Majority
HARVEY FORSTER et
MOTION by appellant for leave to renew application to have security approved by Court of Appeal, to stay execution on the bill of costs of the respondents before the Court of Appeal, and for an order that the respondents -pay the costs of some motions.
Further MOTION to excuse the appellant from complying with any or all of the provisions of the Rules of the Supreme Court of Canada, and, in particular, to dispense him from filing the Certificate of Security referred to in Rule 10, and to have the arguments on behalf of both parties heard on the day the Motion is heard.
George W. Morley, in person, for the motion.
The Court having heard the appellant, without calling on Walsh K.C., reserved judgment.
CouRT:-Upon motion by the appellant on October 17th of this year for leave to appeal from a judgment of the Court of Appeal for Ontario, this Court, on the assumption that leave was necessary, refused the application. The appellant now moves to excuse him from filing the certificate of security referred to in Rule 10 of the Rules of this Court and for leave to renew his application to have the security approved by the Court of Appeal for Ontario or a judge thereof, or for approval of the security by this Court. We have no power so to order and the applications must be dismissed with costs.
The appellant insists that the amount or value of the matter in controversy in the appeal exceeds two thousand dollars. Even if we had jurisdiction, it would be impossible on the material before us to make a pronouncement upon that question.
It was pointed out that the appellant applied some time ago to a judge of the Court of Appeal for Ontario for approval of security and that that application was refused because, as it is stated in the formal order, "it appearing that leave to appeal is necessary". We are now told that the circumstances were not made clear to the learned judge who heard the application. In any event, under section 70 of the Supreme Court Act, the function of the Court from whose judgment the appellant is about to appeal, or of this Court, or a judge of either Court, on such an application is to inquire as to the sufficiency of the security tendered. In view of the appellant's contention that the necessary amount is in controversy in the appeal, he may yet be able to find means to bring the matter before the Court of Appeal for Ontario or a judge thereof with the view of the granting of an application for approval of the security tendered by him.
While we have already refused leave to appeal, if the appellant is entitled as of right to appeal, he should not be deprived of that right on a motion to approve the security. If security is approved, it is still open to the respondents to move to quash for lack of jurisdiction.
APPEAL-Criminal law - Jurisdiction - Statute giving new right of appeal not retrospective-11-192 Geo. VI, c. 89, s. 42, enacting s. 1025 (1) Criminal Code.-By 11-12
Geo. VI, c. 39, s. 42, s. 1025 (1) of the
Criminal Code was repealed and the following substituted therefor:
"Either the
Attorney General or any person convicted of an indictable offence may appeal to the
Supreme Court of Canada from the judgment of any court of appeal setting aside or affirming a conviction or verdict of acquittal in respect of an indictable offence, on any question of law, if leave to appeal is granted by a judge of the Supreme Court of Canada within twenty-one days after the judgment appealed from is pronounced, or within such extended time thereafter as the judge to whom the application is made may for special reasons allow; in an appeal by the Attorney General the judge may impose such terms, if any, as he may see fit."-Held: that the enactment creates a new right of appeal, where none existed before, on any question of law raised in the
Court of Appeal. Held: also, that legislation conferring a new jurisdiction on an appellate court to entertain an appeal cannot be construed retrospectively, so as to cover cases arising prior to such legislation, unless there is something making unmistakable the legislative intention that it should be so construed.
(Singer v. The
King), [19321 S.C.R. 70, approved and followed. Semble: that if the new legislation does not apply to a case which arose prior to its coming into force, the old legislation, by virtue of s. 19 of the Interpretation Act, continues to apply. v. THE
...................................
2.-Interlocutory judgment - Jurisdiction-Final judgment-Substantive right- Judicial proceedings-Amount in controversy-Art. 46 C.C.P.-Supreme Court Act
R.S.C. c. 85, ss. 2(b) (e), 39(a).
In an action claiming $250,000 for fatal injuries resulting from a collision between a tramway and an automobile, the judgment of the Court of Appeal that it is without jurisdiction to hear an appeal from the decision of the trial judge dismissing a motion for non-suit made at the close of plaintiff's case on the ground that there was not sufficient evidence for the jury to find a verdict in favour of plaintiff, a final judgment within section 2(b) of the
Supreme Court Act; and the amount controversy is the amount the original claim.
MorrREAL Co. v.
APPEAL-Continued
3.-Appeals by Attorney General-Whether Crown Counsel's failure to object to misdirection in charge to jury bars Crown's right of appeal-The Criminal Code, R.S.C. c. 86, s. 1018(4), as enacted by 1980, c. 11, 28. Section 1013(4) of the Criminal Code provides that: "Notwithstanding anything in this Act contained, the Attorney General shall have the right to appeal to the court of appeal against any judgment or verdict of acquittal of a trial court in respect of an indictable offence on any ground of appeal which involves a question of law alone."
The appellant was acquitted by a jury of a charge laid under s. 276 (a), and of a second charge laid under s. 292 (a), of the Criminal Code. The Attorney General of Ontario as provided by s. 1013 (4) of the Code (supra) appealed, and the Court of Appeal for Ontario allowed the appeal, set aside the verdict, and ordered a new trial. On appeal to this Court-Held: (Rand J. dissenting), that the proper rule to be followed by an appellate court upon an appeal by an attorney general under a. 1013 (4) from a verdict of acquittal is that the onus is on the Crown to satisfy the Court that the verdict would not necessarily have been the same if there had been no error in law in the trial judge's charge, and that here such onus had been discharged.
Held: also, that there is no rule of law nor of practice that failure of counsel, whether for an accused or for the Crown, to object to a charge to a jury on the grounds of misdirection is of necessity a bar to the right of appeal.
No such rule applicable in all circumstances exists, and in the circumstances of the present case, such failure by Crown counsel did not affect the right of appeal. Per: Rand J. (dissenting), "Any ground of appeal", referred to in s. 1013 (4) of the Code, must be limited to matters in which the course of the Crown is thwarted or impeded unwarrantably by the Court. It does not arise from misdirection or non-direction where no objection was taken by Crown Counsel at the trial and there are no circumstances implicating the accused in that action. CuLLEN v. THE KING....................... 4.-Jurisdiction-Action for account to be rendered or in default for payment of a sum of money-Whether "amount in controversy"- Supreme Court Act,19927, R.S.C. c. 85, s. 89, 40. Held: In an action asking for an account to be rendered or in default thereof for the payment of a sum of money, there is no "amount in controversy" as required by s. 39 of the Supreme Court Act on the question of whether an account should be rendered APPEAL-Concluded or not, and therefore no jurisdiction in this
Court (Mathieu v. Mathieu, [1926], S.C.R.
598); but if the question of whether an account should be rendered or not has been determined and the account rendered, then the only point at issue being whether a balance is due or not, this Court has jurisdiction if the sum claimed as residue including the interest thereon up to the date of the judgment appealed from, exceeds $2,000.
5.-Jurisdiction-Where special leave to appeal refused by highest court of final resort in the province, "rights in future" must be economic rights; a judgment dealing with incidental matters involving condemnation in money does not give Supreme Court jurisdiction to grant leave to appeal-Supreme
Court Act, R.S.C., 1927, c. 85, s. 41 (c) and f). The Labour
Relations Board
Saskatchewan issued an order under The
Trade Union Act, 1944, 2nd sess., c. 69, s. 5 (e) (Sask.), requiring the respondent to reinstate a discharged employee and to pay him the monetary loss suffered by reason of his discharge.
Respondent applied to the Court of Appeal for Saskatchewan for a writ of certiorari to quash the order and that Court held, that s. 5 (e), which purported to empower the Board to issue the order was ultra vires since it purported to confer upon the Board judicial powers exercisable by the courts named in the
British North America Act. In view of this finding the Court did not deal with other grounds raised in the application, namely, the alleged error in law on the part of the
Board in fixing the monetary loss of the employee, and the alleged disqualification of the chairman of the Board on the ground of bias, in relation to the proceedings.
appeal to the Privy Council, it was held that the Act was not ultra vires but the case was remitted to the Court of Appeal for a rehearing on the other grounds raised by respondent.
On the rehearing the Court of
Appeal held, that the order of the
Board should be quashed without the actual issue of the writ of certiorari. An application by the Board to appeal from this judgment to the Supreme Court of
Canada was refused, and the motion for special leave to a ppeal, now reported, was then made.
6.-Function of Court under The Supreme
Court Act, R.S.C., 1927, c. 85, s. 70.
Under section 70 of The Supreme Court Act, the function of the Court from whose judgment the appellant is about to appeal, or of this Court, or a judge of either Court, is to inquire as to the sufficiency of the security tendered.
On such an application, an applicant should not be deprived of any right to appeal he may possess.
.....
.....................
ASSESSMENT.
CIVIL CODE.
1.- Article 1058 (Delicts) .......... 2.- Articles 417, 2098 (Ownership).. 522 3.- Article 1202 (Obligations)....... 552 See CoNRAcT 3.
4.-Articles 1118, 2262 (Co-Debtors) 670 CODE OF CIVIL PROCEDURE. 1.-Articles 475, 491, 508 (Trial by Jury) ....... 2.- Article 46 (Jurisdiction) ........ CONSTITUTIONAL LAW-Whether section 5(a) of Dairy Industry Act, R.S.C. 1927, c. 45 is ultra vires of Parliament-Constitutional validity-Criminal law-Trade and Conmerce-Agriculture-Property and Civil Rights-Importation-B.N.A. Act, ss. 91, 92, 95. Subsection a of Section 5 of the Dairy Industry Act provides that "no person shall manufacture, import into Canada, or offer, sell or have in his possession for sale, any oleomargarine, margarine, butterine, or other substitute for butter, manufactured wholly or in part from any fat other than that of milk or cream." The Governor-in-Council referred to this Court under section 55 of the Supreme Court Act the following question: Is section 5(a) of the Dairy Industry Act. R.S.C. 1927, c. 45, ultra vires of the Parliament of Canada in whole or in part and if so what particular or particulars and to what extent.
Held that the prohibition importation of the goods mentioned in the section is intra vires of Parliament as legislation in relation to foreign trade. Locke J. finds the whole seetion to be ultra vires while expressing no opinion as to the power of Parliament to ban importation by appropriate legislation, the prohibition of importation being merely ancillary to the other prohibitions. Held, The Chief Justice and Kerwin J. dissenting, that the prohibition of manufacture, offer, sale or possession for sale of the goods mentioned is ultra vires of Parliament.
It is legislation in relation to property and civil rights which cannot be supported under any head section
Nor can it be supported for the peace, order and good government of Canada.
Per The Chief Justice (dissenting): The Dairy Industry is within the domain of the Dominion as a law in relation CONSTITUTIONAL LAW-Concluded to agriculture and this cannot be discarded on the ground that the products here in question are articles of trade or commodities which are not directly the product of agriculture. (Eastern Terminal Elevators not applicable).
Therefore the insertion section 5(a) being an insertion in the Dairy
Industry Act is nothing more than the direct exercise of Parliament's jurisdiction over agricultural matters or at least necessarily incidental and necessary for the effective control of agricultural matters in respect of milk and its by-products; and the mere contention that they are not natural products but rather manufactured articles is not sufficient to remove them from the domain of the federal government in respect of agriculture.
The legislation deals with trade and commerce and is not limited to the regulation of one particular trade or of one particular commodity, nor to one, or more than one, province; it is an Act embracing the whole Dominion.
Furthermore, the so-called prohibition in section
5(a), when read in conjunction with the whole Act, is not a prohibition at all, but a regulation of trade and commerce, for in regulating, one may prohibit things which are not in accordance with those regulations. It would seem to me that the manufacture, import or sale of these goods, if thought injurious to the manufacture and sale of butter which concerns such a large and important section of Canada, can hardly be said not to be of national concern. Per The Chief Justice and Kerwin J.
(dissenting): There is no ground on which it may be held that the legislation here in question, on its true construction, is not what it professes to be, that is, an enactment creating a criminal offence in exercise of the powers vested in Parliament by head 27 of section
(Proprietary Trade
Articles case).
Reciprocal Insurers case
[1924] A.C. 328; King v. Eastern Terminal
Elevators S.C.R. 457; Lower Mainland Dairy case A.C. 168; Natural
Products Reference
S.C.R. 410;
Canada Temperance Federation case
A.C. and Proprietary Trade Articles case [1931] A.C. 310 referred to.
5(a)
CONTRACT-Logging agreement provided time of essence-Default waived- Whether Court may declare contract subsisting and decree specific performance-Whether interest in land vests in holder of special timber license under Forest Act, 1912, B.C.,
17 and/or his assignee.
The respondent, the holder of a special timber license issued under the provisions of the Forest Act, 1912,
Statutes of B.C., c. 17, by an agreement under seal dated May 15, 1941, agreed to sell to the appellant all the merchantable timber upon the lands covered by such license. The appellant agreed to "log and/or pay for" not less than 4,000,000 feet board measure each year during the
CONTRACT-Continued term of the agreement and to log the lands clean of all merchantable timber not later than May 15, 1945.
The stipulated stumpage was to be paid on all timber cut and removed from the lands based on government scale in the boom as and when the logs were sold.
It was agreed that if default were made by the purchaser, the vendor might by notice in writing demand such default be remedied, and should default continue for 30 days, terminate the agreement.
Time was declared to be of the essence.
The appellant did not log or pay for the stipulated quantity of timber in any of the first three years but respondent accepted payment for the quantity cut without protest.
On April 13, 1945, however, the respondent gave notice of default and of her intention on continued default for 30 days to cancel the agreement. appellant then tendered a sum sufficient to pay stumpage upon the merchantable timber remaining upon the limits based on a cruise made prior to the date of the agreement. This was refused and the appellant then paid the money into court and sued for specific performance.
Held: by the majority of the court, Locke J. expressing no opinion, that the parties by their conduct having waived the provision making time of the essence, the agreement should be declared subsisting and specific performance decreed, and the matter referred to the trial court to fix a reasonable time for performance.
(The principle laid down in Kilmer v. B. C. Orchards, A.C. 319 as explained in Steedman v. Drinkle, [1916] 1 A.C. 275 at 280 applied.) That the effect of the agreement was to create an interest in land.
(McPherson v. Temiskaming Lumber Co. A.C. Per, Locke J., that the respondent acquired an interest in the land under the license and the appellant under the agreement, and neither such interest nor the agreement itself would ipso facto terminate if there were default either in cutting the timber, or alternatively, in making the payments within the time stipulated. Per, Locke J., that the parties should be held to have contemplated that if the purchaser elected to pay for any part of the timber not logged prior to May 15, 1945, the quantities would be ascertained by cruising and the judgment at the trial, directing a reference to the registrar to ascertain the amount standing or not removed following which the balance owing if any would be payable, should be restored. V. CAMERON................ 2.-Logging-Interpretation - Trust fund set up to guaranty performance-To forfeited if covenants not carried out-Whether provision is penalty, liquidated damages or deposit. Held: Taschereau and Locke JJ. dissenting, that the provision of an agreement to the effect that a special trust account set up by the purchaser out of the sale price of the timber, accumulating as CONTRACT-Concluded the logging progressed but not to exceed
$14,000, "to guaranty the due and proper logging by the purchaser", shall be forfeited by the default of the purchaser to carry out the covenants, is a penalty and not liquidated damages.
(Judgment of the Court of
Appeal (1948) 1 W.W.R. 929 maintained).
Public Works Commissioners v. Hills [1906]
A.C. 368; Dunlop Pneumatic Tyre Co. v.
New Garage [1915] A.C. 79 and Mayson v.
Clouet [1924] A.C. 980 referred to. Per
Taschereau, Estey and Locke JJ.:-The clause in the agreement providing that the logging was to be carried on "except in periods when the price and market for logs is such that logs cannot be sold without loss" operated only when market conditions were such that logging operations on the
Pacific Coast could not be carried on without loss. Per Taschereau and Locke
JJ. (dissenting)
: The purchaser of the timber was not entitled to recover the moneys paid by it into the special trust account which were in the nature of a deposit and in the terms of the agreement intended as a guarantee of the complete logging of the said lands.
The evidence disclosed that the lands had not been completely logged and that the purchaser had repudiated its obligations under the contract before the expiration of the time fixed for performance.
(Wallis v. Smith
(1882) 21 Ch. Div. 243; Howe v. Smith
(1884) 27 Ch. Div. 89 and Sprague v.
Booth 1909 A.C. 576 referred to).
3.-Interpretation-Suspension of contract for supply of stone due to suspension of work on another contract-Whether contracts subordinated. to each other-Whether performance impossible-Whether consent to suspension-Breach-Art. 1202 C.C.
Respondent had a contract with the Government of Canada for the building of a dock and signed a separate contract with appellant for the supply of stone.
Due to his inability to obtain the necessary timber in time, respondent was permitted by the
Government to suspend temporarily the work.
He therefore advised appellant, who had started delivering the stone, to suspend further deliveries until notified again. Appellant brought action for the annulment of his contract.
This action was rejected by the Superior Court and by the Court of Appeal.
Held: Taschereau J.
dissenting, that the contract for the stone was not subordinated to all the terms of the contract for the dock, and as appellant did not acquiesce in the suspension, and as it was not established by respondent that the execution of the work had been rendered impossible as required by art. 1202 C.C., respondent was guilty of a breach of contract.
v. BoucARD .....
CRIMINAL LAW-Appeal-Jurisdiction -Statute giving new right of appeal not retrospective-11-12 Geo. VI c. 39, s. 42, enacting s. 1025 (1) Criminal Code.... 2.- Murder-Withdrawal of accused's counsel because postponement refused - Appointment of another counsel by Court- Refusal of Court to hear another counsel retained by accused's family-Illness of juror-Discharge of jury-New jury containing some members of original jury-Criminal Code ss. 929, 942, 960, 1014 (2). The accused was arrested and charged with murder on August 8, 1947, and within a few days retained the services of counsel W. After many adjournments, the preliminary hearing started on October 8 and he was committed for trial on October 21. that same day he was brought up for arraignment.
His counsel W. moved to have the trial adjourned to the next assize and said that he was contemplating an .application for a change of venue. presiding judge refused the motion to traverse and set the date for the trial at November 10.
Counsel W. then withdrew from the case and the judge stated that he would appoint someone if the accused did not appoint counsel within a day or two. The following day, accused's sister addressed the Court in accused's presence and asked for an adjournment, saying that they did not want W. to withdraw and that they wanted their own counsel and not one appointed by the Court. However the presiding judge appointed R. as accused's chief counsel and postponed the trial for a week beyond the date previously fixed; the arraignment was also postponed to the day of trial.
When the trial opened, R. appeared for accused but before arraignment M., a counsel, addressed the Court, saying "I am appearing on behalf of the accused, retained by his family". trial judge informed M. that the Court had appointed counsel and refused to hear M. as to the nature of the application which he proposed to make.
On arraignment, accused pleaded not guilty but when asked if he was ready for trial answered "No Sir". Thereupon R. said that this was accused's answer and not his and that he was prepared to go on.
During the trial, when the jury was recalled to the courtroom after a trial within the trial, one member was found to be absent because of illness. The jury was then discharged but instructed to remain on the panel, and a new jury was drawn. Nine members of the new jury had been on the previous jury, which had sat for two days. The trial judge admitted the evidence which was the subject of the trial within the trial. The majority of the Court of Appeal having affirmed the conviction, appellant raised two grounds of appeal in this Court, (a) that he was not permitted to make full answer and defence by counsel of his choice and (b) that the jury was not properly constituted. CRIMINAL LAW-Continued that, by his conduct, the accused has ratified the choice of counsel made by the
Court. Even if the trial judge should not have declined to hear M., as it was shown that the proposed application was for a further postponement of the trial, the accused suffered no prejudice and the incident taints in no way the fairness of what has been done.
There was no substantial wrong or miscarriage of justice.
Held: also, that when discharged, the jury cease to be the jury in that case, their functions are terminated and consequently they were free to act again in the new trial.
v. KING................
Arson
Appellant was charged with having set fire to a school. At trial before a jury, the contention of the Crown was that (a) he had actually set the fire, or (b) he had formed a common intent with one Bryan to burn the school, or (c) he had aided, abetted, counselled or procured Bryan to set the fire pursuant to section 69 of the
On the offence of aiding and abetting, there was evidence that they had a conversation respecting the burning of schools, that he drove with Bryan to the scene of the crime, that some gasoline was purchased and that accused made statements in a restaurant to the effect that they were out to burn schools.
Although accused was there when the crime was committed, he alleged that he was unaware of the intention to fire the building, took no active part and remained in the car. The majority of the Court of Appeal affirmed the conviction. Held, Kellock and Locke
JJ. (dissenting)
, that the trial judge's charge, as a whole, properly directed the jury that they must find some act of participation on the part of the accused before they can find him guilty of aiding and abetting.
also, that the trial judge has a duty to review the evidence in relation to the issues and he has the privilege of making such comments and suggestions as will be of assistance to the jury, provided that he does not seek to impose his views upon nor in any way relieve the jury of their responsibility to find the facts.
Per Kellock and
Locke JJ. (dissenting)
: The portion of the charge dealing with aiding and abetting tended to lead the jury to understand that mere presence at the scene of the crime, the failure of the accused to get out of the car earlier in the evening when his companion had made some general statements to the effect that he approved the burning of schools and his failure to telephone the police, constituted aiding and abetting and there should be a new trial. Mohun's case
(1693) Holt K.B. 479; Reg. v. Coney (1882)
CRIMINAL LAW-Continued
8 Q.B.D. 534 and Rex v. O'Donnell (1917) Cr. App. R. 219 referred to.
4.-Trial judge sitting alone acquitting reasonable doubt at close of Crown's case- No election accused as to adducing evidence-Appeal on question of law-Criminal Code ss. 889, 944, 1013(4). The accused, on a charge of unlawful possession of a drug, was tried by a judge sitting without a jury under Part XVIII of the Criminal Code. At the close of the case for the Crown, the accused, before making his election to call or not to call evidence, moved to dismiss for lack of "sufficient evidence which could legally and properly support a conviction".
thereupon dismissed the charge because of reasonable doubt arising upon the evidence of the Crown. The majority in the Court of Appeal upheld the acquittal. Held: The trial judge having the same power as to acquitting or convicting as a jury and no more, could only have decided whether or not there was evidence upon which the jury might convict.
question of reasonable doubt did not arise at that stage. Held: In the light of the evidence which the Crown submitted, the case could not have been withdrawn from the jury nor could it have been submitted to the jury until it was known that the evidence had been completed.
The King v. Hopper K.B. 431; The King v. Comba [1938] S.C.R. 396; Perry v. The King 82 Can. C.C. 240 and The King v. Olsen 4 C.R. (Can.) 65 referred Murder made to police after questioning-Whether made voluntarily-Whether incriminating exculpatory-Admissibility-Criminal Code s. 259.
While in custody, on a coroner's warrant, as a material witness, during the investigation of a murder case, appellant made two written statements to the police during the course of questions put to him by them. For the first statement, the usual warning was not given before accused had completed his verbal answers, but it was given before the written statement was signed. This statement contained an account of the movements of the appellant for some days before and after the day of the commission of the crime, which indicated that he could not have been concerned in the crime. It also contained admissions of his intimate relations with the wife of the murdered man. The second statement before which a warning was given, reiterated the substance of the first, but added a complete confession of the commission of the crime by appellant. The trial judge ruled that these statements were admissible in evidence and the majority in the Court of Appeal agreed with him. Held: Estey J. dissenting, that both statements were voluntarily made and that CRIMINAL LAW-Continued the appeal should be dismissed.
also, that the first statement was incriminating and not exculpatory
(The Chief
Justice and Taschereau J. contra). Held further, that the dictum in Gach v. The
King S.C.R. 254 that "when a person has been arrested, all confessions made to a person in authority, as a result of questioning, are inadmissible in evidence, unless proper caution has been given" was obiter:
Ibrahim v. The King [1914] A.C. 599 and
Prosko v. The King 63 S.C.R. 226 followed.
(The Chief Justice and Taschereau J.
expressing the opinion that the Gach case had no application to the present case as, in their view, the first statement was exculpatory.)
Per Estey J. (dissenting)
:
The first statement was incriminating and the trial judge misdirected himself to the effect that the statement was exculpatory and not evidence against the accused.
That though a warning was given prior to the second statement, it was immediately followed by questions and incidents which were not sufficiently disclosed by the evidence to justify a conclusion that the statement was voluntarily made.
Bou- 6.-Assault occasioning bodily harm- Accused owner of premises on which acts occurred-As hotel keeper he retained two suitcases for rent due by former roomer- Friends tried to obtain them without paying-Whether injured person a trespasser with intent to commit a wrong or an invitee- Right of accused to resist-Degree of force permissible to repel assault-Hotel Keepers
Act, R.S.M. 1940, c. 98-Criminal Code, es.
57, 290.
The accused, being the proprietor of a rooming house, retained two suitcases belonging to a former woman roomer as security for unpaid rent. Four of her friends decided to obtain them without paying the rent. On arriving at the house one remained outside in a taxi and the three others went into the room occupied by the accused and his wife and when their purpose was known a fight started and the accused hit one of them with a hammer, fracturing his skull. The accused was convicted in police court of assault occasioning bodily harm, the magistrate holding that the men were not trespassers.
The Court of Appeal being equally divided, his appeal was
Held: The failure of the trial judge to appreciate that the men were wrongdoers and under the circumstances trespassers, as well as his failure to direct himself as to the effect of sec. 57 of the Criminal Code under which the accused had the right to resist provided he did not use more force than was necessary, amounted to misdirection and therefore a new trial ordered.
NYKOLYN v. THE
7.-Accused charged with manslaughter arising out of operation of motor vehicle- Trial judge directed jury to return verdict of
CRIMINAL LAW-Continued not guilty of manslaughter and to consider if reckless driving proven-Whether jury satisfied itself that accused was not guilty of manslaughter, and since this a condition precedent, whether it had jurisdiction to consider offence of reckless driving-Criminal Code, ss. 285 (6), 951 (8). Section 951 (3) of the Criminal Code provides that, upon a charge of manslaughter arising out of the operation of a motor vehicle, the jury if satisfied that the accused is not guilty of manslaughter but is guilty of an offence under s. 285 (6), may find him guilty of that offence.
The appellant was charged with manslaughter arising out of the operation of a motor vehicle.
in charging the jury told them there was no evidence to support the manslaughter charge and directed that they bring in a verdict of not guilty on that count but left with them to determine whether or not the appellant was guilty of reckless driving. Held: that the jury in returning a verdict of not guilty of manslaughter, followed the judge's direction on a question of law as it was their duty to do; therefore the terms of the statute were met and their verdict meant that, although acting in conformity with the judge's direction and their duty, the jury was satisfied that the accused was not guilty of manslaughter. GRAr KING................. 8.- Lottery,
Conducting of-Criminal Code, s.
286(1) (c)-Ofences under first and second part clause (c) distinguished- Red River (Barrel) Derby. Section 236 of the Criminal Code, is to the effect that every one who does any of the things described in the section is guilty of an indictable offence.
Subsection (c) is divided into two parts. The first part applies to a person who conducts or manages any scheme for the purpose of determining who, or the holders of what tickets are, the winners of any property so proposed to be disposed of. The second part applies to every person who conducts or manages any scheme by which any person upon payment of any sum of money shall become entitled under such scheme to receive from the person conducting or managing such scheme a larger sum of money than the sum paid by reason of the fact that other persons have paid any sum under such scheme. In construing subsection (c), it must be read with the preceding subsections and therefore the words "so
*
*
* disposed of" in the first part refer to the scheme indicated in the preceding subsections, that is, "by some mode of chance". second part of subsection
(c) however, stands alone.
It does not refer to chance, or to mixed skill and chance, and the receiving of money is not subordinate to any of these elements.
The rule of ejusdem generis therefore does not apply to it. Since in the charge, preferred under the first part of subsection (c), there was mixed skill and chance, there was no offence, and CRIMINAL LAW-Concluded the appeal as to it should be allowed.
As to the charge preferred under the second part of the subsection, the admission of the appellant that winning estimators will receive a larger sum of money than that paid for their tickets because the nonwinning estimators have contributed to the scheme, brings it within the prohibition of the Statute and the appeal as to it should therefore be
9.-Appeals by Attorney General-Whether Crown Counsel's failure to object to misdirection in charge to jury bars Crown's right of appeal-The Criminal Code, R.S.C.
1927, c. 36, s. 1018(4), as enacted by 1930, c. 11, s. 28. Section 1013(4) of the Criminal
Code provides that: "Notwithstanding anything in this Act contained, the Attorney
General shall have the right to appeal to the court of appeal against any judgment or verdict of acquittal of a trial court in respect of an indictable offence on any ground of appeal which involves a question of law alone."
The appellant was acquitted by a jury of a charge laid under s. 276 (a), and of a second charge laid under s. 292 (a), of the Criminal Code. The Attorney
General of Ontario as provided by s. 1013
(4) of the Code (supra) appealed, and the
Court of Appeal for Ontario allowed the appeal, set aside the verdict, and ordered a new trial. On appeal to this Court-Held:
(Rand J. dissenting), that the proper rule to be followed by an appellate court upon an appeal by an attorney general under s.
1013 (4) from a verdict of acquittal is that the onus is on the Crown to satisfy the
Court that the verdict would not necessarily have been the same if there had been no error in law in the trial judge's charge, and that here such onus had been discharged. Held: also, that there is no rule of law nor of practice that failure of counsel, whether for an accused or for the Crown, to object to a charge to a jury on the grounds of misdirection is of necessity a bar to the right of appeal.
No such rule applicable in all circumstances exists, and in the circumstances of the present case, such failure by Crown counsel did not affect the right of appeal. Per: Rand J., (dissenting), "Any ground of appeal", referred to in s. 1013 (4)
of the Code, must be limited to matters in which the course of the Crown is thwarted or impeded unwarrantably by the Court.
It does not arise from misdirection or nondirection where no objection was taken by
Crown Counsel at the trial and there are no circumstances implicating the accused in that action.
v. KING...
CROWN-claim - Damages - Negligence - Common Law - Exchequer Court
Act, R.S.C., 1927, c. 84, s. 50A-Ontario
Negligence Act, R.S.O., 1987, c. 115. This action arose out of a collision on the Kingston Road in the city of Toronto on December 22, 1943 between a street car of the
CROWN-Concluded appellant and a truck and trailer, on the latter of which was loaded a Bolingbroke aircraft, and which formed part of a convoy of Royal Canadian Air Force vehicles. As a result of the damage sustained by the aircraft the Attorney General of Canada on behalf of His Majesty exhibited an information against the appellant in the Exchequer Court claiming the damage had been caused by the latter's negligence. trial judge found that both parties were equally at fault, but held that the Crown was not responsible for the negligence of its servants and gave judgment for the Crown in the full amount of its claim together with costs of the action. Held: That the trial judge's allotment of blame, in equal proportions to the servants of each party, was correct.
Held: Also, reversing the judgment of the Exchequer Court, that while if the common law alone were applicable, the Crown would have no claim by reason of the fact that it failed to prove that the negligence of the appellant's servants alone caused the damage, yet since the Crown is able to take advantage of the Ontario Negligence Act, R.S.O., 1937, c. 115, it is therefore entitled to one-half of its damages.
v. KING............ CUSTOMS.
EXCESS PROFITS.
EVIDENCE.-Criminal law - Arson - Accessory-Aiding and abetting-Active part -Presence during commission of crime - Failure to leave or protest-Charge to jury- Duty to review evidence-Comments and suggestions by trial judge-Criminal Code, s. 69, 511, 1014(2)................. 2.-Criminal law-Trial judge sitting alone acquitting on reasonable doubt at close of Crown's case-No election by accused as to adducing evidence-Appeal on question of law-Criminal Code ss. 839, 944, 1018 (4) ...... 3.-Criminal law - Murder - Statements made to police after questioning- Whether made voluntarily-Whether incriminating or exculpatory - Admissibility - Criminal Code s. 259................. 4.-Criminal Law-Accused charged with manslaughter arising out of operation of motor vehicle-Trial judge directed jury to return verdict of not guilty of manslaughter and to consider if reckless driving proven- Whether jury satisfied itself that accused was not guilty of manslaughter, and since this 19491
EVIDENCE-Concluded a condition precedent, whether it had jurisdiction to consider offence of reckless driving- Criminal Code, ss. 285 (6), 951 (3)... 647
See CRInIAL 7.
5.-Malicious prosecution - Malice - Reasonable and probable cause-Evidence- Judge's charge - Misdirection - Criminal
Code s. 542-British Columbia Supreme
Court Act R.B.S.C. 1936, c. 56, s. 60... 239
6.-Railways - Negligence - Jury trial- Evidence-Trespasser boy fell off moving freight car-Finding of jury that railway employee's shouting was afault contributing- Liability of railway company-Province of judge and jury-Judgment after verdict- Arts. 475, 491,508 C.C.P.-Art. 1058 C.C.- Railway Act, R.S.C. 1927, c. 170, s. 443.. 177
7.-Waters and Watercourses-Rights of
Riparian Owners-New trial, discovery of new evidence as ground for-Jurisdiction to award damages in lieu of In3unction-The
Supreme Court Act, R.S.C., 1927, c. 85, s.
68--Ontario Judicature Act, R.S.O. 1987, c. 100, s. 17 .....................
EXPROPRIATION-Large business- Compensation-What is to be determined- Value to owner-Disturbance claim-Compulsory taking-Exchequer
Court
R.S.C. 1927, c. 34, S. 47-Expropriation
Act, R.S.C. 1927, c. 64. In an expropriation of property on which a large business was being carried on.
Held: That what is to be determined is the value to the owner as it existed at the time of the taking and not to the taker; this value includes all advantages which the land possesses and should take into account losses by reason of disturbance.
Held: Also, that s. 47 of the
Exchequer Court Act, R.S.C. 1927, c. 34, neither declares the right of an owner to receive compensation nor defines the quantum but merely the date as of which the latter is to be determined.
Further, that in the circumstances of this case an allowance of ten per cent of the value of the land for compulsory takingalthough not a matter of right in all casesshould be made in addition to the amount awarded at the trial. Per The Chief
Justice and Locke J. (dissenting)
: An allowance of ten per cent for compulsory taking is not a matter of right and can only be justified as a part of the valuation and in the circumstances of this case should not be allowed.
Cedars Rapids Manufacturing and Power Co. v. Lacoste [1914] A.C. 569;
EXPROPRIATION-Concluded
Pastoral Finance Assoc. Ltd. v. The Minister, [1914] A.C. 1083; Vyricherla Narayana v. The Revenue Officer, [1939] A.C. 302; Commissioners of Inland Revenue v. Glasgow and S.W. Ry., (1887) 12 A.C. 315 and Irving Oil Co. Ltd. v. The King, [1946] S.C.R. 551 referred to.
GAMING AND WAGERING-C h e q ue given to cover losses in betting on horse races- Whether amount recoverable-Whether horse racing within Gaming Act, R.S.O. 1937, c. 297. Section 3 of the Gaming Act, R.S.O. 1937, c. 297, which reads as follows: "Any person who, at any time or sitting, by playing at cards, dice, tables, or other game, or by betting on the sides or hands of the players, loses to any person so playing or betting, in the whole, the sum or value of $40 or upwards, and pays or delivers the same or any part thereof, shall be at liberty, within three months thereafter, to sue for and recover the money or thing so lost and paid or delivered", applies to money lost in betting on horse racing, payment of which has been made by a cheque. HUSBAND AND WIFE-Legal proceedings-Action by husband to recover land from wife, founded in tort, and barred by the Married Women's Property Act, R.S.O. 1937, c. 209, s. 7.-Following the grant of a decree nisi at the suit of a wife, the husband brought action against her, claiming possession and mesne profits of the house and premises occupied by the wife and their infant son, which the husband had left on ceasing to cohabit with his wife. He further claimed an order for the delivery to him of the furniture and chattels on the premises, and damages for injuries done the premises, furniture and chattels.
The wife y counterclaim sought a declaration that she was the owner of all the property, or in the alternative, that all the property was held by the husband in trust for her either wholly or to the extent of a one-half interest. The Court, treating the matter as if proceedings had been taken under s. 12 of the Married Women's Property Act, R.S.O., 1937, c. 209.
Held: that the real property was that of the husband and gave him judgment for possession, but held further that even under that section, the husband was not entitled to mesne profits, as that is a claim for a tort barred by s. 7. Per Rand and Kellock JJ.:-The proceeding for wrongful detention of the possession of land is the modern equivalent of the old action for ejectment, and therefore such an action in tort as is barred by s. 7 of the Act. The majority of the Court expressed no opinion on this point. The trial judge, having decided that the wife was entitled to one-half the furniture, and there being no appeal from that decision, it was affirmed.
INDEX
IMPROVEMENTS to immovable property- Proprietor-Possessor-Right of retention- Title-Registration-Arts. 417, 2098 C.C.
An owner, whose title to an immoveable property is not registered, has no right under art. 417 c.c. to retain it against the subsequent registered purchaser for payment of the improvements, because art.
417 requires that the improvements be made on somebody else's property and not on one's own property as was the case here.
2.-Assessment and Taxation - Schools- "Improvements"-"Improvements done land"-Whether tunnel, machine shop equipment, transformers, assessable-"actual cash value"-Whether basis of valuation correct- Taxation Act, 282, Public Schools Act,
253,-R.S.B.C., 1986 ..............
INCOME TAX.
INTERNATIONAL LAW-Conflict of Laws
-Courts of this country no jurisdiction to enforce penal law of foreign country of a confiscatory nature.-A decree of the Estonian
Soviet
Socialistic Republic, dated
October 8, purported to nationalize all
Estonian merchant ships, including those in foreign ports, and fixed the compensation therefor at 25 per cent of each ship's value.
The Elise was owned by Estonian nationals and registered in that country but, at the date of the decree and always thereafter, was beyond the jurisdiction of Estonia and at the date of suit within that of Canada.
Held: that as the decree was a penal, (Rand
J., political), law of a foreign country of a confiscatory nature, it would not be enforced in the Exchequer Court at the suit of a corporation established by Estonia and to which a subsequent decree purorted to transfer ownership.
&
JURISDICTION.
See 2, 4, 5.
MALICIOUS PROSECUTION-Malice- Reasonable and probable cause-Evidence- Judge's charge-Misdirection- Criminal
Code 542-British Columbia Supreme
Court Act R.B.S.C. 1986, 56, s. 60.-In an action for malicious prosecution, the judge's charge amounted to misdirection, when, after properly saying that a want of reasonable and probable cause was a circumstance from which the jury might infer malice, he concluded that if malice was to be found at all in this case it was not because of lack of reasonable and probable cause, although, addition to some evidence from which the jury might have inferred malice, there was also evidence upon which the jury might have found want of reasonable and probable cause.
Brown v. Hawkes
Q.B.
to.
MASTER AND SERVANT-Tenant injured assisting landlord's husband with repairs- No agreement for wages-Liability of landlord-Of landlord's husband-Whether tenant a servant-Invitee-Volunteer or volunteer with interest.-The appellant was a tenant the ent wife.
The latter, to meet the needs the tenant, had undertaken to enlarge the upper part of the house. The husband respondent, acting for his wife, commenced the work, and asked the tenant to assist him. The tenant, although regularly employed, replied he "guessed he would have to help".
While descending from the roof at the direction of the husband, he placed his weight on a facia board that was insecurely nailed to the end of the joists; gave way and he fell to the ground, sustaining serious and permanent injuries. Held: That the tenant was not a volunteer. The work was entirely that of the landlord. The tenant approached it as an independent party conferring a benefit that had been sought; he was giving his services but not surrendering himself as an employee, the landlord therefore became liable to the tenant for the negligence of her agent, the husband.
Hayward v. Drury Lane Theatre [1917] 2 K.B. 899, followed.
that the finding of the trial judge that the husband had been negligent in creating a trap, reversed by the Court of Appeal, was amply supported by the evidence and nothing had been shown to warrant its reversal. Appeal allowed and judgment at trial restored.
NEGLIGENCE-Motor vehicle - Collision between automobile and bicycle - Onus-Bicycle turning left without signaling-Whether horn of overtaking vehicle sounded - Responsibility for accident - Presumption of fault created 58(2) the Quebec Motor Vehicles Act-Affirmative and negative proof-Meeting and passing- Quebec Motor Vehicles Act, R.S.Q., 1941, 142, ss. 29, 36, 58.-Respondent's car struck appellant riding his bicycle. The accident happened as the car was overtaking two cyclists following one another on the right side of the pavement, appellant being ahead.
Respondent contends that he was driving at 40-45 m.p.h. and that he sounded his horn twice, the first time at 100 to 125 feet from the cyclists and then a few feet away from them. Neither cyclists who were riding about 20 feet apart heard the horn. The collision occurred about the center of the pavement, as the appellant had swung to the left to cross the road without looking back or signaling. The trial judge found both parties equally at fault and the majority in the Court of Appeal held that the appellant's negligence was the sole cause of the collision. Held, Rand and
Estey JJ. (dissenting)
, that appellant's action crossing the road without looking back and without signaling his intention to do so was the sole cause of the accident. It being NEGLIGENCE-Continued established by affirmative evidence against negative evidence that the horn was sounded twice, respondent has rebutted the presumption of fault created by section 53 of the Quebec Motor Vehicles Act. Held also, that section 36(1) of the Quebec
Motor Vehicles Act has no application when the vehicle overtakes the bicycle.
Per Rand and Estey JJ (dissenting): The failure of the driver to give the warning in a reasonable manner as required by see.
36(4), and the maintenance of his speed at
40-45 m.p.h. under the circumstances do not support the conclusion that the respondent has discharged the statutory onus imposed upon him by sec. 53(2).
v. CHOQUETTE......................
2.-Negligence - Jury trial - Trespasser boy fell off moving freight car- Finding of jury that railway employee's shouting was a fault contributing-Liability of railway company-Province of judge and jury-Judgment after verdict-A rts. 475,
491, 508 C.C.P.-Art. 1058 C.C.-Railway
Act, R.S.C. 1927, c. 170, s. 443.
..................
.................
3.-Damages, claim by Crown for-Common Law-Exchequer Court Act, R.S.C.,
1927, c. 84, s. 50A--Ontario Negligence Act,
R.S.O., 1937, c. 115.................
4.---Collision at night between truck and car-Truck without required clearance lights and of illegal width-Duty to keep to right of center line-Vehicles and Highway Traffic
Act, R.S.A. 1942, c. 275, s. 47(1).-In a collision at night between appellant's truck and a car driven by respondent, the whole left side of the car was practically ripped off by contact with the overhanging box of the truck.
The truck was not equipped with the clearance lights required by bylaw and was 32 inches wider than the legal width.
The trial judge found that the respondent had not discharged the onus of showing that the infractions of the law contributed to the accident or that the appellant was otherwise guilty of negligence which was a causa causans. The
Court of
Appeal reversed this judgment and found that the probable cause of the accident was the absence of clearance lights, a fact well known to the appellant, coupled with the illegal width of the truck. Held: Taschereau J. dissenting, that the absence of clearance lights on the truck was not the causa causans, but that the accident would not have happened if respondent had complied with sec. 47(1) of the Vehicles and Highway Traffic Act to keep to the right of the center line.
FULLER v.
5.- School Taxi-Negligence--Degree of care required-Child falling through opened door-Safety devices-Supervision-Allurement.-The five year old respondent fell
NEGLIGENCE-Concluded out of appellant's taxi, when the door opened, as she was being transported from school in pursuance of a contract between the school and the appellant taxi company. The taxi was a 4 door sedan, the door had the standard push button lock and there was no evidence of any defect in it or in the door.
The trial judge and the Court of Appeal found that the infant plaintiff or one of the other children in the car must have played with the plunger and opened the door. There was evidence that the plaintiff had on previous occasions fiddled with the push button. On the day of the accident, while the car was stopped, the driver had noticed the plantiff playing with the button and had ordered her to cease and to stand back from the door. The child obeyed and the driver made sure that the button was down and the door securely locked and fastened.
dismissed the action and the Appellate Division reversed his decision and ordered a new trial limited to an assessment of damages.
Held, affirming the Appellate Division (Rand and Locke JJ. dissenting), that the appellant was negligent in conveying these children in this 4 door sedan without safety devices and no greater degree of supervision than could be exercised under the circumstances by the driver, as the push button and the handle constituted an allurement to the children and a reasonable man should have anticipated this attraction and the resulting danger.WARE's TAxi v. MOTOR VEHICLES- "
PATENTS-Reasonable compensation for use of an invention by the Crown-Principles to be applied by the Commissioner of Patents in conducting inquiry to determine amount of payment for such use-The Patent Act, 1985, S. of C., 1935, c. 32, s. 19-Order in Council P.C. 6982, dated December 4, 1940. Where the Government of Canada has made use of any patented invention and the Commissioner of Patents is required, as provided by s. 19 of The Patent Act, 1935, to report such sum as he considers reasonable compensation for the use thereof-Held: that, in conducting the necessary inquiry the Commissioner, in the absence of regulations to the contrary, must determine the scope thereof and the extent of disclosure required.
that the compensation to be paid should be determined by what, under normal conditions in the market, would be paid to a willing licensor by a willing licensee bargaining on equal terms.
This will involve an examination of the prior art to determine the value of the advance made by the patent in question.
Held: further, that the Commissioner in determining compensation INDEX
PATENTS-Concluded based his award on a wrong principle, therefore the case should be returned to him to continue his inquiry applying thereto the principles set out in the judgment of this Court.
PETITION OF RIGHT-Motor vehicle- Collision between two vehicles--Gratuitous passengers suing one of the oumers-Settlement made out of court-Whether amount settlement recoverable from co-author if payment made non responsible owner-Prescription-Arts. 1118, 2969 C.C.-Following a collision between appellant's fire pump and respondent's truck, the three gratuitous passengers of the truck sued appellant for damages for personal injuries.
Only one of the actions was proceeded with and the jury's verdict, after assessing the damages, was that it was impossible to say that appellant was 100 per cent responsible.
The trial judge did not render judgment on that verdict and eventually appellant settled the three claims out of court. Then appellant, by Petition of Right, claimed from respondent the amounts it had paid in these settlements together with the damages to the fire pump, alleging that respondent's employee was solely responsible for the collision.
The Exchequer
Court found that respondent was the only one responsible but that appellant's claim was prescribed under Art. 2262 C.C. except as to the damages to the pump.
Held: As there was no legal obligation for the appellant to indemnify the victims of the accident, since the respondent alone was responsible for the collision, the moneys paid by the appellant to the victims could not be recovered from the respondent.
Held, also that the prescription of an action based on Art. 1118 C.C. does not begin to run until the judgment liquidating the damages or, if no judgment, until payment of the debt by one of the codebtors, as it is only then that the codebtor can recover the share and portion due by his codebtor.
THE KING .....
PRESCRIPTION.
RAILWAYS-Negligence
- Jury trial - Evidence-Trespasser boy fell off moving freight car-Finding of jury that railway employee's shouting was a fault contributing
-Liability of railway company-Province judge and jury-Judgment after verdict- Arts. 475, 491,508 C.C.P.-Art. 1058 C.C.- Railway Act, R.S.C. 1997, 170, s. 44.- Respondent's minor son, age 9, boarded a freight car at the corner of Murray and
Wellington Street, in Montreal, which car formed part of a then stationary freight train. The train then started to move and while it was in motion, the boy still holding on, one of appellant's employees, from the caboose of the train, shouted to him to
RAILWAYS-Concluded get off.
The boy jumped off, fell and was injured. It is undisputed that the boy was a trespasser. The jury found that the boy, immediately prior to the accident, was riding on the ladder of one of the cars and that the appellant's employee, one Tremblay, was in the cupola of the caboose when he shouted at the boy the last time. The verdict of the jury was that the accident was due to the fault, negligence and imprudence of both the boy because he had no business on the train and the appellant's employee for shouting. The jury assessed the contribution of each at fifty per cent. Appellant moved the Court to set aside the jury's verdict on the ground that the fault against the appellant, as determined by the jury, was not a fault in law in the circumstances of the case.
The trial judge refused the motion as did the majority of the Court of King's Bench.
Held: The Court should have declared that, in the circumstances, the shouting, as found by the jury, did not amount to a fault in law and should have dismissed the action. C.P.R. v. Anderson S.C.R. 200; Grand Trunk Ry. v. Barnett A.C. 361; Addie v. Dumbreck A.C. 358; Latham v. Johnston 1 K.B. 398 and Metropolitan Ry. Co. v. Jackson (1877) 3 A.C. 193 referred to. C.N.R.
................... REVENUE-Succession Duty - Settlement-Trust--Gift of equitable interest in securities-Bona fide possession and enjoyment donee immediately upon making gift retained to entire exclusion of donor - The Dominion Succession Duty Act, S. of 1940-41, 14, (am. S. of 1942, c. 95), 2(e), (n),83 (1 ) (a), (d), (1 ) (g), 8, 10, 15 (1), (9), (8), 22, 36.-In 1930 by a deed of settlement, "W" transferred to trustees certain securities in trust to pay the annual income arising therefrom to his daughter "M" during the lifetime of the settlor, and upon his death to transfer the said securities and the accumulated income therefrom to "M" for her absolute use; provided that should
"M"
die before "W", the trustees should transfer the securities and the accumulated income therefrom to "W" for his absolute use. The Dominion Succession Duty Act, of 1940-41, c. 14, came into force on June 14, 1941 and by an amendment, S. of C., 1942, c. 25, the provisions of the Act were made applicable retrospectively to successions derived from persons dying on or after June 14,1941.
"W" died on June 16, 1941 survived by "M".
The Crown claimed succession duties under the Act on the value of the securities in the trust fund at the death of "W".
Held: The trust fund was exempt from duty under the provisions of s. 7(1) (g)-such actual and bona fide possession and enjoyment of the property, the subject matter of the gift, was assumed by the donee immediately upon the making of the gift, as the nature of the gift and the REVENUE-Continued circumstances permitted, and was thenceforth retained to the entire exclusion of the donor, or of any benefit to him.
Commissioner for Stamp Duties of the State of New
South Wales v. Perpetual Trustee Co., Ltd.,
[1943] A.C. 425; 1 E.R. 525, followed.
TRUST Co. LTD ...........
2.-Income Tax-Deductions from Income
-Payments by construction company to obtain working capital to guarantors of bank loans-Whether "disbursements or expenses not wholly, exclusively and necessarily laid out or expended for the purpose of earning income", s. 6(1) (a). Whether "payments on account of capital", s. 6(1) (b),-Income
War Tax Act, R.S.C., 1927, c. 97.-Held:
That payments by a construction company to obtain necessary working capital for its operations, to guarantors of bank loans, are
"disbursements or expenses not wholly, exclusively and necessarily laid out or expended for the purpose of earning the income" within the meaning of s. 6(1) (a), and therefore not allowable deductions under the Income War Tax Act, R.S.C.,
1927, c. 97. They are "payments on accounts of capital" within the meaning of s. 6(1)
(b). Montreal Coke and Manufacturing Co. v. Minister of National
Revenue A.C., 127 followed.
Judgment of the Exchequer Court of Canada
[1947] Ex. C.R. 474, affirmed.
BENNETT &
WHITE Co.
-Shares
United States companies, registered in names of nominees, endorsed in blank-No transer office in Nova Scotia, where certificates situate-Situs of shares - Whether on death of testator domiciled in
Nova Scotia, "property situate in Nova
Scotia"-The Succession Duty Act (N.S.),
1946, c. 7-Canada-United States Tax Convention Act, 1944, (Dom.) c. 81.-"B", domiciled in Nova Scotia, caused to be registered in the names of employees at
Halifax of the Royal Trust Company, shares of United States companies having no share registry in Nova Scotia. The certificates, endorsed in blank, had attached declarations of trust by the registered holders to the effect that they had no right or interest in the shares and had delivered them to the Trust Company to whom all dividends were to be paid. The Trust
Company, accordance with
"B's"
written instructions held the certificates for management safekeeping.
After
"B's" death it was appointed admini trator with the will annexed of his estate.
that the shares were not "property situate in Nova Scotia" within the meaning of
The Succession Duty Act, s. 9(8).
situs of the shares was where they could be effectively dealt with as between the company and the shareholders, namely the
REVENUE-Continued
United States. Succession duty was therefore not payable under the Succession Duty Act, N.S., 1945, c. 7.
Stern v. the Queen [1896] 1 Q.B.D. 211, distinguished. Kerwin J. was of the opinion that even if that case be treated as an extension in England of the common law rule, it should not be so treated in Canada where the question of divided jurisdiction arises, but that the test of situs laid down in King v. National Trust [1933] S.C.R., 670, approved by Rex v. Williams [1942] A.C. 541, should be Rand J. was of the opinion that the law-making sovereignty of England was to be distinguished from that of a province of the Dominion of Canada, and that the power "of direct taxation within the province", interpreted as it has been by the authorities cited, is to be exercised on the footing that there is only one situs for every class of property and that situs must be within the province, and for shares, there can be no such division of interest or powers in or annexed to them as would in the result attribute to them a situs in two or more laces.
In the circumstances of the case, Kellock J., with the concurrence of Estey J., said, the mere fact that the shares were not registered in the name of the deceased does not render inapplicable the principle of the decision in Rex v. Williams; In re Ferguson (1935) I.R. 21; Attorney- General v. Higgins 2 H. & N. 339. Per Kerwin, Taschereau and Rand JJ., that the provisions of the Canada-United States of America Tax Convention Act, 1944, (Dominion) do not affect the power of the Province of Nova Scotia to collect and retain Succession Duty taxes.
IN W. H. THE KING.............. 4. - Customs - Smuggling - Seizure - Forfeiture-Acquittal by jury-Whether it invalidates seizure-Notice of seizure - Whether it concludes the right of Crown to make the seizure-Customs Act, R.S.C. 1927, c. 42, es. 172, 177.-Respondent's automobile and 159,600 American cigarettes were seized by Customs officers at the customs house at Armstrong, Quebec, where the respondent was reporting his re-entry into Canada but without declaring his possession of the cigarettes.
The Minister of National Revenue decided that the cigarettes and the automobile should be forfeited but his decision was reversed by the Exchequer Court. Held: Taschereau J. dissenting, that as the evidence established that respondent was guilty of a number of breaches of the Customs Act, any one of which was sufficient to warrant the seizure and forfeiture, his acquittal by a jury on a charge of unlawfully importing nor the fact that there had been no "smuggling" did not invalidate the seizure nor affect the right of forfeiture. Section 177 of the Customs Act considered.
Per Taschereau J. (dissenting)
: The evidence shows that respondent did not smuggle the cigarettes, REVENUE-Continued and as the Court has no jurisdiction to go beyond the reasons given by the Minister in the notice under sec. 172, it cannot therefore inquire whether he committed other infractions justifying the seizure.
5.-Succession duties-Whether property situated in Canada-Chose in action-Situs
-Dominion Succession Duty Act, 4-5
VI, 14, 6 (b), 2 (k).-W. domiciled
B.C., Canada, bequeathed to his wife "the sum of one hundred and fifty thousand dollars or one-half of my estate whichever may be the larger sum", making this bequest a first charge on the estate. W.
died in Vancouver in 1921.
His widow, also domiciled in B.C., died in 1924 leaving the residue of her property to Bonnie S., domiciled in California, U.S.A., who died in
January 1941 and left all her property to her husband George S., also domiciled in
California, and appointed him executor.
He died in 1944 and left all his estate to his nephew R., domiciled in California.
R.
died in 1944 leaving portions of the estate bequeathed by George S. to members of his family. The estate of W. in B.C. consisted chiefly of real property and the executor delayed the sale of it until November 1945, when the sum of $250,000 was realized therefrom.
The respondent Fitzgerald was appointed by a California Court administrator with the will annexed of Bonnie S.
and by virtue of a Power of Attorney from him the respondent Walsh was appointed ancillary administrator of the estate of
Bonnie S. in B.C.
Upon his death he was succeeded by Tupper who is now the sole executor of the will of W. and of W's widow. The Minister of National Revenue assessed duties on the succession from
George S. to R. and on the succession from
R. to his family. On appeal to the Exchequer Court by the administrator, the assessments were set aside. Section 2(k) of the
Act reads as follows: "Property includes property, real or personal, movable or immovable, of every description, and every estate and interest therein or income therefrom capable of being devised or bequeathed by will or of passing on the death, and any right or benefit mentioned in section three of this Act".
Held, affirming the judgment below, (Locke J. dissenting), that there was no property situated in Canada within the meaning of sec. 6 of the Succession Duty
Act, as neither George S. nor R. had, in the
British Columbia estate, the interest that is required by sec. 2(k) of the Act.
All that devolved upon their deaths was a right to have the estate of Bonnie S. administered and that right was a chose in action properly enforceable in the country of Bonnie
S.'s domicile, i.e. in California.
Per Locke
J. (dissenting): Raeburn in his personal capacity and those claiming under his will each succeeded to an interest in property situate in British Columbia out of which
51927-3
REVENUE-Continued the legacies were payable, within the meaning of sec. (k) of the Dominion Succession Duty Act, and such successions were liable to duty.
(In re Smyth (1898) 1 Ch. 89; Attorney-General v. Watson K.B. 427 and Skinner v. Attorney-General A.C.
350 followed: Attorney-General v. Sudeley A.C. and Doctor Barnado's Homes v. Special Income Tax Commissioners [1921] A.C. 1 distinguished.)
6.-Excess Profits Tax Act, 1940, 82, 4 (2)-"Taxpayer who acquired his business as a going concern after January 1, 1988"- Section does not apply to the case of a corporation in existence prior to that date which enlarges its business purchase of assets other companies merging them in its own.- The appellant in 1941 and 1942 acquired the assets and business of three subsidiaries as going concerns.
Without alteration of its share capital it then, under section 4(2) The Excess Profits Tax Act, 1940, of 1940-41, c. 32, sought to have added to its own standard profits those of the businesses it had taken over. Section 4(2) provides: "On the application of a taxpayer who acquired his business as a going concern after January 1, 1938, if the Minister is satisfied that the business carried on by the taxpayer is not substantially different from the business of his or its predecessor, he may direct that the standard profits of the said predecessor may be taken into account in ascertaining the standard profits of the said taxpayer."
Held: Affirming the decision of the Exchequer Court-, that the appellant did not acquire its business as a going concern after January 1, 1938. What it did was to enlarge the business previously carried on by it by purchase of the assets of the three companies.
S. 4(2) therefore does not apply to such a case.
BOR- REVENUE.......................... 7.-Income tax-Undistributed income company-Reduction and readjustment capital stock-Whether undistributed income capitalized-Income War Tax Act, R.S.C. 1927, 97, 15, 16.-Having an undistributed income on hand, a company, by Supplementary Letters Patent, reduced its capital by cancelling 200 unissued shares of a par value of $100 each and by reducing the par value of 1,800 issued shares from $100 each to $44 each.
These 1,800 shares were then converted into 1,800 preferred shares of a par value of $40 each and 1,800 common shares of a par value of $4 each. The Minister of National Revenue, treating the readjustment as effecting a capitalization of income, assessed a tax on appellant, as shareholder of the company, in respect of his share of that income received through the capitalization. Held, The Chief Justice 19491
REVENUE-Concluded and Kellock J. (dissenting)
, that the readjustment of the company's capital stock resulted in the undistributed income being capitalized within the meaning of sec. 15 of the Income War Tax
8.-Income Tax-Whether profits resulting from short sales of raw augar-taxable income or capital gain-Income War Tax Act,
R.S.C., 1927, c. 97, a. 8.-The appellant, incorporated as a Dominion company, carries on the business of refining raw cane sugar at Saint John, New Brunswick.
After the outbreak of war in September 1939 an abnormal demand for refined sugar arose and the appellant, in common with other
Canadian refiners, and pursuant to the
Government's request, undertook to meet the demand out of its stocks of refined sugar.
As a result, its normal stocks of raw sugar were depleted, and to reestablish its position it purchased raw sugar for immediate delivery at a considerable advance on pre-war prices.
A ceiling having been fixed on refined sugar prices, the appellant was faced with a prospective loss and to offset this, speculated in raw sugar futures on the stock exchange and made a profit of some $71,000.
In its income return it treated the sum as a capital gain. The respondent however assessed it as taxable income under the
War Income Tax Act and from that assessment the present appeal arose.
That, even if it were the only transaction of that character, in the light of all the evidence, it was a part of the appellant's business and therefore a profit from its business or calling within the meaning of section 3 of the Income War Tax Act.
Imperial Tobacco Co. v. Kelly, [1943] 2 All
E.R. 119; Anderson Logging Co. v. The
King S.C.R. 45; Ducker v. Rees
Roturbo Development Syndicate, A.C.
132, applied.
SHIPPING-Collision at sea in dense fog between fishing schooner and steamer in convoy-In situation of danger convoy orders re speed and position subject to each ship taking independent action in exercise of good seamanship. International Rules of the Road, article 16, (P.C. 259, 1897).-The steamer
Fanad Head and the auxiliary fishing schooner Flora Alberta collided in a dense fog on the Western Bank fishing grounds off the Nova Scotia coast. The schooner sank with a loss of twenty-one of her crew of twenty-eight. The Fanad Head was one of a convoy of eight ships in command of a commodore.
The convoy was formed in three columns, the commodore's ship led the centre column, the Fanad Head the port column of two ships, separated from the nearest ships by three cables abreast and
SHIPPING-Concluded two astern.
Under
Admiralty orders, transmitted by the commodore each shi was required to keep in convoy order both as to speed and course.
For some time prior to the collision the ships were running at eight knots an hour without lights, except for a cluster of white lights at the stern as a guide for the following ships, and fog signals were blown every ten minutes by the leading ship of each column. hearing a high pitched whistle ahead and to port, the Fanad Head sounded her column number independently and showed navigation lights, and hearing no reply, sounded again some few minutes later, but did not reduce speed. Three to four minutes later she again heard a high pitched whistle to port and a few minutes later saw lights 300 to 400 feet from the bow whereupon she put her helm hard to starboard, her engines full speed astern and blew three short blasts. The Flora Alberta was proceeding through the fog at nine knots an hour and blowing her fog whistle at regular intervals and her survivors said they heard no other fog signals until a steamer's whistle was heard at about the same time as her lights were sighted a ship's length away bearing down on them. Efforts of both ships to avert the collision were unsuccessful. International Rules of the Road, article 16, (P.C. 259, 1897), provide that every vessel shall, in a fog go at a moderate speed, having careful regard to the existing circumstances and conditions and that a steam vessel hearing, apparently forward of her beam, the fog signal of a vessel, the position of which is not ascertained shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of a collision is over. Held: Admiralty Orders to ships in convoy both as to speed and course are subject to the responsibility of the master of each ship in any situation of danger taking such independent action as good seamanship may require. Larchbank v. British Petrol [1943] A.C. 299 Held: also, Taschereau J. dissenting, that the negligence of both ships contributed to the collision and the blame should be apportioned to the extent of twothirds to the Fanad Head and one-third to the Flora Alberta. Per Taschereau J., dissenting, the speed of the Fanad Head was the determining cause of the accident. It was the duty of her Master, when he heard the fog signals of the Flora Alberta to reduce to moderate speed, and if the latter's position could not be ascertained, to stop the engines and navigate carefully. It seems clear he only inferred her position but this is not sufficient, he must ascertain it. Nippon Yusen Kaisha v. China Navigation Co. [1935 A.C. 177.
The finding of the trial judge that the Flora Alberta some time prior to the collision had reduced to a moderate speed, was right.
SS. IEA v.
Income Assessment - Whether decision of County Court Judge under
8. 57(3) final-The Assessment Act, R.S.O.
1937, c. 272, as. 57, 59, 60, 78, 76, 84, 123
The respondent, as provided by s. 57(3), appealed to the court of revision and from that court to the county court judge, who upheld the appeal. The municipality then appealed under a. 84 and the
Ontario
Municipal Board allowed its appeal. The respondent appealed to the
Court of Appeal for Ontario and that court held the decision of the county court judge was final. Held: That the appeal should be
Held: Also that as to the by-law passed in 1943 under s. 123, the appellant was not, in view of subsection 12, entitled to assess and tax the 1942 income.
Per: Taschereau, Kellock and Locke JJ., as to the income for the years 1940 and 1941, which the appellant purported to tax under s. 57: (1) The right of appeal given by s.
57(3) is a special and limited right of appeal from taxation exhausted when the county court judge is reached. Scottish Widows'
Fund Life Assurance Society v. Blennerhassett, [1912 A.C. 281 at 286; Furtado v.
London Brewery Co., [1914] 1 K.B. 709 at
(2) The right of appeal given by s.
84 is with respect only to entries in the current assessment roll which have been made the subject of formal complaint to the court of revision and not with respect to taxes already imposed.
Re Blackburn v.
City of Ottawa, (1924) 55 O.L.R. 494 at
Per: Kerwin and Estey JJ., that as to the 1940 and 1941 income, the income assessments and tax rolls prepared by the appellant in 1941 and 1942 do not fall within the meaning of "the assessment roll from which such assessment has been omitted" as prescribed by s. 57(2), and the actions of the appellant's officers failed to bring the respondents within the terms of s.
57. Per Kerwin and Estey JJ., (dissenting in part):
(1) The effect of deleting the words "and no appeal shall lie from the decision of the county court judge on any such appeal" from s. 123(8) by 1939, c. 3, s. 8, must have the effect of permitting further appeals, if the necessary conditions are met, to the Ontario Municipal Board and the Court of Appeal under s. 84.
When the person assessed exercises the right of appeal to the court of revision under s. 57(3), the matter is brought into the general stream so as to permit either the party or the municipality to pursue the matter to the end.
(2) In view of subsequent changes in legislation, the decision in the Blackburn case is no longer applicable.
v. HiAM
& AL.... 215
51927-31
TAXATION-Continued
2. - Assessment and taxation-Municipal Income Taxation-Whether appeal under s. 57(8)
3.-Assessment taxation
Business Assessment-Assessment
Income not derived from business assessed-Whether appeal lies from decision of county judge under s. 57(8)-the Assessment Act, R.S.O., 1937, c. 272, ss. 8, 9, 57, 84 and 12.-The respondent was incorporated with powers inter alia to purchase, hold, sell or exchange or otherwise dispose of shares of the capital stock of any other company.
It owns all the shares, excepting qualifying shares, of The Robert Simpson Co. Ltd.
It also owns all the property occupied by the latter company in Toronto, which it leases to it. In 1936 the subsidiary surrendered a portion of its leased property on Mutual street to the respondent to be occupied by it as its principal office.
The respondent's income consisted practically entirely of the dividends it received from its subsidiary. appellant under the Assessment Act, R.S.O., 1937, c. 272, s. 8 assessed the respondent for business assessment in respect of the premises used for its business in each of the years 1939, 1940, 1941 and 1942 and the respondent paid the taxes thereon in each of the succeeding years.
The appellant pursuant to s. 9(1) (b), in each of the years 1940 to 1943 inclusive, also assessed the respondent in respect of income which it contended was not derived from the business in respect of which it had been assessed under s. 8. In assessing such income it did so pursuant to a by-law passed under s. 123 (formerly s. 120a of 1934, c.1, s.8) which enables income to be taxed in the year immediately following the year in which ineomc is received.
Held: per Taschereau, Kellock and Locke JJ., (Kerwin and Estey JJ., dissenting), that the facts in the case bring it within s. 123 of the Assessment Act and for the reasons given in Walker's case, (1949] S.C.R. p. 215), there was no right of appeal from the decision of the county court judge to the Municipal Board, and the appeal should therefore be dismissed. Per Kerwin and Estey JJ., (dissenting), that for the reasons given by them in Walker's case, supra, an appeal lay to the Municipal Board, and the question now to be decided was whether the appeal from the Board's decision to the Court of Appeal was upon a question of law, as prescribed by s. 84(6), and that it should be held, that even if the purposes for which the respondent was occupying and using the premises in question could be said to be the carrying on of a business, and that therefore the respondent was liable to business assessment under s. 8; the question TAXATION-Continued whether the income for which the respondent was assessed was derived from the business in respect of which it was so assessable for business, is one of fact, and hence no appeal lies to the Court of Appeal.
CrrY oF TonoNro v. SmrsoNs,
4. - Assessment and Taxation-Schools- "Improvements"-"Improvements done to land"-Whether tunnel, machine shop equipment, transformers, assessable-"actual cash value"-Whether basis of valuation correct- Taxation Act, c. 282, Public Schools Act, c. 258,-R.S.B.C.,
This appeal involved the assessment and taxation under the Taxation Act, c. 282, and the
Public Schools Act, c. 253, R.S.B.C., 1936, of an intake canal and certain aqueducts or tunnels.
The intake canal is an open ditch leading from the river to the canal intake.
The tunnels are for the purpose of carrying water for the development of hydroelectric power. In some the water flows against the bare rock, others are partially or fully lined with reinforced concrete, and others are mere openings through the rock to allow the passage of a steel pipe to carry water. The issue to be determined was whether such objects constituted "improvements" as defined by the Taxation and
Public Schools acts respectively.
A second issue was whether machinery and equipment in a machine shop and transformers, not attached to but merely resting by their own weight upon the land, or in a building are "improvements" within the meaning of s. 2 of the Public Schools Act, as amended.
Held: That what is to be assessed is land, and the land is more valuable with the buildings, canal and tunnel thereon or therein than without them, the land in the condition in which the assessor found it is therefore assessable under the Taxation
Held: Also that the intake canal and tunnels are at least "things erected upon or affixed to land",-they are not "improvements"-and the same result therefore follows under the Public Schools Act as under the Taxation Act,
Rector of St. Nicholas v.
London City Council [1928] A.C. 469 followed; Maritime Telegraph & Telephone Co.
v. Antigonish, [1940] S.C.R., 616 and
McMullen v. District Registrar, 30 B.C.R.,
415, distinguished.
Held: Also, that the machines and transformers retain their character of personalty, and not being part of the real estate so as to constitute an
"improvement" thereto, are not assessable or taxable under the Public Schools Act.
Per Rand J. (dissenting)
-The basis of valuation employed by the assessor and the court of revision was contrary to that laid down by s. 30 of the Taxation Act, and since the mandatory provision of the statute to tax has not been complied with, the case should go back to the court of revision in which the error in law was made.
Cedar Rapids Manufacturing & Power Co.
v. Lacoste, [1914] A.C. 569; Maritime T. &
TAXATION-Concluded
T. Co. v. Antigonish, supra. The machines and transformers were pro erly included in the assessment.
RIVER Co. STATUTES- 1.-Assessment Act, R.S.O., 1937, c. 272, s. 67, 59, 60, 78, 76, 84, 123, 125...... 2.- Assessment Act, R.S.O., 1987, c. 272, ss. 8, 9, 67, 84, 123.................. 3.-B.N.A. Act, (1867) ss. 91, 92, 95 4.-Canada-United States Tax Convention Act, 1944, S. of C., 1944, c. 31........ 329 5.- Criminal Code, R.S.C., 1997, c. 86, s. 1025 (1) as enacted by 1948, S. of C., c. 39, s. 42......................
6.- Criminal Code, R.S.C., 1927, c. 36, ss. 929, 942, 960, 1014 (2) ........... 7.-Criminal Code, R.S.C. 1927, c. 36, ss. 69, 511, 1014(2)................. 8.- Criminal Code, R.S.C., 1927, c. 86, 839, 944, 1013 (4)............... 9.- Criminal Code, R.S.C., 1927, c. 36, s. 259.............................. 10.- Criminal Code, R.S.C., 1927, c. 36, s5.57, 290......................
11.-Criminal Code, R.S.C., 1927, c. 86, ss. 285 (6), 951(3).................. 12.- Criminal Code, R.S.C. 1927, c. 86, s. 286 (1) (c)...................... 13.-Criminal Code, R.S.C., 1927, c. 86, S. 1013 (4) as enacted by 1930 S. of C. c. s.28..........................
16.-Excess Profits Tax Act, S. of C.,
1940-41, c. 32, 8. 4 (2)...............
17.-Exchequer Court Act, R.S.C., 1927, c. 84, a. 56.....................
18.-Exchequer Court Act, R.S.C., 1927, c. 34, 8. 50A ........................
19.-Exchequer Court Act, R.S.C., 1927, c. 84, s. 47........................
20.-Expropriation Act,
R.S.C., 1927, c. 64...............................
21.- Forest Act, 1912, B.C., c. 17. ...
22.--Gaming Act, R.S.O., 1987, 297,
8.5 ................................
23.-Hotel Keepers Act, R.S.M., 1940,
C. 98...............................
.- Income War Tax Act, R.S.C., 1927, c. 97, s. 6 (1) (a), (b)...............
See 2.
5.-Income War Tax Act, R.S.C., 1927, c. 97, as.15,16.....................
26.-Income War Tax Act, R.S.C., 1927, c. 97, .8...... ...................
See 8.
27.-Judicature Act, R.S.O., 1987, c. 100,
8.17...............................
28.-Married Women's Property Act,
R.S.O., 1937, c. 209, s. 7.............
29.-Motor Vehicles Act, R.S.Q., 1941, c. 142, s. 29, 86, 58.................
30.-Negligence
R.S.O.,
1937, c. 115...........
................
31.-Patent Act, S. of C., 1935, c. 32, s. 19........ ..................
32.-Public Schools Act, R.S.B.C., 1986, c. 253, s. 2............
..........
STATUTES-Concluded
33.- Railway Act, R.S.C., 1927, c. 170, 34.-Succession Duty Act, The Dominion, S. of C. 1940-1941, c. 14, ss. 2 (k), 6 (b) 453 35.-Succession Duty Act, The Dominion, S. of C., 1940-41, c. 14, as amended by S. of C., 1942, 25, 2 (e), (m), (n), 8 (a), (d), 7 (1) (g), 8, 10, 11, 15 (1), (8), 22, 6............................. 36.-Succession Duty Act, (N.S.), 1945, c. 7, s. 9 (8)........................ 37.-Supreme Court Act, R.S.C., 1927, c. 85, s8. 2 (b), (e), 89 (a) ........... See 2.
38.-Supreme Court Act, R.S.B.C., 1986, c. 56, s, 60.....................
42.- Supreme Court Act, R.S.C. 1927, c. s. 70.....................
See 6.
43.-Taxation Act,
R.S.B.C., 1986, c. 282, 2, 30..................... 44.-Trade Mark and Design Act, R.S.C., 1927, c. 201, ss. 11 (e), 52 (1) ........ 678 See 2.
45.- Trustee Act, R.S.M., 1940, c. 221 ................................... 46.-Unfair Competition Act, S. of C., 1982, c. 38, s. 2 (k)................. See 2.
47.-Vehicles and Highway Traffic Act, R.S.A., 1942, c. 275, s. 47 (1) ........ TRADE MARK-Descriptive word-Laudatory epithet not subject of monopoly - The Unfair Competition Act, 1982, (Can.) 1932, c. 38, ss. 1, 2 (d), (k), (1), (m), (o), 26, 27 and 29-Practice--The Exchequer Court Act, R.S.C., 1929, c. 34, s. 56-The Exchequer Court Rules-rules 36, 87, 41 and 800.-The respondent in proceedings taken under section 29 of The Unfair Competition TRADE MARK-Continued
Act, 1932, to register the words "superweave" as its trade mark, obtained a judgment from the Exchequer Court of Canada declaring that it had been proved to its satisfaction that the mark had been so used by the respondent as to have become generally recognized by dealers in and/or users of textiles as indicating that the respondent assumed responsibility for the character and quality of wares bearing that mark.
In so doing the respondent complied with the practice of the Exchequer Courtunder r. 35 it published notice of the filing of its petition for registration in the Canada
Gazette; under r. 36 it served the Minister with a copy of the petition and of the notice, and no one appearing to oppose its application for registration, it then under r. 37 filed the required affidavit with the
Registrar of the Court, served the Minister with notice, and moved for a declaratory order by serving notice upon the Registrar of Trade Marks whom it named as respondent in the style of cause.
The latter then opposed the application.
Held: that the appeal should be allowed, and that (reversing the decision of The Exchequer Court), the petition be dismissed.
Rand and Kellock JJ. (dissenting in part)
, that the compound word "super-weave" is a laudatory epithet of such common and ordinary usage that it can never become adapted to distinguish within the meaning
2(m) of The Unfair Competition Act,
It being impossible to bring the word within the meaning of "trade mark"
as defined by s. 2(m), an application under s. 29 cannot succeed.
Rand and Kellock
JJ. agreed with the majority of the Court that the appeal should be dismissed but only on the ground that the onus of proof imposed upon the applicant by s. 29 had not been met. Per Rand J.-The expression "has become adapted to distinguish"
as used in The Unfair Competition Act, 1982, s. 2(m), includes any case in which the word mark has in fact become the identifying badge of the article to which it is attached so that when associated with goods of a particular trade whatever primary meaning it may have had is submerged and only the trade designation remains.
Per Rand and
Kellock JJ.-When it is proposed to withdraw an ordinary word from the common use the task of establishing the secondary meaning becomes greater according to the extent of that use.
Per Kellock J.-By the terms of s. 2(m) if the symbol "has become adapted to distinguish" and "is used" for any of the purposes mentioned therein that is sufficient to constitute a registerable mark provided it is not excluded under such sections as 14, 26 and 27.
The Court has no discretion to exclude any word apart from the sufficiency of evidenc,\ adduced in support of its having become adapted to distinguish the wares of the applicant.
A clearly descriptive word which has acquired a secondary meaning
TRADE MARK-Continued within s. 29(1) is a word which "has become adapted to distinguish" within s. 2(m) so that in the case of such a word to satisfy the requirements of the latter part of s. 29, is to satisfy the definition in s. 2(m). Per Estey J.-A survey of the relevant sections and of the Statute as a whole lead to the conclusion that the phrase "adapted to distinguish" has the same meaning in our statute as under the statute in Great Britain.
It follows that words commonly used and appropriately described as laudatory epithets cannot become registrable as trade marks.
Also, that the appellant having been named as a party and so treated by the Exchequer Court, had the necessary status to appeal.
v. G. & Co. ....... 2.- Trade-marks-"Frigidaire"-Whether an invented word-Whether distinctive per se- Whether descriptive-Proof of acquisition secondary meaning required under The Trade Mark and Design Act; The Unfair Competition Act, 1932-Whether "Frozenaire" similar to "Frigidaire"-The Trade Mark and Design Act, R.S.C. 1927, ss. (e), 52 (1); The Unfair Competition Act, (Dom.) 1932, 38, ss. 2 ), 23 (5), 29, 32, 52 (1).- The appellant appealed from a judgment of the Exchequer Court which dismissed its motion to expunge from the Register of Trade Marks the trade mark "Frozenaire" as applied to electric refrigerators and refrigeration on the ground that such trade mark was similar to the trade mark "Frigidaire" previously registered by appellant in respect of refrigeration apparatus. It further appealed from a judgment of that Court whereby a motion of the respondent to expunge from the Register the trade mark "Frigidaire" on the ground that it was descriptive, was allowed.
Held: (Rinfret C.J. and Kerwin J. dissenting) that "Frigidaire" is not an invented word but a combination of "frigid" and "air". It is not distinctive per se but is descriptive of the "character" of the article and the mark, without proof under r. 10 of the Trade Mark and Design Act that it had become distinctive by use, should have been rejected.
Held: also, that the evidence submitted in support of the application under The Unfair Competition Act, 1932, s. 29, that the mark had in fact become distinctive at the time of application for registration, was insufficient.
Per Rinfret C.J. and Kerwin J. (dissenting)
.-Applying the principles laid down in Lightning Fastener Co. Ltd. v. Canadian Goodrich Co. Ltd. to the evidence adduced in the present case, it should be held that "Frigidaire" was not descriptive within the meaning of the Trade Mark and Design Act and that the alternative application under Unfair Competition Act should be dismissed with costs.
Held: further, that the trade mark "Frozenaire" was not similar to the trade mark "Frigidaire" within the meaning TRADE MARK-Concluded of The Unfair Competition Act, 1982, s. 2
(k).
Aristoc Ld. v. Rysta Ld. applied.
Kellock J. was of opinion that "Frozenaire"
was not properly registered under The
Unfair Competition Act because of its descriptiveness in connection with the goods to which it was applied, and applying the principle laid down in Paine v. Daniels, would have directed that it be expunged from the
Register.
BELLOWS...........
WATERS
WATERCOURSES - Rights of Riparian Owners-New trial, discovery of new evidence as ground for-Jurisdiction to award damages in lieu of Injunction-The Supreme Court Act, R.S.C., 1927, c. 85, s. 68-Ontario Judicature Act, R.S.O.,
1987, c. 100. a. 17.-The plaintiffs, lower riparian owners on the Spanish River, sued the defendant, the operator of a pulp and paper mill situate up the river at Espanola,
Ontario, for pollution of the waters of the river by discharges from its mill. They secured a judgment in damages and an injunction restraining the defendant from permitting discharges from the mill into the river of anything tending to pollute its waters to the injury of the plaintiffs. The
Ontario Court of Appeal affirmed the judgment, subject to a variation in the form of the injunction granted.
The defendant appealed to this Court alleging error in the granting of the injunction when damages would have been an adequate remedy and prayed that a new trial be granted upon terms, limited to the issue as to whether an injunction should go.
Held: A new trial could not be granted as it had not been shown that new evidence had been found which the defendant could not have found by the exercise of reasonable diligence prior to the trial, and that if adduced, would be practically conclusive.
Varette v. Sainsbury applied.
that provisions of the Ontario Lakes and Rivers
Improvement Act, even if it purported to do so, would not enable this Court to give a judgment that was impossible in law at the time of the decision of the Court of Appeal, and that the amendment to s. 68 of the
Supreme Court Act refers only to further evidence upon a question of fact.
Boulevard Heights v.
Veilleux. Held: Further, that although under s. 17 of the
Ontario Judicature Act, the Court has jurisdiction to award damages in lieu of an injunction, its discretion is governed by the consideration of whether the granting of damages would be a complete and adequate remedy, and since pollution has been shown to exist, it would not be, and the injunction should therefore, go.
Leeds
Industrial Co-Operative Society Ltd. v.
Slack referred.
Injunction ordered stayed for period of six months.
Stollmeyer v.
Petroleum Development Co. Ltd. and Stollmeyer v. .Trinidad Lake Petroleum Co. Ltd.
referred. THE KVP
McKIE
WILLS-Construction-Life tenant- Residuary Personal estate-Power to executor to invest in securities he may deem advisable- Power to pay part of capital to tenant- What remains to be divided upon death of tenant-Whether executor has power to invest in unauthorized securities-Whether tenant entitled to income from unauthorized securities-Manitoba Trustee Act, R.S.M. 1940, c. 221.-Held: A will directing that the executor "shall invest in such securities as he may deem advisable", the income therefrom to be paid to the widow with power to pay her part the capital, and directing that "such part of my estate as remained" shall be divided upon her death, does not give the executor power to retain or invest in unauthorized securities; and, therefore, the widow as life tenant of the residuary estate is not entitled to the income produced by unauthorized investments such as shares in a manufacturing company. Howe v. Dartmouth (1802) 7 ves. 137 applies. WORDS AND PHRASES.
1.-"Amount in controversy" (Supreme Court Act, R.S.C., 1927, c. 85, 89, 40) ...................................
See 2.
2.-"Improvements" - "Improvements done to land"-"actual cash value" (Taxation Act, R.S.B.C., 1986, c. 282, s. 2), (Public Schools Act, R.S.B.C., 1986, c. 258, s.2).......................... 3.-"Disbursements or expenses not wholly, exclusively and necessarily laid out or expended for the purpose of earning income" (Income War Tax Act, R.S.C., 1927, c. 97, s. 6 (1) (a))....................
See 2.
4.-"Payments on account of capital" (Income War Tax Act, R.S.C., 1927, c. 97, s. 6 (1) (b))....................
See 2.
5.-"Property situate in Nova Scotia" (Succession Duty Act (N.S.), 1945, c 7 a. 9 (8)).......................
6.-"Taxpayer who acquired his business as a going concern after January 1, 1988' (Excess Profits Tax Act, 1940 (Dom.) c. 82, s.4 (2))........................... See 6.
7.-"Rights in future" (Supreme Court Act, R.S.C., 1927, c. 85, a. 41 (c) and (f)) ........
Cases cited
- A.C. 328 A.C. 328
- A.C. 310 A.C. 310
- Steedman v. Drinkle 1 A.C. 275 280
- 1 W.W.R. 929 1 W.W.R. 929
- A.C. 79 A.C. 79
- A.C. 980 A.C. 980
- The King v. Comba scr-1938-396
- A.C. 599 A.C. 599
- A.C. 569 A.C. 569
- Pastoral Finance Assoc. Ltd. v. The Minister A.C. 1083
- Vyricherla Narayana v. The Revenue Officer A.C. 302
- 12 A.C. 315 12 A.C. 315
- Irving Oil Co. Ltd. v. The King scr-1946-551
- Latham v. Johnston 1 K.B. 398 and Metropolitan Ry. Co. v. Jackson 3 A.C. 193
- A.C. 425 A.C. 425
- A.C. 541 A.C. 541
- A.C. 1 A.C. 1
- A.C. 299 A.C. 299
- Walker's Walker's case, supra
- A.C. 469 A.C. 469
- T. Co. v. Antigonish T. Co. v. Antigonish, supra
Statutes and regulations cited
-
Interpretation Act
- s. 19 of the Interpretation Act
- ss. 2(b)
- section 2(b)
- s. 19
-
- s. 7
- ss. 29
- 36
- 58
- section 36(1)
- s. 47(1)
- s. 29
- s. 56
- section 29
-
- s. 7(1)
- s. 6(1)
- s. 9(8)
- section 4(2)
- Section 4(2)
-
- Section 177 of the Customs Act
- Section 2(k)
-
Unresolved citations
- section 5(a)
- Section 5 of the Dairy Industry Act
- Section 3 of the Gaming Act
- s. 12 of the Married Women's Property Act
- section 53 of the Quebec Motor Vehicles Act
- s. 19 of The Patent Act, 1935
- section 3 of the Income War Tax Act
- s. 123 of the Assessment Act
- s. 2 of the Public Schools Act
- s. 30 of the Taxation Act