edmonton under an informal arrangement with abank's manager, apparently acting as agent for the respondents who lived in Scotland, such land having been in the possession of one John Cameron until his death some time prior to 1920. The certificate of title had been since 1906 in the name of the respondents, executors of the estate of one Lewis A. Cameron.
In 1931, after the death of the manager, on interviewing the bank's assistant-manager as to what he should do about the land, the appellant was told "to stay with it and pay the taxes". He thereafter paid the taxes each year direct to the municipality, disregarding the bank, and has had undisturbed possession of the land ever since.
The appellant, in 1943, sued for a declaration that he had acquired the right to ownership under the Limitation of Actions Act and for a judgment that he be quieted in possession of the land. The trial judge held that the agreement created a tenancy at will, that there was no agreement that the payment of taxes was a payment of rent, that the provisions of the statute of limitation operated and the appellent was entitled to the relief claimed. The Appellate Division reversed that decision and, though agreeing with the trial judge that there was a tenancy at will, held that on the facts it should be inferred that the taxes were to be paid as rent and that their payment each year interrupted the running of the limitation period under the Act. Held, affirming the judgment appealed from ([1945. 2 W.W.R. 243), Hudson and Taschereau JJ. dissenting, that under the circumstances the proper inference to be drawn from the agreement was that the payment of the taxes each year was in effect a payment of rent in an amount equal to the taxes and that upon the occasion of each payment the appellant admitted ownership to rest in the respondents.
Therefore such payment interrupted the running of the limitation period. Per Hudson J. (dissenting).-Payment by the appellant of the taxes each year under the circumstances cannot be construed as a payment of rent, and the judgment of the trial judge should be restored. Per Taschereau J. (dissenting). -There must be a formal agreement, or a LANDLORD AND TENANT-Concluded state of facts known to the parties from which an agreement may be inferred, that the taxes are paid as rent. Failing these requirements, there is no acknowledgement of title and the statute operates.
In the present case, there is no evidence of such an v. .....
LIMITATION OF ACTIONS ACT - R.S.A. 1942, c. 188..................
MASTER AND SERVANT-Crown-Automobile Collision-Member of Armed Services injured while riding as gratuitous passenger-Crown's disbursements for wages and medical and hospital services-Action by
Crown to recover same from owner and driver of motor car-Civil wrong actionable by servant prerequisite to right of master to recover expenses-Application of section 50 A
Exchequer Court Act to proceedings in provincial courts-Its constitutionality-Exchequer Court Act, section 50 A, enacted in
1943-44, c. 25, 1-Motor Vehicle Act
(N.B.) 1934, c. 20, s. 52.............
2.-Crown-Negligence of officer or servant of the Crown-Soldier wrongfully firing live ammunition-Alleged failure of officer in charge to stop firing-Destruction of barn and contents-Extent of Crown's liability-Whether breach of duty by officer to owner of barn- Neglect of duty in respect of military law- Use of reasonable care by officer in charge- Exchequer Court Act, 1927, c. 34-Section 19
(c) as amended by 1938 (Dom.) c. 28, 1- Section 50 A, 1943-44 (Dom.) c. 25.... 569
MILITARY LAW-Crown - Negligence- Petition of right-Injury to minor children through explosion of thunderflash-Alleged negligence of army officers in leaving live explosive in a field after manoeuvres-Small children later finding it, playing with and lighting it-Liability of the Crown-Negligence or fault of the children-Division of negligence-Whether doctrine of contributory negligence applicable to the Crown, when cause of action arises in Quebec province- Exchequer Court Act, R. 5 C., 1927, c. 34, section 19 (c), amended by 2 Geo. VI (Dom.), c28,s.1.......................
See 1.
2.-Crown-Master and servant-Negligence of officer or servant of the Crown- Soldier wrongfully firing live ammunition- Alleged failure of officer in charge to stop firing-Destruction of barn and contents- Extent of Crown's liability-Whether breach of duty by officer to oumer of barn-Neglect of duty in respect of military law-Use of reasonable care by officer in charge-Exchequer Court Act, 1927, c. 34-Section 19 (c)
as amended by 1938 (Dom.) c. 28, 1- Section 50 A, 1943-44 (Dom.) c. 25.... 569
MOTOR VEHICLES-Negligence- Motor truck at street intersection turning left from westward course and colliding with passing motor car going westward-Responsibility for accident-Duties of drivers-Insufficiency of turning signal-Horn of passing vehicle not sounded.-The suppliant claimed damages against the Crown for injury suffered in a collision between his taxi, driven by him, and an army truck, driven by a member of the Canadian 'Army Service Corps, about 7.45 a.m. on January 28, 1944, in the city of Vancouver.
The army truck, which had been going westward on Georgia street, turned left to go south on Bute street and struck the taxi which, going westward on Georgia street, was in the course of passing the truck on the truck's left side. The truck was a right-hand drive vehicle, and its driver, who was alone and did. not see the taxi, extended his arm to the right, but this was not seen by the suppliant. The suppliant in proceeding to pass did not sound his horn.
Held (affirming judgment of Angers J. in the Exchequer Court): Having regard to all the circumstances (discussed), the accident was caused solely by negligence of the driver of the army truck. Per the Chief Justice and Kerwin and Estey JJ.: The truck-driver violated the provisions of s. 3 (j) of the regulations passed under the Motor-vehicle Act, R.S.B.C. 1936, c. 195, in not ascertaining if the turn could be made in safety and in failing to give a signal plainly visible. The suppliant was entitled to rely upon compliance with such provisions.
Per Rand and Kellock JJ.: The truck-driver failed completely to take any precaution to see whether or not the turn could be made safely; and this, apart altogether from any statutory provision, was negligence.
The suppliant, while obliged to keep a proper look-out, and it was not shown he did not, was not bound to anticipate that the truck would turn into Bute street in the absence of any indication that such was its driver's intention. Per curiam: In the circumstances in question, it was not "reasonably necessary" (s. 3 (h) of said regulations) for the suppliant to sound his horn.
2.-Crown-Master and servant-Automobile-Collision-Member of Armed Services injured while riding as gratuitous passenger-Crown's disbursements for wages and medical and hospital services-Action by Crown to recover same from owner and driver of motor car-Civil wrong actionable by servant prerequisite to right of master to recover expenses-Application of section 50 A Exchequer Court Act to proceedings in provincial courts-Its constitutionality-Exchequer Court Act, section 50 A, enacted in 1943-44, c. 25, s. 1-Motor Vehicle Act (N.B.) 1934, c. 20, s. 52 ............
NEGLIGENCE-Sale by defendant at its gasoline station of small quantity of gasoline to child, nine years of age, on his statement that it was wanted for his mother's car that was "stuck"-The child burned while playing with the gasoline-Whether defendant liable in damages-Whether contributory negligence of child-Contention of "ultimate" negligence or "last clear chance"-Apportionment of fault-Application of apportionment to child's father's claim for damages-Gasoline
Handling Act, R.S.O. 1937, c. 339, s.
and Regulation 89 passed thereunder- Negligence Act, R.S.O. 1937, c. 115.-The infant plaintiff, nine years of age, accompanied by his brother, aged seven, came with an empty lard pail to an attendant at defendant's gasoline station and asked for and got five cents' worth of gasoline, saying that he wanted it for his mother's car that was "stuck down the street."
fact he- wanted it for "playing Indians"
with lighted bulrushes.
The boys went away from, and out of sight of, the gasoline station, dipped a bulrush in the gasoline and lighted it, which resulted in severe burns to the infant plaintiff.
He and his father sued defendant for damages.
trial judge 3 D.L.R. 615; (1944]
O.W.N. 412) found that both defendant's attendant and the infant plaintiff were negligent and apportioned the degrees of fault at 25 per cent against defendant and
75 per cent. against the infant plaintiff, and gave judgment against defendant for one quarter of the damages, which he assessed.
The Court of Appeal for Ontario ([1945)"
O.R. 18; [1945] 1 D.L.R. 210) held that defendant should be held solely responsible and gave judgment against it for the full amount of the damages suffered (as assessed by the trial judge).
Defendant appealed to this Court, asking that the action be dismissed, or, in the alternative, that the judgment of the trial Judge be restored.
Held: Per the Chief Justice and Kerwin J.:
Defendant's appeal should be allowed and the action dismissed.
Per Hudson and
Estey JJ.: Defendant's appeal should be allowed and the judgment of the trial judge restored.
Per Rand J.: Defendant's appeal should be dismissed.
In the result, the Court pronounced judgment allowing the appeal and restoring the judgment of the trial judge.
Per the Chief Justice and
Kerwin J.: Defendant's attendant did not act unreasonably or negligently.
It would be putting too great a burden on the conduct of everyday affairs to hold that under all the circumstances of the case he was prohibited from selling the gasoline to the boys.
As to the contention that defendant acted in breach of Regulation 39, passed under The Gasoline Handling Act, R.S.O.
1937, c. 332, s. 12-Assuming the regulation to have been in force at the time (as to which no opinion was expressed), the facts brought the case within proviso (b) by which the regulation did not apply to "the delivery in a metal container of gasoline required to refuel a motor vehicle to permit
NEGLIGENCE-Continued of its being moved".
Per Hudson and Estey JJ.: The evidence supported the finding, as made in effect by the trial judge, that defendant negligently placed in the hands of two young boys a dangerous substance, with respect to which their negligent conduct would be anticipated or foreseen by a reasonably careful person in the same or similar circumstances.
(In the view taken of the facts, it was found unnecessary to deal with points raised with respect to The Gasoline Handling Act and Regulation 39 passed under it.)
On the other hand, the evidence and the trial judge's opportunities at trial justified acceptance of his findings to the effect that the infant plaintiff appreciated the possibility of harmful consequences; that, having regard to his capacity, knowledge and experience, he was not, at the time of the accident, a child of tender years, as that phrase is understood and applied in law, but a boy beyond tender years, and therefore one whose conduct might constitute contributory negligence. The conduct of defendant, and that of the infant plaintiff, each constituted contributory negligence. The negligence of both was so intimately associated and "wrapped up" in causing the injury that the negligence of the infant plaintiff should not be held to be "ultimate" or the negligence of one who, notwithstanding defendant's negligence, had the last clear chance to avoid its consequences. Nor could defendant's contention that the infant plaintiff's conduct was "a conscious act of another volition" and constituted a novus actus interveniens, be maintained where, as here, the infant plaintiff's negligent conduct was a foreseeable consequence of defendant's own negligence. The infant plaintiff should recover damages from defendant on the basis of apportionment under The Negligence Act, R.S.O. 1937, c. 115; and the trial judge's apportionment of fault should be accepted; and, on a proper construction of that Act (discussed), the apportionment should apply to the father's damages.
Per Rand J.: Defendant should be held solely responsible.
The giving of the gasoline to the two children was, in the circumstances, a negligent act towards them, a foreseeable consequence of which was injury to the infant plaintiff in the course of ordinary behaviour on his part. Having regard to the children's age, understanding, experience and self-control, a child's natural curiosity and the fascination for him of fire (in relation to which lies the chief danger of gasoline), they acted as ordinary children would be expected to act. The usual and expectable conduct in ordinary children of such years is, in relation to the legal standard of care, equivalent to prudent conduct in an adult; and just as prudent conduct gives rise to no legal responsibility for injurious consequences, so the normal conduct of average young children is exempt likewise.
Co. Lr. v. YACHUK................ NEGLIGENCE-Concluded
2.-Motor vehicles-Motor truck at street intersection turning left from westward course and colliding with passing motor car going vestward-Responsibility for accident-Duties of drivers-Insufficiency of turning signal
-Horn of passing vehicle not sounded.. . 129
3.-Crown-Petition of right-Injury to minor children through explosion of thunderflash-Alleged negligence of army officers in leaving live explosive in a field after manoeuyres-Small children later finding it, playing with and lighting it-Liability of the Crown- Negligence or fault of the children-Division of negligence-Whether doctrine of contributory negligence applicable to the Crown when cause of action arises in Quebec province- Exchequer Court Act, R. 5 C., 1927, c. 34, section 19 (c), amended by 2 Geo. VI (Dom.), c. 28, s.1............
..........
4.-Petition of right-Contract-Bacon agreement between Canada and the United
Kingdom, 1940-Bacon Regulations, Order in Council December 18 and 27, 1939- Bacon Board booking shipment for pork products to be furnished by suppliant-Products delivered at seaboard but no ship available for loading-Products deteriorated from being unattended-Whether Board bound to notify suppliant or put products in cold storage-Validity of claim by suppliant
Act, R.S.C., 1937, c. 34 .............
5.-Crown-Master and servant-Negligence of officer or servant of the Crown-Soldier wrongfully firing live ammunition- Alleged failure of officer in charge to stop firing-Destruction of barn and contents- Extent of Crown's liability-Whether breach of duty by office' to owner of barn-Neglect of duty in respect of military law-Use of reasonable care by officer in charge-Exchequer Court Act, 1927, c. 34-Section 19 (c)
as amended by 1938 (Dom.) c. 28, s. 1- Section 50 A, 1943-44 (Dom.) c. 25.... 569
6.-Railway-Carrier-Shipment of horses
-Claims for damages by shipper... 352, 392
PROPERTY (REAL)-Judgments - Unregistered transfer of land in British Columbia by registered owner-Recovery and registration of judgments against registered owner subsequent to the transfer-Whether judgments attached to the land-Land Registry
Act, R.S.B.C. 1936, c. 140; Execution Act,
R.S.B.C. 1936, c. 91.-The registered owner of land in British Columbia executed and delivered a transfer of it. The transfer was not registered nor was an application made to register it. Subsequently to the transfer, judgments were recovered against
PROPERTY-(REAL)-Concluded said registered owner, which were registered.
It was held (affirming decision of the Court of Appeal for British Columbia, [1945] 2 W.W.R. 576) that the judgments did not form a lien or charge against the land.
Provisions of the Land Registry Act, R.S.B.C. 1936, c. 140, and of the Execution Act, R.S.B.C., c. 91, discussed, and cases reviewed.
Said statutes have not changed the common law rule that the execution creditor can only attach that interest which exists in the execution debtor; and, the registered owner having disposed of his entire interest at a time prior to the judgments, there was no interest upon which the judgments could attach.
RAILWAY-Carrier - Negligence-Shipment of horses-Shorn of their tails when delivered at destination-Claim for damages by shipper-Live Stock Special Contract-Construction of its terms-Liability of railway company-Negligence of railway company or shipper-Exemption of railway company from liability-"Carrier's risk" or "Owner's risk"-Clause in contract that shipper should provide attendant-Whether failure to do so caused or contributed to damage-Burden of proof as to when, how and by whom mutilation took place-Whether onus is on the railway company or the shipper-Articles 1673, 1675 and 1681 C.C.- Railway Act, R.S.C., 1937, c. 170, ss. 313, 848.-The respondent, a horse dealer doing business in Montreal, shipped eighteen horses over the appellant railway from points in Saskatchewan, the shipment being consigned to the Bodnoff Horse Exchange at Montreal, under a contract with the appellant company, known as a "Live Stock Special Contract", approved by the Board of Transport Commissioners for Canada under section 348 of the Railway Act.
At the time of shipment, the horses were in good condition, but when they reached their destination and were delivered to the respondent, sixteen of them were mutilated and disfigured by being shorn of their tails.
The respondent claimed that delivery in such a condition did not constiture valid delivery under the terms of the contract and that the disfiguration had caused damages amounting to $886.79. The appellant railway contended that the shipment was carried in conformity with the conditions of the contract signed by the respondent both as shipper and as attendant in charge of the horses, that the loss did not arise directly from the performance by the that whatever damage was caused resulted from the respondent's failure to provide an attendant to accompany and care for the horses en route as required by section 5 of the contract. The trial judge maintained the respondent's action and assessed the damages at
$200; the judgment was affirmed by the appellate court and the appellant railway appealed to this Court. 1946]1
RAILWAY-Continued
Leave to appeal was granted by the appellate court. Held, The Chief Justice and Taschereau J. dissenting, that this appeal should be dismissed and the respondent's action maintained.-It was not the intention of the contract that the shipper or his representative should at all times be present with the horses to act as a guard, ut only at such times as it might be expected that the horses would require care and attention.
It was common ground that neither the respondent, nor anyone on his behalf, accompanied the shipment.
There is no liability, however, upon the respondent on that account, as there has been no evidence that failure to provide an attendant caused or contributed to the loss or damage suffered by the horses.
As a result of the terms of the contract and upon a proper construction of the relevant provisions of the freight classification referred to in the contract and of the tariff applicable to the shipment, the onus of establishing the cause of the loss or damage was upon the appellant railway and the latter has failed to adduce sufficient evidence to satisfy such onus.
Per The Chief Justice and Taschereau J. (dissenting)-The appellant railway should not be held responsible for the loss or damage suffered by the respondent.
The Special Contract is valid and binding and its terms and conditions are determinative of the issue.
One of its relevant provisions is that the live stock to be carried thereunder was received subject to the Classification and Tariffs in effect on the date of its issue, under which the rates and weights may be either at "carrier's risk", subject to the terms and conditions of the bill of lading issued by the originating carrier or at "owner's risk" subject to the terms and conditions of the Special Contract signed by the shipper or his agent.
The shipper of live stock may thus choose how and to what extent he wishes to be protected by the carrier against loss or damage which may occur to his shipment in transit. In the present case, respondent could have had the carriage performed at carrier's risk, through the terms and conditions of a standard bill of lading and by paying double the rate he paid, but he executed the Special Contract, whereby he agreed to ship at his own risk, upon whose terms and conditions the carrier's obligations and its liability were restricted and under which the rate applicable was lower. The shipment was thus carried at owner's risk and the carrier was relieved from liability for damage even if resulting from its negligence and that of its servants, such conclusion not being inconsistent with the terms and conditions of the
Special Contract. Therefore, the respondent agreed to assume the risk of loss or damage to his horses during the journey, unless he could establish that such loss or damage was due to the non-fulfilment of the appellant's obligations under the contract.
The respondent has failed to do so or to
RAILWAY-Continued prove any negligence of the appellant railway, which was not even alleged. Moreover, the damage, in any event, was attributable to the respondent's failure to accompany, attend to and care for his shipment during the journey, as he was bound to do under the contract. By force of article 1681 C.C., the special regulations made in accordance with the Railway Act must be recognized and applied in preference to article 1675 C.C., which is thereby superseded, and, therefore, the Special Contract in this case and the "owner's risk" clause forming part of it clearly eliminated the presumption created by article 1675 C.C.
Per Hudson J.:-The Special Contract itself does not contain any direct reference to the shipment being made at "owner's risk", as contended by the railway appellant; but it is expressed to be subject to the classification and tariff in effect on the date of the issue of the bill of lading.
Upon a proper analysis of the provisions of the contract, the classification and the tariff, the shipper accepted the terms of the special live stock contract and nothing else.
None of the causes of loss, other than failure to provide attendant, from which the carrier may be relieved from liability under section 6 of the contract, apply to the facts of this case, and the Railway Act does not give the appellant railway any immunity beyond that expressed in the contract, which was in a form approved of by the Board of Transport Commissioners.
Per Kellock J.- The result of the various provisions of the contract, the classification and the tariff is that the shipment was carried "at owner's risk subject to the terms and conditions of the special live stock contract", under which the appellant railway agreed to carry the shipment at destination.
The terms "owner's risk" cannot be construed here, as contended by the appellant railway, as throwing upon the respondent all risks including risk of loss or damage from negligence of the carrier, except wilful neglect or misconduct of the carrier.
More particularly, section 6 of the contract pre supposes that the appellant is liable as common carrier with some additional exceptions to that liabilicy.
Delivery of the horses in their mutilated condition was not a compliance with this underlying obligation resting upon the appellant, and it lay upon the latter, who contended that the loss fell within either one or two of those exceptions, namely "the act or default of the shipper" or "causes beyond the carrier's control", to adduce evidence bringing the case within the one or other of those exceptions.
The appellant adduced no evidence to enable a finding to be made as to how the loss occurred, and it is insufficient to prove something equally consistent with the loss having been due to the respondent's default or to the default of the appellant railway. Per Estey J.:- The provisions of the Special Contract RAILWAY-Continued were approved by the Board of Transport
Commissioners pursuant to section 348 of the Railway Act. The phrase "its liability" as used in that section refers to the liability of the carrier at common law and under the Act, and, except as this liability may be impaired, restricted or limited under a contract, the liability of the carrier remains as determined by the common and statute law.
In the determination of the rights of the parties under the present contract, the meaning to be ascribed to the phrase "owner's risk" is not that the entire risk is assumed by the shipper except only as that risk may be by the contract imposed upon the carrier.
Such meaning would appear contrary to the plain intent of section 348 of the statute, and moreover, contrary to the form and phraseology of the subsequent sections of the contract itself.
Sections 1, 4, 5, 6 and 9 of the contract deal with limitation of liability and liability for negligence on the part of the carrier, assumption of risk by the shipper and a list of specific causes from which if loss or damage result the carrier is liable. The
"terms and conditions" of these sections are somewhat "impairing, restricting or limiting its (carrier's) liability" as contemplated by section 348, but they are not written on the basis that, if these conditions were not here, all the risk would be upon the shipper nor that the carrier is liable for only
"wilful neglect or misconduct or unreason-.
able delay".
A study of the contract, classification and the statute indicates that the Board of Transport Commissioners intended that the phrase "owner's risk"
as used in the contract was, as expressed in rule 25 of the classification, "intended to cover risks necessarily incidental to transportation, but no such limitation
*
*
* shall relieve the carrier from liability
*
*
* from any negligence or omissions of the company, its agents or employees".
The injury suffered in this case in no sense can be regarded as a risk "necessarily incidental to transportation."
Such loss or damage was caused by the deliberate act of a third person and no evidence has been adduced on the part of the carrier to indicate that it was covered by the provisions of the contract nor to establish on behalf of the appellant that it comes within any of the exceptions from liability at common law.
2-Carrier-Live Stock Special Contract- Negligence-Shipment of horses-Mare found lying sick during trip-Shipper's attendant not there-Railway or stock yard's employees erecting gate partition-Mare and another horse found dead later on-Claim for damages shipper-Clause in contract that shipper should provide attendant-Carrier not liable- Failure of attendant, to "care for" and
"attend" the mare, cause of the accident- Railway's or stock yard's employees treated as agents of the shipper and not of the
RAILWAY-Continued carrier-"Oumer's Risk"-Articles 1675 and 1681 C.C.
The appellant shipped eighteen horses from three noints in Saskatchewan to be delivered at Vfontreal under a contract with the respondent railway, known as Live Stock Special Contract, approved by the Board of Transport Commissioners Canada. The shipper, as he agreed to do under the contract, sent a person to accompany and care for the shipment on his behalf, but the evidence is not clear at what exact point the attendant boarded the train. When the horses were unloaded for feeding and watering at Saskatoon, it was found that a bay mare was lying on the floor, bruised and unable to rise to its feet. The appellant's attendant was not there at that time. After examination by a veterinary surgeon, a special gate partition was erected either by the railway's or by the stock yard's employees for the purpose of separating the bay mare from the rest of the horses. On arrival at Wynyard, Saskatchewan, a gelding which had travelled with the other horses in the main body of the car was found over the partition, and both it and the mare had died from suffocation. The appellant claimed from the respondent $227.98 for damages through non-delivery and loss of the two animals. The trial judge maintained the action, but the appellate court, by a majority, reversed that judgment. Held, that, under the circumstances, the respondent railway should be relieved of any responsibility and, therefore, the appeal should be dismissed. If the appellant's attendant, while performing his duty as he was bound to do under the provisions of the Special Contract, had been there at the relevant time when the mare was found lying sick, it would have been his responsibility to "care for" and "attend it", and he would have done what was necessary in the circumstances. As the attendant was not there, either the railway's or stock yard's employees had to "care" for the live stock, but, in erecting the gate partition, they should be treated as agents of the shipper for that purpose and not as agents of the carrier. Such employees may have been negligent in "otherwise" caring for the horses or the partition may be found to have been insufficient, but, in the events that happened, the real cause of the accident was the failure of the shipper to carry out his obligation.
Per The Chief Justice and Taschereau J.:-The shipper had the option of asking for a straight bill of lading whereby the shipment would have been at carrier's risk or for a special contract under which the shipment is made at owner's risk. In this case, the horses were carried at owner's risk according to the usual acceptation of the term and the carrier was relieved from liability for damages even resulting from its negligence or that of its employees, provided it was consistent with the terms and conditions of the Special Contract.
No restriction is found in that contract limiting the "owner's RAILWAY-Concluded risk" condition, and the respondent therefore should not be held responsible for the accident complained of by the appellant.
Under article 1681 C.C. the provisions of article 1675 C.C. are superseded by the rules provided by
Railway Act.
Canadian National Ry. v. Harris, reported ante p. 852.
FIc CO....................
REVENUE-Customs duty-Goods imported and duty paid according to value fixed at port of entry-Minister's (National Revenue) power to re-determine value of goods for duty-Imposition of additional duty- Applicability of such power to goods already imported-Construction of section 41 of the
Customs Act-Whether Minister's power is referable to past as well as to future importations-Alleged re-appraisal by Customs appraiser under section 48-Whether Crown can claim, in the present cases, additional duty under such re-valuation-Customs Act,
R.S.C. 1927, c. 42 and amendments, sects.
4, 19, 20, 85, 38, 39, 40, 41, 42, 43, 48, 52, 111,
119.-Section 41 of the Customs Act provides that "whenever goods are imported into Canada under such circumstances or conditions as render it difficult to determine the value thereof for duty because"
of several enumerated causes or reasons, as to the existence of which the Minister of National Revenue shall be the sole judge, "the Minister may determine the value for duty of such goods, and the value so determined shall, until otherwise provided, be the value upon which the duty on such goods shall be computed and levied."
The appellants during 1940, 1941 and 1942 imported into Canada large quantities of canned corned beef from Argentine, Uruguay and Brazil and paid customs duty based on the values at which the goods were entered for customs.
In December
1942, it being considered that the goods had been undervalued, the Crown alleged that the Chief Dominion Customs appraiser, purporting to act under section 48, made fresh appraisals and sent the appellants a statement showing such appraised values and the amount of underpaid duty and taxes.
Protests were made by the appellants and the matter was referred to the
Minister of National Revenue, who, in
August 1943, acting under the provisions of section re-determined the value for duty of the goods imported by each of the appellants, and additional customs duty and taxes were demanded from them.
Actions were brought to recover in each case such additional amount, or, in the alternative, the additional amount resulting (as contended) from the re-appraisal by the
Chief Dominion Customs appraiser. The appellants submitted that the Minister had no jurisdiction under section 41 to determine increased values for duty purposes in respect of individual past importations on which duty had been assessed by the proper officer and paid and the goods released; and
REVENUE-Concluded they also contended that the power vested in the Customs appraiser by section 48 was not and could not be exercised in these cases. Held, The Chief Justice and Rand J. dissenting, affirming the judgments of the Exchequer Court of Canada ([1945] Ex. C.R. 97 and 111), that the appellants were liable for the additional duty claimed by the Crown in accordance with the re-valuation determined by the Minister of National Revenue -Section
41 is not solely prospective in its application.
Parliament, when dealing in that section with cases where it was difficult to determine the value, was still dealing with goods that have actually been imported and appraised, upon which duty may also have already been paid; and the Minister was given power to determine the value for duty of such goods. Per Estey J.:- Moreover, section 41 does not impose any time limit within which the Minister may act after importation.
Per The Chief Justice and Rand J. (dissenting):-The Minister's power, under section 41, to determine the value for duty of imported goods, is not referable to past importations, which have already been legally appraised. Such. power is restricted to future importations: it must be exercised at the time the importation takes place and the Minister's ruling must be antecedent to a valid allowance of the entry.-Held that the Crown cannot succeed on its alternative claim. There is no satisfactory evidence that a fresh appraisement under section 48 has been made by a Dominion appraiser and that there was any direction by him for an amended entry and payment of the additional duty. If that had been done, the appellants might have exercised their right to a re-valuation by a board selected under section 52.-Per The Chief Justice:-The alternative argument suggested by the Crown shows by itself that it has no basis in fact: both the Minister under section 41 and the Dominion appraiser under section 48 could not act at the same time, and the evidence establishes that what was done here was a determination by the Minister. v. TE
KING-WATT & Scorr
& v. THE 499. RIPARIAN OWNERS-Tidal and navigable river-Alluvion-Accretion-Riparian owner's rights subject to changes effected by nature-Island and mainland gradually connected together-Deposits of alluvium over course of years-Rights of riparian owner and owner of island-To whom the accreted, or increased land has accrued. The appellant municipality is the owner of an island situate in the Saint John river, a tidal and navigable river, and the respondent is the owner of a tract of land bordering on the same river immediately above the head of the island. At the time of the grant to the appellant's predecessor in title, there was an access to the main river in front the respondent's land and the island was separated RIPARIAN OWNERS-Continued from the eastern shore of the river by a narrow channel of water. But, in the course of a century, by gradual and imperceptible deposits of alluvium, the respondent's land has become extended upstream into a junction with the easterly bank of the island as it became extended by alluvium.
The narrow channel was blocked up and the island connected with the respondent's land. At the time of the trial, the junction of these accreted lands was indicated by a narrow, wet, but apparent, depression.
appellant municipality claimed title to the extension of the island on the ground that through the years the island has been enlarged by the process of accretion up to the depression and brought the present action for damages for trespass and for an injunction.
The respondent contended that the entire increase is an accretion to the mainland, and, in the alternative, that as riparian owner he is entitled either to the accreted land itself by virtue of adverse possession or to rights over it sufficient to maintain his riparian privileges; and, by counter-claim, he asked damages for interference with his occupation and for an injunction. The trial judge upheld the appellant's claim.
The Appeal
Division reversed that judgment and held that the accreted land, at some stage in the process of its formation, has become the respondent's property and that, as riparian owner, the latter had a right of access to the river over the accretions physically connected with the island.
Held, reversing the judgment of the Appeal Division (18 M.P.R.
317), that the judgment of the trial judge should be restored, which judgment upheld the appellant municipality's claim for a title to the extension of the island up to the depression shown at the junction of the accreted lands.
Held also, and the trial judge so found, that the claim advanced by the respondent to title founded on adverse possession should, upon the evidence, be dismissed. Per The
Chief Justice and
Hudson and Rand JJ.:-The right of access of the riparian owner to the river is not the consideration underlying accretion;
but even if it were, to extend it, application to land formed quite otherwise than by accretion vis A vis the riparian owner is, in the law as laid down for centuries, quite out of the question. If, in the circumstances, the most efficient use of the newly formed land would lie in its connection with the original ripa, the legislature must bring about that change; but that, on such a ground, a court should forcibly re-allocate ownership, with all its possibilities of areas and values, is a proposition supported neither by authority nor principle.-Upon the facts of the case, the Municipality has been in actual occupation of the accreted lands since their formation.
Per Kerwin and Hudson JJ.:-As a riparian owner, the respondent, or his predecessors, had certain rights at one time, among them being that of access to the river. "The rights
RIPARIAN OWNERS-Concluded jure naturae, because his land has, by nature, the advantage of being washed by the stream:
*
*
*" (Lyon v. Fishmonger's Company [1875-76.] 1 A.C. 662, at 682). But, once the advantage of being washed by the water is put an end to by an act of nature, this right of access disappears, as it has disappeared in this case.
Then, no question of public policy can interfere with the title which, so far as the parties hereto are concerned, has been acquired by law by the appellant Municipality. Per Hudson and Estey JJ.:-The riparian owner's rights are subject to the changes effected by nature.
So long and to the extent that nature continues the riparian owner as such, he enjoys riparian rights, but nature or the act of any person in the exercise of his rights may from time to time alter or even destroy those of a riparian owner.-In the present case, the relative positions of the appellant municipality and the respondent have thus been determined by nature: the first has been fornate, while the latter unfortunate. SHIPPING-Collision in harbour during fog-Petition of right-Claim for damages to tug and for loss of earnings-Both vessels at fault and fault in equal degree-Crown held liable for one-half the damage and loss sustained by suppliant-Crown also ordered to pay costs of action-Whether Crown liable for costs.-The tug Ocean Hawk I and its tow and H.M.C.S. Beaver, belonging to His Majesty in the right of Canada, collided in the harbour of Saint John, N.B. during a fog. On a petition of right presented by the respondent, O'Connor J. in the Exchequer Court of Canada found that the injury to the Crown's vessel was insignificant, but that the damage to the tug boat amounted to $2,367 and that there was loss of earnings to the extent of $1,400. trial judge, holding that such damage and loss were caused by the fault of both vessels and that the fault was in equal degree, directed that the Crown should bear half the damage and loss sustained by the suppliant, and pay the costs of the action. The Crown appealed to this Court from that judgment and further contended that it should not be made liable for costs, following a rule of the Admiralty Court. Held that the finding of the trial judge, that the damage and loss to the Ocean Hawk I was caused by the fault, in equal degree, of both vessels, and the direction that they should be apportioned equally between them, should not be disturbed; but held, The Chief Justice and Kerwin J. dissenting, that the evidence as to loss of earnings was not sufficient to enable the Court to make any allowance and that the sum of $700 should be deducted from the amount of damages awarded the respondent. Held, also, that the Crown could be made SHIPPING-Concluded
INDEX liable for costs of the action. Per The
Chief Justice and Kerwin, Hudson and
Estey JJ.-If the proceedings in this case, originated in a petition of right, are taken to be in the Exchequer Court of Canada in its general jurisdiction, the right to adjudge that the suppliant is entitled to recover its costs from the Crown is unquestionable, and, if the proceedings are treated as being on the Admiralty side of that Court, then section 12 of the Petition of Right Act would confer upon the Court power to award costs against the Crown. Per Rand J.-The proceedings are in the Exchequer Court of
Canada proper and not in its Admiralty jurisdiction and, therefore, the costs are at the discretion of the Court unhampered by the rule of the Admiralty Court. Judgment of the Exchequer Court of Canada
([1945] Ex. C.R. 214) affirmed in part.
LTD...........................
STATUTE OF LIMITATION.......
TAXATION-Landlord and tenant-Real property-Tenancy at will-Quieting possession-Payment of taxes only by tenant- Whether paid as rent-Whether prevents running of statute of limitation-Proper inference from the agreement-Limitation of
......................
TAXATION
- Exemptions
-Land, acquired by city, situate outside its limits-Operated as public golf course- Whether exempt from municipal taxation by municipality where land is situate-Whether used for "public park purposes"-Whether held for "the public use of the city"-Whether school taxes are included in "municipal taxation"-The Winnipeg Charter, Man. S.,
Man. S., 1940, c. 81).-The Municipal Act,
R.S.M., 1940, c. 141.-The land in question in this case, situated within the territorial boundaries of the appellant rural municipality, was acquired by the city respondent under powers contained in its charter and operated for it by its public parks board as part of a public golf course open to anyone, whether a resident of the city or not, paying green fees.
question for decision in this appeal is the validity of tax levies imposed on such land by the appellant municipality.-Held, affirming the judgment of the Court of Appeal ([1945]
1 W.W.R. 161), that the land was used for
"public park purposes" within the meaning of section 4 of the Winnipeg charter and exempt thereunder from taxation by the appellant rural municipality.
Held, also, that such land was held "for the public use of the city" within the meaning of subsection 14 of section 700 of the charter, and therefore was forming "part of the city".
Rand and Kellock JJ. contra. Per Rand and Kellock JJ.--School taxes are included in "municipal taxation", as that language is used in section 4 of the respondent city's charter.-Per Hudson,
Taschereau Estey JJ.-Assuming that there was no exemption from school taxes, it would be no answer to the respondent's action where both municipal and school taxes together form the levy and basis of the tax sale by the appellant.
ST. CITY ...... TRADE MARK-Whether registered word mark "Multivims" should be expunged from register as being "similar" to previously registered word mark "Multivite"-The Unfair Competition Act, 1932 (Dom., 22-23 Geo. V, c. 88) ss. 2 (k) (o), 26, 52-Governing principal in determining question of similarity-Nature of evidence with regard to liklihood of confusion. This Court affirmed the holding of Thorson J., [1944] Ex. C.R. 239, that appellant's registration of the word mark "Multivims" for use in association with wares described as "A multiple vitamin and mineral tablet" should be expunged from the register of trade marks kept under The Unfair Competition Act, 1932 (Dom., 22-23, Geo. V, c. 38), on the ground that, within the meaning of s. 26 of said Act, said word mark was "similar" to the word mark "Multivite"
previously registered by respondent for use in association with wares described as "A Preparation for Medicinal use of the Vitamins A, D, C and 'B' Complex", and was used "in connection with similar wares". The question as to similarity must be determined as a matter of first impression.
Any confusion would be in the person who only knows the one word, and has, perhaps, an imperfect recollection of it. Little assistance, therefore, is to be obtained from a meticulous comparison of the two words, letter by letter and syllable by syllable, pronounced with aimed clarity. The court must be careful to make allowance for imperfect recollection and the effect of careless pronunciation and speech on the part not only of the person seeking to buy under the trade description, but also of the shop assistant ministering to his wants (Aristoc Ld. v. Rysta Ld., [19451 A.C. 68, at 86).
A witness may not state his opion as to the effect the use of a mark would have, or be likely to have, on the mind of someone else, as that is the very point to be determined; but he may testify as to the effect the use of the mark in dispute would have on his own mind, which is one of the circumstances to be considered by the court. v. THE HousEs
TRUSTS AND
TRUSTEES - Husband and wife-Property, acquired through joint efforts of husband, wife and children, purchased in name of husband-Reciprocal will of husband and wife-Statements with respect to alleged agreement for benefit of survivor and TRUSTS AND TRUSTEES-Continued children-Properties transfer7ed by husband to wife-Whether presumption of gifts to wife-Death of wife leating will disposing of whole properties to daughters-Whether wife trustee for husband alone or for all children and husband equally. The respondent, a coal miner, and his wife accumulated over a period of forty years, through slavish work and judicious thriftiness, considerable property consisting of city and farm lands, stock and equipment. With the exception of $700, which soon after their marriage was received by him from the sale of property in Europe, all the moneys with which the properties were gradually acquired by him were savings from his wages or the profits from his business shrewdness and the joint labours of himself, wife and five children in farming and dairying operations.
In 1933, the respondent transferred to his wife all the titles to the lands then in his name.
He testified, in explanation, that he did so at her desire and repeated request and because of a long standing agreement between them that the entire property was for the benefit of both while they lived and for the survivor whichever it might be and because in 1910 a reciprocal will had been signed by them under which each left all his or her property to the other, these facts making him regardless of the one in whom titles to the property would show. This reciprocal will was not produced, but the trial judge found that it had been made.
The respondent did not know until his wife's death that such will had been revoked.
By a new will made a few hours before her death, the wife gave substantially the whole of the estate to their two daughters, the appellants, with a request that they provide for the respondent during his lifetime.
An action was brought by the husband, the statement of claim asking for a declaration that the property the wife purported to dispose of by will was in fact his property or in the alternative that he was entitled to a life estate in it. The trial judge held that all the property, lands and personalty had been and was the property of the respondent and that as to the transferred realty the testatrix was merely a trustee for him; but, on appeal, that judgment was modified to a trust for all the children and the husband equally.
An appeal and a cross-appeal were brought before this Court by both interests.
Held, reversing the judgment of the Appellate Division (11945] 1 W.W.R.
134) and restoring the judgment of the trial judge ([1944] 3 W.W.R. 100), that the circumstances of the case with the evidence of the respondent accepted by the trial judge both establish that the properties registered in the name of the wife were held in trust by her for her husband and furnish the rebuttal to any presumption of gift to the wife.
Chief
Justice and
Kerwin, Hudson and Rand JJ:-The aim the respondent, in making the conveyances, had in mind, and the deceased understood, was, according to the evidence, that regard- TRUSTS AND TRUSTEES-Concluded less of the title to particular parcels each should hold the family lands for the benefit of both and the survivor. As against the wife, there was a trust, either express or implied in fact, of interest that can be called entireties which it is a fraud on the part of those who now represent her to repudiate.
Against the unjust enrichment following that fraud, an equitable right to restitution is raised in favour of the respondent in the right which he originally sustained toward the property. This results from the operation of law and is consequently outside the prohibitions of the Statute of Frauds.
Per Hudson and
Estey JJ.- Upon the whole of the evidence, it has been established that the survivor should have the entire property and that it would be eventually for the benefit of the family, but there was no evidence of any intention to create an immediate beneficial interest in the members of the family.
Statement, with respect to the family to have the benefit of the estate, remained at all times mere expression of an intention or a wish but never was there any suggestion that the survivor should not be in a position to deal with the property as he or she might care to: under the authorities, words of this type do not create a trust.
WILL-Testamentary capacity-Partial unsoundness of mind-Mental delusions or hallucinations-Effect on disposition of property.-At a trial as to the validity of a will, it appeared that the husband of the testatrix had predeceased her in 1919, leaving him surviving his widow and a sister who in turn died in 1927.
By the terms of his will the husband left the testatrix a legacy of $2,000, plus an annuity of $150 per month, with a general power of appointment by will over the residue of his estate. The husband's will contained also a request that his wife should make a will leaving the entire estate to his sister for her life and after her death to his grand nieces (the respondents McClure). In 1920, the testatrix made a will giving substantial effect to her husband's wishes.
She later became dissatisfied with the terms of her husband's will and in 1927 executed a new will, leaving, by the exercise of her power of appointment, the estate of her late husband to her own niece and nephew (the appellants Sutcliffe).
In July, 1929, the testatrix was admitted as a voluntary patient into a sanitarium and remained in the institution until her death in 1943.
In November, 1929, the testatrix executed a third will leaving her own estate and the estate of her husband to the latter's nieces (McClure); and it is the validity of this last will which is in question. The testatrix was subject to hallucinations and delusions which "at times" disturbed her, but "were never very fixed at any time," and, amongst them, that she was hearing voices from the grave (presumably her husband's), that she was WILL-Continued smelling either gas or dusting powder in her room and that she was tasting poison in her food. But her general rationality was conceded: she was able to converse rationally, had a good memory and was conversant with her husband's estate, her own assets and the contents of the first two wills.
The trial judge refused to grant probate.
basing his conclusion very largely upon the evidence of a medical expert that the testatrix was not capable of managing her own affairs and did not possess testamentary capacity at the time the will was made.
The appellate court, reversing that judgment, held that the testimony of experts should not outweigh the testimony of eyewitnesses who had opportunities for observation and knowledge of the testatrix and that the instrument propounded was the last will of a free and capable testator.
Held, affirming the judgment appealed from ([1945] 3 W.W.R. 641), that the evidence showed the testatrix to have been competent to make the impugned will and that it must be regarded as valid.
Delusions and hallucinations may, or may not, have influenced the will of a testator in disposing of his property: it is a question of fact to be determined by the jury or the court after the contents of the will and all the surrounding circumstances have been considered. The proved hallucinations and delusions in this case did not, upon the evidence, influence or direct the motives and reasons that led the testatrix to the making of her will, when she gave instructions and executed it; and it does not appear that in her mind there was any connection between those delusions and the disposition
WILL-Concluded of her property. Banks v. Goodfellow (L.R. 5 Q.B. 549) ref.
TRusT MCCLURE ............ 2-Trusts and trustees-Husband and wife -Property, acquired through joint efforts of husband, wife and children, purchased in name of husband-Reciprocal will of husband and wife-Statements with respect to alleged agreement for benefit of survivor and children -Properties transferred by husband to wife- Whether presumption of gifts to wife-Death of wife leaving will disposing of whole properties to daughters-Whether wife trustee for husband alone or for all children and husband equally......................... WINDING-UP--Company assets realized by liquidator-Preference and common stocks reimbursed in full at par-Distribution of surplus assets-Rights of preferred shareholders-Interpretation of terms of preference -Extent of priority-Equal division of surplus assets among preferred and common shareholders-Preferred shareholders receiving per share dividend greater than those received by common shareholders-Whether "equality" to made between them before division-Seven per cent cumulative preference as to dividends-Right to higher dividend than specified by by-law-Claim for equalization as between preferred and common shareholders of certain dividends paid to them -Companies Act, R.S.C. 1906, c. 79, as. 47, 49............................
See 1
Cases cited
- Bridge v. Eggett scr-1928-154
- A.C. 695 A.C. 695
- Reinblatt v. The King scr-1933-694
- Local Government Board v. Arlidge A.C. 120
- A.C. 217 A.C. 217
- 1 D.L.R. 210 1 D.L.R. 210
- 2 W.W.R. 576 2 W.W.R. 576
- 3 W.W.R. 100 3 W.W.R. 100
- 3 W.W.R. 641 3 W.W.R. 641
Statutes and regulations cited
-
- section 41 of the Supreme Court Act
- s. 6
- section 4
- section 41
- Section 41
- section 3
- Section 58
- s. 47
- 49
- s. 96
- s. 8
- Section 2
- Section 3
- section 2
- s. 2
- Section 9
- section 9
- section 5
- section 6
- section 165
- section 19
- Section 5
- Sections 165
- Section 19
- sections 2
- s. 3
- s. 63
- s. 65
- s. 75
- s. 9
- s. 5(1)
- ss. 29
- 30
- 4
- 6
- 9
- s. 4
- ss. 2
-
- s. 69
- section 43
- section 69
- s. 43
- s. 1023
- s. 1024
- section 1023
- Sections 1078
- 1079
- section 60
- section 50
- s. 59
- Section 50
- section 91
- section 19 of the Exchequer Court Act
- section 19
- s. 91
- s. 52
- Section 19
- s. 12
- section 52
-
Customs Act
-
Expropriation Act
-
Unresolved citations
- section 191 of the Bankruptcy Act
- section 121 of the Bankruptcy Act
- section (2)
- subsection (4)
- Subsection (4)
- Subsection (3)
- subsection (3)
- section 5 of the War Measures Act
- section 7 of the War Measures Act
- s. 96 of The Companies Act
- s. 96 of the Ontario Companies Act
- Subsection (2)
- subs. (2)
- subsection (1)
- subsection (2)
- Section 52 of the Motor Vehicle Act
- Paragraph (c)
- 2(e)
- section 348 of the Railway Act
- section 12 of the Petition of Right Act
- s. 26 of said Act