Majority
presented upon the basis that when the work under this contract was executed these buildings would either be removed or no longer used.
The Company did purchase some material for the road locally, as well as certain camp supplies. At the camp office tally and weigh sheets of materials and supplies received were kept, as well as the men's time, and the cheques, during the active construction operations, were issued from that office covering the men's time and the
Estey J. payment for the materials and supplies purchased locally.
These were apparently the only cheques issued from that office.
They were all drawn upon the Company's bank account at Fairville and daily reports were sent to the head office where the books were kept. There was no bank account in the Parish of Bathurst and no cheques were received there. During the winter all cheques were issued from head office.
The Company commenced the construction of this highway in 1947. When cold weather came on in November,
1947, it stored and repaired its equipment, during the winter, in the Parish of Bathurst, and about May 20, 1948, resumed the work of constructing the highway.
The Rates and Taxes Act (R.S.N.B. 1927, c. 190) is generally "applicable to all parishes, cities and towns"
in the Province.
Under the heading "Assessment of
Personal Property," s. 20 provides that, apart from the exceptions there specified, "All personal property within or without the Province, owned by an inhabitant of the
Province, shall be assessed to the owner in the parish where he resides."
That the Company had both its head office and principal place of business and, therefore, within the
Howe (1), resided at Fairville, Parish of Lancaster, County of Saint John, within the meaning of s. 20(1) (a), is not disputed.
The Parish of Bathurst contends that the personal property comes within the exception of s. 20(1) (a):
The word "or" in this sub-s. (a), where it appears after the word "resides" and before the phrase "in which shop," in my opinion should be read "and." It, therefore, follows that not only must the Company have a shop, factory, office or place of business, but it must therein carry on its trade or business, and the personal property, to be taxable, must be connected with, or employed in its trade or business.
Our attention was directed to a number of cases in which phases similar to "he carries on his trade * * * or business" were considered. In San Paulo (Brazilian) Ry. Co. v. Carter (1), and De Beers Consolidated Mines, Ltd. v. Howe, supra, the House of Lords held that, as the place from which the direction and control emanated was in England, the Company was carrying on business there and subject to income tax. Even in the San Paulo case Lord Davey stated at p. 43:
In Kirkwood v. Gadd (2), it was held that that part of the business of money-lending transacted in a place other than the registered office of the money-lender did not constitute a carrying on of -business within the language of the Money-Lenders Act.
The Rates and Taxes Act expressly contemplates the taxation of personal property at a place of business other than the head office, the principal place of business or the place from which direction and control emanate and, therefore, the considerations so important in the foregoing cases are not conclusive in determining that other place of business contemplated in s. 20.
The foregoing authorities as well as others, and, indeed, the cases decided in Canada, lead to the conclusion that to decide whether or not a company carries on business within the meaning of a particular statute it is first necessary to construe the phrase as used in the particular statute and then to determine, as a question of fact, whether the operation or activity in question comes within the phrase so used and construed.
The business of the Company is admittedly the construction of highways. The pertinent issue is, therefore, granting the Company carried on business in the Parish EPR of Lancaster in the County of Saint John, did it also carry on business within the Parish of Bathurst within the meaning of s. 20? S. 20 requires that three essentials be established in order that a tax upon personal property may be imposed.
The Company must have a place of business in the parish, at which it carries on its business and in connection with which it uses the personality. If these three essentials be present then it would seem that the Company is carrying on business within the meaning of that section.
The evidence discloses, with great respect to those who hold a contrary view, that the Company had a place of business, within the meaning of s. 20, at Bathurst. Permanent records were not kept at Bathurst, but it was there that the men's time was recorded, their wages computed and the cheques issued therefor. It is fair to assume that a labourer would attend at that office to complain of any error in his cheque. The supplies purchased locally were recorded and vendors paid therefor by cheques issued from this place of business. Moreover, in connection with the construction of this highway, it would appear that those at head office, as well as those directing and supervising the work of construction, treated the premises at Bathurst as a place of business. It was the place to which at least those associated with the construction work and the local people went to deal with the Company. There is no question but that a large amount of equipment was used upon the highway and used in connection with the business that was carried on at Bathurst. It, therefore, appears that the three essentials required by s. 20, in order that the tax might be imposed, are here present.
Counsel for the respondent pressed that, as the direction and control of the business emanated from the head office in Fairville, and once the contract was completed the facilities at Bathurst would be removed or abandoned, that within the meaning of s. 20 it could not be said that the Company carried on business in the Parish of Bathurst.
These considerations might well be conclusive under another statute. The Rates and Taxes Act, however, contemplates that personal property may be taxed at a point other than that place from which the direction and control emanate. Moreover, that Act does not make the impo- Ex sition of the tax contingent upon the existence of a permanent place of business; it rather provides that if the three essentials are present the tax may be imposed. assessors, in determining the amount of the assessment at e J$600,000, made no distinction between the personal property connected with, or employed by the Company in its business at Bathurst and that present at Bathurst but used elsewhere.
Before the learned County Court Judge the Company made this distinction very clear.
Mr. Russell Dexter, with whose evidence the learned Trial Judge was favourably impressed, stated that. the cost of all equipment at Bathurst was $546,000, while the cost of that used at Bathurst was $341,255.
He admitted that a roller was omitted from this latter item, of which he did not have the cost. It is, however, significant that the cost price of the equipment, as given by the expert Farrell, was $348,000. It is, therefore, a fair conclusion that the roller accounted for the difference.
The expert Farrell then deposed that the present worth of that equipment used in connection with the business at Bathurst was $175,554.92.
The municipality, before the learned County Court Judge, did not adduce evidence to contradict or vary either that given by Mr. Dexter as to the amount of the equipment used at Bathurst or the valuation of the same as fixed by Mr. Farrell. A suggestion that there may be other equipment that ought to have been included, as used in connection with business at Bathurst, does not, in the circumstances, involve a question of principle, but rather one of additional items and value thereof and, therefore, not a basis for remitting the matter to the assessors.
The learned County Court Judge did reduce the assessment to $275,000, but did not indicate the precise basis upon which he did so. The matter was then brought before the Appellate Division of the Supreme Court in certiorari proceedings and I have no doubt that had the learned judges of that Court held that the Company was assessable they would, under the provisions of s. 126(a), have struck from the assessment that part which was not supported by the evidence and directed that the assessment should be in the sum of $175,000, or, under s. 126 (d), would have directed that the amount of the assessment should be THEvKINc $175,000 and that the assessors correct the assessment list to that effect.
I would, therefore, vary the assessment accordingly and won allow the appeal.
Co. Estey 9T. Appeal allowed, assessment set aside and returned for re-assessment. Appellants to have half their costs in this
Court, the respondents their costs in the Appeal Division and before the County Court Judge.
Solicitor for the appellants: Albany J. Robichaud.
Solicitors for the respondent: Sanford & Teed.
ISRAEL
WINNER, doing business under the name and style of MAC- *Feb.6,7 KENZIE COACH LINES
*Oct.22 (DEFENDANT)
.......................
AND
S.M.T. (EASTERN) LIMITED, a duly incorporated company (PLAINTIFF)..
AND
ATTORNEY GENERAL OF CANAD A
S INTERVENERS.
and others ........................
Constitutional Law-Public bus service engaged in interprovincial and international transportation of passengers-Whether an "undertaking"
within the meaning of The British North America Act, 92 (a)- Whether such an operation affected by Provincial Legislation-The
New Brunswick Motor Carrier Act, 43 and amendments; The
Motor Vehicle Act, and amendments.
public bus service engaged in the interprovincial and international transportation of passengers is an undertaking within the meaning of section 92(10) (a) of The British North America Act.
Rinfret C.J. and Kerwin, Taschereau, Rand, Kellock,
Estey, Locke, Cartwright and Fauteux JJ.
The appellant, an American citizen, operated a public bus service between Boston, U.SA. and Halifax, Nova Scotia.
The New Brunswick Motor Carrier Board, purporting to act under the provisions of The Motor Carrier Act, 1937, c. 43 as amended, granted him a licence to operate his buses over the province's highways connecting the State of Maine with the Province of Nova Scotia but not to embus or debus passengers within New Brunswick.
The appellant having refused to be bound by the restriction, an injunction was sought and it was ordered that three questions be raised for the opinion of the New Brunswick Court of Appeal, viz:
1. Are the operations or proposed operations of the defendant within the Province of New Brunswick or any part or parts thereof prohibited or in any way affected by the provisions of The Motor Carrier Act (1937) and amendments thereto, or orders made by the said Motor Carrier Board?
2. Is Geo. VI, c. 47 (1949) intra vires of the legislature of the Province of New Brunswick?
3. Are the proposed operations prohibited or in any way affected by Regulation 13 of The Motor Vehicles Act, c. 20 of the Acts of 1934 and amendments, or under ss. 6 or 53 or any other sections of the The Supreme Court of New Brunswick, Appeal Division, having answered the three questions in the affirmative, on appeal to this Court Held: that the questions should be answered only to the extent necessary to dispose of the issues raised by the pleadings and for that purpose the answer made is that it is not within the legislative powers of the Province of New Brunswick by the statutes or regulations in question, or within the powers of The Motor Carrier Board by the terms of the licence granted by it, to prohibit the appellant by his undertaking from bringing passengers into the province of New Brunswick from outside said province and permitting them to alight, or from carrying passengers from any point in the province to a point outside the limits thereof, or from carrying passengers along the route traversed by its buses from place to place in New Brunswick, to which passengers stop-over privileges have been extended as an incident of the contract of carriage.
Rinfret C.J. answers the first question as follows:- "The operations or proposed operations of the defendant-appellant within the Province of New Brunswick or any part or parts thereof, as above set forth, are not prohibited or in any way affected by the provisions of The Motor Carrier Act, 1937 and amendments thereto. On the contrary, such operations or proposed operations are specifically provided for in Regulation made under authority of The Motor Vehicle Act. The attempt to restrict them in the Order made by the Motor Carrier Board is illegal and ultra vires."
and declines to answer the second and third questions.
Judgment of the Supreme Court of New Brunswick, Appeal Division, (1950) 26 M.P.R. 27, reversed.
New Brunswick, Appeal Division (1) which answered affirmatively three questions (set out in the preceding headnote) involving the validity of The Motor Carrier Act, 1937, c. 43 and amendments, including 13 Geo. VI, c. 47; and of The Motor Vehicle Act, 1934, c. 20 and amendments, including in particular ss. 6 and 53 and Regulation 13 promulgated thereunder.
N. B. Tennant, K.C. and J. M. Neville, K.C. for the C. F. Inches, K.C. and A. B. Gilbert, K.C. for the F. P. Varcoe, K.C. and W. R. Jackett, K.C. for the Attorney General of Canada, Intervenant.
C. R. Magone, K.C. for the Attorney General of Ontario, Intervenant.
L. E. Beaulieu, K.C. for the Attorney General of Quebec, Intervenant.
J. A. Y. MacDonald, K.C. and L. H. McDonald for the Attorney General of Nova Scotia, Intervenant.
A. N. Carter, K.C. and J. E. Hughes for the Attorney General of New Brunswick, Intervenant.
H. A. Maclean, K.C. for the Attorney General of British Columbia, Intervenant.
W. E. Darby, K.C. for the Attorney General of Prince Edward Island, Intervenant.
H. J. Wilson, K.C. for the Attorney General of Alberta, Intervenant.
C. F. H. Carson, K.C. and Allan Findlay for the Canadian National Ry. Co. and the Canadian Pacific Ry. Co., Intervenants.
F. R. Hume for Maccam Transport Ltd., Intervenant. C. H. Howard, K.C. for Carwil Transport Ltd., Intervenant.
THE JUSTICE:-The plaintiff-respondent is a company incorporated under and by virtue of The New s.T. Brunswick Companies Act and is in the business (inter alia) of operating motor buses for the carriage of passengers and goods for hire or compensation over the highways of the Province of New Brunswick. It holds licences granted by The Motor Carrier Board of the Province of New Brunswick to operate public motor buses between St. Stephen, New Brunswick, and the City of Saint John, New Brunswick, over Highway Route No. 1 and between the said City of Saint John and the Nova Scotia border over Highway Route No. 2, for the purpose of carrying passengers and goods for hire or compensation. It maintains a daily passenger service over those routes.
The appellant, who resides at Lewiston in the State of Maine, one of the United States of America, is in the business (inter alia) of operating motor buses for the carriage of passengers and goods for hire or compensation under the name and style of MacKenzie Coach Lines. On the 17th day of June, 1949, on the application of the appellant, The Motor Carrier Board granted him a licence permitting him to operate public motor buses from Boston in the Commonwealth of Massachusetts through the Province of New Brunswick on Highways Nos. 1 and 2 to Halifax and Glace Bay in the Province of Nova Scotia and return "but not to embus or debus passengers in the said Province of New Brunswick after August 1, 1949." At the time of making the said application, the defendant challenged the validity of the statute of New Brunswick 13 Geo. VI, c. 47 (1949) and The Motor Carrier Act, 1937, as affected thereby, as being ultra vires of the Legislature of the Province of New Brunswick. The Motor Carrier Board made no specific ruling on the defendant's challenge, but acted under the said statute.
The appellant, by his motor buses, maintains a regular passenger service over the routes above-mentioned, but, since August 1, 1949, he has continually embussed and debussed passengers within the Province of New Brunswick, and it is his intention to continue to do so unless and until it shall have been declared by some court of competent jurisdiction that such operations are prohibited by The Motor Carrier Act, 1937 and amendments, or by any other applicable statute or law.
The appellant further intends to carry passengers not only from points without the Province of New Brunswick but points within the said province, and vice versa, but also in connection with and incidental to his operations, to carry passengers from points within the said province unless and until it shall have been declared by some court of competent jurisdiction that such operations are prohibited by The Motor Carrier Act, 1937 and amendments thereto, or by any other applicable statute or law. The business and undertaking of the appellant consists of the operation of motor buses for the carriage of passengers and goods for hire or compensation between the City of Boston in the Commonwealth of Massachusetts and the Town of Glace Bay in the Province of Nova Scotia and between intermediate points.
Such business and undertaking is conducted by the appellant over that portion of its route which lies between the City of Boston and the Town of Calais, Maine, under a certificate granted by Interstate Commerce Commission (a Federal Commission of the United States of America having jurisdiction over inter-state transportation), permitting the appellant to carry passengers and their baggage, as a motor carrier, in seasonal operations from the 1st day of May to the 15th day of December, both inclusive, over a regular route between Boston, Mass., and a point on the United States- Canada boundary line north of Calais, Maine, and thence over the bridge to the United States-Canada boundary line and return over the same routes; service being authorized to and from all intermediate points.
Subsequently and in addition, Inter-state Commerce Commission has permitted the appellant to carry passengers and their baggage, as a motor carrier, and express, mail and newspapers in the same vehicle with passengers, in a seasonal operation extending from the 1st of May to the 15th of December, inclusive, of each year, over alternate regular routes for operating convenience only in connection with said carrier's presently authorized regular route operations.
The Motor Carrier Board of the Province of New Brunswick, on the 17th of June, 1949, on the application of the appellant, purported to licence the operation of the appellant in the Province of New Brunswick as follows: The Board of Commissioners of Public Utilities for the Province of Nova Scotia has purported to approve the appellant's operations in the Province of Nova Scotia over routes from the New Brunswick border to Glace Bay, via Route No. 4, Wentworth Valley and Truro; via Route No. 2, Parrsboro and Truro; via Route No. 6, Pugwash, Wallace, Pictou and New Glasgow; and also from Truro to Halifax (three miles of each route is within the corporate limits of the Town of Truro and City of Halifax); save that the certificate granted by that Board permitted to suspend operation from January 12, 1949, until May 1, 1949. The appellant, in fact, operates as a public motor carrier between the City of Boston and the Town of Glace Bay and intermediate points, in accordance with a published timetable, copy of which was filed in the record. Moreover, between December 15 and May 1 of each year, the appellant proposes to operate as a public motor carrier between the provinces of New Brunswick and Nova Scotia, connecting with New England Greyhound Lines, Inc., a company authorized by the Inter-State Commerce Commission to operate as a public motor carrier between Calais, Maine and Boston, Massachusetts.
Incidental to its operations as aforesaid, the appellant proposes to pick up within the Province of New Brunswick passengers and their baggage having a destination also within the Province of New Brunswick.
The respondent brought this action complaining that since August 1, 1949, the appellant has continually embused and debused passengers within the Province of New Brunswick, contrary to his licence, and he has declared his intention of so doing until stopped by legal process; and it was the assertion of the respondent that, unless the appellant was restrained from so doing, irreparable damage and harm would be done to the latter. Wherefore the respondent claimed an injunction against the appellant, his servants or agents, restraining him and them from embussing and debussing passengers within New Brunswick, in his public motor buses running between St. Stephen,
New Brunswick, and the Nova Scotia border, accompanied by a declaration that the appellant had no legal right to do so, and asking for an accounting of fares received for the carriage of passengers within the Province of New
Brunswick together with damages and costs.
By a Statement of Defence, the appellant stated that his operation of public motor buses was primarily international and interprovincial within the meaning of s. 92
(10) (a) of The British North America Act; and he asked for a declaration that his operations were not prohibited by or subject in any way to the provisions of The Motor
Carrier Act and amendments thereto, or by or to any other applicable statute or law; and the declaration that
13 Geo. VI, c. 47 (1949) is ultra vires of the Legislature of the Province of New Brunswick.
The case having come for hearing before Hughes, J., in the Chancery Division of the Supreme Court of New
Brunswick, the learned judge ordered that certain questions of law be raised for the opinion of the Supreme
Court of New Brunswick (Appellate Division) and that, in the meantime, all further proceedings in this action be stayed.
The questions for the opinion of the Appellate Division were as follows:
And it was further ordered that after the said questions had been answered, then, the matter should be referred back to the Supreme Court Chancery Division for further proceedings, subject to such rights of appeal as may be available to either of the parties, the whole without prejudice to the respondent's right to the relief claimed in its Statement of Claim.
Subsequently at the hearing before the Court of Appeal another question was added as No. 3:
Are the proposed operations prohibited or in any way affected by Regulation 13 of The Motor Vehicle Act, c. 20 of the Acts of 1934 and amendments, or under sections 6 or 53 or any other sections of The Motor Vehicle Act? The Attorney General of New Brunswick intervened in the action.
After hearing, the Appellate Division answered as follows to the several questions submitted: From that decision, the appellant now appeals to this Court.
Richards, C.J., stated that, in his opinion, the appellant did not come within the exceptions under s. 92 (10) (a) because he had no office or place of business, or organization, or situs, in the Province of New Brunswick; his office or place of business was at Lewiston, in the State of Maine, and it could not be said, therefore, that his undertaking extended beyond the limits of the province. He then proceeded to consider whether the legislation in question fell within s. 91, or s. 92, of The British North America Act, and, after having referred to a certain number of cases, he came to the conclusion that the legislation in question was entirely local in character, related to traffic within the province, only incidentally affected traffic passing through the province, and, in his view, the legislation was within the competence of the Legislature of New Brunswick. Harrison, J., took practically the same view and that, in his opinion, the defendant's undertaking did not come under s. 92 (10) (a). To his mind, the province had the right to regulate motor vehicle traffic within its own borders and that included the right to prohibit such traffic when deemed necessary or expedient.
However, he further added that, even if the Acts in question should be held ultra vires in respect of a Canadian national carrying on an undertaking locally in Canada for
. transporting passengers and goods between provinces, it did not follow that the appellant could raise the same defence.
The appellant, being a foreign national, was CJ. bound to comply with the laws regulating vehicular traffic within the provinces' boundaries, until they were superseded by Dominion legislation; and foreign nationals, insofar as they were concerned, had no status to ask that such laws be declared ultra vires.
Hughes, J., sitting as a member of the Appellate Division, concurred in the answers given by Richards, C.J.
It is to be noted that this is an ordinary case and not a
Questions of law were submitted to the Appellate
Division for the purpose of securing its opinion, after which, as stated in the Order of Hughes, J. itself, the matter was to be referred back to the Supreme Court Chancery
Division for further proceedings and with the object of enabling the trial judge to decide the case.
Under no interpretation of the procedure to be followed could the case be transformed into a reference, which, alone, the Legislature of New Brunswick had the power and the authority to submit to the Courts. The decision on the questions of law was useful only to the extent that it could be used for the purpose of deciding the case as, otherwise, the questions were quite unnecessary.
The conclusions of the plaintiff-respondent in its Statement of Claim were merely that an injunction should issue against the defendant-appellant, his servants or agents, restraining him and them from embussing and debussing passengers within the Province of New Brunswick in his public motor buses running between St. Stephen, New
Brunswick, and the Nova Scotia border, and a declaration that the defendant-appellant had no legal right to embus or debus passengers within the Province of New Brunswick, with a consequential demand for an accounting, and damages. That is all that the plaintiff-respondent asked for and all that he can get in the present case.
The basis of that claim is evidently the so-called licence issued to the appellant on the 17th of June, 1949, by The S..
Motor Carrier Board of the Province of New Brunswick, which has been already reproduced above.
One would look in vain to any of the provisions of The Motor Carrier Act, 1937, and its amendments, or to the Statute 13 Geo. VI, c. 47 (1949), of New Brunswick, or to Regulation 13 of The Motor Vehicle Act, c. 20, of the Acts of 1934 and amendments, or to sections 6 or 53, or any other sections of The Motor Vehicle Act, for any prohibition affecting the appellant, "restraining him from embussing and debussing passengers within the Province of New Brunswick in his public motor buses running between St. Stephen, New Brunswick, and the Nova Scotia border" (to use the very words of the conclusions of the respondent), or for anything affecting "his legal right to embus or debus passengers within the Province of New Brunswick" (also a conclusion of the respondent's Statement of Claim). When once it is granted that the appellant holds, as he does, a licence to operate his motor buses through the Province of New Brunswick, on Highways Nos. 1 and 2, to Halifax and Glace Bay, in the Province of Nova Scotia and return, nothing can be found in either The Motor Vehicle Act or The Motor Carrier Act, 1987, restraining him from embussing or debussing passengers in the province.
Indeed, what the plaintiff-respondent wishes the Courts to enjoin is based and can find any foundation only on the qualification inserted in the appellant's licence by The Motor Carrier Board.
If, therefore, such qualification is illegal and, in fact, ultra vires, because it is not authorized by the two Acts themselves, it follows that it must disappear from the licence and there is nothing left on which the action of the respondent can be maintained.
For the authority of The Motor Carrier Board to insert such a qualification in the licence of the appellant, one must look, of course, to An Act Respecting Motor Carriers (c. 43, Acts of Assembly, 1 Geo. VI (1937), passed April 2, 1937), whereby the Board was constituted.
By that Act, the Board is given the power to grant to any person, firm or company, a licence to operate or cause to be operated, within the province, public motor buses or public motor trucks over specified routes and between specified points.
Section 5(3) of the Act specifies that:
Rinfret C.J. In determining whether or not a licence shall be granted, the Board shall give consideration to the transportation service being furnished by any railroad, street railway, or licensed motor carrier, the likelihood of proposed service being permanent and continuous throughout the period of the year that the highways are open to travel and the effect that such proposed service may have upon other transportation services.
And section 5(4) adds:
If the Board finds from the evidence submitted that public convenience will be promoted by the establishment of the proposed service, or any part thereof, and is satisfied that the applicant will provide a proper service, an order may be made by the Board that a licence be granted to the applicant in accordance with its finding upon proper security being furnished.
Section 11 should also be referred to. It reads thus: Except as provided by this Act, no person, firm or company shall operate a public motor bus or public motor truck within the Province without holding a licence from the Board authorizing such operations and then only as specified in such licence and subject to this Act and its Regulations.
The three sections just quoted are the only ones to which the Court was referred as affording authority to The Motor Carrier Board to insert in the appellant's licence the restriction therein mentioned.
Moreover, s. 22 of An Act Respecting Motor Carriers states that "the provisions of this Act shall be deemed to be in addition to the provisions of The Motor Vehicle Act". By force of the regulations made under authority of The Motor Vehicle Act "no person operating a motor vehicle as a public carrier between fixed termini outside the Province shall operate such motor vehicle on the highways of the Province unless the operator is in possession of a permit issued by the Department setting forth the conditions under which such motor vehicle may operate and after payment of such fees as the Minister may determine fair and equitable" (Regulation No. 13). And that is the regulation specially mentioned in Question No. 3 submitted to the Appellate Division. It would seem, of course, that, if Regulation 13 governs the operations of the appellantand no reason was advanced why it should not-the permit which is to be issued to the appellant "setting forth the conditions under which such motor vehicle may operate" is the permit mentioned in that Regulation 13. If it were not so, one would speculate as to the reason for referring to that regulation in the questions submitted.
RinfretC.J.
It cannot be that, if the permit which the operator of a motor vehicle, as a public carrier, must secure in order to operate such a motor vehicle on the highways of the province, is to be issued by the Department and to set forth the conditions under which such motor vehicle may operate after payment of such fees as the Minister may determine fair and equitable, the intention of the Legislature would be that, by application of The Motor Carrier Act, the Board would have anything to do with that permit. The two Acts, as enacted in s. 22 of The Motor Carrier Act, must be interpreted together and it stands to reason that the Legislature cannot have had in view that the Board may set forth conditions which the Department has not decreed.
But, moreover, Regulation 13 of The Motor Vehicle Act comes under the title of "Non-Residents" and it specifically provides for a person operating a motor vehicle, as a public carrier, between fixed termini outside the province, who intends to operate such motor vehicles on the highways of the province. It says that, in such a case, the permit must be issued by the Department and that it is in that permit that the conditions under which such motor vehicle may operate are to be set forth. On the other hand, s. 4 of An Act Respecting Motor Carriers only deals with the power of the Board to grant to any person, firm or company, a licence to operate or cause to be operated within the province public motor buses or public motor trucks. Whichever way the two sections are contrasted, it does not leave any room for doubt that, in the case of a nonresident, Regulation No. 13 must prevail, as it is a special enactment referring, in terms, to non-residence, while the other s. 4 of The Motor Carrier Act is a general provision, in terms, dealing with persons, firms or companies operating only within the province.
On the record as it stands, it is to be assumed (as no reference whatever is made to it), that the appellant has complied with Regulation No. 13, or, at all events, it must be decided that, if the appellant needs a permit, it is to be issued to him under Regulation No. 13 of The Motor Vehicle Act and that he has nothing to do with the licence . provided for by s. 4 of The Motor Carrier Act. Indeed, it was not in any way within the competency of the Board to issue to him, a non-resident, a permit or licence under c. s. 4.
The consequence is that the licence upon which the plaintiff-respondent relied to ask the Court to issue an injunction against the appellant, restraining him from embussing and debussing passengers, was issued wholly without a shadow of authority.
But there is yet another objection to the validity of the licence issued to the appellant, and it is this: That the restriction inserted by the Board in the licence which it issued has nothing to do with highway legislation proper. It does not deal with schedules, or service, or rates, or fares, or charges, or forms, or fees, as provided for in's. 17(1) of The Motor Carrier Act; it does not deal in any way with highways in stipulating that the appellant will not be entitled to embus or debus his passengers within the territory of New Brunswick; it is nothing more than an attempt to regulate or control the business of the appellant. The object of such a restriction has not been explained, nor is it apparent. It was suggested by counsel for the respondent himself that it had in view the prevention of competition by the appellant against the respondent. If so, of course, it is not highway legislation but something which may come under the heading of "Commerce" (and, in the present case, of commerce by an international undertaking), but *it has surely nothing to do with traffic. As was suggested, if necessary, it would be quite possible for the appellant to own, along the lines of his motor buses, certain vacant property where his passengers could embus or debus. Yet, the restriction inserted in his licence would prohibit this.
It was argued that, if the Board really had competency to issue a licence to the appellant, notwithstanding the terms of Regulation 13 under The Motor Vehicle Act, it could find some authority for what it has done in somewhat general terms in s. 5(3) or 11 of The Motor Carrier Act; but that argument forgets altogether the rules of interprewxuNER tation of statutes-that words must be understood in V..
accord with the subject matter of the statute.
(EATE)
As put by Maxwell, on Interpretation of Statutes, 9th - Ed., by Sir Gilbert Jackson, at page 55, the words of a Rinfret CJ. statute are to be understood in the sense in which they harmonize with the subject of the enactment and the object which the legislature has in view:
Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained.
It is not because the words of a statute, or the words of any document, read in one sense will cover the case, that that is the right sense.
Grammatically, they may cover it; but, whenever a statute or document is to be construed, it must be construed not according to the mere ordinary general meaning of the words, but according to the ordinary meaning of the words as applied to the subject-matter with regard to which they are used, unless there is something which renders it necessary to read them in a sense which is not their ordinary sense in the English language as so applied (Brett M.R., Lion Insurance Co. v. Tucker (1883), 53 L.J.Q.B. 189.
And, at Page 63, the following occurs:
WORDS IN ACCORD WITH INTENTION
It is in the interpretation of general words and phrases that the principle of strictly adapting the meaning to the particular subject-matter with referencec to which the words are used finds its most frequent application. However wide in the abstract, they are more or less elastic, and admit of restriction or expansion to suit the subject-matter. While expressing truly enough all that the Legislature intended, they frequently express more, in their literal meaning and natural force; and it is necessary to give them the meaning which best suits the scope and object of the statute without extending to ground foreign to the intention. It is, therefore, a canon of interpretation that all words, if they be general and not express and precise, are to be restricted to the fitness of the matter. They are to be construed as particular if the intention be particular; that is, they must be understood as used with reference to the subject-matter in the mind of the Legislature, and limited to it. In the present case, however wide may be the general terms implied in s. 3(3), 5(4) or 11, they must be read as being restricted to the subject of highway circulation and cannot be extended to the subject of commercial competition or some other similar objects.
Under such a rule of interpretation, it is not possible to say that the restriction inserted by the Board, in the appellant's licence, was justified by the terms of The Motor Carrier Act and it must, therefore, be considered as ultra vires.
For those two reasons, both because the permit required by the appellant was within the jurisdiction of the Department and of the Minister and did not come under the competency of the Motor Carrier Board, and also because, even if it did, that Board exceeded its authority and dealt with a matter with which it was in no way concerned, we must come to the conclusion that the licence issued by the Board to the appellant is invalid.
That being so, it disposes of the plaintiff-respondent's action and claim and, with due respect, I find all the other questions irrelevant.
To the questions submitted by the learned trial judge, I would therefore answer:
As the only foundation for the plaintiff-respondent's action is this illegal restriction and, indeed, the complete lack of authority in the Motor Carrier Board to issue the licence at all is sufficient to decide the present case between the parties, it becomes immaterial to pass upon the validity of the two acts.of the Legislature of New Brunswick. As I said, the object of submitting these legal questions to the Appellate Division of the Supreme Court of New Brunswick being limited to the purpose of deciding the case, it is therefore sufficient for that purpose to come to the conclusion that the licence can in no way support the conclusions of the Statement of Claim and it is unnecessary to go further.
Consequently, I decline to answer the second and third questions. The Statute 13 Geo. VI, c. 47 (1949), referred to in Question No. 2 does appear to me to be intra vires, for I fail to see how the amendment to section 4 of the said chapter, as amended by c. 37 of 3 Geo. VI, (1939), introduced by 13 Geo. VI (1949), c. 47, can have any bearing on the case. The amendment in question consisted merely in striking out the word "and" in the fourth line thereof and substituting therefor the word "or", and in striking out the words "within the province", being the last three words of the said section.
The result of that amendment is, therefore, that s. 4 thereafter read:
As originally enacted by The Motor Carrier Act, 1937, s. 4 read (without repeating the whole of it):
By the amendment of c. 37, 3 Geo. VI, (1939), the words "within the Province" were struck out, where they originally stood, and were added at the end of the section, so that it afterwards read:
The effect of the amendment by c. 47 of 13 Geo. VI (1949), was that the words "within the Province", being the last three words of the said section, were struck out. I must confess that I do not see the difference, for, in my opinion, the section, as amended, has exactly the same effect as it had before. Notwithstanding the deletion of the words "within the Province", at the end of the section, the latter continues to be susceptible of meaning and application only to the operations within the province, and the Courts would be extremely loath to give it any other meaning, for the legislation adopted by the Legislature of New Brunswick must necessarily be understood to be limited to the territory of New Brunswick, as that Legislature could not possibly be considered as having attempted to legislate upon operations outside the province. As for Question No. 3:
I have already expressed my opinion that none of these sections prohibits the appellant's operation in New Brunswick. On the contrary, they provide for the manner in which these operations may be carried out in that province. Indeed, s. 7(2) specifies that a foreign vehicle which has been registered theretofore outside of the province need . only "exhibit to the Department the Certificate of Title or Registration, or other evidence of such former registration as may be in the applicant's possession or control or such other evidence as will satisfy the Department that the applicant is the lawful owner of the vehicle". It follows, by necessary implication, that this requirement will be held sufficient and that the foreign motor vehicle will then obtain the necessary registration to operate upon any highway in New Brunswick, as provided for by s. 6 (1). Section 53 goes no further than to say that "no motor vehicle shall be used or operated upon a highway unless the owner shall have complied in all respects with the requirements of this Act". Of course, it adds that no operation can be carried on "where such highway has been closed to motor traffic under the provisions of the Highway Act", which is not only proper but natural.
Then, Regulation 13, as we have seen, specifies that "No person operating a motor vehicle, as a public carrier, between fixed termini outside the Province shall operate such motor vehicle on the highways of the Province unless the operator is in possession of a permit issued by the Department setting forth the conditions under which such motor vehicle may operate and after payment of such fees as the Minister may determine fair and equitable". This, of course, is not .prohibition. It is only regulation which assumes that, provided the conditions set forth in Regulation 13 are complied 'with by the appellant, he will receive the permit to operate on the highways of New Brunswick. To that extent, of course, the proposed operations of the appellant are affected; and that is, in fact, the effect of the answer given by the Appellate Division of the Supreme Court of New Brunswick that all that the appellant has to do is to comply with the provisions of The Motor Vehicle Act and the Regulations made thereunder, and, after he has done so, he may operate on the highways of New All that the appellant had to do, if he has not done so already (and it was assumed at Bar that he had complied with it), is to apply to the Department for a permit which will set forth the conditions under which his motor vehicles may operate and pay such fees as the Minister may determine fair and equitable. But, as I have mentioned before, when once he has that permit, or if he has it already, such permits issued by the Department with the approval of the Minister does away entirely with the obligation of getting a licence from the Motor Carrier Board under s. 4 of The Motor Carrier Act, 1937. Regulation 13 under The Motor Vehicle Act applies specifically to foreign owners who are already registered in their own province or country, while s. 4 of The Motor Carrier Act is a general enactment which does not concern the foreign owners. It is quite clear that a vehicle owned by a non-resident, so far as the obligation to obtain a licence is concerned, is particularly dealt with in The Motor Vehicle Act, more especially Regulations 8, 9 and 13 under that Act, and not by The Motor Carrier Act.
All that we have to do on the present appeal is to give our answers to the questions submitted by the trial judge to the Appellate Division of the Supreme Court of New Brunswick and then, after the questions have been answered, to refer the matter back to the Supreme Court Chancery Division for further proceedings, presumably so that the trial judge shall deal with the case in accordance with those answers.
In the Appellate Division the Court ordered that the plaintiff-respondent should have the costs of its application. As the present answers are contrary to those that were given in the Appellate Division and as they are in favour of the defendant-appellant, I presume that, on the present appeal, it should be said that the appellant shall have his costs both in this Court and in the Appellate Division. The result of my judgment is that it is unnecessary to pass upon the interventions of the Attorney General of Canada, of the Attorneys General of New Brunswick, Nova Scotia, Ontario, Quebec, Alberta, Prince Edward Island and British Columbia, as well as those of the Canadian National Railway Company, the Canadian Pacific Railway Company, the Maccam Transport Limited and the Carwill Transport Limited. They were interested only in the question of the constitutionality of the New Brunswick Acts. As it happens, in my respectful view, the Court is not called upon to decide that question, in order to dispose of the present litigation; and it is well within the usual practice of the Judicial Committee of the Privy Council to avoid deciding any other question than that which is necessary to settle the difficulty between the parties. (To CJ. support that practice, it is sufficient to refer to the judgment of the Judicial Committee in Regent Taxi and Transport Co. v. La Congr6gation des Petits Frbres de Marie The result would show that, unfortunately, all these intervenants were mobilized to no purpose, except perhaps that this Court has been privileged in listening to very interesting arguments on the question of the constitutionality of a province adopting legislation such as is contained in The Motor Vehicle Act and The Motor Carrier Act of New Brunswick. It is, of course, a satisfaction that this Court should be relieved of the obligation to decide such a moot question. We should not suppose that the intervenants expected to be granted costs in this matter.
They were appearing merely to defend their respective constitutional rights and in those cases it is usual not to grant costs to the intervenants.
Of course, in view of the result, neither the appellant nor the respondent could legitimately obtain an order for costs against either of the intervenants. That also disposes of the motion of the respondent praying that this Court should review its former decision that there should be no costs either for or against the railway companies of their intervention. The motion will, therefore, stand dismissed without costs.
KERWIN J.:-This is an appeal by Israel Winner, doing business under the name and style of MacKenzie Coach
Lines, against a decision of the Appellate Division of the
Supreme Court of New Brunswick in respect of certain questions of law propounded for its opinion before trial by an order of Hughes J. The action was brought by
S.M.T. (Eastern) Limited for an injunction restraining
Winner from picking up and letting down passengers within New Brunswick in his motor buses running between points in the United States and the Province of Nova Scotia over routes in New Brunswick between St. Stephen and the Nova Scotia border, and also for other relief. teodro h
Subsequent to the order of Hughes J., the Attorney -- ~General of New Brunswick intervened.
The Appellate Division answered the questions in favour of the plaintiff respondent but granted leave to the defendant to appeal to this Court. Pursuant to orders made by this Court or a judge thereof, the Attorney General of Canada, the Attorneys General of several of the provinces, Canadian National Railway Company and Canadian Pacific Railway Company, and two transport companies, intervened and were represented on the argument. On the opening thereof, in order to obviate certain difficulties that might otherwise arise, it was arranged that, with the consent of the Attorney General of New Brunswick, he ex rel the plaintiff company, should be added as a party plaintiff nunc pro tunc by order of the Supreme Court of New Brunswick, and that has been done.
By agreement of counsel made prior to the hearing before the Appellate Division, the questions for consideration were enlarged. No evidence was given but the matter has been argued on an agreed statement of facts contained in the brder of Hughes J. and from this statement the circumstances giving rise to the questions may be summarized as follows.
The appellant, Winner, resides in the State of Maine in the United States of America and operates his coach lines for the carriage of passengers and goods for hire or compensation between Boston, Massachusetts, and Glace Bay, Nova Scotia, and intermediate points. So far as his business and undertaking in the United States are concerned, he operates under certificates granted by the Interstate Commerce Commission (a federal commission of the United States).
So far as the Province of New Brunswick is concerned, he holds himself out as a carrier of passengers and goods (a) from outside the province to points along his route in the province; (b) from points within the province to points outside the province; and (c) between points in the province when such carriage is incidental to his international or interprovincial operations. In view of the argument before us, I take (c) to mean not only that he will carry passengers and goods between points in the province as an incident to stop-over privileges in
S. connection with the through passage from points outside to those within the province and from points inside to those outside the province, but also that he will carry all passengers and goods between those points. He applied to the Motor Carrier Board of New Brunswick for a licence to operate public motor buses from St. Stephen, New
Brunswick, through New Brunswick to the Nova Scotia border, which licence was granted but on a condition the validity of which he challenges, viz., that he was not to embus or debus passengers in New Brunswick. In fact he operates his bus line so as to attract and carry out the carriage of passengers described in (a), (b) and (c) and proposes to continue doing so unless halted by judicial process.
The plaintiff company is incorporated under and by virtue of the New Brunswick Companies' Act and is in the business (inter alia) of operating motor buses for the carriage of passengers and goods for hire or compensation over the highways of the Province of New Brunswick. It holds licences granted by the Motor Carrier Board to operate public motor buses between St. Stephen and
Saint John, New Brunswick, over highway route No. 1 and between Saint John and the Nova Scotia border over highway route No. 2 for the purposes of carrying passengers and goods for hire or compensation.
Routes 1 and 2 are the ones used by Winner.
As amended, the questions submitted for the opinion of the Appellate Division are as follows:- In my view it is unnecessary to detail the provisions of The Motor Carrier Act or The Motor Vehicle Act since, if the relevant provisions of these Acts are validly enacted and are applicable to Winner, they authorize what has been done by the Board in affixing the condition to the licence granted him. The important matter is whether the Legislature of New Brunswick is competent so to authorize the Board so far as Winner is concerned.
Prior to 1904, the title to the soil and freehold of highways in New Brunswick was vested in the owners of lands abutting.on the highways. That year, by 4 Ed. VII, c. 6, s. 4, the soil and freehold were vested in His Majesty. This enactment was repealed in 1908 and, by R.S.N.B. 1927, c. 25, s. 29, His Majesty released any right he might have under the 1904 Act, and the title to the soil and freehold was re-vested in the abutting owners. In my opinion the same ultimate result would follow in provinces where the title is in the Crown. In either case, I take it to be indisputable that highways, generally speaking, fall within "Property and Civil Rights in the Province" under s. 92 head 13 of the British North America Act. The public right of passage over highways is in all the members of the public, whether residents of the particular province or any other, or of a foreign country, and subsists whether the fee is in the Crown or abutting owners. That right may be interfered with in some respects by provincical legislatures and no question is raised as to its power to require every public motor carrier to register provincially and carry provincial licence plates. No claim is made to differentiate between residents of New Brunswick on the one hand and, on the other, residents of other provinces, or aliens. So far as residents of the Dominion outside New Brunswick are concerned, it appears inadvisable to pass any comment on the opinion expressed by two members of this Court in Accurate News and Information Act Reference (1). Now, as then, I find it unnecessary to deal with the matter. It is also unnecessary to express any view as to aliens but, when that time does arrive, the decisions of the Judicial Committee in Cunningham v. Tomey Homma (2) and Brooks-Bidlake and Whitall Ltd. v. A.G. for B.C. (3), will require consideration.
The claim of the appellant, the Attorney General of
Canada, and the Railways, is founded upon the exclusive power of Parliament to legislate in relation to "Works and sk.M Undertakings connecting the Province with any other or others of the provinces, or extending beyond the limits of the province."
It is, of course, settled that the effect of this and other exceptions in head 10 of section 92 of the
British North America Act is to transfer the excepted works and undertakings to section 91 and thus to place them under the exclusive jurisdiction and control of Parliament in accordance with the final clause of section 91:- Montreal v. Montreal Street Railway (1).
Contrary to what had been alleged to be the effect of this decision, it was held by the Judicial Committee in Re Regulation and
Control of Radio Communication in Canada (2) that
"'Undertaking' is not a physical thing but is an arrangement under which, of course, physical things are used."
For the respondent and those supporting it, it was argued that if it cannot be said Winner had a work and undertaking connecting the province with any other or others of the provinces or extending beyond the limits of the province, he could not possibly come within the exception.
This contention in my opinion is not sound and, where necessary,
"and" must be read "or". That, I think, follows from the decision in the Radio case but, if not, it should now be so declared. Another argument, which was given effect to in the Appellate Division, was that since Winner is a resident of the United States of America he could have no local work or undertaking in New Brunswick and that, therefore, his organization could not be a work or undertaking connecting the province with any other or others of the provinces or extending beyond the limits of the province within 92(10) (a). Emphasis is placed upon "Local" and
"such" in the opening words of head 10, "Local Works and Undertakings other than such as are of the following classes", and it is said that the connecting or extending works or undertakings later mentioned in (a) must be such as have their genesis in the province. In my opinion there is nothing to indicate that the primary location must be situate.
The latest expression of opinion upon head 10 of section K
92 appears in the decision of the Judicial Committee in the Empress Hotel case, C.P.R. v. A.G. for B.C. (1), where it is stated at 142:-"The latter part of the paragraph (10(a)) makes it clear that the object of the paragraph is to deal with means of interprovincial communication. Such communication can be provided by organizations or undertakings, but not by inanimate things alone." Whether at some time in the future, under circumstances not now envisaged, "undertaking" will be restricted to means of communication need not concern us at present since it is patent that the term includes the business or organization of the appellant.
The appellant holds himself out as well in New Brunswick as in Nova Scotia and the United States as a carrier of passengers and goods interprovincially, internationally, and intraprovincially. Arguments of convenience and expediency may be advanced to indicate either that regulation by a province of such things as rates and stopping places for people desiring to travel from one point in New Brunswick to another on through buses would not interfere with the regulation by the Dominion of rates and stopping places for through traffic; or, on the other hand, that it would be inconvenient, for instance, for a through bus to stop for a passenger and the driver to find after proceeding some distance that the passenger desired merely to go to another point in New Brunswick.
However, it is sufficient to state that in my opinion the interprovincial and international undertaking of the appellant falls clearly within section 92(10) (a) of the British North America Act but that the carriage of passengers or goods between points (a) and (b) in New Brunswick is not necessarily incidental to the appellant's undertaking connecting New Brunswick with any other, or others, of the provinces or extending beyond the limits of the province, except as to such carriage in connection with stop-over privileges extended as an incident of the contract of wazn through carriage.
The questions put are very broad as they refer; to the (ES ) provisions of The Motor Carrier Act, 1987 and amendments K J. thereto; to orders made by the Motor Carrier Board; to "sections 6 or 53 or any other sections of The Motor Vehicle Act", c. 20 of the statutes of 1934 and amendments; and to Regulation 13 issued under the latter Act. Furthermore, the questions as settled by Hughes J. were added to merely on the consent of counsel.
That is really attempting to do what only the Governor General in Council or Lieutenant Governor in Council are authorized to do. It is inadvisable in such a proceeding as this to attempt to deal with all the provisions of either Act or orders or regulations made thereunder, and in fact many of them were not even referred to in argument.
The questions should be answered by stating that the New Brunswick Statutes and Regulations in question and the licence issued by the Motor Carrier Board to the appellant are legally ineffective to prohibit the appellant by his undertaking from bringing passengers into the province from outside the province and landing such passengers in the province, or from carrying passengers from any point in the province to a point outside the limits thereof. They are also ineffective to prohibit the transportation of passengers between points in the province, to which passengers stop-over privileges have been extended as an incident of a contract of carriage.
The appeal should be allowed, the order of the Appeal Division set aside, and the questions answered as above. The appellant is entitled as against the respondent, S.M.T. (Eastern) Limited, to his costs of the hearing before the Appeal Division and to two-thirds of his costs of the appeal to this Court. The motion by the appellant to vary the terms of the order of this Court granting leave to Canadian National Railway Company and Canadian Pacific Railway Company to intervene was abandoned and it will, therefore, stand dismissed without costs. There will be no costs of other motions to add any intervenant. There will be no costs for or against the Attorney-General of New Brunswick or any intervenant.
J.:-In his action the plaintiff-respondent claims that the defendant has no legal right to embus or ., debus passengers within the Province of New Brunswick, and prays for an injunction to restrain him from doing so. The defendant, who resides at Lewiston, Maine, is in the business of operating motor buses for the carriage of passengers and goods.
On the 17th of June, 1949, The Motor Carrier Board granted him a licence permitting him to operate public motor buses from Boston, Mass. through the Province of New Brunswick, on highways Nos. 1 and 2 to Halifax and Glace Bay, in the Province of Nova Scotia, and return, but not to embus or debus passengers in the said Province of New Brunswick after August 1, 1949. It is his contention in his statement of defence and counterclaim, that his operation of buses is primarily international and interprovincial, and that incidentally he may therefore embus and debus passengers within the Province of New Brunswick, and also carry passengers from points within the Province to destinations also within the province. He claims that his operations constitute an "undertaking" connecting the Province of New Brunswick with another Province of Canada, and extending into the United States of America, within the meaning of s. 92(10) (a) of the British North America Act. He asks for a declaration that his operations are not prohibited by or subject in any way to the provisions of The Motor Carrier Act, and that 13 Geo. VI, c. 47 (1949) under which the definitions of "public motor bus" and "public motor truck" were altered to include interprovincial and international motor carriage, be declared ultra vires of the Legislature of the Province of New Brunswick.
Pursuant to the Rules of the Supreme Court of New Brunswick, Mr. Justice Hughes of the Supreme Court of New Brunswick before whom the matter came, ordered, on the 17th of January, 1950, that certain questions of law should be referred to the Supreme Court of New Brunswick, Appellate Division, prior to the trial of the action. The questions submitted for the opinion of the Court of Appeal were the following:
2. Is 13 Geo. VI c. 47 (1949) intra vires of the legislature of the Province of New Brunswick?
And on the 21st day of March, 1950, the submission to the Appellate Division was enlarged, and the following (E question was added:
Th . Taschereau J. Are the proposed operations prohibited or in any way affected by Regulation 13 of The Motor Vehicle Act, c. 20 of the Acts of 1934 and amendments, or under sections 6 or 53 or any other sections of The Motor Vehicle Act?
The Court of Appeal, on the 1st of May, 1950, gave the following answers:
1. "Yes, prohibited, until the defendant complies with the provisions of the Act."
2. "Yes, in respect of this defendant." (Messrs. Richards, CJ. and Hughes, J. answering simply "Yes".)
3. "Yes, until the defendant complies with the provisions of the Act and the regulations made thereunder."
The main question to be decided is the interpretation of subsection 10 of section 92 of the B.N.A. Act, which reads as follows:
92. In each Province the Legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated; that is to say,-
10. Local Works and Undertakings other than such as are of the following classes:-
(a) Lines of steam or other ships, railways, canals, telegraphs, and other works and undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the province:
(b) Lines of steam ships between the province and any British or foreign country:
(c) Such works as, although wholly situate within the province, are before or after their execution declared by the parliament of Canada to be for the general advantage of Canada or for the advantage of two or more of the provinces.
It is beyond dispute, that the operations of the appellant are an "undertaking" within the meaning of the section. As Lord Dunedin expressed it in the Radio Reference (1), they constituted "an arrangement, under which physical things were used".
I cannot agree with the proposition that the appellant's "undertaking" does not come within subsection (10) of section 92. It is argued that the "works (1) [19321 A.C. 304 at 315.
and undertakings" excluded from the provincial jurisdiction, are those which connect the province with any other, or extend beyond the limits of the province, and are "local" which means within the Province of New Brunswick. As the appellant has no office or location of any kind in New J Brunswick, it would follow that it is not "local". It is my .opinion that it is not necessary, in order to fall within the scope of the section, that the "undertaking" have its "origin and situs within the province", and that the appellant should have an office or place of business therein. It is I think sufficient to bring the matter within federal jurisdiction, that the bus line operates as it does in the present case, from the United States, through New Brunswick and Nova Scotia, whether the origin of the "undertaking" be in New Brunswick or not. As long as such "undertaking" connects the Province of New Brunswick with any other province, or extends beyond the limits of the province, 92 (10) (a) applies. As it has been said by Lord Reid in the Empress Hotel case (1), the purpose of the section,
As to the submissions of the respondent concerning the ownership of the highways and the status of the appellant who is a "foreign national", I agree with what has been said by my brother Rand.
There remains a further question to be determined. If, as I think, the operations of the appellant are an "undertaking" which as such fall under federal control, it does not follow that the provinces may not enact legislation relating to all that is not interprovincial traffic, or "incidental" thereto. Interprovincial communications are not of provincial concern, and therefore the appellant may without the authorization of the Province of New Brunswick, debus a passenger coming from the United States, in the limits of the province, and embus a passenger in New Brunswick whose destination is outside the province and vice versa, and also extend stop-over privileges as an incident of the operations. But the embussing of passengers at a point within the province to another point also within the province, presents an entirely different situation. This is not "interprovincial communication", and I cannot see how it can be said that it is "incidental" to the undertaking s. from which it is severable. It is traffic of a local nature, which falls under provincial jurisdiction.
It is probable, that conflicts will arise between both, federal and provincial jurisdictions, but the courts are not legislative bodies. Their duty is to apply the law as they believe it has been enacted.
The co-operation of the Central Government and the provinces, is therefore essential, in order to arrive at a satisfactory result. As it has been said by Lord Atkin, in A.G. for British Columbia v. A.G. for Canada (1),
This conclusion which I have reached does not mean, that even if federal control may be exercised over interprovincial operations as indicated, the control of the roads and highways and the regulation of traffic, does not remain within the jurisdiction of the provinces. Provincial Secretary P.E.I. v. Egan (2).
As the present appeal is not a reference, this Court should not, I think, be called upon to answer questions which are not essential for the determination of the case. I therefore agree with my brother Locke as to the answer that should be given.
I would therefore allow the appeal and direct the judgment of the Appeal Division to be modified accordingly. The order as to costs should be as proposed by my brother RAND J.:-This appeal raises the question of the extent and nature of the provincial jurisdiction over highways of New Brunswick. As now constituted, the action is brought by S.M.T. Company Limited as relator on behalf of the Attorney General. That company is a carrier of passengers by bus under a licence to operate on named highways which include one running from St. Stephen near the international boundary bordering the state of Maine, through the cities of Saint John and Moncton and on to the boundary with Nova Scotia. The appellant, Winner, is an American citizen of Maine, who conducts a bus line which for some time prior to 1949 had been operating between Boston and Halifax over the highway mentioned. In June, 1949, he was granted a licence under The Motor Carrier Act for the operation of his buses, subject to the restriction that no passengers could be set off or taken on in the province.
The result was that only an operation across the province was authorized. In disregard of that limitation, he is taking up and setting down passengers without reference to originating point or destination.
The statutory provisions applicable to highway and bus operations in New Brunswick are contained in two statutes, The Motor Vehicle Act and The Motor Carrier Act. The former provides generally for the registration of every motor vehicle using the highways and, by s. 58, for the making of regulations dealing, among other things, with fixing fees, classifying vehicles, regulating the size, weight, equipment or loads to be permitted, the speed and handling of traffic, and the operation of vehicles of other provinces or of foreign countries. Among the regulations made are: The Motor Carrier Act, as its name implies, deals with the business of public carriage on the highways. s. 2(1) (f) as amended, a public motor bus is defined to mean:
As enacted in 1937, the clause read:
This was amended in 1939 by striking out the words "to, from or in any part of the province", and substituting therefor: "from any point within the province to a destination also within the province": in 1949 this last clause was struck out. By s. 3, the members of the Board of Commissioners of Public Utilities are constituted a board for the purposes of the Act; sub-s. (3) endows the Board in relation to motor carriers with all the jurisdiction vested in it in respect of common carriers; sub-s. (4) provides: Subsections (3) and (4) of section 5 provide that in determining whether a licence shall be granted, the Board shall give consideration to services furnished by railroads, street railways, or motor carriers, the likelihood of the proposed service being permanent and continuous, and its effect on other services. If found to be in the public interest, the service may be licenced on security being furnished.
Section 8 regulates the abandonment or discontinuance of any service authorized; s. limits public bus or truck operation to that specified in the licence; 17(1) empowers the Board to fix schedules, rates, fares and charges, to fix fees payable to the province, to prescribe forms, to require the filing of returns, and generally to do what is considered necessary or expedient for the safety and convenience of the public; and by s. 21, every licenced carrier is to be deemed a public utility.
These provisions appear to me to be broad enough to empower the Board to restrict the licence as it did. The two statutes exhibit clearly two different matters of regulation, that is, of highways as such and of services carried on by means of vehicles using them. The primary jurisdiction of the province in the field of the former is unchallenged; equally so is that over uncomplicated J. local services.
The substantial contention is that under section 92, head 10(a) of the British North America Act, there is here an undertaking, including all four classes of services, that is, traffic between points in the United States and points in New Brunswick, between United States points and Canadian points involving trans-provincial services through New Brunswick, between points in New Brunswick and points in other provinces, and finally between points in New Brunswick alone, which in its entirety is beyond provincial control.
Mr. Inches, for the relator, and Mr. Carter, for the Attorney General of New Brunswick, supported by the Attorneys General of all of the provinces represented except, in certain respects, the Attorney General of Nova Scotia, assert the right of the province to regulate and control without restriction all traffic of this nature on the highways, regardless of origin or destination. That authority is based primarily on what is said to be the ownership of the highways, which, as claimed, is as extensive in its legislative consequences as that of other public property of the province, to which it is assimilated. The Attorney General for Nova Scotia, on the other hand, represented by Mr. MacDonald, distinguishes between local and other carriage. Agreeing that the undertaking of Winner is not within head 10(a), he concedes that international, interprovincial and transprovincial movements fall severally within the residual powers of section 91. The claim made for provincial control is, in my opinion, excessive. The first and fundamental accomplishment of the constitutional Act was the creation of a single political organization of subjects of His Majesty within the geographical area of the Dominion, the basic postulate of which was the institution of a Canadian citizenship. Citizenship is membership in a state; and in the citizen inhere those rights and duties, the correlatives of allegiance and protection, which are basic to that status.
The Act makes no express allocation of citizenship as the subject-matter of legislation to either the Dominion or the provinces; but as it lies at the foundation of the . political organization, as its character is national, and by the implication of head 25, section 91, "Naturalization and Aliens", it is to be found within the residual powers of the Dominion: Canada Temperance case (1), at p. 205. Whatever else might have been said prior to 1931, the Statute of Westminster, coupled with the declarations of constitutional relations of 1926 out of which it issued, creating, in substance, a sovereignty, concludes the question. But incidents of status must be distinguished from elements or attributes necessarily involved in status itself. British subjects have never enjoyed an equality in all civil or political privileges or immunities as is illustrated in Cunningham v. Tomay Homma (2), in which the Judicial Committee maintained the right of British Columbia to exclude a naturalized person from the electoral franchise. On the other hand, in Bryden's case (3), a statute of the same province that forbade the employment of Chinamen, aliens or naturalized, in underground mining operations, was found to be incompetent. As explained in Homma's case, that decision is to be taken as determining,
What this implies is that a province cannot, by depriving a Canadian of the means of working, force him to leave it: it cannot divest him of his right or capacity to remain and to engage in work there: that capacity inhering as a constituent element of his citizenship status is beyond nullification by provincial action.
The contrary view would involve the anomaly that although British Columbia could not by mere prohibition deprive a naturalized foreigner of his means of livelihood, it could do so to a native-born Canadian. He may, of course, disable himself from exercising his capacity or he may be regulated in it by valid provincial law in other aspects.
But that attribute of citizenship lies outside of those civil rights committed to the province, and is analogous to the capacity of a Dominion corporation which the province cannot sterilize. follows, a fortiori, that a province cannot prevent a -- Canadian from entering it except, conceivably, in temporary circumstances, for some local reason as, for example, health. With such a prohibitory power, the country could be converted into a number of enclaves and the "union" which the original provinces sought and obtained disrupted. In a like position is a subject of a friendly foreign country; for practical purposes he enjoys all the rights of the citizen. Such, then, is the national status embodying certain inherent or constitutive characteristics, of members of the Canadian public, and it can be modified, defeated or destroyed, as for instance by outlawry, only by Parliament. Highways are a condition of the existence of an organized state: without them its life could not be carried on. To deny their use is to destroy the fundamental liberty of action of the individual, to proscribe his participation in that life: under, such a ban, the exercise of citizenship would be at an end. A narrower constitutional consideration arises. Civil life in this country consists of inextricably intermingled activities and relations within the legislative jurisdiction of both Parliament and Legislature; and deprivation of the use of highways would confound matters appertaining to both. To prevent a person from engaging in business at a post office or a customs house or a bank by forbidding him the use of highways is, so far, to frustrate a privilege imbedded in Dominion law. These considerations are, I think, sufficient to demonstrate that the privilege of using highways is likewise an essential attribute of Canadian citizenship status.
The province is thus seen to be the quasi-trustee of its highways to enable the life of the country as a whole to be carried on; they are furnished for the Canadian public and not only or primarily that of New Brunswick. Upon the province is cast the duty of providing and administering them, for which ample powers are granted; and the privilege of user can be curtailed directly by the province only within the legislative and administrative field of highways as such or in relation to other subject-matter within its exclusive field.
The privilege of operating on the highway now enjoyed by Winner so far constitutes therefore the equivalent of a right-of-way.
With these considerations in mind, the approach to the (ELN) controversy before the Court becomes clearer. Head 10 Rand J. of section 92 reads:
What is an "undertaking"? The early use of the word was in relation to services of various kinds of which that of the carrier was prominent.
He would take into his custody or under his care either goods or persons, and he was said then to have "assumed" or "undertaken", on terms, their carriage from one place to another; to that might be added the obligation to accept and carry, drawn on himself by a public profession: and the service, together with the means and organization, constituted the undertaking. This is generalized for the purposes of head 10 by Lord Dunedin in the Radio case: "'Undertaking' is not a physical thing but is an arrangement under which of course physical things are used", language used by way of contrasting "works" with "undertakings".
But it is or can be of an elastic nature and the essential consideration in any case is its proper scope and dimensions.
One characteristic of carriage is the entirety of the individual service, that is to say, from point A to point B: to be broken down at provincial boundary lines destroys it and creates something quite different: even a transprovincial movement is an inseverable part of a larger entity. Under the ban imposed here, interprovincial and international trade on highways would be seriously interfered with if not in large measure destroyed.
was argued that the expression "works and undertakings" should be read conjunctively, and that whatever else might be said of an organized bus service, it could not be called a "work". But in the interpretative attitude of the Judicial Committee as expressed in Edwards v. Attorney General of Canada (1), and as exemplified in the Radio case (2), the modes of works and undertakings within head 10(a) await the developments of the years; and the specific enumerations, buttressed by the general considerations of provincial and dominion scope, are sufficient to warrant a disjunctive construction, although obviously in some cases both may be satisfied. Indeed the question would seem to be concluded by the language of Lord Dunedin in the Radio decision at p. 315.
Carriage by motor vehicle ranges from an individual passenger or a carton of goods carried for reward in a private automobile to a highly organized fleet of buses or trucks covering the country from East to West. Within this expanse all degrees of service might be provided; and we can visualize interprovincial carrier units and local units brought under one ownership and direction with the total operations integrated into a system, the initial form of which might have been either. Even though local services should be limited to those incidental to the others, the multiplication of units, say, over different interprovincial routes could cover a great part of a province, and the incidental be converted into the principal. Local transport has come to furnish a multiplicity of short range accommodations to the immediate necessities of modern life, especially in the larger centres of population: it has in fact become more or less incidental to employment and to community life generally. Its services have thus taken on characteristics distinguishing them from long distance carriage of any form.
What is denoted by the words of 10(a) is, ex facie, an interprovincial or an international function; no attempt has been made to show any necessary bond in fact or in legislative administration between either of them and the local feature here; and in determining in any case what can properly be taken to be embraced within an undertaking, created as Winner's has been, the interwoven character of legislative distribution under sections 91 and 92 of the Act of 1867 becomes significant.
The analogy of railways and telegraphs was pressed upon us. These works are specifically named, and it is the clear implication that their total functioning was to be under a single legislature. But even they are limited to essential objects: Attorney General for British Columbia v. C.P.R. (1), in which a hotel operated by the company was held not to be part of the railway. There is toward them also a notion of fixity and determinateness that, although somewhat elusive, underlies the restriction of a declaration of dominion advantage under paragraph 10(c) to a "work".
But the building-up of an aggregate of services into a unity of operation introduces considerations of a different nature.
The judgment of this Court in Quebec Railway v. Beauport (2), is not in pari materia. There an original railway work declared to be for the general advantage of Canada was subsequently authorized to carry on bus services; those with which the proceedings were concerned had been integrated with the railway and tramway services; and the identity of the original work and undertaking had been maintained.
Whatever may be said of the physical instruments of transportation per se, the function of carriage is an essential element of trade and commerce; it has no other raison d'8tre. As an arterial system, from its trunk lines to the minutest ramifications, in the circulation of persons and goods, it furnishes the moving life of trade and commerce. The question before us, then, is analogous to that presented in Lawson v. Committee (3), in which Duff J. (later C.J.) at p. 366, said:
That necessity exists in the automotive field of carriage, and the lines of limitation are indicated by those laid down for trade and commerce.
Assuming then that the international and interprovincial components of Winner's service are such an undertaking as head 10 envisages, the question is whether, by his own act, for the purposes of the statute, he can annex to it the ' local services. Under the theory advanced by Mr. Tennant, J. given an automobile, an individual can, by piecemeal accumulation, bring within paragraph 10(a) a day-to-day fluctuating totality of operations of the class of those here in question. The result of being able to do so could undoubtedly introduce a destructive interference with the balanced and co-ordinated administration by the province of what is primarily a local matter; and the public interest would suffer accordingly. There is no necessary entirety to such an aggregate and I cannot think it a sound construction of the section to permit the attraction, by such mode, to dominion jurisdiction of severable matter that otherwise would belong to the province.
But if, in relation to those primary components, the service is not such an undertaking, then, for the reasons given, it comes under the Dominion regulation of Trade and Commerce.
In any case it would fall within the residual powers.
It follows that the province, in the absence of any justifying consideration relating to highway administration or other sufficient exclusive provincial matter, was without power, having admitted these buses to the highways, to prevent them from setting down or taking up either international or interprovincial traffic.
On the other hand, it could forbid the taking up or setting down of passengers travelling solely between points in the province.
The judgment of the Appeal Division, holding against Winner on all points, was in the form of giving answers to questions referred to it by the trial judge as follows: As can be seen, they distribute both statutes, and in doing so, they go beyond the actual issues raised by the w pleadings. It would be virtually impossible either to anticipate all conceivable points of impact of the statutes directly or indirectly on Winner's operations or to deal with them by any other than general answers. The real J. issue is whether he can be restrained from taking up and setting down passengers in New Brunswick:
the answer to that is: only when it is done in the course of carriages which in their entirety begin and end at points in New I would allow the appeal and direct the judgment of the Appeal Division to be modified accordingly. The appellant, Winner, is entitled to two-thirds of his costs in this Court and all of his costs in the Appeal Division. The motion of the respondent to review the order that there be no costs either for or against the intervenant railways is dismissed without costs. No other costs are allowed.
J.:-When the appeal was opened, the court raised the question as to the right of the respondent company to sue. In answer, reference was made to the decision of the Appeal Division of New Brunswick in New Brunswick Power Co. v. Maritime Transit
It would appear that that decision proceeded on the view that the holder of a licence under The Motor Carrier Act was in a position analogous to the holder of a franchise of market or ferry, and that the court in deciding that case had not had its attention called to the decision of the House of Lords in Institute of Patent Agents v. Lockwood (2), and to the view expressed by Eve J. in Attorney General v. Premier Line (3).
Without deciding the question thus raised, it was arranged that an application would be made to the court of New Brunswick to add the Attorney General ex rel the company respondent as plaintiff in the action. That has now been done, and the proceedings amended accordingly.
The appeal comes to this court upon answers given by. the Appeal Division to certain questions of law referred to that court by an order of the court of first instance on the footing of a statement of facts set out in the order of reference. From these facts it appears that the appellant is in the business of operating a line of motor buses for the carriage for hire of passengers and goods from Boston in the State of Massachusetts, through the Province of New Brunswick to Halifax and Glace Bay in the Province of Nova Scotia.
On the 17th day of June, 1949, he was granted a licence by the Motor Carrier Board of New Brunswick permitting these operations insofar as that province was concerned, but it was provided that he should not take up or put down passengers within the said province after August 1st of the said year. The appellant ignored the above condition and has continued since August 1, 1949, to take up and let down passengers within the province, regardless of whether such traffic originated within or without the province, or was destined to points within or without the province.
It is the contention of the appellant that his operations constitute an "undertaking" connecting the Province of New Brunswick with another province of Canada or extending beyond the limits of the province, within the meaning of s. 92 (10) (a) of the British North America Act, and that, accordingly, such operations are not the subject of regulation by the legislature of New Brunswick. It is to be observed that the appellant cannot rely on any Dominion legislation such as was in question in Toronto v. Bell Telephone Co. (1).
The essence of the opposing contention is that, while the appellant may have his buses and operators for those buses, his undertaking cannot be said to include the right to use the highways of the province. It is said that such right is a common law right bestowed on the appellant as a member of the public in New Brunswick under the laws of that province, and that the control of that right is a matter within the jurisdiction of the provincial legislature.
In the court below, Richards C.J., while accepting the view that the bus line of the appellant might otherwise be regarded as an "undertaking" within the meaning of s. 92 (10) (a), thought it could not be so regarded because, in his view, it is only local works and undertakings which have their "origin and situs within the province" which come within the purview of the section, and therefore, as the appellant has "no office, no place of business, no organization, no situs" within the province, his operations do not come within the contemplation of the section. While the appellant's undertaking "extends from the State of Maine into the Province of New Brunswick," the learned Chief L" Justice thought it could not be said that it "extends beyond J. the limits of the province."
Not coming, in his opinion, within the provisions of s. 92(10) (a), the learned Chief Justice was of opinion that the provincial legislation here in question was intra vires, being entirely local in character in relation to traffic within the province, and only incidentally affecting traffic passing through the province. Harrison J. expressed similar views. In the opinion of that learned judge, the province has the right, not only to regulate but also to prohibit motor vehicle traffic.
He was further of opinion that, in any event, the appellant, as a foreign national, had no status entitling him to question the validity of the legislation.
Hughes J. agreed with the answers given to the questions by the other members of the court, but gave no reasons.
In my opinion, the fact that the appellant is an alien does not affect his right to challenge the legislation in question. As stated by Lord Reading in Porter v. Freudenberg (1):
Reference may also be made to Johnstone v. Pedlar (2). With respect to the main ground upon which the respondents rest their case, namely, the contention that control of the use of provincial highways is a matter of civil rights within the province, I find it impossible to agree. I find nothing in s. 92 of the British North America Act which authorizes a province to shut itself off from any other province by denying entry to it to persons presenting themselves at its borders from other provinces or another country.
In the words of Lord Coleridge in Bailey v. Jamieson (3), "The common definition of a highway that is given in all the text-books of authority is, that it is a way leading from one market-town or inhabited place to another in- WzNa habited place which is common to all the Queen's .T subjects." It therefore appears at once that the right to the use of a highway is a right vested in the "subject" who is entitled to the exercise of that right throughout the kingdom. As the preamble to the British North America Act states that the constitution of Canada was intended to be similar in principle to that of the United Kingdom, this right, belonging equally to all Canadian subjects of His Majesty, is one which would normally be within the jurisdiction of Parliament unless another disposition has been made by the British North America Act. The only provision of that statute which is pointed to for such a result is head 13 of s. 92, but the mere statement of the nature of the right is sufficient to exclude it from the class of civil rights within the province.
With respect to the operation of a bus line of the nature of that here in question, I cannot accept the view of the statute taken in the court below. Such an undertaking is, in my opinion, one falling within the terms of s. 92(10) (a) and therefore, a subject matter of legislation exclusively within the jurisdiction of Parliament. The very object of the provision, to employ the words of Lord Read in the Empress Hotel case (1).
While this language was not there applied to circumstances similar to those in question in the case at bar, I would so apply it. The operation of an undertaking of the character contemplated by the section may not, therefore, be prevented by provincial legislation such as that in question. The question remains, however, as to whether the whole, and if not, what part, of the appellant's operations may properly be regarded as falling within "other Works and Undertakings connecting the province with any other or others of the provinces or extending beyond the limits of the province," as those words are employed in s. 92(10) (a). In my opinion, it is only the "through" as distinct from the "local" carriage which may be so regarded.
It is with means of "interprovincial" communication only, that the section deals, and therefore it is only the carriage of passengers or goods from a point outside the province to points within the province or beyond the province, and from a point within the province to points beyond the province, which may properly be regarded as "interprovincial," or "connecting," to use the statutory language. Unlike aerial navigation, or radio, which, from their very nature, are not divisible from the local or interprovincial or international standpoints, local carriage by bus is severable and forms no necessary part of the interprovincial or international undertaking with which s. 92(10) (a) is concerned. The words, "Lines of ships" and "railways," as used in the section, no doubt include all traffic carried by such means, but that is because these undertakings are specifically mentioned and, being mentioned, include everything normally understood by those words. I do not think, however, that there is any compelling reason for regarding such an undertaking as is here in question as including the purely local carriage of traffic, and, in the absence of such reason, I think there are considerations which dictate the contrary view.
As pointed out by the respondents, local carriage of traffic by bus has become, over wide areas, an essential public service, and, unless regulated to prevent excessive competition, the section of the public dependent upon such service will often suffer.
Such regulation would be impossible if any person, merely because he operates across a provincial boundary, perhaps at no great distance away, could compete with a purely local undertaking, free from any local control. It is past question, in my opinion, that a local legislature may, as a purely local matter, authorize the granting of exclusive transport franchises within the province in the interests of the inhabitants intended to be served. Just as an interprovincial or international bus line is withdrawn from provincial control, an intra-provincial bus line is, by the same statutory provision, placed within the exclusive jurisdiction of the provincial legislatures. If the carriage of purely local traffic is to be considered as part of the undertaking of a through bus line, there would seem to be no reason why such local traffic could not be carried by buses which do not leave the province at all, as well as by through buses. As already pointed out, the "undertaking" with which the statute deals is the organization under which the "inanimate things," the buses, operate. The undertaking is not to be identified with the buses. If, therefore, a connecting undertaking is to be regarded as including local as well as through carriage, it is difficult to see why such an undertaking may not also carry its local traffic by a bus which does not go outside the province at all, wherever such a mode of operation is conducive to the efficient management of the undertaking. Again, if it be suggested that the word "undertaking" is to take its colour from such a word as "railways" in the section, I would see no reason why, in respect of local carriage, the undertaking of a "connecting" bus line should be confined to buses paralleling its through line and would not also include branch lines throughout the province. As I have already said, "railways" is specifically used in the statute and includes everything normally understood by that word. But unlike a railway which has its own right of way, buses operate on public highways and must share the way thereby furnished with others.
It is the "connecting" undertaking which alone is committed to Dominion jurisdiction, while the local undertaking is at the same time committed to that of the provinces. To my mind, it would leave little to the latter, in the case of undertakings of the characteristics of that here in question, if the ambit of a through undertaking were cast as large as that for which the appellant contends. I therefore think that full effect can be given to that which is in the contemplation of the section with respect to the two different kinds of undertakings by giving to it the meaning indicated.
Accordingly, in my opinion, the appellant, although not subject to the provincial control here asserted insofar as his through operations are concerned, can not claim the same exemption with respect to his purely local carriage. There is no doubt an area in which provincial legislation may affect the operation of even a bus line confined to "through" business; Provincial Secretary v. Egan (1). It is impossible, however, to define that area apart from specific cases as they arise. In arriving at my conclusion I have not found it necessary to consider s. 91 (2) of the
British North America Act, upon which the respondents did not found any argument.
The questions here put are broad enough to cover many (EAN) matters which are not shown to be in any way in issue in this litigation. The court is not to be called upon to answer, in litigation of this character, general questions the answers to which are not required for the purpose of enabling the court charged ultimately with the duty of disposing of the litigation to determine the actual issues. It will therefore be sufficient for the purposes of the case at bar to declare that the provincial legislation here in question is not competent to prevent the appellant's undertaking from bringing passengers into the province of New Brunswick from the United States of America or another province of
Canada and permitting such passengers to alight in the said province, or from picking up passengers in the province to be carried out of the same.
I agree with the order as to costs proposed by my brother
EsTEY J.:-In an action between S.M.T. (Eastern)
Limited and Israel Winner, doing business under the name and style of MacKenzie Coach Lines, three questions were submitted by the Supreme Court, Appeal Division, in the
Province of New Brunswick. From the judgment embodying the answers, leave to appeal to this Court was granted.
As of February 7, 1951, the Attorney-General of New
Brunswick, ex relatione S.M.T. (Eastern) Limited, was added a party as "from the institution" of the action.
The appellant Winner operates a passenger bus service between Boston in the State of Massachusetts and Halifax and Glace Bay in the Province of Nova Scotia and the question here raised is the right of the Province of New
Brunswick to prohibit his embussing and debussing of passengers within that province.
The appellant has, at all relevant times, purchased a licence as required under The Motor Vehicle Act of New
Brunswick (1934-24 Geo. V, c. 20 and amendments thereto).
He has also been granted a licence by The
Motor Carrier Board under the provisions of The Motor
Carrier Act of that province (1937-1 Geo. VI, c. 43 and amendments thereto), the provisions of which are expressly W a
"deemed to be in addition to those of The Motor Vehicle LT.)
Prior to the amendment of 1949 the definition of "Public -- Motor Bus" read:
2(1)
(f).
"Public Motor Bus" means a motor vehicle plying or standing for hire by, or used to carry, passengers at separate fares from any point within the province to a destination also within the province. S. 4 of the same Act read at that time:
4. The Board may grant to any person firm or company a licence to operate or cause to be operated public motor buses or public motor trucks over specified routes and between specified points within the province.
The amendment of 1949 (13 Geo. VI, c. 47) struck out all the words in s. 2(1) (f) after the word "fares" and in s. 4 the words "within the province."
The intent and purpose and, indeed, the effect of these amendments was to enable The Motor Carrier Board to prohibit the embussing and debussing of passengers, as it did in granting a licence to the appellant on June 17, 1949, of which the material portion reads:
Israel Winner doing business under the name and style of "MacKenzie Coach Lines," at Lewiston in the State of Maine is granted a licence to operate public motor buses from Boston in the State of Massachusetts, through the province of New Brunswick on Highways Nos. 1 and 2, to Halifax and Glace Bay in the province of Nova Scotia and return, but not to embus or debus passengers in the said province of New Brunswick after August 1, 1949.
It is the contention of the province that The Motor Carrier Board, in imposing the restrictions contained in the licence, acted within its powers, and the legislation granting to it those powers is intra vires of the province. The appellant submits that his passenger bus service is an undertaking within the meaning of sec. 92(10) (a) of the British North America Act, therefore subject to Dominion legislation, and, in so far as the province seeks to restrict or prohibit his passenger bus service, its legislation is either ultra vires of the province or inoperative as against him. S. 92(10) (a) reads as follows:
92. In each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated; that is to say,- The word "local" in the foregoing s. 92(10) (a), with great respect, cannot be restricted in its scope and meaning as held by the learned judges of the Appellate Court. The section read as a whole indicates that included in the phrase "local works and undertakings" are activities other than, as well as those which were initiated or have their head offices in the province. It is rather the scope of the operations that determines the legislative jurisdiction. The submission on behalf of the Attorney-General of New Brunswick that the words in s. 92(10) (a) "or extending beyond the limits of the province," must be restricted to an extension into some portion of what is now the Dominion of Canada, although it finds support in a reading of s. 92(10) (a) and (b) together, does not otherwise find such support as to justify its acceptance.
Sub-para. (b) is restricted to "Lines of Steamships."
Even the words "or other ships" are not included. It makes no mention of railways, canals and telegraphs, nor are they elsewhere similarly dealt with. Yet there can be no doubt that the possibility of railways, canals and telegraphs extending into the United States must have been present to those associated with the drafting of the British North America Act. In fact, at least one province contemplated the building of such a railway prior to Confederation. It seems difficult to conclude that this possibility was not provided for by the insertion of the unrestricted language just quoted. If there be an overlapping with respect to lines of steamships between (a) and (b) that, I think, must be attributed to abundant caution in relation to some matter present to the drafsmen in respect of lines of steamships. As to the meaning of "works and undertakings" under s. 92(10) (a), Lord Reid, in C.P.R. v. A.G. for British Columbia (Empress Hotel case) (1), stated:
In the Radio case (1), Viscount Dunedin, in referring to s. 92(10) (a), stated:
The appellant's organization under which he operates his bus service is, within the foregoing, an arrangement connecting New Brunswick and Nova Scotia. This arrangement, together with his equipment, constitutes a works and undertaking within the meaning.of s. 92(10) (a).
There is no question but that the highways are subject to the exclusive legislative jurisdiction of the provinces. Provincial Secretary of Prince Edward Island v. Egan At the hearing there was some discussion as to the ownership of the highways in New Brunswick. Whatever the precise position may be in regard to their ownership, whether the province holds them as trustee for the public or whether the right of passage is in the nature of a public easement, for the purpose of this litigation it is sufficient that the province possesses, within the meaning of the British North America Act, complete legislative jurisdiction over its highways.
The appellant, once within the province, has a right to pass and repass his buses over the provincial highways, without regard to his citizenship or residence, upon his compliance with competently enacted provincial legislation. The province has not, at any time, disputed his right in this connection and he, on his part, has, by the purchase of the necessary licences, indicated a clear intention to comply with such legislation. In fact, he has, and his right to do so is not here in question, carried passengers, from points outside, through the province to points beyond it. In respect of the embussing and debussing of international and interprovincial passengers within the province, while the contracts for their transportation are made both within and without the province, in every case such contracts are performed in part within and in part without the province. They constitute an inherent and important part of the appellant's works and undertaking and give to it that essential characteristic that, in the scheme of the British North America Act, places the appellant's bus service, by virtue of s. 92(10) (a), under the legislative jurisdiction of the Dominion. While it was contended by certain of the Attorneys-General that the province possesses the power to prohibit an international and interprovincial bus to pass and repass upon its highways, no authority was cited to that effect. The Dominion of Canada was created by the British North America Act as "one Dominion under the name of Canada" (s. 3); and there shall be "one Parliament for Canada" (s. 17).
Moreover, there is but one Canadian citizenship and, throughout, the British North America Act contemplates that citizens, and all others who may be for the time being in Canada, shall enjoy freedom of passage throughout the Dominion, subject to compliance with competent provincial legislation.
There remains for consideration the .embussing and debussing by the appellant of intraprovincial passengers. Immediately the 1949 licence was issued he contended the prohibition was ultra vires of the province and has since carried on his business in complete disregard thereof. His position was that he had a right to carry on his international and interprovincial bus service and, as "incidental" thereto, to embus and debus, including intraprovincial, passengers. He did not intimate what he included in the word "incidental," but it would appear that he at least meant the embussing and debussing of intraprovincial passengers along his route in New Brunswick.
In support of his contention counsel directed our attention to railways and telegraphs.
These works and undertakings are quite different in character. The owners of the former provide the roadbed and tracks, the latter the wire and poles, and both provide all other facilities necessary to their respective operations. The appellant's works and undertaking consist of his buses and the arrangement under which they are operated. As such, his works and undertaking are designed and developed to operate upon the provincial highways, which must be located, constructed, maintained and controlled by the province. The essential difference is that, while railways and telegraphs operate upon their own property, the appellant operates his bus service upon the highways maintained and controlled by the province. The factors that militate against ..
a practical severance of the intraprovincial railway and telegraph businesses are not, to an important degree, present in the appellant's bus service as he has developed it, or as it would be in the ordinary course of such a business. Moreover, from the point of view of the province, it constitutes the utilization of its highways for a purely provincial purpose and, if permitted upon main highways, would go far to destroy the system under which the province has deemed it advisable, if not necessary, to licence the carriage of passengers and goods by buses. The appellant's essential business is the international and interprovincial carriage of passengers. His buses and the arrangement under which he operates constitute his works and undertaking, all of which are subject to legislative jurisdiction of parliament, and if he enters the province and complies with competent provincial legislation, as already stated, the highways must be available to him. Whenever he seeks to utilize the highways for the further purpose of the carriage of intraprovincial passengers he is outside the scope of his works and undertaking, under 92(10) (a). If, therefore, he desires to enter into the bus business of carrying intraprovincial passengers, he must comply with competent provincial legislation in relation thereto. It should be noted that in this litigation we are not concerned with a body corporate, created and granted certain powers by the Parliament of Canada with respect to which other considerations may arise, but rather with an individual whose works and undertaking are the international and interprovincial carriage of passengers. There may, in the future, be important questions as to what particular circumstances may constitute international, interprovincial or intraprovincial passengers. These questions must, of course, be decided as they arise, but it does seem necessary to intimate here that the appellant would be entitled to accord to international and interprovincial passengers stop-over privileges, as that term is understood in systems of transportation, without their being regarded as intraprovincial passengers, as they embus and debus within the province.
The hearing of this appeal has been restricted to the right of the appellant to carry passengers. The questions appear to have been -drafted in broader terms than neces- S. sary to determine the issues now raised in this litigation. Indeed, it would appear to be a sufficient answer to all of the questions to say that provincial legislation, in so far as it prohibits the embussing or debussing of international and interprovincial passengers, is ultra vires the province. In particular, the amendment of 1949 to The Motor Carrier Act, in so far as it makes provision therefor, is ultra vires. The same may be said of Regulation 13 and Section 58 of The Motor Vehicle Act under which it is authorized. I agree with my brother Kerwin's disposition of costs. J.:-The appellant is a carrier of passengers and freight for reward, operating motor buses from Boston, Massachusetts, to Glace Bay, Nova Scotia. In traversing the Province of New Brunswick en route these vehicles stop in a number of places between St. Stephen and Sackville. The appellant asserts that as such a carrier he is entitled to bring passengers from the United States and from the Province of Nova Scotia into the Province of New Brunswick, to carry passengers from the latter province to the United States or to Nova Scotia and "in connection with and incidentally to his international and interprovincial operations" to carry passengers from one point in New Brunswick to another. Both in his pleadings and in the factum filed before us the appellant has made it plain that he does not claim an unqualified right to carry passengers from one point to another within the province, except to the extent above indicated.
This I understand to mean that he may extend stop-over privileges .to his passengers, as is commonly done by railway companies: thus, by way of illustration, a person travelling from Boston to Sackville might stop over at St. Stephen and at Saint John and be carried between these points, and from the latter point to Sackville under the contract of carriage. The question to be determined is whether by legislation the Province of New Brunswick can lawfully prevent the carrying on of these activities.
Heading 10 of section 92 of the British North America Act, in so far as it affects this matter, reads:
The operations of the appellant consist of the daily operation of motor buses between the above mentioned points, these running in accordance with a published time table, carrying passengers and their luggage and freight in both directions. A time table, made part of the material submitted with the questions to the Court, under the heading "Index of Stations and Agents" lists a number of places in New Brunswick between St. Stephen and Sackville where these are maintained, and this affords the only evidence as to the extent of the business carried on within the province, other than the stated fact that the motor buses are operated in the above mentioned manner. The word "undertaking" is, in the absence of a statutory definition, and there is none, to be given its commonly accepted meaning as being a business undertaking or enterprise and, in my opinion, it is beyond doubt that the appellant's business falls within this description. I think it equally clear that it connects the province of New Brunswick with another of the provinces and extends beyond the limits of the province.
It is not a physical connection that is referred to (In re the Regulation and Control of Radio (1)).
Richards C.J.A. and Harrison J. were both of the opinion that the appellant's business was not such an undertaking, since they considered that, in order to fall within the class of matters referred to in subheading (a), it was necessary that the undertaking should be local in its nature. As the learned Chief Justice expressed it, the works and undertakings referred to are those "which have their origin and situs within the province."
Mr. Justice Harrison considered that, as the defendant had no office or location of any kind in New Brunswick and the time table showed his office to be at Lewiston, Maine: "the undertaking was 'local' in the State of Maine. It is not local in New Brunswick."
The opening phrase of heading 10 is clearly capable of the construction given to it by these learned judges, namely, that it is to be interpreted as if it read:
. The matter, however, appears to me to be concluded by authority. In A.G. for British Columbia v. C.P.R. (1) and in Toronto Corporation v. C.P.R. (2), it was held by the Judicial Committee that heading 10(a) applied to the undertaking of that company.
In Luscar Collieries v. McDonald (3), it was held that the subsection applied to the undertaking of the Canadian Northern Railway Company. The undertakings of these companies cannot be described as "local" in the sense that that term has been construed by the learned judges of the Appeal Division, so that I think it must be taken either that subheading (a) refers to undertakings other than such as are merely local in their nature and extent, or that a "local" undertaking includes one such as that of the appellant, which carries on its enterprise in whole or in part within the boundaries of the province.
Section 91 declares the power of Parliament to make laws for the peace, order and good government of Canada in relation to all matters not coming within the classes of subjects by the Act assigned exclusively to the Legislatures of the provinces and:
In City of Montreal v. Montreal Street Railway (4), Lord Atkinson, in delivering the judgment of the Judicial Committee, said that the effect of heading 10 of s. 92 was to transfer the excepted works mentioned in subheadings (a), (b) and (c) of it into s. 91 and thus to place them under the exclusive jurisdiction and control of the Dominion Parliament. This applies with equal force to the excepted undertakings, in my opinion.
It is thus for Parliament to say whether these activities of the appellant may be carried on or prohibited.
This is, in my opinion, decisive of the question as to the right of the province to prevent the appellant from bringing passengers into the province and permitting them to alight and transporting passengers therefrom.
There un remains the question as to the right of the appellant to engage in what may properly, in my opinion, be described as the local business of carrying passengers other than those entering the province upon his buses, or leaving it in that manner, from place to place within the province. Whether these operations also fall within the exclusive jurisdiction of Parliament must be decided by determining the exact nature of the undertakings excepted from provincial jurisdiction by subheading 10(a). These are undertakings connecting the province with another province or extending beyond the provincial limits. The appellant's enterprise is, I think, correctly described in the statement of defence as an international and interprovincial operation. It is properly a part of such an operation to afford to passengers brought into the province, or those who embark upon the buses to be carried out of the province, what are commonly called stop-over privileges of the nature above referred to as an incident of the contract of carriage. consider, however, that the carrying on of a purely local passenger business of the nature above referred to is not a part of, or reasonably incidental to, the operation of an undertaking of this nature. It is not every activity that the person engaged in the undertaking may decide to carry on in connection with its operation that falls within the exception.
The establishment of restaurants at various places in New Brunswick through which the buses of the appellant pass might be an aid to the financial success of the undertaking, but such operations would not, in my view, be part of the undertaking excepted from the provincial jurisdiction.
I think a purely local passenger business of the above mentioned nature is in no different position.
The distinction between an undertaking such as this and that of the railway companies is that in the case of the latter it is an essential of the operation that there should be railway stations established at regular intervals along the line and large expenditures incurred for that purpose, and that there be facilities afforded for the carriage of both passengers and freight between these stations as a necessary part of an effective railway operation. These considerations do not, in my opinion, apply wNIR to an undertaking such as that of the appellant.
This matter has been brought before us by special leave, to appeal granted by the Appeal Division. Two of the J. questions were submitted for the opinion of that Court by an order of Hughes J. made in the Chancery Division of the Supreme Court, and a third question as to whether the operations of the appellant were prohibited or affected by the provisions of The Motor Carrier Act, 1937, as amended, and The Motor Vehicle Act, as amended, or by the regulations made under the last mentioned statute, was added by consent of counsel for the parties. The claim of the plaintiff S.M.T. (Eastern) Ltd. against the defendant in the action, the present appellant, was that while the appellant had obtained a licence from the Motor Carrier Board this would not permit him "to embus or debus passengers in the said Province of New Brunswick after August 1, 1949," that the defendant had in spite of this continued to embus and debus passengers within the province and intended to continue to do so, whereby the plaintiff had suffered and would thereafter suffer damage. By the statement of defence it was admitted that the appellant had and intended to continue to permit passengers to alight within the province and to enter the buses within the province in connection with, and incidentally to, his international and interprovincial operations, and by counterclaim the defendant sought a declaration that his undertaking was within the exception contained in subheading 10(a) of 92 of the British North America Act, that his operations were not prohibited by, or subject to, "The Motor Carrier Act and amendments thereto or by any other applicable statute or law," and that the statute 13 Geo. VI, c. 47 (1949) is ultra vires the legislature of the province. The defence to the counterclaim repeated the allegations in the statement of claim, denied that the defendant's operations were primarily international and interprovincial, demurred on the ground that the counterclaim disclosed no cause of action and said that the 1949 statute was intra vires. The plaintiff did not plead to, or raise any issue as to, that part of the claim advanced in the counterclaim in which a declaration was asked that the defendant's operations were not prohibited by, or subject in any way to, the provisions of The Motor Carrier Act and amendments or by any other applicable statute. No attack had been made upon The Motor Vehicle Act or the regulations Carrier Act of New Brunswick is a statute containing some 22 sections, while there are 92 sections to The Motor Vehicle Act and a lengthy series of regulations. I do not think we should be asked to deal with constitutional questions of such great importance in this manner. This is not a reference to a provincial court for its opinion by the Lieutenant-Governor in Council of a province under a statute such as the Constitutional Questions Determination Acts of other provinces: rather are we asked, at least by the third question, to decide issues not defined in the pleadings because counsel for the respective parties request it.
I think it is well to remember what was said by Sir Montague Smith in Citizens' Insurance Company of Canada v. Parsons (1), that in performing the difficult duty of deciding questions arising as to the interpretation, of sections 91 and 92 we should decide each case which arises as best we can, without entering more largely upon an interpretation of the statute than is necessary for the decision of the particular question in hand. The particular questions to be determined in the present matter are as to whether by legislation of the province an undertaking such as that of the appellant may be prohibited from bringing passengers into the Province of New Brunswick from the United States and from Nova Scotia and permitting them to alight: from admitting passengers to its buses to be carried out of the province, and to carry passengers along the route traversed by its buses from place to place in New Brunswick to whom stop-over privileges have been extended as an incident of the contract of carriage. The answer to each of these questions is, in my opinion, in the negative.
This is sufficient, in my opinion, to dispose of the issues properly raised by the pleadings in this action. I think no further answer should be made.
I agree with the order as to costs proposed by my brother J.:-This is an appeal brought pursuant to special leave granted by the Appellate Division of the W'NER Supreme Court of New Brunswick from a judgment of that Court answering certain questions of law, said to arise in this action, raised for its opinion by order of
Hughes J.
The agreed statement of facts, the questions and the answers given are sufficiently set out in the reasons of other members of the Court and do not require repetition.
With great respect, I think that the procedure followed in this case has proved inconvenient and that the questions in issue between the parties could have been more satisfactorily dealt with if the action had been tried and judgment given leaving any party dissatisfied to appeal if so advised. It is not the duty of the Court in an action to decide questions of law, however interesting or important, except such as require to be determined to enable the
Court to pronounce judgment. To make a complete answer to questions 1 and 3 it would be necessary to examine every provision of The Motor Carrier's Act, of the orders of the
Motor Carrier Board and of The Motor Vehicle Act and to state as to each of such provisions whether it affects the operations or the proposed operations of the appellant and if so in what way, although, in this action, as to most of them no question appears to arise at all.
Our first task seems to me to be to ascertain from the pleadings and the assumed facts what questions of law properly arise for determination at this stage of the proceedings.
The plaintiffs in the action are now the Attorney General of New Brunswick ex relatione S.M.T. (Eastern) Ltd. and the said S.M.T. (Eastern) Ltd.
Paragraphs 5, 6, and 7 of the Statement of Claim read as follows:
7. Since August 1, 1949, the defendant has continually embussed and debussed passengers within the -said Province of New Brunswick, contrary to the said order, dated the 17th day of June, 1949, and has declared his intention of so doing until stopped by legal process.
In the prayer for relief the plaintiffs claim:
Cartwright J.
(a) An injunction against the defendant, his servants or agents restraining him and them from embussing and debussing passengers within the Province of New Brunswick in his public motor buses running between St. Stephen, N.B. and the Nova Scotia border. (b) A declaration that the defendant has no legal right to embuss or debuss passengers within the Province of New Brunswick. (e) Such other and further relief as to the Court may seem just. The plaintiff company also claims damages and an accounting.
In its Statement of Defence the appellant admits paragraphs 5 and 6 of the Statement of Claim. Paragraphs 2 and 4 of the Statement of Defence read as follows: 2. As to paragraph (7) of the said Statement of Claim- (a) he admits that since August 1, 1949, he has continually embussed and debussed passengers within the Province of New Brunswick and that it is his intention to continue to do so unless and until it shall have been declared by some court of competent jurisdiction that such operations are prohibited by The Motor Carrier Act and amendments thereto, or by any other applicable statute or law;
(b) he intends to carry passengers not only from points without the Province of New Brunswick to points within the said province and vice versa, but also, in connection with and incidentally to his international and interprovincial operations, to carry passengers from points within the said province to destinations also within the said province, unless and until it shall have been declared by some court of competent jurisdiction that such operations are prohibited by The Motor Carrier Act and amendments thereto, or by any other applicable statute or law. 4. His operation of public motor buses is primarily international and interprovincial, over the routes more particularly described in paragraph (5) of the plaintiff's Statement of Claim, but that incidentally to such international and interprovincial operation, he operates and intends to continue to operate public motor buses intraprovincially in accordance with and subject to his allegations contained in paragraph (2) hereof. By way of counterclaim the defendant asks:
1. A declaration that his operations constitute an undertaking connecting the Province of New Brunswick with another province of Canada, viz., the Province of Nova Scotia, and extending into states of the United States of America, beyond the limits of the Province of New Brunswick, within the meaning of section (a) of section 92 of The British North America Act.
Nowhere in the pleadings or in the statement of admitted facts does any suggestion appear that the appellant has failed to comply with any requirement of the Statutes of New Brunswick or the orders made thereunder dealing with the use of the highways, such as, for example, enactments prescribing the maximum weight and size of buses, the system of brakes or the carrying of insurance; and it appears to me that we must deal with the questions on the assumption that the appellant has fulfilled all the conditions precedent to the granting of whatever licences he requires to permit his buses to use the highways of New On this assumption the only question which properly arises for determination is whether the restriction contained in the licence of the 17th June, 1949, granted by the Motor Carrier Board to the appellant is effective. In saying this, I have not overlooked the wide terms of paragraph 2 of the prayer for relief in the counterclaim, quoted above, or the fact that the Attorney General for New Brunswick has been added as a party plaintiff nunc pro tune, and may therefore, I assume, be regarded as a defendant in the counterclaim. In my view, in the circumstances of this case the appellant is not entitled to a declaratory judgment as to what is the law of New Brunswick and as to how far it affects his operations, vide Smith v. Attorney General for Ontario (1).
All the rights of the appellant which are in issue in this action will be sufficiently defined by an answer to the question mentioned in the first sentence of this paragraph, and it is unnecessary to enter upon a discussion of the wider questions of law sought to be raised by the counterclaim.
I agree with my brother Rand that the relevant statutory provisions, if valid, are broad enough to empower the Board to restrict the licence as it did, and the answer to the question must therefore turn on whether it was within the powers of the legislature of New Brunswick to so provide.
In the assumed circumstances of this case, set out above, I am in agreement with those members of the Court who hold that the New Brunswick statutes and regulations in question and the licence issued by the Motor Carrier Board, referred to above, are legally ineffective to prevent the appellant by his undertaking from bringing passengers into the Province of New Brunswick from the United States of America or from another province of Canada and permitting such passengers to alight in New Brunswick, or from picking up passengers in New Brunswick to be carried out of the province or from transporting between points in the province passengers to whom stop-over privileges have been extended as an incident of a contract of through carriage; because in so far as they purport so to do they are ultra vires of the legislature of New Brunswick. I would so declare and would also declare that no further answer to the questions submitted is required. I would dispose of the costs as proposed by my brother Kerwin.
J.:-Pursuant to licences granted by the Motor Carrier Board of the Province of New Brunswick, the respondent, a company incorporated under the laws of the province, operates, within the province only and over certain routes, motor buses for the carriage of passengers and goods for hire.
The appellant, a resident of Lewiston, in the State of Maine, conducts like operations between Boston, in the Commonwealth of Massachusetts, and the town of Glace Bay, in the Province of Nova Scotia, and between intermediate points, including points within the Province of New Brunswick.
As to the part of these operations on routes beyond the Canadian border, the appellant holds a permit issued by the Interstate Commerce Commission, a United States federal body having jurisdiction, inter alia, over interstate transportation. With respect to the other part of the operations, carried on routes within the Province of New Brunswick, the appellant did, on the 17th of June, 1949, obtain from the Motor Carrier Board of the province a licence in the following terms:
Having, before the issuance of such a licence, challenged the validity of The Motor Carrier Act, 1937, as amended by 13 Geo. 6, c. 47 (1949), the appellant, thereafter, consistently ignored and refused to comply with the restrictions above underlined in the licence.
And he equally declared his intention to continue to do so until it shall have been judicially found that such operations are prohibited by The Motor Carrier Act and amendments thereto, or by any other applicable statute or law. In effect, and under such a licence, the only right granted to the appellant is to go across the Province of New Brunswick with passengers already embussed but with no right to embus or debus passengers in the province.
This attitude and these actions of the appellant gave, at first, rise to a claim by the respondent asking for (1) a declaration that the appellant had no legal right to do what his permit prohibited him from doing, (2) an injunction to restrain him from carrying on such operations and damages, and to a counterclaim by the appellant for a declaration that his operations, actual or proposed, being primarily international and interprovincial, came within the purview of sub-s. 10(a) of s. 92 of the British North America Act and, as such, beyond control by provincial legislation related to such undertakings carried on wholly within the province.
Eventually, and in the course of these proceedings, three questions of law having been stated, they were subsequently answered, by the Supreme Court (Appellate Division) of the Province of New Brunswick, in a judgment now before this Court for review.
The essential point decisive of the present issue is whether or not, and, if in the affirmative, in what measure, the above described transportation business of the appellant constitutes an undertaking within the meaning of s. 92(10) of the B.N.A. Act and, as such, not only excluded from the provincial legislative field but by force of s. 91, (29) included amongst the classes of subjects exclusively within the legislative authority of Parliament.
92(10) reads:
The time table and the index of stations, relative to the appellant's operations, indicate that his bus line extends from New Brunswick into Nova Scotia and into the United States of America. It also shows that it joins points in New Brunswick to points in Nova Scotia.
In the light of what was said by Viscount Dunedin in re Regulation and Control of Radio Communication in Canada (1), the conclusion that the operation of the bus line of the appellant is an undertaking within the meaning of the word in the subsection and that it is an undertaking which connects one province to another, is, with deference, inescapable.
The fact that the highways, over which the motor buses of the appellant must travel, are not part of his undertaking is not more material in the present case than the fact that the space, in which the material transmitted by radio has to travel, was not part of the undertaking, was material in the Radio case. In the judgment of the Judicial Committee rendered in the latter, it was stated, at page 315, that " 'undertaking' is not a physical thing, but is an arrangement under which of course physical things are used." And it was also declared that "the undertaking of broadcasting is an undertaking connecting the province with other provinces and extending beyond the limits of the province."
On the alleged factual premises that the appellant has no office, no place of business, no organization, no situs in the Province of New Brunswick but only in Lewiston,
S. Maine, it was suggested that his undertaking is not local (EASN) in the sense of the local undertakings excepted by the subsection. It may be stated, at first, that it appears in the material found in the record, that while what is described as the "main office" of the appellant is situated in
Lewiston, Maine, the latter has, equally, agencies at several strategic points on the bus line he operates, particularly in the Provinces of New Brunswick and Nova Scotia, and that he also maintains one office in Halifax and another in
Sydney. I cannot think that the point from which an undertaking is partly or wholly managed or directed may become the decisive element in the consideration of the question. The subsection is not related to the situs of management of the undertaking but to the larger fieldthe one which may connect-in which the undertaking is actually operated. In each of the two or more provinces covered by an undertaking, it may, with equal accuracy, be said that the undertaking connects the province to the other province or provinces. An interpretation of the subsection which would make this proposition well-founded only in the province where the undertaking has its origin and situs, and ill-founded in the other province or provinces, would fatally and completely nullify the purpose the subsection was meant to achieve.
For, and assuming that identical legislation would be adopted in all these provinces by local legislative action, such legislation could be declared ultra vires in the province of origin and situs of the undertaking, and intra vires in all the others. In the result, the overall control by legislative and executive action, which, in proper cases, the B.N.A. Act contemplates, would not be achieved. That "the object of the paragraph" (10(a)) "is to deal with means of interprovincial communication", and that "Such communication can be provided by organizations or undertakings but not by inanimate things alone"
is affirmed by the judgment of the Judicial Committee in
C.P.R. v. A.G. for British Columbia (1).
In the measure in which it is interprovincial, the public transportation service of the appellant undoubtedly constitutes consequently an undertaking coming within the meaning of s. 92 (10) (a) and, as such, is within the classes J of subjects transferred into s. 91.
Thus, the carrying of passengers by the appellant (a) from outside the Province of New Brunswick to points along his route in the province, and (b) from points within the province to points beyond the province, and (c) between points in the province as an incident to stop-over privileges related to the operations mentioned in (a) and (b), having this interprovincial character, comes therefore within dominion jurisdiction as such.
However, and as described at the very beginning of these reasons, the actual and proposed operations of the appellant include, in addition to this interprovincial service, the transportation of passengers between intermediate points within the Province of New Brunswick. And the question; arises whether this latter traffic, in essence exclusively local, should be dealt with in this case as necessarily incidental to what constitutes the interprovincial undertaking of the appellant, and be thus equally declared to come under the exclusive control of Parliament. I see no reason why it should. In law, it has by itself none of the features which, considered alone, would bring it within the meaning of s. 92(10) (a). In fact, such local transportation is not a necessary incident to the interprovincial service of the appellant. The operations carried on by S.M.T. (Eastern) Ltd., the respondent, sufficiently indicate that such local service is in itself a complete undertaking. It is true that both the interprovincial and local services may merge in one undertaking. This, however, is no reason to ignore the legal premises on which the issue must be determined and, further, to conclude that either the local or the interprovincial part of the whole service must be considered as a necessary incident of the other.
These local operations remain within provincial control.
The above conclusions are, in my view, sufficient to dispose of the real issue which arose in this case.
There is no need to re-state here all that is said in the other reasons with respect to the difference, in pith and substance, between The Motor Carrier Act and The Motor vT Vehicle Act of the Province of New Brunswick. In brief, the former is related to the public service of transportation while the latter deals with vehicles and their operations, and the material principle laid down in Provincial Secretary of P.E.I. v. Egan (1), remains unaffected.
I equally agree with the views that the question related to the nature of the right to the use of a public highway, and the fact that the appellant is an alien, do not affect adversely the above conclusions as to the main issue. I would, therefore, agree with my brother Locke as to the answers that should be given.
The appeal should be allowed and the reasons of the judgment of the Appellate Division of the Supreme Court of New Brunswick modified accordingly.
As to costs, I agree with the order proposed by my brother Kerwin.
Appeal allowed and Order appealed from set aside. Solicitor for the appellant: J. M. Neville.
Solicitors for the respondent: Gilbert & McGloan. Solicitor for the Attorney General of Canada: F. P. Varcoe.
Solicitor for the Attorney General of Ontario: C. R. Magone.
Solicitor for the Attorney General of Quebec: L. E. Beaulieu.
Solicitor for the Attorney General of Nova Scotia: J. A. Y. MacDonald.
Solicitor for the Attorney General of New Brunswick: J. E. Hughes.
Solicitor for the Attorney General of British Columbia: H. A. Maclean.
Solicitor for the Attorney General of Prince Edward Island: W. E. Darby.
Solicitor for the Attorney General of Alberta: H. J. Wilson.
Solicitors for Canadian National Ry. Co. and Canadian Pacific Ry. Co.: Tilley, Carson, Morlock & McCrimmon. Solicitor for Maccam Transport Ltd.: F. R. Hume. Solicitor for Carwil Transport Ltd.: C. H. Howard Divorce-Alimony and Maintenance-Consent judgment to lump sum payment-Subsequent application to vary not within jurisdiction of Court to grant-Res judicata- Estoppel-The Matrimonial Causes Act,
R.S.O. 1987, c. 208, ss. 1, 2.
A wife suing for divorce authorized her solicitor to accept a lump sum in full of all claims for alimony and maintenance.
The trial judge queried the prudence of such an arrangement and being assured by her counsel, granted a decree nisi and endorsed on the record that on consent of the parties judgment was granted in the sum agreed upon. In the formal judgment the Court ordered payment of the sum as and for alimony and maintenance and the words "or until this.
Court doth otherwise order" were added.
Subsequently the wife alleging, that the agreement as to the lump sum payment had been made without her consent and had been obtained by fraud on the part of her husband, brought an action in damages or in the alternative, for an order to set aside that part of the judgment and permit her to apply in the divorce action for an award of such alimony and maintenance as she should receive.
This action (tried by
Mackay J.) was dismissed, it being held that there was no fraud proven and that the wife had authorized acceptance.
On a ppeal that decision was affirmed.
Before the judgment of Mackay J. was rendered a motion was made in the pending divorce suit to rescind or vary the Order as to maintenance and alimony and for an order directing the husband to secure to the wife such gross or annual sum of money, or in addition thereto, or in substitution therefor, to pay such monthly or weekly sum as deemed reasonable by the Court and for an inquiry as to the respective assets of the parties. The trial of an issue having been ordered and an appeal from that Order taken, the Court of Appeal held that there was no jurisdiction in the Court to award a lump sum payment except by consent of the parties but that having been given, it had power to make the award but not to vary the amount thereafter.
Held: The real issue before Mackay J. was whether, notwithstanding the agreement under attack and the paragraph of the judgment which carried the effect of it into the judgment nisi, there still remained a right to claim maintenance upon the making of the final decree.
That question having been conclusively determined against the plaintiff, she could not relitigate the matter. Green v. Weatherill [1929] 2 Ch. 213 at 221, 222.
Hoystead v. Commissioner of Taxation
ALIMONY AND MAINTENANCE Concluded.
[1926] A.C. 155 at 165. Held: also, that the proposition that a judgment cannot take effect as res judicata or an estoppel unless it was given before the proceedings in which it is relied upon were commenced must be rejected. Law v. Hansen 25 Can. S.C.R. 69 at 76, applied. Per: Rand and Kellock JJ. :-It is open to the parties to agree, as part of the adjudication of divorce, to waive the claim for alimony and maintenance in consideration of a lump sum allowance.
The impugned provision in the order nisi constitutes evidence of the agreement and may be set aside only on grounds applicable to any agreement or judgment, or as defective as made without power or jurisdiction.
If not set aside and not defective, it would be an answer toran application on the decree absolute for relief of either kind.
Such an agreement is not within the ban pronounced in Hyman v. Hyman [1929] A.C. 601, and Mills v. Mills [1940] 2 All E.R. 254, would not apply because the final decree had not yet been pronounced.
(Decision of the Court of Appeal [1950] O.R. 44 affirmed.) MAYNARD........................ APPEAL-Appeal-Special Leave to Appeal within Court's discretion-Where validity of Provincial law questioned, leave refused until opinion of highest Provincial Court obtained -"Final judgment of court of highestresort in Province"-"Question of law or jurisdiction"-The Supreme Court Act, R.S.C. 1927, c. 85, s. 41 (1), (8) as amended by 1949 (Can.) 2nd Sess., c. 87, s. 2. This appeal deals with a provincial criminal offence.
(Saumur v. Recorder's Court of Quebec [1947] S.C.R. 492.)
If, therefore, this Court has jurisdiction to grant leave, it is only by virtue of s. 41(1) and (3) of the Supreme Court Act as amended.
The'proper remedy where the validity of a provincial law (the Quebec Cities and Towns Act),rand a municipal by-law authorized thereby is q uestioned, is by way of writ of Prohibition art. 1003 C.P.), or by way of writkof Certiorari (arts. 1392, 1393), and since when a case is submitted to this Court for final determination it is desirable that it should have the opinion of the highest'courtlofLthe Province from which the appeal is taken, this Court, in the exercise of the discretion vested in it under s. 41, should refuse leave to appeal until such opinion has been obtained. Under s. 41(3) the Court may grant special leave to appeal on a question of law or jurisdiction, but the questionvof law raised must be a question'of law!alone APPEAL-Continued and not a mixed question of law and fact.
The King v. Decary [1942] S.C.R. 80.
Application for special leave to appeal dismissed.
v. Towx or 60
2.-Appeal-Trial before judge alone- Pure question of fact-Principles governing appellate court-Practice-Efect to be given on appeal to defence not raised in pleadings nor established in evidence-Rules of Practice
(Ont.) r. 143. The appellant, a business consultant, conducted lengthy negotiations with a view to securing a controlling interest in three companies on behalf of the respondent, a financier, as to all of which the latter finally decided not to purchase.
The appellant brought an action upon an alleged verbal agreement by which he claimed he was to be paid a reasonable sum for services rendered.
The respondent pleaded the agreement was that payment was to be made on a commission basis and only in the event of purchase, and further that the appellant was precluded from advancing his claim because of failure to register as a business broker pursuant to
The Real Estate and Business Brokers Act,
1946 (Ont.) c. 85. Before the Court of
Appeal he further argued that the services for which payment was claimed were such as, if rendered, brought the appellant within the term "investment counsel" as defined by The Securities Act, 1945 (Ont.) c. 22, and that he was prohibited from so acting unless registered as such under the Act.
The trial judge accepted the evidence of the appellant in preference to that of the respondent and awarded him judgment, but this judgment was reversed on appeal.
Held: That the Court of Appeal erred in over-ruling the findings of fact made by the trial judge and the appeal from its judgment should be allowed and the judgment pronounced at trial restored.
Per: Kerwin J.-The principles upon which an
Appellate Court should proceed in dealing with the findings of a trial judge on a question of fact are those laid down in
Hontestroom (Owners) v. Sagaporack (Owners) [1927] A.C. 37 at 50; Powell v. Streatham Manor Nursing Home [1935] A.C. 243 at 264; Calderia v. Gray [1936] 1 All. E.R.
540. Held: also that the defence as to The
Securities Act should not be entertained, as it was not pleaded at the trial as required by the Ontario Rules of Practice, r.
143, and since a factual foundation was not clearly established in the evidence, no effect should be given to the allegation of illegality at this stage of the proceedings.
further that as to The Real Estate and
Business Brokers Act, the services rendered by the appellant did not fall within the section since it was not the legislative intention to include in the term "business", the shares of an incorporated company.
Macaura v. Northern Assurance Co. Ltd.,
[1925] A.C. 619 at 626, and the services rendered were in reference to the contem- APPEAL-Concluded plated purchase of stock in the companies and not to the purchase of the business owned by such companies. RocE ARSTON.......................... 3.-Appeal to judge of the Supreme Court of Canada from an order of an Exchequer Court judge made in Chambers-Jurisdiction Exchequer Court Act, R.S.C. 1927 c. 84, s. 82(1) (b) as enacted by S. of C. 194.9, c. 5, s. 2 (2nd Sess.). The appellant moved under section 82(1) (b) of the Exchequer Court Act for leave to appeal to the Supreme Court of Canada from an order of the President of the Exchequer Court made in chambers dismissing its application made under Exchequer Court rule 130 to examine for discovery, as an officer of the Crown, the chief engineer of the International Pacific
Salmon
Fisheries
Commission. Held that assuming a judge of the Supreme Court of Canada had jurisdiction, although the order in the Exchequer Court was made in chambers, it was clear from the fact that leave of a judge of the Supreme Court was necessary, that it was never intended that decisions of the Exchequer Court on ordinary questions of practice and procedure should be subject to revision by the Supreme Court of Canada. There was no indication that anything out of the ordinary was decided on the motion in the Exchequer Court. CoNsTaucrioN V. THE ........ 4.-Criminal law-Abortion-Appeal by Crown from acquittal-Statement by accused rejected by trial judge-Onus of Crown not discharged-Criminal Code ss. 803, 1023(3) ....... .801 See 8.
ASSESSMENT AND TAXATION- AUTOMOBILE-Automobiles-Injury to Gratuitous Passenger-"Gross Negligence or wanton and wilful misconduct"-Construction of phrase as used in The Vehicles Act, 1945 (Sask.) c. 98, s. 141 (2).
The terms "gross negligence" and "wilful and wanton misconduct" as used in s. 141(2) of The Vehicles Act, 1945 (Sask.) c. 98, do not mean the same thing. Each phrase is to be construed as standing alone and neither is to be taken as connoting criminal negligence. Per: Kerwin J.-Where by statute the liability of a municipal corporation has been limited to cases of gross negligence, this Court has declined to define that expression other than to say that it might be given the meaning of "very great negligence". Kingston v. Drennan, 27 Can. S.C.R. 46; followed in German v. City of Ottawa, 56 Can. S.C.R. 80 and Holland v. City of Toronto, [1927] S.C.R. 242; 59 O.L.R. 628. This Court has also declined to define "gross negligence or wilful and wanton misconduct" in a case arising under legislation in Nova Scotia similar to s. 141(2) of AUTOMOBILE-Continued the Saskatchewan Vehicles Act. In connection with the latter statute it is sufficient to say that gross negligence may be stated to be very great negligence and it must be left to the trial judge in each case to put the matter to the jury in that way with such reference to the evidence as may be necessary.
The remarks of Duff C.J. in
McCullock v. Murray S.C.R. 141, approving the statement of Chisholm C.J.
in the same case (16 M.P.R. 45), followed.
Short v. Rush [1937] 2 W.W.R. 191 at 200, followed in Lloyd v. Derkson [1937] 3
W.W.R. 504 and Heck v. Braun [1939] 2
W.W.R. 1, questioned by Kerwin J. and distinguished by Estey and Cartwright JJ.
Per: Estey and Cartwright JJ.-Whether conduct should be classified as "negligence",
"gross negligence", or "wilful and wanton misconduct", is a question of fact to be determined in the circumstances of each case.
It cannot however be said that a jury must find in every case that the driver's conduct amounts to a reckless disregard of consequences before they can find that conduct constitutes gross negligence. Judgment of the Court of Appeal for Saskatchewan, [1950] 1 W.W.R. 780, affirmed.
COWPER................
2.-Minor-Automobile-Truck borrowed from father with permission-Collision- Whether father liable-Application of 1064 of the Civil Code-Meaning of expression
"unable to prevent the damage" in 1054- Motor Vehicles Act, R.S.Q. 1941, c. 142, s.
Appellant's son, a minor of twenty and one-half years, borrowed his father's truck with his permission and collided with a stationary automobile injuring one of its occupants. Both father and son were sued.
The action was maintained against the son, who did not appeal, but dismissed against the father. In the Court of Appeal, plaintiff succeeded in having the father condemned jointly and severally with the son. Held: The action against the father should be dismissed since he rebutted the presumption of Art. 1054 of the Civil Code by proving that his son was an experienced driver, that he had given him a good education and had properly supervised him, thus establishing that in lending him the truck he acted prudently and committed no fault. The presumption of s. 53 of the
Motor Vehicles Act was also destroyed by the evidence as to the competency of the son as a driver.
Held further, that following the principle enunciated in City of
Montreal v. Watt and Scott, the father did not have to establish that it was physically impossible for him to prevent the damage
(i.e., force majeure), but that he was unable to prevent it by reasonable means (i.e., that there was absence of fault on his part.)
Per Kerwin, Tashcereau, Rand and Fauteux JJ.: This action could not be based on the fact that damage was caused by a thing under the father's care since the cause of the accident was the intervention of some
AUTOMOBILE-Concluded human agency; nor could it be based on any master and servant relationship since the son was not acting in his father's interest. ALAIN v. IIARDY................... BILLS OF LADING - Shipping - Ship time-chartered-Whether owner of ship lost at sea liable for cargo-Consignee of goods- Bill of lading- Whether lien de droit between owner of ship and owner of goods- Bills of Lading Act, R.S.C. 1927, c. 17, 8. 2 ................................. CIVIL CODE-Article 335 (Interdiction)............................ 554 2.-Article 365 (Disabilities of Corporations)......................... See WILLS 2.
3.--Article 409 (Accession)......... 659 4.- Article 766 (Wills)............ 5.- Articles 857, 858 (Probate) ..... 6.-Articles 892, 894, 896 (Revocation of Wills)...................... 7.-Articles 984, 986 (Validity of Contracts)..................... * 554 8.- Article 1011 (Lesion) .......... 9.-Article 1025 (Alienation of a thing certain)......... ....
........ 10.-Articles 1053,
(Quasi- Offences)....................... 11.-Article 1054 (Quasi-Offences).. 540 12.- Article 1472 (Sale) ........... 13.- Article 1498 (Delivery)........ 659 See CoNrRACT 5.
CODE OF CIVIL PROCEDURE-Article 44 (Jurisdiction).................... See WIaS 3.
CONSTITUTIONAL LAW-Constitutional Law-Jurisdiction, Delegation of-Whether Federal Parliament or Provincial Legislature can transfer powers vested exclusively in the one to the other-The British North America Act, 1867, ss. 91, 92 and 94. Held: (Affirming the judgment of the Supreme Court of Nova Scotia en banc) that the contemplated legislation of the Legislature of the Province of Nova Scotia, Bill No. 136 entituled "An CONSTITUTIONAL LAW-Continued
Act Respecting the Delegation of Jurisdiction from the Parliament of Canada to the Legislature of Nova Scotia and vice versa" if enacted, would not be constitutionally valid since it contemplated delegation by Parliament of powers, exclusively vested in it by s. 91 of the British North
America Act, to the Legislature of Nova
Scotia; and delegation by that Legislature of powers, exclusively vested in Provincial
Legislatures under s. 92 of the Act, to
Parliament.
The Parliament of Canada and each Provincial Legislature is a sovereign body within its sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matters assigned to it under s. 91 or s. 92, as the case may be.
Neither is capable therefore of delegating to the other the powers with which it has been vested nor of receiving from the other the powers with which the other has been vested. C.P.R. v. Notre Dame de Bonsecoeurs [1899] A.C. 367 per Lord Watson and
Lord Davey, during the argument as quoted by Lefroy in Canada's Federal
System, 1913, p. 70 note 10(a), followed.
Hodge v. The Queen 9 App. Cas. 117; The
Chemical Reference [1943] S.C.R. 1, distinguished.
A.G. or NovA
CANADA....................
2.-Constitutional law-National Emergency Transitional Powers Act, 1945, S. of
C. 1945, c. 25-Order-in-Council under said
Act, validity of-War Measures Act, R.S.C
1927, c. 206. P.C. 1292, adopted on April
3, 1947, by the Governor General in Council purporting to act under the powers conferred by the National Emergency Transitional Powers Act, 1945, after reciting that it was "necessary, by reason of the continued existence of the national emergency arising out of the war against Germany and
Japan, for the purpose of maintaining, controlling and regulating supplies and prices to ensure economic stability and an orderly transition to conditions of peace", made provision for the vesting in the Canadian Wheat Board of all oats and barley in commercial positions in Canada, the closing out and termination of any open futures contracts relating to such grain and the prohibition of its export. The order also substituted for Part III of the Western
Grain Regulations new Regulations which declared that all oats and barley in commercial positions in Canada, except such as were acquired by the owner from the
Canadian Wheat Board or from the producers thereof on or after March 18, 1947, were thereby vested in the Board, which was directed to pay an amount equal to the maximum price at which these grains might have been sold on that date. On
April 3, 1947, respondent Nolan had, in commercial positions in Canada, 40,000 bushels of barley, the warehouse receipts for which were held on his behalf by the respondents Hallet and Carey Limited.
Nolan declined to deliver his barley or the
CONSTITUTIONAL LAW-Continued documents of title thereto to the Wheat Board and contended that the National Emergency Transitional Powers Act 1945, did not authorize the Goveror aeneral in Council by enacting Part III of the Western Grain Regulations or otherwise to divest him of title to his barley. The trial judge and the Court of Appeal held that the order-in-council exceeded the powers conferred by the Transitional Act. Held: (Affirming the judgment appealed from) Kerwin and Estey JJ. dissenting, that the provisions of P.C. 1292, dealing with the compulsory taking and vesting in the Canadian Wheat Board of all oats and barley in commercial positions in Canada and fixing the compensation to be paid therefor, were ultra vires of the Governor General in Council as not falling within the ambit of the powers conferred by s. 2 of the National Emergency Transitional Powers Act, 1945.
Apart from the fact that the power to appropriate property was not given in the Transitional Act, either in express terms or by plain implication from the language employed in a. 2, the omission of the provisions dealing with the subject contained in the War Measures Act from the Transitional Act, 1945, is a plain indication that it was not intended that the Governor in Council should be vested with any such power. Chemicals 11943] S.C.R. 1; Co-operative Committee on Japanese Canadians v. A.G. of Can. [1947] A.C. 87; Western County Ry. Co. v. Windsor and Annapolis Ry. Co. (1882) 7 A.C. 178 and A.G. v. Horner 14 Q.B.D. 245 and 11 A.C. 66 referred to. NoLAN... 3.-Constitutional law-Railways-Taxation of C.P.R. in respect of its branch lines in Saskatchewan-"Canadian Pacific Railway"-Efect of clauses 16 and 14 of contract between Dominion and C.P.R. in schedule to chapter 1 of S. of C. 1881-Saskatchewan Act, S. of C. 1905, c.-42, s. 24-Act respecting the Canadian Pacic Railway, S. of C. 1881, c. 1-Constitutional Questions Act, R.S.S. 1940 c. 72. The Saskatchewan Act (S. of C. 1905, c. 42) which constituted the Province of Saskatchewan provides that the powers granted to that province shall be exercised subject to the provisions of clause 16 of the contract set forth in the schedule to Chapter 1 of the Statutes of 1881 (Canada), being an Act respecting the Canadian Paciic Railway, by which statute the contract was approved and ratified.
Clause 16 provides that: "The Canadian Pacific, and all stations and station grounds, work shops, buildings, yards and other property, rolling stock and appurtenances required and used for the construction and working thereof, and the capital stock of the Company, shall be forever free from taxation by the Dominion, or by any province hereafter to be established, or by any municipal corporation therein . .
Clause 14 gave to the Company the right to construct and work CONSTITUTIONAL LAW-Continued branch lines of railway from any point along its main line to any point or points within the territory of the Dominion. The appellant company contended that the exemption extended to all municipal taxation upon and in respect to properties both upon its main line and upon branch lines constructed under the powers conferred by clause 14.
Held: (Affirming the Court of
Appeal) that the exemption from taxation provided by clause 16 of the contract does not apply to the stations and station grounds, work shops, buildings, yards and other property, rolling stock and appurtenances situate on the branch lines built in
Held: (Reversing the Court of
Appeal) Estey J. dissenting, that the exemption extends to the so-called business taxes referred to in the questions submitted to the Court in respect of the business carried on as a railway upon, or in connection with, the railway as described in the said sections 1, 2 and 3 of 37 Victoria, c. 14, and upon such other properties situate upon its branch lines in Saskatchewan as are entitled to the benefit of the exemption from taxation under clause 16 as being required and used for the construction and working of that portion of the line referred to in the said sections.
C.P.R. v. A.G.
4.-Constitutional Law-Public bus service engaged in interprovincial and international transportation of passengers-Whether an
"undertaking" within the meaning of the
British North America Act, s. 92 (10) (a)- Whether such an operation affected by
Provincial Legislation-The New Brunswick Motor Carrier Act, 1937, c. 43 and amendments; The Motor Vehicle Act, 1934, c. 20 and amendments. A public bus service engaged in the interprovincial and international transportation of passengers is an undertaking within the meaning of section
92(10) (a) of The British North America
The appellant, an American citizen, operated a public bus service between
Boston, U.S.A. and Halifax, Nova Scotia.
The New Brunswick Motor Carrier Board, purporting to act under the provisions of
The Motor Carrier Act, 1937, c. 43 as amended, granted him a licence to operate his buses over the province's highways connecting the State of Maine with the Province of Nova Scotia but not to embus or debus passengers within New Brunswick.
The appellant having refused to be bound by the restriction, an injunction was sought and it was ordered that three questions be raised for the opinion of the
New Brunswick Court of Appeal, viz:
1. Are the operations or proposed operations of the defendant within the Province of New
Brunswick or any part or parts thereof
CONSTITUTIONAL LAW-Concluded prohibited or in any way affected by the provisions of The Motor Carrier Act (1937) and amendments thereto, or orders made by the said Motor Carrier Board? 2. Is 13 Geo. VI, c. 47 (1949) intra vires of the legislature. of the Province of New Brunswick?
Are the proposed operations prohibited or in any way affected by Regulation 13 of The Motor Vehicles Act, c. 20 of the Acts of 1934 and amendments, or under ss. 6 or 53 or any other sections of the Act?
The Supreme Court of New Brunswick, Appeal Division, having answered the three questions in the affirmative, on appeal to this Court. Held: that the questions should be answered only to the extent necessary to dispose of the issues raised by the pleadings and for that purpose the answer made is that it is not within the legislative powers of the Province of New Brunswick by the statutes or regulations in question, or within the powers of The Motor Carrier Board by the terms of the licence granted by it, to prohibit the appellant by his undertaking from bringing passengers into the province of New Brunswick from outside said province and permitting them to alight, or from carrying passengers from any point in the province to a point outside the limits thereof, or from carrying passengers along the route traversed by its busesifrom place to place in New Brunswick, to which passengers stop-over privileges have been extended as an incident of the contract of carriage.
Rinfret C.J. answers the first question as follows:-"The operations or proposed operations of the defendant-appellant within the Province of New Brunswick or any part or parts thereof, as above set forth, are not prohibited or in any way affected by the provisions of The Motor Carrier Act, 1937 and amendments thereto. On the contrary, such operations or proposed operations are specifically provided for in Regulation 13, made under authority of The Motor Vehicle Act. The attempt to restrict them in the Order made by the Motor Carrier Board is illegal and ultra vires."
and declines to answer the second and third questions. Judgment of the Supreme Court of New Brunswick, Appeal Division, (1950) 26 M.P.R. 27, reversed. v. S.M.T. LTD.... 887 Crown - Coal Subsidy-Emergency Coal Production Board notice to producers an offeracceptable by performance - Regulations having force of law-Whether powers conferred upon Board exercised. The Emergency Coal Production Board, in view of the national emergency existing in respect of the production of coal, was under the authority of the War Measures Act, created by Order-in-Council P.C. 10674, November 23, 1942.
The Board, under the direction of the Minister, was authorized to take measures necessary to maintain and stimulate the production of Canadian coal, among others, the rendering of financial CONTRACT-Continued assistance to such mines as it deemed proper to ensure their maximum or more efficient operation provided that in no case should it render such assistance where the net profits exceeded standard profits within the meaning of the Excess Profits Tax Act.
Prior to April 1, 1944, the Board restricted payment of subsidies to mines being operated at a loss to an amount which in its opinion would permit a profit of 15 cents a ton. Then because of the increased wages and the cost of living bonus the operators had been called upon to pay, it by Circular
Letter "C.C. 152" notified operators in the domestic fields of Alberta that it had approved payment of a flat production subsidy conditioned on an operator satisfying the
Board that it was unable to absorb the increased costs and submitting specified data in support of its claim.
The maximum subsidy for the Lethbridge area it fixed at
35 cents per ton and reserved to itself determination of the rate of subsidy to be advanced in each case.
The appellant claimed payment on the basis of 35 cents per ton instead of at the rate of 12 cents and
16 cents paid by the Board.
Held: the claim that the Board's Circular Letter C.C.
152 and the minutes of its meeting of April
18, 1944, constituted an offer to pay a subsidy of 35 cents per ton which appellant by extending its operations and increasing production accepted fails because the documents relied on do not constitute an offer in such terms.
Held, also that the evidence did not establish an intention on the part of the Board to make an offer which could be accepted by performance.
Held, that as to the plea the appellant had established its claim by reason of its compliance with regulations having the force of law-P.C.
10674 had the force of law, but there was nothing in it, standing by itself, upon which the appellant's claim could be founded.
Assuming, without deciding, that it empowered the Board to pass a general order of the nature contended, nothing in the record indicated that the Board had attempted to exercise such power.
v. THE KING
2.-Contract-Conflicting Terms -Agreement providing option exercisable within specified time followed by covenant failure to exercise option rendered optionee liable- Rule of Construction-Measure of Damages for Breach of Covenant. An option agreement on petroleum and natural gas in certain lands declared by clause one, that the optionor granted the optionees an option exercisable within the time and in the manner thereinafter set forth. Clause two provided that the option might be exercised within a specified time by the optionees erecting the necessary machinery on the said lands, commencing the drilling of a well, and delivering to the optionor notice in writing of the exercise of the option.
In clause three the optionees covenanted to exercise the option within the period
CONTRACT-Continued prescribed in clause two and it was provided that on their failure so to do the optionor, despite the lapse of the option, would be entitled to exercise any remedies legally available for breach of the covenant, which the parties agreed, was given and entered into by the optionees as the substantial consideration for the granting of the said option.
Held: (Locke J. dissenting), that there was no repugnancy between clauses one and three of the agreement. Clause three did not destroy clause one, the two were to be read together. Forbes v. Git [1922] A.C. 256 at Held: also that the appellant was entitled to more than nominal damagesthe proper measure was the sum necessary to place him in the same position he would have been in if the covenant had been performed.
Wertheim v. Chicoutimi Pulp Co., [1911] A.C. 301 at 307. In this case, the payment of the $1,000 the appellant was compelled to pay for a further renewal of the head lease, resulted from the respondent's breach of the covenant. Hadley v. Baxendale, (1854) 156 E.R. 145, applied. Cunningham v. Insinger, [19241 S.C.R. 8, distinguished.
Per: Locke J., dissenting- The earlier clause, expressed in the terms of a grant to the optionees, gave them the option to acquire the sub-lease if they wished to do so, while the subsequent clauses purported to deprive them entirely of this right and render it obligatory upon them both to exercise the option and to execute the sub-lease. The right granted and the obligations imposed being totally inconsistent, the former should prevail and the latter be rejected.
Forbes v. Git, [1922] 1 A.C. 256 at 259; Git v. Forbes, [1921] 62 Can. S.C.R. 1 at 9; Bateson v. Gosling, (1871) L.R. 7 C.P. 9 at 12. Where the language employed in an agreement is free from ambiguity the Court must give effect to it though the result may not be that which both parties contemplated. Directors of Great Western Ry. Co. v. Rous, (1870) L.R. 4 H.L.C., 650 at 660. COTTER v. PETROLvrms LTD....... 3.-Contract by correspondence-Sale of Farm Land-Offer by Post-Acceptance- Reasonable Time. In negotiations for a sale conducted by correspondence an offer unlimited by its terms as to time must be accepted within a reasonable time. In the circumstances of this case the acceptance made on December 10 of the offer contained in the letter of November 15, was not made within a reasonable time. Per: Estey J.-What will constitute a reasonable time depends upon the nature and character of the subject matter and the normal or usual course of business in negotiations leading to a sale thereof, as well as the circumstances of the offer including the conduct of the parties in the course of the negotiations. Manning v. Carrique, (1915) 54 O.L.R. 453. v. CLARK.......................... CONTRACT-Continued
4.-Interdict-Mental incapacity-Feeblemindedness-Mortgage loan secured by woman three years before her interdiction- Notoriety-Whether valid consent given- Whether contract null-Whether monies must be offered back-Arts. 35, 984, 986, 1011
C.C.
The curator to an interdicted woman sought the annulment of a mortgage loan, secured by the woman nearly three years before her interdiction for imbecility.
grounds of annulment alleged were (1)
that she had been the victim of lesion and fraud; (2) that the condition for which she was later interdicted existed notoriously at the time of the contract; and that (3), in any event, she was too mentally feeble at the time to give a valid consent to the
The action was allowed by the trial judge but dismissed by the Court of
Appeal chiefly on the ground that her mental condition was not notorious at the time. Held: The appeal should be dismissed as there had been nothing done to put the parties back in the position they occupied before the loan, and the money advanced in good faith had not been repaid.
Per Rinfret C.J.: There was ample proof of her mental incapacity and even if notoriety were not proven, she was unable to contract as under Arts. 984 and 986 C.C.
a person who, by reason of mental weakness, is unable to give a valid consent, is incapable of contracting.
The contract should therefore be subject to annulment; however, since the monies loaned were not tendered back to the lenders and since feebleminded persons are not mentioned in Art.
1011 C.C., the exception contained in that
Article is of no avail to her, therefore the action should be dismissed.
Per Taschereau J.: Under Art. 335 C.C. mere mental incapacity or imbecility is not enough, it must also be shown that it was notorious, that is, generally known, not only to experts and a few friends but also to the people in the neighbourhood or locality.
There was no proof of such notoriety in this case. But assuming that the act was signed when the borrower was in a state of mental incapacity,-the nullity being only relative-the parties must be replaced in the position they occupied prior to the contract, i.e., the moneys loaned must be returned; otherwise the act remains valid.
The exception in Art. 1011 C.C. only applies to acts made by interdicts, minors or married women during their interdiction, minority or marriage, and since the borrower was not in either of these three categories at the time and since no such payment or tender was made, the action should be dismissed. Per Rand J.: Taking the facts to be that the borrower at the time the act was passed was incapable of appreciating its import, but that her condition was not notorious, the rule is that the act was null.
But the nullity is relative and the right to set aside the contract on the ground of mental incapacity is subject to the condition that what was received must be re- CONTRACT-Continued turned.
As that was not offered here, the action fails. Per Cartwright and Fauteux JJ.: There was no proof of lesion and, in any event, only minors can plead it. Nor was there any proof that if there were fraud, the lenders were parties to it or knew of it, and furthermore, to succeed on this point, the borrowers had to tender the moneys back (Latrielle v. Gouin [19261 S.C.R. 558). As to the notoriety, there was no proof of it, but assuming the notoriety, it is doubtful whether the trial judge exercised judicially his discretionary power to annul in view of the lenders' good faith.
As to whether the borrower was insane or mentally incapable of giving a valid consent, it was not established that she was insane, but whether insane or merely feeble-minded, she cannot have the act annulled since she did not offer to return the moneys. The exception contained in Art. 1011 C.C. is of no help to her as it applies only to minors, married women or interdicts.
RoscoN v. DuBois .............. 5.- Sale-Immovable property-No immediate tradition-Civil fruits-Possessor in good faith-Arts. 409, 1025, 1472, 1498 C.C. In 1942, the appellant authorized an agent to sell an immovable property at Jonquiere, P.Q.
A willing buyer, the respondent, was found but the appellant refused to sign the deed tendered.
An action en passation de titre was brought and was maintained by the Superior Court and the Court of Appeal with certain modifications to the contract, which had been produced with the action and which had been signed by the respondent. In 1944, following the judgment of the Court of Appeal, the appellant signed the contract which retained the original provision that the purchaser would be entitled to possession ninety days after the signature of the deed.
The appellant kept possession up to the expiration of the ninety days following his signature as vendor and then claimed and received all the monthly instalments alleged to be due since present action, sought to recover the civil fruits of the property as from the date of his own signature as purchaser in 1942. The action was maintained by the Superior Court and by a majority in the Court of Appeal. Held (The Chief Justice and Rand J. dissenting), that by virtue of Art. 1472 C.C. the sale was made perfect in the year 1942 by the acceptance of the offer of sale; delivery of the property was not needed to complete the sale since what was alienated was a thing certain and determinate (Art. 1025 C.C.).
The judgment of the Court of Appeal in 1944 did not have the effect of creating new rights but rather to declare the pre-existing rights of the parties as of 1942. Therefore, as the respondent had had the ownership of the property since 1942, he was entitled to the civil fruits from that date by virtue of Arts. 1498 and 409 C.C., and the appellant could CONTRACT-Concluded not be considered a possessor in good faith within the terms of Art. 411 C.C. Zusmw v. TREMBLAY....................
6.-Contracts, prohibited - Charter-Party
- Order-in-Council requiring Shipping
Board's approval as condition precedent ignored - Whether expiry of Order validated contract. Section 9 of Order-in-Council
P.C. 6785 of July 31, 1942, provided that all parties proposing to charter any vessel exceeding 150 tons gross register, other than a fishing vessel, "shall submit in advance full particulars" for the approval of the Canadian Shipping Board and that
"no such charter as aforesaid shall be made without such approval".
The Orderin-Council was revoked at the end of 1946.
On March 30, 1946 the appellant and respondent entered into a written agreement which purported the charter by the appellant to the respondent of a 4,700 ton vessel for a period of 84 months. The respondent took delivery of the ship on
April 10, 1946 and operated and paid for it until April 15, 1950, when it notified the appellant that the agreement was a nullity, having been made in contravention of
Order-in-Council 6785, and that it would no longer continue to operate or be responsible for the ship.
The appellant thereupon brought an action for a declaration that the agreement was a valid and subsisting one, and for specific performance.
Before this Court it put its case on the single ground that the charter party was subject to a condition precedent that the approval of the Canadian Shipping Board under Order-in-Council 6785 should be obtained and, that Order having expired at the end of 1946, that condition dropped, leaving the charter party in full force ab initio. Held: that, as Order-in-Council
6785 required that the terms of such a charter party be submitted "in advance"
and approved by the Board and that "no such charter party as aforesaid shall be made without such approval"; there was no authority to give a retroactive approval.
Assuming that a binding contract subject to such a condition could be made, the effect of the regulation was that no performance or execution of it could take place before that approval.
& LTD..........
COPYRIGHT - Copyright - Infringement-Performance of musical work at
Agricultural-Industrial Fair - Admission
Fee Charged-Whether "performance without motive of gain"-The Copyright Act,
R.S.C. 1927, c. 82, s. 17(1) (vii). The
Copyright Act, R.S.C. 1927, c. 32 as amendedby S. of C. 1938, c. 27, s. 2 provides that.
Copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyrght, does anything the sole right to do which is by this Act conferred on the owner of the copyright:-Provided that the following
COPYRIGHT-Concluded acts shall not constitute an infringement of copyright:-(vii) The performance without motive of gain of any musical work at any agricultural, agricultural-industrial exhibition or fair which received a grant from or is held under Dominion, provincial or municipal authority, by the directors thereof. Held: In construing a Federal statute the English version is to be read with the French version; The King v. Dubois, [1935] S.C.R. 378 at 402-3; Commissioner of Patents v. Winthrop, [1948] S.C.R. 46 at 54. Section 17(1) (vii) of the Copyright Act when so construed is to be read as follows: "The performance without motive of gain of any musical work at any exhibition or fair" of the types therein described.
(Decision of the Court Appeal,
[19501 O.W.N.
126, reversed). AssN.
rn. v. WESTERN FAIR ASSN.. . 596 COVENANT - Real Property-Restrictive Covenant-Covenant not to sell land to persons of Jewish or Negro race-Validity -Certainty.
A restrictive covenant in a deed drawn in 1933 provided that the lands therein described should never be sold to any person of the Jewish, Hebrew, Semitic, Negro or coloured race or blood and that the restriction should remain in force until August 1, 1962. A motion made in the Supreme Court of Ontario for an order declaring the covenant invalid was dismissed, the Court holding the covenant valid and enforceable. The decision was affirmed by the Court of Appeal. Held: (Locke J. dissenting), that the appeal should be allowed.
Per Kerwin, Taschereau, Rand, Kellock and Fauteux JJ.- The covenant has no reference to the use or abstention from use of the land. Per Kerwin and Taschereau JJ.-It would be an unwarrantable extension of the doctrine expounded in Tulk v. Moxhay, 2 Phil. 774; 41 E.R. 1143, or in subsequent cases, to say that it did. Per Rand, Kellock and Fauteux JJ.-By its language the covenant is not directed to the land or some mode of its use but to transfer by act of the purchaser and on its own terms it fails in annexation to the land.
On its true terms it is a restraint on alienation.
Per Rand, Kellock, Estey and Fauteux JJ.-The covenant is void for uncertainty; from its language it is impossible to set such limits to the lines of race or blood as would enable a court to say in all cases whether a proposed purchaser is or is not within the ban. Clavering v. Ellison 11 E.R. 282 at 289; Clayton v. Ramsden, [1943] A.C. Locke J., dissenting, would have dismissed the appeal on the ground that the application of the equitable principle in Tulk v. Mozhay (1848) 2 Phil. 774, not having been raised before Schroeder J., and the Court of Appeal having in the exercise of its discretion declined to consider the point on that ground, this Court should not interfere in a matter that was one of practice COVENANT-Concluded in the Ontario courts.
As to the remaining points of law he agreed with the reasons o the Chief Justice of Ontario.
NoBLE v.
CRIMINAL LAW-Criminal law-Murder
-Trial by jury-Misdirection-Pleas of self-defence, provocation and drunkenness- Onus probandi-Reasonable doubt-Evidence-Use of word "establish" in charge is potentially dangerous-Intent in drunkenness
-Criminal Code, ss. 268, 1025(1).
Appellant was convicted of murder after a trial by jury. He had pleaded self-defence, provocation and drunkenness.
His appeal was unanimously dismissed by the Court of Appeal.
Held: The appeal should be allowed and a new trial ordered.
That when dealing with the specific pleas of seif-defence and provocation, there was a grave departure by the trial judge from the general principles he had laid down in the opening part of his charge with respect to the burden of proof-using the word
"establish" in such a way that the jury could reasonably understand it to mean
"if it was established by the accused"and that it was never stated to the jury, either expressly or by clear implication, that, if they were in doubt as to whether the act was provoked, it was their duty to reduce the offence from murder to manslaughter. Held: A direction to the jury
(which could reasonably be, by them, related to the accused) that, if on one point they found the evidence of a witness to be deliberately untrue, they could not believe him in any other particular, was a misdirection of a most serious nature and tantamount to an encroachment upon the right of full answer and defence.
The validity of the defence of drunkenness is dependent upon the proof that the accused was at the time of the commission affected by drunkenness to the point of being unable to form not any intent but the specific intent to commit the crime charged.
Held: As it is the duty of a juror to disagree if unable conscientiously to accept the views of his colleagues, it is wrong m law to tell the jurkr that they
"must agree upon a verdict".
2.-Criminal law- Evidence
-Defence of denial and of alibi-Charge of trial judge - Misdirection - Non-direction
-Substantial wrong or miscarriage of justice
- Accomplices
Corroboration - Evidence of previous offence-Interference with crossexamination of witness - Circumstantial evidence - Reasonable doubt - Jurisdiction this Court can review decision stating that there was no substantial wrong or miscarriage of justice-Criminal Code, as. 259, 268, 1014 (1) (2), 102S, 1025.
Appellant was convicted of murder after a trial by jury. His defence was a denial that he had anything whatever to do with the matter. He testified that he was not at the time of the crime with the deceased and the three principal Crown witnesses as to all of whom it was open to the jury to take the view that they were accomplices. His conviction was affirmed by the Court of Appeal.
The Crown called evidence in rebuttal of statements made by a defence witness in the absence of the accused contradictory of the evidence given by such witness at the trial. The trial judge not only failed to explain to the jury that such contradictory statements were no evidence of the truth of the facts stated therein and must be considered solely as a test of the credibility of such witness, but gave the jury to understand that this rebuttal evidence had evidentiary value and might be regarded -by them as corroborative of the evidence of the alleged accomplices. that, particularly as the trial judge had failed to instruct the jury that before evidence can be considered as corroborative within the meaning of the rule requiring corroboration of the evidence of an accomplice it must tend to show not merely that the crime has been committed but that the accused committed it, such nondirection and misdirection were fatal to the validity of the conviction. Crown counsel, in re-examination of a Crown witness, for the purpose of refreshing his memory, read to him from the transcript of his evidence at the preliminary hearing and elicited evidence that the accused had made a threat to such witness including a statement which would lead the jury to believe that on another occasion the accused had shot another person.
Held: that, following the King v. Laurin, the deposition should not have been read to the jury. Quaere: Whether under the circumstances of the case it was permissible to refer to the deposition at all for the purpose of refreshing the memory of the witness.
Held further: The trial judge should have, in this case in the exercise of his discretion, excluded any evidence indicating that the accused had made such a statement, even though it might have been relevant to the issue of the guilt or innocence of the accused as being evidence of an attempt, on his part, to suppress evidence by means of a threat; it was wrong to admit such evidence which was highly prejudicial to the accused and in this case had substantially no probative value.
(Noor Mohamed v.
The King; Maxwell v. Director of Public Prosecutions and Rex. v. Shellaker referred to.) The interference of the trial judge with the right of the defence to cross-examine one of the Crown witnesses (a right included in the right to make full answer and defence any improper interference with which will usually be a sufficient ground for quashing a conviction) did not produce any substantial wrong or miscarriage of justice in the particular circumstances of this case. Held: The trial judge should have followed the usual practice of indicating to the jury the nature of the evidence in support of the INDEX alibi and telling them that, even if they were not satisfied that the alibi had been proved, if the evidence in support of it raised in their minds a reasonable doubt of the accused's guilt it was their duty to acquit him. Held: The evidence as to the cause of the victim's death being largely circumstantial, the jury should have been directed that if and in so far as they based their verdict on circumstantial evidence, they must be satisfied not only that those circumstances were consistent with the accused having killed him but also that they were inconsistent with any other rational conclusion.
(Hodge's case). Held:
Once this Court reaches the conclusion, on one or more of the points properly before it, that there has been error in law below, it is unfettered in deciding what order should be made by the views expressed in the Court of Appeal.
Therefore, the argument, that the jurisdiction of this Court in criminal matters being limited to questions of law and the court appealed from having held that notwithstanding certain errors in law at the trial there was no substantial wrong or miscarriage of justice, such decision being on a question of fact or of mixed fact and law cannot be reviewed in this Court, is not entitled to prevail.
(Brooks v. The King; Stein v. The King;
Bouliane v. The King; Schmidt v. The King and Chapdelaine v. The King referred to).
LIzorr
KNo .............
3.-Criminal law - Manslaughter - Operation of Motor vehicle - Verdict of criminal negligence-Substituted by Court of Appeal for dangerous driving-Whether dissent in Court of Appeal within section
1023 (1) of Criminal Code-Sections 285(6),
951(3), 1016(2) and 1028(1) of the Criminal Code. In 1948, appellant was tried before a jury on a charge of manslaughter arising out of the operation of a motor vehicle.
The jury, implicitly acquitting him of that offence, returned a verdict of guilty of criminal negligence.
The Court of Appeal was unanimously of the opinion that this verdict could not stand and the majority, therefore, basing itself on sections
1016(2), 951(3) and 285(6) of the Criminal
Code, substituted a verdict of guilty of dangerous driving. The minority, expressing a doubt as to whether section
1016(2) applied and not wanting to speculate as to what the jury intended by their verdict, would have acquitted the accused.
Held: (Affirming the judgment appealed from) Locke and Cartwright JJ. dissenting, that the appeal should be dismissed as the dissent in the Court of Appeal was not on any ground of law dealt with by the majority, and upon which there was a disagreement in the Court of Appeal.
(Expressing a doubt is not dissenting).
Per the Chief
Justice, Taschereau and Fauteux JJ.: As an appeal under s. 1023(1) of the Criminal
Code is limited to grounds of law alone, upon which there were points of difference in the Court of Appeal, and as the ground raised by the minority, assuming that it was a ground of law alone, was not considered by the majority because of the view they took of the case, there was, therefore, no disagreement in the Court of Appeal on a question of law alone and this Court has, consequently, no jurisdiction to entertain the appeal.
Per Locke and Cartwright JJ. (dissenting)
: The appeal should be allowed and a new trial ordered as the Court of Appeal had no right to substitute a verdict of dangerous driving under 1016(2) since, because of errors in law in the charge, this verdict could not have stood even if the jury had found it. Per Locke and Cartwright JJ. (dissenting): To give this Court jurisdiction to entertain an appeal under s. 1023(1), it is not necessary that the dissenting judgement upon which the appeal is based proceeded upon a point of law with which the majority also dealt and upon which the majority and the dissenting judges were in disagreement, but it is sufficient under that section that (a) there be a dissenting judgment and (b) that a ground upon which such dissenting judgment is based be a question of law. RozoN v. KING............... 4.-Seditious libel-Religious pamphlet distributed by Witness of Jehovah-Seditious intention-Good faith-Whether incitation to violence is necessary element of seditious libel-Whether jury was properly charged- Criminal Code, R.S.C. 1927, c. 36, s. 183 (as amended by S. of C. c. 29, s. 4) and s. 133A (as enacted by S. of C. 1930, c. 11, s. 2).........
..............
5.-Criminal law - Habitual criminal - Statute - Interpretation - Words "liable to at least" in s. 5750 (1) (a) of the Criminal Code-Whether indicative of maximum or minimum penalty. The words "been convicted of an offence for which he was liable to at least five years' imprisonment" in section 575C (1) (a) of the Criminal Code describe an offence for which the maximum penalty perinitted by the law is imprisonment for five years or more, and not an offence for which the law prescribes a mandatory minimum sentence of imprisonment for at least five years.
v. RoismsON
6.-Criminal law-Having instruments for making bill paper-Whether the manufacturing of paper is necessary-S. 471 (a) of the Criminal Code. The having in one's possession without lawful excuse instruments enabling one to fashion or change a piece of white paper to resemble Bank of America's bill paper, is an offence within the meaning of section 471 (a) of the Criminal Code.
v. 537 7.-Murder--Use of revolver subsequent to commission of robbery-Whether accused in flight-No pursuit-Interpretation of s.
£60(d) of the Criminal Code as enacted by
S. of C. 1947, c. 55, s. 7. Appellant, with an accomplice, committed an armed robbery at Windsor, and then engaged a taxi driver to drive them to London.
The latter became suspicious and went into a service station in Chatham to phone the police, but appellant accompanied him and he was unable to do so.
He made another attempt at a service station in London and succeeded in lifting the telephone receiver and asking for the police. Appellant, who had accompanied him, produced a Colt revolver and ordered everyone into the grease-pit at the rear of the station. The taxi driver escaped through a doorway slamming a wooden door behind him. A bullet discharged from appellant's gun passed through the doorway killing a person whose presence was unknown to appellant.
It was contended by appellant that the gun was discharged accidentally when he slipped on the floor, and that the trial judge was wrong when he charged that appellant was, after leaving Windsor, fleeing from lawful apprehension since there being no pursuer, it could not be said that he was pursued and, therefore, in flight.
Held (Cartwright J.
dissenting), that the appeal should be dismissed as the trial judge was justified in leaving it to the jury to find whether the accused was in flight "upon" (meaning after) the
Windsor robbery; even though there was as yet no pursuit.
It is sufficient that the pursuit be apprehended and, therefore, the matter of the flight may be subjective so far as the offender is concerned.
RowE v. KiNo...................
8.-Criminal law-Abortion-Appeal by
Crown from acquittal-Statement by accused rejected by trial judge-Onus of Crown not discharged-Criminal Code es. 303, 1023
(8). Respondent was acquitted of having unlawfully used instruments with intent to procure a miscarriage when the trial judge refused to admit in evidence a statement made by respondent on the ground that he was not satisfied that it was freely and voluntarily made. Two police officers, who were friendly with the accused, were sent out to obtain information from him.
After meeting him and having coffee with him, they asked him to come to the barracks relative to a persona )matter. He agreed.
There they told him that the girl was in a serious condition and that in all probability serious charges would arise out of it against him.
He was then given the usual warning and the statement was elicited by detailed questions, a form suggested by the accused.
The Crown appealed, but the Appellate
Division of the Supreme Court of Alberta affirmed the rejection of the statement.
Held, affirming the judgment appealed from
(Estey J. dissenting), that there was evidence before the trial judge on which he could properly find that the Crown had not shown affirmatively that the state- CRIMINAL LAW-Concluded ment had been given voluntarily, without inducement, and that, in the determination of that question, the trial judge had not misdirected himself.
THE KING V. MURA- CROWN-Contract-Crown-Coal Subsidy - Emergency Coal Production Board - Whether notice to producers an offer-acceptable by performance-Regulations having force of law-Whether powers conferred upon Board exercised................ 2.-Crown (Dom.) grant-In fee simple of surface rights including petroleum and natural gas-Reservation of royalty "from time to time prescribed"-No royalty existing at time of grant-Interest of Crown transferred to Alberta by statute-Whether province can impose royalty-Rent service-Condition subsequent. In 1913, by a grant authorized by Order in Council, respondent's predecessor in title acquired from His Majesty in the right of Canada, the surface rights to certain lands in Alberta including the petroleum and natural gas rights. The habendum clause of the patent read: ". . . to have and to hold the same unto the grantee in fee simple" while the reddendum provided for the payment of "such royalty upon the said petroleum and natural gas, if any, from time to time prescribed by regulations . . ." At the time of the grant there was no specific royalty existing. In 1930, by the Alberta Natural Resources Act, 1930, c. 3 (Can.), transfer of the then remaining lands and interests, including royalties, of the Dominion was made to the province. Held: the Chief Justice, Kerwin and Fauteux JJ. dissenting, that the reddendum is ineffective as a basis for subjecting the petroleum and natural gas taken from the said lands to a royalty imposed subsequent to the patent and is void as being a rent service lacking in certainty. Neither can a provision, void as a reservation, constitute a valid condition subsequent.
A.G. for v.
3.-Expropriation by Crown-Principles Applicable in assessing compensation - Canadian Law same as English Law-Authorities Reviewed-Expropriation Act, R.S.C. 1927, c. 64.....................
4.- Crown-Petition of Right-Claim of subsidies on sale of gasoline-P.C. 1195, February 19, 1941-Orders 010 and 010A of the Oil Controller-"in any place", meaning ambiguous-Orders misconstrued back to Commodity Prices Stabilization Corporation. By P.C. 1195 of February 19, 1941, the Oil Controller was empowered to regulate the maximum price at which oil (which term included petroleum and gasoline) might be sold "in any place, area or zone."
By Order CRO WN-Concluded
010 dated Oct. 21, 1941, the Controller directed that from and after that date
"the price to be paid in any place shall not exceed the maximum price at which such petroleum product was sold . . . in such place . . . on Sept. 30, plus any applicable price increase confirmed by this
Order . . .".
The Increase permitted in the price of grade 2 gasoline was one cent per gallon. The appellants operated service stations in Montreal, Toronto and
Windsor where they retailed grade 2 gasoline at a price lower than their competitors.
They imported their supplies from Trinidad but following the outbreak of war this source was cut off and they were forced to import from the U.S.A. at a higher cost.
In November and December 1941, the
Wartime Prices and Trade Board issued two statements of policy announcing the coming into force of a complete control of all prices, and that higher prices would not be permitted than those at which goods were actually sold during the four weeks
Sept. 15 to Oct. but that importers could continue to import in the normal manner with the assurance that appropriate subsidies would be provided.
The appellants construed the Order to restrict the price increase permitted them to one cent per gallon above the price at which gasoline ad been sold at their various "places of business", i.e., each service station. Their application for a subsidy was refused by the Commodity Prices Stabilization Corporation on the ground that there were similar goods available in Canada at a reasonable price and that the price ceiling was not on an individual but on a geographical basis and the appellants could have increased their price to that of their competitors. An appeal was taken to the
Exchequer Court of Canada where the ruling of the Corporation was upheld.
Held: that the expression "in any place"
used in the Orders of the Oil Controller of Oct. 1, 1941, and Jan. 28, 1942, was ambiguous and the appellants' application for subsidies had been refused on a misconstruction of such Orders: the judgement appealed from should therefore be set aside and the matter referred back to the Commodity Prices Stabilization Corporation to deal with such claims on the footing that the
Orders permitted the appellants to increase their prices only to the extent of one cent per gallon on Sept. 30, 1941. Joy On Co.
DAMAGES - Conflicting Terms
-Agreement providing option exercisable within specified time followed by covenant, failure to exercise option rendered optionee liable-Rule of Construction-Measure of
Damages for Breach of Covenant .......
2.-Damage-Negligence-Bottle of liquid dropped on floor of store by customer- DAMAGES-Concluded
Second customer slipped and fell-Fall of bottle witnessed by clerk who advised caretaker but did not warn customers-Whether store liable-Whether warning within functions of clerk-Art. 1053, 1054 C.C..... 470 EVIDENCE-Criminal law - Trial by jury-Misdirection-Pleas of selfdefence, provocation and drunkenness-Onus probandi-Reasonable doubt-Evidence-Use of word "establish" in charge is potentially dangerous-Intent in drunkenness-Criminal Code, ss. 263, 1025 (1) ............ 2.-Criminal law - Evidence -Defence of denial and of alibi-Charge of trial judge - Misdirection - Non-direction -Substantial wrong or miscarriage of justice -Accomplices--Corroboration-Evidence of previous offence-Interference with crossexamination of witness-Circumstantial evidence - Reasonable doubt - Jurisdiction - Whether this Court can review decision stating that there was no substantial wrong or miscarriage of justice-Criminal Code, 259, 268, 1014(1) (2), 1023, 1025. EXPROPRIATION - Expropriation by Crown-Principles applicable in assessing compensation-Canadian Law same as English Law-Authorities Reviewed-Expropriation Act, R.S.C. 1927, c. 64. The principles to be applied in assessing compensation to the owners of property expropriated the Crown under the provisions of the Expropriation Act, R.S.C. 1927 c. 64, and other Canadian statutes conferring powers of expropriation, are those long since settled by the decisions of the Judicial Committee of the Privy Council and of this Court. The laws of Canada as regards such principles are the same as the laws of England and the statements of law as enunciated by the Judicial Committee have been followed consistently in the judgements of this Court.
Vide: Re Lucas and Chesterfield Gas and Water Board [1909] 1 K.B. 16, approved and applied in Cedars Rapids Manufacturing and Power Co. v. Lacoste [19141 A.C. 569, followed in Lake Erie & Northern Ry. Co. v. Brantford Golf and Country Club 53 Can. S.C.R. 416; Montreal Island Power Co. v. Town of Laval des Rapides [1935] S.C.R. 304 at 307; Jalbert v. The King S.C.R. at 71; The King v. Northumberland Ferries [1945] S.C.R. 458, and Diggon-Hibben v. The King [1949] S.C.R. 712.
The principles enunciated in the above-cited cases should have been, but were not, applied by the lower court. Decision of the Exchequer Court (1949] Ex. C.R. 9, reversed.
Definition of "value to the owner", The King v. Thos. Lawson & Sons Ltd. [1948] Ex. C.R. 44 at p. 80, disapproved.
WooDs v. TE KING...................... Hunting accident-Jury's finding that plaintiff shot by one of two defendants but unable to say by which one-Whether finding of absence of negligence was perverse-Onus .........
INCOMPETENCY-Mental Incompetency, jurisdiction to dispense with notice to alleged incompetent-Evidence required to establish incompetency and to support order for maintenance of dependents-The Mental
Incompetency Act, R.S.O. 1937, c. 110, a. 5.
The respondent Laura May Wright, wife of the appellant, made an application under
The Mental Incompetency Act to Barlow J.
in chambers for an order declaring the appellant a mentally incompetent person, appointing a committee of his person and estate, and dispensing with service upon the appellant of the Notice of Motion and supporting affidavits.
Barlow J. having found that personal service would be harmful to the appellant, dispensed with service upon him, declared him mentally incompetent, and referred the matter to the Master to appoint a committee, and to propound a scheme for the care and maintenance of the appellant and the management of his person and estate.
The Master made a report whereby the respondent wife was appointed committee of the person, and the respondent trust company and herself committee of the estate and whereby he directed payment out of the estate of annual payments of
$10,000 and $4,500 for the support and maintenance of the respondent wife and her invalid mother respectively.
This report was confirmed by Barlow J. Appeals taken from each of the Orders of Barlow J.
were dismissed by the Court of Appeal.
Held: (Cartwright J. dissenting), that there was jurisdiction in Barlow J. to dispense with service upon the appellant of the
Notice of Motion and supporting affidavits and, sufficient evidence to warrant the finding of mental incompetency. - Re Brathwaite 47 E.R. 1104; Re Newman 2 Ch. Ch.
390; Re Webb
12 O.L.R.
194. Held:
(Kerwin J. dissenting), that on the basis of the only evidence which the Master had before him the allowances granted to the appellant's wife and mother-in-law were excessive and the matter should be remitted to him for reconsideration.
Per: Cartwright J., dissenting,--Since the enactment of The Lunacy Act, 9 Ed. VII c. 37, power to dispense with service, if it exists, must be found in The Mental Incompetency
Act, The Judicature Act, or in the rules made under one of such Acts, and since no express provision can be found in either
Act, nor in any of the rules to which reference was made by counsel, it must be concluded that service of notice in such a case is imperatively required.
If the
Court had jurisdiction to dispense with service, the matter before it was insufficient to warrant the making of either an Order dispensing therewith or an Order of mental incompetency.
83865-3
JURISDICTION-Criminal law - Evidence-Defence of denial and of alibi- Charge of trial judge - Misdirection -Nondirection-Substantial wrong or miscarriage of justice-Accomplices--Corroboration- Evidence of previous offence-Interference with cross-examination of witness-Circumstantial evidence-Reasonable doubt-Jurisdiction-Whether this Court can review decision stating that there was no substantial wrong or miscarriage of justice-Criminal Code, as. 259, 263, 1014(1) (2), 1023, 1025. ..........
................... 2.---Criminal Law-Manslaughter-Operation of motor vehicle-Verdict of criminal negligence-Substituted by Court of Appeal for dangerous driving-Whether dissent in Court of Appeal within section 1023(1) of Criminal Code-Sections 285(6), 951 (3), 1016 (2) and 1023 (1) of the Criminal Code.............................. 3.-Mental Incompetency, jurisdiction to dispense with notice to alleged incompetent- Evidence required to establish incompetency and to support order for maintenance of dependents-The Mental Incompetency Act, R.S.O. 1937, c. 110, a. 5............ 4.-Appeal to judge of the Supreme Court of Canada from an order of an Exchequer Court judge made in Chambers-Jurisdiction Exchequer Court Act, R.S.C. 1927 c. 34, a. 82 (1) (b) as enacted by S. of C. 1949, c. 5, a. 2 (2nd Sess.)................. 5.- Wills-Letter purporting to be a will -Probate in Quebec-Jurisdiction of Supreme Court of Canada-Arts. 756, 857, 858 C.C.-Art. 44 C.P............... See WILLS 3.
LABOUR LAW-Picketing - Labour - Certified union having no members among employees-No strike-Patrolling with truthful placards-Whether criminal offencecommon law nuisance-Tradeunions Act, R.S.B.C. 1948, c. 342, as. 8, 4 -Industrial
Conciliation and Arbitration Act, R.S.B.C. 1948, c. 155-s. 501 of the Criminal Code. A trade union, certified pursuant to the Industrial Conciliation and Arbitration Act, R.S.B.C. 1948, c. 155, as the bargaining authority for the employees of one of the employer's five restaurants, known as unit No. 5, failed to negotiate a collective agreement with the employer. Conciliation proceedings were then taken pursuant to the Act but the report made thereunder was rejected by the union. Although under the Act the union remained the bargaining agent for unit No. 5, it lost all its members among the employees therein; and none of the employees in unit 6 and 7 was a union member.
The union picketed these three restaurants by having two men LABOUR LAW-Concluded walk back and forth on the sidewalk in front of them each bearing a placard to the effect that the employer did not have an agreement with the union.
No strike vote was taken among the employees and in fact no strike occurred.
The action by the employer to enjoin this picketing and for damages was dismissed by the trial judge but was maintained by a majority m the Court of Appeal for British Columbia.
Held, reversing the judgemnt appealed from and restoring the j ent at the trial, that the picketing di not amount to a criminal offence or to a common law nuisance. It was authorized by s. 3 of the
Trade-unions Act, R.S.B.C. 1948, c. 342 and was unaffected by the provisions of the Industrial Conciliation and Arbitration
Act. Per the Chief Justice and Locke J.
(dissenting): The conduct complained of constituted a private nuisance which should be restrained by injunction.
LIBEL-Seditious libel - Religious pamphlet distributed by Witness of Jehovah- Seditious intention-Good faith-Whether incitation to violence is necessary element of seditious libel-Whether jury was properly charged-Criminal Code, R.S.C. c. 86, s. 188 (as amended by S. of C. 1986, c. 29,
8. 4) and s. 183A (as enacted by S. of C.
1980, c. 11, s. 92).
Neither language calculated to promote feelings of ill-will and hostility between different classes of His
Majesty's subjects nor criticizing the courts is seditious unless there is the intention to incite to violence or resistance to or defiance of constituted authority. The definition of a seditious intention given in Stephen's
Digest of the Criminal Law, 8th Ed. p. 94, to the extent that it differs from the foregoing, disapproved. Appellant was convicted by a jury of having published a seditious libel, by distributing copies of a pamphlet containing alleged seditious passages to several persons at St. Joseph, in the district of Beauce, in the province of
Quebec, contrary to s. 134 of the Criminal
Code. The conviction was affirmed by a majority in the Court of King's Bench
(Appeal Side).
An appeal to this Court was allowed on grounds of misdirection and improper rejection of evidence.
On the first hearing of this appeal, heard by a
Court of five judges, the majority ordered a new trial. Application was then made, and granted, to have the appeal reargued before a full Court of nine judges.
On the reargument, it was conceded on behalf of the Crown that the conviction should be quashed due to errors in the trial judge's charge, and the only question which remained was as to whether there was evidence upon which a properly instructed jury could find the appellant guilty of publishing a seditious libel by reason of the publication of the pamphlet here in question. Held:
(Reversing the judgment appealed from)
the Chief Justice, Taschereau, Cartwright
LIBEL-Concluded and Fauteux JJ. (dissenting)
, that the accused should be acquitted as there was no evidence, either in the pamphlet or otherwise, upon which a jury, properly instructed, could find him guilty of the offence charged. Per Rinfret C.J. (dissenting): Since the Criminal Code has dealt with the matter, the Courts must administer the law respecting seditious libel in accordance with the Canadian legislation and not in accordance with statements by commentators in England. Section
133(4)
of the Code makes it clear that the advocating of force is not the only instance in which an accused could be found guilty of a seditious intention. Moreover, it does not belong to this Court to pass upon any other passage of the charge than those referred to in the dissent in the Court of Appeal, nor to decide itself whether there was any ground for coming to the conclusion that the document was or was not a seditious libel. What the jury alone had to decide was: (a) whether the document contained matters which were producing or had a tendency to produce feelings of hatred and ill-will; (b) whether the accused pointed out these matters in order to their removal; and (c) whether he did so in good faith. This Court has no authority to decide these questions, more particularly in view of the fact that the jurisdiction of this Court in criminal cases is limited to the points of dissent in the Court of Appeal (which, in this case, were exclusively on the ground that the charge was incomplete and erroneous in certain respects and had exceeded the limitations imposed by the rules of law.) Per Taschereau, Cartwright and Fauteux JJ. (dissenting): That, although to render an intention to create ill-will and hostility between different classes of His Majesty's subjects seditious there must be an intention to incite resistance to lawfully constituted authority (and this cannot be found to have been the intention here); at common law an intention to vilify the administration of justice and bring it into hatred or contempt or to excite disaffection aainst it is a seditious intention, the Criminal Code has not altered the law in this respect and as the words of the pamphlet furnish evidence upon which a properly instructed jury could reasonably find the existence of that intention, there should be a new trial. (The history of the law relating to a seditious intention considered and the authorities reviewed).
MASTER AND SERVANT-Master and Servant - Safety of premises - Housekeeper tripped over dog on stairway -Duty of employer. The respondent had been employed for a month as housekeeper in appellant's bungalow when, on her way to the basement, she fell to the bottom of the stairway after stepping on a dog belonging to appellant and which was lying on the top step of the basement stairway. Appellant owned two dogs who, when MASTER AND SERVANT-Concluded indoors, -were either in the basement or in t.
house itself. Respondent, informed by appellant's daughter that the dogs were fond of lying on the top step of the basement stairs, never complained about that.
Appellant who was aware of this habit of the dogs did not warn respondent of any possible danger and was unaware that his daughter had done so.
The trial judge and the majority in the Court of Appeal for
British Columbia maintained the action.
Held, reversing the judgment appealed from and dismissing the action, that the claims that the lighting of the stairs was inadequate and that appellant knowingly permitted the dog to occupy the stairway were not borne out by the evidence; the as was his duty, provided premises that were reasonably safe for the carrying on of the work for which the respondent as housekeeper was employed and there was no evidence of any actionable negligence on his part.
v. Mossop...........................
MINOR-Minor - Automobile - Truck borrowed from father with permission - Collision-Whether father liable-Application of 1054 of the Civil Code-Meaning of expression "unable to prevent the damage"
in 1054-Motor Vehicles Act, R.S.Q. 1941, c. 142, s. 58.........
............
See AUroMoBIuE 2.
MORTGAGE-Mortgage - Proposed Sale of Property subject to Bond Mortgage-for
Consideration other than Cash-Condition governing Bond Holders and Court's approval
-What "fair and reasonable" to all parties interested-The Judicature Act, R.S.O. 1987, c. 100, s. 15(i). Default having been made on bonds secured by a mortgage or trust deed, a meeting of the bondholders was held to consider a plan submitted on behalf of the mortgagors which provided for the sale of the equity of redemption to a comany to be formed, payment to the bondholders of the full amount of their capital investment but not of the interest in default, and preservation of an equity to the mortgagors.
The majority of the bondholders having voted approval .an order was obtained from the Court under the provisions of s. 15(i) of The Judicature Act,
R.S.O. 1937, c. 100, approving the terms of the proposed sale.
The decision of the
Court of Appeal reversing the Order was appealed to this Court. Held: That the appeal should be dismissed.
Held: also by the majority of the Court that: (1) The proposed arrangement was in substance a sale for a consideration other than cash within the terms of s. 15(i) and the judge of first instance was right in entering upon the merits of the proposal but the section does not enable the Court to sanction a sale on terms which will yield the mortgagor a substantial part of the sale price while yielding the mortgagee only a portion of the mortgage debt and having regard to the value of
83865-31
MORTGAGE-Concluded the property the terms of the sale could not be held to be fair and reasonable within the meaning of the Act. (2) The majority bondholder m voting in favour of the plan was influenced by motives of benevolence and a regard for the moral claims of the mortgagors rather than by a consideration of the interests of the bondholders as a class and therefore the resolution approving the plan could not stand. British American Nickel Corp. v. O'Brien [1927] A.C. 369; Ex Parte Cowen. In re Cowen L.R. 2 Ch. App. 563, applied.
Locke J. agreed with the majority of the Court that the appeal should be dismissed but on the ground that the sale referred to in s. 15(i) is a sale under the power of sale contained in a mortgage, and as the matter was one of jurisdiction, the Court was without power to make the Order approving the proposed sale. HANv. Co.......... 366 MUNICIPAL CORPORATION - Municipal law-Notice of action under s. 622 of the Cities and Towns Act, R.S.Q. 1941, c. 233-When required. The notice of action required by section 622 of the Cities and Towns Act is to be given only in the cases where the damage is the result of an accident, and not, as in the present case, where the damage results from the nonexecution of an alleged contract. City of Quebec v. Boucher Q.R. (1936) 60 K.B. 152 and McConmey v. City of Coaticook [1950 S.C.R. 486 referred to.
v. TRIANGLE ..... Automobiles - Injury to Gratuitous Passenger-"Gross Negligence or wanton and wilful misconduct"-Construction of phrase as used in The Vehicles Act, 1945 (Sask.) c. 98, s. 141 (2) ........ 450 2.-Damage-Negligence-Bottle of liquid dropped on floor of store by customer-Second customer slipped and fell-Fall of bottle witnessed by clerk who advised caretaker but did not warn customers-Whether store liable-Whether warning within functions of clerk-Art. 1053, 1054 C.C.
The respondent, a customer in appellant's large departmental store in Montreal, fell on the floor after slipping on a patch of liquid substance which had been in a bottle accidently dropped by another customer.
The fall of the bottle was witnessed by a sales clerk in charge of the clock counter and engaged at the time in serving a client.
The clerk immediately telephoned the caretaking department and then resumed his sale. Within three minutes of the phone call a caretaker was on the spot, but in the interval the accident had happened.
The dismissal of the action by the trial judge was reversed by a majority in the Court of Appeal. Held (Estey and Cartwright JJ. dissenting), that it was not the clerk's duty in the performance of the work for which he was employed to do more than what he did, NEGLIGENCE-Continued and therefore the store was not liable under
1054 of the Civil Code.
(Curley v. Latreille and Moreau v. Labelle applied).
Held also,
(Estey and Cartwright JJ. dissenting), that no positive fault could be attributed to the store since it had fully provided for an elaborate and efficacious system to meet such emergencies.
Per Estey and
Cartwright JJ. (dissenting)
: It was the clerk's duty during the short interval that he knew must elapse before the arrival of the caretaker to warn customers of the danger actually known to him and his failure to do so rendered the store responsible; but if, whether by reason of express instructions or the lack of instructions, this duty did not rest on the clerk, then the store was directly liable for its negligence in failing to provide for the warning of its customers during such interval.
v. MOORE...............
......
3.-Master and Servant - Safety of premises-Housekeeper tripped over dog on stairway-Duty of employer 815
4.-Negligence-Hunting accident-Jury's finding that plaintiff shot by one of two defendants but unable to say by which one- Whether finding of absence of negligence was perverse - Onus. The respondent while hunting was shot in the face by bird-shot.
The appellant and a member of his party of three hunters admitted discharging their guns in the vicinity practically at the same time but not at the same bird. Appellant's p arty bad agreed to divide the bag evenly.
The jury found that the respondent had been shot by one of these two hunters but were unable to say by which one.
They also found that the injuries were not caused by the negligence of either. The action was dismissed by the trial judge but the
Court of Appeal for British Columbia ordered a new trial. Held (affirming the judgment appealed from) (Locke J. dissenting), that the finding of the jury exculpating both defendants from was rightly set aside. Per Rand J.: The jury should have been instructed that if the victim, having brought guilt down to one or both of two persons, could bring home to either or both of them the further wrong of having impaired his remedial right of establishing liability, then the legal consequence would be that the onus would be shifted to the wrongdoer to exculpate himself. Per Estey, Cartwright and Fauteux
JJ.: The proper verdict would have been reached had the jury been instructed that once the plaintiff had proven that he was shot by one of the defendants the onus was then on such defendant to establish absence of both intention and negligence; and that if the jury found themselves unable to decide which of the two shot the plaintiff, because in their opinion both shot negligently in his direction, both defendants should be found liable. Per Locke J. (dissenting):
NEGLIGENCE-Concluded
Since neither of the defendants was liable for the negligence of the other, in the absence of a finding as to which of them had shot the plaintiff, the action was properly dismissed.
Since the answers declared the inability of the jury to say which of the defendants had fired the shot which caused the injury, no question arose as to whether the finding that neither of the defendants had been negligent was perverse.
v. .......... ONUS - Criminal law - Trial by jury-Misdirection-Pleas of self-defence, provocation and drunkenness-Onus probandi -Reasonable doubt-Evidence-Use of word "establish" in charge is potentially dangerous -Intent in drunkenness-Criminal Code, ss. 263,1025 (1)...................... 2.-Criminal law-Abortion-Appeal by Crown from acquittal-Statement by accused rejected by trial judge-Onus of Crown not discharged-Criminal Code ss. 303, 1023(3) 3.-Negligence-Hunting accident-Jury's finding that plaintiff shot by one of two defendants but unable to say by which one-Whether finding of absence of negligence was perverse -Onus.
The respondent while hunting shot in the face by bird-shot. appellant and a member of his party of three hunters admitted discharging their guns in the vicinity practically at the same time but not at the same bird. Appellant's party had agreed to divide the bag evenly. The jury found that the respondent had been shot by one of these two hunters but were unable to say by which one. They also found that the injuries were not caused by the negligence of either. The action was dismissed by the trial judge but the Court of Appeal for British Columbia ordered a new trial. Held (affirming the judgment appealed from) (Locke J. dissenting), that the finding of the jury exculpating both defendants from negligence was rightly set aside. Per Rand J.: The jury should have been instructed that if the victim, having brought guilt down to one or both of two persons, could bring home to either or both of them the further wrong of having impaired his remedial right of establishing liability, then the legal consequence would be that the onus would be shifted to the wrongdoer to exculpate himself.
Per Estey, Cartwright and Fauteux JJ.: The proper verdict would have been reached had the jury been instructed that once the plaintiff had proven that he was shot by one of the defendants the onus was then on such defendant to establish absence of both intention and negligence; and that if the jury found themselves unable to decide which of the two shot the plaintiff, because in their opinion both shot negligently in his direction, both defendants ONUS-Concluded should be found liable. Per Locke J.
(dissenting): Since neither of the defendants was liable for negligence of the other, in the absence of a finding as to which of them had shot the plaintiff, the action was properly dismissed.
Since the answers declared the inability of the jury to say which of the defendants had fired the shot which caused the injury, no question arose as to whether the finding that neither of the defendants had been negligent was perverse.
CooK v. LEWIs ..........
PETITION OF RIGHT-Crown - Petition of Right-Claim of subsidies on sale of gasoline-P.C. 1195, February 19, 1941
-Orders 010 and 010A of the Oil Controller
-"in any place", meaning ambiguous- Orders misconstrued-Reference back to Commodity Prices Stabilization Corporation. 624
See CRowN 4.
PROBATE-Wills - Letter purporting to be a will-Probate in Quebec-Jurisdiction of Supreme Court of Canada-Arts. 756,
857, 858 C.C. -Art.44 CP...........
RAILWAYS - Constitutional law - Railways-Taxation of C.P.R. in respect of its branch lines in Saskatchewan-"Canadian
Pacific Railway"-Efect of clauses 16 and
14 of contract between Dominion and C.P.R.
in schedule to chapter 1 of S. of C. 1881- Saskatchewan Act, S. of C. 1905, c. 42, s. 24 respecting the Canadian Pacific Railway, S. of C. 1881, c. 1-Constitutional
Questions Act, R.S.S. 1940, c. 72 ......
REVENUE - Revenue - Excess Profits
Tax-Whether commissions paid commercial traveller by several firms exempt-Whether such traveller carrying on a "profession"
"mainly dependent upon personal qualifeations"-The Excess Profits Tax Act,
1940, S. of C. 1940, c. S2, as amended, ss.
2(1), 3(1) and 7(b).
The Excess Profits
Tax Act 1940, S. of C. 1940, c. 32 s. 7(b)
provides that the following profts shall not be liable to taxation: "The profits of a profession carried on by an individual if the profits of the profession are dependent wholly or mainly upon his . . .
personal qualifications and if in the opinion of the Minister little or no capital is employed; provided that this exemption shall not extend to the profits of a commission agent or person any part of whose business consists in the making of contracts on behalf of others . . . unless the Minister is satisfied that such agent is virtually employed in the position of an employee of one employer in which case the exemption shall apply and in any case the decision of the
Minister shall be final and conclusive."
The appellant, a commercial traveller, solicited orders for several firms and was paid by each a commission based on the amount of the orders secured by his efforts
REVENUE-Concluded and paid for. His authority was confined to obtaining and transmitting orders. He was a free agent who maintained no office and employed only sufficient capital to operate a motor car and pay his travelling expenses.
His claim for exemption from excess profits taxes under s. 7 (b) was disallowed by the decision of the Minister of National Revenue and the Exchequer Court of Canada affirmed that decision. Held: that the profits of a profession not liable to taxation under s. 7(b) of The Excess Profits Tax Act, 1940 apply to a profession where the profits are dependent wholly or mainly upon personal qualifications. The finding of the Court below that the profits of the appellant did not either wholly or mainly depend upon his personal qualifications were supported by the evidence in the case and could not be disturbed and for that reason alone the appeal failed. Held: also ,that as it had not been contended that the Minister's decision, that he was not satisfied that the taxpayer was virtually employed in the position of an employee of one employer, was arbitrarily reached upon a wrong principle; that decision must stand. (Decision of the Exchequer Court of Canada [1949] Ex. C.R., 391 affirmed.) BLAcK- REv- SHIPPING - Shipping - Damage to water mains caused by ship's anchor-Whether ship failed to comply with regulations governing passage of ships under bridges at Vancouver-Whether ship remained "at safe distance"-Whether operators of bridge at fault-Jurisdiction of Exchequer Court in claim against bridge. The regulations governing the passage of ships under the Second Narrows bridge at Vancouver, B.C., provided that every vessel, desiring the hft span of the bridge to be raised, should give a signal to be repeated until acknowledged by a red light and remain at a safe distance from the bridge until a green light, indicating that the span had been raised, had replaced the red.
The ship "Sparrows Point", after having received the acknowledgment light, proceeded to a point beyond which, still not having seen the green light, she could not safely go on, and thereupon dropped her anchor damaging the respondent Water District's water mains laid there under statutory authority and marked on the navigation charts.
The trial judge found that the ship had been negligent and exonerated the operators of the bridge. The ship appealed to this Court against this finding of negligence and the Water District appealed against the exoneration of the Harbours Board.
Held: That the ship, in disregard of her duty to the Water District mains, committed a negligent act by approaching so close to the bridge without having seen the green signal, thus incurring the risk of having to anchor in the area occupied by the mains. Held (Locke J. dissenting), that the operators of the SHIPPING--Continued bridge were also at fault, in neglecting to switch off the red light and switch on the green after the span had been raised; but
(Rand and Locke JJ. contra) the easement provision in the agreement under which the mains were laid precluded the Water
District from claiming against the Harbours
Board for the damage.
Held (Locke J.
expressing no opinion), that under the
Admiralty Act (S. of C. 1934, c. 31) the
Exchequer Court had jurisdiction to deal with the claim of the Water District against the Harbours Board. Per Locke J. (dissenting in part): The trial judge having heard the evidence of the two operators of the span his finding that the green light was displayed as sworn to by them should not be disturbed, and therefore the appeal of the respondent, Water District, should be dismissed as against the National Harbours Board.
(Arpin v. The Queen 14
Can. S.C.R. 736, Granger v. Brydon-Jack
58 Can. S.C.R. 491, Powell v. Streatham
[1935] A.C. 243 and Watt v. Thomas [1947]
1 All. E.R. 583 referred to).
Disrmxer......................
2.---Shipping-Collision at sea-Fog- Both ships equipped with radar-Speed- Passing Port to Port-Change of course.
Two Ships, both equipped with radar, collided in fog-shrouded waters of Puget
Sound, U.S.A.
The trial judge found the
Dagmar Salen two-thirds to blame and the Chinook one-third on the grounds that the Dagmar Salen disregarded the general practice of vessels on this seaway to pass port to port and that both were proceeding at too great speed. Held (Estey and Locke
JJ. (dissenting)
) and reversing the percentage findings of the trial judge, that the Chinook should be charged with two-thirds of the responsibility and the Dagmar Salen with one-third.
Both ships were going at excessive speed under the circumstances and there was no rule nor invariable custom requiring vessels to pass port to port, but the main fault rested with the Chinook for changing her course just prior to the collision.
If the Chinook had maintained her original course or if, at that point, the engines had been reversed, the accident would have been avoided; and if the radar screen on the Chinook had been closely and accurately observed, the course of the other ship would have been made clear and the risk eliminated.
That blind action at the critical moment was primarily responsible for the collision.
..................
3.-Contracts, prohibited-Charter-Party
- Order-in-Council requiring Shipping
Board's approval as condition precedent ignored-Whether expiry of Order validated contract. Section 9 of Order-in-Council
P.C. 6785 of July 31, 1942, provided that all parties proposing to charter any vessel exceeding 150 tons gross register, other
SHIPPING-Continued than a fishing vessel, "shall submit in advance full particulars" for the approval of the Canadian Shipping Board and that "no such charter as aforesaid shall be made without such approval".
The Order-in- Council was revoked at the end of 1946. On March 30, 1946 the appellant and respondent entered into a written agreement which purported the charter by the appellant to the respondent of a 4,700 ton vessel for a period of 84 months. The respondent took delivery of the ship on April 10, 1946 and operated and paid for it until April 15, 1950, when it notified the appellant that the agreement was a nullity, having been made in contraventionof Orderin-Council 6785, and that it would no longer continue to operate or be responsible foi the ship.
The appellant thereupon brought an action for a declaration that the agreement was a valid and subsisting one, and for specific performance.
Before this Court it put its case on the single ground that the charter party was subject to a condition precedent that the approval of the Canadian Shipping
Board under Order-in- Council 6785 should be obtained and, that Order having expired at the end of 1946, that condition dropped, leaving the charter party in full force ab initio. Held: that, as Order-in-Council 6785 required that the terms of such a charter party be submitted "in advance" and approved by the Board and that "no such charter party as aforesaid shall be made without such approval"; there was no authority to give a retroactive approval.
Assuming that a binding contract subject to such a condition could be made, the effect of the regulation was that no performance or execution of it could take place before that approval. LTD. LTD.... 4.-Shipping-Ship time-chartered- Whether owner of ship lost at sea liable for cargo-Consignee of goods-Bill of lading- Whether lien de droit between owner of ship and owner of goods-Bills of Lading Act, R.S.C. 1927, c. 17, s. 2. The appellant company, a ship owner and operator, granted a time charter of the SS. Hamildoc to Saguenay Terminals Limited.
Demarara Bauxite Company Limited shipped a cargo of bauxite upon the vessel from a port in British Guiana for delivery to a port in Trinidad, for reforwarding to the plaintiff at Arvida, P.Q. The bill of lading was signed by an agent of Saguenay Terminals Ltd. at Georgetown on behalf of the master. The cargo was lost at sea, owing to the unseaworthiness of the vessel, and the holder of the bill of lading olaiming as the owner and consignee of the goods sought to recover its value from the appellant. The appellant contended that it was not bound by the contract evidenced by the bill of lading and that there was no privity of contract as between the parties. The action was maintained by the Superior Court and by the Court of Appeal for SHIPPING-Concluded
Quebec.
Held, dismissing the appeal, that the charter party was not a demise of the ship and the appellant was the carrier of the goods; the respondent as the owner and consignee of the goods was entitled to sue upon the bill of lading. Webner v. Dene
Steam Shipping Co. 1905 2 K.B. 92 and
Carver, 9th Edition, p. 250 referred to.
LTD.
Co. LTD................
STATUTES-1.-Admiralty Act, S. of C.
1934, c. 31......................
2.-Bills of Lading Act, R.S.C. 1987, c.
17, 8. ............................
3.- B.N.A. Act (1869), as. 91, 98, 94 31
4.- B.N.A. Act (1867), s. 992(10)(a) 887
5.-Canadian Pacific Railway Act, S. of
C. 1881 c.1.......................
6.-Cities and Towns Act, R.S.Q. 1941, c. 283, s. 68.....................
7.-Constitutional Questions Act, R.S.S.
1940, c. 78.....................
8.-Copaght Act, R.S.C. 1927, c. s.
9.---Criminal Code, R.S.C. 1987, c. 86, sa. 863, 1085(1)....................
10.- Criminal Code, R.S.C. 1927, c. 36, s8. 859, 863, 1014, 1083, 1085 ........
11.--Criminal Code, R.S.C. 1927, C. 86, as. 885, 951, 1016, 1083 .............
12.-Criminal Code, R.S.C. 1987, c. 36, ss. 133A .......................
13.--Criminal Code, R.S.C. 1927, c. 86, s. 575C ............................
14.----Criminal Code, R.S.C. 1987, c. 36,
3. 471.............................
See 6.
15.-Criminal Code, R.S.C. 1927, c. 36, s. 260.............................
See 7.
16.- Criminal Code, R.S.C. 1987, c. 86, as. 303, 103....................
See 8.
STATUTES--Continued
17.--Criminal Code, R.S.C. 1987, c. 36, a.501............................
See TAD~E UNION
18.- Excess Projits Tax Act, S. of C. 1940, c. 89......................... 19.-Exchequer Court Act, R.S.C. 1987, c. 84, s. 82......................... 20.-Expropriation Act, R.S.C. 1987, c. 64..........................
21.-Industrial Conciliation and Arbitration Act, R.S.B.C. 1948, 155 ..... 22.-Judicature Act,
See MAINTENANCE. 25.-Mental Incompetency Act, R.S.O. 1937, c. 110, a.5.................... 26.-Motor Vehicles Act, R.S.Q. 1941, c. 142, 8. 58.. ...
..
. . . .. . . 27.-National Emergency Transitional Powers Act, S. of C. 1945, c. 85....... 28.-New Brunswick Motor Carrier Act, 1937, c. 43.....................
29.-New Brunswick Motor Vehicle Act, 1934, c. 0......................... 30.-Rates and Taxes Act, R.S.N.B. 1987, c. 190, s. 0.
....................
31.-Saskatchewan Act, S. of C. 1905, c. 42, . 24....................... 32.-Supreme Court Act, R.S.C. 1997, c. 35, s. 41(am. 1949)................. 33.-Trade-unions Act, R.S.B.C. 1948, c. 348 as. 3, 4...................
34.-Vancouver Incorporation Act, S. of B.C. 1921, c. 55.................... STATUTES-Concluded
35.-Vehicles Act, S. of Sask., 1945, c.
98,8. 141.................
.....
36.-War Measures Act, R.S.C. 1997, c.
906...........................
See CONsTITUTIONAL LAw 2.
TAXATION - Taxation - Tax liability - Statute increasing tax rate-Whether retroactif. By s. 39a of c. 55 of the Vancouver
Incorporation Act, 1921, enacted by s. 3, c. 78 of the statutes of 1931 and amended by s. 7, c. 68 of the statutes of 1936, it was provided that "from January 1, 1937, until the year 1939, inclusive, and thereafter until amended by Statute", the public utility companies would be taxed at the rate of 1J per cent per annum on the gross rentals received by the Telephone Co. and on the amount annually received for gas, light and power and for fares, by the other defendant companies.
103, a. 39a was amended to provide for an increase in rate to 2J per cent and to change the basis of taxation in the case of the B.C.
Electric Ry. Co. from "the amount of fares annually received"
to "the basic fare revenue as defined in an agreement between the City and the said Company dated December 30, 1946", this last mentioned provision "to have had effect on and from the first day of January, 1947".
1947 Act, which became effective on April
3, 1947, was not otherwise made retroactive.
Appellant contended that the new rate became effective in respect of the taxation period of 1947, or alternatively as of the date the Act was assented to. The defendants claimed that it became effective commencing with the taxation year 1948.
The Court of Appeal affirmed the dismissal of the action by the trial judge. Held:
(Affirming the judgment appealed from), that the new rate of 22 per cent did not apply to taxation of the respondents for the year 1947, and was not retroactive to
January 1, 1937.
Held: Respondents became liable for the tax before the new rate under the 1947 Act had become effective, and not at the time that the rating by-law for 1947 was passed on April 18, 1947.
Miller v. Salomons (1852)
7 Ex. 476;
Queen v. Judge of City of London (1892) 1
Q.B. 273; Mersey Dock v. Turner [1893]
A.C. 468 and Bradlaugh v. Clarke [18831
8 A.C. 354 referred to. Crry v. B.C. Co......
2.- Constitutional law-Railways-Taxation of C.P.R. in respect of its branch lines in Saskatchewan-"Canadian Pacific Railway"-Efect of clauses 16 and 14 of contrad between Dominion and C.P.R. in schedule to chapter 1 of S. of C. 1881-Saskatchewan
Ad, S of C. 1905, c. 42, a. 24-Act respecting
TAXATION-Continued the Canadian Pacific Railway, S. of C. 1881, c. 1-Constitutional Questions Act, R.S.S. 1940, c. 79.....................
See CONSTrrUoNAL 3. 3.-Assessment - Taxes - Personal Property - Situs - Contractor having head office and chief place of business in one parish and equipment and machinery in another- Where taxable--"Place of Business"- Meaning-The Rates and Taxes Act, R.S.- N.B.1997, c. 190, s. 90. The Rates and Taxes Act, R.S.N.B. 1927, c. 190, s. 20 provides that all personal property shall be assessed to the owner in the parish where he resides except that if he has a "place of business" in another parish all personal property connected therewith or employed therein shall be assessed in the parish where he has such place of business. The respondent, whose head office was in the Parish of Lancaster, Saint John County, contracted to pave among others, a road leading through the Parish of Bathurst, Gloucester County to Douglastown, Northumberland County and acquired 59 acres of land in Bathurst Parish on which it erected 38 buildings, including an office, mess hall, sleeping camps, repair shops, an asphalt plant and a gravel-crushing plant. During the winter months moveable equipment was stored at the property and some 20 men employed in repairing it. The Bathurst Parish Assessors purporting to act under the authority of s. 20 assessed the respondent's personal property in the parish at $600,000.
On appeal to the County Court Judge the latter reduced the assessment to $275,000 but otherwise confirmed it. On appeal by way of certiorari to the Appeal Division, Supreme Court of New Brunswick, the assessment was set aside on the grounds that the company had no place of business within the meaning of s. 20 of the Act. Held: (Reversing the decision of the New Brunswick Supreme Court, Appeal Division).
1. That on the facts the assessors could properly find the existence of a business carried on at a "place" in the parish of Bathurst within the meaning of s. 20 of The Rates and Taxes De Beers Consolidated Mines Ltd. v. Howe [1906] A.C. 455 and Kirkwood v. Gadd [1910] A.C. 422 referred to and distinguished; Swedish Central Ry. Co. v. Thompson [1925] A.C. 495, Mitchell v. Egyptian Hotels Ltd. [1915] A.C. 1022, and San Paulo (Brazillian) Ry. Co. v. Carter [1896] A.C. 31, referred to. 2. That only the machinery and other property used for repairing and storing purposes could be taken to be "connected with or employed in" the business: what was repaired or stored, was not in that language. 3. That in making the assessment the assessors proceded upon a wrong principle in whole or in part but a legal and correct assessment could have been made and as provided by a. 126 the matter should be remitted to them for re-assessment on the principles TAXATION-Concluded laid down by this Court.
The King v.
Assessors of Woodstock [1924] S.C.R. 457 at 462 followed.
Estey J. would have allowed the appeal reducing the amount of the assessment to $175,000.
-Industrial Conciliation and Arbitration
Act, R.S.B.C. 1948, c. 155-s. 501 of the
Criminal Code. A trade union, certified pursuant to the Industrial Conciliation and
Arbitration Act, R.S.B.C. 1948, c. 155, as the bargaining authority for the employees of one of the employer's five restaurants, known as unit No. 5, failed to negotiate a collective agreement with the employer.
Conciliation proceedings were then taken pursuant to the Act but the report made thereunder was rejected by the union.
Although under the Act the union remained the bargaining agent for unit No. 5, it lost all its members among the employees therein: and none of the employees in unit 6 and
7 was a union member. The union picketed these three restaurants by having two men walk back and forth on the sidewalk in front of them each bearing a placard to the effect that the employer did not have an agreement with the union. No strike vote was taken among the employees and in fact no strike occurred.
The action by the employer to enjoin this picketing and for damages was dismissed by the trial judge but was maintained by a majority in the
Court of Appeal for British Columbia.
Held, reversing the judgment appealed from and restoring the judgment at the trial, that the picketing did not amount to a criminal offence or to a common law nuisance. It was authorized by s. 3 of the
Trade-unions Act, R.S.B.C. 1948, c. 342 and was unaffected by the provisions of the
Industrial Conciliation and Arbitration Act.
Per the Chief Justice and Locke J. (dissenting):
The conduct complained constituted a private nuisance which should be restrained by injunction.
v. ......
TRADE UNION-Concluded
TRIALS - Trials - Jury Trial - Disclosure to jury party insured-Procedure to be followed by trial judge-The Judicature
Act, R.S.O. 1937, c. 100, ss. 27 (1), 55(3).
In an action for damages arising out of the collision between two motor cars, a witness for the defence in examination-in-chief the jury might reasonably infer that the defendant was insured.
Defence counsel thereupon moved that the case be traversed to the next jury sitting. Plaintiff's counsel objected but expressed willingness for the trial to proceed either before the same jury
TRIALS-Concluded of before the trial judge alone.
The trial judge ruled that he would not traverse the case but would, subject to consent of counsel, either try the case alone or proceed with the same jury. Defendant's counsel having declined to elect, the trial proceeded before the jury and judgment was given for the plaintiff.
Held: (Kellock and Estey JJ., dissenting) that although it was contrary to the established rule in Ontario for the trial judge against counsel's objection to have proceeded with the same jury, counsel having been afforded the choice of having the trial proceed before the jury or, another proper and permissible course, that of continuing without a jury, and having declined to elect, should not be heard to complain because the former course was adopted.
TRIALS-Concluded
WILLS - Wills - Interpretation - Gift to "Reverend William Bruck o.m.i. St. Patrick's Orphanage of the City of Prince Albert intended donee the individual or the Orphanage of which he was Director. By a will in her own handwriting, a testatrix left all her estate to "Reverend William Bruck o.m.i. St. Patricks Orphanage of the City of Prince Albert in the Province of Saskatchewan, absolutely" and appointed him her sole executor.
Father Bruck, who had been continuously director of the orphanage from 1906 to the date of his death in 1947, predeceased the testatrix, who died in 1949.
On an application to determine because of Father Bruck's death an intestacy existed, or whether the words of the will amounted to a bequest to him as "Director of" said orphanage.
Held: that the words of the will must be interpreted in their grammatical and ordinary sense and so interpreted the words "unto Reverend
William Bruck o.m.i. St. Patricks Orphanage of the City of Prince Albert * * " meant that the donee of the estate was the Reverend William Bruck and not the Orphanage.
Held: also, that on a true construction of the will the Reverend William Bruck, had he survived the testatrix, would have been beneficially entitled to the whole of her estate but, as he predeceased her, the gift to him lapsed, and the estate passed to those entitled on an intestacy.
In re Delany, Conoley v. Quick [1902] 2. Ch. 642 at 646, approving Thornber v. Wilson, (1858) 4 Drew, 350 at 351; Re Flinn, Public Trustee v. Griffin [1948] 1 All E.R. 541, applied.
2.-Wills-Whether second will revoked former-Intention of testator-Foreign trust company executing will in Quebec-Arts. 365, 892, 894, 896 C.C.
In 1937, by a will made in authentic form in the Province of Quebec, the testator left to his nephew, the deceased husband of the respondent, all the property which he might possess in Canada WILLS-Continued at the time of his death and which consisted of a house and lot in the Province of Quebec.
The contents of the will were communicated to the nephew who took possession of the property forthwith, paid the taxes and insurance. Subsequently, in 1939, testator made in the U.S.A. a will in the
English form in which, after disposing of his residence there and making several pecuniary bequests, he left the "residue"
of his property to certain relatives of his deceased wife in the U.S.A. and named an
American trust company his executor.
The opening paragraph of that will contained the customery clause "hereby revoking any and all former wills made by me". The nephew survived the testator and at his death the property passed to his wife, the respondent. The trust company sold the property to the appellant who sued respondent for possession and for rental. The action was allowed in the
Superior Court but dismissed in the Court of Appeal. Held: The appeal should be disihissed as the later will did not revoke the former expressly or by the nature of its dispositions.
A formal clause such as here is not sufficient if the terms of both wills can be read so as to have effect. The intention of the testator was clearly that the second will should only dispose of the property other than that disposed of by the former will.
Per Rand and Kellock
JJ.: The foreign trust company was not empowered to carry on business in the
Province of Quebec and to make the sale in question as it was not registered under the Quebec Trust Companies Act.
v. BILODEAU.......................
3.-Wills-Letter purporting to be a will- Probate in Quebec-Jurisdiction of Supreme
Court of Canada-Arts. 756, 857, 858 C.C.
-Art. 44 C.P. The respondent sought to probate as a will a letter written by the deceased in these terms: "Je me suis senti trts fatigu6 dernibrement et n'ai pas eu le temps de m'occuper de ton testament.
De toutes fagons j'aimerais A te dire que s'il m'arrivait quelque chose tout ce qui m'appartient est A toi".
The trial judge held that this letter was not a will but the Court of Appeal for Quebec reversed his decision.
Held (the majority assuming the jurisdiction of this Court without expressing any opinion on the question): That the letter meets all the conditions of a will; it was written and signed by the testator and showed his in- WILLS-Concluded tention to dispose of his property in favour of the respondent. Even if all the surrounding circumstances are taken into account, there was nothing in the evidence to indicate a contrary intention. Rand and Estey JJ. would quash the appeal on the ground that the issues raised and contested before the trial judge could not, in the proceedings to probate, issue in a final judgment, and consequently this Court was without jurisdiction.
BER- WORDS AND PHRASES-I.-"Fair and Reasonable" (Judicature Act, R.S.O. 1987, c. 100, 15(i))............... 2.-"Final judgment" (Supreme Court Act, R.S.C. 1927, c. 85, 8. 41(1) as am. 1949).......................... 3.-"Gross negligence or wanton and wilful misconduct" (Vehicles Act, S. of Sask., 1945, c. 98, s. 141(2))............... 4.-"Liable to at least" (Criminal Code, s. 575C (1)(a)).................
5.-"Mainly dependent upon personal qualifications" (Excess Profits Tax Act, S. of C. 1940, c. 82, s. 7(b)) .......... 419 6.-"Performance without motive of gain" (Copyright Act, R.S.C. 1927, c. 82, s. 17 (1)(0ii)......................
... .- "Place of business" (Rates and Taxes Act, R.S.N.B. 1927, c. 190, s. 20) ..... 8.-'-"Profession" (Excess Profits Tax Act, S. of C. 1940, c. 82,s. 7(b))..... 9.-"Question of law or jurisdiction" (Supreme Court Act, R.S.C. 1927, c. 85, s. 41 (1) as am. 1949)............... 10.-"Undertaking" (B.N.A.
Act, 1867, s. 92 (10)(a))......................
Cases cited
- Ltd. v. Howe Ltd. v. Howe, supra
- A.C. 155 A.C. 155 165
- A.C. 601 A.C. 601
- O.R. 44 O.R. 44
- Saumur v. Recorder's Court (Quebec) and Attorney General for Quebec scr-1947-492
- The King v. Décary scr-1942-80
- A.C. 37 A.C. 37 50
- A.C. 243 A.C. 243 264
- A.C. 619 A.C. 619 626
- Holland v. City of Toronto scr-1927-242
- 2 W.W.R. 191 2 W.W.R. 191 200
- 1 W.W.R. 780 1 W.W.R. 780
- A.C. 367 A.C. 367
- Reference as to the Validity of the Regulations in Relation to Chemicals Enacted by Order scr-1943-1
- A.C. 87 A.C. 87
- Western County Ry. Co. v. Windsor and Annapolis Ry. Co. 7 A.C. 178
- A.C. 256 A.C. 256
- Wertheim v. Chicoutimi Pulp Co. A.C. 301 307
- Forbes v. Git 1 A.C. 256 259
- The King v. Dubois scr-1935-378 402-3
- Commissioner of Patents v. Winthrop Chemical Co. Inc. scr-1948-46 54
- Montreal Island Power Co. v. Town of Laval des Rapides scr-1935-304 307
- The King v. Northumberland Ferries Ltd. scr-1945-458
- Diggon-Hibben Ltd. v. The King scr-1949-712
- A.C. 369 A.C. 369
- A.C. 455 A.C. 455
- A.C. 422 A.C. 422
- A.C. 495 A.C. 495
- A.C. 1022 A.C. 1022
- A.C. 31 A.C. 31
- The King Ex parte Bank of Nova Scotia v. Assessors of Rates and Taxes of Woodstock, N.B. scr-1924-457 462
Statutes and regulations cited
-
- s. 82(1)
- section 82(1)
-
- ss. 91
- 92
- 94
- s. 91
- s. 92
- s. 24
- ss. 1
- 3
- sections 1
- ss. 6
- s. 3
- ss. 3
-
- s. 9
- s. 992(10)(a)
- s. 68
-
Unresolved citations
- s. 20
- s. 20(1)
- s. 126(a)
- s. 126
- section 92(10)
- ss. 6
- 53
- s. 92
- sections 6
- s. 91
- Section 5(3)
- section 5(4)
- Section 11
- s. 22 of An Act
- s. 22 of The Motor Carrier Act
- s. 4 of An Act
- s. 4 of The Motor Carrier Act
- s. 4
- s. 17(1) of The Motor Carrier Act
- s. 5(3)
- 11 of The Motor Carrier Act
- s. 3(3)
- 5(4)
- 11
- section 4
- s. 7(2)
- s. 6
- Section 53
- s. 4 of The Motor Carrier Act, 1937
- s. 29
- section 92
- section 91
- s. 92(10)
- subsection (10)
- s. 58
- s. 2(1)
- s. 3
- s. (3)
- s. (4)
- Subsections (3)
- (4)
- section 5
- Section 8
- s. 21
- sections 91
- 92
- paragraph 10(c)
- paragraph 10(a)
- s. 92 of the British North America Act
- para. (b)
- s. 17
- Section 58 of The Motor Vehicle Act
- section 92 of the British North America Act
- Section 91
- section 92 of The British North America Act
- s. 10(a)
- ss. 1
- 2
- s. 141(2) of The Vehicles Act, 1945
- s. 141(2) of AUTOMOBILE-Continued the Saskatchewan Vehicles Act
- s. 2 of the National Emergency Transitional Powers Act, 1945
- s. 15(i)
- s. 622 of the Cities and Towns Act
- section 622 of the Cities and Towns Act
- s. 7(b)