Majority
ticket authorizing the use of the vehicle here in question he misconstrued the regulations, but this issue was so closely associated with that authority which it was his duty to exercise that it cannot be said that in doing so he acted without the scope of his employment. Neither could it be said of the sergeant to whom the transport work ticket was issued, nor of the driver, who received the instructions w from him. Dyer v. Munday [1895] 1 Q.B.D. 742 at 746; Lloyd v. Lee Kim Soo [1925] A.C. 550 and Lockart v. C.P.R. [19421 A.C. 591, Per: Cartwright J. In the circumstances of the case it was the soldier's duty to obey the order and in doing so he was acting within the scope of his duty. Irwin v. Waterloo Taxi-Cab Co. Ltd. [1912] 3 K.B. 588. He did not know his commanding officer had no right to give him the order nor could it be said on the evidence that as a reasonable man he should have known.
Evans v. Bartlam [19371 A.C. 473 at 479; Hodgkinson v. Fernie (1859) C.B.N.S. 415 at 421.
Per: Rand J. (dissenting): It was not within the scope of the authority of the commanding officer, directly or indirectly, to give a lawful order which could make the driving of the truck an act of the soldier within the course of his duties. A campaign for recruits was authorized and the means was assumed to be in the commanding officer but its scope could not extend to the violation of express regulations dealing with the use of equipment by which he was bound. The trip was an act of an extra-service nature and there was nothing before the Court to warrant the conclusion that, since the trip would involve the expense of conveyance, a bus could be hired on behalf of the Government, nor that in the face of the regulations cited, the truck could be used for such a purpose. Irwin v. Waterloo Taxi-Cab Co. Ltd., supra, on which the Court below relied, distinguished. There the servant was bound to obey, here the only order the soldier was bound to obey was a lawful order. The special character of military relations might justify his obedience but that did not make the act done that of the Crown.
If the commanding officer himself had driven the truck, he would not have bound the Crown, nor could he engage the Crown's responsibility by ordering a subordinate to do the same act.
Per: Locke J. (dissenting): The use of the Army truck to carry the baseball team was contrary to the Army Regulations and the commanding officer had no authority to authorize its use for such purpose. The general instructions given him to recruit could not be construed as authorizing the carrying on of such activities by means forbidden by Army Orders. The obligation of the soldier who drove the truck under The Militia Act and the King's Regulations and Orders was to obey lawful orders only. In acting in accordance with an order not lawfully given, he was not acting within the scope of his duties or employment within the meaning of s. 19(c) of the Exchequer Court Act (Bourton v. Beauchamp, [1920] A.C. 1001; Moore v. Donnelly, [1921], 1 A.C. 329 applied). The scope of the duties and employment of the soldier could not be extended by his mistaken understanding as to what they were (Wardley v. Enthoven (1917) 86 LJ.K.B. 309). APPEAL by the Crown from two judgments of the Exchequer Court of Canada, Cameron J. (1), allowing the suppliants' Petition of Right to recover damages because V.EN= of the negligence of an officer or servant of the Crown acting within the scope of his duties or employment.
W. R. Jackett Q.C. and K. E. Eaton for the appellant. The Basw trial judge erred in holding that the driver, Ryan, was acting within the scope of his duties or employment as a servant of the Crown at the time of accident. Ryan was not engaged on any business of the Crown in the right of Canada. The transportation of a baseball team was wholly unconnected with the business activities of the Government of Canada. Poulton v. London & Southwestern Ry. Co. (2); Halparin v. Bulling (3); Battistoni v. Thomas (4); Dallas v. Hinton (5).
The Crown is not liable for what is done in the course of an undertaking which is not part of the Crown's business merely because some of the participants are servants of the Crown for other purposes and because there may be an indirect benefit from the undertaking. Offerdahl v. Okanagan Centre Irrigation & Power Co. (6).
If Ryan received an "order" to go on a trip, it could not have been obeyed by him as a military order, since under the Militia Act, s. 69(2) as enacted by 1947 (Can.) c. 21, s. 22, he was not subject to laws, regulations and orders relating to the Canadian Army at the time it was communicated to him because: (i) he was not then on active service, (ii) it was not issued during a period of annual training or drill under the Act, (iii) it was not issued while he was on military duty, in the uniform of his unit or within any place used for the purposes of the Canadian Army, and (iv) it was not issued to him during any drill or parade of his unit at which he was present in the ranks or as a spectator nor was it issued to him when he was going to or from the place of the parade. When obeying an "order" not given within the limits laid down by this provision, Ryan was not acting within the scope of his duties or employment as a member of the Canadian Army. The order he received could not operate to extend such scope beyond the statutory limits established by s. 69(2).
Cases such as Irwin v. Waterloo Taxi-Cab Co. (1); Smith v. Martin (2); Risdale v. S.S. Kilmarnoch (3), apply only where the orders are such, as by terms of the servant's employment, he was bound to obey. They do not apply to an order requiring an inferior servant to do something outside the scope of his employment whether or not the inferior servant was aware of the limits imposed by the employer on the employment. Gaskell v. St. Helen's Colliery Co. (4).
The baseball club's trip was arranged by Reid probably as Director of the Prince Edward Island Department of Physical Fitness and certainly was not arranged by or on behalf of the Crown in the right of Canada or the Canadian Army. He could not as commanding officer of the Regiment have directed the Knights of Columbus ball team to take the trip nor have instructed their manager as such regarding the trip. His ex post facto justification of the use of the military vehicle on the ground that the trip was a recruiting activity is not borne out by the facts. The trial judge erred in-holding that Ryan was operating the military vehicle pursuant to an order given him as a member of the armed forces.
Reid said the work ticket was issued to "enable" Ryan to proceed with a ball team to Souris and return and that he gave Ryan no other orders. Sergeant Charles Ryan said that Reid told him there was a trip for a baseball team and that he told the driver Harrison Ryan, where he was to pick it up and his destination. On the face of it, none of these arrangements had anything to do with the Canadian Army and none of the men who went on the trip gave evidence that at the time they thought that they did. Sergeant Ryan knew nothing of a recruiting campaign.
In any event it was outside Driver Ryan's duties or employment to operate a military vehicle on a trip prohibited by regulations respecting the operation of such vehicles. It did not fall within the permitted use of vehicles to transport service personnel to sports fields because the persons being transported were not "service personnel" and because the trip was to a place more than twenty miles distant and no special authority had been obtained therefor.
It was not permitted by the Regulation providing for transportation of "prospective army recruits" because the persons transported were not being transported as "prospective army recruits" and their transportation had not been authorized in the prescribed manner. The trip was not authorized by the special provision concerning the transportation of the Royal Canadian Cadet Corps because the persons being transported were not being transported as cadets and were not being transported in connection with a "duly authorized parade or training activity." The
Regulations made by the Quarter Master General pursuant to s. 11 and Appendix VI of the King's Regulations and
Orders, made by the Governor in Council under s. 139 of the Militia Act, limit the scope of employment of members of the armed forces operating military transport. Whelan v. Moore (1); Knowles v. Southern Ry. Co. (2); Bourton v. Beauchamp (3); Moore v. Donnelly (4).
The regulations restricted the scope of Ryan's employment and it is immaterial whether he was aware of them.
Wardle v.
Enthoven & Sons Ltd. (5); Cartwright v. Shell-Mex & B.P.
Ltd. (6).
The front cover of "Regulations for Military
Operated Vehicles, 1947" require that "this pamphlet must be carried at all times by every qualified driver of a military operated vehicle irrespective of rank . .
."
The prohibitions made the trip something outside of Ryan's employment and not merely an unauthorized way of doing some work he was appointed to do. Compare Goh Choon
Seng v. Lee Kim Soo (7) and Lockart v. C.P.R. (8).
Even if Ryan can be regarded as having acted pursuant to a military order he was not at the time of the accident acting within the scope of his duties or employment as a servant of the Crown because his services were loaned or transferred, for the purpose of the trip, either to the Knights of Columbus ball team, the Provincial Department of
Physical Fitness, Reid, or some other person or authority other than the Crown in the right of Canada. Salmond on
Torts 10 Ed. 86-7; Donovan v. Laing (1); Bull & Co. v. West African Shipping Agency (2); Century Insurance Co. Northern Ireland Road Transport Board (3).
D. L. Mathieson Q.C. and G. R. Foster for the respond- -' ents. The only point in issue is whether the trial judge was correct in finding that at the time of the accident Corporal Ryan, the admitted servant of the appellant was acting within the scope of his duties or employment within the meaning of the Exchequer Court Act, as amended, s. 19(c), as alleged by the respondents in the Petitions of Right. The respondents submit that the trial judge was correct in confining his inquiry to the ascertainment of the scope of Corporal Ryan's duties or employment in order to determine the jurisdiction of the Court and in holding that "while Reid committed a breach of the regulations regarding the use of military vehicles . . . . such breach did not narrow the scope of Ryan's duties or employment". His decision was based on the common sense principle that a soldier in Ryan's position must give implicit obedience to the orders given him by his commanding officer in the ordinary matters of the service, except where such orders are clearly contrary to law. The evidence clearly establishes that Brigadier Reid as Corporal Ryan's commanding officer gave the order to make the trip in the normal manner, that is by issuing a transport work ticket and by passing this order to Corporal Ryan through the sergeant in charge of transport. No evidence was submitted to show that on receipt of this order Corporal Ryan knew it was contrary to regulations, or, in fact, that Corporal Ryan had any knowledge of the regulations. Reid as commanding officer was obviously designated by the appellant as one authorized to give orders on its behalf. In exercising that authority he ordered Ryan to make the trip as a military driver, an order which by its nature Ryan would have the right to assume as coming under the authority of his commanding officer. It was therefore his duty as a soldier to obey. The trial judge was correct in applying to the facts of this case, Iruin v. Waterloo Taxi-Cab Co. Ltd. (4); Charlesworth on Negligence at p. 50.
If the jurisdiction of the Court depends not only on the scope of Corporal Ryan's duties or employment but also on Brigadier Reid's, then the respondents submit that the appellant is still liable, despite the breach of the regulations by Brigadier Reid, because he was engaged ina matter incidental to and arising out of the business of the appellant. It is not disputed that the latter did an act which his master, the appellant, had not authorized, in permitting the army truck to make the journey without first obtaining the proper consent under the regulations. However the act was so connected with his duty to encourage recruitment, an act which the appellant authorized, that it may rightly be regarded as a mode-although an improper mode-of doing that act, and the appellant remains liable. Goh Choon Seng v. Lee Kim Soo (1); Limpus v.
The General Omnibus Co. (2); Salmond on Torts 10 Ed.,
90; Bayley v. Manchester (3).
It was urged on behalf of the appellant that Corporal
Ryan could not be said to be the servant or agent of the appellant acting within the scope of his duties or employment because he was at all relevant times the servant or agent of the Knights of Columbus working for them and under their control. The burden of proof rests on the appellant, and this burden is a heavy one. Mersey Docks
& Harbour Board v. Coggins & Griffith (Liverpool) Ltd.
(4). Not only is the burden a heavy one but the presumption is all against there being such a transfer. Century
Insurance Co. v. Northern Ireland Road Transport Board
(5); Nicholas v. F. J. Sparks & Son (6); Chowdhary v.
Gillot (7).
Not only have the appellants failed to discharge the burden of proof and overcome the presumption but on the contrary the evidence clearly establishes that the appellant retained control over its admitted servant,
Corporal Ryan. See also Jones v. Scullard (8).
In the Mersey Docks case, supra, Lord Porter at p. 17 points out that where both a mechanical device, in this case the army truck, and its driver are both loaned the inference is that the servant remains the servant of the general employer. See also Jones v. Scullard, supra. If therefore the vehicle and Corporal Ryan were loaned to the Knights of Columbus the presumption is against Corporal Ryan H being transferred because in the words of Lord Wright in the Century Insurance case, supra, at p. 497, "he was bound to have regard to paramount directions given by the respondents (the permanent employers) and was to safeguard their paramount interests."
It was established that Corporal Ryan was paid by the appellant for the performance of his duties as a military driver on the day in question, and it was found as a fact by the trial judge that he was "undoubtedly on duty that day", therefore there can be no dispute that the appellant was the only person with power to dismiss him, and therefore retained control of his servant.
No evidence was adduced to show that Ryan, either expressly or impliedly, consented to being transferred to the Knights of Columbus, and the absence of such consent implies that he remained the servant of the appellant. Mersey Docks case, supra, per Lord MacMillan at p. 14. Nor was it shown Ryan was working with the Knights in response to any request from them or under any agreement between them and the appellant. Clelland v. Edward Lloyd Ltd. (1).
The evidence as a whole, and the findings of fact by the trial judge, point conclusively to the fact that only "the use and benefit" of Corporal Ryan's work could be considered as transferred but that Corporal Ryan at all times remained the servant of the appellant.
J. (dissenting):-I am unable to agree that it was within the scope of the authority of Col. Reid, directly or indirectly, to give a lawful order which could make the driving of the lorry an act of the corporal within the course of his duties as a member of the 17th Reconnaissance Regiment, Reserve, Armoured Corps.
The original arrangement had been that a baseball team from Charlottetown, which the regiment sponsored, should go to Souris, but for some reason this could not be carried out; and Col. Reid, in order not to disappoint the community of Souris, which he thought might do harm to recruitment there, arranged to send another sponsored by the Knights of Columbus. Both of these teams played in a local baseball league, and the players included members of the cadet corps of one of the city schools, affiliated with the regiment.
-E Undoubtedly a campaign for recruits to the regiment was authorized and encouraged, and an area of discretion in means was assumed to be in the Officer Commanding; but its scope could not extend to the violation of express regulations by which he was bound. There were such regulations that dealt with the use of equipment, and they took their character from the underlying separateness of army action from civilian action, a separateness amounting to the creation, in some respects and to some degree, of a relation analogous to a military imperium. Basically, army action of any sort is confined to army personnel and equipment: civilians are excluded; but this has necessarily given way, under the impact of modern developments, to a widening scale of interrelation between the army and civilians, either as private individuals or as public; and what is to be decided is whether the steps taken were within or beyond the range of what could reasonably be said to have been authorized for recruiting purposes.
Relevant rules are to be found in a compilation of "Regulations governing Military Operated Vehicles, 1947," published in December of that year but effective at the time of the accident. For instance, there is s. 22 which, in part, reads:- S. 25(a) provides:- Paragraphs (a), (b) and (c) deal with civilians employed in the Department of National Defence, civilian contractors or their employees engaged on work for the Department, and civilian official visitors, lecturers, members of committees acting for or in association with the Department, etc.
Ss. 27 and 28 provide:- Now the team did not make the trip as cadets nor as substitutes for cadets, nor was it in any sense a cadet or service activity such as is contemplated either by the Militia Act or the regulations. The trip was an act of an extra-service nature, of which the most that can be said is that it was promoted by the Commanding Officer for the indirect purpose mentioned. That being so, the act was either within or beyond the scope of the officer's authority: there is no room for the suggestion of carrying out an authorized act in a forbidden manner.
The trip would necessarily involve the expenses of the conveyance: could they be incurred, say, by hiring a bus on behalf of the Government? There is nothing before us either express or by implication of any sort or description to warrant the conclusion that they could be, nor that, in the face of these regulations, the lorry could be used for such a purpose. Voluntary recruitment has for generations been the object of local inducement and encouragement; but, so far as they have not been private, they have always been by way of military displays or advertisements in which the authorities preserved an exclusively military action. If the Commanding Officer could send a private baseball team over 50 miles in a military lorry as a military proceeding, I see no limit to the kind of activity, whether of sports, dancing, music, dramatics, or any other mode of arousing the interest and enthusiasm of young people, that could be resorted to in a similar manner. Such an extension of governmental action must find its authority in something more specific than the informal approval by general officers of stimulation to local enlistment.
Cameron J. found against the Crown on the ground that since the corporal was bound to execute the orders of the
Commanding Officer, the act of driving was within the course of his employment.
He founded himself on the case of Irwin v. Waterloo Taxicab Company Limited (1).
There a taxi driver carried out the instruction of the
General Manager of the business in driving him to see private friends, not on the business of the company. The driver had no reason to believe that the trip was not properly authorized, and it was made in a manner indistinguishable from the ordinary course of his work. But it was agreed that the driver was under a duty to obey the direction and to make the trip, and the Court of Appeal held the company liable for his negligence during the course of it.
The decision raises the question whether, if the General
Manager himself had taken over the wheel and had driven the automobile on the same errand, the company would have been liable:
if not, how the General Manager could raise the liability of the company through an order to the driver I find it difficult to see. In this I assume that the
General Manager's authority extended so far as to enable him, if on -an occasion he saw fit, and in the course of his employer's business, to drive the car himself.
Moreover, there does not appear to have been any prohibition against the General Manager being a passenger, subject of course to the payment of the regular fare.
The fact that the servant there was bound to obey the order given him distinguishes the case from this. Here, the only order the corporal was bound in law to obey was a lawful order. It may be that, in his own interest, he was quite justified in obeying it and he would incur no discipline or responsibility for so doing; and it is clear that the special character of military relations necessitates such a justification except where the order is patently illegal. But that does not make the act done the act of the Crown. Reid himself had driven the lorry, he would not, in my opinion, have bound the Crown even though he could have done so in the course of admittedly military purposes. If that is sound, how he could engage the Crown's responsibility by ordering a subordinate to do the same act I am quite unable to appreciate.
I would therefore allow the appeal and dismiss the action with costs throughout if they are demanded.
J.:-Negligence on the part of the driver of the military vehicle here in question being no longer in question, the determination of this appeal depends solely on whether or not that negligence occurred while the driver was "acting within the scope of his duties or employment" within the meaning of s. 19(c) of the Exchequer Court Act. Mr. Jackett relies upon the regulations to which he referred in support of his contention that the vehicle could not, at the relevant time, be considered as having been engaged upon any business of the Crown. The evidence of Colonel Simmons, called on behalf of the Crown, furnishes, however, an additional standpoint from which this appeal must be considered.
According to this witness, during the period when the event here in question took place, both the Reserve and Active forces of the Canadian Army were in the "throes" of recruiting; "the war had finished in 1945 and we were stepping up the Reserve Forces and Permanent Forces." With respect to the regulations as to the use of military vehicles, the witness said: "Certain things are taken for granted, that we could use a vehicle for recruiting." particular he testified:
With respect to the regulations themselves, the Crown relies in the first place upon Order 4558 of June 7, 1944, and particularly upon para. 3, which limits the use of army vehicles to "official purposes."
The interpretation of this order is not unaffected by paras. 1 and 2 from which it appears that the order arose out of the then existing shortage of gasoline "in order to achieve economy."
In my opinion, the use of a vehicle for recruiting purposes, particularly in the light of the evidence of Colonel Simmons, would be a use for an "official" purpose, and the commanding officer, to whom was committed the duty of recruiting his regiment up to its establishment, would of necessity have to judge as to what use would or would not be proper for such purpose, in the absence of some express provision with which any proposed use would be in conflict.
Colonel Reid considered that in what he directed he was carrying out his instructions with respect to increasing the strength of the regiment under his command.
In the methods adopted by him to that end, he necessarily had a considerable discretion. If, therefore, there could be found a direct prohibition as to the use of transport vehicles in connection with recruiting, the question would arise as to whether disobedience would limit the "sphere of the employment" or merely amount to "a direction not to do certain things, or to do them in a certain way within the sphere of the employment;" Plumb v. Cobden (1), per Lord Dunedin at 67. If it were necessary to decide that question, I should say that the sphere of employment was not affected by the disobedience, if any, of Colonel Reid, and that, therefore, the particular regulations to which we were referred, notably with respect to the use of military vehicles for the transport of "service personnel for recreational purposes," the transport of "civilians employed by the Army," "prospective recruits" and cadets, do not assist the appellant.
If there were doubt as to whether or not this should be considered to be the right result, there would still be, in my opinion, a further question, namely, as to the duty of the driver of the vehicle when the order from Colonel Reid was given to him.
In Keighly v. Bell (1), Willes J. expressed himself thus: It is obvious that the object with which an order is given can determine its lawfulness. An officer going on military J. duty orders a soldier to fetch his horse. This would be a valid order. If, however, the officer wanted his horse to go hunting or to take an ordinary ride for pleasure, this would take the order out of the category of "lawful" commands. The authors of the Manual of Military Law, 1929 edition, p. 18, express the view that
A similar view prevails in the United States. In Davis on "The Military Law of the United States," a former Judge Advocate General, in speaking of "lawful" orders of a superior officer, says at p. 381:
In my opinion, the law is sufficiently stated for the purposes of the case in hand by Willes J. above. Even in time of peace, military discipline could not otherwise be maintained.
If Colonel Reid in good faith, as he did, considered in giving the order here in question that he was carrying out his duty as commanding officer of the regiment in connection with the current effort to bring it up to strength, it is impossible to say that the Corporal who received the order to drive the vehicle should have considered he had received an unlawful order.
With respect to s. 117 of the Militia Act, R.S.C. 1927, c. 132, it may be that illegality in fact would constitute a defence to any proceeding under that section, but I do not think that that section establishes the proposition that illegality in fact is sufficient to establish that a soldier, in carrying out a command of a superior officer, is not acting within the scope of his duties or employment within the meaning of the Exchequer Court Act, if the order is not necessarily or manifestly" illegal.
I would dismiss the appeal with costs.
J.:-The suppliants Bradshaw and Spence, respectively owner and driver of a taxicab, were awarded damages against Her Majesty in the Exchequer Court for injuries suffered when the taxicab collided with an Army truck upon a highway between Charlottetown and Souris, Prince
Edward Island, about 1:30 on the morning of July 24, 1947.
The learned trial judge found that Corporal Ryan's negligent driving of the Army truck was the sole cause of the collision and no appeal is taken therefrom.
The Army truck was, at all times material hereto, in possession of the 17th Prince Edward Island Reconnaissance
(RECCE) Regiment, a reserve unit of the Canadian Army then under the command of Lieutenant Colonel Reid.
Corporal Ryan was a member thereof. As such, for the purpose of determining the liability of Her Majesty in this action, both Lieutenant Colonel Reid and Corporal Ryan are deemed to be servants of the Crown (Exchequer Court
Act, S. of C. 1923, c. 25 s. 50A).
The essential issue is, therefore, whether Corporal Ryan, at the time the injuries were suffered, was acting within the scope of his employment within the meaning of s. 19(c) of the Exchequer Court
Act (R.S.C. 1927, c. 34).
Lieutenant Colonel Reid, with the intention of promoting recruiting, arranged for a ball game between the Regimentsponsored RECCE junior team of Charlottetown and a local Souris team to be played at Souris on July 23, 1947.
The RECCE team, for some reason, could not make the trip and Lieutenant Colonel Reid arranged that the Knights of Columbus, another junior team that played in the same league with the RECCE team at Charlottetown, would substitute. He directed their transportation in an Army truck and the injuries here claimed for were suffered while the Army truck was transporting the ball team and its supporters back to Charlottetown.
As Commanding Officer, Lieutenant Colonel Reid was authorized to promote and was at all times material hereto promoting recruiting. As one witness stated, the Regiment was then in the "throes of recruiting."
There were no regulations dealing with recruiting and it must follow that as Commanding Officer it was his duty to exercise his discretion in the development of a programme that he might deem applicable and effective in the area allotted to him.
As Lieutenant Colonel Rogers, then second in command, deposed:
As part of the recruiting programme Lieutenant Colonel Reid concluded that good will should be maintained between the Army and the civilian population and had, as a consequence, upon different occasions transported the regimental band for entertainment. As he states, they were told at all times "to co-operate with civilian people." He accordingly arranged a ball game at Souris with a view to demonstrating to the young men that the Army was interested in many activities including sport and thereby to add to their interest in the Army. In all this he was not serving any purpose of his own or any ulterior or other purpose inconsistent with his position and duty to promote recruiting. (Whatever suggestion was made to the contrary was not established by the evidence.) Even if it be admitted he was. in error, the evidence justifies no other conclusion but that he believed he was promoting recruiting and acting within the scope of his authority.
A servant may, of course, while purporting to act for his master, do so in a manner that is outside the scope of his employment, but the conduct here in question is not sufficiently far removed to justify such a conclusion. The learned trial judge did not go further than to suggest "it is difficult to agree with his opinion that the game actually played by the Knights of Columbus team had anything to do" with the subsequent enlistments from Souris. That, however, is far from saying that Lieutenant Colonel Reid was not, in arranging the game, acting within the scope of THE his employment in the promotion of his recruiting E programme.
The learned trial judge did find that the direction to use the Army truck for the transportation of this ball team "was contrary to the regulations and that Colonel Reid Estey J. had no authority to use it for such purposes," and continued: I do not question his good faith in the matter. At the time he was busily engaged in an effort to secure recruits for his regiment, and doubtless thought that -an exhibition baseball game, between a team sponsored by the Regiment and the young men of Souris, would assist in recruiting.
With the greatest possible respect, it would appear that in the foregoing sufficient weight has not been given to the distinction between the field of actual authority and the scope of employment. Lord Esher gives expression to this distinction when he states:
The liability of the master does not rest merely on the question of authority, because the authority given is generally to do the master's business rightly; but the law says that if, in course of carrying out his employment, the servant, commits an excess beyond the scope of his authority, the master is liable. Dyer v. Munday (1).
This difference is again emphasized in Story on Agency, s. 452:
* * * he (the principal) is held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances, or misfeasances, and omissions of duty, of his agent, in the course of his employment, although the principal did not authorize, or justify, or participate in, or, indeed, know of such misconduct, or even if he forbade the acts, or disapproved of them. Bright & Co. v. Kerr (2).
The foregoing statement of the learned author has been repeatedly quoted, particularly in McGowan & Co. Ltd. v. Dyer (3); Lloyd v. Grace, Smith & Co. (4); Percy v. Corporation of City of Glasgow (5).
See also Willes J. in Bayley v. Manchester, Sheffield, and Lincolnshire Ry. Co. In W. W. Sales Limited v. City of Edmonton (7), it is pointed out that the mere fact the agent's act may constitute a criminal offence does not necessarily take it outside (1) [18951 1 Q.B.D. 742 at 746.
(4) [19121 A.C. 716 at 737. (2) [19391 S.C.R. 63 at 70.
(5) [19221 2 A.C. 299 at 306. (3) (1873) L.R. 8 Q.B. at 145.
(6) (1872) L.R. 7 C.P. 415 at 419. (7) [19421 S.C.R. 467.
the scope of his employment. Mr. Justice Hudson, delivering the judgment of the majority of this Court, stated at 471:
Where it was contended that because the conduct of the servant in repossessing a bedstead constituted a criminal assault he was, therefore, acting beyond the scope of his employment, Lord Esher stated:
The same view is adopted in Goh Choon Seng v. Lee Kim Soo (1), where, although the servant committed an act of trespass, that did not take his conduct outside the scope of his employment.
Limpus v. The General Omnibus Co. (2), was regarded by Compton J. at 643
The appellant cited among other authorities Halparin v. Bulling (3), Battistoni v. Thomas (4), and Dallas v. Home Oil Distributors Limited (5).
The servant in all of these cases had left his master's business and was proceeding toward the attainment of a purpose of his own. The case of Poulton v. The L. & S.W. Ry. Co. (6), was also cited. There the conduct of the servant was ultra vires the master, which raised questions not relevant hereto, as there is no question of ultra vires in the instant case.
Section 50A of the Exchequer Court Act creates a relationship of master and servant between Her Majesty and a member of the Army. It thereby imposes a liability upon Her Majesty equal to that of the member of the Army for damage negligently caused by the latter while acting within the scope of his employment. The King v. Anthony (1).
The phrase "scope of employment," because it must so THE largely depend upon the circumstances in each case, has sP generally been conceded to be incapable of precise defini- THE QUEN tion. The foregoing authorities do indicate that it is wider than the field or scope of actual authority and that the purpose of the servant and the fact that he is not acting
Estey J. in a manner inconsistent with his employment may be factors in determining scope of employment. Further assistance may be found in a consideration of the remarks of Willes J. in Barwick v. English Joint Stock Bank (2), where he states:
In all these cases it may be said, as it was said here, that the master has not authorized the act. It is true he has not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in.
Quoted with approval in Lloyd v. Grace, Smith & Co.
supra, at 733. See also Hamlyn v. Houston & Co. (3).
In Lockhart v. C.P.R. (4), their Lordships of the Privy
Council adopted the statement of Salmond on Torts, 9th
Ed. p. 95, 10th Ed. p. 89:
But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorized, provided they are so connected with acts which he has authorized that they may rightly be regarded as modes-although improper modes-of doing them.
In other words, a master is responsible not merely for what he authorizes his servant to do, but also for the way in which he does it * * * On the other hand, if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsible; for in such a case, the servant is not acting in the course of his employment, but has gone outside of it.
It was the duty of Lieutenant Colonel Reid to direct, within the meaning of the regulations, the use of Army vehicles for military purposes, including that of recruiting.
It is unnecessary to recite the regulations which were placed in evidence, as it must be conceded that a study of them leads to the conclusion that, in the promotion of his recruiting programme, Lieutenant Colonel Reid had not the authority to authorize the use of this Army truck to transport a civilian baseball team from Charlottetown to Souris.
(1) (19461 S.C.R. 569.
L.R. Ex.
1 K.B. at
(4) A.C.
At the time he considered that because he was doing this in aid of recruiting that it was for an official purpose and, therefore, permissible within s. 20 of the regulations, which reads, in part:
The problem here presented is not whether Lieutenant Colonel Reid exceeded his authority, but did he act outside the scope of his employment? He was serving no other purpose or interest in all that he did but that of his master and his conduct was not so far removed from the acts he was authorized to perform as to justify a conclusion that he was not, at all times, engaged in his master's undertaking. Upon the whole of the evidence, Lieutenant Colonel Reid, whose duty it was to direct these vehicles within the meaning of the regulations, upon this occasion misconstrued them, but even then his direction was so connected with those directions he was authorized to give that within the view expressed by Salmond and adopted by the Privy Council in Lockhart v. C.P.R., supra he was, in directing the use of this truck, acting within the scope of his employment.
Lieutenant Colonel Reid followed the usual routine of his Regiment and issued a Transport Work Ticket authorizing this trip. It was given to Sergeant Ryan who was in charge of the Army trucks. Sergeant Ryan communicated with his brother, Corporal Ryan, and as a result the latter, who was qualified to drive Army vehicles, proceeded to the garage and received his instructions.
The truck was serviced and made ready for the trip by Sergeant Ryan. Corporal Ryan received, in the regular way, Army pay covering this trip. Both Sergeant Ryan and Corporal Ryan would know that the Regiment was in the throes of a recruiting campaign and if they had asked any question with regard to the purpose of this trip they would have been told it was in promotion of recruiting. Throughout, all three parties were acting within the scope of their employment at the time the injury for which damages are here claimed occurred.
In my opinion the appeal should be dismissed.
LoCKE J. (dissenting)
:-The learned trial judge has found that the use of the Army truck to carry the Knights of Columbus baseball team to Souris and return on the day S,cE in question was contrary to regulations and that Colonel Reid had no authority to use it for such purposes, conclusions with which I respectfully agree. The general instructions given to the officer commanding the unit to endeavour to obtain recruits for his unit cannot be construed as authorizing the carrying on of such activities by means forbidden by Army orders.
There remains the question as to whether Corporal Ryan, who was driving the truck and whose negligence has been held to have caused the accident, was at the time acting "within the scope of his duties or employment" within the meaning of that expression in subsection (c) of s. 19 of the Exchequer Court Act, R.S.C. 1927, c. 34.
Colonel Reid was at the time the officer commanding the 17th Prince Edward Island Reconnaissance Regiment. Other than his statement that this was a Reserve unit of the Armoured Corps and the fact that it was not at the time undergoing its annual drill or training and had not been placed on active service, there is no evidence of its status. For the Crown the King's Regulations and Orders of 1939 were tendered in evidence and admitted, with the consent of counsel for the respondent, from which it must be taken that these were the general regulations and orders which applied to members of this unit at the time of the occurrence in question. By Order 1 the Reserve Militia, of which the unit apparently formed part prior to the amendments to the Militia Act enacted by c. 21 of the Statutes of 1947, was organized in the manner defined by Appendix 10 which declared that the organization of the Reserve Militia was authorized subject to regulations prescribed by the Governor in Council under s. 16 of the Militia Act.
The reference to s. 16 is to the Act as it appeared as c. 41, R.S.C. 1906. In the revision of 1927 it appeared as s. 14.
By the amendment of 1947 the designation of the various military forces of Canada as Militia was altered and all the military forces of Canada other than the Royal Canadian Navy, the Royal Canadian Air Force and the Reserves thereof were named the Canadian Army, divided into the active force consisting of that portion that is on continuous full time military service, such other military units then existing which had been theretofore constituted and such other units as might thereafter be named and authorized by the Minister under the provisions of s. 20 of the Act as amended. The Reserve Militia mentioned in Order 1 and - Appendix 10 of the 1939 King's Regulations and Orders is not mentioned by name. Upon the evidence in the present record, a unit such as the Prince Edward Island Reconnaissance Regiment was maintained and continued as a reserve unit of the Canadian Army and this was its status at the time in question.
This being so, the question as to whether Corporal Ryan was under any duty to obey the order of the commanding officer of the unit to drive the truck at that time is not free from doubt. According to Regulation No. 9 which forms part of Appendix 10 to the, King's Regulations and Orders, drill and training for the members of such units is voluntary. Regulation 11 declares that the Government does not undertake to provide the Reserve Militia, except when called out on active service, with any equipment, and they are not entitled to transportation, subsistence, pay or allowances, except while on active service. The oath taken by every officer and man on joining such a unit, in addition to containing an oath of allegiance to His Majesty, includes the oath to "well and truly serve His Majesty in the Reserve Militia of Canada under the terms and conditions laid down in the law and the regulations duly made from time to time in that behalf."
Corporal Ryan's regiment, as has been stated, was neither on active service nor undergoing its annual drill or training, nor had the service he was called upon to perform by the order of Colonel Reid transmitted to him by Sergeant Ryan anything to do with the annual drill or training of the unit under the provisions of the Act. It is difficult to conclude, therefore, that when, according to the regulations, attendance at drill or training was voluntary and Corporal Ryan, according to Regulation 12, was not entitled to any pay except while on active service, he was under any obligation to obey an order to drive the baseball team to Souris, if these were the regulations then in force in regard to his unit.
While the regulations thus applicable to the unit contained these provisions, s. 115 of the Act provided a penalty for:- This section remained unalterated by the amendment of 1947 other than by striking out the word "militia" and substituting the words "Canadian Army" which, by the defining section, included a reserve unit such as this. The question is perhaps affected by s. 69 of the Militia Act, as enacted by the 1947 amendment, which includes a provision that all officers and men of the Canadian Army shall be subject to "all laws, regulations and orders relating to the Canadian Army" when, inter alia, they are within any armoury or other place where arms, guns, ammunition or other military stores are kept since, while the order to take the truck from Charlottetown to Souris and return was copmunicated to Sergeant Ryan by Colonel Reid by telephone and he received the work order which authorized the use of the vehicle elsewhere, Corporal Ryan took delivery of the truck and received at least part of his instructions from Sergeant Ryan at an armoury.
There appears thus to be a conflict between these sections of the Militia Act and the regulations affecting Reserve units such as this. In view of the fact that the regulations were clearly authorized by section 14 of the statute, as it was before the amendment, it may well be contended that the words "Canadian Army" in section 115, as amended, should be construed as applicable to units other than those of the Reserve Militia which wefe affected by the regulations contained in Appendix 10 to the King's Regulations and Orders. I find it unnecessary to come to a conclusion on the point, in view of the opinion that I have formed that in any event Corporal Ryan owed no duty to obey an order to do something prohibited by the regulations.
The truck or lorry driven by Ryan had been issued to the 28th Light Anti-Aircraft Regiment and, according to Colonel Reid, it had been "loaned" to him for the purpose of making this trip. The regulations for the employment of military vehicles at the time provided that transport vehicles were to be used for official purposes only and, while by Regulation 22 they might be used to transport service personnel to sports fields, play grounds and recreation centres, this was permissible only in the case of properly authorized and organized military sports and, in the case of these, the use of transport for such purposes, J. for distances in excess of twenty miles, was allowed only on the authority of the Quartermaster General at Army Headquarters or the general officer commanding of the command concerned, and its use for carrying civilians or persons other than service personnel was prohibited. The vehicle in question was not being used for official purposes at the time of the accident nor for the purpose of transporting service personnel to authorized or organized military sports: the distance between Souris and Charlottetown is fifty-three miles and permission to use the truck for a journey of this extent had neither been asked nor granted. If it be assumed for the purpose of argument that Corporal Ryan was obligated by the terms of his enlistment and the obligations imposed upon him by the Militia Act and the King's Regulations and Orders to obey an order of the commanding officer of the unit, communicated to him in an armoury, when such unit had neither been placed on active service nor was engaged in its annual drill or training under the provisions of the Militia Act, his only obligation was to obey a lawful order.
The oath required of Ryan on admission to the Reserve Militia under Regulation 15 of Appendix 10 of the King's Regulations and Orders was to serve under the terms and conditions laid down in the law and the regulations duly made from time to time in that behalf.
The penalties authorized by the Militia Act for disobedience are for the failure or refusal to obey any lawful order, not any order which a superior officer may see fit to give.
While, as pointed out by Hudson, J. in Dallas v. Home Oil Distributors Limited (1), the question as to whether a given act of an employee is within the scope of his employment, in the sense in which that phrase is used for the purpose of determining the employer's liability to third persons, is strictly not the same question as to whether an injury received by an employee was an injury received in the course of his employment for the purpose of applying the Workmen's Compensation Act, nevertheless judicial reasoning in respect of the latter class of questions may be valuable and illuminating. In Bourton v. Beauchamp (1), where a claim was made under the Workmen's Compensation Act of 1906 by reason of the death of a miner killed in doing an act prohibited by statutory regulation under J. the Coal Mines Act 1911, it was held that the deceased in disobeying the statutory regulation was acting outside the sphere of his employment and that, consequently, his death was not caused by an act arising out of or in the course of his employment. To the same effect is Moore v. Donnelly (2).
The reasoning applied in arriving at the conclusions of the House of Lords seems to me applicable in the present matter and accordingly that in performing an act forbidden by the regulations Corporal Ryan was not "acting within the scope of his duties or employment" within the meaning of subsection (c) of s. 19 of the Exchequer Court Act. The learned trial judge considered that the decision of the Court of Appeal in Irwin v. Waterloo Taxicab Co. Ltd. (3), should be applied in the circumstances of the present case but, with respect, I am unable to agree. In that case, Bird, the driver of the taxicab had been instructed to obey orders given to him by Black, the general manager of the taxicab company, and at the time of the accident he was complying with an order which, as shown in the judgment of Buckley L.J., he was by the defendant's directions bound to obey. In the present matter, the obligation of the soldier is limited by the statute and the regulations to obedience to lawful orders. decision in Irwin's case does not, therefore, seem to me in point. If it were it would be necessary, in my opinion, to decide whether the case was rightly decided, a debatable question, to my mind.
It may be said that if officers and men of the Canadian Army were entitled to question the validity of orders given to them by their superiors, it would be destructive of military discipline.
This argument was advanced in Heddon v. Evans (4), where an action was brought against an officer who had sentenced a soldier to fourteen days' confinement to barracks for conduct which was said to THE QuEE be to the prejudice of good order and military discipline, the plaintiff contending that the officer imposing the punishment had exceeded his jurisdiction. McCardie J. pointed out that the compact or burden of a man who entered the BMDSIAW
Army, voluntary or not, was that he would submit to Locke J. military law, not that he would submit to military illegality; that he must accept the Army Act and Rules and Regulations and Orders and all that they involved, since these "expressed his obligations and announced his military rights."
Dealing with the argument that if such actions were permitted it would injuriously affect the discipline of the Army, he said that he would not think this was so since he could not think that discipline would be the less readily exerted or the less loyally accepted if it were subjected at all times to the limitations created by the military law itself. Even if the contrary were so, I think this would not affect the matter to be here decided, which is the determination of a question of law depending upon the construction to be given to the regulations and the statutes. In Keighly v. Bell (1), a military officer claimed damages from his commander for false imprisonment, malicious prosecution and libel. Willes J. in the course of the argument, in referring to the contention of the defendant that what he had done in the matter had been authorized or approved by his superiors, said in part (p. 790):- I hope I may never have to determine that difficult question, how far the orders of a superior officer are a justification. Were I compelled to determine that question, I should probably hold that the orders are an absolute justification in time of actual war-at all events, as regards enemicz, or foreigners-and, I should think, even with regard to Englishborn subjects of the Crown, unless the orders were such as could not legally be given. I believe that the better opinion is, that an officer or soldier, acting under the orders of his superior-not being necessarily or manifestly illegal-would be justified by his orders.
Later, in delivering judgment, he said in part (p. 805):- If it were necessary to state any principle on which it would be competent to me to decide such a case, it would be that a soldier, acting honestly in the discharge of his duty-that is, acting in obedience to the orders of his commanding officers-is not liable for what he does, unless it be shown that the orders were such as were obviously illegal. He must justify any direct violation of the personal rights of another person by showing, not only that he had orders, but that the orders were such as he was bound to obey.
(1) [18661 4 F. & F. 763; 176 E.R. 781.
The statement first above quoted appears to me on the face of it to be simply obiter and neither of the passages appear to me to deal directly with the question to be decided here, as to whether obedience to an unlawful order lies within the scope of the duties of a soldier.
I am further of the opinion that the matter is not affected by the fact that Corporal Ryan may not have been aware of the true extent of the duty imposed upon him by the terms of his employment, by the Militia Act and by the King's Regulations and Orders and may have thought that he was in duty bound to obey the order in question. To impose liability upon the Crown the conditions of the section of the Exchequer Court Act must be met.
I am unable, with respect for contrary opinions, to understand how the scope of his duties and employment could be extended by his mistaken understanding as to what they were (Wardle v. Enthoven (1)).
I would allow this appeal and direct that the action be dismissed with costs throughout if they are demanded. J.:-This is an appeal from two judgments of Cameron J. whereby it was adjudged that the suppliants Spence and Bradshaw were respectively entitled to recover damages in the amounts of $10,318.85 and $750, resulting from a collision which occurred on the 24th of July, 1947 between a taxi-cab, owned by Bradshaw and operated by Spence, and an army truck, the property of the appellant, driven by Corporal H. W. Ryan.
The learned trial judge found on conflicting evidence that the sole cause of the collision was the negligence of Corporal Ryan and neither this finding nor the assessment of damages was questioned before us.
In the statement of defence in each case it is admitted that at the time of the collision "a motor vehicle, the property of His Majesty the King, as vested in the Minister of National Defence, was being driven by one Corporal Harrison W. Ryan, No. F403452, a servant of His Majesty the King in the employ of the Royal Canadian Armoured Corps (Reserve)" but it is pleaded that Corporal Ryan, at the time of the collision, was not acting within the scope of his duties or employment. The question for determination is whether or not he was so acting.
The relevant facts for the purposes of this appeal may be briefly stated as follows:
At the time of the collision Corporal Ryan was a noncommissioned officer in the Canadian Army and a member of the 17th P.E.I. Reconnaissance Regiment with Head- J.quarters at Charlottetown.
This regiment did not form part of the active force and Corporal Ryan was not on full-time military service.
The Commanding Officer of this regiment was Lieutenant-Colonel Reid. The vehicle in question was a 60-cwt. truck which had been issued to the 28th Light Anti-Aircraft Regiment.
The Commanding Officer of that regiment had loaned the vehicle to Lieutenant-Colonel Reid and counsel for the appellant did not argue that Lieutenant-Colonel Reid did not have the lawful custody of the vehicle or that he would not have been entitled to use it for any lawfully authorized military purpose connected with the regiment under his command. Lieutenant-Colonel Reid testified that he had received orders, which were not in writing, to do all that he could to build up the strength of his unit by securing recruits from an area which included Souris, a small town about fifty-three miles from Charlottetown, that he thought that it would tend to encourage recruiting if he arranged an "exhibition" baseball game between a team of young men at Souris and a team sponsored by his regiment and composed of members of the Queen's Square School Cadet Corps which was affiliated with his regiment and that, with this end in view, he made arrangements for such a game, intending to transport the Cadet Corps team from Charlottetown to Souris in an army truck. For reasons which do not appear the Cadet Corps team was unable to play this game. Lieutenant-Colonel Reid considered that the failure to send a team after the game had been arranged would have a bad effect on the purpose which he was seeking to accomplish, that is to encourage recruiting, and made arrangements that a team sponsored by the Knights of Columbus and which was in the same league as the Cadet Corps team should make the trip to Souris and play the game in place of the last mentioned team.
He accordingly instructed Sergeant Ryan, a member of his regiment who was at the time on full-time military service to call in Corporal Ryan and to instruct him to make the trip. A "Transport Work Ticket" authorizing the trip was made out, was signed by Lieutenant-Colonel
Reid and was given by him to Sergeant Ryan. On Corporal Ryan arriving at the armoury in response to the call which he had received, Sergeant Ryan handed him the "Transport
Work Ticket", which showed on its face that the trip to be taken was from Charlottetown to Souris, and ordered him to pick up the Knights of Columbus team, to drive them to Souris and, after the game and such entertainment as had been arranged for the visiting team were over, to drive the team back to Charlottetown. It was on the return trip that the collision occurred.
It was proved that Corporal Ryan was an experienced driver and that "he had standing orders", which expression was explained to mean that he had the permanent status of a duly qualified driver of army vehicles.
On previous occasions when Corporal Ryan had been called upon by his
Commanding Officer to drive an army vehicle he had been paid out of the public treasury and he was to be so paid for the trip in question.
These being the facts, it would seem clear that the order to make the trip was given to Corporal Ryan at a time while he was upon military duty and within an armoury and that it was his duty to obey it provided it was a lawful order. This follows from Sections 69(2) and 117 of the
Militia Act, R.S.C. 1927, c. 132 as amended by 1947, 11
George VI, c. 21, sections 22 and 34(1).
The relevant portions of these sections provide as follows:- Indeed, I did not understand counsel for the appellant to argue that if the order had been to drive the truck for some purpose authorized by the relevant regulations it would not have been Corporal Ryan's duty to carry it out. The main argument on behalf of the appellant is that under the relevant legislation, regulations and orders, J Lieutenant-Colonel Reid had no authority to make use of the truck for the purpose described, that, while Corporal Ryan was under a duty to obey the lawful orders of his superior officer, the order given to him was unlawful and that consequently in driving the truck pursuant to such order he was not acting within the scope of his duties or employment.
The learned trial judge found that Lieutenant-Colonel Reid was acting throughout in good faith and in the belief that he was entitled to use the truck as he did but that he was mistaken and that under the relevant orders he had no authority to use the truck for this purpose and committed a breach of the regulations regarding the use of military vehicles in so doing. The learned trial judge was, however, of opinion that Corporal Ryan was acting within the scope of his duties or employment, that it was his duty to drive army vehicles in accordance with the orders which he received from his superior officers, that this was what he was doing at the time of the collision and that consequently the appellant is liable for the damages resulting from his negligent driving.
Counsel for the respondents seeks to support the judgment on the grounds stated by the learned trial judge but he also argues that Lieutenant-Colonel Reid was entitled to use the truck for the purpose mentioned. He submits that the only order or regulation properly proved, and in any case the only one having relevance, was that contained in Exhibit B, Order No. 4558 said to have been issued by the Quartermaster General, and that the only provision in such order which has a bearing on the case at bar is the sentence:-"Army vehicles are to be used for official purposes only." He then argues that Lieutenant- Colonel Reid's purpose was an official one, that he had been ordered to do everything in his power to encourage recruiting, that, in view of section 138 of the Militia Act, it is unimportant that he had no written orders to this effect and that the encouragement of recruiting, having been ordered, became an official purpose. He submits that as, so far as the record discloses, the regulations are silent as to how this purpose should be carried out it must be taken to be left to the reasonable discretion of the Commanding Officer concerned. In support of this view counsel made reference to the evidence of Lieutenant-Colonel
Simmons, called by the appellant. This officer stated that his duties included general supervision over the operation of military vehicles in the charge of the various units in the Eastern Command, reserve force and active force, although the primary responsibility for the use of such vehicles rested with the Officer Commanding each unit.
Colonel Simmons said in part:- Of course, these officers could not by their evidence relieve the court of its duty to construe the relevant regulations but, as I understand it, their evidence was not tendered for this purpose but rather to show what orders were in fact received and what practice was actually followed in a matter not expressly dealt with in the regulations, i.e., the encouraging of recruiting. It is clear that if accepted, the argument that Lieutenant-Colonel Reid was authorized to use the vehicle for the purpose mentioned and was giving a lawful order to Corporal Ryan when he ordered him to drive the truck as he did, is sufficient to dispose of the appeal in favour of the respondents. I do not find it necessary to pass finally upon this argument and will oily say that the question appears to me to be a doubtful and difficult one.
For the purposes of this appeal I will assume, without deciding, that the learned trial judge was right in holding that Lieutenant-Colonel Reid did not have authority to send the truck to this particular destination and for this particular purpose. The question then is whether, on this assumption, Corporal Ryan was acting within the scope of his duties or employment at the time of the collision, for it was his negligence which caused injury to the suppliants.
The effect of the conflicting views put forward may be summarized as follows. For the appellant it is urged that srance the duty of Corporal Ryan was limited to driving army vehicles for such purposes as might be authorized by the relevant statutes, regulations and orders in force at the time of the accident, that since, ex hypothesi, driving the truck to Souris for the purposes mentioned was not authorized by such regulations his act in driving it there fell outside the scope of his duties and that the fact that he was ordered by Lieutenant-Colonel Reid to drive the truck to Souris is irrelevant as Corporal Ryan's duty did not include obedience to the orders of his Commanding Officer unless they were lawful. For the respondents it is argued that the duty of Corporal Ryan, who was admittedly on the day of the accident a servant of the Crown, was to drive army vehicles, that it was no part of his duty to decide to what places or for what purposes such vehicles should be driven but that as to this he was to obey the orders given to him by his superior officers, provided that such orders were not ex facie unlawful and (perhaps) provided further that the orders were not such as a reasonable man in Corporal Ryan's position should have realized were unlawful.
I have reached the conclusion that in the circumstances of this case it was Corporal Ryan's duty to obey the order which he received and that in driving the truck to and from Souris in obedience to that order he was acting within the scope of his duty. This view appears to me to be supported by the Judgment of the Court of Appeal in England in Irwin v. Waterloo Taxi-cab Company, Limited (1), relied upon and followed by the learned trial judge. In that case one Bird was employed by the defendant Taxi-cab Company to drive its taxi-cabs.
He was instructed by his employer to obey the orders of the General Manager, Black, and to drive the cabs as directed by him. Black ordered Bird to drive one of the taxi-cabs on what was clearly as between Black and the Company a frolic of his own but it was found that this fact was not known to Bird and that the circumstances were not such that he ought reasonably to have known it. While so driving Bird negligently struck and injured the plaintiff. It was held that the Company was liable for Bird's negligence although it is, I think, clear from the judgments that had Black himself been driving the, Company would not have been liable. We were not referred to any subsequent decision in which this judgment has been doubted and with respect I agree with it.
In the case at bar I think it clear that Corporal Ryan did not know that Lieutenant-Colonel Reid had no right to give him the order which he gave nor do I think that it can be said on the evidence that as a reasonable man Corporal Ryan should have known this. I have already indicated that, even after having had the advantage of hearing a full and able argument on the question, I am doubtful as to whether or not Lieutenant-Colonel Reid was authorized to give the order in question. It was not proved that any of the regulations or orders relied upon by the appellant as prohibiting Lieutenant-Colonel Reid from giving such an order had in fact been brought to Corporal Ryan's attention or had been published in such a manner that it became his duty to be aware of their contents. I do not think that there is any presumption that he knew their contents. In this connection reference may be made to the words of Lord Atkin in Evans v. Bartlam (1).
It appears to me that to hold that it was not within the duty of Corporal Ryan to obey the order given to him in this case by his superior officers would tend to bring about a condition of confusion. I cannot assent to the proposition that where a non-commissioned officer or man whose duty it is to drive *army vehicles receives from his Commanding Officer an order, not obviously unlawful, to drive a vehicle to a particular place and for a particular purpose he must, before obeying the order, conduct an inquiry of his own as to whether the order is lawful.
In Hodgkinson v. Fernie (1), in his charge to the jury at page 421, Cockburn C.J. said:- This charge was approved on a motion for a new trial a court consisting of Cockburn C.J. and Creswell, Crowder and Willes JJ.
In the case at bar counsel for the appellant does not suggest that Corporal Ryan should have questioned the merits of the order he received. The suggestion is that he should have questioned its legality. But where there is nothing on the face of an order or in the surrounding circumstances to indicate that it is unlawful the effect of holding that the subordinate should question its legality before obeying it would, I think, result in no less confusion than would permitting him to decide upon its merits. We are not called upon in this case to consider the duty of a soldier who receives an order, in fact unlawful, in such circumstances that he ought reasonably to know it is unlawful and I wish to make it clear that I do not intend to decide anything in relation to such a situation.
For the reasons given by the learned trial judge on this branch of the matter and for the reasons set out above I am of opinion that these appeals should be dismissed with costs.
Appeal dismissed with costs. Solicitor for the appellant: F. R. Varcoe.
Solicitors for the respondents: Bell and Mathieson. Appeal - Forma pauperis - Standard of means required under rule 142 of the Supreme Court of Canada. In determining whether a person, on an application for leave to appeal to this Court in forma pauperis, is not worth $500 as required by rule 142 of the Supreme Court, the matter should be approached, not as an inquiry whether the person has actually $500 worth of property, but whether in the ordinary business judgment, it can be said that he is good for $500.
Since this is an ameliorating rule, in weighing the considerations too delicate weights should not be used.
Kydd v. The Watch Committee of Liverpool,
24 T.L.R. 257 referred to.
HARRISON......................
ASSESSMENT AND TAXATION- BANKRUPTCY-Bankruptcy-Assets not equalling 50 per cent of unsecured claims-- Discretion to refuse discharge-Terms-- After-acquired salary-Whether non-exempt portion vests in trustee-Whether distinction between salary earned in bankrupt business and elsewhere-Bankruptcy Act, R.S.C.
1927, c. 11, 8s. 23(ii), 142, 148-Article
599. C. P.
The trial judge refused the respondent his discharge in bankruptcy on the grounds that the assets did not equal
50 per cent of the claims of the unsecured creditors; that the debtor had failed to pay to the trustee the seizable portion of.
his after-acquired salary; and the insufficiciency of his answers as he gave his evidence.
The Court of Appeal for Quebec reversed that judgment and granted him his absolute discharge on the main grounds that his debt position had developed from circumstances for which he could not be held responsible and that he did not have to account for salary earned elsewhere than in carrying on the business in which he went bankrupt. Held, that the conduct of the bankrupt while not sufficient to justify the absofute refusal, did justify his discharge only subject to the imposition of terms. Parliament, in adopting the language of s. 23(i) of the Bankruptcy Act, intended that only such portion of the salary of the debtor as was subject to seizure by legal process under the law of the respective provinces should vest in the trustee. The section discloses a clear intention that the bankrupt should retain those exemptions which the Legislature of the Province in which he resided provided
BANKRUPTCY-Concluded for him.
Apart from such exemptions, the section applies to all property subject to execution or seizure including wages or salary which could only be reached by garnishee or attachment procedure. There is nothing in the Bankruptcy Act to support the making of any distinction between a salary earned by the debtor in carrying on the business which was the subject-matter of the bankruptcy and a salary earned elsewhere. The purpose and object of the Bankruptcy Act is to equitably distribute the assets of the debtor and to permit of his rehabilitation as a citizen, unfettered by past debts. The discharge, however, is not a matter of right and the provisions of ss. 142 and 143 of the Act plainly indicate that in certain cases the debtor should suffer a period of probation. The penalty involved in the absolute refusal of discharge ought to be imposed only in cases where the conduct of the debtor has been particularly reprehensible, or in what have been described as extreme cases.
AccEPTANcE CORP. v. ...... CIVIL CODE-Article 400 (Crown Domain).......... ...
.......... See ROAn.
2.- Article 1156 (Subrogation)...... 190 3.-Articles 1570, 1571 (Sale of Rights of Action).......................... 4.- Article 1608 (Lease) ........... 264 See ROAD.
5.-Article 2196 (Acts of Sufferance) 264 6.- Article 2573 (Fire Insurance)... 190 CODE
OF CIVIL PROCEDURE - Article 195 (Inscription in law) ...... 433 See Jun 2.
2.- Articles 205, 207 (Default to plead) 433 3.- Article 442 (Loss of right to jury trial).............................. 433 See Juni 2.
4.-Article 599 (Exemption from seizure)............................ See BANKRuFrcy
60663-21
CONSTITUTIONAL LAW-Constitutioncl law---Mineral Taxation-Imposition of tax on owner of minerals-Tax based on acreage and assessed value-Whether direct or indirect-Whether land tax-Whether intention to have it passed on-Severability-Minal Taxation Act, 1948 (Sask.), c. 24, 5,
6, SS-B.N.A.
Act, 1867, s. 92(2).
By virtue of the Mineral Taxation Act, 1948, c. £4 and amendments, the Province of
Saskatchewan purported to impose an annual tax on each owner of minerals within the Province regardless of whether minerals were or were not present within, upon or under the land.
"Owner" was defined as a person registered in a land title office as the owner of any minerals.
"Mineral" means the right existing in any person by virtue of a certificate of title to work, win and carry away any mineral or minerals within, upon or under the area described in the certificate of title, and also any mineral or minerals within, upon or under any land. The Act provided that in a "non producing area", the tax would be at the rate of 3 cents per acre of land.
The Lieutenant-Governor was given the power to declare any area in the province a
'producing area" and provision was made for the assessment at their fair value of minerals in a producing area.
Until an assessment was made the owner was liable to pay at the rate of 50 cents per acre of land and fraction thereof in such an area.
Following an assessment, the owner would be liable to pay a tax at the rate prescribed from time to time by the Lieutenant- Governor in Council but not exceeding ten mills on the dollar of the assessed value of the minerals. Non-payment of the tax resulted in forfeiture of the minerals to the
The trial judge held that the
Act was intra vires as imposing direct taxation. The Court of Appeal for Saskatchewan held that the 3 cent tax was a direct tax but that the 50 cent tax and the mill rate tax were indirect.
Held (the Chief
Justice dissenting), that the appeal should be dismissed and the cross-appeal allowed.
Each of the three taxes is a land tax, is clearly direct taxation and not imposed with the intention that that it should be passed on to someone else. City of Halifax v. Fairbanks' Estate [1928] A.C. 117; A.G.
for B.C. v. Esquimalt and Nanaimo Ry. Co.
[1950] A.C. 87; A.G.for B.C. v. C.P.R. [19271
A.C. 934; A.G. for Manitoba v. A.G. for
Canada [1925] A.C.
561 and Glenwood
Lumber C.v. Phillips [1904] A.C. 405 referred to. C.P.R. v. A.G. 231
2.-Constitutional Law-Regulation of interprovincial and export trade-Competence of Parliament to enact The Agricultural
Products Marketing Act (Can.) 1949, 1st
Sess. c. 16-Of Governor General in Council to delegate powers to provincially organized
Board-Validity of Scheme established under the Agricultural Products Marketing (P.E.I.)
Act, 1940, c. 40. The Agricultural Products
Marketing (Prince Edward Island) Act,
CONSTITUTIONAL LAW-Concluded (S. of P.E.I., 1940, c. 40) as amended, delegated to the Lieutenant Governor in Council authority to establish schemes for the marketing within the Province of any natural products and to constitute boards to administer such schemes.
On Sept. 5, 1950, the Lieutenant Governor in Council appointed the appellant Board and delegated to it power to regulate the marketing of potatoes within the Province. Agricultural Products Marketing Act (Can.) 1941,
1st Sess., c.
16, authorized the Governor in Council to delegate to marketing boards which had been established under legislation of any province to regulate the marketing therein of agricultural products, like powers in the interprovincial and export trade. On Oct. 25, 1950, the Governor in Council by P.C. 5159 delegated to the appellant Board powers in relation to the interprovincial and export trade in P.E.I. potatoes similar to those it had had conferred upon it with regard to local sales thereof. The Board thereafter issued several orders of which No. 1 imposed an annual licence fee on dealers engaged in marketing potatoes in P.E.I.; No. 2 a levy on dealers for every cwt. shipped from the Island; No. 3 a minimum price below which certain types of potatoes could not be bought from local producers and forbade consignment or export sales; No. 6 imposed a levy on producers in respect of all potatoes marketed by P.E.I. producers and made the dealers agents of the Board for the purpose of collecting the levy. No. 2 was repealed but any existing liability for the levy under No. 2 was continued. Held: reversing the judgment of the Supereme Court of Prince Edward Island in banco, that the four questions referred to it by the Lieutenant-Governorin-Council should be answered as follows: 1. Is it within the jurisdiction and competence of the Parliament of Canada to enact The Agricultural Products Marketing Act, (1949)
13 George VI., (1st Sess.) c. 16?
Answer: Yes (unanimous). 2. If the answer to question No. 1 is yes, it is within the jurisdiction and competence of the Governor-General-in-Council to pass P.C. 5159?
Answer: Yes (unanimous). 3. Is it within the jurisdiction and competence of the Lieutenant-Governor-in-Council to establish the said Scheme and in particular section 16 thereof?
Answer: Yes except as to s. 19 (Kerwin, Taschereau, Estey, Cartwright, Fauteux, JJ); Yes (the Chief Justice); Yes except as to ss. 4 and 19 (Rand J); No (Kellock and Locke JJ.). 4. Is it within the jurisdiction and competence of the Prince Edward Island Potato Marketing Board to make the Orders made under the said Scheme or any of the Orders so made? Answer: Yes except as to Orders numbers 2 and 6 (Kerwin, Taschereau, Rand, Estey, Cartwright, Fauteux JJ.); Yes (the Chief Justice); No (Kellock and Locke JJ.). P.E.I. v. WILLIs INc............... CONTRACT-Contracts - Commercial - Agreement to supply engines to complete orders-Whether letters of request for engines were orders-Claim for rectification-"Orders"-Admissibility of oral evidence.
appellant and the respondent were agents for the sale of Chrysler marine engines in
British Columbia.
On January 26, 1949, the respondent agreed to surrender its franchise and to sell its stock of engines and accessories to the appellant; it was also agreed that the appellant would supply the respondent "with the necessary Chrysler engines to complete the orders shown on the attached list". No such list was attached to the agreement.
The parties met again the following day and the respondent, after showing some of its import permits, wrote to the appellant: "As agreed in our meeting yesterday, we are listing below orders we have on hand . . ." This list was compiled from letters from fishing companies, dated in 1948, and setting out an estimate of the number of engines they would need for the 1949 season and expressing the hope that the respondent would be able to deliver them as and when required.
The particulars of equipment and accessories were not set out in the letters. With these letters, the respondent was able to obtain the necessary import permits to bring the engines in from the United States.
After supplying some engines, the appellant refused any further delivery unless the respondent produced firm written orders obtained on or prior to January 26, 1949.
In an action for breach of contract, the appellant pleaded, inter alia, that it had agreed to supply the engines to enable the respondent to fulfil only bona fide orders, and counterclaimed for rectification of the contract. The trial judge accepted the evidence of the respondent that there had been no discussion as to the type of orders, and accordingly there could be no rectification and found that the appellant had in no way been deceived by the respondent.
This judgment was affirmed by a majority in the Court of Appeal for British Columbia.
Held (Rand and Cartwight JJ. dissenting), that since the letters were not orders within the meaning of that expression as used in the agreement no breach had been shown, and therefore the appeal should be allowed and the cross-appeal dismissed.
Per Estey J.: The evidence adduced supports the contention that a latent ambiguity was raised that justified the examination of the surrounding circumstances to determine the intent and meaning of the word
"orders" as used in the contract. But this, however, did not permit the reception in evidence of declarations from representatives of the customers, setting forth their intention with respect, to the meaning and purport of these letters. That intention, as in written instruments generally, must be determined by the court upon a construction of the language adopted by the parties to express their intention. The letters were estimates of customers requirements
CONTRACT-Continued and not orders for engines to be delivered in the future. If the respondent intended them as orders, it should have disclosed it, or made their contents known to the appellant in such manner that it would have understood respondent's meaning and intention. Per Locke J.: The documents upon which the respondent must rdly as constituting orders are the letters from certain customers prior to the agreement; and the word "orders" in the agreement cannot be construed as including these letters. The respondent's pleadings do not assert that by custom in the trade or otherwise the word "orders" should be construed otherwise than in accordance with its commonly accepted meaning, namely, a direction to make, provide or furnish anything at the responsibility of the person ordering. Oral evidence of those customers as to what they intended to convey by their letters was inadmissible; in the absence of any ambiguity in the language employed and in the state of the pleadings, the question of interpretation was for the trial judge. The letters were by their very terms simply estimates of the requirements of the companies during the coming season, and not a direction or request, to supply goods, or an offer capable of acceptance. Per Rand and Cartwright JJ. (dissenting): In view of the impossibility of recission and the completely executed consideration, the only issues open would be fraud and warranty. The former has been disposed of by the vindication of the respondent; the latter must arise as a conelusion of intention to be drawn by the court from the letters, but there is nothing in them that would justify that.
There was no reason to affirm when there was no question of what was in mind or of any undisclosed matter. The appellant was willing to supply those engines, and the technical difference between orders and what the letters involved was not of such a nature as would deprive the appellant of something of which it sought assurance.
Furthermore, the word 'orders" as used embraces the commercial commitments contained in the letters. Co. Ian. MCLEOD LTD.... 2.-Contract-Sale of steam shovel without certificate of inspection-Whether sale null ab initio-Whether tender of certifcate before judgment was sufficient-Pressure Vessels Act, R.S.Q. 1941, c. 177, s. 12, as amended. By a written contract, the appellant sold to the respondent a used pressure vessel, namely, a steam shovel.
Pursuant to its undertaking, the appellant made delivery at the respondent's sand pit. Subsequently, the respondent sought, by his action, the annulment of the sale on the ground that the shovel had been sold and delivered without the certificate mentioned in s. 12 of the Pressure Vessel Act (R.S.Q. 1941, c. 177 as amended), which provided that no such vessel "shall be again commercially CONTRACT-Continued dealt with for the purpose of being again used, before its owner has obtained from the chief inspector a certificate authorizing the use of the said vessel".
An offer to have the shovel inspected and the certificate delivered was made by the appellant before filing its plea and was renewed with the plea.
On motion made by the appellant pursuant to Art. 392 C.P., two experts were appointed and reported that the certificate could be issued.
The action was maintained by the Superior Court and by a majority in the Court of Appeal for Quebec on the ground that the sale in violation of section 12 of the Act was absolutely null and could not be validated by the tender. Held (Rand J. dissenting), that the appeal should be allowed and the action dismissed. Per Rinfret CJ.: Section
12 of the Act deals only with commercial sales and not with a sale of the nature of the one in the present case. Furthermore, even if this were a commercial sale, the section is not aimed at the sale itself but at the delivery and, therefore, at the most, there would have been a suspensive condition which would bring the case within the decision of Jean v. Gagnon ([1944]
S.C.R. 175), since the certificate was tendered before judgment.
But in fact, since the sale was not affected by the provisions of section 12, the delivery made satisfied all the obligations of the vendor towards the purchaser.
Per: Taschereau,
Estey and Fauteux JJ.: The word "owner"
in section 12 of the Act refers to the vendor and, in this case, he had the double obligation of delivering the shovel and of obtaining the certificate. Without the certificate, the shovel could not be commercially dealt with and its sale would be voidable.
But since the vendor had tendered the certificate before judgment, he had discharged the obligation imposed by section
12 and the sale was therefore, now complete. Per Rand J. (dissenting): Section 12 aims at furnishing the same security in second hand sales as in the case of new machines and applied to every stage of the sale from the contract to the delivery; and until the certificate is given, the vessel cannot be dealt with commercially and, therefore, the sale was null and void.
v. SIMARD.....................
3.-Vendor and Purchaser-Contract for
Sale of Land-Repudiation by Vendor- Purchaser's right upon anticipatory breach to immediately sue for declaratory judgment and specific performance-The Judicature
Act, R.S.O. 1950, c. 190, s. 15(b).
By a written agreement made on November 20,
1949, the appellant agreed to sell to the respondent, who agreed to purchase, certain lands in Toronto, the sale to be completed on or before January 29, 1950. On December 5, 1949 the appellant repudiated the contract.
n December 14, 1949, the respondent by letter denied his right to do
CONTRACT-Concluded so and before the date fixed for completion issued a writ claiming a declaration that the contract was binding and enforceable and ought to be specifically performed. The action was defended on the ground that the appellant had been induced by false representations to execute the agreement, that the document was incomplete as a contract with respect to material matters, that it was ambiguous, uncertain and that there was no memorandum in writing sufficient to satisfy the Statute of Frauds. These issues were decided against the respondent at the trial and in the Court of Appeal. The appellant contended that the action having been brought before the day fixed for the completion was premature and that the respondent's claim, if any, was for damages only. Held: (Dismissing the Appeal), that the defences pleaded by the appellant failed. Since the respondent had claimed a declaratory judgment that there was in existence a binding and enforceable agreement, the action was not prematurely brought. The Judicature Act, R.S.O. 1950, c. 190, s. 15(b). The dictum in Roberto v. Bumb [1943] O.R. 299 at 310, if intended as meaning that the plaintiff's cause of action for a declaration that the agreement was a binding contract and ought to be specifically enforced was not complete, disapproved. KLOEPFER HARDWARE V. R oy............................... CORROBORATION- Criminal law - Corroboration-Rape-Complaint-Evidence appellant charged with rape, admitted that he had had intercourse with the complainant but swore that it had been with her consent, which she denied saying that she had only submitted to it in fear of bodily harm. His conviction was upheld by the Court of Appeal for Ontario. Held: There should be a new trial; since the jury had not been properly instructed on the question of corroboration and as to the limited use that may be made of the evidence of complaint, it was impossible to say that if it had been properly instructed it would necessarily have convicted the appellant. Held: The corroboration to be sought was of the complainant's testimony that she did not consent but only submitted in fear of bodily harm. In a case of this sort, when there is any evidence on which a jury could find corroboration, the jury should be directed as to what is necessary to constitute corroboration and it is then for the jury to say whether corroborative inferences should be drawn. It was not, in the present case, made plain to the jury (i) that corroboration could be found only in evidence independent of the testimony of the complainant and of such a character that it tended to show that her story on the vital question of consent was true, and (ii) that facts, though independently established, could not amount to corroboration if, in the view of the jury, they were equally consistent with the truth as with the falsity CORROBORATION-Concluded of her story on this point. Held: It was not made clear to the jury that in a case where a sexual offence is charged, evidence of the making of a complaint is not corroborative of the testimony of the complainant. Where corroboration is required either by statute or under the rule of practice at common law, the corroborative evidence must be shown to possess the essential quality of independence. It must be made plain to the jury that the witness whose testimony requires corroboration can not corroborate herself. (Rez v. Auger 64 O.L.R.
181 and Rex v. Calhoun [1949] O.R. 180 ought not to be followed on that point).
Held: There was failure to instruct the jury of the limited use that may be made of the evidence of the complaint and to warn them against treating the complaint as evidence of the facts complained of.
The King v. Baskerville [1916] 2 K.B. 658;
The Queen v. Lilliman (1896) 2 Q.B. 167;
Rex v. Evans 18 C.A.R. 123; Rex v. Coulthread 24 C.A.R. and Rex v. Whitehead
[1929] 1 K.B. 99 referred to. THoMAs v.
CRIMINAL LAW- Criminal law-Murder-Drunkenness as defence-Capacity to form intent - Proper directions - Word
"proved" should not be used in charge. In a case where drunkenness is set up as a defence to a charge of murder, the trial judge should not use the word "proved", as taken from the third proposition formulated.
in Beard's case ([1920] A.C. 479 at 502), as
Lord Birkenhead was not there dealing with the question of the burden of proof. The right direction in such cases appears at page
334 in Mac Askill v. The King ([1931] S.C.R.
The charge, in the present case which included the use of that word would be improper if it were not for the clear directions from the trial judge that the accused was entitled to the benefit of any reasonable doubt as to his capacity to form the necessary intent.
Director of
Public Prosecution v. Beard [1920] A.C. 479;
Mac Askill v. The King [1931] S.C.R 330;
The King v. Hughes [1942] S.C.R. 517 and
Latour v. The King [1951] S.C.R. 19 referred to. 335
2.--Criminal law - Corroboration - Rape-Complaint-Evidence. The appellant, charged with rape, admitted that he had had intercourse with the complainant, but swore that it had been with her consent, which she denied saying that she had only submitted to it in fear of bodily harm. His conviction was upheld by the Court of
Appeal for Ontario. Held: There should be a new trial; since the jury had not been properly instructed on the question of corroboration and as to the limited use that may be made of the evidence of complaint, it was impossible to say that if it had been properly instructed it would necessarily have convicted the appellant.
Held: The corroboration to be sought was
CRIMINAL LAW-Continued of the complainant's testimony that she did not consent but only submitted in fear of bodily harm.
In a case of this sort, when there is any evidence on which a jury could find corroboration, the jury should be directed as to what is necessary to constitute corroboration and it is then for the jury to say whether corroborative inferences shoul be drawn.
It was not, in the present case, made plain to the jury (i) that corroboration could be found only in evidence independent of the testimony of the complainant and of such a character that it tended to show that her story on the vital question of consent was true, and (ii) that facts, though independently established, could not amount to corroboration, if, in the view of the jury, they were equally consistent with the truth as with the falsity of her story on this point. Held: It was not made clear to the jury that in a case where a sexual offence is charged, evidence of the making of a complaint is not corroborative of the testimony of the complainant. Where corroboration is required either by statute or under the rule of practice at common law, the corroborative evidence must be shown to possess the essential quality of independence.
It must be made plain to the jury that the witness whose testimony requires corroboration can not corroborate herself.
(Rex v. Auger 64 O.L.R. 181 and Rex v. Calhoun [1949] O.R. 180 ought not to be followed on that point). Held: There was failure to instruct the jury of the limited use that may be made of the evidence of the complaint and to warn them against treating the complaint as evidence of the facts complained of. The King v. Baskerville [1916] 2 K.B. 658; The Queen v. Lillyman (1896) 2 Q.B. 167; Rex v. Evans 18 C.A.R. 123; Rex v. Coulthread 24 C.A.R. and Rex v. Whitehead [19291 1 K.B. 99 referred to. THoMAs v. ................. 3.-Criminal law-S. 461-Jury trial- Refusal of trial judge to have charge taken in shorthand-No report made under s. 1020 of the Criminal Code.
4.-Criminal law - Abortion - Jury trial -No review of evidence by trial judge. The appellant, charged with having unlawfully used instruments or other means on the deceased woman with intent to procure her miscarriage, was found guilty of manslaughter. His conviction was affirmed by a majority in the Court of Appeal for Quebec, the dissenting judgment holding that the evidence did not warrant a conviction and that the trial judge failed to instruct properly the jury, by omiting to review the evidence.
Held (Rand and Fauteux JJ. dissenting), that the appeal should be allowed and a new trial directed. Per Rinfret C.J., Taschereau and Estey JJ.: As a general rule, in the course of his charge CRIMINAL LAW-Concluded a trial judge should review the substantial parts of the evidence and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them.
Where, as here, the evidence was technical and somewhat involved, it was particularly important to strip it of the non-essentials, and to present to the jury the evidence in its proper relation to the matters requiring factual decision, and direct it also to the case put forward by the prosecution and by the defence.
Unfortunately, this was not done here, and the explanations and grounds of defence were not adequately put before the jury. There was evidence upon which a jury properly instructed, could have found the accused guilty, but since it cannot be said that the verdict would necessarily have been the same if the proper instructions had been given, this was, therefore, not a case for the application of s. 1014(2) of the Criminal
Code.
Per Rand J. (dissenting)
: In a case such as here, where the defence was plain and uncomplicated, the absence of a repetition of the few salient facts had not and could not have had the slightest influence on the minds of the jury in reaching their verdict; there was, therefore, no ground for appeal and a fortiori no substantial wrong had been done. Per Fauteux J. (dissenting):
The practical significance which could be attached to the opinions of the experts called for the defence was more dependent upon than promoting the credibility of the appellant's testimony. The jury disbelieved him. The case for the appellant would have been weakened rather than strengthened if the trial judge had dealt exhaustively with the expert opinions. AzouLAY v.
5.--Criminal law-Illegal possession of cigarettes-Admissibility of statement made by accused-Whether warning should always be given. Duruis v. .....
Road, use of - Civil fruits - Possession by sufferance of the Crown - Droit de superficie-Arts. 400, 1608, 2196
C.C..........................
2.-Crown - Master and Servant - Negligence of Servant - Scope of authority
-Scope of employment-Soldier receiving unauthorized order-Duty to obey-Liability of Crown-The Exchequer Court Act,
R.S.C. 1927, c. 84, 19(c). The Militia Act,
R.S.C. 1927, c. 182, as amended by 1947 (Can.
c. 21, ss. 14, 20, 69 (2), 115, 117 and 188. In an action for damages arising out of the collision between a taxicab and an army truck owned by the Crown and driven by a soldier of the Royal Canadian Armoured
Corps (Reserve), who on the order of his commanding officer was using the truck to convey a civilian baseball team, Cameron J.,
CROWN-Continued in the Exchequer Court, held that the accident was solely due to the negligence of the soldier; that the truck was used contrary to army regulations and that the use it for such purposes. He found further that the soldier was on duty and that it was within the scope of his duties to drive military vehicles when directed to do so by his commanding officer and not open to him to question such an order; and that as the soldier at the time of the accident was a servant of the Crown, acting within the scope of his duties or employment, the principle of respondent superior applied and the Crown was therefore liable for the damages sustained.
On appeal to this Court the finding of negligence was not questioned but the Crown contended that under the relevant legislation, army regulations and orders, the commanding officer had no authority to make use of the truck for the purpose described and that while the soldier was under a duty to obey the lawful orders of his superior officer, the order in question was an unlawful one and that consequently in driving the truck pursuant thereto he was not acting within the scope of his duties or employment. Held: (Rand and Locke JJ. dissenting), that in the circumstances of the case, the soldier was acting within the scope of duties or employment.
Per: Kellock J. Under the circumstances of the case, there was nothing to indicate that the order was an unlawful order.
It was therefore the duty of the soldier to obey. Keighly v Bell 4 F & F 763 at 790, applied. Per: Estey J. Commanding Officer was authorized to promote recruiting.
It was part of his duty to direct the use of Army vehicles for military purposes, including that of recruiting. In issuing the transport work ticket authorizing the use of the vehicle here in question he misconstrued the regulations, this issue was so closely associated with but that authority which it was his duty to exercise that it cannot be said that in doing so he acted without the scope of his employment.
Neither could it be said of the sergeant to whom the transport work ticket was issued, nor of the driver, who received the instructions from him. Dyer v. Munday [1895] 1 Q.B.D. 742 at 746; Lloyd v Grace, Smith & Co. [1912] A.C. 716 at 737; Percy v. Corporation of the City of Glasgow [1922] A.C. 299 at 306; Goh Choon Seng v. Lee Kim Soo [1925] A.C. 550 and Lockart v. C.P.R. [1942] A.C. 591, applied. Per: Cartwright J. In the circumstances of the case it was the soldier's duty to obey the order and in doing so he was acting within the scope of his duty. Irwin v. Waterloo Taxi-Cab Co. Ltd. 3 K.B. 588. He did not know his commanding officer had no right to give him the order nor could it be said on the evidence that as a reasonable man he should have known. Evans v. Bartlam [1937] A.C. 473 at 479;
Hodgkinson v. Fernie (1859) CROWN-Concluded
C.B.N.S.
415 at 421.
Per: Rand J.
(dissenting)-It was not within the scope of the authority of the commanding officer directly or indirectly, to give a lawful order which could make the driving of the truck an act of the soldier within the course of his duties. A campaign for recruits was authorized and the means was assumed to be in the commanding officer but its scope could not extend to the violation of express regulations dealing with the use of equipment by which he was bound. The trip was an act of an extra-service nature and there was nothing before the Court to warrant the conclusion that, since the trip would involve the expense of conveyance, a bus could be hired on behalf of the Government, nor that in the face of the regulations cited, the truck could be used for such a purpose.
Irwin v. Waterloo Taxi-Cab Co.
Ltd., supra, on which the Court below relied, distinguished.
There the servant was bound to obey, here the only order the soldier was bound to obey was a lawful order.
The special character of military relations might justify his obedience but that did not make the act done that of the
Crown. If the Commanding officer himself had driven the truck, he would not have bound the Crown, nor could he engage the
Crown's responsibility by ordering a subordinate to do the same act.
Per:
Locke J. (dissenting)
: The use of the Army truck to carry the baseball team was contrary to the Army Regulations and the authorize its use for such purpose.
general instructions given him to recruit could not be construed as authorizing the carrying on of such activities by means forbidden by Army Orders. The obligation of the soldier who drove the truck under
The Militia Act and the King's Regulations and Orders was to obey lawful orders only.
In acting in accordance with an order not lawfully given, he was not acting within the scope of his duties or employment within the meaning of s. 19(c) of the Exchequer
Court Act (Bourton v. Beauchamp, [1920]
A.C.
1001; Moore v. Donnelly, [1921],
1 A.C. applied). The scope of the duties and employment of the soldier could not be extended by his mistaken understanding as to what they were (Wardley v. Enthoven
(1917) 86 L.J.K.B. 309).
THE V.
BRADSHAW.............
DELEGATION OF POWER- Constitutional Law-Regulation of interprovincial and export trade-Competence of Parliament to enact The Agricultural Products Marketing Act (Can.) 1949, 1st Sess. c. 16-Of
Governor General in Council to delegate powers to provincially organized Board- Validity of Scheme established under the
Agricultural Products Marketing (P.E.I.)
Ac, 1940, c. 40..................
DELEGATION OF POWER-Concluded 2.- Mandamus-Municipal law-Refusal by City Council of permit for extension to school building-Area restricted to erection of cottages by by-law--Discretion of Council in cases of schools-Whether by-law applicable -Whether ultra vires-Charter of City of Outremont, 1915, 5 Geo. V., c. 93, s. 40- By-law 826, ss. 84, 85-Cities and Towns Act, R.S.Q. 1941, c. s. 426 ........ DIVORCE- Divorce - Evidence - British Columbia Divorce Proceedings-Standard of Proof of Adultery required-The Divorce and Matrimonial Causes Act 1857 (Imp.) c. 85 as amended by c. 108, R.S.C.B. 1948, c. 97-English Law Act R.S.C.B. 1948, c. 111.
Proceedings in divorce under the Divorce and Matrimonial Causes Act in British Columbia are civil and not criminal in their nature and the standard of proof of the commission of a marital offence, where no question affecting the legitimacy of offspring arises, is the same as in other civil actions.
The rule as stated in Cooper v. Slade (1858) 6 H.L.C. 746 and in Clark v. The King (1921) 61 Can. S.C.R. 608 at 616 applies.
Mordaunt v.
Moncreiffe (1874) L.R. 2 Sc. & Div. 374; Branford v. Branford (1879) L.R. 4 P. 72 at 73; Redfern v. Redfern (1891) p. 139 at 145 and Doe dem Devine v. Wilson (1855) 10 Moo P.C. 502 at 532, referred to. 312 EVIDENCE- Contracts - Commercial- Agreement to supply engines to complete orders-Whether letters of request for engines were orders-Claim for rectification-"Orders"-Admissibility of oral evidence. . 122 2.-Divorce-Evidence-British Columbia Divorce Proceedings-Standard of Proof of Adultery required-The Divorce and Matrimonial Causes Act 1857 (Imp.) c. 85 as amended by c. 108, R.S.B.C. 1948, c. 97- English Law Act R.S.B.C. 1948, c. 111. the Divorce and Matrimonial Causes Act in British Columbia are civil and not criminal in their nature and the standard of proof of the commission of a marital offence, where no question affecting the legitimacy of offspring arises, is the same as in other civil actions. The rule as stated in Cooper v. Slade (1858) 6 H.L.C. 746 and in Clark v. The King (1921) 61 Can. S.C.R. 608 at 616, applies.
Mordaunt v. Moncreiffe (1874) L.R. 2 Sc. & Div. 374; Branford v. Branford (1879) L.R. 4 P. 72 at 73; Redfern v. Redfern(1891) 139 at 145 and Doe dem Devine v. Wilson (1855) 10 Moo P.C. 502 at 532, referred to. SrrH v. SMrrH......................... 3.---Criminal law-Corroboration-Rape -Complaint-Evidence.............. Highway - Non-repair - Trap-door installed in sidewalk covered with snow and not in reasonably good state of repair-Liability of owner of door when pedestrian slipped.
The appellant, while walking on the sidewalk in front of the respondent's premises slipped on two iron trap-doors with studs on the top which the respondent had many years ago installed in-and flush with-the sidewalk. It had snowed for several hours before the accident and the snow had not been cleaned off the doors which were partially concealed. The trial judge found that the studs on the doors had been worn down during the years and that some had entirely disappeared that the doors appeared to have sagged and were uneven and sloped, and that they were not in a reasonably good state of repair. The Court of Appeal reversed that judgment and found that the studs were worn but that there was no evidence that the worn condition of the doors was the cause of the accident. Held: The appeal should be allowed and the action mainained. There was evidence to justify the finding that the fall was caused by the slope of the doors. The appellant was entitled to find the sidewalk safe and convenient for travel. The respondent had placed the doors in the sidewalk, and by allowing them to sag and become uneven and sloped, had interfered with the rights of the public and impeded the way of the appellant as a traveller on the highway. The contention of the respondent that it had no authority to repair the doors since they were part of the sidewalk fails since from time to time the doors were opened and used by the respondent.
Castor v. Corporation of
Uzbridge (1876) 39 U.C.Q.B. 113 referred to.
v. HILL.............
HOSPITAL- Master and servant - Hospitals-Liability of hospital for negligence of interne-Patient discharged with broken neck
-Interne incompetent to read X-rays and failed to consult radiologist-Whether discharge was the cause of the death of the patient.
The respondent's husband, following an automobile accident, was admitted at night into the emergency ward of the appellant hospital. There, he was examined by the internes on duty and
X-rays were taken.
The films were not submitted to a radiologist who was on call, but the internes, although not competent to read them proceeded to do so and advised the family physician that they had found nothing abnormal, with the result that the patient was discharged from the hospital with a dislocated fracture of the neck.
The following day, he was re-admitted to the hospital by his own physician after the X-ray films had been examined by a radiologist, but died a few days later. The jury rendered a general verdict against the appellant and this was affirmed in the
Court of Appeal for British Columbia.
Held (Locke J. dissenting), that the appeal should be dismissed and the action main- HOSPITAL-Concluded tained. Held: The hospital undertook to treat the patient and was responsible for the negligence of its internes; and there was evidence on which the jury might properly find that the death of the patient resulted from his discharge from the hospital due to the interne's negligence either in not reading the X-ray films correctly or in not calling a radiologist. Per Locke J. (dissenting):
The hospital undertook to give the patient both nursing and medical attention, and the negligence of the interne would render the hospital liable for any resulting damage; there was however, no evidence from which the jury might properly draw the inference that the ileus, which caused the death, resulted from his failure to properly diagnose the nature of the original injury or from anything by or on behalf of Fraser in reliance upon his advise. (Ryder v. Wombwell (1868) L.R. 4 Ex. 32 referred to). INSURANCE- Insurance, Fire - Subagent with no evidence of authority-Power to bind Principal-Effect of receipt of premium with application by such sub-agent -Loss occurring before application received by General Agent.
A sub-agent of a fire insurance company who has nothing from the company in the way of interim receipts or even official receipts with the name of the company on them, and in fact nothing to indicate that he has any authority to enter into a binding contract of insurance on its behalf, is not an actual agent for the company so as to bind it to any insurance either in writing or orally.
Linford v. Provincial Horse & Cattle Insurance Co., 34 Beav. 291, followed. Mackie v. European Assurance Society, 21 L.T. (N.S.) 102; Marfitt v. Royal Insurance, 38 T.L.R. 334; Kline Bros. v. Dominion Fire Insurance Co., 47 Can. S.C.R. 252 and Grimmer v. Merchants' and Manufacturers' Fire Insurance Co., 4 M.P.R. 582, distinguished. Potvin v. Glen Falls Insurance Co., [1931] 1 W.W.R. 380 at 390, approved. Assuming that in the case at bar the sub-agent had authority to receive payment of the premium with the application, all that amounted to was, as pointed out in Linford v. Provincial Horse & Cattle Insurance Co. supra, at 293, that he had made "a proposal with a deposit which the company was entitled either to accept or reject and the company never having accepted it, was not bound." There is no authority binding upon this Court which lays down as a rule of presumption that one who testifies to an affirmative is to be credited in preference to one who testifies to a negative. Taschereau J. in Lefeunteum v. Beaudoin 28 Can. S.C.R. 89 at 93-94 was speaking only for himself and his statement, so far INSURANCE-Concluded as it is inconsistent with this decision, cannot be supported. Decision of the Supreme Court of New Brunswick, Appeal
Division, 28 M.P.R. 59, reversed. WORLD
MARINE & INS. LTD., V.
LEGER..........................
2.-Insurance - Fire - Contents of building-Whether objects lost in fire were part of contents-Whether variation of statutory conditions-Subrogation-Quebec Insurance
Act, R.S.Q. 1941, c. £99, ss. 240, £41- Articles 1156, 1570, 2578 C.C. The insured entered into contracts of insurance with the appellant and several other companies for a total fire insurance of $250,000, apportioned $150,000 upon the building and
$100,000 on the contents. These policies were "blanket policies", identical in terms and each one limiting the issuing company's share of the total risk. The insured was authorized to augment or diminish the total amount but had to maintain an insurance "de m~me forme, teneur et port6e" of a total of $250,000.
The word
"contents" was defined: "Tout ce qui se trouve dans les immeubles et qui n'est pas autrement assur6". Subsequently the insured acquired an insurance with the respondent in the sum of $10,000 on certain
"objets d'art".
These were part of the contents of the buildings and initially included under the appellant's policy.
A fire occurred, the respondent paid the full amount of the loss on the "objets d'art", took a transfer from the insured and, as the appellant denied any liability to pay a pro rata share, brought action against him.
The appellant contended that the "objets d'art " did not fall within the term "contents" in his policy since they were differently assured. The trial judge dismissed the action, but a majority in the Court of Appeal for Quebec reversed that judgment. Held (Kellock and Fauteux
JJ. (dissenting)
): that the appeal should be allowed and the action dismissed, since the
"objets d'art" did not come within the term "contents" as defined in the appellant's policy and were, therefore, not covered by its policy at the time of the loss.
words "qui n'est pas autrement assur6"
are a part of the sentence describing the subject matter and peril insured, and are not a variation of the statutory conditions within the meaning of ss. 240, and 241 of the Quebec Insurance Act.
PHENIX v. THE TRAvELERs
FIRE INS. Co......................
INTERVENTION-Intervention-Aggressive-Main action having been dismissed, does intervention fall-Whether that is a question of practice and procedure. The appellant brought action to have a lease declared null. The trial judge dismissed the action on the ground that it was a nullity ab initio since it had been taken against the mandataries instead of against the mandator.
The respondent intervened in the action
INTERVENTION-Concluded and asked to be declared the owner of the property in question.
This inrervention was also dismissed by the trial judge on the ground that it had to fall with the main action. There was no appeal from the judgment on the main action, but the respondent appealed with success the dismissal of the intervention.
Held, that the appeal should be dismissed and the intervention maintained.
Per Curiam: On the merits of the intervention, the respondent was justified in claiming title to the property.
Per Rinfret C.J., and Cartwright J.: The question as to whether an intervention of the nature of the one in the present case should fall ipso facto when the main action is dismissed is merely a question of practice and procedure, and there are here none of the special circumstances which would warrant this Court in changing its invariable practice not to interfere in such a matter. Per Taschereau and Rand JJ.: The intervention in the present case determines the substantive right of the respondent to have its aggressive intervention declared well-founded notwithstanding the dismissal of the main action.
Such an intervention in contradistinction with the ordinary accessory intervention, does not necessarily suffer the fate of the main action; it is, therefore, more than merely a question of practice and procedure. Per Kellock J.: The contention that the intervention was not the proper way for the respondent to proceed involves merely a question of procedure. SocitrAg IMMOhILItRE
........... JURY- Negligence - Jury trial - Conduct of trial-Submission of questions to jury piecemeal-Mistrial.
The appellant, a switchman employed in connection with a train movement in the respondent's yards at Saskatoon, suffered injury when attempting to enter the train after it had commenced to move.
The appellant's claim was that the train had commenced to move without having received a signal from him and that this was a negligent act and was the proximate cause of his injury.
A preliminary question as to whether the train had been started without such a signal having been given having been answered in the affirmative by the jury, the trial judge submitted a further question as to whether this was a negligent act and, if so, had it caused or contributed to the occurrence of the accident. jury found for the appellant and awarded damages for which judgment was entered in his favour but the Court of Appeal directed a new trial on the ground that the conduct of the trial was unsatisfactory. Held: Cartwright J. dissenting that the appeal should be dismissed.
Per Rand, Kellock and Locke JJ.: The judge's charge when submitting the question as to whether the act complained of was negligent was made in terms which would JURY-Continued tend to lead the jury to believe either that that question was the same as the preliminary question or that the trial judge had himself determined that it was a negligent act or that he was instructing them so to find. The conduct of the trial was in this respect unsatisfactory and the appeal should be dismissed.
Per Cartwright J.
(dissenting): The course of putting one question to the jury and then permitting them to separate for the night before charging them as to the remaining questions is both unusual and undesirable, but the court was referred to no authority for the proposition that it is unlawful, and the decision in Fanshaw v. Knowles [19161
2 K.B. 538 is to the contrary.
As both parties had agreed to such course, the verdict should not be set aside on this ground since no miscarriage of justice had resulted. The charge to the jury was sufficient and contained no error of law.
There was evidence on which it was open to the jury, acting reasonably, to answer the question as they did and their answer should not be disturbed.
C.N.R........................
2.-Jury trial, civil-Production of plea after delays have expired-Motion to fix facts- Whether 30 days elapsed after case stood ready for trial-When "stands ready for trial"-Whether plaintiff deprived of his right to jury trial-Tacit consent to extension of delays to pleas-Arts. 195, 205, 207, 442
C.P.
The respondent brought action against the appellant for damages for personal injuries in September, 1947, and made option in his statement of claim for a trial by jury. The appellant applied for particulars which were given only in
January, 1948. The plea to the actionaccompanied by a partial inscription in law-was not filed until May 7, 1948.
The respondent did not secure a certificate of default.
On a motion made by the respondent for the assignment of the facts to be inquired into by the jury the appellant objected that the respondent default under Art. 442 C.P., having allowed thirty days to elapse from the date at which the case stood ready for trial without proceeding to bring on the trial, that consequently the respondent was deprived of his right to a jury trial and that the case should proceed in the ordinary manner, i.e., before a judge alone.
The objection was maintained by the Superior Court but dismissed by the Court of Appeal for
Quebec.
Held: The appeal should be dismissed since the respondent was not in default under Art. 442 C.P. and, therefore, was not deprived of his right to a jury trial. Held: The right to a jury trial is an exceptional one under Quebec Law, the required formalities must be strictly observed and the delay under Art. 442 is of public order in contra-distinction with those pertaining to the filing of the pleas which can be extended by the parties or the
JURY-Concluded
Court even after foreclosure.
As soon as the case stands ready for triali.e., generally when issue is joined-and remains thus during 30 days, the right to the jury trial is lost if the party who asked for it does not during that period proceed on the motion for the assignment of facts, unless the Court has granted an extension. Held: In the present case, as there is no doubt that a tacit consent had been given for the late filing of the plea and partial inscription in law, the appellant was not, therefore, foreclosed; and, since, under the circumstances, the inference can be drawn from the conduct of the parties that, at least up to the time of the filing of that plea and inscription, there was a mutual understanding not to observe strictly the delays respecting the filing of pleas, the 30 days period had therefore not yet commenced to run at that time. Held also, that a judgment affirming or denying the existence of the right to a jury trial determines, not a question of procedure, but a substantive right and also a question of jurisdiction, and is, therefore, a "final judgment" within the meaning of that expression as used in the Supreme Court Act.
MANDAMUS- Mandamus - Municipal law--Refusal by City Council of permit for extension to school building-Area restricted to erection of cottages by by-law-Discretion of Council in cases of schools-Whether bylaw applicable-Whether ultra vires-Charter of City of Outremont, 1915, 5 Geo. V, c. 98, s. 40-By-law 326, as. 84, 85-Cities and Towns Act, R.S.Q. 1941, c. 233, s. 426. By section 84 of By-law 326 of the City of Outremont, it was provided that only detached or semi-detached cottages shall be erected on certain streets in the City; and by section 85, the Council was given the discretion to "allow the construction of churches, schools and hospitals in any place in the City". Desiring to enlarge its school building, which had been erected in a prohibited area before the prohibition came into force, the respondent applied to the City for a permit to erect an extension of the school building on two adjoining lots, being also in the area covered by the bylaw. The permit was refused by the Coun- Thereupon, the respondent instituted proceedings by way of mandamus against the City for a declaration that the by-law did not prohibit the construction contemplated, and, if it did, that sections 84 and 85 be declared ultra vires and the permit granted.
The Supreme Court held the sections to be valid but that they did not apply in this case. Without passing on the validity of the sections, the Court of Appeal for Quebec held also that they were not applicable in the present instance. that the appeal should be dismissed since sections 84 and 85 of By-Law 326 of the City of Outremont, even assuming that they were applicable to this case, were MANDAMUS-Concluded ultra vires the powers of the City, as delegated to it by its Charter. Firstly, since in the matter of municipal legislation, the corporations have no other powers than those formally delegated by the legislature, which powers the corporations cannot extend nor exceed;
since the City was empowered by its charter to regulate by by-law the nature of the dwellings to be erected within its territory; and since by section 85, the City did not regulate by by-law the erection of the buildings mentioned therein-but on the contrary left the decision ultimately to the discretion of the Council,-the City has exceeded its legislation powers and section 85 is, therefore, ultra vires. Secondly, since it cannot be said that the City, but for the provisions of Section 85, would have enacted the prohibition in section 84 in such an absolute form, as it is obvious that the City wanted the cases in section 85 treated differently, section 84 must also be considered as ultra vires. CITY
...........
MASTER AND SERVANT-Master and servant-Hospitals-Liability of hospital for negligence of interne-Patient discharged with broken neck-Interne incompetent to read
X-rays and failed to consult radiologist- Whether discharge was the cause of the death of the patient. The respondent's husband, following an automobile accident, admitted at night into the emergency ward of the appellant hospital. There, he was examined by the internes on duty and
X-rays were taken.
The films were not submitted to a radiologist who was on call, but the internes, although not competent to read them, proceeded to do so and advised the family physician that they had found nothing abnormal, with the result that the patient was discharged from the hospital with a dislocated fracture of the neck. The following day he was readmitted to the hospital by his own physician after the X-ray films had been examined by a radiologist, but died a few days later.
The jury rendered a general verdict against the appellant and this was affirmed in the Court of Appeal for British
Columbia.
Held (Locke J. dissenting)
that the appeal should be dismissed and the action maintained. Held: The hospital undertook to treat the patient and was responsible for the negligence of its internes;
and there was evidence on which the jury might properly find that the death of the patient resulted from his discharge from the hospital due to the interne's negligence either in not reading the X-ray films correctly or in not calling a radiologist.
Per Locke J. (dissenting)
: The hospital undertook to give the patient both nursing and medical attention, and the negligence of the interne would render the hospital liable for any resulting damage; there was however, no evidence from which the jury
MASTER AND SERVANT-Continued might properly draw the inference that the ileus, which caused the death, resulted from his failure to properly diagnose the nature of the original injury or from anything done by or on behalf of Fraser in reliance upon his advice. (Ryder v. Wombwell (1868) L.R. 4 Ex. 32 referred to). FRASER............................ 2.--Crown-Master and Servant -Negligence of Servant-Scope of authority-Scope of employment-Soldier receiving unauthorized order-Duty to obey-Liability of Crown-The Exchequer Court Act, R.S.C. 1927, c. 84, S. 19 (c).
The Militia Act, R.S.C. 1927, c. 182, as amended by 1947 (Can.) c. 21, ss. 14, 20, 69 (2), 115, 117 and 138. In an action for damages arising out of the collision between a taxicab and an army truck owned by the Crown and driven by a soldier of the Royal Canadian Armoured Corps (Reserve), who on the order of his commanding officer was using the truck to convey a civilian baseball team, Cameron J., in the Exchequer Court, held that the accident was solely due to the negligence of the soldier; that the truck was used contrary to army regulations and that the commanding officer had no authority to use it for such purposes. He found further that the soldier was on duty and that it was within the scope of his duties to drive military vehicles when directed to do so by his commanding officer and not open to him to question such an order; and that as the soldier at the time of the accident was a servant of the Crown acting within the scope of his duties or employment, the principle of respondeat superior applied and the Crown was therefore liable for the damages sustained. On appeal to this Court the finding of negligence was not questioned but the Crown contended that under the relevant legislation, army regulations and orders, the make use of the truck for the purposes described, and that while the soldier was under a duty to obey the lawful orders of his superior officer, the order in question was an unlawful one and that consequently in driving the truck pursuant thereto he was not acting within the scope of his duties or employment. Held: (Rand and Locke JJ. dissenting), that in the circumstances of the case, the soldier was acting within the scope of duties or employment. Per: Kellock J. Under the circumstances of the case, there was nothing to indicate that the order was an unlawful order. It was therefore the duty of the soldier to obey. Keighly v. Bell 4 F. & F 763 at 790, Per: Estey J. Commanding Officer was authorized to promote recruiting. It was part of his duty to direct the use of Army vehicles for military purposes, including that of recruiting. In issuing the transport work ticket authorizing the use 19521
MASTER AND SERVANT-Continued of the vehicle here in question he misconstrued the regulations, but this issue was so closely associated with that authority which it was his duty to exercise that it cannot be said that in doing so he acted without the scope of his employment.
Neither could it be said of the sergeant to whom the transport work ticket was issued, nor of the driver, who received the instructions from him.
Dyer v. Munday [1895]
1 Q.B.D. 742 at 746; Lloyd v. Grace, Smith
& Co. [1912] A.C. 716 at 737; Percy v.
Corporation of the City of Glasgow [19221
A.C. 299 at 306;
Goh Choon Seng v.
Lee Kim Soo A.C. 550 and Lockart
C.P.R. [1942]
A.C.
591,
Per: Cartwright J. In the circumstances of the case it was the soldier's duty to obey the order and in doing so he was acting within the scope of his duty. Irwin v. Waterloo Taxi-Cab Co. Ltd. [1912] 3 K.B.
He did not know his commanding officer had no right to give him the order nor could it be said on the evidence that as a reasonable man he should have known.
Evans v. Bartlam [1937] A.C. 473 at 479;
Hodgkinson v. Fernie (1859) 11 C.B.N.S.
415 at 421.
Per: Rand J. (dissenting)- It was not within the scope of the authority of the commanding officer, directly or indirectly, to give a lawful order which could make the driving of the truck an act of the soldier within the course of his duties.
A campaign for recruits was authorized and the means was assumed to be in the commanding officer but its scope could not extend to the violation of express regulations dealing with the use of equipment by which he was bound. The trip was an act of an extra-service nature and there was nothing before the Court to warrant the conclusion that, since the trip would involve the expense of conveyance, a bus could be hired on behalf of the Government, nor that in the face of the regulations cited, the truck could be used for such a purpose.
Irwin v. Waterloo Taxi-Cab Co.
Ltd., supra, on which the Court below relied, distinguished.
There the servant was bound to obey, here the only order the soldier was bound to obey was a lawful order.
The special character of military relations might justify his obedience but that did not make the act done that of the Crown.
If the commanding officer himself had driven the truck, he would not have bound the Crown, nor could he engage the Crown's responsibility by ordering a subordinate to do the same act. Per: Locke J. (dissenting): The use of the Army truck to carry the baseball team was contrary to the Army Regulations and the commanding officer had no authority to authorize its use for such purpose.
The general instructions given him to recruit could not be construed as authorizing the carrying on of such activities by means forbidden by Army
Orders. The obligation of the soldier who
MASTER AND SERVANT-Concluded drove the truck under The Militia Act and the King's Regulations and Orders was to obey lawful orders only. In acting in accordance with an order not lawfully given, he was not acting within the scope of his duties or employment within the meaning of s. 19(c) of the Exchequer Court Act (Bourton v. Beauchamp [1920] A.C. 1001; Moore v. Donnelly. [1921]
1 A.C. 329 The scope of the duties and employment of the soldier could not be extended by his mistaken understanding as to what they were (Wardely v. Enthoven (1917) 86 L.J.K.B. 309).
BRADSHAw............ MINERALS-Constitutional law-Mineral Taxation-Imposition of tax on owner of minerals-Tax based on average and assessed value-Whether direct or indirect-Whether land tax-Whether intention to have it passed on-Severability-Mineral Taxation Act, 1948 (Sask.), c. 24, ss. 3, 6, SS-B.N.A. Act, 1867, 92(2)................. MUNICIPAL CORPORATION- Mandamus-Municipal law-Refusal by City Council of permit for extension to school building-Area restricted to erection of cottages by by-law-Discretion of Council in cases of schools-Whether by-law applicable -Whether ultra vires-Charter of City of Outremont, 1915, 5 Geo. V. c. 93, s. 40- By-Law 326, ss. 84, 85-Cities and Towns Act, R.S.Q. 1941, c. 283, s. 426. By section 84 of By-Law 326 of the City of Outremont, it was provided that only detached or semidetached cottages shall be erected on certain streets in the City; and by section 85, the Council was given the discretion to "allow the construction of churches, schools and hospitals in any place in the City". Desiring to enlarge its school building, which had been erected in a prohibited area before the prohibition came into force, the respondent applied to the City for a permit to erect an extension of the school building on two adjoining lots, being also in the area covered by the by-law. The permit was refused by the Council.
Thereupon, the respondent instituted proceedings by way of mandamus against the City for a declaration that the by-law did not prohibit the construction contemplated, and if it did, that sections 84 and 85 be declared ultra vires and the permit granted. Superior Court held the sections to be valid but that they did not apply in this case. Without passing on the validity of the sections, the Court of Appeal for Quebec held also that they were not applicable in the present instance.
Held, that the appeal should be dismissed since sections 84 and 85 of By-Law 326 of the City of Outremont, even assuming that they were applicable to this case, were ultra vires the powers of the City as delegated to it by its Charter.
Firstly, since in the matter of municipal legislation, the corporations have -Concluded no other powers than those formally delegated by the Legislature, which powers the corporations cannot extend nor exceed;
since the City was empowered by its charter to regulate by by-law the nature of the dwellings to be erected within its territory;
and since by section 85, the City did not regulate by by-law the erection of the buildings mentioned therein-but on the contrary left the decision ultimately to the discretion of the Council,-the City has exceeded its legislation powers and section
85 is, therefore, ultra vires. Secondly, since it cannot be said that the City, but for the provisions of Section
85, would have enacted the prohibition in section 84 in such an absolute form as it is obvious that the
City, wanted the cases in section 85 treated differently, section 84 must also be considered as ultra vires.
ScHooL
TRUSTEES CITY
NEGLIGENCE- Master and Servant - Hospitals-Liability of hospital for negligence of interne-Patient discharged with broken neck-Interne incompetent to read X-rays and failed to consult radiologist-Whether discharge was the cause of the death of the patient...........
..............
Highway - Non-repair - Trap-door installed in sidewalk covered with snow and not in reasonably good state of repair- Liability of owner of door when pedestrian slipped......
..................
3.-Negligence - Nuisance - Escape water from unheated building through cellar wall due to dislodging of reducing plug from
4" water pipe-Liability-Foreseeable risk- Whether maintenance of such pipe an ordinary user - Principle of Rylande
Fletcher............................
4.- Schools-Liability of teacher and trustees supplying hot food to pupils- Public Authorities Protection-When attempting to light gasoline stove on teacher's instructions pupils injured-Action not commenced within six months-The Public
Authorities Protection Act, R.S.O.
1987, c. 185, s. 11-The Public Schools Act,
R.S.O. 1987, c. 857, sa. 15, 68, 89 and 103, as amended.........................
See ScHooLs.
5.-Negligence-Jury trial-Conduct of trial-Submission of questions to jury piecemeal-Mistrial .................
NUISANCE- Negligence - Nuisance - Escape of water from unheated building through cellar wall due to dislodging of reducing plug from 4" water pipe-Liability
NUISANCE-Continued
-Forseeable risk-Whether maintenance of such pipe an ordinary user-Principle of Rylands v. Fletcher. The respondent was the owner of a building divided into four adjoining units, the fourth of which was under lease to the appellant.
The basement of the first unit was separated from the second by a 2' thick stone and concrete wall; the second from the third by a wooden partition; the third from the fourth by a stone wall in which there were two wooden doors.
Water entered into the first unit from a 12" street main through a 4" pipe. The end of this pipe was enlarged into a "bell" into which, for the purpose of reducing the flow to 2", an iron plug was inserted. At the time the action arose, March 1, 1948, the first unit was undergoing alterations, then in progress some two months. The ground floor windows were without glass and boarded up and at least one window in the basement was broken or open. The unit was unheated except for portable oil burners used during the day. There was a 4" trap to carry off water in the basement floor but this drain at the time was covered with 18" of concrete and sand. The temperature dropped from 19 degrees above zero during the day to 9 degrees below zero at midnight. At about 10.15 p.m. water was noticed flowing out of the basement windows, and the water department and Edgar LeBlanc, president of the respondent company, notified.
The water officials thereupon closed off the water but LeBlanc, believing nothing further could then be done, did not visit the premises until 8 o'clock the next morning. It was then found that the reducing plug had been dislodged from the bell and that water had seeped through the different basement walls into that of the appellant causing damage to goods stored there in respect of which it claimed to recover damages. Its action was dismissed by the trial judge whose judgment was affirmed by the Supreme Court of New Brunswick. Held: (Locke J. dissenting) that the appeal should be allowed and the case referred back to the trial Court to fix the amount of damages on evidence adduced at the trial with liberty to both sides to adduce further evidence. Per: Rinfret CJ. and Rand J. appellant's claim was put on three grounds: negligence, nuisance, and the rule in Rylands v. Fletcher, L.R. 3 H.L. 330. The case for negligence was not made out. On the other grounds the first question was whether the maintenance of a 4" water pipe was an ordinary or necessary use or one to be treated as special? It was not so as to the requirements of the respondent: It was equally exceptional in the general use of water; and it created a substantial addition to the ordinary risks to the neighbouring premises.
These enhanced risks were prima facie risks of the person creating them and there was nothing NUISANCE-Concluded before the Court to take the case outside the scope of the rule. Richards v. Lothian,
A.C. 263 at 280 approving Blake v. Woolf, [1898] 2 Q.B. 426. Musgrove v.
Pandelis, [1919] 2 K.B. 42 and Mulholland v. Baker, [1939] 3 All E.R. 253 followed.
When the respondent was notified the basement had filled a duty to act promptly arose and as a minimum of precaution it should have apprised the appellant.
Sedleigh-Denfield v. O'Callaghan, [1940] A.C.
880; Pope v. Fraser & Southern Rolling and Wire Mills Ltd., 155 L.T.R. 324;
Northwestern Utilities Ltd. v.
London
Guarantee & Accident Co., [1936], A.C. 108.
Per: Kerwin and Estey JJ. The evidence justified the conclusion that the plug was forced out by the freezing of the pipes and that the respondent was negligent in not taking steps to prevent such an occurrence.
McArthur v. Dominion Cartridge Co., [1905]
A.C. 72;
Fardon v. Harcourt-Rivington,
[1932] A.C. 215. The finding that LeBlanc had reasonable grounds for believing that the water would not escape through the wall into the adjoining premises could not be supported.
A reasonable man having regard to the location of the wall and its age would have appreciated the possibility of seepage.
Per: Locke J. (dissenting).
There was no direct evidence of any freezing and the trial judge was right in declining to draw an inference that the frost caused the plug to be dislodged.
There was no duty upon the respondent to provide a drain of such size as to carry off water admitted into the basement without fault on his part. The failure of the respondent to take steps to rid the basement of water until 8 o'clock the following morning was not in the circumstances actionable negligence.
Assuming that the condition in the respondent's basement constituted a nuisance, the condition not having been brought about by any voluntary or negligent act of the appellant, failure to take steps to abate it until 8 o'clock the following morning was not undue delay imposing liability upon the respondent. Noble v. Harrison,
2 K.B. 332 at 338; Sedleigh-Denfield v. O'Callaghan, [1940] A.C. 880 at 893 and
904. There was no evidence upon which to base a conclusion that to bring water for commercial use into a business premises in a four-inch pipe was a non-natural and not merely an ordinary use and the principle in Rylands v. Fletcher did not apply.
Sedleigh-Denield v. O'Callaghan, supra at
888. Decision of the Supreme Court of
New Brunswick, Appeal
Division (27
M.P.R. 159), reversed.
PAIwr
Co. Lr.
HOLDING
PRACTICE- Practice - Jurisdiction - Reference by Lieutenant Governor in Council
-Pleadings raising question of validity of
Federal and Provincial Statutes-Appeal to this Court lies only from Provincial Court
PRACTICE-Concluded of Highest Resort-The Supreme Court Act, R.S.C. 1927, c. 35, s. 37.............. 2.-Practice - Jurisdiction - Judgment affirming or denying existence of right to a jury trial is a "final judgment"-Supreme Court Act, R.S.C. 1927, c. 85, a. 2(b) 433 3.-Practice-Appeal from
Exchequer Court by way of appeal from Income Tax Appeal Board-Reasons for judgment of members of the Board to included in appeal case in this Court............. See 6.
RISK- Negligence - Nuisance - Escape of water from unheated building through cellar wall due to dislodging of reducing plug from 4" water pipe-Liability-Forseeable risk- Whether maintenance of such pipe on ordinary user-Principle of Rylands v. Fletcher............................ See NuIsANcE.
ROAD-Road, use of-Civil fruits-Possession by sufferance of the Crown-Droit de superficie-Arts. 400, 1608,
C.C. In the years preceding 1948, the appellant built a road on Crown and colonization lands in the County of Charlevoix, P.Q. In 1948, following a tariff established by contract, the respondents paid the appellant a certain sum for the use of the road. But in 1949, after the expiration of the contract, the respondents refused to pay for their further use thereof. The action was dismissed by the Superior Court and by the Court of Appeal for Quebec. The appeal should be allowed and the action maintained. Although the appellant was not the owner of the bed on which he built his road, he nevertheless acquired by sufference of the State, the real owner thereof, a possession available against third parties and which gave him the right to the civil fruits. Furthermore, he acquired, to the knowledge of the State, a "droit de superficie"
giving him the undisputable ownership of the surface of the road against third parties. Held further, that s. 103 of R.S.Q. 1941, c. 93, has no application since the road works were not executed through the appellant's own timber limits. DUFOUR............... SCHOOLS- Schools - Liability of teacher and trustees supplying hot food to pupils- Public Authorities Protection-When attempting to light gasoline stove on teacher's instructions pupil injured-Action not commenced within six months-The Public Authorities Protection Act, R.S.O. 1937, c. 185, s. 11- The Public Schools Act, R.S.O. 1937, c. 357, as. 15, 68, 89 and 103, as amended. The appellant trustees by virtue of The Public [2 S.C.R SCHOOLS-Continued
Schools Act (Ont.) conducted a public school at which the respondent Charles
Gray, a 12-year-old boy, was a pupil and the appellant McGonegal was a teacher.
For the purpose of beating soup the boy was instructed by the teacher to light a gasoline stove, the property of the appellant trustees.
In attempting to do so, he was severely burned. In an action to recover damages for the injuries sustained the trustees at the trial, and the teacher on appeal, pleaded s. 11 of The Public Authorities Protection Act, R.S.O. 1937, c. 135, which provides that no action shall be brought against any person for an act done in pursuance or execution or intended execution of any statutory or other public duty in respect of any alleged neglect unless commmenced within six months next after the act or neglect complained of.
The trial judge, held both the teacher and the trustees liable and fixed damages for injuries to the infant Gray at $8,000 and the expenses incurred by his father at
$1,208.75;
adjudged that the plaintiffs recover against the defendants $9,208.75, and directed that $8,000 of that sum be paid into Court to the credit of the infant.
Held: That the injuries were suffered as a result of the teacher's act of negligence and since the act was committed by her in the course of her employment both appellants were liable unless s. of The
Public Authorities Protection Act a pplied.
Held: also, (Rinfret C.J., Kerwin and Estey
JJ. (dissenting)
) that s. did not apply.
Per: Taschereau, Rand and Cartwright JJ.
The act which resulted in the injury was not one in the course of exercising any direct public purpose for the children:
it had not yet reached any public aspect:
it was an authorized act in a private aspect and therefore the Act did not apply.
Griffiths v. Smith [19411 A.C. 170; Bradford v. Myers (19161 A.C. 242 and Clarke v.
St. Helen's Borough Council 85 L.J.K.B. 17, referred to.
Per: Locke J. The proper construction to be placed on the evidence was that the teacher intended to heat the soup for her own use and not for the children. She therefore was not performing or attempting to perform an act of the nature referred to in s. and the section had no application.
Per: Rinfret C.J.
and Kerwin J. (dissenting).
While the teacher's illness prompted the attempt to light the stove, the soup was to be used also for some of the pupils, and the use of the stove supplied by the trustees for the purpose of heating soup furnished by them to be partaken of by pupils as well as the teacher brought the case within the decision in Griffiths v. Smith, supra, and the trustees, therefore, fell within the protection of s. 11 of the Act. As by s. 103 of The Public School Act, the teacher's duty was not only to teach but also to give assiduous attention to the health and comfort of the pupils, she was a public authority and entitled to the same protection.
60663-3
SCHOOLS-Concluded
Per: Estey J. (dissenting). In the circumstances it could not be said that what was done by the trustees and teacher, acting in their respective capacities and supported by a grant from the government, was other than "an act done in pursuance or execution or intended execution of any statutory or other public duty or authority" with the meaning of s. 11 of the Act. The case upon its facts appeared to be an even stronger case in favour of the trustees and the teacher then Griffiths v. Smith, supra, and distinguishable from Bradford Corporation v. Myers, supra. Held: further, that since the action was commenced before the 1949 amendment to the Supreme Court Act, R.S.C. 1927, c. 35, came into force, under s. 39 no appeal lay to this Court in respect of the sum of $1,208.75, leave not having been obtained from the Court of Appeal under s. 41.
Dorzek v. McColl Frontenac Oil Co. [19331,
S.C.R. 197. GRAY............... STATUTES-i.- Agricultural Products Marketing Act (Can.), 1949 1st Bess., c.16..........................
2.- Agricultural Products Marketing Act (P.E.I.), 1940, c. 40................ 3.-Bankruptcy Act, R.C.S. 1927, c. 11, s. 23 (ii), 142, 143............... 4.- B.N.A. Act, 1867, s. 92(2) .... 5.---Charter of City of Outremont, 1916, 5 Geo. V, c. 98, 8. 40................ 6.-Cities and Towns Act, R.S.Q. 1941, c. 233, s. 426.................... 7.-Criminal Code, R.S.C. 1957, c. 86, 8.1020........................ See 3. 8.-Divorce and Matrimonial Causes Act, 1857 (Imp.), c. 85.................. 9.-English Law Act, R.S.B.C. 1948, c.111............................. See DIVORCE.
10.-Excess Profits Tax Act, 1940, c. 32, ............................... See 7.
11.-Exchequer Court Act, R.S.C. 19B7, c. 84, s. 19(c)...................... 517 See CnowN 2.
1952]1
STATUTES-Concluded
12.-Income War Tax Act, R.S.C.
c. 97, s. 8..........................
13.-Income War Tax Act, R.S.C.
See 3.
14.-Income War Tax Act, R.S.C.
c.97, s. 3(1)(f).................
See 5.
15.-Income War Tax Act, R.S.C.
c. 97, s. 7A (1)......................
See 6.
16.-Insurance Act, R.S.Q. 1941, c. 299,
9240, 9241. ......
..
.. . .
. .*.
17.-Judicature Act, R.S.O. 1950, c. 190,
8.15(b)............................
18.-Militia Act, R.S.C. c.
14, 20, 69 (92), 115, 117, 138 .......
19.-Mineral Taxation Act (Sask.), 1948,
9292......................
20.-Pressure Vessels Act, R.S.Q. 1941, c. 177, 192...................... 444
21.-Public Authorities Protection Act,
R.S.O. 1937, c. 185, s. 11.............
22.-Public Schools Act, R.S.O. 1937,
357, 15, 68, 89, 103...........
23.-Rate and Taxes Act, R.S.N.B.
c. 190, s. 4(1) (d) and (g)............
24.-Supreme Court Act, R.S.C.
c. 35, Rule 142..................333
25.- Workmen's
Compensation
Act,
TAXATION- Trusts s. 3-Whether money paid into an "income account" in trust for the support of a widow and her children and the education of the latter subject to the sole control of the widow is income within the meaning of The Income
War Tax Act.
testator by his will directed that his trustee pay to the credit of an "income account" the annual net profit from a trust until all his children should have attained the age of twentyfive years. The moneys to the credit of the account to be under the sole control of his wife to be used by her to maintain herself and the children, and educate the latter, as the wife in her sole discretion from time to time determined.
appellant, widow of the testator, in 1944 received payment from the income account and the whole amount so paid her was assessed for income tax purposes as her income. Held: (Rinfret C.J. and Kerwin J.
dissenting)--That although the income in question was under the sole control of the appellant it was not hers absolutely but impressed with the obligation that be devoted to the objects provided for as set out above.
It could not therefore be said that the entire income was to be regarded as hers for the purpose of The Income War Tax Act. Singer v. Singer 52 Can. S.C.R. 447; 33 O.L.R. 602 at 611; Allen v. Furness 20 Ont. App. R. 34; In re Booth 2 Chap. 282.
The wife being obligated to apply the income needed for the benefit not only of herself but also of the children, although her discretion was absolute, had an interest limited to that which she appropriated for herself, and the children became entitled to the remainder in the proportions she from time to time determined. Re Coleman 39 Ch. D. Per Rinfret C.J. and Kerwin J. dissenting-The decision in Singer v. Singer, supra, prevented a holding that under the will either child was entitled to an aliquot part of the income.
Even if that were not so, the income received by the appellant from the "income account" was her income. She was not a trustee and the mere fact that there was the responsibility upon her as such as described in the Singer case did not make the money any less her income than if she had received the income from "B" though she might be bound by bond to "C" to pay the latter a certain annual sum. Manning v. Federal Commissioner of Taxation 40 C.L.R. 506; Cohen v. Commissioners of Inland Revenue 26 Tax.
Decision of the Exchequer Court [1951] Ex. C.R. 118, reversed. BoUCK 2.-Assessment-Taxes-Religious Congregation operating laundry and dry cleaning business in competition with other firms in like business-The Rate and Taxes Act, R.S.N.B., c. 190, s. 4(1) (d) and (g)-Whether appellant's buildings, and equipment exempt under clauses (d) and/or (g)-Meaning of word "charitable" as used in clause (g).
The Rates and Taxes Act, R.S.N.B. 1927, c. 190, exempt from taxation s. 4(1):
"(d) Every building of a religious organization used exclusively ... for the religious, philanthropic or educational work of such organization, with its site and ground surrounding the same upon which no other building is erected, but this exemption shall not include real estate in respect of which rent is received by such organization; also the personal property and income of such organization, used exclusively for religious, philanthropic or educational purposes; (g) The property of any literary or charitable institution." appellant is a religious society devoted exclusively to the furtherance of the education of girls generally and in particular to the education and reformation of wayward girls, and the education and care of female orphan children. Its members have taken the vows of poverty and receive no wages and any revenue is expended exclusively for the furtherance of the purposes of the
Society. Girls are received regardless of their race or creed or ability to pay. The appellant owns real estate on which is erected a main building which provides accommodation for the inmates and includes a school and a public laundry and dry cleaning plant where the girls are taught habits of industry and fitted to earn a living. The plant is in public competition with commercial laundries. There is also on the property a two-family brick dwelling occupied by two male employees and their families.
men are employed as truck drivers. The appellant was incorporated in 1945 by a special act of the N.B. Legislature for the purpose of carrying out its objects as set out above and was authorized to purchase land and erect buildings for such purposes and as incidental thereto for the maintenance of the institution, to carry on the business of a steam and general laundry.
The respondent assessed the laundry equipment, two motor trucks used in the busness and the brick dwelling.
The appellant claims exemption under s. 4(1) clauses (d) and (g). Held: (Rinfret
C.J., Kerwin and Cartwright JJ. dissenting).
1. In construing s. 4(1), clause (g)
must be regarded as a general clause and clause (d) as a particular clause and to avoid repugnancy or inconsistency (d) must be taken to be an exception to (g).
2. The appellant is not a "charitable society or institution" within the meaning of clause
(g); Cocks v. Manners L.R. 12 Eq. 574;
In re White 1893 2 Ch. 41; but a society of mixed objects, some charitable and some not, and must find exemption, if any, under clause (d).
3. The use referred to in (d) is the actual use to which the property is put and not the object to which the profits from the business carried on may be devoted.
Per Estey J. The equipment used in the conduct of the business serves not only the appellant organization, but the public generally.
It therefore cannot be said to be "used exclusively for religious, philanthropic or educational purposes."
Per: Rinfret C.J.,
Kerwin and Cartwright JJ., dissenting- Whether the word "charitable" as used in clause (g) is to be construed in its legal sense or in its natural and ordinary meaning, the appellant is a "charitable society or institution," notwithstanding its operation of the laundry and dry-cleaning plant, within the meaning of those words as used in clause (g). Birtwistle Trust v.
Minister of National Revenue [1938] Ex. C.R.
95 at 101; affirmed by [1940] A.C. 138; In re Douglas-Obert v. Barrow 35 Ch. D. 472 at 479 and 487. In the contemplation of the Legislature as expressed in the statute of incorporation the operation of the laundry business is merely incidental to the charitable purposes of the appellant and the maintenance thereof. This is not the case of an institution carrying on
60663-31 a commercial business and incidentally performing sundry charitable works or paying over its profits to others for charitable purposes, but of a society or institution of which all the primary purposes are purely charitable which is actively engaged on charitable works and as an incidental means of providing some of the money which is required for the prosecution of such charitable works carries on a business under its statutory powers. It is a charitable society or institution within the meaning of those words as used in clause (g) and it follows that all its property is exempt from taxation.
THE V. ASSESSORS of the SUNNY 76 Taxation - Income Tax -Shareholder-Distribution of profits in form of stock in another company-Capital or Income-Liability of shareholder to Income Tax-Income War Tax Act, R.S.C. 1927, c. 97, s. 8(1).
The appellant was the president and principal shareholder of the Timberland Lumber Co., which in 1938 purchased from funds representing accumulated profits shares of the Salmon River Logging Co. at $100 per share. The latter company accumulated substantial profits from the date of purchase until 1944 when Timberland sold the shares to its own shareholders in proportion to their holdings at $100 per share. In 1945 the shareholders disposed of the shares at $750 each. The appellant having been assessed for the year 1944 on the estimated market value of the Salmon River Logging Co. shares, less the cost of the share to him, as a dividend deemed to have been received from Timberland appealed to the Exchequer Court of Canada which affirmed the assessment. Held: 1. The difference between the price paid to Timberland by its shareholders for the Salmon River shares and their true value was an annual net profit or gain in the sense of being a dividend on profit directly received from stocks within the meaning of s. 3(1) of the Income War Tax Act. 2. The shares sold were not an accretion of capital but a dividend paid in money's worth and represented taxable income. Pool v. The Guardian Investment Trust Co. [1922] A.C. 347, approved in Commissioners of Inland Revenue v. Fisher's Executors, [1926] A.C. 395 at 403; Weight v. Salmon, 19 T.C. 174 at 193, 194. 3. It was a profit in 1944 when the money's worth was received and not in 1945 when the shares were sold. It was an immediate distribution of profits and not a declaration of a distribution payable at some subsequent time. 4. On all the evidence the value of $600 per share as found by the trial judge was a fair and just figure.
Judgment of the Exchequer Court of Canada [1951] Ex. C.R. 201, affirmed. RonsoN v. or REVENUE............. 4.- Constitutional law - Mineral Taxation-Imposition of tax on owner of minerals -Tax based on acreage and assessed value- Whether direct or indirect-Whethrr land tax-Whether intention to have it passed on
-Severability-Mineral Taxation Act, 1948
(Sask.). c. 24, es. 8, 6, S2-B.N.A. Act,
1867, . 92(9)......................
See 1.
Sale of fran chise to supply natural gas-Price fixed on percentage of future gross sales of gas-- Payments described as royalties-Whether payments are income within s. 3 (1) (f) of the respondent company assigned to another company its franchise to supply the consumers in a certain municipality with natural gas. The rights conferred by the franchise were granted for a period of ten years from 1938 with the option of renewal, indefinitely, for further periods of life duration.
The consideration for the assignment was that the respondent was to be paid monthly "by way of royalty"
a percentage of the gross sales of gas. The
Minister assessed these monthly payments as taxable income for the years 1944 and
1945 unders. 3(1) (f) of the Income War Tax
Act, R.S.C. 1927, c. 97 and amendments.
The assessment was set aside by the
Exchequer Court of Canada. Held (Locke
J. dissenting), that the appeal should be allowed and the assessment restored since the payments were income within s. 3(1)
(f) of the Income War Tax Act.
In a business sense in Canada, the word
"royalty" covers the payments made here and was so looked upon by the respondent when making its tax returns. Even if they were not received as royalties, they fall within the expression "other like periodical receipts". They depend upon the use of the franchise (which is property).
It is not the production of natural gas upon which depend the payments as it is only under the powers conferred by the franchise that natural gas ma3 be supplied and conducted to the consumers thereof. Finally, receipts, so dependent, are income by virtue of s. 3(1) (f), even though they are payable on account either of the use or sale of the franchise. Per Locke J. (dissenting): In its ordinary meaning, the word
"royalty" does not describe, or extend to, a payment such as was stipulated for in this case, where the payment is made as part of the purchase price of the outright sale of personal property transferred without reservation.
As the words "other like periodical receipts" refer to those of an income or revenue, as distinguished from a capital nature, they do not cover these payments, which were instalments on account of the purchase price of the franchise and of a capital nature such as were dealt with in Wilder v. Minister of
National Revenue [1952] 1 S.C.R. 123.
WAzI-Town Ir).. 377
6.-Revenue-Income tax-Absence from Canada on military service-Whether "resident" or "ordinarily resident" in Canada- Income War Tax Act, R.S.C. 1927, c. 97, a. 7A (1). The appellant, prior to volunteering for active service with the Canadian Army in 1939, practised law in Ottawa, where he lived with his parents. In 1940, he went overseas and while there married, in 1941, a British subject previously domiciled in the United
Kingdom and, thereafter, established a matrimonial home in that country.
He remained overseas until May, 1946, except for a few weeks in 1941 when he returned to Canada in connection with his military duties. From the date of his marriage until May, 1946, his wife and, subsequently, his children, remained in the United Kingdom. May, 1946, the appellant, his wife and their children came to Canada and took up permanent residence in Ottawa where he resumed his law practice.
During his absence abroad, the appellant continued as a non-active partner in a Canadian law firm and income tax returns covering partnership and investment income were filed on his behalf. During this period, he maintained a bank account and a safety deposit box in Ottawa, and his civilian clothes were stored at his parents' residence. In his income tax return for 1946, the appellant sought a deduction under s. 7A(1) of the Income War Tax Act for the period of absence in 1946 on the ground that he was not previously "resident" or "ordinarily resident" in Canada in the year 1946 prior to his return in May.
The Minister's disallowance of the deduction was upheld in appeals to the Income Tax Appeal Board and the Exchequer Court of Canada. Held: The appeal should be allowed; since throughout the period in question the appellant was resident either in the army quarters or in the rented dwelling in which his wife was living, or in both, he was entitled to the deduction claimed. The words "resident"
and
"ordinarily resident" should be given the everyday meaning ascribed to them by common usage, there being no definition of these words in the Income War Tax Act. Held: Even if it could be said that the residence of the appellant was throughout that period extraordinary, in the sense of being out of the usual course of his life considered as a whole, it would not follow that he had an ordinary residence in Canada; it would rather follow that he ceased to have anywhere a residence which was ordinary in the corresponding sense. Held: Bearing in mind all the facts in this case and particularly that during that period the appellant was physically absent from Canada, had therein no dwelling or other place of abode to which he could as of of right return and was maintaining his matrimonial home in the United Kingdom, he was not at any time during the relevant period resident or ordinarily resident in TAXATION-Concluded
Canada. In all appeals from judgments of the Exchequer Court in proceedings by way of appeal from the Income Tax Appeal
Board, the reasons for judgment given by members of the Board should be included in the Appeal Coase filed in the Supreme
Court of Canada.
7.-Taxation - Excess Profits
Tax-The Excess Profits Tax Act, 1940,
(Can.) c. 32, 1940, 2nd Sess., as amended, s.
3-"substantial iuterest"-'meaning of. Held:
that "substantial interest" in s. 3 of The
Excess Profits Tax Act, 1940, as amended, does not mean a "majority" or a "controlling interest." The only possible meaning that it can be given is "large quantity", "considerable amount of shares. "Moreover, in the
French version of s. 3, which must be read with the English one, (Authors & Publishers v. Western Fair), the translation for "substantial" is "important." Per Cartwright J.
In this case the ownership of 49 per cent of the shares of the appellant constituted a substantial interest within the meaning of the words in s. 3. Judgment of the Exchequer Court
Ex. C.R.
338, affirmed.
oF REV- TRADE-Constitutional Law - Regulation of interprovincial and export trade-Competence of Parliament to enact The Agricultural
Products Marketing Act (Can.) 1949 1st
Sess., c. 16--Of Governor General in douncil to delegate powers to provincially organized
Board-Validity of Scheme established under the Agricultural Products Marketing (P.E.I.)
Act, 1940, c. 40....................
See LAW 2.
WORDS AND PHRASES - 1.-"Charitable"
(Rate and Taxes Act, R.S.N.B.
1927, c. 190,
. 4(1) (g) ) ...........
2.-"Resident" and "Ordinarily Resident"
8. 7A (1) )......................... 486
3.- "Substantial Interest" (Excess Profits
Tax Act, 1940, c. 82, 8. ) ............
See 7.
WORKMEN'S COMPENSATION- Workmen's Compensation-Accident-Waitress injured diving in hotel swimming pool during off-duty hours-Whether accident arose out of and in the course of employment
-Application for compensation filed by employer on behalf of infant employee and others interested within limitation period;
notified by infant on attaining majority- Whether application filed in time-Whether any person interested entitled to adjudication by Workmen's CompensatsontBoard-Work- WORKMEN'S COMPENSATION - Concluded men's Compensation Act,
(N.B.) c. 86 a 12, 16, 3, 41.
The respondent Noelf, a 19-year old student, was employed by the respondent, the Canadian Pacific Ry. Co., for the summer of 1949 as a waitress at the company's hotel at St. Andrews, N.B.
In common with other students similarly employed she vermitted the use of a private bathing ach owned by the hotel. When not on duty, she was free to leave the premises and go where she pleased.
Following the serving of breakfast on June 23, 1949, she was told she would not be required until 5 p.m. While so excused she proceeded to the private bathing beach for a swim and in diving from a float struck bottom and suffered serious and permanent injuries. The accident was reported to the Workmen's Compensation Board by the C.P.R. in October, 1949, and on June 22, 1950, it submitted a further report, together with an application for an adjudication, binding on all interested parties including N, that the accident was one covered by the Workmen's Compensation Act. C. 1932 (N.B.), c. 36. The Board ruled that it was unable to consider the report submitted as being a claim made by N. and would take no action to deal with it as such. On Jan. 2 1951, N., in a communication to the Board setting out that she was then of age, purported to adopt as a claim for compensation the application made by the C.P.R. except as to any differences there might be in the answers made in that application and the one now enclosed with her letter. N.'s application was disallowed whereupon the C.P.R., pursuant to s. 35 of the Act, appealed to the Supreme Court of New Brunswick, Appeal Division, on the ground that the Board's decision involved the following questions of law: 1. Whether the accident to said Marilyn Noell on June 23, 1949, arose out of and in the course of her employment within the scope of the said chapter.
2. Whether an application for compensation was filed in time. 3. Whether any person interested in the adjudication and determination of the question whether an accident has arisen out of and in the course of an employment within the scope of the said chapter, is entitled at any time to an adjudication and determination by the said Board. The appeal was heard by Harrison, Hughes and Bridges, JJ., who answered the questions as follows: Question (1) Yes (Bridges J.-No.) Question (2) Yes.
Question (3) No answer. On appeal to this Court: Held: The appeal should be allowed and the questions answered as follows: Question (1): No. Question
(2):
No (Cartwright J., No answer.) Question (3): Yes. Decision of the Supreme Court of New Brunswick, Appeal Division, 28 M.P.R. 270, reversed. C.P.R. NOELL....................
Cases cited
- A.C. 550 A.C. 550
- Irwin v. Waterloo Taxi-Cab Co. Ltd. Irwin v. Waterloo Taxi-Cab Co. Ltd., supra
- Bourton v. Beauchamp A.C. 1001
- Moore v. Donnelly 1 A.C. 329
- Mersey Docks Mersey Docks case, supra
- Jones v. Scullard Jones v. Scullard, supra
- the Century Insurance the Century Insurance case, supra, at p. 497 p. 497
- Lockhart v. C.P.R. Lockhart v. C.P.R., supra
- A.C. 117 A.C. 117
- A.C. 87 A.C. 87
- A.C. 405 A.C. 405
- O.R. 299 O.R. 299 310
- O.R. 180 O.R. 180
- A.C. 479 A.C. 479 502
- McAskill v. The King scr-1931-330
- The King v. Hughes scr-1942-517
- Latour v. The King scr-1951-19
- A.C. 716 A.C. 716 737
- A.C. 299 A.C. 299 306
- A.C. 591 A.C. 591
- A.C. 473 A.C. 473 479
- Ltd. Ltd., supra
- Potvin v. Glen Falls Insurance Co. 1 W.W.R. 380 390
- A.C. 108 A.C. 108
- A.C. 215 A.C. 215
- Sedleigh-Denfield v. O'Callaghan A.C. 880 893
- Sedleigh-Denield v. O'Callaghan Sedleigh-Denield v. O'Callaghan, supra
- Griffiths v. Smith Griffiths v. Smith, supra
- Bradford Corporation v. Myers Bradford Corporation v. Myers, supra
- Singer v. Singer Singer v. Singer, supra
- A.C. 138 A.C. 138
- A.C. 347 A.C. 347
- Commissioners of Inland Revenue v. Fisher's Executors A.C. 395 403
- Wilder v. Minister of National Revenue scr-1952-1-123
Statutes and regulations cited
-
- s. 19(c)
- s. 22
- s. 11
- s. 20
- s. 19 of the Exchequer Court Act
- s. 16
- s. 14
- section 14
- sections 22
- s. 92(2)
- section 16
- s. 19
- 19
- ss. 14
- 20
- 69
- ss. 3
- 6
- ss. 16
- s. 3
-
- ss. 4
- s. 12
- section 12
- Section 12
- s. 15(b)
-
Unresolved citations
- s. 139 of the Militia Act
- Paragraphs (a)
- (b)
- (c)
- s. 117 of the Militia Act
- s. 16 of the Militia Act
- s. 69 of the Militia Act
- section 138 of the Militia Act
- s. 23(i)
- s. 12 of the Pressure Vessel Act
- s. 11 of The Public Authorities Protection Act
- s. 103 of The Public School Act
- s. 3(1) of the Income War Tax Act