Majority
ANTOINE ROBERGE and L. D.
Per the Chief Justice and Taschereau and Estey JJ.:-The option here negotiated is not a contract "void" as being illegal in the strict sense. PROERTIE
It does not therefore involve an act on the part of an attorney which LIMITED cannot be ratified by the principal.
The trustee had a full and complete knowledge of not only the existence but the terms and ANTOINE details of the option, was in possession of such before the acceptance of the option and personally instructed his solicitor from there on. It was not a breach of trust on his part to grant a general power of attorney, and if the attorney has effected an agreement, as in this case, which is not void and which the trustee in his judgment deems in the interest of the trust estate, there would appear to be nothing in reason or principle why it should not be ratified and the estate enjoy the benefit thereof.
The ratification of the giving of the option by the trustee related back to the date thereof and became his act as if he had given the same in person, and was therefore a sufficient memorandum signed by the party to be charged to satisfy the requirements -of the Statute of Frauds.
Per Kerwin and Kellock JJ.:-Before the acceptance of the offer to sell, the executor took the position toward W. (the purchaser) that there was an offer which the latter could accept. The letters signed by the executor's solicitor, taken with the documents to which they refer, satisfy the Statute of Frauds.
"Absolute" is used in the Conveyancing and Law of Property Act, RS.O. 1937 c. in contradistinction to "by way of charge only." Hughes v. Pump House Hotel Company (1902) 2 K.B. 190.
APPEAL by the Plaintiff from the judgment of the Court of Appeal for Ontario (1) allowing the defendants' appeal from the judgment of Mackay J. (2) decreeing specific performance of an alleged agreement for the sale of land.
The material facts of the case and the questions at issue are stated in the judgments now reported.
for the appellant.
A. G. Slaght, K.C. for the respondents.
ESTEY J.:-This is an action for specific performance on behalf of the purchaser of real property situated at Kirkland Lake, Ontario.
Georgianna Roberge, late of said Kirkland Lake, owned the property in question. By her (1) 1946 Q.R. 379; 1946 2 DJL.R.
(2) 1945 O.W.N. 771; 1946 1 D.L.R. 77.
will she named her son Antoine Roberge, her executor and trustee and after directing the payment of her debts she devised and bequeathed to him her property, both real and personal, in trust for the use of her husband L. D. Roberge, during his life and thereafter to sell, convert and distribute according to the terms of the will.
The will was proved on the 23rd day of August 1943. Antoine Roberge, then of Kirkland Lake, but who at all times material hereto resided at or near Flint in the State of Michigan, was appointed executor. On September 17th 1943, in the State of Michigan Antoine Roberge executed a general power of attorney to his father, L. D. Roberge, who remained at Kirkland Lake, empowering the latter to act on his behalf in his capacity as executor of his mother's estate, and empowering him to purchase, rent, sell, etc., the real estate, or any interest therein, and to execute all necessary instruments in connection therewith. Acting under this power of attorney, L. D. Roberge on May 10th 1944, entered into an agreement entitled "Option to Purchase" with A.
On May 30th 1944, Antoine Roberge was at Kirkland Lake and he and his father called upon Wright. The sale was then discussed and they were informed by Wright that he was selling the property to McLellan Properties Limited on whose behalf he had arranged a mortgage and an extension of the lease to the Metropolitan Stores. He assured Antoine Roberge that they had raised the necessary money. Antoine Roberge suggested that St. Aubin was solicitor for the estate and his own personal solicitor and that they might meet at his office and give instructions for the preparation of documents.
That afternoon at three o'clock they met at St. Aubin's office, and after some conversation, it was suggested that there was no use of all .remaining and Antoine Roberge "instructed Mr. St. Aubin to go ahead, contact Mr. Lillico", solicitor for Wright and McLellan Properties Limited, "and get the matter closed out".
On June 7th 1944, Lillico by letter made certain requisitions with regard to the title. These were subject of personal discussions and correspondence extending from McLEL.AN June 7th to June 15th, when Lillico advised that his client was prepared to waive the requisition relative to the beneficiaries executing the transfer of the property and that Wright was assigning his agreement of purchase to the McLellan Properties Limited.
Then followed some correspondence between Lillico and St. Aubin relative to Estey J. the transfer, the requirements of the Local Master of Titles, and details leading to the conclusion of the transaction. On July 3rd 1944, Lillico wrote a letter to St. Aubin reading as follows:
Dear Sir:
Re: Roberge.
You have advised us on a number of occasions by telephone that your clients do not intend to complete the contract for the sale of the Roberge Premises, being lot plan M. 15 Temiskaming, and to confirm such telephone conversation by letter, but to date no such letter has been received by us.
This letter is to advise you that our clients are prepared to close out the contract and complete the purchase of the property, and if necessary to take action in court to enforce specific performance of the contract.
May we hear from you by return mail?
Yours truly,
L. A. Lillico.
and St. Aubin on the same day wrote the following letter to Lillico:
Dear Sirs:
Re: Georgianns Roberge Estate et al.
Referring to the alleged offer to sell and acceptance thereof and the alleged assignment to McLellan Properties Limited, I am instructed by the executor of the will to notify you that he will not proceed further with this matter for the following reasons (among other reasons): 1. L. D. Roberge had no power -to execute the said offer of sale on behalf of this estate, and the said offer of sale is a nullity;
or in the alternative,
2. The executor has, at this time, no power to sell the lands of this estate;
or in the alternative,
3. The vendor is unable and/or willing to remove -the objections made you on behalf of the purchaser and/or his assignee. The vendor therefore rescinds the agreement herein.
Yours truly,
Alibert St. Aubin.
The correspondence was concluded by Lillico's letter dated July 4th to St. Aubin acknowledging the letter of the 3rd and including the following:
* * * that we are prepared to carry out the terms of the Agreement and to purchase your client's property, and there are no objections or requisitions on title which you have not satisfactorily answered or which we have not waived on behalf of our clients.
When at the expiration of the ten days specified by
Lillico, in his second letter of July 3rd, St. Aubin did not intimate his intention to proceed with the completion of PO"ES the transaction, this action was commenced by writ dated the 17th day of August, 1944.
The learned trial judge held that while as executor and trustee Antoine Roberge could not validly delegate to
L. D. Roberge authority to option or sell, nevertheless, in this case Antoine Roberge by his conduct had adopted and ratified the agreement.
He accordingly decreed specific performance.
The appellate court held that Antoine Roberge as executor and trustee could not delegate his powers to option or sell to L.
Roberge under such authority were void, and therefore the option of May 10th 1944, was a nullity and neither the option nor the contract arising out of its acceptance could be adopted or ratified by Antoine Roberge as executor and trustee.
Further, that there was no memorandum sufficient to satisfy the Statute of Frauds. The appellate court therefore reversed the judgment of the learned trial judge and dismissed the plaintiff's action.
The general rule forbidding a trustee, subject to certain exceptions, to delegate his duties as trustee is not questioned by the appellant. Its contention is rather that the option executed by L. D. Roberge, acting under the terms of the power of attorney from the trustee Antoine Roberge, was ratified and adopted by the latter. The trustee was at Kirkland Lake and became aware of and discussed the contents of the option with A. I. Wright before it was accepted on May 30th. The acceptance was by letter of the same date addressed to Antoine Roberge, and it was he, himself, who instructed the solicitor on behalf of the estate. In other words, in everything that happened after the giving of the option, the trustee took an active and dominating part.
His conduct in discussing the terms of the agreement with A. I. Wright and going forward with the completion of the agreement would constitute a ratification or an adoption of what his attorney had initiated on his behalf.
The appellate court, however, held that because what the attorney did was contrary to law, it was therefore a nullity and could not be ratified. In support of this view the appellant quotes Lewin on Trusts, 14th ed., p. 194: The cases cited by the learned author support the view J. that such an agreement negotiated only by an attorney for a trustee cannot be enforced, but they do not justify a conclusion that the word "void" should in relation thereto be used in the sense that the attorney's act is so far a nullity that it cannot be ratified.
Nor have we been referred to any authority which holds such an act to be a nullity in that sense.
In one of the cases cited by the learned author, Bradford v. Belfield (1) after refusing a decree for specific performance to compel a purchaser to take a title through a contract negotiated on behalf of the vendor by an assign from the heir of the trustee, the vice-chancellor stated at p. 271: and at p. 272:
The general rule that one who accepts the position of trustee undertakes to perform personally those duties requiring the exercise of his discretion is subject to certain exceptions.
A trustee by the terms of his appointment may be permitted to delegate some or all of those duties. Again, if in the circumstances it would be regarded as prudent for a person in the ordinary course of business to delegate the performance of those duties, a trustee is permitted to do so: Speight v. Gaunt (2).
Further, a trustee may appoint an attorney to act on his behalf in another country: Stuart v. Norton (3); Stickney v. Tylee (4) and In re Huntly (5). These authorities illustrate the general rule and the exceptions thereto founded upon the necessities of prudent business management.
These and other authorities indicate that a delegation of authority, such as we are here concerned with, involves nothing in the nature of that illegality which renders an act void or a nullity in law. Salmond on Jurisprudence, 8th ed., 369; j . 7 Halsbury, 2nd ed., 147; Cheshire & Fifoot, Law of Contracts, 219. The option here negotiated is not a contract "void as being illegal in the strict sense": Pollock on Contracts, 12th ed., p. 254. It does not therefore involve an act on the part of an attorney which cannot be ratified by the principal within the meaning of the foregoing authorities.
It is a fair conclusion in this case, and indeed the contrary is not suggested, that the trustee, Antoine Roberge, had full and complete knowledge of not only the existence but the terms and details of the option. He was in possession of such before the acceptance of the option and personally instructed his solicitor from there on. That the option agreement is improvident from the point of view of the estate, or is in any way different from what the trustee would have insisted upon or even desired had he himself negotiated the option, is not suggested. That certain duties may be carried out by a trustee through an attorney is well established, and therefore it was not a breach of trust on his part to grant a general power of attorney.
If, however, the attorney, pursuant to that power, does something which the trustee should not delegate, it is unenforcible and in that sense invalid and it may be either void or voidable, depending upon its nature and character.
If, therefore, the attorney has effected an agreement, as in this case, which is not void and which the trustee in his judgment deems in the interest of the trust estate, there would appear to be nothing in reason or principle why it should not be ratified and the estate enjoy the benefit thereof.
See also Wilshere on Law of Agency, p. 8; Lord Cranworth in Spackman v. Evans (1).
Sir W. J. Ritchie, C.J., in the course of his judgment in Merchants Bank of Canada v. Lucas (1) states at p. 280: The essential words in this quotation are from the language of Lord Justice Lindley in the Barton case and it may be suggested that the language of the learned judges in both of these cases is obiter. Statements, however, by such learned and eminent judges are entitled to the greatest weight, and may I add with respect that the statement appears to be in accord with both principle and authority. The word "void" in the foregoing quotation from Bowstead on Agency is there used in the sense that what is purported to be done is in law a nullity. The illustrations selected by the learned author make this clear. In one he emphasizes the distinction with respect to what unauthorized acts on the part of a board of directors may, and may not, be ratified by the shareholders.
If, though unauthorized, the act of the directors would be one which the company had power to do and which it might have done qua company, that may be ratified. If, on the other hand, the unauthorized act of the directors be ultra vires of the company, it cannot be ratified by the shareholders because if such an act had been done by the company qua company, it would have been a nullity. The ratification of the giving of the option by Antoine Roberge as trustee relates back to the date thereof and becomes his act as if he had given the same in person. The trustee, Antoine Roberge, had he given the option in person might have directed L. D. Roberge as his attorney to sign the same.
As Lindley, L.J. in In re Hetling and Merton's Contract (3), stated: "I have no doubt myself that a trustee can execute a deed by an attorney
* * ". Antoine Roberge, as trustee, under the circumstances of this case ratified the giving of the option and the execution thereof by L. D. Roberge. It is therefore a sufficient memorandum signed by the party to be charged to satisfy the requirements of the Statute of Frauds.
Best C.J. stated in MacLean v. Dunn (1).
It has been argued, that the subsequent adoption of the contract by McLEIJAN Dunn will not take this case out of the operation of the statute of frauds; and it has been insisted, that the agent should have his authority at the LimTED time the contract is entered into. If such had been the intention of the legislature, it would have been expressed more clearly; but the statute only requires some note or memorandum in writing, to be signed by the party to be charged, or his agent thereunto lawfully authorized; leaving us to the rules of common law, as to the mode in which the agent is to receive his authority. Now, in all other cases, a subsequent Estey J. sanction is considered the same thing in effect as assent at the time. Omnis ratihabitio retrotrahitur et mandato asquiparatur; and in my opinion, the subsequent sanction of a contract signed by an agent, takes it out of the operation of the statute more satisfactorily than an authority given beforehand. Where the authority is given beforehand, -the party must trust to his agent; if it be given subsequently to the contract, the party knows that all has been done according to his wishes.
It was contended that the vendors had not satisfied all requisitions of title made by the purchaser's solicitor. This is not established, as evidenced by the purchaser's solicitor's letter above quoted.
The view of the learned trial judge that the plea of inequality was not established is supported by the evidence. In fact, throughout the conversations and correspondence the question of inequality or that the sale from the point of view of the estate was improvident was apparently not suggested nor was it supported by any evidence.
The appeal should be allowed with costs.
KELLOCK J.:-The facts out of which this litigation arises are undisputed and are as follows:
On May 9, 1944, the respondent, L. D. Roberge who was life tenant of the lands and premises here in question under the will of the late Georgianna Roberge, deceased, and who held a power of attorney with respect thereto from Antoine Roberge, executor of the last will of the deceased, interviewed one, A. I. Wright, a real estate agent in Kirkland Lake, Ontario, with regard to the said premises.
Roberge told Wright that he was in financial difficulties because of the fact that the rents from the premises, after payment of outgoings, did not leave him sufficient for his maintenance.
wanted Wright to assist in obtaining a new mortgage, but he also informed Wright that his family desired him to (1) 1828) 4 Bing. 722 at 726; 130 E.R. 947 at 949.
sell the property. The two men discussed a possible saleand Roberge said that he would like to sell if he could get a reasonable price and that at one time when things were somewhat better in Kirkland Lake he had been offered $60,000. Roberge was informed by Wright that the latter's, commission on sale would be 5o. At Wright's suggestion Roberge went away to decide whether he wanted to sell or to have Wright obtain a new mortgage. In the meantime Wright undertook to "put out a few feelers". Wright then communicated with the appellant and learned that it would be interested if Roberge decided to sell.
The following day a further interview occurred between Wright and Roberge when the latter stated he desired to sell.
On this occasion Wright suggested that Roberge drop his price from the figure of $60,000 mentioned the previous day, which was subject to the commission of 5o, to a net $55,000. Wright stated at this time that he would want an option for two weeks or a month. In the result Roberge agreed to an option in Wright's favour for two months at $55,000 and the agreement which took the form of an offer to sell, was drawn up and signed by Roberge as "Attorney for the Estate of the late Georgianna Roberge". The offer could be accepted on or before June 10th. Wright questioned Roberge as to his authority to sell and was assured that he had such authority.
Wright then advised appellants of the option price and the commission he would expect over and above that and arranged with them that if he could obtain a suitable mortgage and have the tenant, who occupied the premises in question and also adjoining premises belonging to the appellants, renew its lease, appellants would buy the premises for $55,000 and pay Wright $4,000 to cover his commission on the sale and his fee for arranging the mortgage and the renewal of the lease, making a total sum of $59,000 cash. Roberge was advised on May 22nd that a sale had been made for cash to the estate and a discussion took place as to investment of the purchase moneys. It was on this occasion that Roberge advised Wright that his son, the respondent Antoine, who lived in Flint, Michigan, was the executor of the estate.
Toward the end of May both the respondents called upon one of the officers of the appellant and told him that they understood the appellant was purchasing the property and that they were pleased but were sorry appellant had not dealt with them direct.
On May 30th the respondents visited Wright when the executor inquired whether Wright was sure the necessary money had been raised. Wright assured them that this was so, and that the Canada Permanent Mortgage Corporation had approved of the loan. Wright then suggested that they go to the solicitor for the appellant and close the matter but it was arranged instead, that they should go to the office of one, St. Aubin, whom Antoine Roberge said was solicitor for the estate. This appointment was kept and the appellant's solicitor, Mr. Lillico, also attended.
At this interview, L. D. Roberge stated that apparently he had signed something he had no authority to sign but the matter proceeded without further discussion of this point and Antoine Roberge instructed St. Aubin to "go ahead and get the matter closed out". Following this and on the same day Wright accepted the offer to sell by letter to the respondent Antoine Roberge, a copy being sent also to St. Aubin on the instructions of Antoine. From then on the solicitors dealt with the matter and considerable correspondence passed between them relating to the carrying out of the sale, until July 3, 1944, when the respondents refused to proceed further. The appellants having acquired an assignment from Wright and having given notice of the assignment, commenced the present action for specific performance.
This was granted by Mackay J. but this judgment (1) was reversed by the court of appeal (2)
which held that the executor could not in law delegate his power to sell and that the lack on the part of L. D. Roberge of any power to make a binding contract of sale made the alleged contract of sale null and incapable of ratification by the executor.
The court held further than even if there were an agreement of sale or if the respondents were estopped from setting up its non-existence there was no sufficient note or memorandum in writing to satisfy the
Statute of Frauds, the court being of opinion that the McLELLAN executor could not lawfully authorize another to sign a sufficient note or memorandum and 'that there was not a sufficient memorandum to be found elsewhere.
In the course of his judgment Laidlaw J. A., who delivered the judgment of the Court of Appeal (1) said: Is there a sufficient writing to be found elsewhere?
There are two Kellock J. possible sources that might be suggested:
First, the letter dated 3rd July, 1944, headed "Re: Georgianna Roberge Estate et al.", from Mr. St. Aubin, purporting to be written on instructions by the executor of the will to solicitors for Mr. Wright and the respondent. That letter refers expressly to the "alleged offer to sell and acceptance thereof", and sets forth the reasons the appellant Antoine Roberge will not proceed with the matter.
It concludes, "The Vendor therefore rescinds the agreement herein."
The contents of this letter may be properly read with the "offer to sell" and "acceptance thereof" for the purpose of satisfying the requirements of the statute, and that may be done notwithstanding that the letter repudiates liability on the contract: Thirkell v. Cambi (2). I am disposed to think that the letter referred to recognized that a contract had been made and -that its terms were correctly stated in the offer to sell. But, again, it is not necessary to decide that question because, to make that letter effective in law, the respondent must show that Mr. St. Aubin was authorized to make an admission sufficignt to bind the appellant Antoine Roberge to the contract set up by the respondent: Thirkell v. Cambi (2), at p. 595.
Even if the appellant Antoine Roberge could lawfully authorize his solicitor Mr. St. Aubin (or any other person) to sign a writing sufficient to satisfy The Statute of Frauds-which, in my opinion, he could not do-I think there is no evidence in -this case that he had done so. There is no evidence of any actual authority given to Mr. St. Aubin, and the necessary authority cannot be implied from the form or contents of the letter. On the contrary, his instructions were to repudiate the contract. " * * * the plaintiff cannot succeed unless he has affirmatively proved that -the agent was authorized to sign a memorandum of the particular contract on which the plaintiff claims": Thirkell v. Cambi (2), per Eve J., at p. 599. This -the plaintiff has failed to do.
I respectfully agree that St. Aubin's letter of July 3, 1944, is to be read with the offer to sell or option and its acceptance and in my opinion the letter recognizes that a contract had been made and that its terms were correctly stated in the option. It is not contended that these documents do not contain all the terms of the bargain come to. It has already been pointed out that the executor had expressly instructed St. Aubin to carry out the contract and in pursuance of those instructions the latter had (1) [1946] 0.11.
(2) 2 K.B. conducted the correspondence with Lillico, his first letter of June 8, 1944, containing answers to requisitions on title made by Lillico. The last paragraph of that letter reads unM as follows:
Should the purchaser not waive the Tequisition last mentioned my client will unfortunately have no other alternative but to rescind the contract as provided therein and shall not otherwise be liable to the RBEGE purchaser except to return the deposit made, if any.
Kellock J. It is quite clear that parol evidence is admissible to identify "the contract" referred to, which is "the alleged offer to sell and acceptance thereof and the alleged assignment to McLellan Properties Limited" mentioned in the letter of July 3rd; Cave v. Hastings (1).
The terms of the contract are therefore to be found in the option. In Thirkell v. Cambi (2), there was no evidence of any authority from the defendant to the solicitor to make any admission to bind his client "to the contract set up" by the plaintiff. In North v. Loomes (3), however, Younger J. used language which, in my opinion, is applicable here. He said at p. 383:
Mr. Taylor's instructions from the defendant were to complete, not to negotiate, a contract. It was an essential implication that he should, if and when necessary, affirm on behalf of his client the existence and validity, on his side, of the contract he was so instructed to carry out. While it is true that a trustee may not delegate his power to sell, I see no reason why a trustee may not authorize an agent to sign on his behalf documents such as the letters which are here in question in the course of carrying out a sale which he himself has already made. As stated in Williams On Executors, 12th ed. 598, while executors cannot contract to sell by attorney this extends merely to the discretionary act. Having once exercised such discretion they may complete the transaction by attorney. For * * * trustees and personal representatives have never been bound personally to transact such business connected with the proper duties of their office, as according to the usual course of conducting business of a like nature, persons acting with reasonable care and prudence on their own account would ordinarily conduct through agents.
See also In re Hetling and Merton's Contract (4), per Lindley, L.J.
(1) (1881) 7 Q.B.D. 125.
(2) [1919] 2 K.B. 590.
(3) (1919) 1 Ch. 378.
(4) (1893) 3 Ch. 269 at 280. is to be remembered that the acceptance of the offer to sell was made directly to the executor who personally had previously instructed his solicitor to carry out the contract. Before the acceptance of any offer to sell, therefore, the executor took the position toward Wright that there was an offer to sell which the latter could accept. This acceptance was given and the letters signed by St. Aubin, taken with the documents to which they refer satisfy the Statute of Frauds.
It is contended in the alternative by the respondent executor that he was entitled to rescind the contract and did rescind it by the letter of July 3rd on the ground that there were outstanding requisitions on title which the purchaser was insisting on. It is said the executor was unwilling to comply with these requisitions and that he rescinded the contract on account thereof in pursuance of its terms.
By letter of July 3 1944, written before the receipt of St. Aubin's letter of that date, Mr. Lillico, on behalf of the appellant, advised Mr. St. Aubin that his client was ready to complete. In fact appellant, while it had made certain requisitions, had never refused to complete if these were not complied with.
The time for closing had not arrived on July 3rd when the respondents refused to go on. Respondents must fail on this point also.
Mr. Slaght further contended for the respondents that the appellant could not bring this action for the reason that while the assignment recited it was for valuable consideration, it was in fact voluntary. He argued that therefore the assignment was not an "absolute" assignment within the meaning of the Conveyancing and Law of Property Act, R.S.O. 1937, c. 152. This contention is not well founded. "Absolute" is used in the Statute in contradistinction to "by way of charge only". Hughes v. Pump House Hotel Company (1).
As to the point with respect to the so called "inequality" of the parties I agree with the judgment of the learned trial judge.
I would allow the appeal with costs here and below and restore the judgment of the trial judge.
Appeal allowed with costs and judgment of the trial judge restored.
Solicitors for the appellant: Chitty, McMurtry, Ganong, Wright & Keith.
Solicitors for the respondent Antoine Roberge: Slaght, Ferguson, Boland & Slaght.
* Solictor for the respondent L.
James Cowan.
APPEAL-Jurisdiction-Motion for leave to appeal-"Highest court of final resort"- Whether appeal to this Court from provincial court of original jurisdiction, when no further appeal from that court-Sections 36,
37(3) Supreme Court Act.-No appeal lies to this Court "except from the highest court of final resort having jurisdiction in
(a) province", according to the plain wording of subsection 3 of section 37 of the
Provisions of section
36 of the Act do not contemplate, as contended by the appellant, that an appeal would lie to this Court from a provincial court of original jurisdiction, on the ground that, for the purposes of a particular proceeding, there is no further appeal from that court. Under section 36, it is irmmaterial whether "the highest court of final resort" has appellate or original jurisdiction, or both: in either event there is to be no appeal except from such highest court and not merely from a court which may be the court of last resort in any particular proceeding.
James Bay Railway Co. v. Armstrong ([1909] A.C. 624) foll.
International Metal Industries Ltd. v. City of Toronto ([1939] S.C.R. 271) aff.
..............
2.-Parties-Status to appeal-Right of
Labour Relations Board, Sask., to appeal from judgment holding it had no jurisdiction in matter brought before it-Right of Board, as a party under its official name, to appear in legal proceedings.-The Labour Relations Board of Saskatchewan (established under Statutes of Saskatchewan, 1944 (2nd
Session), c. 69) appealed to this Court from the judgment of the Court of Appeal for Saskatchewan, [1946] 3 W.W.R. 459, holding, on a question raised before it on preliminary objection present respondent company, that the Board had no status to appeal from the judgment of
Anderson J., [1946] 3 W.W.R. 200, setting aside a ruling of the Board that it had jurisdiction to hear a certain matter brought before it. Before this Court a further objection was taken by said company that the Board -was not a body known to the law and consequently could not appear in any legal proceedings.
(1) Effect should not be given to the latter objection. (Per the Chief Justice and
Act is that the Board is a legal entity and can appear in legal proceedings and be heard as to its rights. Per Rand and
Kellock JJ.: Assuming that the Board is not an entity distinct from its members, it was not for said company at this stage, having chosen to designate them by their
APPEAL-Concluded collective name and after having obtained a decision in its favour, including an order for payment of costs, to get rid of them now by such an objection; Taff Vale Ry. Co. v. Amalgamated Society of Railway Servants, A.C. 426, at 445, referred to). (2) The Board had the right to appeal to the Court of Appeal.
(Per the Chief Justice and Kerwin J.: An examination of the cases indicates that for many years it has been taken as settled that a body such as the Board has a right to appeal where its jurisdiction is in question. Per Rand and Kellock JJ., referring to The King's Bench Act, R.S.S. 1940, c. 61, s. 2 (14) ("party"); The Court of Appeal Act, R.S.S. 1940, c. 60, s. 6; and to the proceedings taken in the present matter; also to Mackay v. International Association of Machinists 2 W.W.R. 257, at 260, 264): The Board was both a proper and a necessary party to the proceedings here in question and, being a party, had the right of appeal to the Court of Appeal and required no further or other status; the argument that a tribunal charged with the responsibility of deciding as between other persons should have no interest in supporting its decision in a Court of Appeal, is irrelevant here in view of said statutory provisions. Per Estey J.: It indicated by authorities (cases reviewed) that over a long period of time it has been recognized that where the jurisdiction of a body such as the Board, constituted to discharge judicial functions, is questioned in a superior court, it may defend its jurisdiction and, in the event of an adverse judgment, take an appeal therefrom).
v. DommoN FIRE PaoDucrs LTD).................. 3.- Jurisdiction-Habeas Corpus-Distribution of pamphlets in streets-Municipal by-law-Condemnation of fine or imprisonment-"Provincial crimes" are "criminal matters"-No distinction in case of a "municipal enactment"-Construction of the word "criminal" in section 86 of the Supreme Court Act.-The appellant was charged before the Recorder of the city of Quebec with having illegally distributed pamphlets without previously having obtained written permission of the chief of police, in violation of the provisions of a municipal by-law. The appellant pleaded that he was a minister of a religion (Witnesses of Jehovah) and was not bound by the by-law; but he was found guilty and condemned to pay a fine of $100, with an alternative of three months in jail. The appellant did not pay the fine, was committed to gaol and APPEAL-Concluded then applied for a writ of habeas corpus.
The judgment of the Superior Court, dismissing the petition, was affirmed by a majority of the appellate court. Special leave to appeal to this Court was granted by the appellate court
The respondent, the city of Quebec, moved to quash the appeal for want of jurisdiction.
The motion should be allowed and the appeal quashed.
Jurisprudence is well settled that there are "provincial crimes", over which the various legislatures of the
Dominion have jurisdiction, and that they are "criminal matters" within section 36 of the Supreme Court Act.
In re McNutt
(47 Can. S.R. 259); Mitchell v. Tracey
(58 Can. S.C.R. 640); The King v. Nat Bell
([1922] 2 A.C. 128); The King v. Charles
Bell ([1925] S.C.R. 59); Chung Chuck v.
The King ([1930] A.C. 244) and Nadan v.
The King A.C. 482) foll. Quebec
Railway Light and Power Co. v. Recorder's
Court of Quebec (41 Can. S.C.R. 145) and
Segal v. City of Montreal ([1931] S.C.R. 460)
not applicable.
The appellant's contention, that these decisions do not apply because they refer to "provincial crimes"
and that this case does not deal with any of them but with a "municipal enactment"
imposing a fine or imprisonment, cannot be upheld. The word "criminal" as used in section 36 of the Supreme Court Act cannot be considered as meaning "criminal law", as assigned to the Dominion by the B.N.A.
Act, but must be considered in the sense that it is "not civil".
The characteristics of a civil process cannot be found in this case.-The proceedings in the courts below are of a "penal nature", that is to say,
"criminal for the purposes of the Supreme
Court Act", and no appeal lies to this
Court, which is a statutory court and whose jurisdiction therefore limited.
Reporter's note: See Barry v. Recorder's
Court and Attorney-General of Quebec
(Q.R.
K.B.
308.)
QUEBEC.
4.- 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 1018,1015,1078 and 1079Cr. C..
ASSESSMENT AND TAXATION.
BANKS
BANKING - Bills
Exchange-Postdated cheque-Cheque dated next day after date of issue, certified by bank by oversight on day of issue, and charged to drawer's account-Drawer countermanding payment at opening of business on day of date of cheque-Claim by drawer against
BANKS AND BANKING-Continued bank for amount of cheque-Circumstances in question - Claims by bank as to true date, as to estoppel, to right of holder in due course-Bills of Exchange Act, R.S.C. c. 16, ss. 165, 167, 181, 188, 21.- On January 8, 1945, appellant made out and signed a cheque dated January 9, 1945, to M for $2,000 on appellant's savings account with respondent, the Royal Bank of Canada, at Calgary, and also signed his name on the back of the cheque, and presented it, along with an undated deposit slip in M's name, to the teller of the Canadian Bank of Commerce at Calgary, who filled in the date, January 8, on the deposit slip, and did not notice (nor was it drawn to her attention) that the cheque was postdated.
The teller, immediately after the deposit, sent the cheque by messenger to the Royal Bank's office where the proper officers, not noticing that it was postdated, certified it and returned it. Later on the same day, M withdrew from her account in the Bank of Commerce (in which account the amount of said cheque had been credited) the sum of $2,000.
having learned from M on the evening of January 8 that the transaction, to help finance which the cheque was intended, had not gone through, attended, at the opening of business on January 9, at the Royal Bank to stop payment of the cheque, but was told of the certification and that payment could not be stopped.
Later the Royal Bank paid the amount of the cheque through the clearing house to the Bank of Commerce.
sued the Royal Bank for said amount of $2,000, claiming that it was improperly charged to his account.
The bank claimed that the instrument was a bill of exchange other than a cheque or alternatively that the true date was January 8, and, should it be held that appellant was entitled to countermand, the bank counterclaimed against appellant as endorser; the bank also (by amendment allowed by the Appellate Division, Alta.) pleaded estoppel, and alternatively, that appellant, in breach of duty to the bank, misled or caused to be misled the bank into certifying the cheque on January 8, by reason whereof the bank became entitled to debit appellant's account with the amount of the cheque.
Held (Rand J. dissenting): Appellant was entitled recover the amount from the respondent bank.
(Judgment of the Appellate Division, Alta., 2 W.W.R. 187, reversed, and judgment at trial, [1946] 1 W.W.R. 65, restored).
Per the Chief Justice and Kerwin J.: The law that a cheque may be countermanded before the time of its payment as designated by its ostensible date, applied in this case.
As between appellant and the respondent bank, January 9 was the true date of the cheque. Whether or not appellant, by signing his name on the back of the cheque, became an endorser, the respondent bank could not INDEX
BANKS AND BANKING-Concluded claim against him as such, as the respondent bank did not become a holder in due course.
plea of estoppel against appellant failed because the employees of the respondent bank who participated in the certification of the cheque did not rely upon endorsement.
Taschereau and Estey JJ.: Appellant was within his rights in asking that the respondent bank stop payment. The certification of the cheque before its date was, as against appellant, invalid.
On the evidence, the only reason that the bank certified the cheque was because its employees overlooked the fact that it was postdated; appellant was no party to this, and the essentials to found an estoppel were not present. Even if appellant be regarded as an endorser, yet the respondent bank received the cheque upon the terms of its contractual relationship with appellant, and its relationship is determined on that basis, and the bank could not under the circumstances claim as a holder in due course as against appellant. Per Rand J., dissenting: Appellant never intended that
M should be contractually related to the cheque, that is to say, that she should ever be a party to any legal right or obligation created by its transfer to the Bank of Commerce or any subsequent dealing with it; crediting her account with the proceeds was a matter dehors the cheque.
The payee was therefore a fictitious person, and under s. 21 of the Bills of Exchange Act, the cheque may be treated as payable to bearer; and in any event, appellant was estopped from denying that fictional existence.
A cheque can be negotiated before its date; the Bank of Commerce became, therefore, the holder of the cheque with an engagement on appellant's part at least as drawer; and that title was transferred to the respondent bank. Assuming the countermanding to have been effective, the respondent bank was remitted to the rights of a transferee from the Bank of Commerce;
and the counterclaim was well founded.
v. TnE RoyAL
2.-Trust-Contract-Banks and banking-Account opened in bank in joint names of two persons, at instance of one of them, who, from her own moneys, made all deposits-Death of latter-Claim by survivor to moneys-Agreement, in bank form, executed by both persons under seal-Terms of agreement-Circumstances in question- Resulting trust in favour of deceased- Moneys held to belong to her estate-Costs
...................................
See TRUsT.
BILLS OF EXCHANGE ACT, R.S.C.
21............................
See BANKS BANKING.
CIVIL CODE-Article 1029
(Effect of contracts with regard to third persons) and article 2591 (Life Insurance) .... 2.-Article
1054 (Offences and quasi-offences)...................... 3.-Article 1056 (a) (Offences and quasioffences) ........................... 4.-Articles 2227,
2230, 2239 (Prescription).......................... CONSTITUTIONAL
LAW - Statute - Section 6 of the Farm Security Act of Saskatchewan-"Crop failure"-Period of suspension-No payment of principal-Principal, falling due during period, automatically postponed-Principal outstanding on 15th of September automatically reduced-Interest continuing to be payable as if principal had not been so reduced-Whether section 6 ultra vires of the legislature-"Interest"-"Bankruptcy and Insolvency"-"Agriculture"- Civil rights-Whether Section 6 affects Dominion Crown or its agencies-Provincial Mediation Board-Not exercising powers of a court, but fulfilling administrative functions-B.N.A. Act, sections 91 (19), 92 (13), 95, 96, 99, 100-Interest Act, R.S.C. 1927, c. 102-Farm Security Act, Sask. S., 1944, c. 30, as amended by Sask. S., 1945, c. 28, s. 2.-Section 6 of the Farm Security Act 1944 (Saskatchewan) enacts inter alia that, when there is in the Province a "crop failure", as defined in the Act, then "the mortgagor or the purchaser" of a farm "shall not be required to make any payment of principal to the mortgagee or vendor during the period of suspension" and any "principal outstanding" on the fifteenth day of September in the period of suspension shall on that date become automatically reduced by four per cent *
*
* provided that notwithstanding such reduction interest shall continue to be chargeable, payable and recoverable as if the principal had not been so reduced." Held, Taschereau J. dissenting, that section 6 is wholly ultra vires the Legislative Assembly of the province of Saskatchewan. This enactment is legislation in relation to "interest" and such legislation is within the exclusive legislative jurisdiction of the Dominion Parliament under head 19 of section 91 of the British North America Act. Per Taschereau J. (dissenting): Provisions of section 6 were competently enacted by the Legislature. Legislation to relieve farmers of financial difficulties and to lighten the burdens resulting from the uncertainties of farming operations is legislation in relation to "agriculture" (s. 95 B.N.A. Act.)-Also, the clauses contained in that section are dealing with CONSTITUTIONAL LAW-Concluded the civil rights of the vendor or of the mortgagor (s. 92 (13) B.N.A. Act)-Moreover, in enacting the Act, the legislature was entering the field of contracts, and the legislature has power to insert in a private contract a statutory clause which affects the civil rights of one or both parties who contract, even if the rights of the parties are modified or totally destroyed.-The
Farm Security Act is therefore in pith and substance a law relating to agriculture and civil rights and its constitutionality cannot be successfully challenged merely because it may incidentally affect "interest".
Taschereau J.
But the Act, and specially section 8, must be construed as not affecting the Crown in right of the Dominion or any of its agencies holding mortgages in the
Province. Per Taschereau J.-The Provincial Legislature, in creating the Provincial Mediation Board, did not confer to it the powers of a court, thereby infringing upon the prerogatives of the Dominion.
The Board does not fulfil "judicial" or
"quasi-judicial"
but solely "administrative" functions.
REFERENCE
VALIDTY 6 THE FARM
1944, PROVINCE OF
SASKATCHEWAN..................3..
CONTRACT -Vendor and purchaser
Sale of homestead by aged father to son- Action to set aside agreement-Fraud and undue influence-Fiduciary relationship- Whether onus of establishing validity on son-Whether inadequacy of consideration sufficient to disturb the agreement .- In an action brought to set aside, on grounds of fraud and undue influence, an agreement for the sale of a homestead made by an aged father in good health and in possession of all his faculties to his grown-up son (since deceased), these facts do not constitute a fiduciary relationship between the parties whereby the courts will presume "confidence put and influence exerted" by the son, nor was any evidence adduced of such
"confidence put and influence exerted"
that would place the burden upon the respondent (the widow and administratrix at litem of the son) to prove the agreement was made by the father voluntarily and with an understanding of its nature and effect. The appellants, administrators of the father's estate, are not entitled to the benefit of this presumption arising from the relation of parties. The onus of proof remained upon them. Krys v. Krys
([1929] S.C.R. 153) and McKay v. Clow
S.C.R. 643) distinguished. Under the circumstances of this case, relative to the question of consideration of the contract, while the courts will inquire as to whether advantage is taken or influence exerted, yet when it is found that neither of these exist and that the parties were equally in possession of all the facts, mere inadequacy of consideration or that it was an improvident agreement will not suffice to disturb the contract.
KARALOFF..
.................... 2.- Claim for subsidy from the Crown in respect of coal mining-Order in Council establishing Emergency Coal Production Board-Plan proposed by Board as to assistance to operators of coal mines- Communications between claimant and the Interpretation - Question whether contract, or other ground for claiming subsidy, established.-By Order in Council P.C. 10674 of November 23, 1942, the Emergency Coal Production Board was established and made responsible, under direction of the Minister of Finance, for taking necessary or expedient measures for maintaining and stimulating the production of Canadian coal and for ensuring an adequate and continuous supply thereof, and included in its powers and duties was (under direction of the Minister) that of "rendering or procuring such financial assistance in such manner to such coal mine as the Board deems proper, for the purpose of ensuring the maximum or more efficient operation of such mine, provided, however, that in no case shall the net profits of operation exceed standard profits within the meaning of the Excess Profits Tax Appellant, a coal mining company in Saskatchewan, claimed from the Crown a subsidy in respect to its coal mining from October 1, 1942, to March 31, 1943, basing its claim mainly on the ground that communications between appellant and the Board and appellant's operations had raised an obligation to pay such subsidy. The claim was dismissed in the Exchequer Court, [1946] Ex. C.R. 387, and appeal was now brought to this Court.
claimed that its "deep seam" operation was undertaken entirely as a war or national emergency measure and to assist the coal administrator in increasing production, that at all times material it was carried on at a loss. Appellant's "strip" operation made a profit exceeding said loss. Appellant's net profit on both operations for the period in question fell below its "standard profits" fixed under the Excess Profits Ta2 Act, by $44,209.30, which sum it claimed. Among the facts were the following: At the Board's first meeting (in December, 1942), it recommended "that in the first instance assistance be made available in the form of accountable advances based on estimated needs", as "in most cases it would be inadvisable if not dangerous to withhold assistance until" audited annual statements were available and studied or until an inspector's report could be made. Forms were prepared for the purpose of obtaining information as to production, costs, revenue, etc., and on the back were instructions and the Board's plan or formula. On January 6, 1943, the Chairman of the Board, answering appellant's letter setting: out increased costs due to an increased wage rate (authorized by the National War
Labour Board), stated that the matter would be "looked after" as soon as the formula for making accountable advances had been decided.
On January 29, 1943, the Executive Secretary of the Board wrote to appellant that the Board had
"approved a plan whereby operators who are operating at a loss may be reimbursed"
and enclosed forms "F-4" to be completed and forwarded, on which was the Board's plan or formula, stating, inter alia, that
"the maximum amount of subsidy paid is regulated" by the lesser of (a) profits not to exceed "standard profits" as ascertained under the Excess Profits Tax Act or (b)
such amount of net taxable profits as shall be equal to 15 cents per net ton of coal produced or sold. Appellant completed and forwarded the forms, and on February
11, 1943, the Executive Secretary of the
Board wrote to appellant that in the light of the statements therein and the seasonal nature of appellant's operations,
"any question of subsidy should be deferred"
until returns were received for the current financial year and until clarification of the situation in respect to standard profits, that in the meantime monthly submissions of forms should be continued, and that with respect to sales, "until a rate of subsidy, if any, is actually set no change need be made in your billing, and if a subsidy becomes payable", a back claim for additional amounts could be made. Appellant, besides forms covering certain months, sent, later, forms for the six months period now in question, covering, separately, the strip and deep seam operations. Appended to the minutes of a meeting of the Board on
July 29, 1943, was a list of operators
"receiving or authorized to receive F-4 assistance not authorized by individual minutes", which list included appellant, but with no amount set opposite its name.
Though information on the forms was available to the Board before that date, it had not examined or "processed" the form statements.
On December 9,
1943, in reply to a letter from appellant to the
Executive Secretary of the Board, the
Assistant Accountant, for the Accountant, of the Board, wrote that "we may assure you that the [Board] has authorized subsidy on your operations from the 1st of
October, 1942", and, "to facilitate the computation of the correct amount of subsidy to which you are entitled", requiring a certified consolidated return. On March
3, 1944, the Chairman of the Board wrote to appellant that, "after making a careful review of the circumstances surrounding your claim for subsidy assistance, we have arrived at the conclusion that it would not be possible to justify a recommendation"
for it. Held: The appeal should be dis- On the documents and facts in evidence, no contract or other ground for allowance of the claim was established. Per the Chief Justice and Taschereau and Estey JJ.: The deep seam operation was, on the evidence, undertaken by appellant entirely of its own volition and it was not shown that it was at any time continued in consideration of a promise that a subsidy would be paid. Though information as to the "stripping" and "deep seam" operations was asked for and supplied separately, yet (at least for the period in question) there was no suggestion that they would be treated separately in determining any question of subsidy.
Appellant was not "operating at a loss" within the Board's said letter of January 29, 1943, and, on the basis of that letter, did not qualify for a subsidy.
The statement in said letter of December 9, 1943, in the absence of evidence establishing either actual authority from the Board or that the writer was held out as one apparently having authority to make such communication, should not be accepted as an admission binding upon the The Board's decisions would, as the evidence indicated, be recorded in the minutes of the Board, and could be adduced in evidence by production of the minutes or (under provision in said Order in Council) of a document signed by its Chairman. As to said list appended to the minutes of July 29, 1943, it was clear that no decision had been arrived at by the Board as to a subsidy to appellant; and no other minutes were produced mentioning appellant. The Board accepted appellant as an operator entitled to be considered for a subsidy. The Board's conduct was not that of a party contracting, but rather that of one endeavouring to determine whether appellant was, on the basis of the Order in Council and the plan, entitled to receive a subsidy. Appellant was throughout supplying information asked for with the intent and purpose of convincing the Board of its right to a subsidy under the Order in Council and plan. The essential elements of a contract were not present. Kerwin J.: The facts afforded no basis for appellant's claim.
Clearly, on the evidence, there was no contract; and there was nothing in said Order in Council, the minutes of the Board, or the actions of any of its responsible officers, upon which appellant might base a claim to a subsidy based upon a statute or anything similar thereto. Per Rand J.: The ppening of the deep seam was initiated by appellant and carried on until at least the early part of 1943 voluntarily and for its own purposes, with no inducing action by the Government or the then Fuel Administrator beyond the general exhortation for a country-wide increase in production. The statement in said letter of January 29, 1943, that the Board had approved a plan whereby "operators who are operating at a loss" might be reimbursed, meant, both in the plain and ordinary meaning of the language 1947J and when construed with the references in the context, a loss on total operations.
There was nothing in the documents that could fairly be said to have misled appellant into believing that the general plan included the subsidizing of isolated operations.
It did not appear that the operation of the deep seam during the period in question was ever involved in any bargain in which its continued operation was conditioned on payment of subsidy, or that the Board throughout was not restricting subsidy to the results of appellant's operations as a whole.
As to a claim based (with contract, including any basis of estoppel, excluded) on compliance with conditions of an obligatory subsidy-the conditions, by their very terms, involved the Board's discretion, which could be exercised only after operating results became known and on an appreciation of all circumstances: a discretion which became executed only when the subsidy was in fact paid; a contention that increased output in response to the Board's appeal would ipso facto guarantee to any company producing it a return of either standard profits or 15 cents per ton was wholly inconsistent with what the Board laid down.
As to inclusion of appellant's name on said list of July 29,
1943-the correspondence makes it clear that there was a lack of co-ordination between the different departments of' the
Board; and the inference that appellant's operations had not been finally considered is confirmed by the absence of any amount for subsidy opposite its name; the entry was therefore, in fact, provisional; it is relevant to the period in question only as it might evidence recognition by the Board that the conditions on which it ordinarily acted were present; but it actually made its finding to the contrary, and the discretionary nature of its reserved power permitted it to do that.
WESTERN DOMINiON v. TE ......
3.---Guarantee-Renewal note-Novation
-Imputation of payments-Joint and several creditors-Prescription-Interruption giving of continuing guarantee-Evidence- Onus-Arts.
2227,
2230,
92239
C.C.- The appellants claimed from the respondents jointly and severally the sum of $20,000 upon a note signed by them. The facts of the case are lengthy and complicated; and reference is made to detailed statement in the judgmints now reported. The note was deemed to represent, pursuant to the terms of a deed passed concurrently, Onehalf of the amount due to the appellants by one B. P., principal shareholder of a company which had tendered for the construction of a municipal aqueduct, such amount to be ascertained on completion of the works, when the contract would have been wound up. The appellants, contending that the amount due them was in excess of
$40,000, claimed the full amount of the note. The respondents pleaded inter alia: (1) that the original note and its renewal were prescribed; (2) that novation had been effected and the original amount due was consequently discharged; and (3) that payments made by B. P. should have been imputed totally against the note as being the older debt. The respondents also contended that the onus was on the appellants to show the loss incurred in the execution of the contract.
The appellants' action was maintained by the Superior Court, but was dismissed by the appellate court. Held: The appeal is allowed and the appellants' action is maintained for a sum of $11,158.18, being half of $22,316.37, which was the final amount owed by the respondents.
Held that prescription does not run as long as a creditor holds a guarantee or security given to him by the debtor.-Per The Chief Justice and Kerwin, Taschereau and Kellock JJ.-A note dated in 1936, given to renew another dated in 1931, would therefor be prescribed in 1941, unless there are found causes interrupting or delaying the prescription. In this case, in 1931, concurrently with the signing of the original note, a contract of guarantee was signed by two of the parties thereto whereby one of them transferred inter alia shares, for an amount of $15,000, of a certain company to secure the payment of the debt for which the note was given and of another debt. Now, it was only in 1941, when the affairs of the aqueduct works had been finally wound up, that these shares were returned to the debtor by the creditor: therefor, the prescription of the notes began to run only from that date.
Moreover, though the guarantee was given to one of the appellants only, because the other appellant was a joint and several creditor with him, all the acts interrupting or delaying the prescription towards the former have the same effect towards the latter.
(Arts. 2230 and 2239 (C.C.) Per The Chief Justice and Kerwin, Taschereau and Kellock JJ.:-Novation was not effected by the renewal ih 1936 of the original note, as otherwise the debt represented by that note would have been extinguished.-It is true that B. P. was the signer of the original note and the endorser of the renewal note, but the debt represented by the first note has not been renovated by the second. In order that novation be effected, there must appear, besides any change made in the original obligation, some acts of the parties showing the will to extinguish it and to replace it by a new one.-Novation is not presumed and there must be an evident intention of effecting it; the will of the parties not to make the new obligation coexisting with the old one must appear clearly from the deed or its circumstances; in case of doubt, the original obligation remains in force; in this case, the creditor kept possession of the first note; the net result of its renewal is that the amount of the first note cannot be recovered until the date of maturity of the second note. Per The Chief Justice and
Kerwin, Taschereau and Kellock J.J.:- Under the general provisions of the law, payment must be imputed upon the debt which the debtor has the greatest interest in paying and, if the debts are of the same nature and equally onerous, the imputation must be effected upon the oldest debt.
However, thee principles apply only when there are several debts but a single debtor and a single creditor.
Consequently, if the debtor gives security to guarantee both the payment of a note due to one creditor and the claim of another creditor against a company of which the payee of the note was a shareholder, the fact that the note was earlier in date than the claim should not be taken into consideration.
Legal imputation does not apply in such a case
(Arts. 1158 et seq. C.C.), as, while there are several debts and one debtor only, there are also two creditors; the Company and one of its shareholders. These parties, both creditors of B. P. but having different claims under the law, were holding jointly the same security for the guarantee of their respective claims; and the amount resulting from the conversion of the security into money cannot be subjected to any preference.
Both creditors must, according to the ratio of their claims, divide between them the proceeds of the security, in the absence of some agreement in the matter.
Per The Chief Justice and Kerwin, Taschereau and Kellock JJ.:-The construction company issued in May 1931 a cheque for
S4,000 payable to one E. R. and in December next paid to the appellants a sum of
$4,563.93.
The trial judge expressed doubt as to the legality of the appropriation of the amount of $4,000.
Held: The onus was on the appellants to establish that the payment of $4,563.93 had been made in settlement of a valid and legal claim.
Otherwise, if such proof is lacking, that payment must be applied on account of a promissory note, which was the only debt for which the appellants were creditors on the date of the payment.-Per Rand J.:- The agreement entered into by the patties in 1933, wherein the note of $20,000 sued upon was mentioned, by implication in fact provides that the note shall run as a continuing maximum obligation for one-half of the ultimate sum, on completion of the works, found due from B. P. to the appellants, which in the circumstances would represent part of the loss on the contract, less what B. P. himself might pay on it, and that consequently it became payable in
March, 1941, when the affairs of the construction company had been wound up.
Per Rand J.:-The note of 1936 did not
.supersede that of 1931 either in intention or because B. P.'s liability was changed from that of a maker to that of an endorser,
.and, consequently, the original debt or
CONTRACT-Concluded liability did not cease to exist in 1936. The reasonable inference from the circumstances is that the second note was taken, ex abundantia cautela, not in substitution for, but additional to, the first. The earlier note continued therefore, subject to the operation of prescription until 1941. But even if there were a substitution, on both notes B. P. was in fact a surety to the construction company, and, either as maker or endorser, his obligation to the appellants vis-a-vis the respondents remained unaffected.
Per Rand J.:-The onus of proving the fact of a loss in carrying out the reservoir contract, which loss was a condition of the respondents' liability under the agreement of 1933, did not lay on the appellants, when the circumstances in which the note of 1933 was given are considered, and more specially where the appellants had nothing to do with the direction of the construction company and had no control over the disbursement of moneys.
Per Rand J.: The securities given by B. P. in 1931 should, under the language of the agreement, be appropriated proportionately to the debts owed by him, to wit the one represented by the note given to the appellants and the one represented by a loan made to B. P. by company.
DIONNE 4.-Master and servant-Contract of employment
Wrongful dismissal - Princpal of mitigation of damages-True test applicable-Commission on sales-Charge of commission on sales tax-Whether honest mistake-Whether cause of dismissal-Con- "not to be performed within year"- Performance possible within year-Section 4 of the B.C. Statute of Frauds-National Selective Service Civilian Regulations- Notice of separation-Companies Act, R.S. B.C., 1986, c. 42. s. 98(11(c) ......... 5.-Trust-Contract-Banks and Banking-Account opened in bank in joint names of two persons, at instance of one of them, who, from her own moneys, made all deposits -Death of latter-Claim by survivor to moneys-Agreement, in bank form, executed by both persons under seal-Terms of agreement-Circumstances in question-Resulting trust in farour of deceased-Moneys held to belong to her estate-Costs............ 6.-Taxation-Business tax-City Act, Sask., R.S.S. 1947, c. 126, as. 460, 461, 463-Assessment of company for business tax-Company claiming that business in question was that of the Crown, that company was agent of the Crown and not liable-Contract between company and Crown for manufacture of gun-carriages-Construction of contract with regard to question in issue. CO-OPERATIVE handling and marketing of wheat-Saskatchewan Co-operative
Wheat Producers Ltd.-Contracts between company and members-Rights of members- Deductions by company, from returns from sale of wheat, for its activities and towards acquiring handling facilities-Claims for repayment, for interest, or for declaration as to rights-Alleged breach of trust-Claim that interest on claimant's deductions should be paid before payment of patronage dividends to later shareholders.-Saskatchewan Co-operative Wheat Producers Limited, referred to infra as the "association", was incorporated in 1923 under the Companies Act,
Sask., and its incorporation was confirmed by statute (Sask.) in 1924, c. 66.
main object was the co-operative handling and marketing of wheat for its members, grain growers in the province, each member buying a share for $1. Saskatchewan Pool
Elevators Limited, referred to infra as the
"Elevator Co.," was incorporated in 1925 under said Companies Act for purpose of acquiring elevator facilities and handling grain delivered to the association; its capital stock was owned by the association and the directors of each company were the same persons.
Appellant delivered wheat to the association.
Deliveries during 1924, 1925,
1926 and 1927 were under contract of
December
27,
Another contract was made on February 7, 1927, for deliveries for the five years following; but after the crop year of 1929-30, appellant (as were all others who had signed contracts) was released from his obligation to deliver wheat under it. Appellant ceased farming in
Said contracts provided (as did contracts with other grain growers) for deductions by the association, from gross returns from sale of wheat, of expenses, of a
"commercial reserve" to be used for purposes and activities of the association, and of an "elevator deduction" towards acquiring facilities for handling grain. Under said contracts the association deducted
"commercial reserves" and "elevator deductions", crediting the amounts thereof in account. The last of said deductions were made out of the proceeds of the 1928 crop. Appellant claimed repayment of amounts so deducted, and interest thereon, or, alternatively, a judgment declaring his rights.
On July 16, 1025, the directors of the association passed a resolution that elevator deductions should bear interest at 6 per cent. This was followed by statements forwarded from time to time by the association to the growers, showing the amount of elevator deductions and interest thereon, but stating that "the crediting of interest during the present contract, as well as the payment of interest on the certificates, is conditioned on the
Pool Elevators having sufficient earnings, after taking care of expenses and depreciation, to provide for same."
In 1929 the association issued two certificates, one setting out commercial reserves and the
CO-OPERATIVE-Continued other setting out elevator deductions, taken under said contract of 1923. These certificates were under seal, and, as recommended by the directors, were approved by resolution of November 26, 1928, at the annual meeting of the association delegates. They were delivered to the growers who had signed said contract of 1923, and contained the following (the rate of interest mentioned on commercial reserves and elevator deductions being 5 and 6 per cent. respectively): "Interest from September 1, 1928, will be paid annually at the rate of *
*
* on the sums represented by this certificate which shall from time to time remain unpaid, provided, however, that the Company reserves the right to declare that a lower or other rate of interest, or no interest, shall be payable in any year or years, all interest payments shall be noncumulative in effect."
Interest was paid, on elevator deductions, from September 1, 1925, to August 31, 1930, and on commercial reserves, from September 1, 1927, to August 31, 1930.
(In each case, interest for the year ending August 31, 1930, was not paid until 1941).
Also it was stated in evidence that on the elevator deductions interest of 3 per cent. was paid for 1943 and would be paid for the next year. On September 17, 1931, the directors passed a resolution, referring to said certificates and to the association's indebtedness to the Government (hereinafter mentioned), that, as it must use all available funds in order to pay said indebtedness, in future no interest be declared or paid to the holders of such certificates, but that all interest earned by the moneys represented thereby be retained for the purpose of reducing said indebtedness or for any other proper association activity.
Up to and including the crop year 1929-30, the association, when receiving the wheat, made an advance on account of the price to the grower. In 1929-30 this advance was followed by such a drop in the price of wheat that the advance was more than what was ultimately realized.
The overpayment to the growers was treated as a loss to the association, which arranged for the Saskatchewan Government to pay its debts to the banks and accept repayment in amortized instalment payments, the last of which is payable in 1951.
The assets of the association and the Elevator Company were given as security, as set out in statutes, 1931, c. 90, and 1932, c. 77.
By s. 3 of the latter Act, "no person who *
* * has or may hereafter acquire any right, title or interest in any elevator deduction or commercial reserve * * * shall be entitled to demand repayment of money which has been placed in any such deduction or reserve or to bring or continue action to enforce any right or interest in respect of such money or deductions or reserves, or any earnings thereof
* until the Government has been paid in full.
After the crop year CO-OPERATIVE-Continued
1929-30, the association abandoned the
,compulsory pool which it had operated, notified growers of release from their obligation to deliver wheat, and operated a voluntary pool, rendering the same services as theretofore to those growers who desired it, and it entered into business of buying and warehousing grain.
"Patronage divi- <dends" were paid to growers prior to 1930, and again in 1940 and in subsequent years.
From 1940 these patronage dividends have been paid, to shareholders delivering wheat to the association, part in cash and part
'credited to their deduction accounts.
part so credited has been utilized by the association in arranging for repayments in
'certain cases, under which appellant, as having ceased farming, would qualify to benefit. Appellant contended that, with
-surplus funds available, interest should be
,paid on the commercial reserves and elevator deductions before payment of patronage dividends, which, he contended, were, in breach or repudiation of trust, being paid to later shareholders who had made no contribution to the deductions now in question but were getting the benefit of the facilities provided- by these deductions and receiving patronage dividends on the same basis as those who became shareholders under the contracts of 1923 and
Held: Appellant's claims for repayment of deductions and for interest were barred at this time by said s. 3 of c. 77,
Also his action failed for further reasons as follows: Per Kerwin and Estey
JJ.: The contracts with appellant contained no covenant to repay the deductions.
association received and utilized them within the terms of the contracts. There was no breach of covenant or of trust.
The contracts contained no covenant to pay interest.
As to the certificates, the provisio therein should not be disregarded as repugnant.
Its language qualified, rather than destroyed, covenant.
That interpretation is the natural and reasonable one, and also accords with the conduct of the parties (which may be looked at to assist in construction).
resolutions of the association for payments of interest were mere expressions of intention. The association's method of paying patronage dividends without having first paid interest now claimed did not violate any trust. Its abandonment of the compulsory pool and its subsequent steps and operations were within its powers and at the same time maintained for those growers who desired it, through the voluntary pool, all the rights and advantages under their contracts. The commercial reserves and elevator deductions have been used within the terms of the contracts under which appellant authorized them. There being no breach of the association, and in view of its policies adopted and its unquestioned good faith, no purpose would be served in directing a declaratory judgment, which
CO-OPERATIVE-Continued could only be effective after the provincial government has been paid in full. This, according to the terms of agreement with that government, would not be until 1951, while under the association's present policy appellant may have received his repayments before that time.
Per Rand and Kellock JJ.: The association was a corporate body with a nominal authorized capital, its effective capital being intended to be provided by the deductions under the contracts.
That effective capital was committed to it for certain purposes and impressed with certain contractual and equitable duties; but administrative control over the funds for the purposes of the association was a condition of and a restriction upon each contributor's interest in the association, which interest was a fractional share in the subsidiary capitalization representing for this purpose the whole of the assets, the amount not being fixed, but fluctuating from time to time as the association's needs might require. The dealing with such interests consistently with the co-operative scheme was designed from time to time to maintain ownership of them in the hands of persons who were active participants in the association's business, and it was desirable as a policy that the interest of a contributor who had ceased to market his product through the association be taken over for transfer to a person participating. The interest of a contributor was not that of a debt. There was no failure of the primary purposes to which the money was to be applied; and no suggested breach of contractual or equitable obligation would amount to such a failure or give rise to any right to rescind the original transaction by winding up or otherwise; the relief in any such case would be confined to such modes of compelling a corporation to adhere to the objects for which it was created as might be open to the interested members.
The contributions were made without express stipulation as to interest.
The fundamental object of the enterprise would require that any distribution of interest must be only out of net returns; such limitation lies initially on any provision for interest. Assuming, but not deciding, that the certificates were an obligation rather than a declaration of intention, yet the mode of exercising the power reserved therein, consistently with the matter in which it appears, must be taken to be informal and, since it is not required to be communicated to the contributor, of a purely internal character; at most the certificate sets a standard of return to which the association should adhere but on which decision is not intended to be brought within a formal rigidity; the essential fact is the recognition of an obligation to distribute grounded in the circunstances of the contributions. revocation need not be specific for each year or for a term of years. The circumstances CO-OPERATIVE-Concluded in which the resolution of September 17,
1931, was passed were such as to preclude a distribution of interest; the resolution was simply a declaration that, until otherwise decided, no payments would be made; and it was a proper exercise of the reserved power.
In all the circumstances, including the fact that appellant was merely one of a class with identical interests in the association, a declaration defining his interest should not be made.
Appeal from the judgment of the Court of Appeal for
Saskatchewan, [1946] 1 W.W.R. 97, dis- COSTS-Trust - Contract - Banks and
Banking-Account opened in bank in joint names of two persons, at instance of one of them, who, from her own moneys, made all deposits-Death of latter-Claim by survivor to moneys-Agreement, in bank form, executed by both persons under seal-Terms of agreement-Circumstances in question- Resulting trust in favour of deceased- Moneys held to belong to her estate-Costs.- A arranged with a bank to open a "joint account" in the names of herself and L (a sister of A), in which A (who kept the bank-book) made the initial and other deposits from her own moneys and on which she issued cheques. She died within three months after the account was opened.
Prior to A's death L made no deposits in, or cheques on, the account, nor did she know what deposits or withdrawals were made.
When the account was opened, A and L, as required by the bank, executed under seal a document, in the bank's standard form, addressed to the bank, by which they "for valuable consideration
(receipt whereof is hereby acknowledged)"
mutually agreed "jointly and each with the other or others of us" and also with the bank, "that all moneys now or which may be hereafter deposited to the credit of the said account, and all interest thereon, shall be and continue the joint property of the undersigned with right of survivorship", and each of them "in order effectually to constitute the said joint deposit account hereby assigns and transfers to all of the undersigned jointly and to the survivor or survivors" of them any and all moneys theretofore, then or thereafter deposited to the credit of the account together with all interest "to be the joint property of the undersigned and the property of the survivor or survivors of them"; each irrevocably authorized the bank to accept from time to time as a sufficient discharge for any sum or sums withdrawn any receipts, cheque, etc., "signed by any one or more of the undersigned without any further signature or consent of the other or others of the undersigned thereto"; they agreed "with each other and with the said Bank that the death of one or more of the undersigned
COSTS-Concluded shall not affect the right of the survivors or any one of them or of the sole survivor to withdraw all of the said moneys and. interest" from the bank and to give a valid. and effectual discharge or receipt therefor. Held: The moneys in the account at A's death belonged to her estate. The fact that all the deposits were made by A from her own money raised the presumption of a resulting trust in her favour, and neither the terms of the document nor other circumstances in evidence served to rebut the presumption or to cut down A's beneficial interest raised in equity under it. The mere fact that the document was under seal did not prevent it being shown that there was no consideration from L.
The docu-ment should, under the circumstances and its language, be construed as being for the protection of the bank and to facilitate its dealing with the account.
Judgment of the Court of Appeal for Ontario, [19461 O.R. 102, reversed, and judgment at trial, [1945] O.R. 652, restored.
This Court held that the costs throughout should be paid out of the fund in question. Per Kellock J.: The proper construction of the document fundamentally affected the rights of the parties and as to that there had been such difference of judicial opinion as to. make it plain that there was an importantand debatable legal issue: Boyce v. Wasbrough, [1922] 1 A.C. 425, at 435).
(Kerwin J. took the view that L should pay the costs in this Court and in the Court of Appeal; that the case was not one where an exception should be made to the general rule that a litigant should pay the costs of carrying an unsuccessful defence to appeal. He would not interfere with the direction at trial that costs of all parties be paid out of the estate, except to provide that they come out of the fund.
But he could not. treat the case as analogous to the construction of a will or as exhibiting any special circumstances warranting an infraction of the general rule). CRIMINAL LAW-Habeas corpus-Criminal law-Accused sentenced to one year'simprisonment-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
1015, 1078 and 1079 Cr. C......................
2.- Evidence-Charge to jury--General princilpes - Misdirection - Accomplice - Corroboration-Reading of extract of opinion given by a member of appellate court in a previous appeal-Substantive wrong or miscarriage of justice.-The presence of the accused in his apartment with the perpretators of a crime shortly after its commission, and the improbability of his evidence as to what occurred at that meeting, is capable of affording corroboration of the evidence of accomplices implicating him when considered in the light of all the evidence.
While the reading of an extract from the reasons of one of the Judges of the
Court of Appeal on an appeal by the accused from his conviction at a previous trial is to be deprecated, this did not, under the circumstances, result in a miscarriage of justice.
3.-Evidence-Admissibility of-Admissions made by accused as witness on preliminary hearing of charge against another- No objection made to questions as incriminating-No claim for protection under section
5 of the Canada, Evidence Act-Right of
Crown to use admissions on trial of accused- Canada Evidence Act, R.S.C. 1927, c. 59.- The appellant was convicted on charges of having used a noxious fluid and instruments to procure an abortion.
The facts of the case are the following: One Ford was charged with manslaughter in connection with the death of the woman in question.
The appellant appeared as a witness for the
Crown at the preliminary inquiry. In the course of his evidence, given without raising any objection nor claim for protection under section 5 of the Canada
Evidence Act, the appellant made certain admissions which the Crown later put in evidence against him at his own trial. The appellant appdaled to the Court of Appeal on the ground of improper admission in evidence of these admissions; but the conviction was affirmed by a majority of that
Court. Held: That the deposition of the appellant was properly admitted and the appeal should be dismissed.-If a person testifying does not claim the protection provided for by section 5 of the Canada
Evidence Act, the evidence so given may be used against him at his own subsequent trial.
KING............
4--Accused convicted of murder-New trial ordered by appellate court-Misdirection-Wrongful admission of statements by accused-Alleged conflict of decisions on latter ground-Accused still entitled to new trial on ground of misdirection-Section
1025, Cr. C.-The respondent, convicted of murder, appealed to the Court of Appeal, which, by an unanimous judgment, granted a new trial on two grounds: misdirection by the trial judge and statements by the respondent, while in custody, wrongly admitted in evidence.
On a petition by the Crown for leave to appeal to this Court under section 1025 Cr.
Crown had shown that the judgment to be appealed from, on the question of adminissibility of the alleged confessions, conflicted with the judgment of any other court of appeal, and this Court came to the conclusion that the Court of Appeal were wrong, the respondenit would still be entitled to a new trial on the ground of misdirection by the trial judge, on which point no conflict had been shown. Ouvrard v. Quebec Paper Box Co. Ltd. ([1945] S.C.R. 1) approved.
THE KING v. DICK ...... .... 2 11 5.-Indictment for attempted rape-Verdict of assault causing bodily harm-Appellate court substutiting conviction of common assault-Appeal to this Court by the Crown- Conviction to be changed to that of indecent assault-Conviction for "included" offences under section 951 Cr. C.-Sections 72,292 (c), 800, 1016 Cr. C.-A jury, upon an indictment for attempted rape, returned a verdict of assault upon a female, causing actual bodily harm.
Upon an appeal by the accused, the Court of Appeal held that an indictment for attempted rape did not include the offence for which he was found guilty, and the Court then substituted a conviction common assault. Crown appealed to this Court, asking that the substituted conviction be changed to that of indecent assault.
Held that the appeal should be dismissed. Per the Chief Justice and Kerwin, Kellock and Estey JJ.: offence of indecent assault may be included in a count of attempted rape under section 951 Cr. C.; but, in this case, it was not open to the appellate court, in view of the finding of the jury, to substitute a conviction of indecent assault. Per The Chief Justice and Estey JJ.:-The jury, in finding the accused not guilty as charged on the count of attempted rape, negatived the existence of the element of indecency and in effect found the accused not guilty of indecent assault. Therefore, the appellate court, so far as substituting one conviction for another under section 1016 (2) Cr. C., had no other course open to it than to substitute that of common assault. Per Kerwin and Kellock JJ.:-Section 1016 (2) Cr. C. requires it to appear to the Court of Appeal on the actual finding that the jury "must" have been satisfied of facts which proved the respondent guilty of indecent assault.TE KING 6.--Ofence of indecent assault-Judge sitting without a jury-Self-misdirection- Judge's report-No finding as to statements by complainant or accused-Acquittal based on evidence of a witness-Reversal of acquittal by court of appeal-New trial-Evidence- Witnesses-Credibility of-Application by court of appeal of section 1014(2) Cr. C.- "No substantial wrong or miscarriage of justice"-Reasonable doubt as to guilt of accused-Whether verdict be the same if proper self-direction by trial judge-Sections 1013(4), 1013(5) and 1014(2) Cr. C.- The appellant was charged with the offence of indecent assault upon C, alleged to have taken place at a dental clinic while C was under examination.
Complete discrepancy is disclosed between the testimony of the complainant and that of the accused.
A witness, B, working in the clinic, gave evidence that he passed the open door of the room upon two occasions, without stating the time and the intervals of time between them, and that he had noticed that the accused was then writing at a table.
magistrate acquitted accused, and, in his judgment, said that the case was one to be decided entirely on the credibility of the witnesses, that there should be a conviction or a dismissal of the charge whether the evidence of the complainant or that of the accused was accepted; and he added that, if the evidence of B was accepted, "there must be a dismissal of the charge," stating later that he was "bound in law to accept his evidence".
The Court of Appeal allowed the appeal of the Crown and directed that the accused be retried upon the same charge.
Upon an appeal by the accused to this Court.
that the judgment appealed from should be affirmed.
Per the Chief Justice and Kellock and Estey JJ.:-The evidence of B does not go so far as to contradict the evidence of the complainant nor corroborate the evidence of the accused upon the points that are material to the determination of the issue; and, even if B's evidence was believed, it was still necessary for the magistrate to consider all the evidence and the credibility and the weight to be given to the statements made by the respective witnesses. The magistrate has not considered the evidence upon any such basis, but rather has founded his decision upon a misdirection that if B's evidence was believed "there must be a dismissal."
Comments as to the issue of credibility of witnesses. Per Kerwin J.:-The proposition upon which the magistrate proceeded cannot be supported: he does not state whether he believed the evidence of the complainant or of the accused, and, in proceeding to discuss the evidence of B apart from that of the complainant and accused, he failed to perform the responsibility resting upon him. The appellant also contended that, under s. 1014(2) Cr. C., the
Court of Appeal should have dismissed the appeal by the Crown, as "no substantial wrong or miscarriage of justice has actually occurred".
Per the Chief Justice and
Kelock and Estey JJ.:-The appellate court, when there has been no decision arrived at upon a consideration of the evidence, particularly in a case where the evidence is so restricted to a few facts and where any adjudication must depend so largely upon the credibility and the weight to be given to the evidence of the respective parties, is unable to conclude that, under s. 1014(2) Cr. C., "no substantial wrong or miscarriage of justice has actually occurred."
Per Kerwin J. :-The appellant's claim should be dismissed.
Effect must be given to the will of Parliament in permitting appeals by the Crown from acquittals (s. 1013(4) Cr. C.) and to the provisions of s. 1014(2) Cr. C. by which, according to s. 1013(5) Cr. C., the powers of a court of appeal are, mutatis mutandis, to be similar to the powers given by the former. Applying those provisions to this case, the proper rule to be followed by the Court of Appeal was that the onus was on the Crown to satisfy the Court that the verdict would not necessarily have been the same if the magistrate had properly directed himself.
But, without in any way weakening the salutary rule that an accused is entitled to the benefit of a doubt as to his guilt, when a court of appeal has to apply the provisions of s. 1014(2) Cr. C., it must be concluded in the present case that the magistrate would not necessarily have acquitted the appellant if he had given himself the proper direction. Rex v. Covert (28 C.C.C. Rex v. Bourgeois (69 C.C.C. 120), Rex v. Probe (79 C.C.C. 289) and Rex v. O'Leary (80 C.C.C. 327) discussed.
v. ...... 7.- Trial-Evidence-Charge of murder- Alleged misdirection in trial judge's charge to jury-Provocation (Cr. Code, R.S.C. 1927, 36, 261; reduction of murder to manslaughter) of accused as matter for consideration with regard to his acting on the "wrongful act or insult"- Onus of proof as to defences of drunkenness, provocation.
of appellant the murder of his wife was affirmed by the Court of Appeal for Ontario, [1947] O.R. 332, Roach J. A. dissenting (holding there should be a new trial) on grounds, (1) that there was misdirection and non-direction in the trial judge's charge to the jury with reference to the defence of provocation, as a result of which the full theory of the defence with respect to provocation was not stated by him to the jury; (2) that he erred in his charge by telling the jury several times that the burden of proof lay upon the accused to satisfy them with respect to his defences of drunkenness and of provocation by a preponderance of evidence, and, though at other times in the charge he gave a correct statement of the law as to the onus of proof, yet it could not be concluded with certainty that the jury must have had a proper understanding of it. Appellant brought an appeal to this Court, based on those dissents, and also, by leave granted under s. 1025, Cr. Code, on the ground that the decision appealed from conflicted with that of the Court of Appeal for Saskatchewan in Rex v. Harms, 66 Can. Crim. Cas. 134 on the following point: assuming the facts permitted the jury to find that they were 'sufficient to deprive an ordinary person of the power of self-control" under s. 261 (2), Cr. Code, may the jury, in deciding whether or not the provocation did in fact produce a passion that led to the fatal act, take into account the actual condition of the accused in respect to drunkenness.
At the trial appellant gave evidence, which included evidence of words spoken between himself and his wife and, after a certain answer by his wife, a slap by her on his head, and that he did not remember what happened after that until he was trying to pick her up from the floor. Held: The conviction should be set aside and a new trial held.
Per The Chief Justice and Kerwin J.:
Both grounds of said dissent were rightly taken. As to the first ground: Under s. 261 (3), Cr. Code, it was for the jury to say "whether or not any particular wrongful act or insult amounts to provocation, and whether or not the person provoked was actually deprived of the power of selfcontrol by the provocation which he received". The jury were entitled to believe the whole, or part, or none, of appellant's testimony; if they accepted the whole, they were at least entitled to consider the wife's answer in connection with the slap; if they accepted only the evidence as to the conversation between appellant and his wife, they were entitled, in view of the word "insult" in s. 261, to consider whether that was sufficient to deprive an ordinary person of the power of selfcontrol; and these matters were not put to the jury. As to the second ground:
Reading in its entirety what the trial judge said to the jury, it is impossible to say that there was no error; the jury did not have such a clear and correct direction as the accused was entitled to; and under all the circumstances it could not be said that there was no substantial wrong or miscarriage of justice. The third ground of appeal should not have effect. Should a jury find that what was complained of was sufficient to deprive an ordinary person of the power of self-control, then, in deciding whether the accused was actually so deprived, they are not entitled to take into consideration any alleged drunkenness on the part of the accused. Rex. v. Harms
(supra) disapproved on this point. Per
Taschereau and Kellock JJ.: Appellant should succeed on the first ground of said dissent and also on the third ground of appeal. If the jury believed appellant's evidence, his wife's act of slapping him, which was wrongful in itself, was also against its verbal background (in a meaning which it was open to the jury to give to the words spoken), an "insult", within the meaning of that word in s. 261 (2).
It was
(under s. 261 (3)) for the jury to find (1)
as to the sufficiency of the particular wrongful act or insult to cause an ordinary person to be deprived of self-control, and
(2) whether appellant was thereby actually deprived of his self-control.
In finding on the latter question the jury should consider the effect on appellant's mind of the intoxication to which he was subject at the time, if they should find he was intoxicated to any degree. Rex v. Harms (supra)
approved.
As to the erroneous direction several times to the jury as to onus with respect to drunkenness and provocation,
99312-3 and the effect of this upon the jury in view of correct statements of the matter to the jury at other times:
As there is to be a new trial, it is sufficient to refer to Woolmington v. Director of Public Prosecutions, [1935] A.C. 462, at 481 and 482, where the trial judge's duty on such matter is clearly defined.
Per Estey J.: As to the first ground of said dissent: The conversation and the slap (if appellant's evidence thereon was believed by the jury) would, under all the circumstances, constitute evidence of a "wrongful act or insult" within the meaning of s. 261.
An insult may be effected by either words or acts or a combination of both.
Appellant's wife's words and her act were so closely associated that their meaning and effect could only be determined by considering them together and in relation to all the surrounding circumstances. It was a misdirection to charge the jury in such a way that their consideration was directed to the slap alone.
As to the third ground of appeal: If the jury found the "insult" of such a nature as to be "sufficient to deprive an ordinary person of the power of self-control", then, in considering whether the accused "acted upon it on the sudden and before there had been time for his passion to cool", the jury might consider any facts in evidence that might have influenced the accused to act or not to act upon it, including his consumption of liquor and its effect upon him.
(The view taken on this point in Rex v. Harms, supra, approved).
Whether the effect of the trial judge's repeated misdirection to the jury as to onus of proof was corrected in their minds by his correct statements of the law at other times in his charge, it was not necessary to determine, as a new trial must be had on other grounds above.
(The law as to burden of proof in criminal trials stated, with explanatory discussion thereon, and reference to the Woolmington case, supra, at p. 481).
..... 8.-Murder -Evidence- Crown witness declared adverse-Effect of cross-examination by Crown counsel on previous statement made police-Effect of cross-examination by Defence counsel on sketch attached to said statement-Whether admissible to test credibility, or evidence of content-Canada Evidence Act-Where witness declared adverse ss. 9 and 10 to read together to make applicable proviso to s. 10-But proviso does not make that evidence which would not otherwise be evidence-S. 1014 of the Criminal Code-Charge to jury-Misdirection- New Trial.-The appeal was from the judgment of the Court of Appeal for Manitoba (1947)
55 Man. R. 1, dismissing (Adamson J. and Donovan J. dissenting) appellant's appeal from his conviction on a charge of murder.
At the trial Helen Elizabeth Berard, a witness for the Crown, gave evidence contradictory to statements made previously by her to the police and at the inquest of the deceased.
On motion of
Crown counsel the trial judge declared her an adverse witness and Crown counsel thereupon cross-examined her on a previous statement, without making it an exhibit, which consisted of five pages written by the witness and an extra page on which a ppeared a sketch drawn by her showing the back of the head of a taxi driver to have a bald spot. (The taxi driver, with whose murder the accused was charged, did not have a bald spot.)
The five pages and the sketch were not fastened together at the time of their inception. Counsel for the accused in cross-examining the witness showed her the sketch, which at the preliminary inquiry had been attached to the sheets containing the writing, but which he at the trial removed and handed to the witness. The trial judge ruled that the entire statement including the sketch should go in as an exhibit (14) filed by the defence.
In charging the jury the trial judge said it was their duty keeping in mind his charge as to reasonable doubt, to establish if possible in which of the conflicting statements of the witness lay the germ of truth.
The accused did not testify nor were any witnesses called on his behalf.
Held: The judgment appealed from and the conviction should be set aside and a new trial directed.
Per the Chief Justice and Kerwin, Taschereau and Estey JJ.: The prior self-contradictory statements of Crown witness Helen
Elizabeth Berard, both sworn and unsworn, had no probative or evidential value as against the accused, and were not evidence of their content and could be used only to impeach the credit of the witness Berard, even though defence counsel cross-examined
-on them. The learned trial judge erred in going on the assumption that such prior self-contradictory statements were evidence
,of their content and inviting the jury to find "what germ of truth" there was in them. The said prior self-contradictory statements were not evidence of their content and the jury should have been so instructed, and not having been so instructed, it was not possible to say with confidence that without them the jury would have found a verdict of guilty. There was an error at the trial for the reasons specified above in connection with exhibit 14, and it could not be said that there was no substantial wrong or miscarriage of justice, within section 1014 of the Criminal Code.
The sketch and the written document being one document from the commencement, the effect of what Crown counsel had done was to make available the whole of it so that counsel for the accused became entitled to refer to the sketch, not mentioned by
Counsel for the Crown; while the action of counsel for the accused had the effect of making the writing, as well as the sketch, an exhibit; but neither one could serve as evidence against the accused except, in so far as the witness adopted them as part of her testimony, and did not take the exhibit out of the category of something merely going to the credibility of the witness and raise it to the status of something that as against the accused was to be taken as evidence of the truth contained in the writing.
Assuming that where a witness is declared adverse by the trial judge, sections 9 and 10 of the Canada Evidence Act should be read together so as to make applicable the last part of the proviso in subsection 1 of section 10:-"and that the judge, at any time during the trial may require the production of the writing for his inspection, and thereupon make such use of it for the purposes of the trial as he thinks fit," this does not mean that the trial judge may make that evidence which would not otherwise be evidence. Target Tillson Birch (1924) 18 Cr. A.R. 26 at 28, 29 and the trial judge erred in directing the jury that they could treat the written part of exhibit 14 as evidence of the truth of what is therein stated Rex v. Dibble (1908) 1 Cr. A.R. 155, A. White (1922) 17 Cr. A. R. 59, Rex v. Francis & Barber [1929] 3 D.L.R. 593. The decision in John Williams (1913) 8 Cr. A.
R.
distinguished.
There was nothing in the evidence given by the witness Berard at the preliminary inquiry as read into the record of the trial to show that she was a self-confessed perjurer. Douglas Walter Atkinson (1934) 24 Cr. A.R. 144 distinguished.
Rex v. Kadeshevitz [1934] O.R. 213; 61 C.C.C. 193 and Rex v. Ferguson 83 C.C.C. 23 at 25 referred to. Per Rand J.: The effect of counsel for the accused offering in evidence the sketch made by the witness Berard and crossexamining her thereon, was to introduce in evidence the written statement which accompanied the sketch and simply completed the evidence of the statement. It did not extend the statement's relevancy beyond credibility.
The trial judge erred in holding that counsel for the accused, by putting the sketch in evidence, must be taken to have introduced the statement itself as substantive evidence on behalf of the accused, and in charging the jury that the incriminating facts contained in the statement were to be treated as having general testimonial character from which, and the rest of the evidence, the jury was to extract the truth.
An error in such a vital matter cannot be held to have been unquestionably overborne by the rest of the case presented.
v. 531 9.- Speedy Trials of Indictable Offences by County Court Judge-Several Charges- Mixing Trials-Refusal to hear argument and deliver judgment at conclusion of each charge-Criminal Code, ss. 888, 889 and 857 (R).-The accused, appellants, were charged on a number of counts on which, following a preliminary hearing, they elected speedy trial under Part XVIII of the Criminal Code, R.S.C. 1927, c. 36. The crimes charged fell into four groups. Those in the first group arose out of the breaking and entering of premises in the township of York on the 23rd August 1945;
in the second, out of an armed robbery in the city of Hamilton on the 26th August
1945; in the third, out of an armed robbery in the city of Toronto on the 16th September 1945; and in the fourth, out of an armed robbery in the city of Stratford on the 12th
October 1945.
As to the first group, both the appellants and one Dobbie were jointly charged on counts 1, 2 and 3.
As to the second, the appellant Green alone was charged on count 7 and 8.
As to the third, the appellant Constantine and one Hiscox were jointly charged on counts 4 and 5, and as to the fourth, both appellants were charged on count 6.
The accused Dobbie did not appear for trial.
Counsel for the accused at the opening of the trial, requested that each charge be tried separately, but acceded to the suggestion of the
Court, that those offences which arose out of the same set of circumstances should be tried together.
The trial of the appellants on counts 1, 2 and 3 was then proceeded with, and when all the evidence had been heard, counsel for the accused, asked the
Court to hear argument and deliver judgment before proceeding to hear the evidence on any of the other counts. The trial judge refused and stated that he would hear the evidence on all the charges and then give counsel an opportunity to present argument on all of them before he would deliver judgment.
All the evidence was then heard on count 6, then on counts 7 and 8 and finally on counts 4 and 5.
At the conclusion of all the evidence on all the charges, the trial judge heard argument on all the charges and then reserved judgment.
Four days later he delivered judgment and found the appellants guilty on counts 1, 3 and 6 and not guilty on count 2; the appellant
Green guilty on counts 7 and 8; the appellant Constantine and the accused Hiscox not guilty on counts 4 and 5, and sentenced the appellants to 14 years imprisonment on each charge, sentences to be concurrent.
On appeal to the Court of Appeal for
Ontario, the convictions on counts 1 and 3 were quashed and a new trial directed, but the appeal against the conviction of the appellants on count 6, and that of the appellant Green on counts 7 and 8 were dismissed.
It was contended on appeal to the Appeal Court of Ontario, that the trial judge erred in mixing the trials by refusing to hear argument and deliver judgment at the conclusion of the evidence on each charge or group of charges, where two or more were tried together; and by reserving judgment until he had heard all the evidence on all the charges. This submission was not accepted by the appellate court, who followed its own previous decision in
Rex v. Bullock (1); that decision being in conflict with the decision of the Court of
Appeal of Nova Scotia in The Queen v.
McBerney (2), application to appeal to this
Court was granted under section 1025 of
99312-31
CRIMINAL LAW-Concluded the Criminal Code. Held, affirming the judgment of the Court of Appeal for Ontario, [1947] O.R. 264; [1947] O.W.N. 325; [1947] 3 D.L.R. 32, the appeal should be -dismissed. Nothing should detract from the salutary rule that everything should be done to avoid even the appearance of prejudice in the mind of the convicting judge against the prisoner arising out of facts developed in a later prosecution, and, therefore the ordinary practice should be followed that one case should be disposed of, so far as the verdict is concerned, before entering upon the consideration of another. Irrespective of s. 838 of the Criminal Code, by which the judge may adjourn the hearing, it should not be laid down (as a rule of law) that a judge must acquit or convict in all cases before proceeding with another charge against the same accused; or must announce his decision on one count against two accused before proceeding with the trial of one of them on other counts. There may be cases where it is necessary to do so because an accused might, on the subsequent trial, plead autre fois acquit or autre fois convict, and in no case may a judge convict a person on one charge by reason of evidence heard on the trial of another charge but, if it appears that these rules have not been infringed, then the convictions should not be set aside.
The joinder in a single charge sheet of several counts on which an accused has been committed for trial on a single information is permitted, The King v. Deur [1944] S.C.R. 435 and by section 857 (2) of the Criminal Code, which appears in Part XIX but which, by section 839, is made applicable to the formal statement and trial under Part XVIII, the Court, if it thinks it conducive to the ends of justice to do so, may direct that the accused shall be tried upon any one or more of such counts separately, subject to the proviso therein expressed.
v. THE
10.-Habeas corpus-Accused sentenced one year's imprisonment -Notice appeal 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 1015, 1078 and 1079 Cr.
CROWN-Workmen's
Negligence-Employee of the Crown (Dom.) awarded compensation, in accordance with provisions of Government Employees Compensation
(R.S.C. 1927,
30, as amended in
9),
Compensation Commission of Province Quebec for injuries suffered in Quebec- Right of employee further to claim damages against the Crown under s. 19(c) of Exchequer Court (R.S.C. 1927, c. S4)-Whether such right affected provisions CROWN-Continued
Workmen's Compensation of Quebec- Whether doctrine of election applies.-An employee of the Crown (Dom.) who has, nr the Government Employees Compensation Act (R.S.C. 1927, c. 30, as amended in 1931, c. 9), claimed and received compensation for personal injuries by accident arising out of and in the course of his employment is not thereby barred from pursuing a claim for damages against the
Crown for such injuries under s. 19(c) of the Exchequer Court Act (R.S.C. 1927, c. 34).
The said enactments are not repugnant to each other; they deal with two entirely different matters; s. 19(c) of the
Exchequer Court Act applies only where negligence is shown, while the Government
Employees Compensation applies whether or not negligence on anyone's part is proved; the right thereunder arises, not out of tort, but out of the workman's statutory contract. In the present case, the accident occurred in the province of Quebec, and, in accordance with provisions of said
Government Employees Compensation Act, compensation was awarded by the Workmen s Compensation Commission of Quebec.
of the Quebec Workmen's Compensation Act (R.S.Q. 1941, c. 160) enacts in effect that the only recourse of a workman against his employer by reason of accident to him by reason of or in the course of his work for such employer is for compensation under that Act.
Held- Said s. 15 of said
Quebec Act is not (nor is s. 13(1) of that
Act nor art. 1056 (a) of the Civil Code)
made applicable by the provisions of s.
3(1) of said Government Employees Compensation Act.
What was determined by the
Quebec Commission was the amount of compensation the right to which was given by said s. 3(1) of said Dominion Act, and not the resulting effects upon other rights against the Crown given by a different
Dominion Act.
Said s. 15 of the Quebec
Act is not incorporated in the Government
Employees Compensation Act.
(Per Kellock J.: While it is true that the "liability"
is to be determined under provincial law, vet once the case is brought within the class where liability exists, the reference to the provincial Act is exhausted and such a provision as that in said s. 15 is not made applicable).
Cases affirming the proposition that the law of the province in which an accident occurred is applicable in determining the Crown's liability under s. 19(c)
of the Exchequer Court Act have no application in determining whether a claim made and allowed under the Government
Employees Compensation Act deprives a claimant of his remedy under the Exchequer Court Act.
The two enactments deal with entirely different matters and separate and distinct rights are conferred.
An alternative contention by the Crown that, assuming that claims under both Acts existed, the claimant was put to his election, and, having claimed and received compensation under one Act, he had waived any right he might have under the other,
CROWN-Continued was rejected.
While there was but the one injury, the causes of action were different and the doctrine of election did not apply. THE v. BENDER............... 2.-Taxation-Business tax-City Act, Sask., R.S.S. 1940, 126, ss. 460, 461, 463-Assessment of company for business tax-Company claiming that business in question was that of the Crown, that company was agent of the Crown and not liable- Contract between company and Crown for manufacture of gun-carriages-Construction of contract with regard to question in issue.- Appellant company, under an agreement with the Crown (Dom.), manufactured gun-carriages for the Crown (for which purpose it was incorporated in 1941) on property in the city of Regina held by the Crown under lease from the owner thereof. The City of Regina (respondent) assessed appellant in 1944 for a business tax under The City Act, R.S.S. 1940, c. 126, which provides that (s. 460) taxes shall be levied upon lands, businesses, and special franchises, that (s. 463(1)) the assessor shall assess either the owner or the occupant of every parcel of land in the city, and every person who is engaged in business; and that (s. 461) the interest of the Crown in any property including property held by any person in trust for the Crown shall be exempt from taxation.
The said agreement contained, inter alia, terms under which the Crown provided to appellantthe premises, the machinery and equipment, material to be used, funds for operation, specifications, etc.; the title to all equipment and supplies, completed and partially completed articles, was at all times in the Crown, which assumed risks and liabilities incidental to ownership thereof, and appellant was not liable for loss or destruction of or damage to articles and supplies except such as might result from its negligence or wilful misconduct; appellant hired employees and had control over and was responsible for the operation of the plant, but was subject to provisions for consultation with, furnishing information to, and supervision by, the Government Minister and inspector; appellant, upon acceptance of each gun-carriage, received a fee, to cover management and supervisory services; on cancellation by the Crown of the contract, appellant should be paid its cost to the date of its giving up possession, including a fee in respect of work not completed, and might be given an allowance for exceptional hardship resulting from cancellation; appellant was to be indemnified against losses, costs, claims, etc., arising out of performance of the contract and not resulting from gross negligence on its part. Held, on consideration of all the terms of the agreement, the business was that of the Crown not of appellant, who was the agent of the Crown, and was not a "person who is engaged in business" within the meaning of s. 463(1) of said Act, and was not subject to the business tax in question; the case came CROWN-Concluded within the authority of City of Montreal v.
Montreal Locomotive Works Ltd. (P.C.),
[1946] 3 W.W.R. 748; [1947] 1 D.L.R. 161.
Judgment of the Court of A eal for
Saskatchewan,
W.W..
741, reversed.
REGINA....................
DAMAGES-Remoteness
Employee awarded compensation payable employer under Workmen's Compensation Act for injury in course of employment caused negligenbe of third party-Employer suing third party to recover amount of compensation.-C was a switchman in the employ of the National Harbours Board which is, by statute, an agent of the Crown in the right of the Dominion of Canada.
While riding, in performance of his duties, on the foot board on the front of an engine on the
Board's terminal railway in Vancouver,
British Columbia, he was injured by being struck by a gate negligently left by respondent's servants open and projecting on to said railway.
Under provisions of The
National Harbours Board Act (Dom. 1936,
42) and the Government Employees Compensation Ad (R.S.C. 1927, c. 30, and amendments), C, when so injured became entitled to receive compensation from the
Crown, to be determined under provisions of the latter Act, and in accordance with such provisions he was awarded sums by the Workmen's Compensation Board of
British Columbia.
For the sums so awarded, which were paid or set aside for payment by the Crown (through said
Compensation Board) to C, the Crown sued
Held: The Crown's action failed on the ground of remoteness; in law, its payment to C under its statutory obligation was not a loss suffered as a direct consequence of respondent's negligence.
Also the Crown could not recover in this case on the basis of an action per quod servitium amisit, as neither the action as a claim on that basis.
(Appeal from judgment in the Exchequer Court, [1946.]
Ex. C.R. 375, dismissed.)
THE KING V.
Ry. Co. ..........
E VIDENC E-Criminal law-Charge to jury - General principles - Misdirection
-Accomplice - Corroboration - Reading extract of opinion given a member appellate court in a previous appeal-Substantive wrong or miscarriage of justice. .
2.--Criminal
Admissibility of-Admissions made accused as witness on preliminary hearing of charge against another-No objections made to questions as incriminating-No claim for protection under section 5 of the Canada
Evidence Act-Right of Crown to use admissions on trial of accused-Canada Evidence
Act, R.S.C. 1927, 59..............
EVIDENCE-Continued
3.-Criminal Law-Offence of indecent assault-Judge sitting without a jury- Self-misdirection-Judge's report-No finding as to statements complainant accused-Acquittal based on evidence of a witness-Reversal of acquittal court appeal-New trial-Evidence-Witnesses- Credibility of-Application court appeal of section 1014(2) Cr. C.-"No substantial wrong or miscarriage of justice"- Reasonable doubt as to guilt of accused- Whether verdict the same if proper selfdirection trial judge-Sections 1013(4), 1013(5) and 1014(2) Cr. ........... See 6.
4.-Criminal Law-Trial - Evidence - Charge of murder-Alleged misdirection in trial judge's charge to jury-Provocation (Cr. Code, R.S.C. 1927, 261; reduction of murder to manslaughter)-"Insult"- Drunkeness of accused as matter for consideration with regard to his acting on the "wrongful act or insult"-Onus of proof as to defences of drunkeness, provocation ..... Criminal Law - Murder -Evidence -Crown witness declared adverse-Effect cross-examination
Crown counsel previous statement made police-Effect cross-examination Defence counsel sketch attached to said statement-Whether admissible to test credibility, or evidence of content-Canada Evidence Act-Where witness declared adverse ss. 9 and 10 to read together make applicable proviso to 10- But proviso does not make that evidence which would not otherwise evidence- S. 1014 of the Criminal Code-Charge to jury-Misdirection-New Trial ....... See 8.
Imputation payments-Joint and several creditors-Prescription-Interruption ' giving of continuing guarantee-Evidence-Onus-Arts. 227, 2280, 2289 C.C................ 7.-Evidence
Admissibility
Hearsay -Statements' made in course of duty deceased party-Surrounding circumstances when construing instrument-Duty to clearly established-Collateral matters. . See INcoME TAx.
8.-Trial-Evidence-Trial, with jury, actions for damages caused collision motor cars-Questions cross-examining counsel party as convictions on previous occasions under Highway Traffic Act-New trial-Right to jury.................
Negligence-Torts-Farm threshing machine-Boy about ten years helping owner-Main belt disconnected but shaft continued revolving-Boy injured while try- EVIDENCE-Concluded ing to stop it-Owner not liable-No duty owed by him-Imprudent act voluntarily committed by boy-Danger probable or possible-Degree of caution required from owner-Contingencies when a prudent man should foresee danger-Evidence-Burden of proof-Art. 1058 C.C................
EXECUTORS
TRUSTEES- Executor and Trustee's discretionary power to option and sell realty of Estate delegated by Power of Attorney-Agreement to option and sell executed by attorney-Whether agreement void or capable of ratification by
Trustee-Memorandum in Writing, Statute of Frauds R.S.O. 1937 c. 146, s. 4-Absolute assignment, Conveyancing and Law of
Property Act R.S.O. 1957 c. 152 s. 52.- Held: The appeal should be allowed with costs and the judgment of the trial judge restored.
Per the
Chief
Justice and
Taschereau and Estey JJ.:-The option here negotiated is not a contract "void" as being illegal in the strict sense. It does not therefore involve an act on the part of an attorney which cannot be ratified by the principal. The trustee had a full and complete knowledge of not only the existence but the terms and details of the option, was in possession of such before the acceptance of the option and personally instructed his solicitor from there on.
It was not a breach of trust on his part to grant a general power of attorney, and if the attorney has effected an agreement, as in this case, which is not void and which the trustee in his judgment deems in the interest of the trust estate, there would appear to be nothing in reason or principle why it should not be ratified and the estate enjoy the benefit thereof. The ratification of the giving of the option by the trustee related back to the date thereof and became his act as if he had given the same in person, and was therefore a sufficient memorandum signed by the party to be charged to satisfy the requirements of the Statute of Frauds.
Per Kerwin and Kellock JJ.:-Before the acceptance of the offer to sell, the executor took the position toward W. (the purchaser) that there was an offer which the latter could accept.
The letters signed by the executor's solicitor, taken with the documents to which they refer, satisfy the
Statute of Frauds.
"Absolute" is used in the Conveyancing and Law of Property
Act, R.S.O. 1937 c. 152 in contradistinction to "by way of charge only."
Hughes v.
Pump House Hotel Company (1902) 2
K.B. 190.
McLELLAN PROPERTIES LIMv. ANTOINE
.....
GUARANTEE-see 3.
FRAUDS, Statute of- See TRUSTEES.
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 1013,1015, 1078 and 1079 Cr. C. The petitioner pleaded guilty to three charges under section 436 Cr. C. and was sentenced to one year's imprisonment on each charge, to run concurrently and, in addition, he was fined $5,000 upon each charge. petitioner paid the fines and served the additional sentence of one year. Notices of appeal against the sentence were given by the Attorneys General for Canada and for Ontario, but the appeal was not heard until after the petitioner's release from imprisonment.
The appellate court ordered that the sentence be increased on each of the charges for a further term of one year to run concurrently.
The petitioner was re-arrested and incarcerated. petitioner then moved, before the Chief Justice of this Court, for the issue of a writ of habeas corpus, claiming that he was detained illegally as there was no longer jurisdiction in the appellate court to increase the sentence imposed on him in view of the provisions of sections 1078 and 1079 Cr. C.
Counsel for the petitioner contended that, the sentence having been served, this had "the like effect and consequences as a pardon under the great seal" and that the petitioner was "released from all further or other criminal proceedings for the same cause".
The application was dismissed by the Chief Justice of this Court and the applicant appealed to the Full Court from that decision.
Held, affirming the judgment of the Chief Justice of this Court (1946]) S.C.R. 532), that the appeal should be dismissed.
Sections 1078 and 1079 Cr. C. must be read in connection with the right of appeal against sentence conferred by section 1013 (c) Cr. C. and with the power of a court of appeal under section 1015 Cr. C. to consider the fitness of the sentence appealed against and increase the punishment imposed by that sentence within the limits of the punishment prescribed by law for the offence of which the offender has been convicted. So read, a judgment of a court of appeal, increasing the punishment imposed by a trial court, has the same force and effect as if the latter had imposed it (subsection 2 of section 1015 Cr. C.).
The "punishment endured", mentioned in section 1078 Cr. C., must refer to the punishment finally adjudged by the courts having jurisdiction. Comments on a statement contained in the opinion of the then Chief Justice of this Court (Sir Lyman P. Duff), speaking for the Court, in re Royal Prerogative of Mercy upon Deportation Proceedings ([1933] S.C.R. 269, at 274).
IN FRED 2.-Appeal - Jurisdiction - Habeas Corpus - Distribution of pamphlets in streets-Municipal by-law-Condemnation of HABEAS CORPUS-Concluded fine or imprisonment-"Provincial crimes"
are "criminal matters"-No distinction in case of a "municipal enactment"-Construction of the word "criminal" in section 86 of the Supreme Court Act.............
IN COME TA X-Revenue-Interest bonds of company held trustee of sinking fund to retire bonds-Income-Deductible expense-Redemption of bonds-Payment account of capital-Income War Tax Act, section 6 (1)
(b)-Whether "contingent"
qualifies "sinking fund" in that section- Admissibly
Hearsay
Statements made in course of duty deceased party-Surrounding circumstances when construing instrument-Duty clearly established-Collateral matters-Held: that, under its special terms, the contract, out which the moneys arose which were claimed to be income, was a sale to the lessee of the reversion plant and franchises of a telegraph undertaking and not a present sale of the undertaking involving a cancellation of the existing lease; that the supplementary arrangement, as between the vendor and the trustee for its bondholders to whom the bonds were issued in exchange for stock which they held as shareholders of the vendor, was that of a serial redemption; that the moneys assigned by the vendor to the trustee out which interest and redemption payments were made, apart from a special sum, the nature which was not in dispute, were the original continuing rents, therefore gross income for the purposes the Income Tax
Act. Per Kerwin and Rand JJ.:-The word "contingent" in the context of section
6 (1) (b) does not qualify the word "sinking fund" in that paragraph.
Three distinct accounts are therein specified and "contingent account" is the description of one of them. The appellant company tendered testimony of witnesses and sought through them to adduce in evidence statements made by the general manager of the
Dominion Telegraph Company, who died before the trial, relative to negotiations conducted by him on behalf of the Company in support of its contention that the rentals were considered as capital payments to recoup the Company for the loss of its capital assets.
Per Kellock J.:-The contemporaneous written evidence does not support such a contention, and it is doubtful if the oral evidence, assuming it is admissible at all, goes that far.
It is not necessary however, to decide that point as the documents in the case negative such a view of the actual settlement. While surrounding circumstances may be regarded for the purpose of construing an instrument, the true legal position arising upon the instrument so construed may not be ignored in favour of the supposed "substance."
Per Estey J.:-Statements made in the course of duty by a deceased party are admissible as an exception to the hearsay rule, but the duty must be clearly established and the statements must be made in the course of that duty and not in connection with collateral matters. Do- 2.- Revenue-Costs of drilling oil well- Income on production-Assessment-Deductions for development cost and depletion- Method of ascertaining allowances-Discretion of the Minister of National Revenue- Income War Tax Act, R.S.C. 1927, 97, s. (a).-The appellant company, in the an oil well in Alberta, which proved productive.
In its income tax return for 1934, a loss was shown 817.25 in the operations for that year.
However, an assessment was made on a taxable income of $8,584.25, which assessment was affirmed by the Minister National Revenue. appellant company contended that no proper or sufficient amount was allowed for depreciation in respect of costs of development, that is, the drilling of the well. amount allowed in the assessment by the taxing authorities was a proportionate amount fixed with reference to the value of production in the taxation year. The decision of the Minister was affirmed by the Exchequer
Court of Canada. On appeal to this Court, Held that the discretion of the Minister of National Revenue was not exercised in a manner contrary to the provisions the Income War Tax Act 5 (a)) nor can the method of ascertaining the allowances, used in this case, be termed unjust and unfair.
The appeal must be dismissed.
3.-Income War Tax Act, R.S.C. 1927, 97, and amendments-Question whether certain income is taxable in hands of execufors of estate-"Charitable institution" -Whether exemption applicable-"Income accruing to the credit of the taxpayer" 11(1))-"Income accumulating in trust for the benefit of unascertained persons" (s.
(2))-"Benefit"-"Person" (h))-"Income received an estate or trust and capitalized" (4) (a))-Adequacy of language to make charging provision operative.-The ain income received by the executors of a will was taxable in their hands under the Income War Tax Act (R.S.C. 1927, 97, and amendments).
In the will, the (called his "trustees") the residue his estate upon trust, to convert, invest, to carry out certain provisions, including gifts of annual payments for life, and to invest the surplus of the annual income as part the capital of the trust estate; he directed his trustees to appropriate sufficient of the trust estate to insure an annual income therefrom sufficient for payment of annuities outstanding and to hold the trust estate, including accumulations and additions by deaths of annuitants or otherwise, and to pay annually to certain nephews and nieces 60 per cent of the net annual income; and to invest the surplus of such annual income as part of the capital of the trust estate; and, by clause 36, upon the death of the last annuitant or the death of the testator's son's widow, whichever should last happen, the trustees were to hold the trust estate, with all accumulations and additions, upon trust to distribute 67 per cent thereof to certain individuals and to pay and convey the residue (33%) unto the Royal Trust Company "for the creation and establishment of a trust to be known as the Burns Memorial Trust", which it was to administer, and the net annual income therefrom it was to distribute annually in equal shares among The Father Lacombe
Home at Midnapore, the Branch of the
Salvation Army having its headquarters at
Calgary, and three other objects which, after the testator's death, were settled, by schemes approved by an order of court, to be: a fund to be administered by the City of
Calgary for the benefit of poor, indigent and neglected children; a fund to be administered for the benefit of widows and orphans of members of the Police Force (in one case)
and of the Fire Brigade (in the other case)
of Calgary.
The testator died in 1937.
Annuitants and said widow were alive in the years now in question. In each of the years 1938, 1939, 1940 and 1941, of the total net income of the estate, 60 per cent thereof was paid to said nephews and nieces and the remaining 40 per cent was transferred by book entry by the executors from the estate income account into the estate capital account; the executors made no segregation or allocation of said 40 per cent of the net income as between the individuals entitled ultimately to 67 per cent thereof under said clause 36 of the will and the
Royal Trust Company to which was to be paid and conveyed eventually the remaining 33 per cent thereof under said clause 36.
The question was whether said 33 per cent of 40 per cent of the net income of the estate in each of the years 1938, 1939, 1940 and 1941 was subject to income tax. Held
(varying the judgment of Cameron D.J. in the Exchequer Court, [1946] Ex. C.R. 229):
The income in question was taxable in the hands of the executors except two-fifths of the income (the proportion from which the
Father Lacombe Home and the Salvation
Army are ultimately to receive the income)
for the years 1938 and 1939.
(Rand and
Estey JJ. dissented in part, holding that no part of the income in question was taxable except the income (the whole of it) for the year 1941.)
Per the Chief Justice, Kerwin and Hudson JJ. (the majority of the court): Assuming that the five beneficiaries of the trust to be administered by the
Royal Trust Company are charitable institutions Within s. 4(e) of the Act, that does not give a right of exemption from taxation in respect to the income now in question, as that income is not the income of any of them; they are not to receive it at any time but only the income on the capitalized sums from said company; the income now in question is not income to them at all within the scope of the Act, particularly s. 3, and is not "income accruing to the credit of the taxpayer" within s. 11(1).
As to the Burns Memorial Trust, that is merely the name for a fund to be administered by said company; and said company is only a trustee; the income in question does not belong to it beneficially and it is not a charitable organization.
As to the Father Lacombe Home and the Salvation Army, the income in question is not "accumulating in trust for the benefit of unascertained persons" within s. 11(2) of the Act. Those conducting the work of said institutions are bodies corporate and politic, included in "person" as defined by s. 2(h) of the Act, and they are ascertained; they are not trustees in any sense; each organization uses its funds generally to help the poor and afflicted but the income in question is accumulating in trust for their benefit (to the extent of their shares) and not for those under their care.
As to the three other institutions which are to receive shares of the income from the Burns Memorial Trust, the income in question is "accumulating in trust for the benefit of unascertained persons" within said s. 11(2); those three institutions are merely trustees to apply the gifts for the benefit of other persons, who are "unascertained"; while the income in question is not income of such lastmentioned persons, it is income accumulating in trust for their benefit, since they are entitled to a share of the income thereon. As to the years 1940 and 1941, s. 11(4) (a), as enacted in 1940, c. 34, "income received by an estate or trust and capitalized shall be taxable in the hands of the executors *
* applies.
It is a true charging provision, not requiring the aid of s. 11(4)(c) enacted in 1941 (c. 18). which was added ex abundanti cautela. (Respondent did not contend for application of the former s. 11(4) as it stood in 1938 and 1939.) In the result, two-fifths of the income in question (the proportion from which the Father Lacombe Home and the Salvation Army are ultimately entitled to the interest thereon) for the years 1938 and 1939 (only) is free from taxation. Per Rand J. (dissenting in part): Under the direction in the will to accumulate and capitalize the portion of the net income, intended for the five charities and, at the time provided, to pay over the whole of the capital, including the added increments, to the trustees of the Burns Memorial Trust to hold in perpetuity and to distribute the annual income, the accumulations never belong to nor come into possession of the charities; they represent solely the growth of the capital which ultimately becomes principal from which the income benefits to the charities arise. Therefore the accumulations are not income of charitable institutions within s. 4(e) of the Act; nor are they "income accruing to the credit of the taxpayer" within s. 11(1).
And they are not "income accumulating in trust for the benefit of" unascertained persons, etc., within s. 11(2); the benefit contemplated by s. 11(2) is that the accumulation, when completed, passes in its entirety to the persons entitled; and while, in the present case, in a sense the accumulations are for the "benefit" of the charities in the future increased income from increased capital, the word cannot be extended to that indirect and remote advantage.
S. 11(4)
seems to be designed to meet precisely the present case, that of capitalization of accumulating income; but the charging language thereof, as applicable prior to
1941, was inadequate for operation of the provision; but the addition of s. 11(4) (c)
in 1941 made adequate the charging language and thus s. 11(4) was effective to make taxable in the hands of the executors so much of the income in question as was received by them in 1941.
Per Estey J.
(dissenting in part): Neither the Royal
Trust Company nor the "Burns Memorial
Trust" is a charitable institution within the meaning of s. 4(e) of the Act.
Moreover, even if the "Burns Memorial Trust" could be said to be an "institution", yet the income as income is never paid to or received by it; that trust is not created until the residue of the testator's estate is distributed in the future, when the fund will be paid as capital, not as income, to said company to create the "Burns Memorial Trust".
On the same basis, that as the income in question is never received as income by any of the five beneficiaries, it cannot be said that it is the income of them.
Nor is it "income accruing to the credit of the taxpayer" within s. 11(1); as income it is never paid or intended to be paid to the
Royal Trust Company, the "Burns Memorial Trust" or the five beneficiaries; it is year by year added to and made part of the testator's trust estate and at time of distribution it is to be paid to said company as capital to be used to create the fund from which the beneficiaries will receive the only income receivable by them. On similar considerations (and bearing in mind the definition of "income"
in s. 3(1)), the income in question is not "income accumulating in trust for the benefit of unascertained persons or of persons with contingent interests" within s. 11(2)
(Minister of
National Revenue v. Trusts and Guarantee
Co., [1940] A.C. 138, distinguished).
S. 11
(4) (a) of the Act ("Income received by an estate or trust and capitalized shall be taxable in the hands of the executors", etc.)
as enacted in 1940 lacked words essential to the imposition of a tax; but under said s. 11(4)(a) along with s. 11 (4) (c) (enacted in and applicable to 1941), the executors were liable for tax for 1941. HON. .................
4.-Company, with head and manufacturing plant in Ontario, selling in Manitoba-Assessed for income tax in Manitoba- Question whether, from profits assessed, company entitled to deduction of allowance for profits on its operations in Ontario- The Income Taxation Act, R.S.M. 1940, 209, s. 24-"Net profit or gain arising from the business" of the Company in Manitoba.-By 24 (1) of The Income Taxation Act, Man., R.S.M. 1940, c. 209, "the income liable to taxation under this Part of every person residing outside of Manitoba, who is carrying on business Manitoba,
*
*
* shall be the net profit or gain arising from the business of such person in Manitoba".
By s. 24 (2), the section applies to a joint stock company carrying on business in Manitoba and which has not its head office in Manitoba. Appellant, a joint stock company manufacturing and selling chewing gum, had its head office and manufacturing plant in Ontario. It had a warehouse and office in Manitoba.
Manufactured goods were shipped to the warehouse in Manitoba where they were stored and, on orders received and accepted there, were distributed to appellant's customers in Manitoba and certain other provinces.
The selection and the credit rating of the jobbers to whom the Manitoba might make sales, the book-keeping, collecting of accounts, and the general direction and control of the business were all dealt with exclusively at the head in Ontario.
Appellant was assessed for income tax for the years 1936, 1937, 1938 and 1939, under Manitoba statutory provisions not materially different from provisions now contained in said Act, on all the net profits from sales made from Manitoba claimed a deduction an allowance for profits on its operations in Ontario, as not being profits on gain arising from its business in Manitoba.
Held (Rand and Kellock JJ. dissenting):
Appellant was entitled to deduction an allowance for profit on the cost of manufacture in Ontario. (Judgment of the Court of Appeal Manitoba, 53 Man. R. 213, reversed, and judgment of Major
J., ibid, restored). Per the Chief Justice and Taschereau J.: The manufacturing profits were made Ontario and cannot be said to have arisen from appellant's business in Manitoba. The selling in Manitoba cannot have the effect of imparting, for taxing purposes Manitoba, profits earned in the initial operations in Ontario which made the goods ready for sale.
"Arising from the business Manitoba"
"what is attributable to the business Manitoba" or "profits derived from sources in Manitoba"; and the manufacturing profits made in Ontario are not attributable or so derived.
(Cases reviewed).
Per Estey J.: In the light of the authorities
(discussed) and the taxing power Manitoba, 24 must be construed that the tax imposed only on the net profit arising out of that portion the business which a nonresident carries on in Manitoba.
Activities and operations other than contracts for sale constitute a carrying on of business and produce or earn income, and therefore, while the income may be realized through the sale, it does not entirely arise from the sale.
In the present case, the manufacturing operations in Ontario are a carrying on business which contributes to appellant's income and the income should be apportioned accordingly.
(Other sections of the Act discussed as to their bearing on the construction of 24).
Per Rand J., dissenting: Construing 24 with other sections of the Act, the net profit or gain
"arising from" the business in Manitoba the entire profit; "arising from" is not intended to be the equivalent of "earned";
the legislative assumption is a business embracing the necessary elements to a profit and the whole profit realized upon the sale is the profit dealt with. Per
Kellock J., dissenting: Construing with other sections of the Act, the legislative intent is that in any case where there a carrying on of business within the Province by reason of the habitual making contracts of sale therein, 24 applies to make taxable the entire profit arising from such sales, without any apportionment,
& Vict. (Imp.), 34, and decision thereunder, discussed; those decisions are pertinent and the principle of them applicable). Wu. Co.
Lumbering business-Claim for allowance for exhaustion of timber limits-Discretion of the Minister
National Revenue-Income War Tax Act,
R.S.C. 1927, 97, s.5 (1) (a), as amended by
1947(Dom.) 2nd session, 84, s. 10.-The appellant company carries on a lumbering business in Alberta and, when making its income tax return for claimed an allowance for exhaustion of three timber limits, for which licences had been granted by the province.
The appellant's claim was disallowed by the Minister of National
Revenue; and the Exchequer Court of
Canada affirmed the Minister's decision.
Section (1) (a) of the Income War Tax
Act, as amended in 1940, provides that
"the Minister in determining the income derived from
*
*
* timber limits may make such an allowance for the exhaustion of the
*
*
* timber limits as he may deem just and fair
*
* *"; while, in the
Revised Statutes, paragraph (a), contained the words "shall make" instead of "may make."
Held: The appellant company has
INCOME TAX-Concluded no statutory right to the allowance claimed by it under section 5(1)(a).-That section gives the Minister a discretion not merely as to the amount but also as to whether any allowance for exhaustion should be made. Moreover, it is significant that Parliament, by the amendment in 1940, changed the imperative word "shall" as contained in the Revised Statutes to the permissive word "may".
Pioneer Laundry and Dry Cleaners Ltd. v. Minister of National Revenue A.C. 127, ref. Judgment of the Exchequeur Court of Canada Ex. C.R. 211) affirmed.
D. R. & V. INSURANCE- (Life)- Will -Joint application for policy father and son- Son as insured and father as beneficiary- Insured reserving right substitute beneficiary-Conditions of policy as to change beneficiary-Whether inserted for benefit beneficiary or company-Wife of insured substituted as beneficiary will of insured- Whether father or widow entitled to proceeds policy-Communication between parties to contract during lifetime of insured-Whether necessary before revocation of beneficiary by testamentary instrument-Articles 1029 and 2,91 C.C.-The appellant and his son, then partners, arranged to obtain from the company the son's life for $5,000. The policy was issued upon the joint application of both, the father being mentioned to be the beneficiary.
There was a proviso, the father assenting to it, that the son reserved to himself the right to operate at any time a substitution of beneficiary.
The policy contained conditions for a clause enumerating change of beneficiary; that it should be effected by notice in writing to the insurance company, with the deposit of the policy in its office, there to be endorsed by the company and that the change would operate only after such endorsement. In 1926, the son obtained two loans from the company on the security of the policy, and the appellant and his son for that purpose transferred to the company the policy, to be returned in reimbursement of the loans.
In 1940, the son died and left a will bequeathing to his wife all his movables and unmovables, etc., including his insurances.
The proceeds of the policy were claimed by the appellant as beneficiary under the policy and by the respondent under the will of her husband. The appellant contended that the substitution of beneficiary had not been effected within the terms of the clause above mentioned and also that there had been already a transfer of the policy to the company as security for the loans.
The Superior Court maintained the appellant's action claiming the amount of the policy; but the appellate court reversed that judgment, holding that the right of the insured to change the beneficiary could be exercised by will.
Held, affirming the judgment appealed from, Rand J. INSURANCE-Concluded dissenting, that the widow respondent was entitled to recover the proceeds of the policy. The conditions of the policy, which the appellant invoked in support of his contentions, were not inserted therein for his own benefit. The first clause, as to conditions for change of beneficiary, was clearly providing for the protection of the insurance company itself, which alone had the right to invoke it, and quoad the appellant, it was res inter alias acta. The second clause has no bearing upon the issue in this case: the transfer of the policy to the insurance company was restricted to the amount of the loans made by it to the insured.
surplus of the proceeds of the policy belonged to the respondent as beneficiary duly substituted by the will of the deceased and could no more be claimed by the appellant who had been legally revoked as beneficiary under the conditions of the policy.
Per Rand J. (dissenting)
:-The policy notwithstanding the power of revocation is a contract for the benefit of a third person within article 1029 C.C., and, in the absence of a rule either of the Code or the prior law, that article leaves untouched, if it does not indeed exclusively contemplate, powers of revocation provided by or inherent in the contract. In the present contract of insurance, as in any other obligation, underlying particular formalities that may be specified, there is assumed a fundamental communication between the parties.
As there is no suggestion that the contract here, either expressly or impliedly, contemplates a designation by a testamentary instrument, it must be concluded that a communication between the parties in the lifetime of the insured is a sine qua non of such a modification.
.....................
INTEREST-application
Interest
JURISDICTION-See 1, 3.
LABOUR-Labour Relations Board
Saskatchewan-status appeal ........
JURY-See 5, 6.
LANDLORD AND TENANT-Claim possession of land-Lease-Construction
Covenants-Lease for term certian with proviso for continuation from year to year- Whether lessee entitled perpetual renewal- Option to purchase contained in lease- Breach of covenant-Wartime Prices and
Trade Board Order 108, sections 16 and 24
(2)-Notice to quit invalid-No statement as to circumstance in respect of which notice given-Whether notice effective to terminate option-Whether terms of lease offending rule
LANDLORD AND TENANT-Continued against perpetuities-Perpetuities Act, 1940, P.E.I., c. 46.-A lease of certain lands for a term of ten years, dated August 1, 1926, "provided
*
* that at the expiration term this demise shall at the option of the lessee continue as a demise from year to year
* * *". The lease also granted the lessee the privilege, after the expiration of the tenyear term, of terminating the tenancy upon giving to the lessor notice in writing. The lease further prohibited assignments and sub-leases without leave, provided for re-entry by the lessor if rent in arrear for two years and also gave the tenant an option to purchase the premises "during the continuance of the (ten-year) term or the continuation thereof".
In January, 1943, the respondent gave to the appellant notice to quit; and, in August, 1944, an action was instituted for possession on the ground that after the expiration of the period of ten years the appellant became a tenant from year to year, which tenancy could be determined by a simple notice of termination. At a later stage of the action, after the appellant had pleaded Order 108 of the Wartime Prices and Trade Board, the respondent further contended that the appellant had, prior to the giving of the notice, committed a breach of the covenant not to assign without leave and that such a breach had the effect of removing the case from the operation of the Order. By section 16 (4), no notice to vacate may be given except if the "tenant is * * * breaking the conditions of his lease." section 24 (2), it is provided that "in case of default in payment
*
*
* nothing in this Order contained shall be deemed to preclude a landlord
*
*
* from giving any notice to vacate or demand for possession in accordance with the law of the province
*
*
* ".
Before trial, certain questions of law (19 M.P.R. 408) were by agreement between the parties submitted for adjudication; and Campbell C.J. (19 M.P.R. 429) determined these points of law in the main in favour of the respondent. This decision was affirmed by the appellate court. Held: The defendant's appeal to this Court should be allowed Per The Chief Justice, Taschereau and Kellock JJ. The respondent contended that, while by section 16 default in payment of rent gives a landlord a right to terminate the tenancy only at its expiration by a specific form of notice, yet by section 24 (2) the same act of default takes the tenancy out of the operation of the regulation altogether. Held: The regulations are to be construed as a whole; and a rational interpretation may be given to section 24 (2) by construing it to mean that if, by provincial law, a right is given to the landlord by reason of default in payment of rent, that right is preserved to him, and it is the same where there is "a breach of a covenant other than a covenant to pay rent". If by LANDLORD AND TENANT-Continued provincial law there is afforded to the landdord a right to give a notice to vacate or demand possession on that ground or to take proceedings for recovery of possession founded thereon, then he is not limited by the provisions of section 16 in the exercise of that right.-In the present case it is not pretended that there is available to the respondent by the law of the province any right to recover possession because of the alleged breach of covenant.
Accordingly, as the notice did not "state the circumstances in respect of which it was given", it did not comply with the provisions of section 16 and is nugatory.-Per The Chief
Justice, Taschereau and Kellock JJ.:- The respondent also contended tha.t, even if the notice to quit was ineffective to terminate the occupancy of the appellant, it none the less terminated the option to purchase because such option should be considered as entirely outside the scope of the regulations. Held: This contention cannot be accepted.
The lease provides that the lessee "shall at all times during the continuance of the term or the continuation thereof" have the right to purchase and, the notice to quit being ineffective, it follows that the tenancy continued and the option was exercisable according to its plain terms.
Per The Chief Justice, Taschereau and Kellock JJ.:-The respondent further contended that a tenancy from year to year, unless terminated by notice, is capable of going on indefinitely and that, consequently, as the period of time for the operation of the option was entirely indefinite, it was void. Held: The option to purchase was valid and did not offend the rule against perpetuities. "The person for the time being entitled to the property subject to the future limitation", namely the respondent as owner, may destroy the option by terminating the lease by due notice in accordance with the relevant law without "the concurrence of the individual interested under that limitation", namely the appellant or those claiming under him,- London and South Western Ry. Co. v. Gorman (20 Ch. D. 562, at 581). Per Rand J.:- The respondent has not brought himself within the Order for the reason that the notice to vacate did not, as required by sub. 5 of s. 16, state the reason for giving it.-Also, under section 24 (2), a breach of covenant ipso facto does not take the entire lease outside of the application of the
Order.
Otherwise there would not appear to be any purpose in providing sub. (4) (a)
of s. 16, unless it is said that in all cases a notice must be given; and then the same objection would arise in this case, that a proper notice had not been given.-Further the respondent's contention, that the option to purchase was void because it might be exercised beyond the period of the rule against perpetuities, should not be assented to.
A sufficient answer to such contention is that the option could be terminated by either party by the requisite
LANDLORD AND TENANT-Concluded notice.
As the lease was in force when the tender of the money was made, the lessee 'has brought himself within the terms of the option. Per Estey J.:-A lease would contain a right of perpetual renewal only if such an intention is clearly expressed; and the language used must import both renewal and perpetuity. But, in this case, the terms indicate a clear intention to create a tenancy from year to year. Also, its provisions show a similar intention that the lease shall continue until its termination rather than it should be renewed by the lessee in each year.-The notice to quit was invalid as a notice to vacate under the Order, because it did not contain the requirements of s. 16 (4).-Express language must be found in section 24 (2) so that the breach of a covenant not to assign, transfer or sublet would remove entirely the effect of the Order and restore provincial law for all purposes:
it ought not to be implied.-Therefore, the lease is valid and subsisting and, by its express terms, the option to purchase was outstanding.- An option contained in a lease, where either by its express terms or by operation of law the right remains in the lessor or owner of the property to terminate both the lease and option, does not involve an infraction of the provisions of the provincial Perpetuities Act.
LIMITATIONS. STATUTE OF- See 2.
MASTER AND SERVANT-Contract of employment -Wrongful dismissal- Principal of mitigation of damages-True test applicable-Commission on sales-Charge commission on sales tax-Whether honest mistake-Whether cause of dismissal-Contract "not to performed within year"- Performance possible within year-Section 4 of the B.C. Statute of Frauds-National Selective
Service
Civilian Regulations- Notice separation-Companies Act, R.S.B.C., 1936, 42, s. 98(1)(c).-In an action by the respondent for wrongful dismissal, the facts were that he was engaged by the appellant company as accountant and as salesman for its products, subject to the direction of the managing director, on terms of salary and commission. The respondent on many occasions had charged commissions on sales tax; and this was alleged inter alia as a cause for dismissal. Held: Rand J. dissenting, that there is no evidence to substantiate the appellant company's charge that the respondent was either fraudulent or incompetent.
Charging by the respondent of commissions on sales tax and some other items, even if the respondent himself did not claim that he was entitled to do so, was, particularly considering the extent of the business of the appellant, due to an honest mistake on his part. Per Rand J. (dissenting): Respondent was a highly placed employee with corresponding competence MASTER AND SERVANT-Continued and responsibility in whom complete trust in relation to the accounts, including his own remuneration, was placed; and once, in such circumstances, an objective act of misconduct appeared, an inference arose from it which should be met by the person shown to be at fault. This feature of the case has not been satisfactorily dealt with in the courts below.
A re-trial of the issue of misconduct in relation to the taking of commission on taxes and a re-assessment of damages should be had. In a claim at common law for damages for wrongful dismissal, when the right of the employer has been proved, the amount of damages is amenable to mitigation.
The true test is not whether it was reasonable for the employee to refrain from seeking employment, but whether the employee took all reasonable steps to mitigate the loss consequent on the breach.
In this case, the appellant company having broken the contract, the respondent was not entitled to consider it as still subsisting.
In the same claim for wrongful dismissal put upon the allegation that such dismissal did not comply with the National Selective Service
Civilian Regulations, the trial judge found that the appellant company did not comply with the regulations but that the respondent himself did not use due diligence in trying to get employment and that once he knew he could not secure a new position without a notice of separation, due diligence would involve the making of some attempt on his part to secure it. The respondent did not appeal from that judgment and the issue must, therefore, be taken as settled.
The contention of the appellant, that any agreement as to alterations in the written contract was one which was required to be in writing because of the respondent's covenant not to divulge trade secrets during the continuance of his employment and after its termination, and that the contract was thus within the British Columbia Statute of Frauds as one not performable within a year, cannot be upheld.
A contract is not one that is "not to be p erformed within the space of one year rom the making thereof", within the meaning of section 4 of the statute, if all the obligations of the employee under the contract could have been carried out by him within the term of one year from its date; since the respondent might have died within the year, such covenant was one which might have been performed within the year.
As a result, the respondent is entitled to damages, as there was no basis for his dismissal and should recover the sum of $14,500 awarded him by the trial judge, less such amount as he could have earned between the date of his dismissal and the date marking the end of a contract year
(had he obtained his notice of separation)
by securing employment in some other remunerative position that may have been opened to him; and a new trial should be
MASTER AND SERVANT-Concluded had, restricted to ascertaining such amount. -Rand J. dissenting.
Co. v. SNELLENBERG........... NEGLIGENCE-Workman killed electric wire while painting railway bridge- Defendant (railway) company held not responsible-Light and power system sold it years before date of accident-Questions as to ownership of wire and as its care, control, supervision or maintenance-Whether wire, even if sold, still remained in charge or care of defendant in relation deceased-Liability of company either under article 1053 or article 1054 C.C.-Jury trial-Whether interpretation of deed of sale question of law or question of fact.-The appellant's husband was engaged in painting a railway bridge, when, while preparing to move a plank upon which he had been sitting at a considerable height above the floor of the bridge, he came in contact with an electric wire carrying 2,200 volts and his death ensued immediately.
Action was brought by the appellant, personally and as tutrix to her minor children, for $50,000 damages against the respondent company. At the trial by a judge with a jury, judgment was entered for $18,064. The jury, to the question whether the death had been caused by a thing under the control or care of the respondent company, answered: "Yes, due to the Company, the electric wire", and later the jury, after having answered in the affirmative that the death had been caused by the "fault" of the respondent company, added that the latter was "liable for negligence and carelessness in keeping its wire too close to the bridge". The appellate court dismissed the action, holding that the respondent company did not own, or have under its care, the electric wire and that there was no fault on its part. Held, Rand J. and St. Jacques J. ad hoc dissenting, that the appeal should be dismissed.-Upon the evidence and the proper construction of a deed of sale by the respondent company of its light and power system to another electric company, not only was it established that the respondent company, at the time of the accident, was neither the owner of the wire nor had it under its care, control or supervision, but that, on the contrary, the ownership was proved to have been transferred to that other company.-The respondent company, having disposed of the ownership of wire and not having afterwards assumed or undertaken any supervision or control over it, cannot be held liable. The interpretation of the provisions of the deed of sale is a question of law to be decided by the courts and not a question of fact within the province of the jury. Rand J. expressing no opinion and St. Jacques J. ad hoc contra. Per Rand J. and St. Jacques J. ad hoc (dissenting):-The ownership of the wire must not necessarily be determined in this case: even if it was sold to another company, the right to maintain, in the sense of continuing it as it then was, remained in the respondent company.
The latter then must be looked upon as a party to the continuing existence of the wire on the bridge in the position in which it was at the time of the fatality; it was thus in charge or care of the wire in relation to the deceased and is brought within the liability of article 1054 C.C.-Whether the death was caused by the wire or whether the deceased himself was negligent, are questions of fact to be found by the jury under proper direction from the Court.
The directions given at the trial were not proper: they were to the effect that the respondent company was liable as a matter of law and this withdrew from the jury these essential questions of fact. There should be a new trial.
.................
2.-Crown - Workmen's compensation - Damages-Death through accident caused negligence of servant of the Crown (Dom.)
Action on behalf of dependents of deceased under Families' Compensation Act, R.S.B.C.
1986, 93, claiming damages against the
Crown-Exchequer Court Act, R.S.C. 1927,
84 (as amended), ss. 19(c), 50A-Claim and acceptance, prior the action, of compensation from the Workmen's Compensation
Board of British Columbia-Question as thereof on right of action or extent recovery - Workmen's Compensation Act,
R.S.B.C. 1986, 812, s. 11-Subrogation
Board-Board a co-suppliant in action.-The husband of S, while working in the course of his employment by one D, in the province of British Columbia, was the victim of an accident through which he died, which accident was caused by the negligence of a member of the Canadian military forces while acting within the scope of his duties or employment.
S was awarded compensation for herself and her infant son by the Workmen's Compensation
Board of British Columbia under the
Workmen's Compensation Act,
R.S.B.C.
1936, c. 312. She brought the present action (by petition of right) for the benefit of herself and her son under the Families'
Compensation Act, R.S.B.C. 1936, 93, claiming damages against the Crown by virtue of ss. 19 (c) and 50A of the Exchequer Court Act, R.S.C. 1927,
(as amended in 1938, c. 28, and 1943, c. 25).
of said Workmen's Compensation Act provides for cases where an accident happens in such circumstances as entitle the workman or his dependents "to an action against some person other than his employer", and subs. 3 thereof provides in effect that, if a workman or dependent claims compensation from said Board, the
Board shall be subrogated to the rights of the workman or dependent as against such other person.
In the present action the
Board was a co-suppliant, pleading its statutory right of subrogation, and also an equitable assignment in writing from S to it. Held: The claiming and acceptance by S of compensation under said Workmen's Compensation did not bar her right to recover, nor affect the amount recoverable, from the Crown in the present action.
S. 11(3) of that Act only affected rights as between the dependents and the The direction by the Exchequer Court that the amount it awarded as damages to S should be payable to the Board and the amount it awarded as damages to her son should be paid into court to abide the Court's order, with liberty to the Board to apply for a declaration as to its rights, was unobjectionable Judgment in the Exchequer Court, [1945] Ex. C.R. 250, affirmed.
TuE 3.-Person, while skating on roller skating rink, injured fall caused skate coming off-Claim for damages against operator rink-Skates rented from operator and attached his employee-Negligence alleged because straps not used in attaching skates-Extent of operator's duty-Sufficient that he acted in accord with general and approved practice.-Defendant operated a roller skating rink. Plaintiff rented from him, and was fitted by his employee with, a pair of roller skates.
After about an hour of skating, a skate came off, causing plaintiff to fall and be injured.
She sued defendant for damages.
She recovered judgment at trial, [1946] 2 W.W.R. 482, on the finding that the skate came off because of negligence in defendant's employee in not using a toe strap to attach it securely to her shoe. That judgment was affirmed by the Appellate Division, Alta., [1946] 3 W.W.R. 522. Defendant appealed to this Court. The evidence was (as found in this Court) that the skates kept and supplied by defendant were the product of a well known manufacturer, were standard in the roller skating amusement business, were regularly examined by competent employees of defendant, that the skate in question was examined immediately after the accident and found to be in perfect condition; that the usual method of attaching the skates to the shoes was adopted in this case; that the use of toe straps was not a standard method; defendant supplied toe straps on deposit of 10 cents, which was repaid on return of the straps, and a notice to that effect was above defendant's ticket window. Defendant's appeal should be allowed and the action dismissed. Per the Chief Justice and Kerwin and Estey JJ.: Even if by the use of toe straps the skates might (according to certain evidence) have been made safer for skating, it was sufficient for defendant to show, as was done, "that he had acted in accord with general and approved practice"
(Vancouver General Hospital v. McDaniel, L.T. 56, at 57-58).
(Per Estey J.: In the absence of express provisions in the contract of hiring, the law implied an obligation on defendant to provide skates that at the time of hiring were reasonably safe for the purpose of skating.
The fact that defendant made toe straps available did not establish that they were necessary in order to ensure reasonable safety in skating where the shoes, as here, were well adapted for that purpose, and, therefore, did not establish an obligation on defendant to supply them to all patrons; to require toe straps addition to standard equipment would impose on defendant a greater obligation a higher standard of care than that which contract of hiring imposed).
Rand and Kellock JJ.: In furnishing and fastening the skates, defendant did not undertake that under no circumstances would they become loose or come off; the obligation assumed, at its highest, did not go beyond furnishing and attacking skates which could be used with reasonable safety if ordinary and usual skill and care were exercised by the skater.
There was no evidence that, either in the general experience of roller skating or in the opinion persons who had closely observed its practice, the absence of toe straps rendered the skates less than reasonably safe for use.
Further, assuming a duty to have toe straps used or offered for use, there was no evidence that defendant was responsible for their absence; the question was, not whether plaintiff knew that they could be obtained, but rather, did defendant take reasonable steps to bring the fact of their availability to his patrons' notice; and, considering the necessary mode of carrying on such a business, he had done so.
Moreover, there was nothing to make it appear that plaintiff, under any circumstances, would have used toe straps; and the finding at trial in effect required defendant to include them as part of the primary equipment; but the only evidence bearing on that was against that conclusion; the skates were complete without toe straps, for which in fact they were not designed, and the wide general use of the skates without them was, in the record of this case, convincing evidence that they were not necessary to any safety in use which a patron had a right to look for.
R oE...............................
4.- Injury to patron of betting establishment-Fall from second storey when trying to escape police raid-No stairway leading from doorway-Liability of occupier premises-Question of patron being invitee not pertinent issue under circumstances- Patron bound use reasonable care for own safety.-The appellant was on the second floor of a building where "club rooms"
were operated as a betting establishment.
Sound of a buzzer indicated a police raid.
The appellant became excited, ran to a screen door which was fastened by a hook, unhooked it, shoved it open and stepped out; and, since there was no stairway, he fell and suffered serious injuries. appellant's action for damages was maintained by the trial judge; but the Court of Appeal held that the appellant could not recover, on the ground that he was on the premises, not lawfully, but for a criminal purpose, and that respondents owed him no duty that a court of justice would recognize to provide against such an emergency. Upon appeal to this Court, Held that the judgment the Court of Appeal should be affirmed but on different grounds than those upon which that Court proceeded.- Assuming that the appellant was an invitee upon the premises of the respondents and that a duty was owed to him by them, it was incumbent upon the appellant to use reasonable care for his own safety. duty on the part the respondents towards the appellant cannot be extended to include responsibility, in the circumstances surrounding the manner in which the appellant used the premises in making his exit. Theatre-Person paying for its privileges-Dangerous premises-Unlocked door leading basement stairway-Injury resulting from fall-Unusual danger created owner-Reasonable care prevent injury- Subsequent negligence of injured person- Whether ultimate negligence-Relationship arising out of contract between owner and patron-Jury's findings-Construction of- Apportionment of liability.-The female appellant, after passing through a brightly lighted lobby, entered the foyer of the respondent's theatre, intending to go to the ladies' room.
In the foyer, a narrow corridor, the lights were dimmed, and, proceeding along the wall at her left, she opened an unlocked door, which she thought was leading to the waiting room, but which led to a stairway into the basement. The appellant fell down the stairs and was injured.
In an action for damages, the jury found that the injuries were caused by an unusual danger consisting in the unlocked door and that the respondent failed to use reasonable care to prevent injury from that danger because of an inadequate sign on the door and of lack of "facilities to fasten door in a safe and secure manner." jury further found that the appellant did not use reasonable care for her own safety in that she did not use proper caution proceeding after opening the door. The degree contribution to the accident was found to be 90% against the respondent and against the appellant.
Judgment was directed accordingly by the trial judge. The appellate court reversed that judgment and dismissed the action, holding that the finding against the appellant established a case of ultimate negligence by reason which she must be taken to be the author her own injuries.
Held that the appeal to this Court should be allowed and the judgment at the trial be restored. doctrine of ultimate negligence does not apply under the circumstances of this case.-There was evidence upon which the finding of the jury against the respondent could have been made. Per The Chief
Justice and Kerwin, Rand and Estey JJ.:- The danger in the door was not because it was unlocked, but because it opened in effect into a pit; and the finding of negligence against the respondent is a finding that the conditions in the theatre were such as to invite a patron using ordinary care to mistake the door into the basement for that into the ladies' room and to draw him into the vortex of danger behind the door.. The finding of negligence on the part of the appellant cannot be taken to supersede the negligence on the part of the respondent.
Per The Chief Justice and Kerwin, Rand and Estey JJ.:-The facts in this case raised more than the ordinary question of the duty owed by a proprietor of premises towards an invitee.-The appellant paid a consideration for the privileges of the theatre, including that of making use of the ladies' room. There was a contractual relation between her and the theatre management that exercising prudence herself she might enjoy those privileges without risk of danger so far as reasonable care could make the premises safe.
Per Kellock
J.:-The finding of negligence against the respondent was that the thing, which was the effective cause of the appellant getting beyond the door at all, was the invitation created by the surroundings.
The force of that invitation, when acted on as it was, continued to operate up to the point of injury although aided by the appellant's own negligence.
These two negligences cannot be separated so as to conclude that the negligence of the appellant was of such a character that that of the respondent became mere narrative.
Judgment of the
Court of Appeal ([1946] O.R. 454) reversed.
Greisman v. Gillingham S.C.R. 375)
applied.
Francis v. Cockrell (L.R. Q.B.
approved. v. B F
6.-Torts-Farm thrashing machine-Boy about ten years helping owner-Main disconnected but shaft continued revolving- Boy injured while trying to stop it-Owner not liable-No duty owed him-Imprudent act voluntarily committed boy- Danger probable or possible-Degree caution required from owner-Contingencies when a prudent man should foresee danger- Evidence-Burden of proof-Art. 1058 C.C.
-M.C., a boy about ten years of age, was injured in the barn of the appellant, a farmer. The boy, already acquainted with that kind of operations, went to the appellant's farm to help him with his thrashing.
He had not been invited but was not prevented doing so.
He was asked to hold the bags to receive the grain, which was not a dangerous job. At the end of the day's work, the appellant removed the main belt running from the tractor to
NEGLIGENCE-Concluded the thresher and two smaller belts in the machine itself; but the shaft of the drum continued to revolve under its own momentum. The boy, having tried without success to stop it with his hands, picked up one of the small belts and pressed it to the end of the shaft to slow it down, although called to by an employee to leave it alone. A moment later, the belt seemed to have been seized by the shaft and whirled around, and the boy's arm caught up in it was badly broken above the wrist. An action for damages brought by the respondent, in his quality of tutor to his minor son, was dismissed by the trial judge; but that judgment was reversed by a majority of the appellate court. Held: The appeal should be allowed and the judgment of the trial judge restored. Per Kerwin and Kellock JJ.:-Under all the circumstances of this case, there was not any duty owing by the appellant to the injured boy.
More particularly the boy was not left alone at the time of the accident but there were three other men present who tried to stop him.-The accident happened in such a short time that there was no obligation on the appellant to have previously warned the boy or to have sent him away from the premises. Per Taschereau, Rand,
Kellock
Estey JJ.:-The respondent's claim must be decided under the terms of article 1053 C.C. and the burden of proof was upon him. The machine was not by itself dangerous. boy was injured not on account of the nature of the work he was doing, but because, he voluntarily committed an imprudent act which the appellant was not at fault in not foreseeing.
Per Taschereau, Kellock and Estey JJ.:-The fact that it was possible that an accident might occur is not the criterion which should be used to determine whether there has been neghgence or not. The law does not require a prudent man to foresee everything possible that might happen. Caution must be exercised against a danger if such danger is sufficiently probable so that it would be included in the category of contingencies normally to be foreseen.
To require more and contend that a prudent man must foresee any possibility, however vague it may be, would render impossible any practical activity.
NOVATION-see CoNTRAcT 3.
PRESCRIPTION-See 3; RAILWAY-Negligence-Motor vehicle- Collision at double track crossing-One train just passed on one track-Second train travelling in opposite direction-Engine ringing, and wig-wag light and operating -Failure engineer sound whistle- Municipal by-law prohibiting train whistle at RAILWAY-Continued crossings unless necessary to prevent accident
-Railway Act, R.S.C. 1927, c. 170, s. 808.- The driver of a motor vehicle, following another motor vehicle across the tracks at a double track level railway crossing, after a train had just passed on one of the tracks, was struck by an oncoming train travelling on the far track in the opposite direction.
There was an automatic flagman or wigwag which was in operation at all relevant times, with its bell ringing and its light burning. The whistle of the engine was not sounded but its bell was being rung continuously.-A municipal by-law, approved by the Board of Transport Commissioners under the provisions of section
308 of the Railway Act, prohibited the sounding of train whistles within the city limits unless there was reasonable cause for belief that it was necessary in order to prevent an accident.-The driver of the motor vehicle and two of the passengers sued the railway company for damages.
The finding of the jury was that, "in view of the conditions prevailing at the crossing," the engineer was negligent in failing to sound the engine whistle, presumably on the ground that the first train might have caused noise sufficient to drown out the signal bell, that it might have obscured the wig-wag and that there was likelihood that motor vehicles would be waiting to cross.
The trial judge maintained the action.
The appellate court affirmed that judgment as to the two passengers now respondents, but held that the .driver of the motor vehicle could not recover. Held, Hudson J.
dissenting, that the appeal should be allowed and the respondent's action dis- There was no evidence upon which the fury could base their finding that the engineer had reasonable cause for belief, at the eighty rods mark before reaching the level crossing (s. 308 Railway
Act), that it was necessary for him to sound the engine whistle in order to avoid an accident.
The engineer, and the trial judge so found, could not reasonably have foreseen the accident, the train was proceeding in the normal cause of its operation, the engine bell was ringing, the wig-wag was operating and its bell was ringing.
Under these circumstances, a jury properly instructed could not have found the appellant railway guilty of any negligence.
Kerwin and Estey JJ.:-The municipal by-law would fail of its evident purpose, if it were to be held that when two trains are approaching each other at or near a level crossing the engineer of each must always sound the whistle eighty rods from the crossing.
Circumstances, however, might arise where it would be incumbent at common law upon the engineer to sound the whistle, but no such case has been made out in the present instance. Per Taschereau and Kellock JJ.:-The obligation to sound the whistle imposed by section 308 of the Railway Act, by itself, is an absolute obligation independent of the particular
99312-4
RAILWAY-Concluded circumstances which may in fact exist. The municipal by-law substitutes for that an obligation not to sound the whistle at all unless from the particular circumstances observable at the time when the statutory warning should otherwise be given a prudent man would consider that in order to prevent an accident the prohibition should be disregarded and the warning given. Neither the statute nor the by-law have anything to do with any duty at common law which may rest upon the appellant at all points upon its railway.
......................
2.-Limitation of action-Lease of railway siding with reservation of user-Lease or licence - Adverse possession - Statute Limitations-Owner conveying siding-Whether "lessee"
acquired prescriptive title- Easement by prescription.-Respondent's predecessors in title in 1918 demised to appellant certain lands on which there was a railway siding, for the term of one year, reserving to the lessors the use of the siding in common with the lessees.
continued to use the siding in common with respondent after the expiration of the term but rent was paid during the term only. In 1930 the respondent acquired title to the said lands and in 1945 brought action for a declaration of title free from any right or interest on the part of appellant. Appellant contended that, by reason of the lease, the exclusive right occupation of the land upon which the siding was situate became vested in the appellant during the term of the demise and that, because of the continued use the siding by appellant, the title of the respondent had become extinguished by reason of the Statute of Limitations. The judgment the trial judge favour of the respondent was affirmed the appellate court. Held, affirming the judgment appealed from (19 M.P.R. 22), that the appellant had not established any prescriptive title under the Statute Limitations. The appellant was not, since the expiration of the term, in exclusive possession nor were the respondent and its predecessors in title during that period ever out of possession.
Ry. Co. v. Sourn Ry. Co........................
3.- Statutary law-Telegraphs and telephones-Wire crossing-Future change of location-Highways located neither in cities or towns-Statutary powers of company- Jurisdiction of Board-Terms, conditions and limitations-Railway Act, R.S.C., 1927, c. 170, s. 373, ss. 2, 3, 4, 5, 6, 7......... REVENUE-Income-Lumbering business -Claim for allowance for exhaustion of timber limits-Discretion of the Minister of National Revenue-Income War Tax Act, R.S.C. 1927, c. 97, 8. 5(1)(a), as amended REVENUE-Concluded
1940 (Dom.) 2nd session, 84,
The appellant company carries on a lumbering business in Alberta and, when making its income tax return for 1941, claimed an allowance for exhaustion of three timber limits, for which licences had been granted by the province. The appellant's claim was disallowed by the Minister of National
Revenue; and the Exchequer Court of
Canada affirmed the Minister's decision.
Section 5 (1) (a) of the Income War Tax
Act, as amended in 1940, provides that
"the Minister in determining the income derived from
*
*
* timber limits may make such an allowance for the exhaustion of the
*
*
* timber limits as he may deem just and fair
*
*
*"; while, in the
Revised Statutes, paragraph (a), contained the words "shall make" instead of "may make."
Held: The appellant company has no statutory right to the allowance claimed by it under section 5(1) (a).-That section gives the Minister a discretion not merely as to the amount but also as to whether any allowance for exhaustion should be made.
Moreover, it is significant that Parliament, by the amendment in 1940, changed the imperative word "shall" as contained in the Revised Statutes to the permissive word "may".
Pioneer Laundry and Dry
Cleaners Ltd. v.
Minister of National
Revenue [1940] A.C. 127, ref.
D. R.
Co.
SUBROGATION-see 2.
STATUTE-Application-"Interest Act"- Mortgage-Agreed bonus to mortgagee- Interest on loan paid in advance-Blended payment of principal money, interest and bonus-Bonus and interest deducted from amount of principal money stated in deed- Evidence that parties agreed to same before signing of deed-Action to recover amounts bonus and interest-Interest Act, R.S.C.
1927, 102, sections 6 and 9.-Section the Interest Act (R.S.C. 1927, c. 102) provides that "whenever any principal money or interest secured by mortgage of real estate is, by the same, made payable on the sinking fund plan, or on any plan under which the payments of principal money and interest are blended
* * no interest whatever shall be recoverable
*
*
* unless the mortgage contains a statement showing the amount of such principal money and the rate of interest chargeable thereon, calculated yearly or half-yearly, not in advance."
The respondent agreed to loan to the plaintiff corporation, on mortgage of real estate, $15,000 and later $16,000.
These sums were made payable as principal without interest until maturity by monthly instalments of $300 for 23 months and the balance at the end of the 24th.
It appeared from the evidence that the amounts advanced were actually
$12,500 and 813,500, there having been a deduction of $5,000 composed of $1,500
STATUTE-Continued interest and $1,000 bonus for each loan. An admission of those facts was contained in the respondent's plea to the action. The two loans were fully repaid at the time the properties securing them were sold. Subsequently, plaintiff corporation brought an action under section 9 of the Interest Act, which was continued by the trustee in bankruptcy, to recover the above sum of $5,000, on the ground that it had been paid in contravention of section 6 of the Act, the appellant contending that the payments of principal money and interest and bonus were blended and that the deeds of mortgage did not contain a statement of such principal sum, and the rate of interest chargeable thereon.
The Superior Court maintained the action, but the appellate court, by a majority, reversed that judgment. On appeal to this Court, Held that the appellant could not recover. The agreement for the bonus and the interest was legal and enforceable.
Per The Chief Justice and Taschereau J.:-The principal money, or the interest or the bonus is not, upon the terms of the deeds, made payable pursuant to any of the methods mentioned in the statute. Therefore, there is no illegality if, before the mortgage has been given birth to, the parties have agreed to deduct or to pay in advance the interest and the bonus, and have stipulated in the deed of mortgage itself that no interest would be payable.
Per Kerwin J.:-As to the deduction of the bonus, the case is concluded against the appellant by the decision in the Meagher's case S.C.R. 378).
As to the deduction of the interest, its prepayment or retention, by a prior agreement of the parties, does not bring the case within the operation of section 6.
The prime requisite for its operation is that, by the terms of the mortgage itself, the principal or interest secured thereby must be payable in one of the methods mentioned.
In the present case, they are not so made payable and the result is that there is nothing to prevent the parties to a loan transaction agreeing, prior to the execution of the mortgage, to the deduction or payment in advance of interest for the term of the mortgage and then to provide by the mortgage document that there shall be no interest until default. The effect of such a collateral agreement is that the prepaid interest ceases to be such and becomes part of the principal advanced. Per Rand J.:-Section 6 of the Interest Act is not designed to protect a borrower against agreeing to pay any particular rate or amount of interest.
Its effect is that where repayment under a mortgage involves, in the forms mentioned, an increment of interest, it shall be made clear in the mortgage what the amount of the principal and the rate of interest are. Where the transaction is not either on its face or by the real intention of the parties within the section and the borrower is fully aware both of the actual amount of interest STATUTE-Continued which he is paying, and the rate and principal with reference to which that calculation is made, the purpose of the section suffers no infringement.
If, on the other hand, by that intention, the payments provided do involve interest within the section, then the form of words used would not ward off the penalties.
Per Kellock
J.:-The present case, upon the evidence, is governed by the principle of Meagher's case ([1930]
S.C.R. 378).
There is no distinction to be drawn between the bonus and the interest paid in advance.
Both became debts under the agreement for the loan and neither were at any time secured by the mortgage deed nor included in any payment called for therein. London Loan
& Savings Co. of Canada v. Meagher
([1930] S.C.R. 378) followed.
Canadian
Mortgage Investment Co. v. Cameron
Can. S.C.R. 409) discussed. Singer v.
Goldhar (55 O.L.R. 267) overruled by
Meagher's case.
AscoNi
Cor- VocIsANo. 358
2.-Statute law-Juror-Qualification
-Liability to as-Age limits-Section 8 of The Jury Act, R.S.A. 1922, .74 (now
R.S.A. 1942, 180).
Section 3 of The
Jury Act of Alberta provides that "*
*
* any inhabitant of the province of Alberta over twenty-five and under sixty years of age
*
*
* shall be liable to serve as a juror in all civil and criminal cases tried by a jury
*
*
*".
Held that persons outside of the age limits prescribed in section 3 are neither qualified nor liable to serve as jurors.-The Jury Act, in that respect, must be taken to be a code intended to embody the law of the constitution of the jury and section 3 by a necessary implication prescribes the qualification of jurors in substitution for that previously existing. Mulcahy v. The Queen (L.R. 3 H.L. 306) dist.
3.-Statutory law-Telegraphs and telephones-Wire crossing-Future change location-Highways located neither in cities nor towns-Statutory powers of company- Jurisdiction of Board-Terms, conditions and limitations-Railway Act, R.S.C., 1927 c. 170, 378, ss. 2, 8, 4, 5, 6, 7.-The appellant company, by section 3 of its Incorporation Act, was given the power to
"construct, erect and maintain its lines along the sides of and across or under any public highway
*
* *"-Subsection of section 373 of The Railway Act enacts that
"no telegraph or telephone line be by any company upon, along or across any highway
*
*
* without the legal consent of the municipality having jurisdiction over such highway
*
* and section
(3) provides that, if such consent is not granted, the company may apply to the
Board. The Board of Transport Commis- STATUTE-Continued sioners, by Order made in July, 1945, authorized the appellant company construct its lines of telephone (buried cable) under certain highways in the respondent corporation; and the Board, at the same time, directed that questions relating to terms and conditions be reserved further consideration. In October, 1945, the Board imposed certain terms and conditions as set out in the Order and, more particularly, directed that, in case of disagreement between the Company and the Municipality, following a request by the latter to change in the future the location of the works, the Board may order the company to make such change, each to pay such part of the costs as the Board may direct. Held, Hudson J. dissenting, that the Board had no power to make the last mentioned order. Held, also, that, upon the proper construction of the language of subsection (2) of section 373, which refers to construction of telegraph or telephone lines "upon, along or across any highway *
* the proposed construction the lines of the Company under the County highways does not fall within that subsection, as the word "across"
does not include "under".
Hudson and Rand JJ. (dissenting)
. Per The Chief Justice and Kerwin and Taschereau JJ.:-"Across" means over from side to side; and it is made clearer by the context of subsection and by the history of the legislation. Parliament, in enacting that subsection, had in mind only above surface construction and was preoccupied with the right of travel particularly referred to in subsection (a) of section 373.
The appellant company, under section 3 of its Incorporation Act, is specifically given the power to construct its lines under the highways in the corporation;
and, for such purpose, the appellant does not need the legal consent of the respondent, and not only does it not need the authorization of the Board but the latter has no jurisdiction to give such authorization.
Per Hudson J. (dissenting)
:-Subsection section 373 deals with the construction of a telegraph or telephone line "across any highway". The word "across" means "from side to side" and, taken by itself, is wide enough to cover a crossing at any level. The "highway"
to be crossed includes not merely the surface of the road but what has been called the "area of user", i.e. "all the stratum the required for the purposes of the street as street".-The appellant company ,in placing its line "across a highway" must "not interfere with the public right of travel 373, ss. (1) (a)) and any alterations the company in the sub-surface of a highway might affect the safety and convenience of the public using the surface.- Thus, the Board, having jurisdiction in the matter, had under subsections 4 and 5 power to make the Order appealed from. Per Rand J.:-The provisions of subsection 6()7 STATUTE-Concluded
7 as a whole constitute a code regulating the construction of telephone lines in and on highways; and the statute is clear that, with the exception in subsection 6 where changes may be ordered in cities and towns, once the installations have been made, they may thereafter be maintained and operated free from the Board's control.-The Order appealed from has in effect added the provisions of subsection 6 to new constructions outside cities and towns, while these provisions have by implication the effect of denying the Board power to impose conditions as to future changes of location of newly constructed lines outside cities and towns.
MIDDLESEX..............
STATUTES.
1.- Bills of Exchange Act, R.S.C. 1927, c. 16 as. 165, 167, 27, 29, 131, 188, 21.. 377
2.-B.N.A.
ss.
91(19),
92(13, 95, 96, 99, 100................
3.-Canada Evidence Act, R.S.C. 1927, c. 59 s. 5...........................
4.-Canada Evidence Act, R.S.C. 1927, c. 69 as. 9, 10......................
See 8.
5.-City Act, R.S.S., 1940, c. 126, ss. 460,
461, 463...........................
6.-Companies Act, R.S.B.C., 1936, c. 42, a. 98(1)(c).........................
7.-Conveyancing and Law of Property
Act, R.S.O. 1937, c. 152, s. 52 ........
8.-Criminal Code, R.S.C. 1927, c. 36 as. 1013, 1015, 1078 and 1079.........
9.-Criminal Code, R.S.C. 1927, c. 86 a. 1025.............................
See 4.
10.-Criminal Code, R.S.C. 1927, c. 36 as. 951, 72, 292(c), 800, 1016(e) ......
See 5.
11.-Criminal Code, R.S.C. 19S7, c. 86 a. 1014 (2), 1013 (4), 1013 (5) ........
See 6.
12.-Criminal Code, R.S.C. 1927, c. 36, a. 261..............................
See 7.
STATUTES-Continued
13.-Criminal Code, R.S.C. 1927, c. 36 a.1014............................. See 8.
14.-Criminal Code, R.S.C. 1927, c. 86 as. 888, 889, and 857(2).............. See 9.
15.-Exchequer Court Act, R.S.C., 1927, c. 34 a. 19(c)....................... 16.-Exchequer Court Act, R.S.C., 1927, c. 84 (as amended) sa. 19(c), 50A..... 17.-Families' Compensation Act, R.S. B.C., 1936, c. 93................. 18.-Farm Security Act 1944, (1944, S. of 8., Session) c. 30 as s. 6 as amended by 1945 S. of S. c. 8 s. 2............... 19.---Government Employees Compensation Act, R.S.C., 1927, c. 30 and amendments 172 20.-Government Employees Compensation Act, R.S.C., 1927, c. 30 and amendments.........................
21.-Highway Traffic Act, R.S.O., 1937, c. 288 a. 26(4), 46................... 22.-Income Taxation Act, R.S.M., 1940, c.209, s. 04...........
.......... 23.-Income War Tax Act, R.S.C., 1927, c. 97 s. 6(1)(b)..................... 24.-Income War Tax Act, R.S.C., 19L7, c. 97 s.5(a)........................ See TAX 2.
25.-Income War Tax Act, R.S.C. 1927, c. 97 and amendments, as. 4(e), 11(1), (2), 2(h), 11(4)(a).................. 26.-Income War Tax Act, R.S.C. 1927, c. 97s. 5(1) (a), as amended by 1940 (Dom.) 2 sess. c. 84, s. 10................... See 5.
27.-Interest Act, R.S.C., 1927, c. 102 as. 6, 9............................. 28.- Judicature Act, R.S.O., 1937, c. 100 as.27, 55........................... 29.-Jury Act, R.S.A., 1922, c. 74 (now R.S.A., 1942, c. 180)................ See 2.
STATUTES-Concluded
30.-National Harbour Board Act, (Dom.,
1936, c. 42)........................
31.-Perpetuities Act, 1940, P.E.I. c. 46 543
See AD
32.-Railway Act, R.S.C., 1937, c. 170,
873, 8, 7...............1
33.-Railway Act, R.S.C., 1937, c. 170,
S. 0 ..............................
34.-Trade Union Act 1944, (1944 S. of
S. c. 69)...........................
35.-Workmen's Compensation Act, R.S.Q.,
1941, c. 160, s. 15...................
36.-Workmen's Compensation Act, R.S.
B.C., 1986, c. 812, s. 11..............
TAXATION-Business tax-City Act, Sask.,
Crown and not liable-Contract between company and Crown for manufacture of gun-carriages-Construction of contract with regard to question in issue.-Appellant company, under an agreement with the Crown
(Dom.), manufactured gun-carriages for the Crown (for which purpose it was incorporated in 1941) on property in the city of
Regina held by the Crown under lease from the owner thereof.
The City of Regina
(respondent) assessed appellant in 1944 for a business tax under The City Act, R.S.S.
1940, c. 126, which provides that (s. 460)
taxes shall be levied upon lands, businesses, and special franchises, that (s. 463(1)) the assessor shall assess either the owner or the occupant of every parcel of land in the city, and every person who is engaged in business; and that (s. 461) the interest of the Crown in any property including property held by any person in trust for the
Crown shall be exempt from taxation. The said agreement contained, inter alia, terms under which the Crown provided to appellant the premises, the machinery and equipment, material to be used, funds for operation, specifications, etc.; the title to all equipment and supplies, completed and partially completed articles, was at all times in the Crown, which assumed risks and liabilities incidental to ownership thereof, and appellant was not liable for loss
TAXATION-Concluded or destruction of or damage to articles and supplies except such as might result from its negligence or wilful misconduct; appellant hired employees and had control over and was responsible for the operation of the plant, but was subject to provisions for consultation with, furnishing information to, and supervision by, the
Government Minister and inspector; appellant, upon acceptance of each gun-carriage, received a fee, to cover management and supervisory services; on cancellation by the Crown of the contract, appellant should be paid its cost to the date of its giving up possession, including a fee in respect of work not completed, and might be given an allowance for exceptional hardship resulting from cancellation; appellant was to be indemnified against losses, costs, claims, etc., arising out of performance of the contract and not resulting from gross negligence on its part. Held, on consideration of all the terms of the agreement, the business was that of the Crown, not of appellant, who was the agent of the Crown, and was not a "person who is engaged in business" within the meaning of s. 463(1) of said Act, and was not subject to the business tax in question; the case came within the authority of City of Montreal v. Montreal Locomotive Works Ltd. (P.C.), [1946] 3 W.W.R. 748; [1947] 1 D.L.R. 161. REGINA........................... TRIAL-Evidence-Trial, with jury, of actions for damages caused by collision of motor cars-Questions by cross-examining counsel to party as to convictions on previous occasions under Highway Traffic Act-New trial-Right to jury.-The actions, tried together, with a jury, were for damages caused by a collision between a motor car owned and driven by appellant and one owned and driven by respondent S. jury found negligence in each driver contributing to the accident, and apportioned the fault, against said respondent 75 per cent and against appellant 25 per cent; and, accordingly, judgments were given for damages, to appellant against said respondent, and to a passenger in the latter's car, now also a respondent, against appellant. On appeal by said respondents, the Courts of Appeal for Ontario ordered a new trial ([194514 D.L.R. 450).
That order was now affirmed by this Court on the ground that, at the trial, appellant's counsel, in crossexamining the respondent driver (and following some explanatory remark by the latter that it was his "first occasion in court", and counsel indicating intention to attack credibility) elicited from him that on certain charges of speeding in previous years he had paid fines; but it was not established that he had himself committed the offences (he might, as owner of a car driven by others, have "incurrred penalties" under The Highway Traffic Act, Ont., without himself having "violated" the Act; he stated that on none of the occasions 6()9 TRIAL-Concluded had he appeared in court); and, assuming evidence as to the convictions was admissible at all, such evidence could only have been adduced if counsel were in a position to show that the witness had himself committed the offences; respondents had met the onus under s. 27(1) of The Judicature
Act, R.S.O. 1937, c. 100 (of showing a
"substantial wrong or miscarriage").
But this Court held that the direction by the
Court of Appeal that the new trial should be without a jury should be set aside; as a jury is an eminently proper tribunal for trial of the matters in issue, sufficient ground had not been shown to deprive appellant, by said direction, of that right.
(The Court found it unnecessary to decide whether, in view of s. 55 of The Judicature
Act, and the authority thereby and by the
Rules conferred upon the trial judge, the direction could be supported.)
SECORD............................
TRUST-Contract - Banks and banking - Account opened in bank in joint names of two persons, at instance of one of them, who, from her own moneys, made all deposits-Death latter-Claim survivor to moneys- Agreement, in bank form, executed persons under seal-Terms of agreement- Circumstances in question-Resulting trust in favour of deceased-Moneys held to belong to her estate-Costs.-A arranged with a bank to open a "joint account" in the names of herself and L (a sister of A), in which A (who kept the bank-book) made the initial and other deposits from her own moneys and on which she issued cheques.
She died within three months after the account was opened. Prior to A's death
L made no deposits in, or cheques on, the account, nor did she know what deposits or withdrawals were made. When the account was opened, A and L, as required by the bank, executed under seal a document, in the bank's standard form, addressed to the bank, by which they "for valuable consideration
(receipt whereof hereby acknowledged)" mutually agreed "jointly and each with the other or others of us" and also with the bank, "that all moneys now or which may be hereafter deposited to the credit of the said account, and all interest thereon, shall be and continue the joint property of the undersigned with right of survivorship", and each of them "in order effectually to constitute the said joint deposit account hereby assigns and transfers to all of the undersigned jointly and to the survivor or survivors" of them any and all moneys theretofore, then or thereafter deposited to the credit of the account together with all interest "to be the joint property of the undersigned and the property of the survivor or survivors of them";
each irrevocably authorized the bank to accept from time to time as a sufficient discharge for any sum or sums withdrawn any
TRUST-Concluded receipt, cheque, etc. "signed by any one or more the undersigned without any further signature or consent of the other or others of the undersigned thereto"; they agreed "with each other and with the said Bank that the death of one or more of the undersigned shall not affect the right of the survivors or any one of them or of the sole survivor to withdraw all of the said moneys and interest" from the bank and to give a valid and effectual discharge or receipt therefor.
Held: The moneys in the account at A's death belonged to her estate. The fact that all the deposits were made by A from her own money raised the presumption of a resulting trust in her favour, and neither the terms of the document nor other circumstances in evidence served to rebut that presumption or to cut down A's beneficial interest raised in equity under it. The mere fact that the document was under seal did not prevent it being shown that there was no consideration from L. The document should, under the circumstances and in its language, be construed as being for the protection of the bank and to facilitate its dealing with the account. Judgment of the Court of Appeal for Ontario, [1946] O.R. 102, reversed, and judgment at trial,
[1945] O.R. 652, restored. This Court held that the costs throughout should be paid out of the fund in question. Kellock J.: The proper construction of the document fundamentally affected the rights of the parties and as to that there had been such difference of judicial opinion as to make it plain that there was an important and debatable legal issue: Boyce v. Wasbrough, [1922] 1 A.C. 425, at 435). (Kerwin J. took the view that L should pay the costs in this Court and in the Court of Appeal; that the case was not one where an exception should be made to the general rule that a litigant should pay the costs of carrying an unsuccessful defence to appeal. He would not interfere with the direction at trial that costs of all parties be paid out of the estate, except to provide that they come out of the fund. But he could not treat the case as analogous to the construction of a will or as exhibiting any special circumstances warranting an infraction of the general rule.)
Niles, V. LAKE............................ WORDS AND PHRASES- "Absolute" (Conveyancing and Law of Property Act, R.S.O. 1987, 152 52 ...... 2.-"Agriculture" (B.N.A.
Act, 1867, (Imp.) S0 & Vic. 8, 95) ....... 2.-"Bankrupcy and
Insolvency" (B.N.A. Act, 1867, (Imp.) 80 & Vic. 8, s. head 21)..................
WORDS AND PHRASES-Continued
3.-"Benefit" (Income War Tax Act,
R.S.C., 1997, 97 s. 2(h) ............
"Charitable Institution" (Income War
Tax Act, R.S.C. 1997, 97 4(e)....
See TAx
5.-"Civil rights" (B.N.A.
Ad,
1867,
(Imp.) 80 & Vic. 3 s. 92 (13).... 394
6.- "Contingent Account or sinking fund"
(Income War Tax Act, R.S.C., 1997, 97
6(1)(h)..........................
See TAx.
7.-"Criminal" (Supreme Court Act,
R.S.C., 1997, 35s. 36)............
8.-"Criminal matters"
(The Supreme
Court Act, R.S.C. 1997, 35 s. 36..... 492
"Crop failure" (Farm Security Act,
S. of S. 1944, s. (9 Sess.) as amended
S. of S. 1945, 98 9)...........
"Highest court of final resort"
"Included" (Cr. s. 951).... 234
"Income accumulating in trust for the benefit of unascertained persons" (Income
War Tax Act, R.S.C., 1997, 97 s. (9)
.........................
See INcoME Tkx 3.
"Income accruing to the credit of the taxpayer" (Income War Tax Act, R.S.C.
1997 97s.11(1)..................
"Income received an estate trust and capitalized" (Income War Tax
Act, R.S.C., 1997, 97 s. (4) (a) ....
See INcoME TAx 3.
15.- "Interest" (B.N.A. Ad s. head
19)..............................
"Municipal Enactment"......... 492
17.-"Must" (Cr. s. 1016(9).....
18.- "Net profit or gain arising from the business" (R.S.M., 1940, 909, s. 94) 431
19.- "No substantial wrong or miscarriage of justice" (Cr. 1014(9).. 268
WORDS AND PHRASES-Concluded 20.-"Not to performed within one year" (R.S.B.C. 1986, 104 s. 4 ...... 21.-"Person" (Income War Tax Act, R.S.C., 1997, 97s.2(h)............ See TAX 3.
" Upon, along or across any highway" The Railway Act, R.S.C., 1997, 170, s.878 (2)..........................
23.-"Wrongful act or insult" (Cr. s. 261).............................
See 7.
Negligence Employee of the Croum (Dom.) awarded compensation, in accordance with provisions Government Employees Compensation Act (R.S.C. 1997, 80, as amended in 9), Workmen's Compensation Commission of Province of Quebec for injuries suffered in
Quebec-Right of employee further to claim damages against the Crown under s. 19(c) of Exchequer Court Act (R.S.C. 1927, 84)-Whether such right affected provisions of Workmen's Compensation Act of Quebec-Whether doctrine of election applies.
See 172.
Damager - Remoteness - Employee awarded compensation payable employer under Workmen's Compensation Act for injury in course of employment caused negligence of third party-Employer suing third party recover amount of compensation.
Damages-Death through accident caused negligence of servant the Crown (Dom.)-Action on behalf dependents of deceased under Families' Compensation Act, R.S.B.C. 1936, 98, claiming damages against the
Crown-Exchequer Court Act, R.S.C. 1997, (as amended), ss. 19(c), 50 A-Claim and acceptance, prior to the action, of compensation from the Workmen's Compensation Board of British Columbia-Question as to effect thereof right of action or extent of recovery-Workmen's Compensation Act, R.S.B.C. 1936, 819, s. 11-Subrogation of the Board- Board a co-suppliant in the action.-The husband of S, while working in the course of his employment by one D, in the province of British Columbia, was the victim of an accident through which he died, which accident was caused by the negligence of a member of the Canadian military forces while acting within the scope of his duties or employment.
S was awarded compensation for herself and her infant son by the Continued
Workmen's Compensation Board of British
Columbia under the Workmen's Compensation Act, R.S.B.C. 1936, c. 312.
She brought the present action (by petition of right) for the benefit of herself and her son under the Families' Compensation Act,
R.S.B.C. 1936, c. 93, claiming damages against the Crown by virtue of ss. 19 (c)
and 5; A of the Exchequer Court Act, R.S.C.
1927, c. 34 (as amended in 1938, c. 28, and
1943, c. 25).
S. of said Workmen's Compensation Act provides for cases where an accident happens in such circumstances as entitle the workman or his dependents
"to an action against some person other than his employer", and subs. 3 thereof provides in effect that, if a workman or dependent claims compensation from said
Board, the Board shall be subrogated to the rights of the workman or dependent as against such other person. In the present
Concluded action the Board was a co-suppliant, pleading its statutory right of subrogation, and also an equitable assignment in writing from S to it. Held: The claiming and acceptance by S of compensation under said Workmen's Compensation Ad did not bar her right to recover, nor affect the amount recoverable, from the Crown in the present action.
S. 11(3) of that Act only affected rights as between the dependents and the The direction by the Exchequer Court that the amount it awarded as damages to S should be payable to the Board and the amount it awarded as damages to her son should be paid into court to abide the Court's order, with liberty to the Board to apply for a declaration as to its rights., was unobjectionable. Judgment in the Exchequer Court, [1945] Ex. C.R. 25; affirmed.
Cases cited
- A.C. 624 A.C. 624
- International Metal Industries Ltd. v. City of Toronto scr-1939-271
- 3 W.W.R. 459 3 W.W.R. 459
- 3 W.W.R. 200 3 W.W.R. 200
- 2 A.C. 128 2 A.C. 128
- The King v. Bell scr-1925-59
- A.C. 244 A.C. 244
- Segal v. City of Montreal scr-1931-460
- 1 W.W.R. 65 1 W.W.R. 65
- Krys v. Krys scr-1929-153
- 1 W.W.R. 97 1 W.W.R. 97
- O.R. 652 O.R. 652
- Boyce v. Wasbrough 1 A.C. 425 435
- Ouvrard v. Quebec Paper Box Co. Ltd. scr-1945-1
- O.R. 332 O.R. 332
- Woolmington v. Director of Public Prosecutions A.C. 462 481 and 482, p. 481
- Rex v. Harms Rex v. Harms, supra
- 3 D.L.R. 593 3 D.L.R. 593
- O.R. 213 O.R. 213
- O.R. 264 O.R. 264
- 3 D.L.R. 32 3 D.L.R. 32
- The King v. Deur et al. scr-1944-435
- 3 W.W.R. 748 3 W.W.R. 748
- 1 D.L.R. 161 1 D.L.R. 161
- Reference as to the effect of the Exercise by His Excellency the Governor General of the R scr-1933-269 274
- A.C. 138 A.C. 138
- 2 W.W.R. 482 2 W.W.R. 482
- 3 W.W.R. 522 3 W.W.R. 522
- O.R. 454 O.R. 454
- A.C. 127 A.C. 127
- London Loan & Savings Co. of Canada v. Meagher scr-1930-378
- O.R. 102 O.R. 102
Statutes and regulations cited
-
- section 37
- section 36
- ss. 4
- 9
- s. 2
- s. 6
- section 86 of the Supreme Court Act
- section 36 of the Supreme Court Act
- Sections 1018
- 1015
- 1078
- ss. 165
- 167
- 181
- 188
- 21
- section 6
- Section 6
- Section 4
- ss. 9
- Sections 1015
- s. 4
- sections 1078
- Sections 1078
- section 1015
- section 1078
- s. 4(e)
- s. 11(1)
- s. 11(2)
- s. 2(h)
- s. 11(4)
- s. 11(4)(c)
- s. 11(4)(a)
- s. 11
- s. 24
- section 5(1)(a)
- ss. 6
- sections 16
- 24
- section 16
- section 24
- s. 16
- section 4
- ss. 19
- ss. 2
- 4
- 6
- sections 6
- s. 36
- ss. 86
- s. 1016(9)
- s. 94
-
- section 5
- section 1025
- section 951
- Sections 72
- section 1016
- Section 1016
- section 1014(2)
- Sections 1013(4)
- 1013(5)
- 1014(2)
- s. 1014(2)
- s. 1013(4)
- s. 1013(5)
- s. 1025
- 10
- s. 10
- sections 9
- 10 of the Canada Evidence Act
- section 10
- ss. 9
- 9
- 5
- Section 5
- s. 5
- s. 951
-
- 292
- s. 261
- section 1014
- ss. 888
- 889
- 857
- s. 838
- section 857
- section 839
- 1079
- ss. 460
- 461
- 463
- s. 460
- s. 461
- section 436
- s. 98(1)(c)
- s. 808
- s. 308
- s. 373
- section 373
- s. 6(1)(b)
-
- s. 19(c)
- s. 463(1)
- s. 52
- Sections 1013
- section 1013
- ss. 19(c)
- 7
- section 5(1)
-
Unresolved citations
- Sections 36
- Section 6 of the Farm Security Act
- section 91 of the British North America Act
- s. 3(1) of said Dominion Act
- s. 463(1) of said Act
- Section (1)
- paragraph (a)
- section 308 of the Railway Act
- Section 8 of The Jury Act
- section 373 of The Railway Act
- subsection (2)
- ss. (1)
- s. (9)
- s. (4)