Majority
California judgment, and the judgment in appeal ought not to be disturbed. I would therefore dismiss the appeal MCKEB with costs.
McKzs Appeal allowed. Kello-k J. Solicitors for the appellant: Slaght, Ferguson, Boland and Slaght.
Solicitors for the respondent: Sims, Broy, Schofield and Lochead.
RE BABY DUFFELL:
RAYMOND
A.
MARTIN unes MYRTLE P. MARTIN (RESPOND- APPELLANTS;* ENTS) .
LILY AVES DUFFELL, (APPLICANT)
. . RESPONDENT. ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. Infant-Adoption, illegitimate child-When mother's consent revocable- Custody, Surrogate Court's jurisdiction-The Adoption Act, R.S.O., 1987, c. 218-The Infants Act, R.S.O., 1987, c. 215-The Surrogate Act, R.S.O., 1987, c. 106.
The mother of an illegitimate child a month after its birth surrendered custody of the infant to proposed foster parents and at the same time signed a consent in the form of a statutory declaration headed "In the Matter of The Adoption Act", a printed form supplied by the Department of Public Welfare, which administers the Act, declaring that she of her own free will consented to an Order of Adoption and understood that the effect of such Order would be to permanently deprive her of her parental rights.
Some two months later she changed her mind and sought to regain custody of the child from the foster parents.
Held: That the consent required by the Adoption Act must exist at the moment the order of adoption is made. Re Hollyman [1945] 1 All E.R. 290, followed. At any time prior to the making of an order of adoption the wishes of the mother of an illegitimate child as to its custody must be given effect unless very serious and important reasons require that, having regard to the child's welfare, (the first and paramount consideration), they must be disregarded. Re Fez [19481 O.W.N. 497 referred to and questioned: Reg. v. Barnado [18911 1 Q.B.D. 194; Barnado v. McHugh [1891] A.C. 388 and In Re J. M. Carroll [19311 1 K.B. 317 followed.
Kerwin, Rand, Kellock, Estey and Cartwright JJ. for Ontario, (1) reversing the decision of Macdonell J., of the Surrogate Court of the County of York dismissing a mother's application for custody of her illegitimate child. Arthur Maloney for the appellants.
B. J. Mackinnon for the respondent.
J.:-This is an appeal from a unanimous judgment of the Court of Appeal for Ontario reversing the decision of His Honour Judge Macdonell, Judge of the Surrogate Court of the County of York, and awarding the custody of an infant boy to the respondent.
At the opening of the appeal it was submitted by counsel for the appellants that the Surrogate Court was without jurisdiction. It is said that the jurisdiction of the Surrogate Court to deal with the custody of infants is purely statutory being derived from s. 1 of The Infants Act, R.S.O. 1937, c. 215 and that, properly construed, this section confers jurisdiction only in the case of a legitimate child.
While ordinarily this Court would hesitate to entertain a ground of appeal raised here for the first time and not taken before the trial Judge or before the Court of Appeal either on the hearing of the appeal or on the motion for leave to appeal to this Court, I think it necessary to consider this objection because if it should prove valid the result might well be that the order now in appeal is a nullity and the rights of the parties remain undecided. On consideration, I do not think that the objection is well taken. The relevant words of Section 1 of The Infants Act are:- I cannot find anything in the rest of the Act to cut down the ordinary meaning of the word "mother" or of the word "infant". It is clear that the infant whose custody is in question was resident in the County of York at all material times and that the respondent who was the applicant in the Surrogate Court is his mother. In my view the Surrogate Court had jurisdiction to deal with the application.
The infant is the illegitimate child of the respondent. He was born at the city of Toronto on March 3, 1948. The home of the respondent is in England.
She was visiting Ontario on a holiday in the year 1947, and there met the father of the infant. It appears that there is no intention of the respondent and the father of the infant being married.
The respondent came to Toronto some months before the infant was born and secured employment there for a time.
She is a comptometer operator and appears to have no difficulty in obtaining employment. The father of the infant gave some financial assistance while the respondent was unable to work. The respondent attended the Yarmey Clinic in Toronto for pre-natal care and was looked after by Doctor Stark who was then a member of the clinic. Mrs. Martin, one of the appellants, was a laboratory technician at the clinic, and she and the respondent became friendly. The respondent had not advised her parents in England of her condition and was in doubt as to whether she should try to keep her baby after it was born or whether she should make arrangements to have it adopted. Before the birth of the baby she had discussions as to this with Doctor Stark and others. The respondent's health was bad for some weeks after the birth, but she completely recovered and is now in good health.
While the respondent was in hospital following the birth, Mrs. Martin visited her and they had some discussion as S.C.R.]
to whether the respondent would let Mrs. Martin adopt the boy, the appellants being then anxious to adopt him. On the 31st of March, 1948, the respondent signed a form of consent to the adoption of the infant.
This consent is in the form of a statutory declaration headed "In the matter of the Adoption Act", and reads in part as follows: We were informed by counsel that the original of this declaration is on a printed form which is supplied by the Department of Public Welfare which administers the Adoption Act; but no form of consent is prescribed by that Act or by the regulations made thereunder.
The infant was handed over to Mrs. Martin on April 1, 1948 and has since that date been in the custody of the appellants. It is conceded that they have looked after the infant in an admirable manner, that they are devoted to him, and are in a position to give him a good home and a suitable upbringing.
Not very long after the infant had been given to the appellants, the respondent regretted her decision. On the 18th of June, 1948 she wrote a letter to Doctor Stark, who had advised her from time to time in a friendly way, asking him to use his best efforts to get her baby back for her. She also took the matter up with the officials of the Children's Aid Society.
The respondent says that she approached Mrs. Martin in the matter as well as the Children's Aid Society, and while her evidence in this regard is not entirely free from ambiguity I read it as meaning that Mrs. Martin told her that the appellants would give the baby back if the respondent obtained a letter from her parents, with a witness, saying that they would provide a home for him. The date of this interview is not fixed but it appears to have been in the autumn of 1948. Mrs. Martin gave evidence, but she was not asked anything about this statement either in examination-inchief or in cross-examination.
In the view that I take, it is not of importance to determine whether the suggestion as to obtaining the letter from the respondent's parents was made by Mrs. Martin or by an official of the Children's Aid Society.
The respondent did obtain a letter dated the 28th of December 1948, signed by her father and mother and by a witness, stating that her parents wished to adopt the baby.
Following the receipt of this letter, it was ascertained that the appellants were not willing to give up the infant. The application to the Surrogate Court followed. affidavit of the respondent in support of the application was sworn on the 13th of January, 1949, and the notice of motion is dated the 5th of February 1949. The matter was heard before His Honour Judge Macdonell on the 12th of April 1949.
According to the respondent's evidence, which was accepted by the learned trial judge, the parents of the respondent are about fifty-five years of age.
They are both in good health. The father is a retired sergeant of police, is in receipt of a pension and is gainfully employed as a civil servant. They live in a suburb of London in a comfortable home, which they own clear of encumbrance. They are willing and anxious to receive the respondent and infant and to adopt the infant.
At the conclusion of the hearing the learned trial judge dismissed the application, holding himself bound by a passage which he quoted from the judgment of McRuer C.J.H.C. in the case of Re Fex (1), at page 499, which was not in terms either rejected or adopted by the Court of Appeal in affirming such judgment.
The passage referred to is as follows:
S.C.R.]
right. I think the parent must go further and show that "having regard R-EB to the welfare of the child" it should not be permitted to remain with the foster parents.
MAT
The learned trial judge interpreted this as laying down DuFELL the rule that under the circumstances outlined the Court Cartwright J. must not deprive the foster parents of the custody of the child unless it be affirmatively shown that it would be detrimental to its welfare to remain with them. His Honour stated that, by reason of the decision in Re Fex, it was unnecessary for him to make the difficult choice as to which of the two proposed homes would be better for the infant.
In the Court of Appeal (1), Aylesworth J.A. with whom Bowlby J.A. agreed, did not agree with the interpretation placed by the learned trial Judge upon Re Fex. He says: I think it is clear from the judgment in that case, of not only the Chief Justice of the High Court before whom it came on to be heard in the first instance, but from the judgment of this Court on appeal, that the welfare of the child is the first and paramount consideration. Laidlaw J.A. dealt with the matter as follows:
However, the facts that the mother of a child has voluntarily given the custody of it to others, and has consented of her own free will and accord to an order of adoption under the provisions of The Adoption Act with a full understanding of the nature and effect of an adoption order, do not in every such case prevent her from regaining custody of the child before an adoption order is made by the Court. The Court may, in the exercise of a discretionary power possessed by it, restore the custody of a child to its mother at any time before an adoption order has been made, notwithstanding the fact that she has given the custody of it to others in that manner and under those circumstances. On the other hand, the mother is not entitled in law to an order of the Court restoring the custody of her child to her in such a case upon proof only of the fact that she is the mother of the child. The paramount consideration and the question which the Court must decide in each particular case according to the circumstances is, "What is best for the welfare of the child?"
The Court of Appeal were unanimously of opinion that, although it is a case of great hardship so far as the appellants are concerned, under all the circumstances the welfare of the child will be best served by directing that he be returned to the respondent. I respectfully agree with this conclusion, and observe that the learned trial judge, who has had great experience in such matters, and who had the advantage, denied to the Appellate Courts, of hearing and observing all the parties, did not express any contrary view.
(1) [19501 O.R. 35 at 42.
It is now necessary to examine the argument of counsel for the appellant that even if the court should reach such a conclusion the appeal should nonetheless succeed. It is said that when consideration is given to the provisions of The Adoption Act (R.S.O. 1937, c. 218, amended 1949 Statutes of Ontario 1) the proper conclusion is that the respondent, by signing the consent of March 31, 1948 referred to above, forfeited any natural rights she might have had to the custody of her child, and contemporaneously with the surrender by her of her natural rights, by this free act of her own volition, new and important rights were acquired by the appellants who assumed their duties as foster parents of the child and were awaiting the expiry of the probationary period prescribed by The Adoption Act.
It is urged that the scheme of adoption established in Ontario contemplates a probationary period of two years during which time the conduct of those who apply for custody of a child, with a view to its adoption, and the conditions under which the child is living are under the scrutiny of the Provincial Officer (section 3e); that the consent of the respondent, as mother of her illegitimate child, which is required (by section 3b (1) and (2) and section 4 (a)) before an adoption order can be made, shall be executed before the commencement of the probationary period, and that after the expiration of the probationary period a final order of adoption may be made on the production and filing of such consent.
It is argued that the probationary period is not prescribed for the purpose of enabling a mother who has already executed a valid consent as required by section 3b(2) to regain custody of her child or to change her mind about its adoption but rather for the purpose of enabling the proper authorities to determine whether or not the adopting parents, and the conditions under which they live are satisfactory, having regard to the future welfare of the child.
It is said, if upheld, the decision in appeal will endanger the whole scheme of adoption, not only in Ontario but in other provinces in which legislation similar to that in Ontario is in force. Reliance is placed upon the decision in S.C.R.J
Re Fex (supra). It is argued that the learned trial judge correctly interpreted that decision and that it should be followed. Reference is made to a passage in the judgment of McRuer C.J.H.C. which follows immediately the passage quoted by the learned trial judge:
and to the statement of Middleton J. in Re Sinclair (1), decided before the enactment of The Adoption Act: It is, I think, perfectly clear on the evidence, and on the findings of the learned trial judge and of the Court of Appeal that no fault is imputable to the appellants and that the home and upbringing which they are able and anxious to provide for the infant would be eminently satisfactory. If therefore the above argument is well-founded the appellants would be entitled to succeed.
In my opinion the argument must be rejected. It is, I think, well settled that the mother of an illegitimate child has a right to its custody, and that, apart from statute, she can lose such right only by abandoning the child or so misconducting herself that in the opinion of the Court her character is such as to make it improper that the child should remain with her. There is no suggestion in the case at bar that the respondent abandoned the child or that her conduct and character are other than excellent. It is also clear that the mother of an illegitimate child cannot bind herself by an agreement to deliver up her child to a stranger, and that the Court will, on her application, compel the return of a child delivered pursuant to such an agreement. As stated by Lindley, L.J. in Regina v. Barnardo (2) at page 211:
This judgment was affirmed sub. nom. Barnardo v. McHugh (1).
As was pointed out by Scrutton L.J. in In re J. M..cartwright Carroll (2), the circumstances which will move the Court to refuse to support the mother on the ground that her wishes are detrimental to the' child must constitute "a matter of essential importance" or be "very serious and important".
It is urged that, in Ontario, these well settled rules are modified by the provisions of The Adoption Act, that the mother's consent to adoption once voluntarily given is, in effect, irrevocable, or at all events that her withdrawal of such consent can and should be disregarded by the Court unless it appears to be in the best interests of the child that she should be allowed to withdraw it. Reliance is placed upon the reasoning of the United States Court of Appeals in In re Adoption of a Minor (3).
The judgment in that case is, I think, distinguishable by reason of certain differences between the wording of the statute there under consideration and that of the Ontario Adoption Act. prefer to follow the judgment of the Court of Appeal in England in re Hollyman (4).
The wording of the English Act dealt with in that case is I think similar in all relevant respects to that of the Ontario Adoption Act and I am of opinion, for the reasons stated by the Master of the Rolls, that the consent required by section 4 of the Ontario Act must exist at the moment the order of adoption is made. Of course, as is pointed out in that case, a consent once given remains operative unless revoked.
The construction for which the appellants contend would bring about the result that the mother is bound by her consent from the moment of giving it, while the appellants remain free, up to the making of the order of adoption, to change their minds, leaving the obligation of the mother to maintain her child still in existence. The supposed danger of the purposes of The Adoption Act being defeated by the construction which I think is the proper one is met to a limited extent by the provisions of section 3d of The Adoption Act which permit the Court to dispense with the consent of the parents of a child if, having regard to all the circumstances of the case, the Court is of opinion that such consent may properly be dispensed with. This will be a safeguard in a case, for example, where a consent voluntarily given at the commencement of the two year probationary period is sought to be capriciously withdrawn at its termination, and there are in the Court's opinion matters of essential importance having regard to the welfare of the infant which require that it be left with the foster parents. Should the view which I have expressed above as to the proper construction of The Adoption Act not be in accordance with the true intention of the Legislature such intention could, without difficulty, be expressed as an amendment to the Act. In the present state of the law as I understand it, giving full effect to the existing legislation, the mother of an illegitimate child, who has not abandoned it, who is of good character and is able and willing to support it in satisfactory surroundings, is not to be deprived of her child merely because on a nice balancing of material and social advantages the Court is of opinion that others, who wish to do so, could provide more advantageously for its upbringing and future. The wishes of the mother must, I think, be given effect unless "very serious and important" reasons require that, having regard to the child's welfare, they must be disregarded. In this case, the question which the Court has to decide is whether the child should remain with his foster parents or return to his mother, when it appears that there is every probability that he will be loved, well cared for and properly brought up in either situation. I agree with the Court of Appeal that the child should be returned to his mother.
Counsel for the respondent stated that in the event of the appeal failing, the respondent would not ask for costs. It is a noteworthy feature of this case that in spite of the very strong desire of both parties to have the child, they have throughout treated each other with the utmost consideration and respect.
There has been a complete absence of recrimination and each has conceded throughout that the child would be well cared for by the opposite party.
Before parting with the matter I would like to express appreciation of the assistance which we received from counsel, both of whom argued the case with great frankness and ability.
The appeal should be dismissed without costs.
J.:-I agree with the reasons and conclusion of my brother Cartwright, but I desire to add the following observations to what he has said on the language of McRuer C.J.H.C. in re Fez (1), quoted by him. The Chief Justice treats as similar to his own, views expressed by Middleton J. in re Sinclair (2), and in Re Chiemelewski If his language is intended to mean, as the judge of first instance here thought it did, that after the mother of an illegitimate child, with a view to adoption, has transferred custody to another under a formal declaration of consent to adoption, she must, in order to recover the child, show in effect that the foster parents are unfit for further custody, in other words, treating the preliminary consent as irrevocable; then, with the greatest respect, I must dissent from it. In the settled formula, the welfare of the infant is the controlling consideration: that is, the welfare as the court declares it; but in determining welfare, we must keep in mind what Bowen L.J., in the case of In re Agar- Ellis (4), as quoted by Scrutton, L.J. in In re J. M. Carroll (5), says: "* * * it must be the benefit to the infant having regard to the natural law which points out that the father knows far better as a rule what is good for his children than a Court of Justice can."
Only omniscience could, certainly in balanced cases, pronounce with any great assurance for any particular custody as being a guarantee of ultimate "benefit" however conceived. The successful administration of The Adoption Act requires, admittedly, an adequate appreciation of the interest of the person proposing to adopt, but in the light of the corresponding law in England, I doubt that the fears expressed are of real dangers. In Re Hollyman (1), in which ws el it was held that the consent of the parent to adoption must be operative up to the moment of making the order, and -"
that it might be withdrawn at any time before that, Lord Greene, M.R., uses this language:
Section 3 of that statute provides that the Court making the adoption order must be satisfied, that:
That is the substance of the language of the statute of Ontario. The form of consent used in Re Fex and here is not statutory: it is departmental; and its effect is no more than evidence of the consent required by the statute when the order is made.
The situation in Re Sinclair and Re Chiemelewski was different: in them, the child had been given to foster parents by a Children's Aid Society.
The distinguishing circumstance is that in such cases the State, for good reasons, has stepped in and asserted its paramount interest: and that the relations of foster parents so arising should not be "lightly disregarded" or "lightly ignored" without fault on their part, to use words of Middleton, J., is undoubted. In this case the State has not stepped in nor can I agree that we can properly assimilate the two situations. The question here is what, in the light of all circumstances, does the benefit of the child, in the broad sense indicated, call for.
Appeal dismissed without costs. Solicitors for the appellants: Edmonds and Maloney. Solicitors for the respondent: Hooper and Howell. Adoption, illegitimate child-When mother's consent revocable-Custody, Surrogate Court's jurisdiction-The Adoption Act, R.S.O., 1937, c. 218-The Infants Act, R.S.O., 1987, c. 315-The Surrogate Court Act, R.S.O.,
1937, c. 106. The mother of an illegitimate child a month after its birth surrendered custody of the infant to proposed foster parents and at the same time signed a consent in the form of a statutory declaration headed "In the Matter of The Adoption
Act", a printed form supplied by the
Department of Public Welfare, which administers the Act, declaring that she of her own free will consented to an Order of
Adoption and understood that the effect of such Order would be to permanently deprive her of her parental rights. Some two months later she changed her mind and sought to regain custody of the child from the foster parents. Held: That the consent required by the Adoption Act must exist at the moment the order of adoption is made. Re Hollyman [1945] 1 All
E.R. 290, followed. At any time prior to the making of an order of adoption the wishes of the mother of an illegitimate child as to its custody must be given effect unless very serious and important reasons require that, having regard to the child's welfare,
(the first and paramount consideration), they must be disregarded.
Re Fex [1948]
O.W.N. 497 referred to and questioned;
Reg v. Barnado 1 Q.B.D.
Barnado v. McHugh [1891] A.C. 388 and
In Re J. M. Carroll [1931] 1 K.B. 317 followed.
Per: Rand and Kellock JJ.- So far as Re Fez may be taken to hold that a consent as given here is irrevocable except only on proof that the foster parents are unfit for the custody, dissented from.
In Re Agar-Ellis 24 Ch.
J. M. Carroll [1931] 1 K.B. 317 referred to;
In Re Hollyman [1945] 1 All E.R. 290, approved; Re Sinclair 12 O.W.N. 79 and
Re Chiemelski, 61 O.L.R. 651, distinguished.
Held: Further, that the Surrogate Court of the county in which an illegitimate infant resides has upon the application of the mother of such infant jurisdiction under s. 1 of The Infants Act to deal with its custody.
MARTIN DUFFELL................ .737
APPEAL - Appeal - Special leave-Jurisdiction-Whether statute giving new right of appeal is retrospective- New trial-Starting point of proceedings- Same indictment-11-19 Geo. VI, c. 89, s. 42, enacting s. 1025 (1) Criminal Code 352
APPEAL-Concluded
2.-Criminal Law-Appeal from Sumsum of money to be paid into Court-Whether condition precedent to right of appeal met, where appellant prior to date fixed for payment, deposits with the Court the amount fJIed by it to cover costs of appeal-The Criminal Code, R.S.C., 1937, c. 86,8.750(c), as amended by 1947, c. 55, s. 3. Husband and Wife-Summary Proceedings for Maintenance-The Deserted Wives' and Children's Maintenance Act, R.S.O., 1937, c. 311. 381 3.---Criminal Law-Appeals-Autre fois acquit-Autre fois convict-Conviction for manslaughter on indictment for murder quashed for misdirection but new trial not ordered nor an acquittal directed-Fresh indictment preferred by Crown for manslaughter-Statutory authority given Court of Appeal to direct acquittal or a new trial mandatory-Failure of court to exercise such authority precludes another trial under s. 873 Criminal Code, R.S.C., 1937, c. 86, 8s. 856, 873, 905-909, 951, 1014 (3)... 412 See CniuAL LAw 3.
ARCHITECT-Architect - Fees pointed by resolution of hospital-Revocation and retainer of another architect-Action to recover fees or damages for plans made- Art. 1691 C.C..................... ASSESSMENT AND TAXATION. BANKRUPTCY-Companies - Wound up under Dominion Winding Up Act-Contribution of shareholders-Whether liable to calls when shares issued in violation of Alberta Sale of Shares Act-Subsequent conduct as shareholders-The Alberta Sale of Shares Act R S.A. 1922, c. 169-The Winding Up Act, R.S.C. 1937, c. 313. The Home Assurance
Company of Canada having been wound up under the Dominion Winding Up Act on the ground of insolvency, the liquidator applied to have the appellants listed as contributories as being liable to call for the amount remaining unpaid on their shares.
The appellants pleaded that they were not liable since the shares had been issued in violation of the provisions of the Alberta Sale of Shares Act.
The call was allowed by the trial judge and was confirmed by the Appellate Division of the Supreme Court of Al- BANKRUPTCY-Concluded berta.
Held: Following the principle laid down in McAskill v. North Western Trust
Co. ([1926] S.C.R. 412), the appellants, even though the original contracts of sale of the shares were void due to the noncompliance with the Alberta Sale of Shares
Ad, must be held to be contributories as their subsequent conduct as shareholders has resulted in "independent binding agreements".
2.--Companies-Incorporated in Alberta
-Wound up under Dominion Winding Up
Ad-Whether liquidator can call on contrztories for full amount owing on share-"Maturityof the debt" in a. 60(2) of Winding Up
Ad (Can.)-Alberta Insurance Act, R.S.A.
Held: (The Chief Justice and Taschereau J.
dissenting): In the winding up under the
Dominion Winding Up Act of a company incorporated by private Act of the Province of Alberta (s. 9 of which made the Alberta
Insurance Ad applicable to the company), the "maturity of the debt" referred to in s. 60(2) of the Dominion Winding Up Act is not determined by s. 119(9)
of the
Alberta Insurance Ad, but by the Court.
Therefore a call can be made on the contributories by the liquidator for the full balance still owing on each share. Judgment appealed from (30 B.C.R. 234)
reversed. v. CoNmarnrrORIES OF
HoME Ass. Co. or CAN..............
BANKS AND BANKING--Contract - Guarantee-Specific Performance-Covenant to relieve guarantors of bank loan within specified time-Whether, in absence of demand by bank on guarantors, court empowered to decree specific performance.. 401
See 1.
BROKERS-Mandate - Brokers - Authorized by client to buy and sell shares for him-Indemniication of broker for unforeseeable losses incurred during execution of mandate-Whether settlement made prior to delivery of shares is final-Arts. 1701, 1713,
1725 C.C. Appellants as brokers purchased for respondent 750 shares on the New York
Stock Exchange.
When in a position to deliver them, they were instructed by respondent to sell 250 of the shares and to apply the proceeds toward the purchase price of the 750. This sale was done, and, at the request of respondent, the remaining
500 shares were delivered to him and the account was then determined and paid before the 250 shares were delivered to and paid for by the buyer of the same on the New York Stock Exchange. A modification of the exchange rate of the dollar taking place after determination of the account and before such delivery and payment resulted in a loss for appellants which they seeked to recover from respondent.
The action was maintained in the Superior
Cour but lismissed in the Court of
BROKERS-Concluded
Appeal. Held: The contract between the parties being clearly in the nature of a mandate, appellants therefore are entitled to recover the loss incurred during the execution of the mandate as the result of unforeseeable changes in the exchange rate, since a mandatary should not be impoverished by the due execution of his mandate. Held: As the mandate could only come to an end after delivery and payment were made on the sale of the 250 shares, the settlement made prior to that time could not be more than provisional. RoTHscHILD DUFFIELD........................ CIVIL CODE-Article 407 (Ownership) .............................. 2.- Article 449 (Civil fruits)........ 3.- Article 503 (Real servitudes) .... 4.- Article 540 (Right of way)...... 5.- Articles 545, 549, 550, 555 (Real Servitudes)......................... 6.-Articles 1013, 1018, 1019 (Interpretation).......................3, 313, 532 See 4. 7.-Articles 1085, 1088 (Conditional obligation)............................ 8.-Articles 1570, 1571 (Sale of Debts) .................................. 9.- Article 1691 (Hire)............ See FEES.
10.-Articles 1701, 1718, 1725 (Mandate) .................................. 11.-Articles 2089, 2098, 2116, 2166, 2168 (Registration of real rights) ...... 12.-Articles 2242, 2250, 2260, (Prescription)...................... CODE OF CIVIL PROCEDURE-Article 77 (Interest in action) ............ See 4.
2.-Article 81 (Using name of another to plead)............................. COMPANY-Companies-Wound up under Dominion Winding Up Act-Contribution of shareholders-Whether liable to calls when COMPANY-Concluded shares issued in violation of Alberta Sale of
Shares Act-Subsequent conduct as shareholders-The Alberta Sale of Shares Act,
R.S.A. 1922, c. 169-The Winding Up Act,
R.S.C. 1927, c. 218..................
2.--Companies-Incorporated in Alberta
-Wound
Up under Dominion Winding Up
Act-Whether liquidator can call on contributories for full amount owing on share- "Maturity of the debt" in s. 60 (2) of Winding
Up Act (Can.)-Alberta Insurance Act,
R.S.A. 1942, c. 201, 119, 185-Winding
Up Act, R.S.C. 1927, c. 218, es. 58, 55, 59,
60................................
CONSTITUTIONAL LAW-Constitutional Law-Power of
Parliament in
National Emergency to enact legislation involving Property and Civil Rights-Whether
Wartime Leasehold Regulations made under the authority of War Measures Act, continued in force under The National Emergency
Transitional Powers Act, 1945, and The
Continuation of Transitional Measures Act,
1947, ultra vires-War Measures Act,
R.S.C., 1927, c. 206-The National Emergency Powers Act, 1945, S. of C., 1945, c. 25 and amendment, 1946, c. 60-The
Continuation of Transitional Measures Act,
1947, S. of C., 1947, c. 16 and amendments,
1948, c. 5 and 1949, c. 8.
The Wartime
Leasehold Regulations were made in 1941 under the authority of the War Measures
Act and continued in force since the end of the war in all the provinces of Canada, other than Newfoundland, under the provisions of The National Emergency
Transitional Powers Act, 1945 and The
Continuation of Transitional Measures Act,
1947 and amendments thereto and certain
Orders in Council authorized by those statutes. The following question referred by the Governor in Council under s. 55 of
The Supreme Court Act to this Court:
"Are the Wartime Leasehold Regulations ultra vires either in whole or in part and if so in what particulars and to what extent?"
answered in the negative.
that Parliament, under powers implied in the Constitution may, for the peace, order and good government of Canada as a whole, in time of national emergency, assume jurisdiction over property and civil rights which under normal conditions are matters within the exclusive jurisdiction of the provincial legislatures.
When Parliament has enacted legislation declaring that a national emergency continues to exist and that it is necessary that certain regulations be continued in force temporarily in order to ensure an orderly transition from war to peace, unless the contrary is very clear, which in this case it was not, there is nothing to justify a contrary finding by the Court. Fort Frances Pulp & Power
Co. v. Manitoba Free Press Co. [19281
695;
Co-Operative Committee
CONSTITUTIONAL LAW-Continued Japanese Canadians v. Attorney General for Canada [1947] A.C.
87, followed. REFERENCE WARTIME 2.-Constitutional Law-Dominion and Provincial jurisdiction-Power of Parliament to (a) repeal, abolish or alter pre- Confederation Newfoundland law; (b) to bring into force Statutes of Canada in the Province of Newfoundland, by Act of Parliament or by proclamation and by such proclamation to provide for the repeal of certain laws of Newfoundland-The British North America Act, 1867 to 1949, es. 91, 92, 146,-"An Act to approve the Terms of Union of Newfoundland with Canada", 1949 (Can.) 1st Sess., c. 1, Terms 8, 18(1), (2), (8), (27)-"An Act to amend The Income Tax Act and the Income War Tax Act," 1949 (Can.) 2nd Sess., c. 25, s. 49. Upon the passing of The British North America Act, 1949, 12-13 Geo. VI (Imp.), and "An Act to approve the Terms of Union of Newfoundland with Canada", 1949 (Can.) 1st Sess., c. 1, Newfoundland became a province of the Dominion of Canada.
Thereupon the legislative powers theretofore possessed by Newfoundland became vested in the Parliament of Canada and the legislature of the Province of Newfoundland in accordance with sections 91 and 92 of the B.N.A. Act. Between the years 1915 and 1947 the Government of Newfoundland entered into a series of agreements, subsequently in part confirmed and in part enacted by the Newfoundland Legislature, with Bowater's Pulp & Paper Mills Ltd., and their predecessors in interest, whereby that company was granted exemptions for a term of years (extending beyond the date of union with Canada) from customs duties and taxes on certain imports and exports and from other taxes including income tax.
By "An Act to amend The Income Tax Act and the Income War Tax Act", 1949 (Can.) 2nd Sess., c. 25, s. 49, Parliament provided that notwithstanding any other law heretofore enacted by a legislative authority other than the Parliament of Canada (including a law of Newfoundland enacted prior to April 1, 1949) no person is entitled to (a) any deduction, exemption immunity from, or any privilege in respect of (i) any duty or tax imposed by an Act of the Parliament of Canada, or (ii) any obligation under an Act of the Parliament of Canada imposing any duty or tax, or (b) any exemption or immunity from any provision in an Act of the Parliament of Canada requiring a licence, permit or certicate for the export or import of goods, unless provision for such deduction, exemption, immunity or privilege is expressly made by the Parliament of Canada. Following the passing of the said Act, the Governor in Council under s. 55 of The Supreme Court Act referred to this Court the three questions, (which are fully set CONSTITUTIONAL LAW-Concluded out in the reasons for judgment that follow), as to the effect of the said amendment on the said exemptions. Held: (Taschereau J, dissenting) that:-(1) Bowater's Newfoundland Pulp & Paper Mills Ltd. is not entitled by reason of the certain Statutes of Newfoundland in question, to any deduction, exemption or immunity from or any privilege in respect of any duty or tax imposed by an Act of the Parliament of Canada.
(2) The company is not entitled by reason of the said statutes of Newfoundland, to any deduction or exemption, or immunity from, or any privilege in respect of any obligation under any Act of the Parliament of Canada imposing any duty or tax.
(3) The company is not entitled by reason of the said Statutes of Newfoundland, to any exemption or immunity from any provision in an Act of the Parliament of
Canada requiring a licence, permit or certificate for the export or import of goods.
RE
MILLs LTD........
CONTRACT- Contract - Guarantee - Specific Performance-Covenant to relieve guarantors of bank loan within specified time-Whether, in absence of demand by bank on guarantors, court empowered to decree specific performance. The appellant on July 25, 1945, entered into an agreement in writing with the respondents as follows: 'For valuable consideration, which
I hereby acknowledge to have received from you I hereby covenant to (sic) agree with you to guarantee, in your stead, the debt of Ontario Phosphate Industries Ltd.
to the Royal Bank of Canada, twenty-five thousand dollars ($25,000) in amount and further to indemnify and save you harmless against any claim against you whatsoever arising out of your guarantee of the said debt, and to relieve you from your guarantee within sixty days from date."
respondents, no demand having been made by the bank, brought an action for specific performance of the agreement or, in the alternative, for damages.
The action was dismissed.
On appeal to the Court of
Appeal for Ontario, that court while agreeing with the trial judge that so far as the document sued on gave the respondents a right of indemnity the action was premature, held that the covenant to relieve the respondents from their guarantee within sixty days was a binding agreement in no way contingent upon their first being indemnified, and granted an order for specific performance. Held: (Affirming the judgment of the Court of Appeal for
Ontario),
Taschereau
Locke
JJ.
dissenting in part, that a right was conferred upon the respondents under the covenant to be relieved from their guarantee within the sixty days specified which was in no way contingent upon their first being indemnified under the terms of the guarantee. There was a binding agreement and the appellant was in breach of it. The
CONTRACT-Continued agreement is more than "to guarantee in your stead" as it reads "to relieve you from your guarantee within 60 days from date". This covenant might be implemented in various ways, and the parties may well have had in mind that the appellant would desire to pay the debt guaranteed by the respondents, which would constitute performance of his obligation.
Any award of damages would be too conjectural: Adderley v. Dixon 1 S. & S., 607; and in any event would not be adequate. The respondents have done all that was required of them and the appellant failed to establish that the provisions of the order were beyond the powers of the court and not proper under all the circumstances.
Taschereau and Locke JJ., while otherwise concurring with the majority of the Court, dissented as to the court's power to grant specific performance.
Per: Taschereau and Locke JJ., dissenting in part:-The judgment of the Court of Appeal can only be construed as a direction to the appellant to pay off the bank.
So construed it conflicts with the principle that specific performance is not granted of a convenant to pay money to a third person, the covenantee being left to his remedy in damages. Hall v: Hardy, 3 P. Wms. 187; Crampton v. Varna Ry. Co., 7 Ch. 562; Atty.-Gen. v. MacDonald, 6 Man. R. 545; Lloyd v. Dimmack, 7 Ch. D. 398; Ascherson v. Tredegar, 2 Ch. 401. As to the alternative direction that in default of such payment security be given even if such direction could be supported, there is no warrant for it since the respondents, being apparently satisfied with the appellant's personal covenant, are entitled to nothing more.
Antrobus v. Davidson, 3 Mer. 569; Brough v. Oddy, 1 Russ. & My. 55; The King v. Malcott, 9 Hare. 592; Hughes Hallett v. Indian Mammoth Gold Mines, 22 Ch. D. 561. For the judgment entered by the Court of Appeal an order should be substituted declaring the appellant bound to indemnify the respondents from liability under their guarantee but otherwise dismissing the claim, without prejudice to the rights of the respondents to bring such further action as they may be advised if there is default thereafter. GRA v. et al............. 2.-Master and Servant - Contract - General hiring-Increase in salary-Illegality-Efects of Wartime Salaries Orders as to salary increase-P.C. 1549, 4856... 3.--Crown-Central Mortgage and Houssubject to Supreme Court of Alberta-Central Mortgage and Housing Corporation Act, S. of C. 1945, c. 15, s. 5. Held: The Central entered in the name o the orporation into a contract under section 5(2) of the Central Housing and Mortgage Act, is subject to the jurisdiction of the Supreme Court CONTRACT-Concluded of Alberta in respect of any obligations arising out of that contract.
......
COPYRIGHT -Copyright
- Infringement
-Copyrights of enemies vested in Custodian of Enemy Property during war-Whether
Custodian can authorize third party to bring action-Whether authors can give permission for publication-Effect of s. 4 of Copyright
Act, R.S.C. 1927, c. 82-Effect of Convention of Berne-The Patents, Designs, Copyright and Trade Marks Emergency Order,
1989, (P.C. 8862).
Appellant was authorized by the Custodian of Enemy Property to bring action against respondent for infringement of copyright.
The authors of the works in question were residents of
France and at the time of the infringement,
1942 and 1943, the copyrights in such works had become vested in the Custodian pursuant to the Consolidated Regulations
Respecting Trading with the Enemy, 1939.
The Exchequer Court dismissed the action on the main ground that the Custodian could not delegate his powers. Held: That s. 4 of the Copyright Act was continued in force during the war by virtue of s. 8 of the
Patents, Designs, Copyright and Trade Marks
(Emergency) Order, 1939,
(P.C. 3362), made under the War Measures Act, but any copyright recognized by the section was for that period vested in the Custodian of Enemy Property. Held: That s. 6 (2)
of P.C. 3362 in clear terms permitted the
Custodian to delegate his power to such person as he thought fit. Held: That the authors, being classed as enemies and having no more rights in these copyrights, could not give to the respondent permission to publish these works-assuming the evidence of this permission was legal. Per Kerwin,
Taschereau, Estey and Locke JJ.: Assuming that the Convention of Berne was suspended during the war, these copyrights were nevertheless protected, because literary property of foreign authors, being property within the meaning of the Regulations Respecting Trading with the Enemy, is protected in Canada not by virtue of the Convention of Berne but by s. 4 of the Copyright Act. The Convention serves only to identify the countries the citizens of which are entitled to that protection.
COUSINEAU........
CRIMINAL LAW-Criminal law peal-Special leave-Jurisdiction-Whether statute giving new right of appeal is retrospective-New trial-Starting point of proceedings-Same indictment-11-12 Geo. VI, c. 89, s. 42, enacting s. 1025 (1) Criminal
Held: The amendment to section
1025 (1) of the Criminal Code, by which any person whose conviction on an indictable offence has been affirmed by a Court of Appeal may, on any question of law, with special leave granted by a judge, appeal to this Court, creates a new right of appeal "which cannot be construed retrospectively so as to cover cases that arose prior to the new legislation. (Boyer v. The King, [19491 S.C.R. 89.) Held: Even though a new trial ordered by the Court of Appeal was heard subsequent to the coming into force of the new legislation, appellant cannot avail himself of the amendment as the new trial is not the starting point of the proceedings-it is merely the reconsideration of the case under the same indictment.
V. KING..... 352 2.- Appeal from Sumsum of money to be paid into Court-Whether condition precedent to right of appeal met, where appellant prior to date fixed for payment, deposits with the Court the amount fixed by it to cover costs of appeal-The Criminal Code, R.S.C., 1927, c. 86, s. 750(c), as amended by 1947, c. 55, s. 23. Husband and Wife-Summary Proceedings for Maintenance-The Deserted Wives' and Children's Maintenance Act, R.S.O., 1987, c. 211. The Criminal Code, R.S.C., 1927, c. 36, s. 750(c) as enacted by S. of C., 1947, c. 55, s. 23, provides that an appellant, if the appeal is from an order whereby a penalty or sum of money is adjudged by a justice to be paid, shall within.the time limited for filing the notice of intention to appeal, in cases in which imprisonment in default of payment is not directed, deposit with such justice an amount sufficient to cover the sum so adjudged to be paid together with such further sum as such justice deems sufficient to cover the costs of the appeal. On Feb. 17, 1948, the deputy judge of the Family Court of Toronto under the Deserted Wives' and Children's Maintenance Act, R.S.O., 1937, c. 211, ordered the appellant to pay his wife at the said Court the sum of $15 per week for her support, the first weekly payment to be made on March 1. On Feb. 24 appellant paid to the Court the sum of $25 as security for the costs of an appeal to the County Court, the amount fixed by the Court as such security, and on Feb. 26 served and filed notice of appeal. His appeal to the County Court was dismissed on the ground of lack of jurisdiction, and an application for an order of mandamus made to the Supreme Court of Ontario was refused by a judge of that court and on appeal by the Court of Appeal, on the ground that the provisions of s. 750 (c) of the Criminal Code were not complied with. Held: that at the time the appellant served and filed his notice of appeal there was no "sum of money adjudged to be paid" and the appellant had done all that was required of him in order to vest jurisdiction in the County Court. Held; also, that the appeal should be allowed, the order below set aside and a writ of mandamus directed to be issued to the County Court to proceed with the hearing of the appeal. V. 3.-Criminal Law-Appeals-Autre fois acquit-Autre fois convnct-Contriction for manslaughter on indictment for murder quashed for misdirection but new trial not ordered nor an acquittal directed-Fresh indictment preferred by Crown for manslaughter-Statutory authority given Court of Appeal to direct acquittal or a new trial, mandatory-Failure of court to exercise such authority precludes another trial under s. 873-The Criminal Code, R.S.C. 1997, c. 86, ss. 856, 878, 905-909, 951, 1014 (3).
The Criminal Code provides:
"Section
1014 (3). Subject to the special provisions contained in the following sections of this
Part, when the court of appeal allows an appeal against conviction it may (a) quash the conviction and direct a judgment and verdict of acquittal to be entered;
(b) direct a new trial; and in either case may make such other order as justice requires."
By the majority of the court (Rinfret C.J., Kerwin and Taschereau JJ., dissenting), that the exercise of the statutory authority given to the court of appeal under s. 1014 (3) to direct an acquittal to. be entered, or to direct a new trial, and in either case to make such other order as justice requires, is not permissive but mandatory. The right of appeal being such an exceptional right, all the substantive and procedural provisions relating to it must be regarded as exhaustive and exclusive and need not be expressly stated in the Statute.
If therefore the court of appeal fails to exercise its authority and refrains from directing a new trial, another trial cannot be had by resorting to s. 873.
The powers under that section are not absolute and cannot obtain in all circumstances.
Like many others in the Code, they remain subject to qualifications and restrictions implicitly and necessarily flowing from other provisions in the same Act.
Per Rinfret C.J. and Taschereau J., dissenting.
The only competent authority in a case of misdirection to order a new trial is the Court of Appeal, but failure of that court to make such an order does not preclude the Crown from exercising its rights to prefer a fresh bill of indictment under s. 873. The proceedings under the fresh bill of indictment do not constitute a new trial, within the meaning of s. 1014, they initiate a second trial entirely independent of the first on a new indictment.
A
"new trial" which alone the court of appeal has the power to order in a criminal prosecucution, is the re-examination of a case on the same information or indictment.
It supposes a completed trial, which for some sufficient reason has been set aside, so that the issues may be litigated de novo.
It is ordered so that the court may have the opportunity to correct errors in the proceedings at the- first trial. Such is not the case here, and unless there are valid reasons to prevent the Crown to initiate a second trial as it did, this appeal must fail. We have to decide if the incomplete judgment of the Court of Appeal is a bar to the exercise by the Crown of its unquestionable power to prefer a bill of indictment. A solid ground of defence would undoubtedly be a plea of autre fois acquit or autre fois convict, but this cannot be successfully argued.
The appellant has neither been acquitted nor convicted, and it is only in such cases that an accused may say, if he is brought to trial again, on the same charge, that he has been in "jeopardy" twice. Rex v. Ecker and Fry, 64 O.L.R. 1 at 3. The law does not allow that a man be tried a second time when he has already been convicted, or exposed to be convicted, when he has already been acquitted, but it does not forbid a second trial when the first did not come to a legal conclusion. Only the pleas of autre fois acquit or autre fois convict could be successfully raised by the appellant in the present case, and as they both fail, the appeal should be dismissed. Per Kerwin J., dissenting:
The power given to the Court of Appeal under s. 1014 (3) is permissive as indicated by the use of the word "may" and includes the power to allow an appeal and set aside a conviction leaving the Crown free to prefer a new and different indictment, if it sees fit. The powers of the Court of Appeal are not circumscribed as are those of the Court of Criminal Appeal in England and the decisions of that Court are, therefore, of no assistance on the point under review. This appeal is to be decided under the provisions of the Criminal Code, Rex v. O'Keefe, 15 N.S.W.L.R. 1; Rex v. Lee, 16 N.S.W.L.R. 6, distinguished; Rex v. Welch, [1948] O.R. 884, Rex v. Pascal, 95 C.C.C. 288, approved. Gudmundson v. The King, 60 C.C.C., 332 distinguished. Where an accused upon an indictment for murder is convicted of manslaughter, a court of appeal may properly under s. 1014 (3) allow the appeal and set aside such convic- If it neither directs a verdict of acquittal to be entered, nor directs a new trial, s. 873 (1) is then wide enough to permit the preferring of a bill of indictment for manslaughter. In provinces where there is no grand jury, subsequent sub-sections of s. 873 take care of the situation. The second ground of the appeal, that, "the accused was entitled in answer to the present indictment to the common law defence that a man should not be put twice in jeopardy for the same matter,"-is not a plea or defence, as the plea of autre fois acquit is grounded on the maxim, that a man shall not be brought into danger of his life for one and the same offence, more than once.
Hawkins, Pleas of the Crown, 8th Ed. Vol. II, c. 35, s. 1. As to the 3rd and 4th grounds of appeal- (a) "s. 902 (2) was a bar to the present indictment;" (b) "the accused was entitled to succeed on his plea of autre fois acquit pursuant to s. 907."-The meaning of s. 907, may be gathered from the use of the word "lawfully" in s. 906 (3), this expresses what IEx. Cr. has been well understood for many years, viz. that the defence of autre fois acquit applies only where the first trial has been concluded by an adjudication:
Reg. v.
Charlesworth, 121 E.R. 786; Rex v. Ecker,
64 O.L.R. 1. Here, the only adjudication was against the accused for manslaughter and that adjudication was merely set aside by the first order of the Court of Appeal.
As to the first leg of s. 909 (2) "a previous conviction or acquittal on an indictment for murder shall be a bar to a second indictment for the same homicide charging it as manslaughter".
This must mean a previous general conviction or acquittal.
KING...............
4.-Criminal law-Receiving stolen goods
-Recent possession-Explanation by accused-"Might reasonably be true"-Proper direction-Report under section 1020 Cr.
Appellant was convicted on a summary trial of receiving stolen goods.
It was established that the goods were stolen, that appellant at first had denied possession and later explained this denial and also explained his possession. In his reasons, the trial judge referred to the explanation of denial,
(saying it was
"fantastic") but did not refer to the explanation of possession.
The majority n the Court of Appeal affirmed the convic- Held: (Taschereau and Locke JJ.
dissenting): That there should be a new trial as the trial judge misdirected himself with respect to the relevancy of the denial and had given to it an importance in relation to the main issue of guilty knowledge not justified by the authorities.
omission of the trial judge to refer to the explanation of possession is not remedied by his dealing with it in the report made under section 1020, as that report is relevant only as to how he directed himself at the trial. Held: The statement in the report that the explanation of possession "was not a reasonable one" wrongly placed the onus on accused to prove the truth of this explanation, when the trial judge should have directed himself not on the reasonableness of the explanation but whether that explanation "might reasonably be true"
in the particular circumstances and therefore create in his mind a reasonable doubt.
Per Taschereau and Locke JJ. (dissenting)
:
The remarks made by the trial judge at the conclusion of the evidence do not show that he had proceeded upon any wrong principle of law.
There is no obligation upon a County Court judge at the conclusion of such a hearing to make a complete statement of his reasons for deciding the guilt or innocence of an accused.
Per Taschereau and Locke JJ.: Having been found in possession, there was a presumption against appellant rebuttable by an explanation which, if it raised a reasonable doubt, entitled him to be acquitted; in the present case, the report shows that the trial judge did not consider that the explanation was a reasonable one and was satisfied beyond a reasonable doubt that appellant knew the goods were stolen at the time he received them. Richler v. The King [19391 S.C.R. 101; (Reg. v. Langmead [1864] 9 Cox C.C. 464; Rex v. Schama, 11 C.A.R. 45; Rex v. Curnock, 10 C.A.R. 208; Rex v. Bush, 53 B.C.R. 252; ? Rex v. Currell, 25 C.A.R. 116, Rex v. Frank, 16 C.C.C. 237 and Rex v. Ofeller, [19441 3 W.W.R. 186 referred to.
5.--Criminal law-"Peeping tom"-Whether criminal offence-Conduct likely to cause breach of peace-False imprisonment -Arrest without warrant-Burden of proof -Criminal Code, ss. 30, 646, 647, 648, 650-Supreme Court Act, R.S.B.C. 1936, c. 56, s. 77. Appellant was chased, caught and detained by respondent, Fedoruk, after he had been seen on Fedoruk's property looking into a lighted side window of the house where a woman was preparing for bed. A policeman, the other respondent, was called and, after some investigation, arrested appellant without warrant. a charge that he "unlawfully did act in a manner likely to cause a breach of the peace by peeping .
. ." appellant was convicted by a Police Magistrate but acquitted by the Court of Appeal. His claim for damages for malicious prosecution and for false imprisonment was dismissed by the trial judge and this was affirmed by a majority in the Court of Appeal on the ground that appellant had been guilty of a criminal offence at common law and therefore that there had been justification for the arrest without warrant. The appeal to this Court is concerned only with the claim for false imprisonment. Held: Appellant's conduct did not amount to any criminal offence known to the law. Therefore respondents have failed to satisfy the onus placed upon them to justify the imprisonment under ss. 30, 648 or 650 of the Criminal Code. Held also: Section 30 Cr. C. authorizes a peace officer to arrest without warrant only if he, on reasonable and probable grounds, believes that an offence for which the offender may be arrested without warrant has been committed, but not if he erroneously concludes that the facts amount to an offence, when, as a matter of law, they do not. Held further: Conduct, not otherwise criminal and not falling within any category of offences defined by the criminal law, does not become criminal because a natural and probable result thereof will be to provoke others to violent retributive action; acts likely to cause a breach of the peace are not in themselves criminal merely because they have this tendency. It is for Parliament and not for the Courts to decide if any course of conduct, which has not up to the present been regarded as criminal, is now to be so regarded.
Per Kerwin J.: The appellant, by "peeping", did not com- CRIMINAL LAW-Concluded mit a breach of the peace. If he had, it is not an offence for which either a police constable or a private individual might arrest without warrant under ss. 646 or
647 of the Criminal Code.
648 and 650 afford no assistance to either respondents since no criminal offence was committed. v.
CROWN-Crown-Negligence-Petition of right-Young boy playing with a bomb found in the ditch of a highway near an army camp was injured by its explosion-Liability of the Crown-Onus-Presumptions-Whether negligence of army personnel-Whether
"acting within scope of duties or employment"-Exchequer Court Act, R.S.C. 1987, c. 84, s. 19 (c). On May 5, 1944, respondent's minor son was injured by the explosion in his hands of a fuse, normally used as a detonator on a 3" mortar bomb.
This fuse had been found the previous fall in a ditch along the public highway between
Rimouski and an army training camp nearby.
It was established that a regiment camping there in 1943 had received such bombs, with fuses attached, for training purposes; that the fuses were always attached to the bombs; that very severe rules were in force in the camp regarding the handling and disposal of these bombs and that these rules had been followed.
The Exchequer Court awarded judgment in favour of respondent and held that in view of the failure of the army officers to explain the presence of the fuse in the ditch, the conclusion must be that there had been negligence on the part of a servant of the
Crown while acting within the scope of his duties or employment.
Held: reversing the judgment appealed from, that the respondent had the onus, placed upon him by section 19 (c) of the Exchequer Court
Act, of establishing that the injuries suffered by his son were the result of the negligence of a servant of the Crown acting within the scope of his duties or employment, and that he had failed to discharge it. Held: also, that under the circumstances disclosed, the presence of the fuse in the ditch of the road was entirely left to conjecture; but that, even if they gave rise to presumptions, in order that any responsibility may be attributed to the Crown, such presumptions would have to be
"graves, pr6cises et concordantes"-which they were not in this case. Held: further, that there was no obligation here, on the part of the servants of the Crown, to explain the presence of the fuse in the ditch, or, in other words, to exculpate themselves.
V. MOREAU..............
2.-Crown-Petition of right-Retired judge receiving a pension-Appointed Lieutenant-Governor of Quebec-Heirs claiming for salary-Whether prescription-Whether law of Quebec or of Ontario applies-If law of Quebec whether prescription is five years
-Whether question of law decided at previous
CROWN-Continued hearing as to the status of Lieutenant-Governor created "res judicata"-Renunciation to prescription-Judges Act,
R.S.C. 1927, c. 105, s. 27-The Exchequer Court Act, R.S.C. 1927, c. 84, s. 82-Arts. 449, 1602, 2242, 2250, .260(6), 2267 C.C. This court answered in the affirmative (1948 S.C.R. 126) the question of law, set down for hearing before the trial of the present case, as to whether a pensioned retired judge is entitled to his pension together with the full remuneration attached to the office of Lieutenant-Governor of a Province while occupying that position. At trial before the Exchequer Court, appellant contended that respondent's claim for the part of the salary withheld by the Crown during the years 1929 to 1934 (during which period respondent Lieutenant-Governor of Quebec), was prescribed when the petition of right was taken on 13th November, 1943. The Exchequer Court held that the law of Quebec applied and that the claim was not prescribed. Held: There is no "res judicata" in this claim as the only issue raised and discussed at the previous hearing was the status of the Lieutenant-Governor and the Court was not empowered to and did not deal with the issue of prescription. If the law of Quebec applies here, the prescription is not of five but of thirty years as the salary of the Lieutenant-Governor is not one of the subject matters found in Article 2250 C.C., nor does it fall under 2260 (6) as this Article contemplates a contract of hire of work which presupposes a relationship of employer and employee, which relationship does not exist between His Majesty and the Lieutenant-Governor. Held: Also, that if the law of Ontario applies, the limitation period being twenty years, the claim would not be barred either.
v. . 7.... 3.- Crown-Petition of Right-Whether the Crown in the right of the Dominion of Canada liable for alleged breaches of trust or debts of (a) the government of the Province of Canada, (b) the government of the Province of Upper Canada-s. 111, The British North America Act.
The appellant seeks by Petition of Right to hold the Crown in the right of Canada liable in damages for breaches of trust and contract. breaches alleged fall under three heads: (1) that in 1824 the Parliament of Upper Canada by statute authorized the flooding by the Welland Canal Co. of some 1800 acres of lands previously granted to the Six Nations Indians, appellant's ancestors, by the Crown and although the statute provided for compensation, the Department of Indian Affairs or its officers as trustees of the said Indians failed to collect it; (2) that in 1836 the Government of Upper Canada authorized a free grant of a further 360 acres of said Indians' lands to the Grand River Navigation Co. and that the said trustees failed to secure CROWN-Continued compensation therefor;
(3) that in 1798 the appellant's ancestors surrendered certain lands to the Crown under an agreement whereby the said lands were to be sold and the purchase moneys held in trust for the said Indians benefit and that in
1836 the said government without the knowledge or consent of the Indians and without authority contracted to purchase stock of the Grand River Navigation Co.
for them, and that the said government and, after the Union of 1840, the Government of the Province of Canada, pursuant to such contract paid out 8160,000 from the said Indian funds which on the failure of the company was lost.
Appellant claims that since by s. 111 of the British North
America Act the Crown in the right of the
Dominion of Canada assumed liability for the debts of the former Province of Canada, the said sum with interest should be restored to the funds held by the present
Department of Indian Affairs and the federal government on behalf of the appellants.
Held: that as to beads one and two of the Petition, any breach of trust, if it occurred, took place before the
Act of Union of 1840 and appellant had not shown any basis of obligation upon the
Crown in the right of the Dominion of
Canada. As to head three, the appeal was allowed and the matter referred back to the Court of Exchequer.
The question as to whether the claim was barred by the
Exchequer Court Act or the Statute of Limitations was not dealt with by the trial judge nor by this Court. MILLER v. THE
'K ING..............................
4.-Crown-Central Mortgage and Houssubject to Supreme Court of Alberta-Central Mortgage and Housing Corporation Act,
S. of C. 1945, c. 15, 8. 6. Held: The Central entered in the name of the Corporation into a contract under section 5(2) of the
Central Mortgage and Housing Act, is subject to the jurisdiction of the Supreme
Court of Alberta in respect of any obligations arising out of that contract.
HOUSING
5.-Crown-Lease of shed by Crown to
Act, R.S.C. 1927, c. 84, e. 19(c)-Water
Carriage of Goods Act, 1 Ed. VIII, c. 49.
A shed, leased by appellant to respondent
C.S.L. and in which were stored respondent's and third parties' goods, caught fire while appellant's employees, acting within the scope of their duties, were doing repairs to it in compliance with appellant's nbligation to maintain the shed
CROWN-Continued under clause 8 of the lease.
Clause 7 provided that "the lessee shall not have any claim or demand against the lessor for detriment, damage or injury of any nature . . to the said shed ...
or materials ... goods ... placed, made or being . . . in the said shed".
By clause 17 it was provided that "the lessee shall . . indemnify . . the lessor . .. against all claims and demands based upon, occasioned by or attributable to the execution of these presents, or any action taken or things done or maintained by virtue hereof, or the exercise in any manner of rights arising hereunder". The trial judge held that appellant's employees had been negligent and that clause 7 could not be invoked as their negligence amounted to "faute lourde". For the same reason, he dismissed the third party proceedings instituted by appellant under clause 17.
At the hearing, this Court declared that the finding of negligence by the trial judge could not be disturbed. Held: The intention of the parties to be gathered from the whole of the document was that, as between the lessor and the lessee, the lessor should be exempt under both clauses 7 and 17 from liability founded on negligence (Locke J. contra as to clause 7). Held also: The conduct of appellant's employees did not amount to "faute lourde". Per Locke J. (dissenting in pa. t): As there was here a double liabilitythe contractual obligation on the part of the Crown to maintain the shed under clause 8 and the liability of the Crown under s. 19 of the Exchequer Court Act-the liability in negligence not having been expressly by implication excluded, remains and therefore clause 7 does not afford an answer to respondent's claim. Glengoil Steamship Co. v. Pilkington (1897) 28 S.C.R. 146; Phillips v. Clark [1857] 2 C.B. (N.S) 156; Price v. Union Lighterage Co. [1904]1
.B. 412; Rutter v. Palmer [1922] 2 K.B. 87; McCawley v. Furness Ry. Co. (1872) L.R. & Q.B. 57; Reynolds v. Boston Deep Sea Fishing Co. (1921) T.L.R. 22; Beaumont-Thomas v. Blue Star Line Ltd. [1939] 3 All E.R. 127 and Alderslade v. Hendon Laundry Ltd. 1 All E.R. 244 referred to. THE LINEs et al ..... 6.-Crown-Barge sunk in channel of navigable river-Obstruction to navigation- Removal by Department of Transport- Liability for costs of removal-Whether Minister must sell wreck-Whether tug towing barqe in charge thereof-The Navigable Waters Protection Act, R.S.C. 1927, c. 140, ss. 14, 15, 16, 17.
A barge owned by appellant, Sauvageau, foundered in the channel of the St. Lawrence River while being towed by a tug belonging to the other appellant,
Price Navigation
Co. Ltd. Because of its interference with navigation and in view of the inaction of appellants, the Department of Transport caused the wreck to be removed from the channel and CROWN-Concluded left elsewhere on the bed of the river.
The action taken by the Crown to recover the costs of the removal was maintained by the trial judge who held that the Minister was not bound to have the wreck sold and that both appellants were jointly and severally liable for the expenses.
Chief Justice and Rand J. (dissenting)
)
that the sale of the property removed from interference with navigation is a condition precedent to recovery, under s. 17 of The
Navigable Waters' Protection Act, of the expenses of removal unless there is nothing which can be sold. The Crown, invoking a statute which creates an obligation unknown at common law and which must be interpreted strictly, cannot recover as it did not bring itself within the conditions of the statute. Per: The Chief Justice (dissenting):
As the Minister was not obliged to sell and furthermore as it was established that there was nothing which could be sold,the
Crown can recover from the owner of the barge and from the tug, as being in charge of the barge, but not jointly and severally.
Per: Rand J. (dissenting): The sale of the property is not a prerequisite to recovery, but credit must be given to the owner for the salvage value, whether that value is realized by sale or by valuation.
owners of the tug do not come within the scope of s. 17 of the Act.
THE KING.....................
CUSTODY-Infant-Custody-Habeas corpus-Parents and child citizens of foreign State
-Infant brought to Ontario by father to evade foreign Court's Order awarding custody to mother-Manner in which general rule as to infant's custody should be exercised- The Infants Act, R.S.O., 1937, c. 215.. 700
See INFANTS 1.
2.-Infant-Adoption, illegitimate child- When mother's consent revocable-Custody, tion Act, R.S.O., 1937, c. 918-The Infants
Act, R.S.O., 1937, c. 815-The Surrogate
Court Act, R.S.O., 1987, c. 106.......
See ADOpTION.
DAMAGES-Architect-Fees-Appointed by resolution of hospital-Revocation and retainer of another architect-Action to recover fees or damages for plans made- Art. 1691 C.C.....................
See FEES.
2.-Insurance-Against damage caused by accident-Policy excludes loss from fire and from accident caused by fire-Accident followed by fire and explosion-Whether loss covered-Cause of-Assignment of insured's rights-No signification-Whether insured can still claim-Arts. 1570, 1571 C.C.. 187
3.----Crown-Lease of shed by Crown to
DAMAGES-Concluded
Act, R.S.C., 19R7, c. 34, s. 19(c)-Water Carriage of Goods Act, 1 Ed. VIII, c. 49 532 See CnowN 4.
EXECUTORS
ADMINISTRA- TORS-Executors and Administrators- Foreign Administration-Action on Promissory Notes brought in Ontario-Plaintiff residing out of jurisdiction died before action came to trial and foreign administratrix joined as party by Court Order-Defendant satisfied to proceed-On appeal it appeared for first time notes were within jurisdiction at date of testator's death-Proceedings stayed to permit filing of ancillary Letters and an Order adding grantee as party-The Succession Duty Act, R.S.O., 1937, c. 26, s. 18(8). The plaintiff residing in New York State, sued on two promissory notes in Ontario but died before the action came to trial.
A New York Surrogate Court named his widow Administratrix with will annexed of his estate and she, as widow and sole beneficiary, was subsequently by praecipe order under Ontario rule of Practice 301 named as a party plaintiff.
The defendant applied to the Master to rescind the order but on being refused did not appeal therefrom and at the trial upon the New York Letters of Administration with will annexed being tendered in evidence accepted the position that he was bound by the order. On argument before the Court of Appeal it appeared that the notes at the date of death were in Ontario and were subsequently transmitted to the widow in New York State. Held: per Kerwin, Taschereau and Locke JJ., that the defendant having acquiesced in the order of the Master and the trial having proceeded upon the basis of such order being correct, the defendant should not now be allowed to change position. the merits no ground had been shown for setting aside the trial judge's finding against the defendant and therefore since a grant in Ontario of letters of administration with the will annexed would have appointed some one who could have been added as a party to represent the Estate, an opportunity should be given the plaintiff to take such steps. Upon filing of the Ontario grant of letters of administration and an order adding the grantee as a party, judgment should go allowing the appeal and restoring the judgment at trial. Per: Rand and Kellock JJ.: In view of the provisions of s. 18(3) of the Succession Duty Act, R.S.O., 1937, c. 26, the Ontario Court of Appeal, upon the true facts being made to appear, of its own motion was entitled and should have stayed the action until ancillary administration had been taken out in Ontario and such administrator made a party. .................. INDEX
FEES-Architect-Fees-Appointed by resolution of hospital-Revocation and retainer of another architect-Action to recover fees or damages for plans made-Art. 1691 C.C.
By a resolution of its Board of Directors, it was proposed that appellant "retienne"
the respondent to prepare plans and to.
supervise the erection of an extension to its hospital and a nurses' residence.
Respondent was to be paid pursuant to the Architects' tariff but only "pour le montant des travaux ex~cuths" (clause 3).
Subsequently, without knowledge that respondent had in fact prepared preliminary plans, appellant revoked the earlier resolution and retained another architect. The nurses' residence having been erected, respondent brought action to recover fees for both sets of plans but the action was dismissed by the Superior Court.
This judgment was reversed on appeal. Held:
that respondent, having received express instructions to proceed with the plans following his retainer, was entitled to damages under Art.
C.C., such damages in respect of the plans for the nurses' residence being the amount prescribed by the tariff and in respect of the other plans for the loss of the chance that the building might have been proceeded with.
Per Taschereau J. (dissenting in part)
: As clause 3 of the resolution fixes only the time at which the fee will be due and is not a renunciation of payment if the works are not proceeded with, respondent is entitled either as fees or as damages under
Art. 1691 C.C. to the amount provided for the preliminary studies by section 11 of the
Architects' tariff.
Luc v.
BEAUCHAMP..........................
HABEAS CORPUS-Infant-Custody- Habeas Corpus-Parents and child citizens of foreign State-Infant brought to Ontario by father to evade foreign Court's Order awarding custody to mother-Manner in which general rule as to infant's custody should be exercised-The Infants Act, R.S.O.,
1987, c. 215....................
HUSBAND AND WIFE - -Appeal from Summary Conviction under an order adjudging sum of money to be paid into Court-Whether condition precedent to right of appeal met, where appellant prior to date fixed for payment, deposits with the
Court the amount fixed by it to cover costs of appeal-The Criminal Code, R.S.C., 1927, c. 86, s. 750(c), as amended by 1947, c. 55, s. 23. Husband and Wife-Summary Proceedings for Maintenance-The Deserted
Wives' and Children's Maintenance Act,
R.S.O., 1987, c. 211................
See LAw"2.
IMPRISONMENT-Criminal law-"Peeping tom"-Whether criminal offence-Conduct likely to cause breach of peace-False imprisonment-Arrest without warrant-Burden of proof-Criminal Code, ss. 80, 646, 647, 648, 650-Supreme Court Act, R.S.B.C. 1986, c. 56, s. 77.................... INCOME TAX - Income Tax -Timber
Limits-Claim for Depletion- Discretion of Minister must be based on sufficient facts-Interest on unpaid purchase price not interest on borrowed capital-The Income War Tax Act, R.S.C., 1927, c. 97, ss. 5 (1) (a) (b), 6 (a) (b), 65-The Exchequer Court Act, R.S.C., 1927, c. 84, a. 86. The Income War Tax Act, s. 5 (1) (a) provides that the Minister of National Revenue in determining the income derived from timber limits may make such allowance for their exhaustion as he may deem just and fair. Section 5 (1) (b) provides that there may be deducted from income such reasonable rate of interest on borrowed capital used in the business to earn the income as the Minister in his discretion may allow.
The respondent company acquired certain timber limits and other assets from T.
McCool's liabilities and gave him or his nominees, members of his family, all its issued stock, 600 shares, and its demand note for $123,097, bearing interest at five per cent. agreement assigned no specific value to the timber limits, which McCool had bought for $35,000, but the company in filing its income tax return, claimed depletion on the basis of a valuation of $150,000, which it alleged was the price it paid for them and was less than their market value. It also claimed as a deduction the interest paid on the demand note.
The Minister ruled that the limits be value for the purposes of the Act at the cost price to McCool and that the depletion allowable be based on that figure, and that interest be not allowed on the note in arriving at the taxable profit. Held:
(Locke J. dissenting) that the Minister having decided that an allowance for depletion should be made, there was an insufficiency of evidence before him upon which he could in the exercise of his discretion determine the amount thereof and therefore the matter should be referred back to him. Locke J., dissenting, the Minister having decided that an allowance for depletion should be made on the basis of value there was evidence before him upon which he might properly find the fair value as being $35,000.
The onus was on the taxpayer to show that the Minister had been influenced by irrelevant considerations or had otherwise acted in an arbitrary or illegal manner justifying the intervention of the Court and and this had not been done. Per: Locke J. Evidence of value not having been placed in issue on the pleadings, was inadmissible. The Exchequer Court Act, s. 36. Johnson v. Minister of National Revenue, [1948] S.C.R., INCOME TAX-Concluded
486, applied. Held: also, that the interest paid on the demand note was not "interest on borrowed capital used in the business to earn income" within the meaning of s. 5
(1) (b). MINISTER REVENUE v. T. E. MCCooL LTD...............
2.- Revenue-Income Tax-Depletion
Allowance re coal mine8-Meaning of the words "lease" and "lessee" in leases of mines as used in the Income War Tax Ad,
R.S.C., 1927, c. 97, s. 5(1) (a) as amended.
Section 5(1) (a) of the Income War Tax Act provides that: The Minister in determining the income derived from mining may make such an allowance for the exhaustion of the mines, * * * as he may deem just and fair, and in the cases of leases of mines * * * the lessor and lessee shall each be entitled to deduct a part of the allowance for exhaustion as they agree and in case the lessor and lessee do not agree the Minister shall have full power to apportion the deduction between them and his determination shall be conclusive.
Held: that the word "leases" and the word
"lessee" in s. 5(1) (a) of the Income War
Tax Act are not used in the narrow or technical sense.
Such "leases" include a grant to the "lessee" of an exclusive right to mine and appropriate the mineral to the use of the grantee.
Held: also, that the refusal by the Minister to consider the appellant as a "lessee" involved an error in law and therefore was not a good ground for refusing to make an allowance for depletion. D. R. Fraser Co. Ltd. v. Minister of National Revenue,
24;
McCool v. Minister of National Revenue,
[1950], S.C.R., 80, followed.
Judgment of the Exchequer Court of Canada, [19491
Ex. C.R. 361, reversed.
Co.
INDIAN LANDS-Indian Lands, Lease of-Direction of Governor in Council mandatory-Failing authorization by Order in
Council lease void-The Indian Act, R.S.C.
Indian Act, R.S.C. 1906, c. 81, provides that all Indian lands which are reserves or portions of reserves surrendered to
His Majesty, shall be deemed to be held for the same purposes as heretofore;
and shall be managed, leased and sold as the Governor in Council directs, subject to the conditions of surrender and the provisions of Part I of the Act.
Held: That the language of s. 51 is mandatory, and in the absence of direction by the Governor in Council, a lease of Indian lands is invalid. In the case at bar the original lease, having been approved by
Order in Council, was a valid one but such approval terminated with the said lease.
As to the subsequent leases, they lacked authorization by Order in Council and consequently were void. ANN's IsLAND
THE KING.....................
INFANTS- Custody - Habeas corpus-Parents and child citizens of foreign State-Infant brought to Ontario by father to evade foreign Court's Order awarding custody to mother-Manner in which general rule as to infant's custody should be exercised Infants Act, R.S.O., 1937, c. 215. Held: (Taschereau, Kellock and Fauteux JJ., dissenting), that in determining the custody of an infant the well established rule in Ontario is that the paramount consideration is the welfare of the infant and the judgment of a foreign Court as to such custody need not as a matter of binding obligation be followed.
Where, however, as in the case at bar, the infant and both of his parents are citizens of a friendly State in which they are all domiciled and have always resided, and when the Courts of the country to which he belongs and from which he has been improperly removed, have reached a decision that one of the parents is to have custody, and the other parent in breach of his agreement not to remove the infant from the country to which the infant belongs, and in defiance of, and solely for the purpose of evading the order of the Courts of that country, to which he had himself submitted the question of custody, brings such infant into Ontario, any jurisdiction an Ontario Court may have acquired as the result of such conduct should be exercised only for the purpose of returning the child in proper custody to the country whose subject he is. In re B-'s Settlement [1940] 1 Ch. 54 distinguished and questioned. Per: Taschereau, Kellock and Fauteux JJ., dissenting: The appellant under the guise of custody proceedings asks for an order for which there is no authority outside the Extradition Act or the deportation provisions of the Immigration Act. Even if it could be said such authority resides in the executive it has not been committed to the courts. Atty.-Gen. for Canada v. Cain [1906] A.C. 542 at 546.
There is no jurisdiction in the Courts of Ontario or in this Court to make such an order as the appellant seeks or to do otherwise than apply to the circumstances of this case the ordinary law of Ontario as to custody, giving due weight to the California decree.
Whatever the position of the respondent, the infant is entitled to rely upon the protection of the court and the law of Ontario relating to infants. To grant what the appellant seeks would be to ignore these rights. Re Gay, 59 O.L.R. 40; Re Ethel Davis, 25 OR. 579. The courts below correctly applied the relevant law, gave proper weight to the California judgment, and the judgment in appeal should not be disturbed. McKEE V. McKEE....................... 2.-Infant-Adoption, illegitimate child- When mother's consent revocable-Custody, tion Act, R.S.O., 1937, c. 218-The Infants Act, R.S.O., 1937, c. 215-The Surrogate Court Act, R.S.O., 1937, c. 106 ...... Insurance - Against damage caused by accident-Policy excludes loss from fire and from accident caused by fire-Accident followed by fire and explosion loss covered-Cause of-Assignment of insured's rights-No signification- Whether insured can still claim-Arts. 1570,
1571 C.C.
An insurance policy insured appellant against loss on property directly damaged by accident and excluded losses from fire and from accident caused by fire.
A tank, which was the object of the insurance, burst permitting the escape of fumes which ignited and exploded causing considerable damage to appellant's factory.
The Superior Court maintained the action on the policy and the Court of Appeal dismissed it on the ground that the damages were caused by fire and were not the direct result of the tearing asunder of the tank.
Held: The damage was the direct consequence of the accident to the tank; the bursting of the tank was the proximate cause of the damage.
Coxe v. Employers'
Liability Ass. Corp. (1916) 2 K.B. 629;
Leyland Shipping Co. v. Norwich Union
Fire Ins. Society [19181 A.C. 350 and
Canada Rice Mills v. Union Marine and
General Ins. Co. [1941] A.C. 55 referred to.
Stanley v. Western Ins. Co. (1868) L.R. 3
Ex. 71 distinguished.
Held also, that the appellant was not deprived of its right of action against the respondent, as the assignment of its rights to the fire insurance companies had not been signified to the respondent.
Per Rand (dissenting): The explosion damage was attributable to the fire which, existig briefly after the initial stages of the accident to the tank, caused the explosion and was a new point of departure in the chain of causation.
CANADA...........................
JURISDICTIONpeal-Special leave-Jurisdiction-Whether statute giving new right of appeal is retrospective-New trial-Starting point of proceedings-Same indictment-11-12 Geo. VI, c. 89, s. 42, enacting s. 1025 (1) Criminal
2.-Criminal Law-Appeal from Sumsum of money to be paid into Court- Whether condition precedent to right of appeal met, where appellant prior to date fxed for payment, deposits with the Court the amount fixed by it to cover costs of appeal.
Criminal Code, R.S.C., 1927, c. 86, s. 750(c), as amended by 1947, c. 55, s. 23.
Husband and Wife-Summary Proceedings for Maintenance-The Deserted Wives' and
Children's Maintenance Act, R.S.O., 1987, c.211.............................
3.--Crown-Central Mortgage and Hous- 76231-3
JURISDICTION-Concluded subject to Supreme Court of Alberta-Central Mortgage and Housing Corporation Act, S. of C. 1945, c. 15, s. 5. Held: The Central entered in the name of the Corporation into a contract under section 5(2) of the Central Mortgage and Housing Act, is subject to the jurisdiction of the Supreme Court of Alberta in respect of any obligations arising out of that contract. YEATS V. CENTRAL CORP...... 4.-Constitutional Law - Dominion and Provincial jurisdiction-Power of Parliament to (a) repeal, abolish or alter pre- Confederation Newfoundland law; (b) to bring into force Statutes of Canada in the Province of Newfoundland, by Act of Parliament or by proclamation and by such proclamation to provide for the repeal of certain laws of Newfoundland-The British North America Act, 1867 to 1949, ss. 91, 92, 146.-"An Act to approve the Terms of Union of Newfoundland with Canada", 1949 (Can.) 1st Sess., c. 1, Terms 3,18 (1) (2) (8) (27).-"An Act to amend The Income Tax Act and the Income War Tax Act," 1949 (Can.) 2nd Sess., c. 25, s. 49 ......... See CoNsTITurIoNAL LAw 2. 5.- Adoption, illegitimate child -When mother's consent revocable-Custody, tion Act, R.S.O., 1987, c. 218-The Infants Act, R.S.O., 1987, c. 215-The Surrogate Court Act, R.S.O., 1987, c. 106........ LABOUR LAW- Labour Law - Trade Unions-Union Officials told general contractor, that in event of sub-contractor employing non-union labour the union men would not work on the job, as a result sub-contract was cancelled-Whether act of Union Officials unlawful interference with sub-contractor's contractual relations. A general contractor under an agreement with a Union, of which the respondents were officers, undertook to employ on its contracts only union labour for that class of work in which the Union engaged.
Having secured a contract for a building project it assigned part of the work to a sub-contractor which also employed only union labour. The latter, in the belief that the appellant was also an employer of union labour, gave a contract for part of such work to the appellant and the general contractor sharing the same belief, approved.
The respondents, on learning of the contract awarded the appellant, advised the general contractor that their Union under the circumstances would be unable to supply it with union labour for other work of the same general nature as that awarded the appellant. The general contractor then told its sub-contractor that non-union men could not work on the job and the sub-contractor then advised the appellant that any men he employed there must be union men, and the appellant LABOUR LAW-Concluded agreed. At the time the appellant secured his contract he was aware of the Union's rule forbidding its members to work with non-union men engaged in the same class of work, and of its further rule whereby it entered into collective agreements with the
Master Plumbers Association only and not with individual master plumbers such as the appellant. Notwithstanding, he made no effort to join the Master Plumbers
Association, nor did his workmen apply to join the Union. He, however, attempted to negotiate with the Union through the respondents but without success. The contract he had obtained was thereupon terminated by mutual consent and he then brought action against the respondents claiming they had conspired to interfere with his contractual relations. Held: The respondents as officers of the Union were within their rights in advising the general contractor of the consequences that would ensue if the appellant carried out his contract by the employment of non-union labour. The evidence did not support the contention that they conspired to injure the appellant, nor that any acts on their part, or of either of them, was the cause of the cancellation of the appellant's contract.
Smithies v. National Association of Operative Plasterers, [19091 1 K.B. 310, and
Larkin v. Long, (1915] A.C. 814, distinguished. Local Union No. United
Mine Workers of America v. Williams and
Rees, 59 Can. S.C.R. 240 at 247 referred to; Quinn v. Leathem, [1901] A.C. 495 and
Lumley v. Gye, (1853) 2 E. & B. 216, applied. Per: Rand J.-The proper view to attribute to the cancellation of the contract was not the refusal of labour by the respondents but to the chosen course of action by the building contractor.
Rand J.-It is now established beyond controversy that in the competition between workmen and employers and between groups of workmen, concerted abstention from work for the purpose of serving the interest of organized labour is justifiable conduct. Crofter Harris Tweed Co. v. Veitch,
[1942] All. E.R. 142.
Judgment of the
Court of Appeal, [1949] O.R. 85; [1949]
1 D.L.R. 544, affirmed. NEWELL v BARKER
....................
LIMITATIONS, Statute of- MALICIOUS PROSECUTION-Criminal law-"Peeping tom"-Whether criminal offence-Conduct likely to cause breach of peace-False imprisonment-Arrest without warrant-Burden of proof-Criminal Code, as. 30, 646, 647, 648, 650-Supreme Court
Act, R.S.B.C. 1936, c. 56, s. 77 .......
See CnuMNAL 5.
MANDAMUS- Appeal from Summary Conviction under an order adjudging sum of money to be paid into Court condition precedent to right of
MANDAMUS-Concluded appeal met, where appellant prior to date fixed for payment, deposits with the Court the amount fixed by it to cover costs of appeal. Criminal Code, R.S.C., 1927, c. 86, s. 750(c), as amended by 1947, c. 65, s. 23. Husband and Wife-Summary Proceedings for Maintenance-The Deserted Wives' and Children's Maintenance Act, R.S.O., 1987, c.211.........................
2.-Mandamus-School law - Commissioners-Eviction of pupils-Insubordination-Discipline-Education Act, R.S.Q. 1941, c. 59, ss. 69 (as amended by 7 Geo. VI, c. 13, s. 2), 221 (14). A mandamus to force the School Commissioners to admit to school pupils who had been evicted "pour cause d'incapacit6 de suivre les cours" will not be entertained when it is established that the backward mentality and insubordination of these pupils were prejudicial to the good order, discipline and advancement of the rest of the class. V. OF DIxviLu ......... MANDATE- Mandate - Brokers - Authorized by client to buy and sell shares for him-Indemnification of broker for unforeseeable losses incurred during execution of mandate-Whether settlement made prior to delivery of shares is final-Arts. 1701, 1713, 1725 C.C. Appellants as brokers purchased for respondent 750 shares on the New York Stock Exchange. When in a position to deliver them, they were instructed by respondent to sell 250 of the shares and to apply the proceeds toward the purchase price of the 750. This sale was done, and, at the request of respondent, the remaining 500 shares were delivered to him and the account was then determined and paid before the 250 shares were delivered to and paid for by the buyer of the same on the New York Stock Exchange. A modification of the exchange rate of the dollar taking place after determination of the account and before such delivery and payment resulted in a loss for appellants which they seeked to recover from respondent.
The action was maintained in the Superior Court but dismissed in the Court of Appeal. Held: The contract between the parties being clearly in the nature of a mandate, appellants therefore are entitled to recover the loss incurred during the execution of the mandate as the result of unforeseeable changes in the exchange rate, since a mandatory should not be impoverished by the due execution of his mandate. Held: As the mandate could only come to an end after delivery and payment were made on the sale of the 250 shares, the settlement made prior to that time could not be more than provisional. RoTHscHILD v. DuFIELD.................... MASTER AND SERVANT-Master and
Servant-Contract-General hiring-Increase in salary-Illegality-Effects of Wartime
Salaries Orders as to salary increase- P.C. 1549, 4356. Action by appellant seeking arrears of salary for the years 1944, 1945 and part of 1946 pursuant to a contract whereby he was to receive $7,500 per annum.
Up to 1942, he had been paid
$400 monthly and annual bonuses. A new arrangement confirmed in writing as follows was then made: "Your remuneration, including bonus, for the fiscal year 1942 will not be less than $7,500." The approval of the Salaries Controller for the increase, required by the Wartime Salaries Order
P.C. 1549 amended by P.C. 4356, was sought but was obtained only as from
January 1, 1943. In 1942 he received
$400 a month and was given $2,700 for the year and similarly in 1943. The lump sum at the end of 1944 was only $2,000.
And for 1945, he received nothing above his monthly $400 and was notified towards the end of that year that his position was abolished.
Held: That, this being a contract of general employment, the increase sum became a term of the contract and could not be altered until the contract was validly altered. Held also: That, as there was no evidence that the contract was intended to be put into effect without the permission required by the Wartime
Salaries Order, although the increase was agreed between the parties before this permission was sought, it must be assumed that the parties intended to comply with the law.
PAOLI v. WoRKs
ITD........................
MUNICIPAL CORPORATION-Assessment-Municipal-0ffice building partly owner and partly tenant occupied-Actual value-Exchangeable value-Prudent investor
-Replacement cost-Commercial value- Non-productive features..............
2.- Taation-Municipal-Personal propert y-Construction contract providing that plant and equipment used will be "property" of
Crown-Whether title of ownership in Crown or in contractor-Whether taxable-Recovery
-Distress-Whether decision of Alberta
Assessment
Commission re8 judicata- Assessment Act, R.S.A. 1942, c. 157, s. 5,
85, 45, 53-Municipal District Act, R.S.A.,
1943, c. 151, s. 870-Vehicles and Highway
Traffic Act, R.S.A. 1943, c. 275, s. 119. 450
3.-Municipal law-Flood-Closing of a street-Farm-Enclave-Indemnity-Prescription-Cities and Towns Act, R.S.Q. 1941,
833, arts. 429, 623, 633-Arts. 407, 540,
1085, 1088 C.C. The lease of a farm provided that if certain conditions were fulfilled, the rent paid would serve as the price of the sale of the property. During the existence of the lease, a flood took place with the result that the Corporation passed a by-law closing a portion of the street
76231-31
MUNICIPAL CORPORATION-Cone. running through the farm.
No provision for indemnity was made in the by-law. More than two years later appellant exercised his right to buy the property and immediately took action for indemnity against the town. The action was dismissed by the Superior Court and the Court of Appeal. Held: The enclave was not caused by the closing of the street but by the flood and the Town had the right to close the street but should have paid appellant an indemnity since it did not transfer the site of the street to appellant as provided for by para. 33 of art. 429 of the Cities and Towns Act. Held: Appellant had the necessary interest to take this action because by virtue of art. 1088 C.C. when he exercised his right to buy the property, things were replaced in the same state as if the lease had not existed and the property had been bought ab initio. Held: The short prescription of arts. 622 and 623 of the Cities and Towns Act does not apply as this is not an action in damages but one for indemnity-very closely akin to an action for compensation for expropriation. McCoNMEY v. CrFY oF 486 NEGLIGENCE- Negligence - Petition of right-Young boy playing with a bomb found in the ditch of a highway near an army camp was injured by its explosion- Liability of the Crown-Onus-Presumptions negligence of army personnel- Whether "acting within scope of duties or employment"-Exchequer Court Act, R.S.C., 1927, c. 84, s. 19(c)................. 2.-Shipping-Ship damaged on rock and later beached-Allegation that ship's officers were negligent after beaching resulting in damage to cargo-Failure to use all pumping facilities-Whether such neglect was in "the management of the ship"-The Water Carriage of Goods Act, 1986, 1 Ed. VIII, c. 49, Art. IV, s. 2(a).................... 3.--Crown-Lease of shed by Crown to Act, R.S.C. 1927, c. 84, s. 19(c)-Water Carriage of Goods Act, 1 Ed. VIII, c. 49. A shed, leased by appellant to respondent C.S.L. and in which were stored respondent's and third parties' goods, caught fire while appellant's employees, acting within the scope of their duties, were doing repairs to it in compliance with appellant's obligation to maintain the shed under clause 8 of the lease.
Clause 7 provided that "the lessee shall not have any claim or demand against the lessor for detriment, damage or injury of any nature .. . to the said shed . . or materials . .. goods . placed, made or being ... in the said shed". NEGLIGENCE-Concluded
By clause 17 it was provided that "the lessee shall . .. indemnify ... the lessor ...
against all claims and demands . . . based upon, occasioned by or attributable to the execution of these presents, or any action taken or things done or maintained by virtue thereof, or the exercise in any manner of rights arising hereunder".
The trial judge held that appellant's employees had been negligent and that clause 7 could not be invoked as their negligence amounted to "faute lourde". For the same reason, he dismissed the third party proceedings instituted by appellant under clause 17.
At the hearing, this Court declared that the finding of negligence by the trial judge could not be disturbed. Held: The intention of the parties to be gathered from the whole of the document was that, as between the lessor and the lessee, the lessor should be exempt under both clauses 7 and 17 from liability founded on negligence (Locke
J. contra as to clause 7).
Held also: The conduct of appellant's employees did not amount to "faute lourde".
Per Locke J.
(dissenting in part): As there was here a double liability-the contractual obligation on the part of the Crown to maintain the shed under clause 8 and the liability of the Crown under s. 19 of the Exchequer
Court Act-the liability in negligence not having been expressly or by implication excluded, remains and therefore clause 7 does not afford an answer to respondent's claim. Glengoil Steamship Co. v. Pilkington
(1897) 28 S.C.R. 146; Phillips v. Clark
2 C.B. (N.S.) 156; Price v. Union
Lighterage Co. [1904] 1 K.B. 412; Rutter v.
Palmer [1922] 2 K.B. 87; McCawley v. Fur- 7ess Ry. Co. (1872) L.R. 8 Q.B. 57; Reynolds v. Boston Deep Sea Fishing Co. (1921) 38
T.L.R. 22; Beaumont-Thomas v. Blue Star
Line Ltd. [1939J 3 All E.R. 127 and Alderslade v. Hendon Laundry Ltd. [1945] 1 All
E.R. 244 referred to.
et al .........
PATENTS- Patents - Infringement-Validity of Patent-Use of zanthates in frothflotation concentration of ores-To determine whether a patent "correctly and fully describes the invention" the specification must be read as a whole-Claims which include substances harmful to the process are invalid-The Patent Act, S. of C., c. ss. 7(1), 14(1)-The Patent Act,
1935, S. of C., c. 32, s. 61(1) (a). The respondent claimed a patent for improvements in the froth-flotation concentration of ores by the use of certain sulphur derivatives of carbonic acid and sued the appellant for infringement. The appellant contended that the patent as a whole was invalid in that it did not correctly and fully disclose the invention and that of the claims sued on, 6, 7 and 9 were too broad and 8 was not infringed.
The disclosure set forth that certain sulphur derivatives of carbonic acid had been found to increase greatly the efficiency of the froth-flotation process when used with frothing agents and
PATENTS-Concluded paragraph 4 read: "The invention is herein disclosed in some detail as carried out with salts of the sulphur derivatives of carbonic acid containing an organic radical, such as an alkyl radical and known as xanthates, as the new substance. These form anions and cations in solution."
Claim 6 read: "The process of concentrating ores which consists in agitating a suitable pulp or an ore with a mineral-frothing agent and an alkaline xanthate adapted to cooperate with the mineral-frothing agent." The improvement in the concentration as set out in claim 7 was to be "in the presence of a xanthate"; in claim 8, "in the presence of potassium xanthate"; and in claim 9, "in the presence of xanthate and a frothing agent."
Held: (Kerwin J. dissenting), that, in determining whether a patent "correctly and fully describes the inven- Specification, including the disclosures and claims, is to be read as a whole. Held: also that claims 6, 7, 8 and 9 were invalid since they included substances, i.e., xanthates, admittedly harmful to the process.
Per: Kerwin J., dissenting,- "Xanthate" as used in claim must be read as limited by the definition in the disclosures, and as it is a technical word for which there is no precise meaning, the inventor supplied one in paragraph 4 the disclosures-the term thus hmited did not include cellulose xanthates and heavy metal xanthates. CORP............................. PETITION OF RIGHT-Crown-Negligence-Petition of right-Young boy playing with a bomb found in the ditch of a highway near an army camp was injured by its explosion-Liability of the Crown-Onus- Presumptions-Whether negligence of army personnel-Whether "acting within scope of duties or employment"-Exchequer Court Act, R.S.C. c. 84, s. 19 (c) ..... 2 - Petition of right - Retired judge receiving a pension-Appointed Lieutenant-Governor of Quebec-Heirs claiming for salary-Whether prescription-Whether law of Quebec or of Ontario applies-If law of Quebec whether prescription is five years question of law decided at previous hearing as to the status of Lieutenant-Governor created "res judicata"- Renunciation to prescription-Judges Act, R.S.C. c. 105, s. 927-The Exchequer Court Act, R.S.C., c. 84, 8. 32- Arts. 449,
2260(6), 2267 C.C........................... 73 3.-Crown - Petition of Right - Whether the Crown in the right of the Dominion of Canada liable for alleged breaches of trust or debts of (a) the government of the Province of Canada, (b) the government of the Province of Upper Canada-s. 111,
The British North America Act.................. Petition of right-Retired judge receiving a pension- Appointed Lieutenant-Governor of Quebec
-Heirs claiming for salary-Whether prescription-Whether law of Quebec or of
Ontario applies-If law of Quebec whether prescription is eive years-Whether question of law decided at previous hearing as to the status of Lieutenant-Governor created "res judicata"-Renunciation to prescription- Judges Act, R.S.C., 1927, c. 105, s. 27- The Exchequer Court Act, R.S.C., 1927, c. 84, s. 32-Arts. 449, 1602, 2242, 2250,
2260(6), 2267 C.C...................
2.-Municipal law-Flood-Closing of a street-Farm-Enclave-Indemnity- Pre scription-Cities and Towns Act, R.S.Q.,
1941, c. 238, arts. 429, 622, 628-Arts. 407,
540, 1085, 1088 C.C.................
RAILWAYS- Railways - Freight rates - Board of Transport Commissioners-Powers and duties-Postponement of final decision- Declining of jurisdiction-Railway Act,
R.S.C., 1927, c. 170, ss. 33(1) (b), 45(2),
52(3). The Board of Transport Commissioners, being a court of record, cannot postpone determination of an application for an increase in freight rates by reason of matters entirely irrelevant to the proper discharge of its duty to decide such question. To do so would amount, in effect, to a declining of jurisdiction.
C.P.R. v.
ALB3ERTA..............
Income Tax - Timber Limits-Claim for Depletion-Discretion of Minister must be based on sufficient facts-Interest on unpaid purchase price not interest on borrowed capital-The Income
War Tax Act, R.S.C., 1927, c. 97, ss. 6(1)
(a) (b), 6 (a) (b), 65-The Exchequer
Court Act, R.S.C. 1927, c. 84, s. 36. The
Income War Tax Act, s. 5 (1) (a) provides that the Minister of National Revenue in determining the income derived from timber limits may make such allowance for their exhaustion as he may deem just and fair. Section 5 (1) (b) provides that there may be deducted from income such reasonable rate of interest on borrowed capital used in the business to earn the income as the Minister in his discretion may allow.
The respondent company acquired certain timber limits and other assets from T. E.
McCool under an agreement by which it assumed McCool's liabilities and gave him or his nominees, members of his family, all its issued stock, 600 shares, and its demand note for $123,097 bearing interest at five per cent.
The agreement assigned no specific value to the timber limits, which
McCool had bought for $35,000, but the company in filing its income tax return, claimed depletion on the basis of a valuation of $150,000, which it alleged was the price it paid for them and was less than their market value.
It also claimed as a deduction the interest paid on the demand
REVENUE-Continued note. The Minister ruled that the limits be valued for the purposes of the Act at the cost price to McCool and that the depletion allowable be based on that figure, and that interest be not allowed on the note in arriving at the taxable profit. (Locke J. dissenting) that the Minister having decided that an allowance for depletion should be made, there was an insufficiency of evidence before him upon which he could in the exercise of his discretion determine the amount thereof and therefore the matter should be referred back to him.
Per: Locke J., dissenting, the Minister having decided that an allowance for depletion should be made on the basis of value there was evidence before him upon which he might properly find the fair value as being $35,000. The onus was on the taxpayer to show that the Minister had been influenced by irrelevant considerations or had otherwise acted in an arbitrary or illegal manner justifying the intervention of the Court and this had not been done. Per: Locke J. Evidence of value not having been placed in issue on the pleadings, was inadmissible. Exchequer Court Act, s. 36.
Johnson v. Minister of National Revenue, [1948] S.C.R., 486, applied. Held: also, that the interest paid on the demand note was not "interest borrowed capital used in the business to earn income"
within the meaning of s. 5(1)
(b).
v. T. E. McCOOL LTD..... 2.- Income Tax - Depletion Allowance re coal mines-Meaning of the words "lease" and "lessee" in leases of mines as used in the Income War Tax Act' R.S.C., 1927, c. 97, s. 5(1) (a) as amended. Section 5(1) (a) of the Income War Tax Act provides that: The Minister in determining the income derived from mining. . . may make such an allowance for the exhaustion of the mines, . as he may deem just agid fair, and in the cases of leases of mines . . . the lessor and lessee shall each be entitled to deduct a part of the allowance for exhaustion as they agree and in case the lessor and lessee do not agree the Minister shall have full power to apportion the deduction between them and his determination shall be conclusive.
Held: that the word "leases" and the word "lessee" in s. 5(1) (a) of the Income War Tax Act are not used in the narrow or technical sense.
Such "leases" include a grant to the "lessee" of an exclusive right to mine and appropriate the mineral to the use the grantee. Held: also, that the refusal by the Minister to consider the appellant as a "lessee" involved an error in law and therefore was not a good ground for refusing to make an allowance for depletion. D. R. Fraser Co. Ltd. v. Minister of National [19491
24;
McCool v. Minister of National Revenue, [19501 S.C.R.,. 80, followed. Judgment of the Exchequer Court of Canada, [1949] Ex. C.R., 361, REVENUE-Concluded reversed.
Co.,
3.-Revenue--Succession duty-Valuation of estate-Interest in estate not falling under the Act-How to determine fair market value-Succession Duty Act, 4-5 Geo. VI.
(Can.) c. 14, ss. 2(a) (e), 5(1), 34, 58(2).
Held: The provisions of the Succession
Duty Act (Can.) are not retroactive and accordingly in assessing duty thereunder, s. 34 is not applicable in valuing an interest in the estate of a person whose death occurred prior to its enactment. v.
SCHOOL LAW- Mandamus-School law
-Commissioners-Eviction of pupils-Insubordination- Discipline - Education Act,
R.S.Q., 1941, c. 59, ss. 69 (as amended by
7 Geo. VI, c. 18, s. 2), 221 (14) ....... 479
See MANDAMus 2.
SERVITUDES-Servitude
Will -Water power-Obligation to repair-Whether personal obligation or real servitude-Servitude upon servitude-Registration of the will- Arts. 449, 508, 545, 549, 550, 555, 1018,
1019, 2089, 2098, 2116, 2166, 2168 C.C.
By her will the testatrix left to her son, the predecessor in title of the appellant, a cardboard factory, the dam serving it and the entire water power up to and including a barrage called the "retenue".
To her daughter, the predecessor in title of the respondent, she left the adjoining lower lands including a flour and sawmill and a right to water power sufficient to operate them. These properties are situate on the de Lottinville River and some four miles below the retenue erected across the Laval
River for the purpose of diverting some of its water into the de Lottinville River.
Para. 7 of the will states: "Ma fille Zo6 aura le droit de se faire fournir par mon fils Louis, a m~me le pouvoir d'eau de la manufacture, 1'eau n~cessaire pour faire fonctionner les moulins. . ."
Appellant contended that the right to receive the water power given to the daughter was a personal right only against the son and could not be asserted against the appellant and also that as the will was not registered in the district in which the retenue lies, it could not be asserted against him. The respondent contended on the other.-hand that the will created a real servitude and that the appellant was obliged to maintain the retenue in repair. The majority in the
Court of Appeal held that the will created a real servitude. Held: (The Chief Justice and Kerwin J. dissenting) that, what was bequeathed was a real servitude for the benefit of the lower lands, of which the obligation to repair was part and parcel of the entire servitude imposed upon the properties devised to the son. Held: Evtn though the right to maintain the retenue is a servitude, the will did not create a servitude upon a servitude as the servitude
SERVITUDES-Concluded created is upon the retenue itself which is owned by the appellant. Held: Appellant cannot complain that the will was not registered as this would be a denial of his own source of title. Per The Chief Justice and Kerwin J. (dissenting): From the language used in the will, it is impossible to deduct that the testatrix had the intention to create a real servitude.
Assuming the intention to create a real servitude, as she did not follow the prescriptions of the Code requiring on the part of the servient land that the servitude be passive and not active, and also that the use and extent of it be determined by the title creating the servitude, the result is a personal obligation on the part of the son. Soci9TA
MORENCY.......................... SHIPPING-Shipping damaged on rock and later beached-Allegation that ship's officers were negligent after beaching resulting in damage to cargo-Failure to use all pumping facilities--Whether such neglect was in "the management of the ship"-The Water Carriage of Goods Act, 1936, 1 Ed. VIII, c. 49, Art. IV, s. 2(a). The insurers the cargo a ship damaged by striking a rock and later beached to prevent sinking brought action to recover damages alleged to have been suffered by the cargo after the beaching, owing to the failure on the part of the captain to direct the use of all available pumping facilities to prevent the entry of further water into the hold and away from the cargo. The trial judge held that there had been such negligence after the beaching but that as it was in a matter affecting the management of the ship the defendant was not liable under the terms of the contract of carriage which incorporated Art. IV, s. 2(a) of the Water Carriage of Goods Act. Held: affirming the judgment at the trial that, assuming there was such a failure on the part of the ship to utilize the available pumping facilities and that damage to the cargo resulted, this was neglect of the master in "the management of the ship" within the meaning of s. 2(a) of the statute and the defendant was not liable.
Per Taschereau and Locke JJ.: The failure to exercise reasonable diligence to prevent the entry of further water into the forehold was neglect in the navigation as well as in the management of the ship within the meaning of the subsection.
Per the Chief Justice, Rand and Estey JJ.: The evidence did not establish that any damage was occasioned to the cargo by the entry of water after the beaching.
The Glenochil [1896] P. 10; The Rodney [1900] P. 112; The Ferro [1893] P. 38; Good v. London SS. Owners' Association L.R. 6 C.P. 563; Carmichael v. Liverpool Sailing Ship Owners' Association 19 Q.B.D. 242; Gosse Millerd Ltd. v. Can. Govt. Merchant Marine [1929] A.C. 223: Rowson v. Atlantic Transport Co. [19031 2 K.B. 666; Hourani v. Harrison [1927] INDEX
SHIPPING-Concluded
32 Corn. Cas. 305; The Sylvia 171 U.S. 462 and The Sanfield 92 Fed. Rep. 663 referred to. et al v. C.P.R.
...................
2.-Crotn-Barge sunk in channel of navigable river-Obstruction to navigation- Removal by Department of Transport- Liability for costs of removal-Whether
Minister must sell wreck-Whether tug towing barge in charge thereof-The Navigable Waters' Protection Act, R.S.C.
c. 140, as. 14, 15, 16 17.............
See CnowN 6.
STATUTES-1.-Adoption Act, R.S.O.
1937, c. 218....................
2.-Alberta Insurance Act, R.S.A.
c. 201, 119, 135.................
3.-Alberta Sale of Shares Act, R.S.A
1922, c. 169........................
4.-Assessment Act, R.S.A. c. 157, as. 5, 85, 45, 58.................
5.-Assessment Act, R.S.O. 1987, c. 9272, es. 1 (i) (iv), 4 (17)
(am. 1947, c. 8, s.4 (8)............................
6.- B.N.A. Act (1867) s. 111......
See CowN 3.
7.- B.N.A. Act, 1867 to 1949, as. 91, 92,
146 ...............................
8.---Central Mortgage and Housing Corporation Act, S. of C. 1945, c. 15, s. 5.. 513
9.---Cities and Towns Act, R.S.Q. 1941, c. 9288, as. 6928..............
10.--Continuation of Transitional Measures Act, S. of C. 1947, c. 16 (am. 1948, c. 5 and 1949, c. 8).................
11.-Copyright Act, R.S.C. 1927, c. 32 s. 4.............................. 297
See CRIMINAL 5.
13.--Criminal Code, R.S.C. c. 86, s. 299, 1020...................
See LAW 4.
14.-Criminal Code, R.S.C. 1927, c. 86, s. 750(c) (am. 1947, c. 55, s. 28)....
15.--Criminal Code, R.S.C. 1927, c. 86, as. 856, 878, 905-909, 951, 1014(8).. 412
STATUTES-Continued
16.-Criminal Code, R.S.C. 1927, c. 86, s. 1025(1) as enacted by S. of C. 1948, c. 89, s. 492.............................. 352 17.-Deserted Wives' and Children's Maintenance Act, R.S.O. 1987, c. 211....... 18.-Education Act, R.S.Q. 1941, c. 59, 69, (14)..................479
19.-Exchequer Court Act, R.S.C. c. 84, s. 19(c)....................
20.-Exchequer Court Act, R.S.C. 1927, c. 34, s. 19(c)...................... See CnowN 5.
21.-Exchequer Court Act, R.S.C. c. 34, s. 32......................
22.-Exchequer Court Act, R.S.C. 1927,c.84, s.36 ...........................
23.-Income War Tax Act, R.S.C. 1927, c. 97, as. 5(l) (a) (b), 6(a) (b), 65... 24.-Income War Tax Act, R.S.C. 1927, c. 97, a. 5(1) (a)................... 25.-Income War Tax Act and Income Tax Act (Act to amend the) 1949 (Can.) 2nd Sess., c. 25, e. 49................ 26.-Indian Act, R.S.C. 1906, c. 81, ss.51, 64.......................... See INDIAN
27.- Infants Act, R.S.O. 1937, c. 9216 700 28.-Infants Act, R.S.O. 1937, c. 216 737 29.- Judges Act, R.S.C. 1927, c. 105, s.27..........................
See CRown 2.
30.-Limitations Act, R.S.O. 1937, c. 118 ...... 31.-Municipal District Act, R.S.A. c. 151, s. 370.................. 32.-National Emergency Powers Act, S. of C. 1945, c. 25 (am. 1946, c. 60) 124 33.- Navigable Waters' Protection Act, R.S.C. 1927, c. 140, as. 14, 15, 16, 17 664 See 6.
34.-Patent Act, S. of C. c. 23, as. 7(1), 14(1).................... STATUTES-Concluded
35.-Patent Act, S. of C. 1985, c. S, s. 61(1) (a).....................
36.-Railway Act, R.S.C. 1927, c. 170,
83(1) (b), 45(2), 52(8).........
125, 126..........................
38.-Succession Duty Act, R.S.O. 1937, c. 26, 18(3).....................
39.-Succession Duty Act, 4-5 Geo. VI,
(Can.) c. 14, ss. 2(a) (e), 5(1), 34, 58(2)
.....................
40.-Supreme Court Act, R.S.B.C. 1936, c. 56, s. 77........................
41.-Surrogate Court Act, R.S.O. 1937, c. 106.............................
42.-Unfair Competition Act, 1982, S. of
C. 1932, c. 38...................
See MARK.
43.-Union of Newfoundland with Canada
(Act to approve the Terms of) 1949 (Can.)
1st Sess c. 1, Terms 8, 18(1), (2), (3) 608
44.-Vehicles and Highway Traffic Act,
R.S.A. 1942, c. 275, s. 119 ...........
45.-War Measures Act, R.S.C. 1927, c. 206.............................
46.-Water Carriage of Goods Act, 1936,
1 Ed. VIII, c. 49, Art. IV, s. 2 (a)... 356
47.-Water Carriage of Goods Act, 1936,
1 Ed. VIII, c. 49................
48.-Winding Up Act, R.S.C. 1927, c. 213
...................
49.-Winding Up Act, R.S.C. 1927, c. 213, sa. 53, 55, 59, 60....................
TAXATION- Assessment - Municipal - Office building partly owner and partly tenant occupied-Actual value-Exchangeable value-Prudent investor-Replacement cost-Commercial value-Non-productive features. In the municipal assessment of a very large office building in Montreal, which is approximately 50 per cent owneroccupied and the remainder rented, and whose size, design and particular architec- TAXATION-Continued tural features make it impossible to be compared with any other building in that city, Held: That the actual value which the assessors must find pursuant to the city charter is the exchangeable value or what the building will command in terms of money in the open market, tested by what a prudent purchaser would be willing to give for it; and, on an appeal to either the Superior Court or the Court of King's Bench (Appeal Side), by force of the charter of the City of Montreal, these Courts must render "such judgment as to law and justice appertain". Moreover, a municipal valuation for assessment purposes is not to be made in accordance with the rules laid down with regard to the valuation of a property for expropriation purposes. valuation must be made of the property as it stands and as used and occupied when the assessment is made. Held: That the actual value of this building should be determined by giving to the percentage of the replacement cost, after allowing for the extra unnecessary costs of the construction, a figure of no more than 50 per cent. Held: On principle, the non-productive features of a building, in so far as they do not add to its actual value ought not to be included among items in the determination of that value for municipal assessment. Kerwin J.: The formula used by the assessors, having failed to produce the actual value, should be disregarded and the commercial value only should be considered. CITY 2.- Assessment and Taxation-Principle to be applied in assessment of timber lands at their "real and true value"-The Rates and Taxes Act, R.S.N.B. 1927, c. 190, ss. 5 (am. 1945, c. 36, s. 2), 78, 124, 125, 126. The Rates and Taxes Act, R.S.N.B., 1927, c. 190, s. 5, (am. 1945, c. 36, s. 2), provides that "Real and personal property shall be rated at its real and true value". respondents' assessors in assessing timber lands in the Parish, estimated the average price to be $5 an acre and assessed all such lands, including those of the appellants, accordingly.
The appellants appealed to the County Court Judge under s. 78 of the Act alleging that its lands had been overrated absolutely or as compared with other properties in the Parish. He dismissed the appeal. An appeal was then made by way of certiorari to the Supreme Court of New Brunswick, Appeal Division, on the grounds that the assessors in making the assessment proceeded upon a wrong principle. That appeal was also dismissed.
question before this Court is whether on the entire proceedings the assessment appears to have been made on a wrong principle. The Judge in appeal considered the assessment de novo in all its aspects. He properly construed the Statute to g rovide for valuation on a market basis, as etween a willing seller and a willing purchaser, each exercising a reasonable judgment, having regard to all elements TAXATION-Continued and potentialities of value as well as of all risks, and reducing them all to present worth: Montreal Island Power Co. v. The
Town of Laval des Rapides S.C.R.
304. The conclusion to which he came, therefore, is amply supported by evidence adduced before him.
Ex N.B. Ry. Co............
3.-Taxation-Municipal-Personal property-Construction contract providing that plant and equipment used will "property"
of Crown-Whether title of ownership in
Crown or in contractor-Whether taxable- Recovery-Distress-Whether decision of Alberta Assessment Commission res judicata- Assessment Act, R.S.A. 1942, c. 157, ss. 5,
35, 45, 58-Municipal District Act, R.S.A.
c. 151, s. 370-Vehicles and Highway
Traffic Act, R.S.A. 1942, c. 275, s. 119.
Respondent contracted to do certain works at an irrigation project for the Crown. It provided that respondent would furnish all machinery, plant, equipment and materials but that, until completion of the works, they would "be the property of His
Majesty for the purposes of the said works"
without His Majesty being answerable for loss or damage to such property; that they could not be removed without the consent of His Majesty; -and that upon completion of the works they would be delivered to respondent. Should respondent be in default, His Majesty could use this property for the completion of the works and could sell or otherwise dispose of it. Appellant assessed and taxed the said plant and materials.
On appeal, where it was argued that the property belonged to the Crown, the assessment was confirmed by the Court of Revision and later by the Alberta Assessment Commission. Being threatened with seizure of the plant and equipment under powers of distress given by the Municipal District
Act, respondent asked by the present action that the assessment be declared invalid.
The trial judge maintained the action and the Appellate Division affirmed.
The contract did not transfer the absolute title of ownership which remained in respondent, subject to the clauses binding the use of the plant and equipment to the works and tying them to the area within which they were brought for that purpose.
All that was vested in the Crown was a group of rights and powers which, being security for the performance of the contract, would be specifically enforceable and would constitute an interest ad rem. Therefore respondent was taxable but, as there is no statutory provision for the recovery of tax on personal property by action, no such right can be implied nor can the appellant distrain upon the property taxed while it is under the obligations of the contract. Held further: The decision of the Alberta Assessment Commission is not res judicata as regards liability to taxation, because section 53 confers jurisdiction on the Com- TAXATION-Concluded mission only to correct or confirm the actions of the assessors and of the Court of Revision within their administrative jurisdiction of taxation and cannot be construed as vesting in the Commission judicial authority to determine questions of exemptions which involve the civil rights of property owners. Per Kerwin J.: The decision of the Alberta Assessment Commission as regards liability to taxation is res judicata, as section 53 clearly confers upon the Commission jurisdiction to determine whether any person was legally assessed. But appellant is not entitled to judgment for the amount of the taxes involved as there is no provision in the Act to recover taxes in respect of personal property as a debt; he can recover by distress but not on the property which is subject to the terms of the contract.
CITY DISTRICT v. et al. 4.-Assessment and Taxation-Definition of "land", "real property", "real estate"- What constitutes "machinery" erected, or placed upon, or affixed to land-The Assessment Act, R.S.O. 1937, c. 272, ss. 1(i) (iv), 4(17) (am. 1947, c. 8, s. 4 (3)). appellant operates a radio broadcasting transmitter station.
On premises, leased for a ten-year period, it erected a frame building in the basement of which it installed a transformer and on the first floor a transmitter. Each rested by its own weight orily on the respective floors. The power required for broadcasting was carried from high voltage lines into the building to the transformer, *by further wires to the transmitter, and thence by the same means to exterior broadcasting towers. A clause in the lease permitted the removal by the lessee of all buildings, fixtures and structures erected on the land. The respondent assessed both the transformer and transmitter under the general heading of "machinery and equipment". The assessment was appealed on the ground that neither the transformer nor the transmitter constitute "land", "real property" or "real estate" within the meaning of s. 1 (i) (iv) of the Assessment Act which provides that: " 'Land', 'real property', and 'real estate' shall include: All buildings, or any part of any building, and all structures, machinery and fixtures erected or placed upon, in, under, or affixed to land."
Held: Affirming the decision of the Court of Appeal, 11949] O.R. 695, Rinfret C.J. and Kerwin J., dissenting, that both the transformer and transmitter were "land" within the meaning of the Statute and therefore assessable. Co. v. Dis- TENANCY-Joint Tenancy and Tenancy in Common-Whether conduct of parties inconsistent with Joint Tenancy-Whether title of survivor of Tenancy in Common barred by The Limitation Act or by laches- Limitation of Actions-Declaration of Own- TENANCY-Concluded ership of Land and Judgment for Rents and
Profits-When cause of Action arose-The
Limitations Act, R.S.O. 1937, c. 118.
H and M made a joint purchase of a property in 1919, each contributing one-half of the purchase price. The deed was drawn by a solicitor acting on H's instructions and he retained the deed. During his lifetime
H collected the revenues paying over onehalf of the net proceeds to M. H died in
1928 and his widow appointed agents, who were adopted by M.
These collected the rents, paying one-half of the net rents to
M. The widow died in 1937 having by her will devised a life interest in one-half of the property to her sister with remainder over to R. The agents continued to collect the rents, paying one half to M and the remainder to the widow's devisees.
In 1946 M decided to sell his share in the property and on searching the title found that under the deed to H and himself he held as a joint tenant and not as a tenant in common. He sued for a declaration of title as sole owner, and for an accounting from the executrices of H's widow. R, by order of the trial court, being added as a party defendant.
R counter-claimed for a declaration that he was entitled to an undivided one-half interest in the property.
Held: (Affirming the judgment of the Court of Appeal) that the appeal and the counterappeal be dismissed. Per: The Chief Justice, Kerwin and Estey JJ., the decision of the trial judge and that of the Court of
Appeal, that M was the sole owner of the lands in question should be affirmedhis title was not barred by The Limitations
Act, and he had not been guilty of laches.
Per: Rand J., where there is joint possession by an owner and third persons under the erroneous belief that they hold as tenants in common, there is unity of possession de facto but not de jure, and such an actual unity does not permit of possession against the owner within Baldwin v.
Kingstone, 18 A.R., 63. Held, also by the
Chief Justice, Kerwin and Estey JJ., that the claim against the executrices of the widow's estate was barred by The Limitations Act, s. 48 (1) (g).
Per: Rand J., that the claim against the executrices must fail as on the evidence M and the widow's heirs dealt directly with the rents through their joint agent and the executrices had withdrawn entirely from any connection with them. Locke J., agreed with the Laidlaw
JA., with whom Aylesworth JA., concurred.
v. et a
...................
TIMBER LIMITS-Revenue-Income Tax
-Timber
Limits-Claim for Depletion- Discretion of Minister must be based on sufficient facts-Interest on unpaid purchase price not interest on borrowed capital-The
Income War Tax Act, R.S.C., 1927, c. 97,
5 (1) (a) (b), 6 (a) (b), 66-The
TIMBER LIMITS-Concluded
Exchequer Court Act, R.S.C., 1927, c. 84, s.86............
...............
TRADE MARK-Trade Mark-Meaning of words "made pursuant to the provisions of this Act" as used in s. 18-Whether canned chicken "similar" wares to jams, pickles, sauces and vinegars within the meaning of s. 2 (1)-Whether the mark "Rose Brand" and the mark "Rosie" are "similar" within the meaning of s. 2 (k)-The Unfair Competition Act, 1932, S. of C. 1982, c. 88. The respondent, a manufacturer of jams, jellies, pickles, sauces and vinegars, etc., is the proprietor of three trade marks; all carry the words "Rose Brand" and each bears the respresentation of a rose. first two marks were registered in 1914 and 1931 respectively under the Trade Mark and Design Act, the third, a design mark, under The Unfair Competition Act, The appellant under the name of "Rosie Canned Food Products", processes and sells various forms of canned chicken and chicken products.
His labels had as their predominant feature the word"Rosie", a contraction of his Christian name Rosario, followed by the word "Brand" in small letters, and a red rose with green leaves protruding from the sides. His application to register the mark "Rosie" was refused by the Registrar on the ground that it was confusingly similar to the registrations of the respondent. In an action for infringement and passing off the Exchequer Court, restrained the appellant from using the word "Rosie" or any similar word, or the representation of a rose, on prepared food products similar to that of the respondent and in particular, canned chicken. (Reversing the judgment of the Exchequer Court), that the appeal should be allowed. Per: Rinfret C.J., Taschereau, Rand and Estey JJ.-The wares of the respective parties are not, in the circumstances, within the scope of similarity defined by s. 2 Per: Rinfret C.J.-The wares are not of the same kind as required by the definition of s. 2 (k), and although they may have the common characteristics of food that is not sufficient to declare them simifar, as it would be contrary to the definition of trade mark under s. 2 (m). Per: Taschereau, Rand and Estey J.J.- The facts of the case establish an intention to relegate the first mark to the role of a mere supporting registration and its abandonment as a mark for use in association with wares; the new designs of the later two marks have been so evolved and in such circumstances as to lead to the same [Ex. Or . TRADE MARK-Concluded conclusion.
Per: Rinfret C.J.-The word
"Rose" alone is not registrable under the
Act, nor could the respondent by mere registration validly acquire a monopoly on the word "Rose" for its wares; there was no infringement of the marks so far as they are limited to the word "Rose Brand', nor was there evidence of confusion or deception by the buying public between the products of the respective parties.
Per: Taschereau, Rand and Estey JJ.- The language of s. 18 as it speaks of registration "made pursuant to the provisions of this Act", is to be taken as signifying the fact of being on the Register and the expression therefore embraces all registrations in the Register maintained under that
Act.
Per: Taschereau, Rand and Estey
JJ.-Although s. 18 (2) deals with the effect of a certified copy of the record of registration it implies necessarily that the registration itself would carry the like conclusive effect. In the circumstances of this case, the proof was made upon which the section is intended to operate.
Locke J.-The certificates tendered as proof of the registration of the marks claimed to have been made under the
Trade Mark and Design Act did not prove either the fact of registration nor that the marks were vested in the respondent. They were neither given under the provisions of s. 18 of The Unfair Competition Act, 1982, nor did they relate to registration made pursuant to that Act and proved nothing.
The trade mark registered in November
1932 was properly proved by a certificate under s. 18 (2) but upon the evidence was only available upon the claim for infringement in respect of pickles and vinegar and the appellant's products were not "wares of the same kind" within the meaning of s. 2 (k). Held: Also, that the evidence did not establish the alternative claim of passing off. DAsTous v.
LTD..............................
TRADE UNION - Labour Law -Trade
Unions-Union Officials told general contractor, that in event of sub-contractor employing non-union labour the union men would not work on the job, as a result sub-contract was cancelled-Whether act of Union Officials unlawful interference with sub-contractor's contractual relations.................
WILLS- Executors and Administrators - Foreign Administration-Action on Promissory Notes brought in Ontario-Plaintiff residing out of jurisdiction died before action came to trial and foreign administratrix joined as party by Court Order-Defendant
WILLS-Concluded satisfied to proceed-On appeal it appeared for first time notes were within jurisdiction at date of testator's death-Proceedings stayed to permit filing of ancillary Letters and an Order adding grantee as party- The Succession Duty Act, R.S.O., 1987, c. 26, s. 18 (8)...................
2.-Servitude-Will-Water power-Obligation to repair-Whether personal obligation or real servitude-Servitude upon servitude-Registration of the will-Arts. 449, 503, 545, 649, 550 555 1018, 1019, 2089, 2098, 2116, 2166, 2168 6.C........... WORDS AND7PHRASES-1.-" Correctly and fully describes the invention" (Patent Act, S. of C., 1928, c. 28, s. 14 (1) ) .................... 2.-"Interest on borrowed capital used in the business to earn income" (Income War Tax Act, R.S.C., 1927, c. 97, s. 5 (1) (b) ) .................................. See 1.
3.- "Land",
"Real property", "Real estate"
(Assessment Act, R.S.O., 1987, c. s. 1 (i) (iv) ) .............. See 4.
4.-"Lease", "Lessee" (Income War Tax Act, R.S.C., 1927, c. 97, s. 5 (1) (a) ) 470 5.-"Made pursuant to the provisions of this Act" (Unfair Competition Act, S. of C. 1932, c. 88, s. 18)................... 6.-"Maturity of the debt" (Winding Up Act, R.S.C., 1927, c. 218, s. 60 (2) )... 7.-"Neglect in navigation and management of ship" (Water Carriage of Goods Act, 1986, 1 Ed. .VIII, c. 49, Art. IV, s. 2 (a) ).......................... See SMPPING 1.
8.- "Real and true value" (Rates and Taxes Act, R.S.N.B., 1927, c. 190, s. 5) 286 9.-"Similar" (Unfair Competition Act, S. of C. 1982, c. 88, s. 2 (k) )......... 261 10.-'Sum of money adjudged to be paid" (Criminal Code, s. 750 (c)) .......... 381
Cases cited
- A.C. 388 A.C. 388
- McAskill v. Northwestern Trust Co. scr-1926-412
- Rex v. Welch O.R. 884
- Glengoil SS. Co. v. Pilkington / Glengoil SS. Co. v. Ferguson scr-28-146
- A.C. 542 A.C. 542 546
- A.C. 55 A.C. 55
- Quinn v. Leathem A.C. 495
- O.R. 85 O.R. 85
- A.C. 223 A.C. 223
Statutes and regulations cited
-
- s. 42
- s. 1025
- s. 3
- s. 873
- ss. 119
- 185
- ss. 58
- 55
- 59
- 60
- s. 9
- s. 119(9)
- s. 60
- s. 55
- s. 750(c)
- s. 23
- s. 750
- ss. 856
- 878
- 905
- s. 1014
- s. 1
- s. 902
- s. 907
- s. 906
- s. 909
- section 1020
- ss. 30
- 646
- 647
- 648
- 650
- s. 77
- Section 30
- ss. 646
- Sections 30
- s. 19
- section 19
- s. 27
- ss. 80
- 146
- ss. 69
- s. 2
- s. 870
- s. 119
- s. 2(a)
- ss. 2(a)
- s. 299
- 1020
- s. 28
- s. 1025(1)
- s. 492
- s. 370
-
Copyright Act
-
- s. 82
- s. 111
- section 5(2)
- s. 19 of the Exchequer Court Act
- ss. 14
- 15
- 16
- 17
- s. 17
- s. 19(c)
- section 11
- s. 36
- s. 5(1)
- Section 5(1)
- s. 19
- s. 32
- ss. 33(1)
- ss. 6(1)
- s. 34
- s. 18
- s. 14
-
- ss. 7(1)
- 14(1)
- s. 61(1)
- s. 927
-
- s. 78
- section 53
- ss. 1(i)
- s. 48
-
Unresolved citations
- s. 1 of The Infants Act
- Section 1 of The Infants Act
- section 4
- section 4 of the Ontario Act
- Section 3
- s. 60(2) of the Dominion Winding Up Act
- the Constitution
- section 5(2) of the Central Housing and Mortgage Act
- s. 18(3) of the Succession Duty Act
- section 5(2) of the Central Mortgage and Housing Act
- s. 2(a)
- s. 18 of The Unfair Competition Act, 1982