Majority
I, therefore, have jurisdiction to make the order requested. On the argument I intimated that if I came to this conclusion permission would be given, and the order may go S VNALCO. accordingly. Costs in the cause.
YORK Motion granted. Kerwin C.J. GENERAL
SECURITY INSURANCE
SAPPELLANT; *J - COMPANY OF CANADA (Defendant)
A*June3,4,7 *Oct. 18 HOWARD SAND
& GRAVEL COM- RESPONDENT. The judgment of Kellock and Estey JJ. was delivered J.:-The business of the respondent, carried on at two plants, one at Hamilton and the other at nearby Aldershot, is, inter alia, the production of ready-mixed concrete for which annually some 10,000 tons of Portland cement is required.
For these operations the respondent maintains a number its own trucks, and prior to April, 1948, it had begun to as employ also, one Patterson to haul cement with his truck. Howard, the president of the respondent, testified that at that time the police had begun to enforce the Public Commercial Vehicles Act and had warned Patterson, who did not have what is known as a P.C.V. licence, to discontinue r hauling cement. The respondent and Patterson thereupon entered into an arrangement, set out in an exchange of letters dated the 12th of April, 1948, under which Patterson "sold" to the respondent company his truck, composed of a tractor and trailer, for $1.00 each, on terms that the respondent would "resell" the vehicles to him -at any time on the same terms.
It was agreed that Patterson would insure the truck against public liability and property damage, but the insurance was to be in the name of the respondent. Registration of the truck under the Highway Traffic Act was obtained in the name of the respondent. While the respondent company placed its name upon the truck, it remained at all times in the possession of Patterson who used it exclusively, as arranged, in hauling cement for the respondent. Patterson was paid therefor "freight and haulage" in exactly the same way as the respondent paid other truckers who held P.C.V. licences and hauled for the respondent.
Patterson was at no time paid wages by the respondent company and all expenses of operating the truck, including gas, oil and repairs, were paid by him. learned trial judge, on this evidence, found that in reality Patterson remained the owner, and that the arrangement between him and the respondent was entered into in the belief that Patterson would otherwise have required a P.C.V. licence.
The agent for the then insurer of the truck was informed of these facts at the time, and the existing insurance was, through him, transferred into the name of the registered owner. Subsequently, -a new tractor was purchased and paid for by Patterson in replacement of the former one and it was agreed between him and the respondent that the arrangement would continue to apply to it. The original insurance was not issued by the appellant but on June 15, 1950, the appellant became the insurer.
The policy was executed on behalf of the appellant by
Anglo Canadian Underwriters Limited "authorized for the purpose" by the appellant. On the 28th of June following, ISECURITY > Anglo
Canadian Underwriters wrote -the agent, one
Edworthy, stating:
AD We have recently ordered our usual investigation of this risk, and we have been advised to the effect that the Howard Sand & Gravel Company do not own the vehicle described under this policy. It has been suggested that a private owner who is doing some hauling for this Company may Kellock J. be insuring this truck.
In view of this we would ask you to kindly let us have your further advice in this connection.
To this letter Edworthy replied as follows:
Lynden, June 29/50
Dear Sirs,- You are right, the actual owner of truck is B. Patterson, Rockton, whom we have had insured for years. The truck is licensed, & in the name of Howard Sand & Gravell for business reasons. I believe the above Co. has a Contract for cement, and Assured does all his work for the Co. & its customery for owners of trucks to have Co's name on truck, there is nothing underhand in the setup.
(sgd.) S. Edworthy
This letter was produced at the trial from the custody of
It is therefore apparent that the "usual investigation of this risk" to which the letter refers, was carried out by Anglo Canadian Underwriters Limited on behalf of the appellant company, and the information it elicited from the agent was duly transmitted to the
Subsequently and following the accident of the 6th of
March, 1951, out of which the present litigation has arisen, the appellant, with the knowledge of the situation above disclosed, paid to the respondent under the policy the amount of the damage sustained by the truck itself in the accident, as well as the amount of a fire loss to the truck in September, 1950. When, therefore, it was stated by the solicitors for the appellant in the letter of the 10th of
October, 1951, to the solicitors for the respondent, that
The insurer instructs us that it has been conducting the defence of this action on the assumption that Howard Sand & Gravel Company
Limited was the owner of the truck involved in the accident.
this statement was not true and the "insurer" knew that.
The learned trial judge held that although the appellant was, in fact, aware of the real situation, nevertheless the Public Commercial Vehicles Act prohibited Patterson from operating his truck, as he did, without a P.C.V. licence and that the respondent, by accepting registration of the truck in its name, was a party to the breach of the statute with the result that the insurance was void.
The action was accordingly dismissed.
This judgment was set aside on appeal. In the opinion of the Court of Appeal the transaction of April, 1948, between Patterson and the respondent was effective to constitute the respondent the owner of the vehicle, it being held that the statute had no application to "a vehicle used exclusively for the transportation of an owner's own goods", and did not affect the respondent as owner.
The court allowed recovery on the footing of the appellant's misrepresentation.
In my opinion, the transaction of April, 1948, was, as the learned trial judge held, admittedly for the purpose of evading what was believed to be the operation of the statute, and I am content to assume that, as between the parties to this action, the proper view is that Patterson remained the owner of the vehicle. The first question to be determined is as to whether the statute was in fact infringed.
The statute is the Public Commercial Vehicles Act, R.S.O., 1950, c. 304. S. 2 provides as follows:
"Public commercial vehicle" is defined by s. 1(i) as The italics are mine.
The definition in the Highway Traffic Act referred to, deals only with the structure of vehicles.
Patterson, before the transaction of April, 1948, and afterwards, in the view that he remained the owner, was, of course, carrying goods for compensation by means of his truck. In so doing, however, was his truck "a public commercial vehicle", and was he conducting upon a highway the "business" of transportation of goods by means of "a public commercial vehicle" within, the meaning of the statute?
Other provisions of the statute are relevant to this inquiry. It is provided by s. 4, s-s. (1) that no operating licence (i.e., a "public commercial vehicle operating licence issued under this Act", (s. 1(h))), is to be issued without the approval of the Ontario Municipal Board, such approval being evidenced by a certificate of the Board of "public necessity and convenience". The Board is required by s-s. (1) (a) to take into consideration the construction, width and nature of the highway, as well as the volume and nature of the traffic "on the proposed route", the type, weight, nature and number and the proposed use of the vehicles for which the P.C.V. licence is required, and the effect upon traffic conditions of the issue of the licence, as well as "the public necessity and desirability" of furnishing the proposed services upon the highways in question.
It has not been shown in the first place, that Patterson, in hauling cement to one or other of the two plants of the respondent, was confined in his operations to any one route. Moreover, I do not think the statute contemplates prohibiting the owner of a single truck from carrying the goods of one person exclusively without the Ontario Municipal Board first having considered whether or not there were not already available sufficient trucks owned by others for the carriage of such goods, and so certifying. It would seem that what is contemplated 'by the words "public necessity and desirability", and the other provisions of the statute to which I have referred, is the operation over defined routes of common carriers holding themselves out to the public as such. This view is strengthened by the provisions of s. 15, which authorizes the Lieutenant-Governor in Council to make regulations covering such matters as
There would appear to be no object which the legislature could have had in mind in connection with an operation such as is here in question in requiring the "publication", "filing" and "posting" of "tariffs".
Such provisions would, however, be apt in the case of a carrier holding itself out as willing to carry for the public generally, although in practice it might confine its operations to the goods of one person.
Under the -arrangement between Patterson and the respondent company, the former had no right, so long as the arrangement lasted, to carry goods for anyone else. Accordingly, although the parties considered that in the arrangement which they made, they were avoiding the effect of the statute, I do not think that aspect of the matter relevant. In my opinion, the statute did not, in fact, apply. There was, consequently, no illegality attaching to the policy of insurance.
The respondent was induced to make the payment to the Atkinson Estate upon the representation of the solicitors instructed by the 'appellant, that "the insurer" had "been conducting the defence" of the action "on the assumption that Howard Sand & Gravel Company Limited was the owner of the truck", and had discovered, only on October 3, 1951, that that was not so but that Patterson was the owner. As already pointed out, this was an untrue statement to the knowledge of the insurer.
The respondent rested its case in argument upon the principle of Kelly v. Solari (1), for the recovery of money paid under a mistake of fact. In my view, however, that principle does not apply. When the settlement was made with the Atkinson Estate, the respondent issued its cheque payable to the solicitors for the estate for the agreed portion to be paid by the respondent and the balance of the settlement was paid by the appellant. The settlement was, of course, a settlement of the claim of the estate against the respondent. The appellant company did not receive these moneys from the respondent and accordingly, it is not liable in this form of action.
It may be that the action might have been framed in damages for deceit, but on the argument, Mr. Phelan expressly disclaimed that basis of claim. While he rested his claim as above, it is apparent that the "mistake" which the respondent at -all times had in mind was mistake in accepting as true the misrepresentation put forward by the appellant -as to its lack of knowledge. There was no other mistake. Misrepresentation accordingly has been throughout the real basis of the respondent's claim although it has been put forward -as "mistake", and the only dispute between the parties on this branch of the case was as to whether or not misrepresentation on the part of the appellant had been in fact established. As put by the appellant in its factum:
The issue according to the respondent's factum is: The learned trial judge's express finding is that the And this finding was affirmed by the Court of Appeal. This being the situation, the respondent, in my opinion, is entitled to recover on the footing of an action for moneys paid by the respondent to the use of the appellant. The moneys which the respondent paid to the Atkinson Estate, it was induced to pay by reason of the misrepresentation. The representation being untrue, the respondent has paid moneys which the appellant had taken on itself to pay under the policy of insurance it had issued to the respondent. This is sufficient to establish the cause of action; 7 Halsbury, 2nd ed. p. 265, par. 367.
I would dismiss the appeal with costs.
LocKE J.:-I have had the advantage of reading the judgment to be delivered by my brother Kellock in this matter and, for the reasons given by him, I am of the opinion that the arrangement made between Patterson and the respondent company and the operation of the truck pursuant to that arrangement did not infringe the provisions of the Public Commercial Vehicles Act (c. 304, R.S.O. 1950 as * amended).
I agree with the learned trial Judge that the respondent was not the owner of the insured vehicle at the time the insurance was effected.
The arrangement made between Patterson 'and the respondent, as explained by the witness Howard, was simply for the purpose of enabling the company to obtain a licence for the truck in its name and to avoid what was thought by both parties to be the necessity of obtaining a licence under the Public Commercial Vehicles Act. As the evidence shows, the vehicle was not carried on the books of the respondent as one of its assets, for the sufficient reason that it was common ground that it was the property of Patterson. The bearing of this upon the claim under the policy raises a question quite distinct from that sought to be raised under the Public Commercial Vehicles The earlier policies issued in the name of another company upon the application of the respondent were not put in evidence. In the application for the insurance which was reproduced on the face of the policy, the respondent represented that the tractor which formed part of the insured vehicle had been purchased by it in January 1950, new, for $3,500 and declared that it was the registered owner of the vehicle.
The tractor had not been purchased by the applicant at the time stated nor had the applicant paid the sum of $3,500 for it; rather it had been purchased by Patterson to replace the tractor which had been insured by another company at the commencement of the arrangement between the parties. While the effect of this misrepresentation was not argued before us, the appellant has contended on the authority of a decision of the Court of Appeal of Ontario in Sleigh v. Stevenson (1), that the representation that the respondent was the registered owner was untrue. Since the same considerations determine, in my opinion, the legal consequences of these -statements, they may be properly treated -as if both points had been taken before us.
By s. 200 of The Insurance Act it is provided that where an applicant knowingly misrepresents any fact required to be stated in the application, any claim by the insured shall be rendered invalid and the right of the insured to recover indemnity shall be forfeited.
This section of the statute is reproduced as Item 8 in the 'application for the insurance signed by the respondent. If it be accepted that the representation that the respondent was the registered owner of the vehicle should be construed as meaning that the respondent was not merely registered as owner but was in truth the owner of the machine, the right to indemnity would be lost unless the right to set up this defence to a claim was waived by the appellant or if, for other reasons, the appellant was estopped from relying upon it.
The appellant pleaded in the Statement of Defence that the respondent had no insurable interest in the vehicle and that it was owned by Patterson. In the reply, these allegations were put in issue and it was alleged that the appellant had knowledge of the arrangement between the respondent and Patterson when the policy was issued and when the appellant had paid a collision loss under the policy in March of 1951. At the trial, the respondent was permitted to amend the reply by alleging that the appellant was estopped from denying the validity of the policy since the facts upon which the defence was based were known before or immediately after the issue of the policy on June 15, 1950, and by the defendant's silence until October 10, 1951, the respondent had been induced to believe that the policy was valid.
The policy issued by the appellant bore the printed signature of the appellant and that of Anglo-Canadian Underwriters Limited, under which appeared the words "authorized for the purpose". Other evidence as to the status of Anglo-Canadian Underwriters Limited is very slight. The application for the policy was taken by one Edworthy, an insurance agent who had for some ten years prior thereto submitted applications for insurance to the Anglo-Canadian Company. In cross-examination, he referred to that company as a broker but he really had no first hand information as to the nature of whatever arrangement existed between it and the appellant company. At the trial, the policy signed as above stated was put in evidence without objection and the appellant did not contend that it was not properly executed so as to be binding upon it. The appellant was aware that the respondent contended that notice to Anglo- Canadian Underwriters Limited of the facts as to the arrangements between it and Patterson was notice to it but elected to call no evidence. It is my opinion that in these circumstances there was prima facie evidence that Anglo- Canadian Underwriters Limited was the agent of the appellant in the negotiations which resulted in the issuance of the policy and at the time the enquiries were made of the agent Edworthy on June 28, 1950, shortly after the policy was issued which disclosed the nature of the arrangement between Patterson and the respondent and at the time of the occurrence of the accident in March, 1951.
It was shown that on August 9, 1950, the insured vehicle was damaged by fire and a claim for the loss was filed with the appellant. The risk of fire was by the policy insured by the Phoenix Fire Insurance Company of Paris, the portion of the risk assumed by the appellant excluding fire losses, and while the claim was made upon the appellant and Howard said that the loss was paid the 'amount was presumably paid by the Phoenix Company. The appellant, however, was manifestly made aware of the claim and no suggestion was made at that time that the policy was not in effect.
On March 6, 1951, the accident took place which gave rise to the action brought by the Atkinson Estate against the respondent and a 'claim for the loss caused to the insured vehicle by collision was made upon both of the insurance companies and paid. It was not until the following October that the appellant first raised the question as to the validity of the policy or of the respondent's right to indemnity. It is my opinion that under these circumstances the appellant should be held to be estopped by its conduct from asserting that the right to indemnity had been lost by reason of the misrepresentations made in the application.
The claim of the respondent, as pleaded, was to recover the moneys paid by it to the solicitors for the Atkinson Estate as its contribution to the settlement, which amount was said to have been paid in the belief that it was legally liable to contribute to the settlement, a belief induced by representations made by the defendant which were untrue in fact. As to one of these, the evidence adduced might support a claim that its falsity was known to the defendant cA and so justify an action for damages for deceit. Counsel & for the respondent, however, disclaimed before us -any such claim and rested the respondent's right to recovery upon the claim that the appellant was liable on the ground that the moneys had been paid by a mistake of fact.
Subject to certain exceptions which are pointed out in the 20th Edition of Chitty on Contracts, at p. 95, within none of which the present matter falls, it is of the gist of an action for the recovery of moneys paid by a mistake of fact that the moneys were received by the defendant to the use of the plaintiff. The customary form of pleading in actions for the recovery of moneys so paid may be found in the last Edition of Bullen and Leake at p. 228 where, in a note, the cases relating to this type of action are collected. These include Kelly v. Solari (1), Jones v. Waring (2), and other authorities upon which the respondent relied in the argument before us.
These might support a claim for the recovery of the money from the Atkinson Estate but not from the 'appellant as, in them, the action was brought against the actual recipient of the money.
It is, in my opinion, a sufficient answer to a claim to recover these moneys as moneys paid under a mistake of fact that the appellant did not receive them.
I have, however, come to the conclusion that this is a case where the moneys paid may be recovered as moneys paid by the respondent to the use of the appellant, upon the principle stated by Cockburn C.J. in Moule v. Garrett (3). The position is affected, in my opinion, by the provisions of the Insurance Act (c. 183, R.S.O. 1950). While it was the respondent which was in the first instance liable to the Atkinson Estate, by reason of the provisions of that Act the appellant was liable to pay the 'amount of any judgment recovered against the respondent up to the sum of $5,000 in any event by virtue of s. 211 of the Act and to the full extent of the policy limits under the provisions of 214, unless the insurer was not, for some reason, liable to indemnify the insured.
By the latter section a person having -a claim against an insured for which indemnity is provided shall, notwithstanding that such person is not a party to the contract, be entitled upon recovering a judgment against the insured to have the insurance moneys payable under the policy, to the extent above mentioned, applied in satisfaction of his judgment. At the time the solicitors for the insurance company approached the respondent, early in October 1951, the liability of the respondent to the Atkinson Estate had not been determined but, if liability existed, both the appellant and the respondent would become liable when judgment was recovered, the respondent to the full extent and the appellant to the extent limited by the policy and the provisions of the Act. As I have indicated, I think there was no defence to the claim of the respondent to indemnity upon any of the grounds asserted and as between these parties liability to satisfy the claim to the extent of the insurance rested upon In Moule v. Garrett, Cockburn C.J., with whose judgment Willes, Blackburn, Mellor, Brett and Grove, JJ. agreed, quoted with approval a statement in the then current edition of Leake on Contracts which reads (p. 104):- Cockburn C.J. further said that whether the liability was put on the ground of an implied contract, or of an obligation imposed by law, is a matter of indifference and that it was such a duty as the law would enforce. This statement from the earlier edition of Leake referred to in Moule v. Garrett is repeated in the last edition of that work at p. 46 and a statement to the same effect appears in the last edition Chitty on Contracts at p. 1023.
This principle is, in my opinion, applicable in the circumstances of this case and, while the claim was not thus expressed in the pleadings, it appears to me that all of the evidence which would be relevant to the consideration of such a cause of action is before us. I would accordingly dismiss this appeal with costs.
Appeal dismissed with costs. Solicitor for the appellant: J. F. McGarry.
Solicitors for the respondent: Phelan, O'Brien, Phelan & FitzPatrick.
AGENT-Agent-Right commission- Engaged to negotiate sale-A greement made with party introduced agent-Break in continuity of negotiations. Desiring to dispose of a mining property, the respondent
Silver Giant Mines Ltd. engaged the appellant as agent to negotiate a deal with the
Hedley Mascot Gold Mines Co. Ltd. Subsequent to his engagement, the appellant signed a memorandum agreeing to a certain commission.
Later he declined to be limited to that commission, but the Silver
Giant company did not elect to treat his withdrawal as a repudiation.
The two companies were initially brought into relation with each other through the efforts
The negotiations which followed were broken by letter of the
Silver Giant company to the Hedley Mascot company.
Negotiations later carried resulted in the parties entering into an agreement whereby the Hedley Mascot company acquired control of the property question.
The agreement reached differed in many material particulars from the one drafted before the break down.
The appellant took no direct part in the negotiations before the break down and none thereafter.
His action against both respondents for a commission claiming that he had been the effective cause of the sale was maintained by the trial judge, but dismissed by the Court of Appeal.
(Kellock and Estey JJ. dissenting), that the appeal should be dismissed.
Per Rinfret
C.J.. Taschereau
Locke JJ.: The arrangement between the appellant and the respondent was not a general employment in the sense in which that expression was used in Toulmin v. Millar ( (1888)
L.T.R. 96), but the work which the appellant was invited to do was to negotiate a sale of the property. Had the negotiations initiated by him resulted in a sale, the claim to the commission would have been complete.
Since, as found by the Court
Appeal, such negotiations broke down and were terminated and the appellant did not negotiate the sale eventually made, the claim for a commission failed.
The evidence did not support the view that the negotiations were broken for the purpose depriving the appellant of a claim to a commission, even though it be assumed that to do so would have afforded the appellant any legal remedy.
Per Kellock and
Estey JJ. (dissenting)
: The evidence established that the appellant's engagement was that if he found a buyer who, as a result his introduction, purchased the property,
AGENT-Concluded he would be entitled to a commission. Construing the letter which broke off the negotiations in relation to what took place both before and after its writing, it did not constitute a break in the continuity of the negotiations.
The attitude of both companies showed them to have been for some time and to be still, at the time of the writing of the letter, convinced that it was desirable an agreement should be made. Construed in the light of the evidence, the letter was but a continuation of the former efforts to conclude an agreement. Since the appellant had agreed to the amount his commission, he was precluded from now contending that he was entitled to the usual commission of per cent.
But since the shares which were to be his commission were not now available and since, having performed the service, he had an enforceable contract, he was entitled to damages, they being the value of the shares to be computed as of the date of the non-delivery or breach on the part of the respondent.
The fact that delivery of the shares was withheld did not provide a basis for the award interest or of damage in respect to the withholding thereof.
APPEAL-Criminal Law-Trial-Appeal -Jury's verdict set aside appellate court -Crown appeals-Power of Supreme Court restore verdict-the Criminal Code, R.S.C. 1927, s. 1024-the Supreme Court Act, R.S.C. 1927, 46.............. 2.-Appeal-Jurisdiction-Lack of substance in appeal-Motion quash. As the judgment appealed from demonstrated that there was a manifest lack of substance respondent's motion to quash was granted.
.............................
Appeal-Leave-Criminal law-Conviction for murder-Jurisdiction-Situs crime, question of law-Publication and distribution of written articles prior to trial- Prejudice.......................... See 5.
Jurisdiction
Court Judgment-Appeal as of right dismissed-Motion Renewed-Leave Granted- Provisions of s. no bar to application APPEAL-Concluded made under s. 88 of the Exchequer Court Act
R.S.C. 84. The provisions of 82 of the Exchequer Court Act do not apply to an application made under of that Act, any more than the jurisdiction of the
Supreme Court in respect of an appeal exercise of a right of appeal given by the
Exchequer Court Act is affected by what now 44 of the Supreme Court Act. British
American Brewing Co. Ltd. v. The King
[1935] S.C.R. 569.
Engineers-Whether Architects Act of Quebec a statute of public order-Whether contract by engineer to prepare plans and supervise erection of store is enforceable-Architects
Act, 1941, 272-Professional Engineers Act, R.S.Q.1941, 270. The respondent, a civil engineer, undertook to prepare the plans and specifications and to supervise the erection a store building for the
The respondent's claim for fees and disbursements in respect of the undertaking was maintained by the trial judge and a majority in the Court of Appeal as both Courts came to the conclusion that such claim was not prohibited by the Architects Act, R.S.Q. 272. Held: (Rand and Kellock JJ. dissenting), that the appeal should be allowed in part. Per Curiam:
The Architects Act a statute of public order voiding all contracts made in breach of it; consequently, the respondent cannot recover the fees respect of the plans and specifications since the contract to prepare them was null by virtue of of the
Statute.
Per Taschereau, Cartwright and
Fauteux J.J: The contract to supervise the works was not in breach of the Statute;
was, in this case, a separate agreement and was severable from the agreement to prepare the plans and specifications.
It was, therefore, enforceable.
Per Rand and Keflock
JJ. (dissenting)
: The promise to pay supervision was not enforceable since, being dependent upon the carrying out of the promise to prepare the plans and specifications, it was not severable.
G AUVIN............................
Sale
Truck sold without knowledge of owner by non licenced dealer-Whether sale valid- Whether theft-Effect of of Motor hicles Act, 1941, 142 on Articles
1488 and 1489 of the Civil Code.......
Automobile - Collision at intersection
-Through street-Right of way-Excessive speed-Lookout-The Vehicle and Highway
Traffic Act, R.S.A. 1942, 275, s.
These are consolidated actions taken both drivers and the passengers of one the cars following a collision between two automobiles at an intersection the City
Edmonton where the streets were icy and
AUTOMOBILE-Continued slippery. The appellant was on a through street.
The trial judge found that both drivers had been equally negligent; that the respondent had stopped before entering the intersection but had not kept an adequate lookout after starting up again; that the respondent had entered the intersection first; that the appellant had been driving at an excessive speed; that neither driver had been as alert as he should have been. Court of Appeal affirmed the trial judgment. Held: (Rand and Kellock JJ. dissenting), that the appeals should be dismissed. Rinfret C.J. and Taschereau J.: There were concurrent findings of fact and the invariable rule, always followed by this Court, applies.
Per Estey J.: There were concurrent findings of fact. Neither driver, the purpose of avoiding collision, changed his speed or direction, sounded his horn or applied his brakes.
did not see the appellant until almost the moment of impact. The appellant did not see the respondent enter the intersection or failed to exercise reasonable care to avoid an apparent danger.
That the appellant was driving too fast considering the condition the street, fully supported by the evidence.
Section 53(1) of The Vehicle and Highway Traffic Act (R.S.A. 1942, c. 275) placed a duty upon the respondent to stop and not enter the intersection until he could do so with safety.
Statutory provisions directed to the regulation traffic on highways and public streets, as ordinarily enacted, are in addition to but not in of the common law obligation to exercise due care.
53(1) contemplates that one in the position of the respondent would exercise due care in ascertaining the condition of the traffic on the highway and also as he proceeded to enter into and continued through the same.
It follows that the mere fact that the respondent entered the intersection first did not necessarily mean that he had the right-of-way.
That the trial judge had this in mind evident when regard had to his reasons as a whole and to his finding that the respondent did not keep an adequate lookout after he had started up again.
Per Rand and Kellock JJ. (dissenting)
: The trial judgment vitiated by an initial misconception of 53(1) which governed these two automobiles as they approached the intersection. It found that the respondent actually tered the intersection first and that he, therefore, had the right-of-way even though the appellant was travelling on a through street.
53(1) imposes a clear duty upon the person who proposing to enter upon a through street to to it that he can do with safety. As there conflicting evidence as to the speed in the light the statutory right-of-way, a new trial should be had. Automobile-Collision at intersection between passenger bus and automobile--Fog- Right of way-Speed-Anticipaion of other AUTOMOBILE-Continued drivers inobservance of the rules-Motor
Vehicles Act, R.S.Q. 1941, 142, ss. 36,
This was an action by one the gratuitous passengers in an automobile which collided with a motor passenger bus.
The bus, which had been. proceeding east on a highway divided with one-way traffic lanes by a cross strip down the centre, made a left turn the highway in order to go north on a side road.
It came to a stop before crossing the west lane and while proceeding slowly across was struck on its right rear side by the automobile which was travelling west.
It was a very morning and both vehicles had their lights on.
driver of the automobile admitted having reduced his speed for the intersection to or 30 miles per hour. The Motor Vehicles
Act (R.S.Q. s. forbids a speed in excess of 20 miles per hour at intersections.
The trial judge held the bus driver responsible and this judgment was affirmed by a majority in the Court
Held: (Taschereau J. dissenting), that the appeal should be allowed.
Rinfret
C.J. agreed with the dissenting judgment of the Court of Appeal that the accident was caused entirely by the fault of the driver the automobile. Per Estey, Cartwright and
Fauteux JJ.: Applying the principle enunciated in London Passenger Transport Board v. Upson A.C. that a driver is bound to anticipate on the part of the other drivers only those follies which, according to the teachings of experience, commonly occur, the precautions taken by the bus driver were sufficient. By stopping, looking and listening as he did with the manifest intention of giving the right of way to traffic coming on his right, the bus driver did enough to satisfy his obligations to give the right way and to refrain, in view the fog, from any speed or imprudent action which might endanger life or property.
Having done enough, he cannot be held responsible because he could have done more.
On the other hand, by adopting a speed at an intersection in excess the legal limit and also, in view of the fog, susceptible of endangering life and property, the driver of the automobile committed a fault which was the sole cause of the accident.
His negligence was not of such a common occurrence that the bus driver was bound to anticipate it. Consequently, in view of the sufficiency of the precautions taken by the bus driver and of the gross negligence the driver the automobile, the omission to sound his horn, imputed to the bus driver, cannot constitute a fault.
Even assuming that the fault of the driver of the automobile was such that the bus driver should have anticipated it, it is a least questionable as to whether it has been established that there was a relation of cause and effect between the accident and the alleged failure to sound the horn.
Taschereau J. (dissenting)
: Both drivers were equally at fault: the bus driver who had the duty to protect his right, because
AUTOMOBILE-Continued he attempted in foggy weather to cross the highway without making sure that he could do so without danger; and the driver of the automobile, because in these circumstances he abused his right of way by exceeding the speed limit at an intersection.
Both drivers are jointly and severally liable for the full amount of the damages suffered by the gratuitous passenger.
Petition of right-Pedestrian struck automobile driven employee of the Crown on duty-Pedestrian crossing street-Failure keep proper look-out-Common fault. . Negligence-motor vehicle-momentarily stopped on highway at night-Rear-end Proximate Meaning of "parked or left standing" in s. 48(1), The Highway Traffic Act, R.S.O., 1950, 167. On Dec. 1949 at o'clock p.m. the respondents' motor truck driven by B while proceeding westerly on Provincial Highway No. and at a point some feet west the intersection a railway level crossing ran into the rear of the appellants' motor truck.
The latter also headed west had been backed down the highway by T and stopped north of the centre the highway to pick up some equipment from the side of the road. It was equipped with rear lights which complied with the requirements of The Highway Traffic Act (Ont.).
Two cars travelling westward passed the stationary truck immediately prior to the accident. Gale J., who tried the action without a jury, found that the respondents' negligence was the effective cause of the accident and dismissed the action. The Court Appeal for Ontario reversed the judgment and held that the cause of the accident was the combined negligence of both parties. (Cartwright J. dissenting) that the appeal should be allowed and the judgment of the trial judge restored.
Per Locke J.: Since the oncoming cars were over 1,300 feet distant when the appellants' truck was backed along the highway and brought to a stop, the fact that it was brought into its position in this manner was an irrelevant consideration in determining liability. The proper inference to be drawn from the evidence was that the rear lights were burning on the appellants' truck.
It was not "parked" on the highway within the meaning of that term in (now 43(1)) The Highway Traffic Act, and the evidence did not disclose any negligence the part of the appellants.
Speers v. Griffin O.R. 552 and Blyth v. Birmingham Water Works Co.
Ex. at 783, referred to. Per Cartwright J. dissenting: Whether the negligence B was the sole or only a contributory cause of the collision was a question of fact with which the Court Appeal was as well able to deal as the trial AUTOMOBILE-Concluded judge and the view of the Court of Appeal was the right one.
If in doubt it would be the duty of this court to affirm the decision of the appellate court on the principles stated Demers v. Montreal Steam Laundry
Can. S.C.R. 537. Decision of the
Court of Appeal for Ontario O.W.N.
652, reversed.
CIVIL CODE-Articles andQuasi-Offences)..................
2.--Article 1279(a) (Property of consort................................
3.-Articles 1488, 1489 (Sale of thing not belonging the seller) ................
4.- Article 1727 (Mandate) ........
CODE OF CIVIL PRODECURE-Article
82 (Party must heard or summoned). .
2.- Article 117 (Summons) ........
Articles 174, 176 (Exceptions the form)............................
4.-Articles
1024 (Petition right)..............................
Duties-Joint owned shares transferable at
Toronto or Montreal-Claim for succession duties Ontario-Subsequent split of shares
-New certificates made transferable at Winnipeg also-Refusal of transfer agent in
Winnipeg make transfer until Ontario's claim settled-Action for damages-Succession Duty Act, S. of 0., 1989, 2nd Session,
1. The appellant and his mother residing in Winnipeg, were, when the latter died in joint owners of shares of the respondent company transferable at Toronto
Montreal.
The transfer agent at Toronto having refused to register the shares in the sole name of the appellant unless a succession duty release was produced, the appellant brought action in Ontario for a mandatory order. This was dismissed at trial and affirmed by the Court of Appeal and this Court. The situs of the shares however was not determined in the action.
Subsequently, the respondent's shares were subdivided and new certificates were issued in the joint names of the appellant and his mother, transferable among other places, at
COMPANIES-Concluded
Winnipeg.
The transfer agent there, demand, refused to issue a new certificate in the name of the appellant without a release from Ontario duty. The shares were ultimately seized by the Ontario Treasurer and the appellant paid the duty and brought these proceedings for damages in Manitoba, alleging that the respondent's refusal to transfer the shares to him was wrongful. The action was dismissed by the trial judge and by the Court Appeal. Held: The appeal should be dismissed. Per Kerwin, Estey, Cartwright and Fauteux JJ.: The action was not properly constituted to determine the question of situs of the shares.
The appellant should have moved against the seizure instead of paying the claim.
The respondent was not estopped from denying that the shares were transferable in Winnipeg because the appellant did not change his position by reason of the making the statement in the new certificates. Per Kellock J.: The establishment of a transfer in Winnipeg had no relevancy to the issue.
The shares were situate and liable to duty either Ontario or Quebec since these were the only places where they could have been effectively dealt with at the date of the death. The appellant chose to pay the duty instead contesting liability and has, therefore, not established that he has suffered any damage for which the respondent responsible. v. B.A. Co.
CONSTITUTIONAL LAW-Constitutional Law-Property and Civil Rights-Criminal Law-Confiscatory Legislation-Validity of The Slot Machine Act, R.S.A. 1935, 333. The Slot Machine Act, R.S.A. 333, provided that no slot machine should be capable ownership nor the subject property rights within the Province and that no court civil jurisdiction should recognize or give effect to any property rights therein.
It authorized the seizure under warrant any machine believed to be a slot machine and provided that following an inquiry before a justice of the peace the latter, unless satisfied that the machine was not a slot machine within the meaning of the Act, should order its confiscation to the Crown in the right the Province.
The appellant, required to show cause why certain machines seized under the Act should not be confiscated, secured an order of Prohibition the Supreme Court Alberta which was set aside a majority judgment the Appellate Division.
On appeal the sole question raised before this Court was whether the Act as stood before an amendment which came into force on July 1, 1952, was intra vires the Alberta Legislature. Held: (Kerwin, Taschereau and Estey JJ. dissenting) that The Slot Machine Act, R.S.A. 333 is ultra vires, since it is legislation in relation to criminal law, (Kellock, Locke and Cartwright JJ.); it in relation to matters covered by the Criminal Code, (Rand J.) CONSTITUTIONAL LAW-Continued
Per: Rand J.
Since the machines or devices struck at by the Statute are those dealt with in a similar manner by the Code, it sufficient to say that the statute is inoperative.
Per: Kellock and Cartwright JJ.
The Statute appears to be inseverable, to relate only to the prohibition and punishment keeping contrivances for playing games of chance, that is to criminal law and to be ultra vires of the Legislature in
Rex v. Karminos 1 W.W.R. 433 approved. Industrial Acceptance Corporation v. the Queen S.C.R. 273 referred to.
Re Race Tracks and Betting 49 O.L.R.
at 348 seq. applied.
Provincial Secretary of P.E.I. v. Egan S.C.R. 396, Bedard v. Dawson S.C.R. and Regina v.
Wason O.R. 58 and O.A.R.
distinguished.
Per: Locke J.
In essence the Act was directed against gambling and nothing else, the exclusive jurisdiction to legislate in regard to which lies with Parliament under head 27 of of the B.N.A.
Russell v. the Queen App. Cas for Ont. v. Hamilton Street Ry.
A.C. 425; Proprietary Articles Trade
Assoc. v. for Canada A.C. 310;
R. v. Karminos 1 W.W.R. 433.
R.
v. Nat Bell A.C. Bedard v.
Dawson S.C.R. and Provincial
Secretary of P.E.I. v. Egan S.C.R.
396, distinguished.
Kerwin
Taschereau JJ. (dissenting)
: The legislation impugned is neither criminal law nor incidental thereto. The Legislature was not attempting to create an offence and provide a penalty but was acting within its powers under 92 of the B.N.A. Act head
"Property and Civil Rights in the Province"
and head "Generally all Matters a merely local or private nature in the
Province".
The Act was not aimed at gambling and, therefore, does not cover the same ground as the provisions of the Criminal Code. B~dardv. Dawson S.C.R. 681 at 684, 685, 687; Lymburn v. Mayland
A.C. 318 at 323; Povincial Secty.
P.E.I. v. Egan S.C.R. 396 at 416.
The jurisdiction exerciseable by a justice the peace under the Alberta Act does not broadly conform to the type exercised superior, district or county courts under
96 of the B.N.A. Act. Re Adoption Act of Ontario S.C.R. 398, approved and adopted in, Labour Relations Board of Saskatchewan v. John East Iron Works
Ld. A.C.
Per Estey J. (dissenting)
:
The effect of the legislation to prevent rather than punish.
It is, therefore, quite different from that which is classified as criminal law under or that of creating offences and penalties under 92 of the B.N.A. Act. The language used by the legislature expressly prevents the use of the machines and devices and a construction to that should be adopted rather than one which attributes to the legislature an effort to indirectly legislate in relation to criminal law.
A.G. for Manitoba v. A.G. for Canada
CONSTITUTIONAL LAW-Continued A.C. 260; for Ontario v. Reciprocal Insurers A.C. 328 at 345; of Manitoba v. Liquor License Holders Association A.C. at 79; Lymburn v. Mayland [1932] A.C. 318.
A.G.
2.-Constitutional Law-Validity of Slot Machine Act, 215 (N.B.)-Application of definition of "slot machine"- Criminal Lau-Property and Civil Rights- Confiscatory Legislation. "pin ball" machine, described in the reasons for judgment that follow, was seized in the possession the appellant under the provisions of the New Brunswick Slot Machine Act, The Act provided that no slot machine should be capable of ownership nor the subject of property rights within the Province and that no Court should give effect to any property therein and set up a procedure for seizure and confiscation. "Slot machine" was defined by s. (ii), (iii), quoted in full infra. The appellant appealed from a judgment the Supreme Court of New Brunswick, Appeal Division, reversing the decision of a police magistrate and ordering the machine confiscated to the Crown in the right of the Province.
Held: (Kerwin and Estey JJ. dissenting), that the appeal should be allowed.
Taschereau, Rand and Kellock JJ. held that the machine did not fall within the definition of slot machine contained the Act; Kerwin and Cartwright JJ. that it did not fall within clause but did fall within clause (ii); Estey J. that it fell within clause (i).
Locke J. in the view he took found it unnecessary to consider the point. Kellock, Locke and Cartwright JJ. held that the Act was ultra vires.
Kellock and Cartwright JJ. for the reasons they had given in Johnson v. the for Alberta Locke J. regarded it as clear that the Act was aimed at the suppression of gaming which fell within the exclusive jurisdiction of Parliament under head 27 of of the B.N.A. Act. Kerwin and Estey JJ. for the reasons each had given in the Johnson case supra, and Taschereau J., for the reasons given by Kerwin J. the latter case, were of opinion that the Act was intra vires. Rand J. reached his decision without considering this point. 3.- Constitutional
Law - Mechanics' Lien-Interprovincial and International oil pipe line company incorporated special act of Parliament-Whether mechanics' lien applies to, or may enforced against, property of such company-British North America Act, 1867 (30 & Vict. c. 3 Imp. s. head 29, 92 head 10(a) )-The Mechanics' Lien Act, R.S.B.C. 1948, 205. A company incorporated by special Act of the Parliament of Canada for the purpose of transporting oil by means of interprovincial and international pipe lines is a work or CONSTITUTIONAL LAW-Concluded undertaking within the exclusive jurisdiction of Parliament.
As such it is not subject to a lien under the provisions of a provincial Mechanics Lien Act since the effect of such legislation would permit the sale the undertaking piecemeal and nullify the purpose for which it was incorporated.
Judgment of Court of Appeal for British
Columbia 8 W.W.R. (N.S.)
683, affirmed.
........
CONTRACTS-Municipal
Corporations
Contracts - Debenture Issue - Validity variation in terms thereof letter under corporate seal-The City of Toronto Debt
Consolidation Act, 1889 (Ont.) 74-An
Act respecting the City of Toronto,
(Ont.) 135-The Municipal Act, R.S.O.
1950, c.248, 884..................
2.-Contracts-Land-Parol agreement to real property will for services rendered - Part performance - Referability to such land-Statute of Frauds, s. 4-Quantum
Meruit-Statute of Limitations.
The respondent sought to recover from the estate of his deceased aunt under an oral agreement whereby the aunt, on condition that the respondent perform such services as she might request during her lifetime, undertook to make adequate provision for him her will and in particular to leave him a certain piece land.
The respondent fully performed his part of the agreement.
aunt, who owned other land as well, died intestate.
Held: That the acts relied upon were not unequivocally and of their own nature referable to any dealing with the land in question so as to take the case out of of the Statute of Frauds; but that the deceased having had the benefits full performance by the respondent an existting although unenforceable contract, the law imposed upon her, and so upon her estate, the obligation to pay the fair value of the services rendered.
The cause action did not accrue until the death the deceased intestate and the statutory period only then began to run.
Wilson v. Cameron 30 O.L.R. 486 and Fox v. White
O.W.N. 316 overruled.
The rule in Maddison v. Alderson App. Cas. 467, as adopted in McNeil v.
Corbett 39 Can.
S.C.R. 608, followed.
3.-Mechanics' Liens-Materialman's- Whether materials furnished under oncontinuous contract when contract abandoned and work completed owner-The Mechanics' Lien Act, R.S.A. 1952, 236.
Where materials are furnished a contractor for the erection a school but, due to the contractor's death, the contract with the school board is abandoned by his estate, and further materials are supplied on the owner's
(the school board's) order and charged to it,
CONTRACTS-Concluded the two contracts cannot be tacked together to enlarge the time specified in The Mechanics' Lien Act, R.S.A. 236, 24, for registering a lien for materials furnished under the first contract.
Held: (Reversing the judgment of the Appellate Division of the Supreme Court Alberta, 8 W.W.R. (N.S.)
513) that the materials furnished after the contractor's death were not supplied under the contract entered into by him with the appellant Board of Trustees.
Per Locke and Cartwright JJ.: Union Lumber Co. v. Porter (1908). 8 W.L.R. 423 not followed; Whitlock v. Loney W.W.R. Sask. L.R. and Fulton Hardware Co. v. Mitchell 54 O.L.R. 472, approved.
v. Co........... COPYRIGHT - Copyright - Infringe- Board, powers of-Validity of Tariff established the Board-Radio broadcasting stations-Copyright Act, R.S.C. 1927, 32 and amendments. Action for infringement of copyright, damages and an injunction, brought to test the validity of the tariff (Tariff No. applicable to radio broadcasting stations for the year 1952. tariff as fixed by the Copyright Appeal Board called for a charge based on a defined percentage the Stations' gross revenue for their previous fiscal year and directed that the respondent would have the right, in order to verify that gross revenue, to examine the books the licencees. defence contended that the imposition of such a charge was not within the power the Board as it was not a statement of "fees, charges or royalties" within the meaning those words in the Copyright Amendment Furthermore, the power of the Board to impose as a term in the tariff the right for the respondent to inspect the books of the stations, was also questioned. The action was maintained by the trial judge.
missed (Rand and Locke JJ., dissenting, would have allowed the appeal in part). Per Kerwin C.J., Taschereau and Cartwright JJ.: The statements filed by the respondent before the Board and the statements certified by the Board were both statements of "fees, charges and royalties" within the meaning and contemplation of the Act.
The inconvenience which might result from the statements of fees requiring the stations to ascertain their gross revenue by the last day of their fiscal year, when such a day was the last day of the calendar year, was not a sufficient reason to void the tariff.
The statute must be construed ut res magis valeat quam pereat, and to give effect to this argument would render the statute, in its present form, unworkable. Nor was the inconvenience resulting from the fact that for a certain period in each year the respondent could not know what to charge for a licence and that those wishing to obtain a licence could not know what COPYRIGHT-Continued they might be called upon to pay, a sufficient reason for construing the statute as imperatively requiring the Board to certify the fees for a calendar year on or before the first of the year under penalty of voidance.
The statements, upon certification, relate back to the commencement of the year.
Since the Board was within its powers in fixing the fees at a percentage the gross revenue, it was within its powers to approve or prescribe the manner in which the amount such revenue was to be ascertained or verified.
Semble, that the word
"tendered" in section 10B(9) of the Copyright Act should be construed as "offered to undertake to pay". Per Rand J.
(dissenting in part): The contention that there was no authority in the society to use the gross revenue as a basis of the fees untenable.
Since the terms of the licence allow any work to be used at any time the day for any length time, the contribution of the works to the total activities and thus to the total revenues of the stations is directly related to that revenue and becomes a legitimate basis for the fees.
That basis has been approved by the Board and considering its broad discretion, could not be held that it was beyond the scope of that discretion.
Provisions of this nature for which a practical workability has proved itself could not, because of a logical or theoretical difficulty, be nullified by interpretation.
But it was not necessary to the establishment of the fees that the books should be opened to inspection.
There a legitimate distinction between the disclosure of the total revenue and the disclosure of the details of that revenue.
However, that part of the statement was clearly severable.
Per Locke J. (dissenting in part)
: As the Act does not state the basis on which the Board is to the rates, the matter being left to its discretion and judgment, it was not beyond its powers to approve such a charge.
The possible injustice which might result from the method used was a matter solely for the consideration of the Board and the Courts were without power to intervene.
It was not within the powers the Board to authorize the inspection of the books of the appellant.
The Board, upon the true construction the statute, has merely the power to the rate but not the other terms of any licensing agreement to be made between parties.
Subsection 9 of section 10B of the
Copyright Act was a clear indication of the intention of Parliament that the licences should amount to a simple permission to use the works and did not contemplate that, in addition to the payment fees, the copyright holder might impose further terms such as the one in question.
Nor was it reasonably necessary for, or incidental to, the discharge of the Board's implied functions that it should have the power to settle such a term of the licence to be given.
The matter being one of jurisdiction, no assistance can be derived from the fact
COPYRIGHT-Concluded that the respondent might be deprived its fees unless the revenue of the stations could be verified by it.
The damages awarded should be reduced to $1. and there should be no costs here or in the Exchequer Court.
v. C.A.P.A.C................. Trial-Appeal-Jury's verdict set aside by appellate court-Crown appeals-Power Supreme Court restore verdict-the Criminal Code, R.S.C. 1927, 86, 1024-the Supreme Court Act, R.S.C. 1927, 46. The respondent, on evidence that was wholly circumstantial, was found guilty by a jury of unlawful assault with intent to rob.
The Ontario Court of Appeal, Hogg J.A. dissenting, set the conviction aside the ground that there was no evidence implicating the accused to go to the jury. The Crown appealed on the ground that the dissenting judgment was right in law. Held: (Cartwright J. dissenting), that the appeal should be allowed and the order of the Court of Appeal set aside. Held: also, (Kerwin J. dissenting), that an order should be made restoring the verdict of the jury. Per Taschereau, Kellock and Fauteux JJ.: The suggestion that a difference as to the person appealing, i.e. the Crown, or an accused, calls for a distinction in law as to this court's powers find no support either in the enactments defining them, (the Criminal Code, 1024; the Supreme Court Act, 46), or in the judicial pronouncements interpreting such enactments, Manchuk v. the King S.C.R. at 349; Savard and Lizotte v. the King S.C.R. 20 at 33, 39; Lizotte v. the King S.C.R. Since it does not appear that the verdict the jury was unreasonable and this court being in as good a position to decide that question as the court below, it should, consonant with the diligence required in the proper administration justice, do so.
Per Kerwin J. (dissenting in art): The dissent was on the question of law-whether there was any evidence to go to the jury.
Hogg J.A. was right holding there was, but the majority of the Court having decided the contrary, did not determine the question raised in the respondent's notice of appeal, that even there was such evidence the verdict should be set aside as unreasonable.
It had the authority to do so whereas the jurisdiction this court is strictly limited and the situation on an appeal by the Crown is different from that when the accused the appellant and, therefore, the decision in Fraser v. King S.C.R. 296, is not applicable. An order should therefore go that the case be remitted to the Court of Appeal in order that it may, if leave be given, pass upon the point, the only one upon which the respondent is entitled to its decision. Cartwright J. dissenting, entertained doubts as to the jurisdiction of this court, as it seemed to him implicit in the reasons of the majority CRIMINAL LAW-Continued of the Court of Appeal, that they had held the conviction ought to be set aside under s. 1014(1) (a) of the Criminal Code, a ground of fact or of mixed fact and law.
Dealing with the matter however on the assumption that the sole ground of the decision of the majority of the Court of
Appeal was that there was no evidence to go to the jury and that the ground of dissent was that there was, he would have dismissed the appeal.
MCKAY............................
Failure to charge jury of danger of accepting evidence of perjured accomplice on a vital issue.
Where a judge fails to properly instruct a jury on the great danger of accepting the evidence of an admittedly perjured accomplice on a vital issue, a conviction cannot stand.
The rule in Moreau v. the King
[1944] 1 D.L.R. 462; 80 Can. C.C. 290 cited in Rex v. Stack and Pytell [1947] 3 D.L.R.
747 at 762; 88 Can C.C.320at 327, approved.
Per Rinfret C.J. and Taschereau and
Fauteux JJ.: It appears from the evidence in the record that a verdict of guilty by a jury properly instructed and acting judicially would not be open to review as unreasonable and unsupported by the evidence.
Therefore a new trial should be ordered. Per Rand and Cartwright JJ., dissenting in part: On the evidence a properly instructed jury should have acquitted the accused and therefore this court should direct that a judgment of acquittal be entered. Judgment of the
Court of Queen's Bench, Appeal Side, Q.R.
[1953] Q.B. 234, reversed.
Rand and Cartwright JJ. (dissenting in part)
.
3.-Constitutional Law - Property and
Civil Rights - Criminal Law - Con catory
Legislation-Validity of The Slot Machine
Act, R.S.A. 1935, 333.............
Constitutional Law - Validity
Slot Machine Act, 215 (N.B.)- Application of definition of "slot machine"- Criminal Law-Property and Civil Rights
-Confiscatory Legislation .............
Conviction for murder-Jurisdiction-Situs of crime, question of law-Publication and distribution of written articles prior to trial- Prejudice. The situs of a crime, in so far as it is related to the question of jurisdiction of a Superior Court of Criminal jurisdiction to try an accused, is a question of law exclusively for the Court to decide-even if, to its determination, consideration of the evidence is needed.
It is not a question within the domain of the jury whose lawful fulfilment of duties rests on the assumed existence of the jurisdiction of the Court
CRIMINAL LAW-Continued to try, at the place where the trial is held, the accused for the crime charged. jury is concerned with the facts as they may be related to guilt or innocence but not to jurisdiction.
On an application for leave to appeal to this Court from the judgment of the Court of Appeal for Ontario affirming the conviction of the applicant for murder. Held: The application must be dismissed.
1. The Lower Courts have pronounced that the Court sitting at the County of Dundas, in the Province of Ontario, and which tried the applicant, had the jurisdiction to try him, and, in this respect, the latter has failed to rebut the presumption Omnia presumuntur esse rite acta which applies to a Superior Court of Criminal jurisdiction.
2. The applicant has failed to show that there should be disagreement with the conclusion of the Court of Appeal that the publication and distribution, prior to the trial, of written reports and articles having reference to the case, did not in fact prevent him from having a fair trial.
3. The argument submitted by the applicant with respect to the alleged failure of the trial judge to direct the jury on the theory of the defence or as to an alleged lack of motive, does not justify leave to be granted.
6.-Justices and Magistrates-Preventive justice, power exercise-False Imprisonment-The Public Authorities Protection Act, R.S.O. 1987, 135, ss. 1, 8(1)-The Criminal Code, R.S.C. 1927, s. ()-The Magistrates Act, R.S.O. 1937, 188, s. 8(1).......................
7.-Criminal law-Conspiracy-Whether a husband and a wife can conspire together alone commit the indictable offence forgery-Criminal Code, ss. 16, 573. The appellant, charged under s. 573 of the Criminal Code, was convicted of having unlawfully conspired with his wife to commit the indictable offence of forgery. His conviction was affirmed by the Court of Appeal for Ontario. Held (Fauteux J. dissenting): That the appeal should be allowed and the conviction quashed. A husband and a wife cannot be found guilty under s. 573 of the Criminal Code of conspiring with each other alone to commit the indictable offence of forgery, because judicially speaking they form but one person and are presumed to have but one will, and one person alone cannot conspire. Fauteux J. (dissenting): The common law rule that a husband and a wife cannot be guilty of conspiring alone together appears to have stemmed from the doctrine of conjugal unity. But today that doctrine has disappeared and husbands and wives have each an independent legal entity, in both the field of civil and criminal matters. Consequently, it must be concluded that the rule has perished with the disappearance CRIMINAL LAW-Continued of the reason which gave it life and support.
Assuming that such a conclusion is not justified, the provisions of of the
Criminal Code cannot apply since the rule has been altered by and at least, inconsistent with the provisions of the Criminal
Code.
......
Mens Rea- Beachcomber collecting logs from booming ground without consent of owner-Whether theft-Whether mens rea-Criminal Code, ss. 22, 896.
The respondent was charged under the Criminal Code with the theft two saw logs belonging to a lumber company and stamped with a registered brand, which had been floating within a recognized booming ground but not contained in any boom.
He admitted taking and selling them to another beachcomber who, according to the existing practice, had them scaled by the Forest Branch of the provincial government.
But he contended that he did not intend to do anything wrong and thought that he had the right to do what he did; that they were drifting and that he thought that the tide or the wind had carried them into the enclosure.
His acquittal by the trial judge, on the ground that there had been no mens rea, was affirmed by the
Court of Appeal.
Held (Locke J. dissenting): That the appeal should be allowed and a conviction directed.
Per Taschereau and Rand JJ.: The respondent's belief that by the general law he had the right to collect the logs as he did, to dispose of them, and in effect to require the owners to pay him or the person to whom he transferred them a remuneration for his salvage work, being a mistake of law, was not admissible as a defence by virtue s. 22 of the Criminal Code. Per Estey and Fauteux JJ.:
In the circumstances of this case, it cannot be said that the respondent could justify his collecting the logs by stating that they were drifting.
The were not drifting in an area that would permit a beachcomber to take them into his possession.
He did not collect them in such a place or under such circumstances that he could reasonably presume that they had been abandoned that he might take them out of possession of the party in control of the booming ground.
Knowing that they were in a booming ground under the control and direction of the company, he could not be said to have had an honest and reasonable belief in the existence of facts which, true, would have constituted a defence and, therefore, he possessed mens rea.
By trespassing upon the booming ground and taking the logs fraudulently and without colour of right, with intent of disposing of them in a manner that deprived the company temporarily its property, he was guilty of theft.
Per Locke J. (dissenting)
:
There was evidence upon which the trial judge could find that the respondent took possession of the logs believing that he was entitled to do so with the intention not
CRIMINAL LAW-Continued of stealing them but of profiting by obtaining salvage from the owners if they were found, or which could leave the trial judge in such doubt as to require him to acquit. To constitute the crime of theft, the act must be done fraudulently and without colour of right.
Section 22 of the Criminal Code did not affect the matter since the question to be determined was whether not the respondent committed any offence. SHYMKOWICH......... 9.-Criminal law-Conspiracy commit indictable offence-Gist of offence-Whether necessary have intention commit the indictable offence-Criminal Code, 573. It is misdirection for a trial judge to tell the jury, at the trial of a person charged of having conspired with another person to commit the indictable offence kidnapping, that the offence of conspiracy was complete by the making of the agreement to kidnap even though the other alleged conspirator never at any time had had any intention carrying the agreement into effect. mere agreement, without the intention both parties to carry into effect the common design, is not sufficient.
There must exist an intention not only to agree but also an intention to put the common design into effect.
Per Locke J. (dissenting)
: The gist of the offence of conspiracy the agreement of two or more persons to commit any indictable offence, and the mens rea to be found in the intention to offend against the penal provisions of an act.
Therefore, the agreement entered here between the two conspirators to commit the offence of kidnapping was a conspiracy within the meaning of 573 of the Criminal Code. There was an agreement in the eyes of the law and the fact that one of the parties in the agreement did not intend to carry out his part of the bargain could not affect the legal nature of the arrangement.
The portion of the judgment of Willes J. in Mulcahy v. The Queen ( (1868) L.R. H.L. 306), purporting to define criminal conspiracy, was never intended as such, but rather was it a statement of the offence covered by the statute under which that case was tried. R.S. Wright's The Law of Criminal Conspiracies and Agreements (1873 ed.); Poulterers Case Co. Rep. 55b; Reg. v. Best (1705) 1 Salk. O'Connell v. Reg. (1844) & F. Reg. v. Aspinall (1876) L.R. Q.B.D. 48; Brodie v. The King S.C.R. and Bank of New South Wales v. Piper A.C. 383 referred to. Per Fauteux J. (dissenting): In the circumstances this case, the exchange of promises could not be treated as having never existed because the alleged mental reservation on the part of one of the two parties.
Mental reservations are not apt to defeat the natural consequences of words accompanied by deed's.
In this case, the common intention was assented to and encouraged by word and by deeds, and that was sufficient to constitute the conspiracy CRIMINAL LAW-Concluded even though one of the parties did not intend to go through with the execution the agreement.
CROWN - Immigration Regulations - "Child", meaning of-Entry refused-Mandamus-Crown, Servant of-Child's status as to legitimacy governed law of father's domicile-Immigration Act, R.S.C. 1927,
98-P.C. 2115, Sept. 16, 1930, P.C. 6229,
Dec. 80, 1950........................
Master and Servant-Fire started while mechanic was testing engine which he had repaired-Fire due short circuit in cables leading from batteries to engine-Worn out insulation-Failure to make proper inspection of cables-Repair man in general employment of general distributor of engine- Repair contract given to local distributor- Repair man was servant of whom-Actions in contract and in tort-Indemnity right local distributor from general distributor...............................
2.-Damages
Third Party proceedings-Water carrier-Carrier liable for damages cargo-Relief against negligent ship's repairer-Proximate cause of the damage-Contributory negligence-Estoppel-Water Carriage of Goods
Act, 1936, 49-Contributory Negligence
Act, R.S.B.C. 1948, 68.
In a judgment from which no appeal was taken, the cargo owner recovered damages from the respondents, the ship owner and the charterer, for a cargo damaged during its carriage the respondents' ship, on the ground that due diligence had not been exercised to make the ship seaworthy.
The trial judge found that the damage had been caused the imperfect tightening of the covering of a storm valve which had allowed water to seep through to the cargo.
Immediately prior to loading the cargo, the appellant, a ship repairing company, had overhauled and repaired the ship, including this storm valve.
An officer of the ship had inspected the work generally, but in spite of his apprehension that the valve might not have been screwed tight, no final inspection of it was made.
A certificate that the repairs had been done to their satisfaction was signed by the officers of the ship.
In the third party proceedings taken by the carriers against the appellant and tried subsequently, judgment for relief over was given at trial and this was affirmed in the Court of
In this Court the appellant contended that the failure to fulfil the contract had not been the proximate cause of the damage, that the respondents were estopped from denying that the work had been properly done, and that, in any event, there hadjbeen contributory negligence.
DAMAGES-Concluded
The appeal should be dismissed. Rinfret C.J., Kerwin and Estey JJ.: The damage to the cargo was a natural and probable consequence that was, or ought to have been, in the appellant's contemplation when it breached its contract. Assuming that the phrase novus actus interveniens may apply to a case of contract, that breach was the proximate cause of the damage and not the action of the ship's officers.
The repairer's continued even though the ship's officers failed to intervene.
Furthermore, there was no duty owing by the respondents or their agents to the appellant to inspect. taking of the ship to sea was the very thing contemplated as by the appellant as by the respondents.
As the repairs to the valve itself had in fact been properly done, the signing of the certificate did not create an estoppel.
Although the evidence of the appellant's workmen that the bolts had been tightened securely was not believed by the trial judge, it must be taken that they have reported to their foreman who would thereupon have given the same information to the respondents and, therefore, there was no negligence on the part of the. respondents which caused or contributed to the damage.
Per Rand and Cartwright JJ.: The damages sought were such as would be contemplated or anticipated and came within the scope of those which redress is given.
The ground which the default the intermediate actor, the ship, was not be treated as a novus qctus was that the respondents were entitled to rely upon their contract for the completeness of the work to be done. So far as the respondents inspected the work, they did so in their own interest and not because of any obligation toward the repairer. There was an absolute obligation to finish the work with care and skill.
Nor is the burden guarding against such an oversight to thrown on the ship as a matter of policy in limiting damagds.
For those reasons also, it could not be said that, as between these parties, there were concurrent causes of damages. The certificate of satisfaction did not imply an acceptance of all particulars regardless of latent flaws and could not be intended to conclude against the ship such a delinquency as was present here.
Petition right Married woman common as to property-Right to compensation for injuries resulting from delict under Art. 1279 (a) of the Civil Code. Article (a) of the Civil Code entitles a married woman common as to property to claim compensation, not only for the bodily injuries she has suffered, but also for all the consequences resulting from the delict quasi-delict such as hospitalization costs, medical costs, services rendered etc. (Labonne v. Nol Q.R. R.L. 552 approved). THE v. TfoMPsoN... Criminal Law - Evidence- Failure to charge jury of danger of accepting evidence of perjured accomplice on a vital issue...........................
2.-Privileged documents - Evidence - Production of income tax returns sought in a criminal prosecution-Objection by Minister contrary to public policy-Income War Tax Act, R.S.C. 1927, c. 97, s. 81- Income Tax Act, 1948, S. of C. 1948, c. 52, s. 121.-Excess Profits Tax Act, 1940, S. of
C. 1949..........................
EXECUTORS
ADMINISTRA- TORS - Executors - Compensation passing of accounts-Where neither breach of trust by executor, nor error in principle followed by surrogate court judge established, award maintained. V.
EXPROPRIATION - Expropriation - Petition of right-Land taken over for airfield
-Right to compensation-Principles-Compulsory taking-Expropriation Act, S.R.C.
1927, c. 64. By petition of right, the respondent claimed from the Crown $42,000, as compensation for the expropriation of his land for an airfield.
Part of the land was expropriated in 1943 and another portion in 1947.
The Crown offered $15,000.
The trial judge valued the land at $300.
an acre and added $18,425. as damages for a total allowance of $32,825.
Held: The appeal should be allowed in part and the compensation reduced to $26,840.
1. There was sufficient evidence to support the finding of the trial judge as to the valuation of the land and there was no manifest error to justify the intervention of this Court with respect to that item.
2. The respondent had a right to compensation for the damages he suffered, and while their amount is difficult to ascertain in cases of this nature, certainty is not an essential condition to their determination and its lack does not exclude the obligation to reparation. It is the function of the Courts to allow an indemnity which, having regard to the probabilities and all the circumstances, will justly compensate the expropriated. An amount of
$10,000. should, on the evidence, be a fair compensation for the damages suffered by the respondent. 3. Under the circumstances of this case, an additional compensation of
10 per cent for compulsory taking should be allowed (Woods Manufacturing Co. v. The
King [1951] S.C.R. 504).
4. Unless there are special circumstances, the notes of the trial judge filed one year after his judgment was rendered and when notice of appeal had already been filed, should not be considered by the Appellate Courts.
JASMIN...................
87583-3
IMMIGRATION - Immigration Regulalations-"Child" meaning of-Entry refused -Mandamus-Crown, Servant of-Child's status as to legitimacy governed by law of father's domicile-Immigration Act, R.S.C. 1927, c. 93-P.C. 2115, Sept. 16, 1930, P.C. 6229, Dec. 28, 1950. If it be established that a child has been legitimated in China, while his father has his domicile there, the law of Canada will recognize such child as legitimate within the meaning of the regulation (Order in Council P.C. 2115 of Sept. 16, 1930 as amended by P.C. 6229 of Dec. 28, 1950) passed under the authority of s. 38 of the Immigration Act, R.S.C. 1927, c. 93, because the personal status of such child as to his legitimacy is governed by the domicile of his father. Dicey's Conflict of Laws, 6th Ed. p. 86; Wahl v. Attorney General, 147 L.T. 382; In re Goodman's Trust, 17 Ch. D. 266; Shedden v. Patrick, 1 Macq. 535, at 538, 568; Khoo Leong v. Khoo Hean Kwee, A.C. 543; Trottier v. Rajotte, [1940] S.C.R. 203, at 208; Stephens v. Falchi [1938] S.C.R. 354.
The Courts do not issue commands to the Crown, (The Queen v. Lords Commissioners of the Treasury 7 Q.B. 387 at 394) but the admission of the child having been refused because of an error in law, and legitimacy having been established, mandamus will lie directing the Immigration Officer, appointed to fulfil a particular act, to carry out his statutory duty to determine whether the child otherwise complies with the provisions of the Immigration Act. Drysdale v. Dominion Coal Co., 34 Can. S.C.R. 328; Minister of Finance v. the King, [1935] S.C.R. 278 at 285; Joy Oil v. the King, [1951] S.C.R. 624 at 642.
Judgment of the Court of Appeal of British Columbia, affirmed. THE CHAI........... INCOME- INFANTS-Infants-Neglected Children- Municipal Liability for upkeep where before permanent custody granted Children's Aid Society, child attains age of 16 years-The Children's Protection Act, R.S.O. 1950, c. 53 -The Interpretation Act, R.S.O. 1950, c. 184, ss. 1 and 2.
In proceedings taken under The Children's Protection Act, R.S.O. 1950, c. 53, a boy born Dec. 22, 1936 was by a judge's order made on Nov. 8, 1951, committed to the temporary custody of the respondent for three months.
On Feb. 13, 1952 the judge having found the boy to be a "neglected child" within the meaning of the Act and a resident of the appellant municipality and the latter liable for maintenance, renewed the temporary wardship for twelve months.
On Feb. 11, 1953, the case was again brought before the judge who adjourned the hearing to Feb. 25 on which date he made an order wherein he again found that the boy was a neglected child, ordered that he be permanently committed to the custody of the respondent and that the appellant pay for his maintenance. INFANTS-Concluded
The appellant appealed on the ground that under 1 of the Act a " 'child' means a boy or girl who actually or apparently under the age of years of age" and since the child had attained that age, such last mentioned order was made without jurisdiction.
Held: That the order was made in proceedings commenced in 1951 when the boy was under years of age and was, as was the order of Feb. 1952, a continuation of the original proceedings.
definition of "child" contained in 1 of the Act read the light of ss. I and 2 of The Interpretation Act, R.S.O. 1950,
184, would make in inconsistent with the intent and object the former to hold that the judge did not have jurisdiction to make the order.
In Re Van Allen O.R.
569 approved.
Decision of the Ontario
Court of Appeal O.W.N. 699, affirmed.
HAMILTON...........
Insurance
Surrender policy insured at request of insurer and acceptance of return of full amount of premium-Whether cancellation mutual agreement or unilateral action of insurer- Application of statutory condition 12(2), The
Insurance Act, R.S.O. 1950, 183, s. 197.
Where an insured at the request of an insurer surrenders a policy of insurance issued to him by the latter and accepts the return of the full premium, the insured must be taken to have voluntarily agreed to the recission the contract by mutual agreement. In such a case the insured cannot claim the benefit of Statutory Condition
12(2) (The Insurance Act, R.S.O. 1950, which applies only to cancellation a policy by unilateral action on the part an insurer. Decision of the Court of Appeal for
Ontario O.R. affirmed. V.
2.- Insurance-Contractors Liability Policy issued "on location" cleaning service- Property in care, custody and control insured excluded from risk-Whether damage to rug fastened floor within exclusion.
The appellant by a "Contractors Liability
Policy" agreed by "Coverage B" to indemnify the respondent in respect of all sums it should be obligated to pay because injury to property arising out the respondent's work caused by accident.
Exclusion clause (g) provided that the policy did not apply "to damage to or destruction of property owned, rented, occupied or used by in the care, custody or control of the insured."
The respondent operated an "on location" cleaning service and due to a defective cleaning machine, caused damage to a rug it was cleaning in the home its owner.
The rug, which extended from wall to wall, was tacked down all the way round the edges by a quarter round.
The rug's owner obtained judgment against the respondent and the latter sought to recover
INSURANCE-Continued under its policy. The contended that it was relieved of liability under the exclusion clause (g).
Held: (Kerwin and Cartwright JJ. dissenting) that the exclusion clause did not apply to relieve the appellant of its liability. Per Rand J.: The rug, attached as it was to the floor, was for the purposes of the service in the same relation to "care, custody or control" the respondent as the surface of the itself. The obligation to do the work upon the property was in contemplation of law to do it while the property remained within the exclusive care and control of the owner. Clearly custody was not transferred; the only care called for was in the execution the service, not toward the property as such; and no control, in a proprietary sense was intended.
Per Estey J.: The exclusion clauses were general in character and not directed to any special undertaking such as that of the respondent.
In this context the words "care, custody and control" as cited in clause (g) might be variously construed and therefore should be construed a manner favourable to the insured. Cornish v. The Accident Ins. 23 Q.B.D. 453 at 456; Woolfall & Rimmer Ltd. v. Moyle 1 K.B. 66 at
Locke J. would dismiss the appeal for the reasons stated by Laidlaw J. in delivering the unanimous judgment of the Court Appeal, O.R.
Per Kerwin
J.
(dissenting): Exclusion must be read with coverage B as the agreement of the appellant to pay was made subject to the exclusions. "Property" included real and personal property and the clause must be read disjunctively. The rug was in the respondent's safekeeping in the sense that the respondent was not to damage it and, to that extent at least, had "authority" over the rug.
With the consent of the owner the respondent had taken such possession as was possible. Hardware Mut. Cas. Co. v. Mason-Moore- Tracey Inc. 194 F. 2d. referred to. Per Cartwright J. (dissenting): It is not necessary to determine whether there was technically a bailment of the rug.
The words "care", "custody" and "control" are used disjunctively in clause and interpreting them in their plain, ordinary and popular sense the respondent, at the time the damage was done, had both the care and control of the rug and had the owner taken it out of his control before the work was finished he would thereby have committed a breach of the contract.
Judgment of the Court for Ontario O.R. affirmed, Kerwin and Cartwright JJ. dissenting.
.......................
3.-Pleadings-Insurance-Public Commercial Vehicles Act (Ont.)-Form of action to recover money paid 3rd party induced by misrepresentation insurer to insured- Applicability of the Public Commercial Vehicles Act, R.S.O. 1950, 804 commercial vehicle used real owner solely for INSURANCE-Concluded purposes of registered owner. The respondent sued the appellant to recover money which it alleged it had paid under a mistake of fact by reason of misrepresentation
The latter had issued a public liability policy covering a motor truck registered in the respondent's name and had undertaken the defence of an action for damages caused by the truck.
Just before trial it advised the respondent that it had assumed the defence on the assumption that the respondent was the owner but, having now learned that one P was the real owner, the policy was invalid and it might be forced to withdraw from the action. It had however arranged a settlement for
$25,000 plus costs and was prepared to pay
$15,000 if the respondent paid the balance.
The respondent did so and thereafter the present action was brought. For some time
P had been employed to haul exclusively
In the belief that to continue to do so he would have to be licensed under The Public Commercial Vehicles Act,
R.S.O. 304, an arrangement was entered into whereby P sold the truck to the respondent for one dollar subject to resale on the same terms at any time P desired.
P to register and insure the truck in the respondent's name.
The agent of the insurer was advised the arrangement at the time the truck was insured, some nine months prior to the accident.
Held: 1. That the arrangement entered into between the respondent and P did not infringe the provisions The Public Commercial Vehicles
Act, R.S.O. 1950, c. 304.
That the appellant knew of the arrangement and its misrepresentation induced the respondent to make a payment which the latter was entitled to recover as money paid the respondent to the use of the appellant.
Per Locke J.: The appellant was estopped by its conduct from asserting that the right to indemnity had been lost by reason of misrepresentations.
In consequence of the provisions of ss. and 214 of the Insurance R.S.O. 1950, c. in the circumstances disclosed by the evidence the principle in Moule v. Garrett L.R. Ex.
applied, and the moneys paid could be recovered as moneys paid to the appellant's use.
Decision of the Court of Appeal for
Ontario 1 D.L.R. 99, affirmed.
JURISDICTION
Criminal law-Conviction for murder-Jurisdiction-Situs of crime, question of law- Publication and distribution of written articles prior trial-Prejudice ........
Jurisdiction
Court Judgment-Appeal as of right dismissed-Motion Renewed-Leave Granted- Provisions of s. 82 no bar to application made under s. 83 of the Exchequer Court Act
87583-31
JURISDICTION-Concluded
R.S.C. 1927, 84.
The provisions of 82 of the Exchequer Court Act not apply to an application made under 83 of that Act, any more than the jurisdiction of the Supreme Court in respect of an appeal exercise of a right of appeal given by the Exchequer Court Act is affected by what is now 44 of the Supreme Court Act. British American Brewing Co. Ltd. v. The King S.C.R. 569.
JUSTICES
The respondent, a police magistrate for the Province of Ontario and a justice of the peace, convicted the appellant, a blind man, on a charge of unlawfully repeatedly calling on the telephone the appellant's estranged wife at her boarding place and at her place of employment thereby causing annoyance and a breach of the peace.
He ordered the appellant to find two sureties to be answerable for his good behaviour for three years and on default committed him to gaol for six months.
The appellant secured his discharge from custody by habeas corpus proceedings and sued the respondent in damages for false imprisonment.
The Court Appeal for Ontario dismissed an appeal from the judgment of the trial judge who had dismissed the action.
again appealed on the grounds that the respondent was not protected by The Public Authorities Act, R.S.O., 1937, c. which prohibits an action against a justice of the peace for any act done by him in the execution of his duty with respect to any matter within his jurisdiction unless done maliciously and without reasonable and probable cause, but was by the Act liable for acting in a matter in which he either had no jurisdiction, or had exceeded it.
Held: (Rand J. dissenting)- That the common law preventive justice was in force in Ontario and neither 748 of the Criminal Code nor any other section thereof to which the Court's attention was drawn, interfered with the use of that jurisdiction. The respondent therefore had jurisdiction and did not exceed it. He did not proceed on a mistaken view of the law and there was no evidence of malice. Lansbury v. Riley 3 K.B. 229 followed in Rex v. Sanbach K.B. and Rex v. County of London Quarter Sessions 1 E.R. applied.
Per Rand J., dissenting: The conditions that at common law vest in a justice of the peace jurisdiction to exercise preventive justice are those that threaten private peace or offend public order or morality.
There was nothing of that description here.
What the acts did was to annoy but they were of a JUSTICES-Concluded nature and in circumstances beyond any range of conduct touching peace, order or morality.
Reg. v. Dunne (1840) 113 E.R.
939; Reg. v. Justices of Londonderry 28 L.R.
Ir. 440; Rex v. Justices of Londonderry [ 1912] o
2 Ir. L.R. 374; Barton v. Bricknell 13 Q.B.
393; Lawrenson v. Hill (1860) 101. C.L.R.
LAND TITLES - Land Titles - Mechanics' Liens-Priorities-Lands sold bona fide purchaser for value without notice- Certificate of title issued to purchaser before registration of liens within statutory period- Whether liens apply-The Lands Title Act,
R.S.A. 1942, c. 205 as amended-The
Mechanics' Lien Act, R.S.A. 1942, c. 236, as amended. The appellants, bona fide purchasers of land for value without notice, registered title under The Lands Title Act,
R.S.A. 1942, c. 205, prior to the registration by the respondents of mechanics' liens within the time permitted by The Mechanics' Lien Act, R.S.A. 1942, c. 236.
1. That The Mechanics' Lien Act does not alter or modify the provisions of The Lands
Title Act in respect to such purchasers. The respondents' liens were not "notified on the folio of the register" when the certificate of title was issued to the appellants and therefore the latter, as provided by s. 60(1) of
The Lands Title Act, held the land free and clear of such liens.
2. That the appellants were not "owners" within the meaning of ss. 2(g) and 6 of The Mechanics' Lien Act.
Per Locke J.: While in one sense a person who takes a transfer for value from the person upon whose credit the material is supplied and obtains a certificate of title,
"claims under" the former owner in strictness it is not under this transfer that the claim of the holder of the certificate to hold the land free of the lien is based, but rather upon the express terms of ss. 60 and
62 of The Lands Title Act.
Judgment of the Appellate Division of the Supreme
Court of Alberta (1953) 9 W.W.R. (N.S.)
481, reversed and judgment at trial restored.
2.-Real Property-Land Titles-Omission by error of reservation of petroleum in transfer-Issue of certificate of title to transferee-Unauthorized addition by registrar of "and petroleum" to reservation- Right to petroleum by subsequent purchasers for value-"Wrong description"-"Misdescription"-"Prior certificate of title"-The
Lands Title Act, 1906.
(Alta.) c. 24... 427
LANDLORD
TENANT-Negligence-Landlord and Tenant-Principal and
Agent-Liability of lessee for damages done leased premises by contractor's negligence- Duty of Lessee to take reasonable precautions- Exclusion of defence of independent contractor.............................
LANDLORD AND TENANT-Continued 2.--Negligence - Infants - Landlord and Tenant-Child injured by fall through washroom window-Whether allurement or trap to children-Whether child invitee or licensee. The appellant municipality leased to the grandmother of the infant respondent, a child of four and a half years of age, an apartment situate on the 3rd floor of a building in which to alleviate the post-war housing shortage it provided "emergency shelter" to taxpayers unable to secure other accommodation. The grandmother's household included the infant and his mother and his father, the other respondent. A common wash-room was provided the several occupants on that floor.
In it was a row of wash-basins set in a stand at the back of which was a counter some three feet high at right angles to, and within two feet of a large window, the sill of which was some nineteen inches from the floor. Just below the sill and parallel to it and between it and the basins was a radiator.
An adult found the infant respondent and another child playing on the counter and told them to get down. Shortly after the adult left the room the infant respondent fell through the window pane to the ground below and was seriously injured. In an action claiming damages from the appellant, a jury found that the injured child was on the premises with the knowledge and permission of the appellant. That his injuries were caused by the fall through the window pane and that there was present in the wash-room a hidden danger or allurement to the infant respondent, namely the combination of radiator, basins platform etc., adjacent to the unprotected window. That the appellant knew the danger existed, and by its neglect to install protection guards on the window, failed to use reasonable care to prevent injury to the child.
Held (Estey and Cartwright JJ. dissenting): That there was no evidence upon which the jury could find that the structural design of the washroom constituted a trap or concealed danger, and the action should be dismissed. Kerwin C.J. and Rand J.: The duty owed by a landlord to a licensee at the invitation of the tenant is no greater than the duty owed the tenant. Hugget v. Miers [1908] 2 K.B. 278; Cavalier v. Pope [1906] A.C. 432; Fairman v. Perpetual Investment Bldg. Society [1923] A.C. 75.
In the absence of a trap or hidden danger no duty is owed by the landlord to a tenant, and a licensee on the premises at the invitation of the tenant is in no better position nor can a distinction be drawn if the licensee be a child of tender years.
Dobson v. Horsley [1915] 1 K.B. 634. Per Locke J.: There was a preliminary question of law to be determined by the trial judge as to whether the evidence disclosed anything in the nature of a concealed danger which might constitute a trap (Latham v. Johnson [1913] 1 K.B. 415) which should have been answered in the negative. There was no evidence from LANDLORD AND TENANT-Concluded which negligence on the part of the defendant might reasonably be inferred (Metropolitan Ry. Co. v. Jackson 3 App. Cas. 193 at 197) and the case should have been withdrawn from the jury. Per Estey and
Cartwright JJ. (dissenting)
: The jury, acting upon instructions to which no exception was taken and upon evidence that supported that view, found as a fact that the infant was a licensee and the "combination" constituted a trap. The case was therefore to be distinguished from Cavalier v. Pope, supra, Latham v. Johnson, supra and Dobson v. Horsley supra and brought within the rule in Lynch v. Nurdin 1 Q.B. 29 followed in Cooke v. Midland Great Western Ry. of
Ireland [1909] A.C. 238. Glasgow Corp. v.
Taylor [1922] A.C. 44, Ellis v. Fulham
Borough Council [1938] 1 K.B. 212, Yachuk v. Oliver Blais Co. Ltd. [1949] A.C. 386,
Williams v. Cardiff Corp. [1950] 1 K.B. 514,
Gough v. National Coal Board [1953] 2 All
E.R. 1283 and Hawkins v. Coulsdon and
Purley Urban District Council [1954] 2
W.L.R. 122 referred to. Per Cartwright
J. (dissenting): Assuming that the attention of the jury was not directed to the question whether or not it was an implied term of the license to the infant respondent to be in the wash-room that he should be accompanied by an adult and that this point was left undecided by their answers, it was the right and duty of the Court of
Appeal to decide it (The Judicature Act
(Ont.) s. 27), and that court rightly held that the license was not subject to the implied condition.
CrrY
LIBEL
SLANDER-Libel
Slander-Defamatory statement in Journal of
Medical Society reporting minutes of meeting
-Certain treatment referred to as quackery- Plaintiff closely identified with treatment- Plaintiff not mentioned by name-No malice found-Defence of qualifled privilege- Whether publication proved-Whether plaintif identified with innuendo. The appellant, who practised medicine in Ontario, but not actively since 1940, and who was the licensor and president of a company having the exclusive right to manufacture and distribute in Canada the basic substance entering into the Koch treatment for cancer, sued the respondent for a libel allegedly published in its Medical Quarterly of December
The article in question referred disparagingly to the medical practitioners using the Koch treatment and stated, inter alia,
"We know the Koch treatment is quackcry . . . ". The jury found that the words were defamatory of the appellant but had not been published maliciously.
The trial judge held that the publication had not been made on a privileged occasion and. maintained the action.
The Court of Appeal held that the occasion had been privileged and dismissed the action.
Held: The appeal should be dismissed.
Per Kerwin C.J. and
Estey J.: Entertaining honestly and in good
LIBEL AND SLANDER-Concluded faith as it did, a conviction that as a remedy for cancer the Koch treatment was without merit and possessing knowledge that the treatment was being prescribed by some of its members to the citizens of the Province, the respondent owed a duty to make that fact known, not only to its own members, but also to the public in the Province. The publication was, therefore, made upon a privileged occasion and in the absence of malice, the appellant could not succeed, even if, as found by the jury, the words were defamatory.
The language used was at the most an exaggeration or an extreme statement but was not unconnected with or irrelevant to the performance of the duty which gave rise to the privilege. Kellock J.: The appellant had no cause of action in respect of his relationship to the treatment as a person qualified to practise medicine in Ontario, since the practitioners referred to in the article could include only the practitioners of Saskatchewan could not be taken to include him. Even if it could be said that the article referred to all the practitioners in Canada, this also would not help him as by his own admission he had not practised since 1940, and, therefore, the words could not lead any person acquainted with him to believe that they referred to him. Furthermore, as a licensee of the right to "make, use and vend" the substance involved in the treatment or as a licensor of those rights, the appellant was not within the situation contemplated by the article of a practitioner who prescribes the Koch treatment for his patients. Per Locke J.: Since the article contained no reference to the appellant and since there was nothing in the evidence of the witnesses to whom publication was proven to suggest that they understood it as reflecting upon him in any way, there was no evidence of publication (Capital and Counties Bank v. Henty (1882) 7 A.C. 741), and the action should have been withdrawn from the jury at the conclusion of the appellant's evidence. Per Cartwright J.: The report was published on an occasion of qualified privilege and the words used did not go beyond what was reasonably germane to the performance of the duty giving rise to the privilege. That protection extended to the publication which was made to persons outside the college, as these persons had in receiving the publication an "interest" in the sense in which what word was used in Harrison v. Bush (1855) 5 E. & B. 344. Consequently, the finding of the jury that the words had not been published maliciously was fatal to the action.
ARNoTT v. SASKATCHEWAN.................. LEGITIMACY -Immigration
Regulations -"Child", meaning of-Entry refused- Mandamus-Crown, Servant of-Child's status as to legitimacy governed by law of LEGITIMACY-Concluded a father's domicile-Immigration Act, R.S.C.
1927, 98-P.C. 2115, Sept. 16, 1980, P.C.
6229, Dec. 30, 1950 ..................
MANDAMUS-Immigration Regulations- "Child", meaning of-Entry refused-Mandamus-Crown, Servant of-Child's status as to legitimacy governed law of father's domicile-Immigration Act, R.S.C. 1927, 98- P.C. Sept. 16, 1980, P.C. 6229, Dec.
28,1950 .............................
MASTER AND SERVANT-Negligence- Damages-Master and Servant-Fire started while mechanic was testing engine which had repaired-Fire due short circuit in cables leading from batteries out insulation-Failure make proper inspection of cables-Repair man in general employment of general distributor of engine- Repair contract given to local distributor- Repair man was servant of whom-Actions in contract and in tort-Indemnity right local distributor from general distributor.
When trouble developed in a diesel engine used to operate a planer mill, the property of the appellant Hoff and occupied by the appellant Trans-Canada Forest Products
Ltd. as tenant, the respondent Heaps,
Waterous Ltd. as the local agent who had sold the engine was asked by Trans-Canada to have the repairs made. Pursuant to an established practice between this local agent and Lipsett Engine and Manufacturing Co.
Ltd. the general agent for the Province, the latter sent Martin, an experienced mechanic and his helper, both in its general employment, to effect the repairs.
mechanics found the engine, which was situate in a lean-to adjoining the mill, in a dirty condition, and so were the cables running from its starting mechanism to the two batteries required to start it.
cables and the batteries had not been purchased from either dealer. After the men had completed the repairs, they replaced the cables and the batteries which they had removed to do their work.
They wiped the cables in a casual manner and seeing no defect in them except for being covered with oil and sawdust, replaced and reconnected them.
As at their first try to start the engine, it would not turn, they transposed the cables.
On the fourth attempt, a fire, which eventually destroyed the mill, was seen to commence on the floor near the cables. The appellants brought actions for damages against both respondents, and Heaps, Waterous Ltd.
took third party proceedings against Lipsett
Engine and Manufacturing Co. Ltd. The actions were consolidated and the trial judge, who found that Martin had been negligent, gave judgment to Trans-Canada against both respondents and allowed the third party proceedings.
Hoff was awarded damages against the
MASTER AND SERVANT-Continued Lipsett company.
The Court of Appeal held that Martin had not been negligent and dismissed the actions.
Held: (Locke J. dissenting), that the appeals should be allowed. Per Rinfret C.J., Taschereau, Estey and Cartwright JJ.: The trial judges' finding that the fire was caused by a short circuit due to a defective insulation of the cables was fully justified upon the evidence. 2. It would be included in Martin's duty to test his work by starting the engine, and the evidence supported the view that he was negligent in not continuing to exercise reasonable care to see that the cables remained as he had replaced them separate and apart from each other: To permitted them to become crossed and inspected them only casually. 3. Even if the evidence did not affirmatively establish the negligence, this was a proper case for the application of the res ipsa loquitur rule. The repair men were given complete charge and control of the engine and room. 4. The contract for repairs having been given to the Heaps Company by Trans-Canada, the negligent performance of the work under this contract constituted a breach thereof.
5. In the circumstances of this case, the repair men were the servants of the Lipsett company. 6. The evidence did not establish contributory negligence on the part of Trans- Canada in supplying the cables in the condition in which they were. Martin was an expert and the evidence showed that he was aware of the dangerous condition created by the defective cables.
Moreover, the evidence did not establish that fire extinguishers would have controlled the fire. 7. Trans- Canada was entitled to recover damages against the Heaps company in contract and against the Lipsett company in tort, and the latter should indemnify the former. The appellant Hoff was entitled to recover from the Lipsett company.
Per Locke J. (dissenting)
: As the purpose of the work was to produce a satisfactorily operating engine, it could not be said that to test the effectiveness of the work by starting up the motor was not within the scope of the employment of Martin.
2. That the fire was commenced by a short circuit was the only proper inference to be drawn from the evidence, but it was not possible, on the evidence, to reach a sound conslusion as to how the short circuit was caused.
3. No actionable negligence on the part of Martin was disclosed by the evidence.
The fact that the batteries and the cables had been apparently in effective use until a short time before the fire and the further fact that the batteries were connected to the engine when Martin arrived to do the repairs would undoubtedly lead him to believe that they were in a safe condition to be used.
It would place the duty of Martin on too high a plane to say that he should have detected that the cables were in such a defective condition and that his failure to do so was actionable 4. Assuming that the principle res ipsa loquitur applied in the circumstances MASTER AND SERVANT-,Concluded of this case, this would not impose upon the respondents the duty of showing how the fire was caused but simply to show that
Martin was not negligent.
(Woods v. Duncan A.C. 401).
The evidence did not disclose that Martin knew that the insulation of the cables was defective that crossing them had anything to do with the starting of the fire.
There was no breach of any duty imposed upon the Heaps company by the contract.
Lien
Priority
Lien mortgage but before money advanced pay prior mortgage-Subrogation-Whether lender entitled to priority liens of general contractor and subcontractors-The Mechanics' Lien Act, R.S.O. 1950, 227, ss. 18
(1), 20-The Registry Act, R.S.O. 1950,
336, s. 69. Section 13(1) of The Mechanics' Lien Act, R.S.O. 1950, 227 gives priority to the lien over all payments advances made under a mortgage after registration of the lien.
The section does not apply however, where, as here, advances are made by a third party for the purpose of paying a prior mortgage. In such case the lender is entitled in equity to stand as against the property in the shoes the first mortgagee and need not rely upon the subsequent mortgage for priority. Crosbie- Hill v. Sayer 1 Ch. 866; Whiteley v.
Delaney A.C. (applied in Gordon v. Snelgrove O.R. 253) followed. The appellant, incorporated under the Companies Act (Ont.) to carry on the business of automobile and insurance adjusters, was empowered to invest the moneys of the company not immediately required for the purposes of the company in such manner as from time to time might be determined.
By supplementary letters patent its powers were extended to permit it to purchase and deal in property, real and personal, but not directly or indirectly to transact any business within the meaning of The Loan and
Trust Corporations Act, R.S.O. 1950, 214.
By an agreement in writing made with two named individuals the appellant took in its own name a mortgage on an apartment house property as security for an advance of $28,000 made by it and an equal amount by them, and undertook to hold half the proceeds of the mortgage in trust for them. The courts below having held that the respondents' claims for liens were registered after the appellant's mortgage but prior to the advances made under it, the respondents contended that the appellant was without capacity to accept the mortgage under the Companies Act and that its undertaking to act as trustee was prohibited by
The Loan and Trusts Corporations Act,
R.S.O. 1950, 214.
Held: further, that as to its own money the appellant must be presumed in the absence of evidence to the
MORTGAGES-Concluded contrary to be investing moneys of the company not immediately required for the purposes of the company, and in agreeing to hold the proceeds of the mortgage trust for its co-investors, to be acting under the express powers given by 23 (1) (p) of the Companies Act. Re Mutual Investments Ltd. 56 O.L.R. 29; Re York Land Co. O.W.N.
229, distinguished. Decision of the Court of Appeal for Ontario O.W.N. 665, reversed in part. Coup- MUNICIPAL
CORPORATIONS-Railways-Municipal Corporations-Highways -Limitation of Actions-Whether failure by municipality maintain overhead clearance imposed Railway Act creates separate cause of action from that available under Municipal Act-The Railway Act, R.S.C. 1927, 170, ss. 263, 892-The Municipal Act, R.S.O. 1987, 266, ss. 480, Section 263 of the Railway Act, R.S.C. 1927, 170, provides that unless otherwise directed by the Board of Railway Commissioners, the clear headway above the surface of the highway at the central part of any overhead structure shall be not less than 14 feet. By order of the Board, the Parkway Drive Subway in the City of Toronto, over which passed the tracks of the C.N.R., was constructed by the railway company, the City of Toronto being charged with the maintenance of the pavement on the of the subway. In the course of such maintenance the City caused the surface of the highway to be raised thereby reducing the overhead clearance to less than the statutory minimum.
In consequence of suffered as a result of such reduction the appellant sued the railway company and the City.
The trial judge, McRuer C.J.H.C., dismissed the action against the railway but gave judgment against the City. No appeal was taken as to the dismissal as against the railway company, but on an appeal by the City to the Court of Appeal for Ontario, the judgment against the City was set aside.
Held (Rinfret C.J. and Kerwin J. dissenting): That nothing in the Railway Act conferred upon individuals suffering damage by reason a breach a municipal corporation of 263 a separate or new cause of action.
The appellant had a right of action under the Municipal Act, R.S.O. 1937, 266, but the action not having been brought within three months from the time the damages were sustained, such action was barred by the limitation provisions thereof.
Per (Rinfret C.J. and Kerwin J. dissenting):
The appellant did not allege non-repair or nuisance but brought its action under 263 of the Railway
The action of the city in improving the pavement did not by itself place the highway out repair or create a nuisance; it was only by reason of the lessening of the clearance that 263 was infringed. No remedy by way of a penalty is imposed specifically for a breach of 263 but the MUNICIPAL CORPORATIONS-Conti.
summary of the existing law by Lord
Simonds in Cutler v. Wandsworth Stadium
[1949] A.C. 398 at 407, indicates that what must be considered is the object and purpose of the enactment. The object of Parliament in providing for the clearance was not the protection of railway companies and municipalities but the benefit of all users of the highway, and when the appellant as one of that class suffered a particular damage as a result of a breach of the section, it is entitled to compensation.
Decision of the
Court of Appeal for Ontario [1952] O.R.
29, affirmed.
v. CTY
C.N.R.........................
2.-Municipal Corporation - Sewer - Backing up of river waters in 8ewer-Flooding of premises - Articles 1053, 1054 Civil Code. Action for damages sustained by the respondent company when an ice jam in the St. Lawrence
River, into which the appellant's sewers emptied, caused the contents of the sewers to back up into the respondent's premises.
The action was maintained by the trial judge and by a majority in the Court of missed. Per Rinfret C.J. and Taschereau
J.: It is doubtful if Article 1054 C.C. has any application since the damage was caused by the waters of the St. Lawrence which are not under the City's care. But in any event, the City must be held responsible under Article 1053 C.C. for a fault of omission, having neglected to take the necessary precautions to prevent damage, the probability of which it could not ignore. Per
Kellock, Estey and Fauteux JJ.: The damage having been caused by a thing under the care of the City, Article 1054
C.C. applies and the City must be held liable since it has failed to bring itself within its exculpatory provision.
(City of Montreal v. Watt and Scott [1922] 2 A.C. 555 applied). Per Curiam: There was no ground in contract or in law for allowing the expenses incurred by the respondent in having the damages valued by experts.
CITY V.
3.-Municipal corporation - Arrest by municipal police officers-Detention without warrant - Search-warrant - Search performed with great publicity-Whether police oicers acting for municipality or as agents of the peace-Whether municipality ratified the acts of the officers-Article 1727
Under the denunciation of a citizen, the appellant was arrested and detained without warrant by police officers of the municipality of Thetford Mines for alleged public indecency.
Because he was suspected of being the author of certain obscene writings, a search of his house to find evidence was made.
The search was performed with much display of police force and consequently with great publicity. . The search
MUNICIPAL CORPORATIONS-Conti. was unsuccessful.
He was later charged with vagrancy and acquitted. The appellant then brought action in damages against the constable who had laid the charge and had applied for the searchwarrant and against the municipality on account of the acts of that constable and all others who had taken part in the events. The action was dismissed by the trial judge and by a majority in the Court of Appeal. The appellant now contends that, in the joint defence produced by the constable and the municipality, the latter ratified, by virtue of Article 1727 C.C., the acts of its officers while attempting to justify them. Held. The appeal should be dismissed. Per Rinfret C.J.: It was neither alleged nor established that the actions of the officers had been authorized by the municipality. The defence did not constitute an approbation nor a ratification of their actions under Art. 1727 C.C.
It constituted simply an alternative defence. Per Taschereau, Estey, Cartwright and Fauteux JJ.: As to the constable. The illegality of the detention was conceded but the evidence did not show that he had had any part in it, and furthermore it showed that he had been justified in laying the charge of vagrancy and in having applied for the search-warrant. Assuming that in law the publicity given to the execution of the search-warrant could, in the circumstances of this case, give rise to an action in damages, the evidence did not establish that in fact the damage of which the appellant complained in this respect differed substantially from the one which could have resulted as well as from the accusation well founded in law as from a normal execution of the search-warrant equally well founded in law.
As to the municipality. The officers were not acting as agents of the municipality but as agents of the peace, enforcing the provisions of the Criminal Code. It had not been alleged nor established that the municipality authorized their actions nor was there any evidence that it ratified them.
RoY v. 4.-Municipal Corporations - Contracts - Debenture Issue - Validity of variation in terms thereof by letter under corporate seal-The City of Toronto Debt Consolidation Act, 1889 (Ont.) c. 74-An Act respecting the City of Toronto, 1910 (Ont.) c. 185-The Municipal Act, R.S.O. 1950, c. 24-4, 8. 334. By a by-law passed under the authority of the Toronto Debt Consolidation Act, 1889 (Ont.) c. 74 as amended, it was provided that the mayor and city treasurer be empowered to raise money by way of loan upon the security of debentures. The debentures were to bear date July 1, 1909, and be payable July 1 1948, either in currency or sterling in Canada, Great Britain or elsewhere and to have attached coupons for the payment of interest at per annum payable half-yearly at the place where the debentures were made payable. The taking MUNICIPAL CORPORATIONS-Cone.
of the debentures as a temporary or permanent investment of the appellant's sinking fund was authorized by the by-law. Debentures were subsequently prepared in compliance with the terms of the by-law payable in sterling at London both as to principal and interest. By 1910 (Ont.) c. 135 the by-law and the debentures were validated and confirmed.
On Dec. 31,
1909 the debentures were taken in at par as a temporary investment of the appellant's sinking fund and in 1911 sold at a discount to a broker although the city paid par to the sinking fund. The broker requested that the place of payment be made New York instead of London and the city treasurer under authority of the appellant's Treasury
Board, of which the mayor was a member, by letters dated Nov. 18 and Dec. 9, 1911, written under the appellant's seal, advised payment would be made in New York at the par of exchange (92%).
In 1936 the respondent purchased the debentures from another broker. The interest coupons from
July, 1936 to January, 1940 were paid the respondent at London in pounds sterling and at New York in U.S. dollars at the par rate of $4.862 but from that date the appellant refused to pay the interest coupons, and on maturity the principal, other than in accordance with the terms appearing on the face of the debentures.
Held: The appellant was authorized to pay the principal and interest of the debentures only in accordance with the terms appearing thereon.
Per Kerwin C.J.: The debentures were issued when they were taken as an investment of sinking fund monies.
Once issued they could not be re-issued with or without the changes purporting to have been made by the City Treasurer or Treasury Board
Re Perth Electric Tramways [190612 Ch. 216.
Per Rand J.: The issued documents could not be modified by letter as the City Treasurer under the seal of the Corporation purported to do. Per Kellock, Locke and
Fauteux JJ.: Whatever authority the mayor and treasurer may have had to amend the terms of the debentures ceased when the bonds were taken into the sinking fund.
CORP....................
NEGLIGENCE-Municipal Corporation- Sewer-Backing up of river waters in sewer- Flooding of premises-Liability-Negligence
-Articles 1053, 1054 Civil Code........
Master and
Servant - Fire started while mechanic was testing engine which he had repaired-Fire due to short circuit in cables leading from batteries to engine-Worn out insulation- Repair man in general employment of general distributor of engine-Repair contract given to local distributor-Repair man was servant of whom-Actions in contract and in tort- NEGLIGENCE-Concluded
Indemnity right of local distributor from general distributor ................... 3.-Damages-Negligence-Third Party proceedings-Water carrier-Carrier held liable for damages to cargo-Relief over against negligent ship's repairer-Proximate cause of the damage-Contributory negligence-Estoppel-Water Carriage of Goods Act, 1986, c. 49-Contributory Negligence Act, R.S.B.C. 1948, c. 68......................
4.-Negligence-Landlord and Tenant- Principal and Agent-Liability of lessee for damages done leased premises by contractor's negligence-Duty of Lessee to take reasonable precautions-Exclusion of defence of independent contractor...................... 5.-Negligence--motor vehicle-momentarily stopped on highway at night-Rear-end collision - Proximate cause- Meaning of "parked or left stariding" in s. 48(1), The Highway Traffic Act, R.S.O. 1950, c. 167.....................
6.-Negligence - Railways - Level crossing-Statutory requirements and Board of Transport regulations complied with - Whether special circumstances existed imposing Common Law duty to take additional precautions..................... 7.-Negligence - Infants - Landlord and Tenant-Child injured by fall through washroom window-Whether allurement or trap to children-Whether child invitee or licen- PETITION OF RIGHT - Expropriation -Petition of right-Land taken over for airfield-Right to compensation-Principles -Compulsory taking-Expropriation Act, R.S.C. 1997, c. 64.................... 2.-Peition of right-Pedestrian struck by automobile driven by employee of the Crown on duty-Pedestrian crossing street-Failure to keep proper look-out-Common fault. By petition of right, the appellant claimed damages for injuries she suffered when she was struck by an automobile belonging to the respondent and driven by a constable of the R.C.M.P. admittedly in the course of his duties. She claimed that she, with a companion, was crossing a street in a southerly direction and was within a cross-walk; that she looked in both directions and saw that the street was clear; that at a point south of the most southerly street-car rail she saw the respondent's automobile but PETITION OF RIGHT-Continued thought that she had time to complete her crossing. The constable claimed that the street was clear except for a truck coming towards him, that the truck turned to its left and stopped to let him go ahead of it, and that as he passed the truck he saw the appellant for the first time and immediately applied his brakes. The trial judge dismissed the petition of right as he found that the appellant's injuries were the result of an unfortunate accident and that no blame attached to the driver of the automobile.
Held: (Rinfret C.J. dissenting), that the appeal should be allowed and that both parties should be held to have been equally at fault.
Per Rand, Estey, Locke and Cartwright JJ.:
Accepting the evidence of the constable, his negligence is established by his failure to see the appellant prior to the time when the truck momentarily hid her from his sight, as from the time she commenced crossing until she was struck there was nothing except the truck to obstruct his view.
On any assumption as to the rate at which she was walking and the rate at which he was driving which is consistent with the uncontradicted evidence the period during which she was hidden from his view must have been very short and he offered no explanation for failing to see her prior to the instant when the truck intervened. The appellant was also negligent.
She did not see the truck stop but it was her duty to be looking towards the west, as she was well passed the centre line of the street and it was only from the west that she need anticipate danger.
Had she seen the truck stopped she should have realized that it was probably stopping to let an east-bound vehicle pass in front of it and should have proceeded with caution instead of continuing, as she did, at a brisk walk. Per Rinfret
C.J. (dissenting): It would not be possible to hold that the findings of the trial judge were not supported by the evidence. It cannot be held that the constable ought to have seen the appellant sooner than he did, and this, coupled with the fact that he was not to expect the appellant to cross where she did, relieved him of all blame.
QUEEN......................
3.-Damages-Petition of right-Married woman common as to property-Right to compensation for injuries resulting from delict under Art. 1279(a) of the Civil Code.. .663
4.-Petition of right-Claim against Quebec Hydro-Electric Commission-Method of proceeding-Service of proceedings on Attorney General but not on Commission- Whether valid summons-Appearance made in name of Commission-Whether flat has lapsed-Meaning of words "mutatis mutandis" in s. 16a of the Quebec Hydro-Electric
Commission Act (1944) 8 Geo. VI, c. 22 and
PETITION OF RIGHT-Concluded (1945) 9 VI, 30-Attorney General's Department Act, R.S.Q. 1941, 46-Articles 82, 117, 174, 176, to 1024 C.P.C.. . 695 PLEADINGS- Pleadings - Insurance - Public Commercial Vehicles Act (Ont.)- Form of action to recover money paid Srd party induced misrepresentation insurer to insured-Applicability of The Public Commercial Vehicles Act, R.S.O. 1950, 304 to commercial vehicle used by real owner solely for purposes of registered owner........ PRINCIPAL AND AGENT-Negligence- Landlord and Tenant-Principal and Agent -Liability of lessee for damages done leased premises by contractor's negligence-Duty of Lessee to take reasonable precautions-Exclusion of defence of independent contractor. 8, who operated a restaurant in a building he leased from W, gave a contract to D, a painting contractor, to renovate the interior of the leased premises.
It was specified in the contract that the old paint should be removed. In doing the work D used an inflammable paint remover.
A fire broke out and damaged the building. In an action brought by W against S and D to recover damages, it was proved that the usual method of removing paint from the interior of a building was used, and that it was attended by the risk of fire, unless special precautions were taken.
The trial judge gave judgment against D and dismissed the action against S. The appellate court found both defendants liable. S appealed on the grounds that he knew nothing about the usual methods of removing paint; he did not know that D was using an inflammable paint remover; and as D was an independent contractor, he was not liable for D's negligence. Held: That S was properly found liable. He had ordered the doing of work which if done by the usual method created a danger of injurious consequences and he therefore came under a duty to take reasonable precautions to avoid them. It was not enough that he himself did not know of the danger, since it was one which would be obvious to any reasonably wellinformed person, nor could S escape liability for non-performance of such duty by delegating it to an independent contractor. City of Saint John v. Donald S.C.R. 371, applied.
Decision of the Supreme Court of New Brunswick, Appeal Division, 32 M.P.R., affirmed. 376 PRIVILEGED
DOCUMENTS - Privileged documents-Evidence-Production of income tax returns sought in a criminal prosecution-Objection Minister-Whether contrary public policy-Income War Tax Act, R.S.C. 1927, 97, s. 81-Income Tax Act, 1948, 8. of 1948, 52, 121-Excess Profits Tax Act, 1940, S. of C. 1940. At a trial under the Criminal Code, the Crown in PRIVILEGED DOCUMENTS-Continued the right of the Province subpoenaed the Director of Taxation of the District of Vancouver requiring him to give evidence and to produce the income tax returns of the accused.
The Minister of National Revenue, in an affidavit, objected to the production of the documents and to the giving of oral evidence, basing his claim that it would be prejudicial to the public interest on the Income War Tax Act and on of the Income Tax Act, which prohibit such communications to any person other than a person "legally entitled thereto".
Consequefit to the ruling of the trial judge that the returns must be produced and, if relevant, given in evidence, the following questions were submitted for the opinion of the Court of Appeal for British Columbia pursuant to the Constitutional Questions
Determination Act, R.S.B.C. 1948, 66:
1. On the trial a person charged with an indictable offence, where a subpoena duces tecum has been served on the appropriate
Income Tax to produce before the
Court on such trial returns, reports, papers and documents pursuant to the provisions of the Income Tax Act, and the
Income War Tax Act or the Excess Profits
Tax Act, 1940, and to give evidence relating thereto, and where the Minister of National
Revenue has stated on oath that in his opinion such evidence and the production of such returns, reports, papers and documents would be prejudicial to the public interest; ought such Court to order the production of such returns, reports, papers and documents and the giving oral evidence relating thereto: (a) when such subpoena served at the instance or on behalf of the Attorney General of the Province;
when such subpoena is served at the instance or on behalf of the accused?
Are the documents hereinbefore mentioned in Question 1, for the purposes of a subpoena duces tecum directed to an Income Tax Official the Income Tax Department, in the possession of the said official to the extent that the Court may order them produced in Court pursuant to the said subpoena, or are the said documents in the possession of the Crown?
3. Do
Sections and of the Income War Tax
Act and the Income Tax Act, 1948, respectively affect the right of the Minister
National Revenue to object on the ground of prejudice to the public interest to the production of the documents hereinbefore mentioned in Question 1 and to the giving of oral evidence by an Income Tax official relating to returns made under the said
Acts? On appeal to this Court, it was held:
1. Per Rinfret C.J., Kerwin, Taschereau,
Rand, Kellock, Estey and Fauteux JJ.:
That the Court may order the production of the documents in question and the giving of oral evidence relating thereto, unless special facts or circumstances appearing the Minister's affidavit make it clear to the
Court that there might be prejudice to the
PRIVILEGED DOCUMENTS-Concuded public interest in the disclosure, but only to the extent of the document or documents within the special facts or circumstances. 2. Per Locke J.: That the Court may order the production of the documents in question and the giving of oral evidence relating thereto to enable the Court to determine whether the facts discoverable by the production of the documents would be admissible, relevant or prejudicial or detrimental to the public welfare in any justifiable sense. 3. Per Cartwright J.: That the Court may order the production of the documents question and the giving of oral evidence relating thereto, limited however to a case in which the objection of the Minister is to the production of any documents belonging to the class consisting of returns, reports, papers and documents filed pursuant to the provisions of the Income Tax Act, the Income War Tax Act or the Excess Profits Tax Act, 1940, on the ground that they' belong to that class. 4. Per Curiam: That for the purposes of a subpoena duces tecum directed to an Income Tax Official of the Income Tax Department, the documents in question are in the possession of such official to the extent that the Court may order them produced in Court pursuant to a subpoena. 5. Per Rinfret C.J., Kerwin, Taschereau, Rand, Kellock, Estey, Cartwright and Fauteux JJ.: That the Minister has no right to object to the production of the documents in question. Per Locke J.:
That neither of the Income War Tax Act or of the Income Tax Act, 1948, affect the right -of the Minister to object on the ground of public interest to the production of such documents in criminal proceedings and the giving of evidence relating thereto, but the effect of the sections is to render the objections subject to the discretionary jurisdiction and consequent order of the trial judge as set forth in the answer to Question v. SNIDER............... Railways
Municipal porations - Highways - Limitation of Actions-Whether failure municipality to maintain overhead clearance imposed by Railway Act creates separate cause of action from that available under Municipal Act- The Railway Act, R.S.C. 1927, 170, ss. 263, 892-The Municipal Act, R.S.O. 1937, 266, ss.480,481......................... 2.-Negligence-Railways-Level crossing -Statutory requirements and Board of Transport regulations complied with-Whether special circumstances existed imposing Common Law duty to take additional precautions. In actions in damages arising out of the collision of a motor car and a locomotive at a railway level crossing on the outskirts the limits of the City of Hamilton, it was established that the rate of speed at which RAILWAYS-Concluded the appellant railway's train approached the crossing was within the limit approved by the Board of Transport Commissioners and that the Board had refused a petition for the installation of a wigwag signal on the ground that the existing signals were adequate under existing traffic conditions. The jury however found the negligence of the appellant the sole cause of the accident in that with knowledge of the special circumstances existing and knowing the crossing was a dangerous one, the railway allowed its trains to operate at a high rate of speed at that point and the engineer failed to exercise due care; the railway was further negligent in permitting vegetation to grow on its right-of-way to a height that impeded the view and both, in their admission as to the blowing of the train whistle, contrary to a city by-law. Held: That there was no evidence to support the jury's finding of special circumstances that called for special safety measures to be taken by the appellants, or of the appellants' negligence, and the findings should be set aside. Per
Kerwin C.J. and Taschereau J.: In the absence of special circumstances, the rule in
G.T.R. v. McKay 34 Can. S.C.R. 81, applied and it was not open to the jury to question the Board's ruling as to the rate of speed or the adequacy of the crossing signals.
general rule is subject to qualification but the qualification must be stated and applied with care to see if there is any evidence upon which a jury could find exceptional circumstances to take the matter out of the rule.
Here there was no such evidence.
Columbia
Bithulitic Ltd. v. B.C. Electric Ry. Co. 55
Can. S.C.R. 1, distinguished. C.P.R. v.
Fleming 22 Can. S.C.R. 33; Lake Erie
Detroit River Ry. v. Barclay 30 Can. S.C.R.
220; Napierville Jct. Ry. v. Dubois [1924]
S.C.R. 375 at 380; Rex. v. Broad [1915]
A.C. 1110 and C.P.R. v. Rutherford [1945]
S.C.R. 609, referred to. Per: Rand J.: The by-law was approved by the Board before the crossing had been brought within the city limits and the approval, given in the light of existing conditions could not aply to it in the circumstances, but that did not affect the issue in this appeal because the whistle was sounded as required by the
Railway Act, and if the deceased did not hear it, the fault must be charged against him. Per Locke J.: To give effect to the answer made by the jury to Question 2 would be to allow that body to usurp the functions of the Board of Transport Commissioners. There was no evidence of any actionable negligence.
Wakelin v. London
& Southwestern Ry. Co. 12 App. Cas. 41;
G.T.R. v. McKay 34 Can. S.C.R. 81; G.T.R.
v. Hainer 36 Can. S.C.R. 180 followed: Columbia Bithulitic Ltd. v. B.C. Electric Ry.
Co. 55 Can. S.C.R. I referred to. Decision of the Court of Appeal for Ontario [19531
O.R. 168, affirmed.
V. TOR- BuFFALo Ry. Co. 707
REAL PROPERTY - Real Property - Crown lands brought under Real Property Act (Man.)-Minerals not reserved in certfeate of title-Title of bona fide purchaser from registered grantee from Crown - "grant from Crown" includes a transfer therefrom-Manitoba Provincial Lands Act, 1887 c. 21, as. 20, 31-Provincial Lands Act, R.S.M., 1913, c. 155, s. 35-Real Property Act, R.S.M., 1918, c. 171 ss 2(a), 78(a), 79-Real Property Act, R.S.M., 1940, c. 178, Dominion Lands, 1888, c. 17, s. 43. The title to the lands giving rise to the present appeal was originally in the Crown in the right of Canada which, in 1901 by Order in Council, vested it in the Crown in the right of the Province of Manitoba. Shortly thereafter one "M" made application to purchase the lands on terms which provided that all valuable stone, coal or other minerals were reserved to the Province. The latter in 1903 by Order in Council directed that the lands be brought under the operation of The Real Property Act (Man.) and a certificate of title issued to the Crown in the right of the Province. In 1914 "M" quit claimed his rights to one "N" to whom, on completion of payment of the purchase price in 1919, a transfer in the form prescribed by The Real Property Act, (R.S.M. 1913, c. 171) of all the estate and interest of the Crown in the lands was executed and a new certificate of title issued. There was no specific mention of minerals either in the certificate or the transfer but the latter was under the Act made subject to any reservation contained in the original grant from the Crown. Subsequently the lands became vested in the respondent Hiebert to whom was issued a certificate of title similar to that issued "N". Hiebert executed a lease of the petroleum and natural gas in the lands of which the respondent oil company became the assignee. The latter presented a caveat to the appellant for registration based on the lease and assignment thereof. The appellant refused to register it on the ground that the lessee had no estate or interest in the lands.
In the litigation that ensued the appellant contended that the petroleum and natural gas by reason of s. 21 of the Manitoba Provincial Lands Act, 1887 did not at any time pass from the Crown. The contention of the res ondents, which prevailed in the courts below, was that as there was no express reservation in the original transfer from the Crown the mineral rights passed to the transferee and were not reserved by e. 21. Held (Rinfret C.J., Estey and Locke JJ. dissenting):
1. That in enacting the Manitoba Provincial Lands Act 1887, the Legislature expressly brought all lands held by the Crown in the right of the Province under that general statute. 2. That in construing the Provincial Lands Act (R.S.M. 1913, c. 155) and 'The Real Property Act (R.S.M. 1913, c. 171) the two statutes must be read together and when so read the word "grant" in the declaration contained in s. 21 of the 1887 Act (s. 25 of REAL PROPERTY-Continued
R.S.M. 1913, c. 155), that no grant from the Crown of lands in freehold has operated or will operate as a conveyance of any minerals therein unless expressly conveyed in such grant, includes a transfer of lands from the Crown under The Real Property
Per Rinfret C.J.
and Locke J., dissenting:
Section 21 of the
Manitoba Provincial Lands Act, 1887 (s. 25 of R.S.M. 1913, c. 155) with a minor change, was taken verbatim from s. 43 of the Domminion Lands Act, 1883 and the words
"grant from the Crown" should be attributed the same meaning in both statutes, that is, as referring only to grants by letters patent. As in the case of the Dominion
Act, the only means specified for conveying
Crown lands was in this manner. The transfer to "N", made in the form prescribed by The Real Property Act of 1913 pursuant to Order in Council of Nov. 10,
1914, transferred "all our estate and interest in the said land".
By virtue of the definition of land in The Real Property Act, and of s. 88 of that Act, there being no contrary intention expressed in the transfer, all mines and minerals in the lands were "expressly conveyed in such grant" within the meaning of s. 25 of the Provincial Lands
Act of 1913, if the transfer was a grant.
Per Estey J. (dissenting)
: After the enactment of The Lands Registration Act in
1880 and The Real Property Act of 1885
Manitoba had two systems of land registration. The Manitoba Provincial Lands Act,
1887 did not alter or amend either and the
Crown thereafter made its conveyances according to which Act its land was under.
The contention that a conveyance by way of "grant" would not include a "transfer"
therefore cannot be accepted.
Here since the Crown's title to the land was under a statute which contemplated that a conveyance should be made by transfer it must follow that the term "grant" in legislation providing for the administration of such land must be read to include the word
"transfer" as used in The Real Property Act.
That Act contemplated that whenever the
Crown granted land under it it would be by way of patent deposited with the Registrar and the issue of a certificate of title to the transferee. The land here was placed under that Act by Order in Council and conveyed by transfer so that the transfer must be accepted as the original grant from the
Crown. Since under The Real Property
Act of 1885 and the Manitoba Provincial
Lands Act, 1887 "land" is defined to include
"minerals", the conveyance to "N" would include them because they were not specially excepted.
REGISTRAR POR- SUPERIOR
OIL LTD.............
2.- Real Property-Land Titles-Omission by error of reservation of petroleum in transfer-Issue of certificate of title to trans- REAL PROPERTY-Continued feree-Unauthorized addition by registrar of "and petroleum" to reservation-Right to petroleum by subsequent purchasers for value -"Wrong description" - "Misdescription" -"Prior certificate of title"--The Land Titles Act, 1906, (Alta.) c. 24. In 1903 the C.P.R., the owner of a tract of land in what is now the province of Alberta, registered it under The Land Titles Act of the Northwest Territories and obtained a certificate of title, No. 424, certifying it to be the owner thereof in fee simple. By virtue of the Alberta Act, 1905 (Can.) c. 3, the certificate continued in effect under the Alberta Land Titles Act of 1906, c. 24. In 1908 the C.P.R. transferred from out of the tract the quarter section now in suit to P reserving the coal and petroleum.
The registrar of land titles however in issuing a certificate of title to P reserved only the coal and endorsed on certificate No. 424 a memorandum to. the effect that it was cancelled as to P's quarter section.
In 1910 P transferred the east half to S and in 1911 the west half to the respondent Anton Turta. In 1918 S transferred the east half to Turta and the registrar issued a new certificate to the latter covering the entire quarter section. In all of these transfers and certificates only coal was reserved to the C.P.R. In 1910 certificate 424, because of the many endorsements on it, was, with the consent of the C.P.R., cancelled and a new certificate, as well as a duplicate, issued covering the lands which then remained uncancelled on No. 424. In 1943 the errors were detected by officials in the land titles office and entries were made on the cancelled certificate No. 424 as well as on the duplicate by adding the words "except coal and petroleum" to the memorandum of cancellation originally made, and by adding the words "and petroleum" to the reservations in Turta's certificate and the duplicate then in the office. In 1944 Turta transferred to the respondent Nick Turta the east half of the quarter section and in 1945 the west half to Metro Turta. The new certificates contained a reservation of coal and petroleum to the C.P.R. In 1946 the latter gave an option to lease all petroleum and natural gas underlying the quarter section to Imperial Oil which the latter exercised in 1951. In 1950 the respondents, Montreal Trust Co. and Sereda, entered into an agreement with Anton Turta relative to the petroleum rights and appear as caveators upon the title. In an action to determine title to the petroleum rights: Held: (Rinfret C.J., Locke and Cartwright JJ. dissenting) that: 1. The omission to insert the reservation of petroleum in the certificate of title granted Anton Turta did not constitute a misdescription within the meaning of s. 104(e) of The Land Titles Act.
2. Since certificate of title No. 424 was cancelled prior to any relevant date, there never was a contemporaneous existence of two certificates of title within the meaning of s. 104(f). REAL PROPERTY-Concluded
3. The purported corrections made by the registrar could not be made without prejudicing the rights conferred for value on
Anton Turta, and therefore were not authorized by the Act and were of no effect.
4. The action was not barred by the Limitation of Actions Act, R.S.A. 1942,
Per Rinfret C.J., dissenting: The omission by the registrar to reserve the petroleum in granting the certificate of title to P was made contrary to the Act and was ultra vires. The certificate was a complete nullity and could never become the root of title to subsequent transferees and since the cancellation of certificate No. 424 was the consequence of the issuance of the certificate to P. it must be set aside for the same reasons.
Locke J., dissenting: To include in the lands described in the certificate of title issued to P the petroleum rights was a misdescription of the lands conveyed by the transfer from the C.P.R. within the meaning of that expression in ss. 44, 104 and elsewhere in the Act. The general statements as to the interpretation of the
Victoria Transfer of Land Statute of in Gibbs v. Messer [1891] A.C. 248 at 254, and by Sir Louis Davies C.J. as to The Land
Titles Act, Saskatchewan in Union
Bank of Canada v. Boulter Waugh Ltd.,
Can. S.C.R. 385, cannot be applied without qualification to the Alberta statute.
rights of those deprived of their property by misdescription of land are expressly reserved to them by the latter statute and it cannot be construed to defeat such rights.
The rights to the petroleum were adequately excepted from the operation of the transfer to P. Per Cartwright J., dissenting: Ss.
25, 42 and 135, if read alone would seem to make the certificate of title of a purchaser in good faith for value conclusive, but they must be construed with ss. 44, 104(e) and
106 and the last mentioned group must be read with them. When so read the C.P.R.'s claim falls with s. 104(e) and no other provision of the Act requires a restriction or modification of the ordinary meaning of the words used in such clause. C.P.R.
v. ... .427
REVENUEwithout knowledge of owner non licenced dealer-Whether sale valid-Whether theft- Effect of s. of Motor Vehicles Act, R.S.Q.
1941, 142 on Articles 1488 and 1489 of the
Civil Code.
The appellant acquired title to a motor truck by assignment of a conditional sale agreement.
Before the unpaid balance had become due, G., the conditional purchaser, sold the truck as a used car to
SALE-Concluded he respondent without the knowledge of G .was a garage operator, and although a trader in similar articles he was not a licenced dealer within the meaning of of the Motor Vehicles Act, R.S.Q. 1941, e. 142.
The trial judge held the sale invalid because it had been made in contravention of s. 21.
The Court of Appeal, by a majority judgment, held the sale valid because s. 21 applied only to the sale of stolen vehicles and it had not been established that the truck had been stolen. Held The appeal should be allowed and the action maintained.
Per Taschereau, Cartwright and Fauteux JJ.: It was sufficiently alleged and established that at the moment of its sale to the respondent the truck was stolen from the appellant.
Consequently, since the person from whom the respondent purchased it was not a licenced dealer, the respondent was deprived, by virtue of s. 21, of the protection given by Art. 1489 of the Civil Code. Per Taschereau and Fauteux JJ.: S. 21 does not deprive the purchaser in the case of the sale of a thing belonging to another in a commercial matter of the protection given by Art. 1488 of the Code, but only precludes the application of Art. 1489 of the Code in the case of the sale of a stolen vehicle by a dealer. Per Rand and Estey JJ.: S. 21 effects a modification of both Arts. 1488 and 1489 of the Civil Code in respect to motor vehicles.
SERVICE-Petition of right-Claim against Quebec Hydro-Electric Commission-Method of proceeding-Service of proceedings on Atorney General but not on Commission- Whether valid summons-Appearance made in name of Commission-Whether flat has lapsed-Meaning of words "mutatis mutandis" in s. 16a of the Quebec Hydro-Electric Commission Act (1944) 8 VI, 22 and (1945) 9 VI, SO-Attorney General's Department Act, R.S.Q. 46-Article 82,117,174,176,1011 t01024C.P.C. Section 16aof thestatute creating the Hydro Electric Commission of Quebec makes applicable, mutatis mutandis, to actions instituted against the Commission, the provisions of Articles 1011 to 1024 of the Code of Civil Procedure. In his action asking for a condemnation in damages against the Commission, the appellant had the documents mentioned in Article 1017 deposited at the of the Attorney General together with a notice requesting in terms from the latter a contestation on behalf of Her Majesty.
Service of the documents and of the notice requesting contestation was not made upon the Commission, but an appearance was entered in its name. The trial judge and the majority in the Court of Appeal dismissed the action on the ground that, since the Commission was never summoned, the fiat had lapsed after sixty days. Held: (Rand and Cartwright JJ. dissenting), that the appeal should be dismissed.
Per Rinfret SERVICE-Concluded
C.J.: By virtue of the principle that no judicial demand can be adjudicated upon unless the party against whom it is made has been duly summoned, the appellant, having asked for a condemnation against the Commission, should have served the petition and the other documents upon the
Commission.
As this was not done, the
Commission was, therefore, never summoned and was never called upon to produce a contestation.
This lack summons could not be covered by the appearance made by the Commission.
Per Taschereau and Fauteux JJ.: Section 16a not the clear text which would be required to conclude that the legislator, in providing that Article with the necessary modifications, applied to an action against the Commission, intended to do away with the principle that it is the party being sued which must notified the action and called upon to contest it.
It follows that the petition, the fiat and the notice requesting contestation should have been served upon the
Commission.
Not only was this not done but the Commission was never requested to produce a contestation.
There was, therefore, no summons of the Commission and the appearance entered in its name could not take the place it.
Per Rand and
Cartwright JJ. (dissenting)
: The words
"mutatis mutandis" in section 16a do not necessarily require any change in the wording of Article 1017.
The Legislature has provided that a person claiming monies from the Commission, which is an agent of the
Crown, must do so by a petition of right addressed to Her Majesty.
It would, therefore, require clear words to indicate that the service of all the documents upon the
Attorney General, would not be valid and sufficient service.
It could not be suggested that the procedure followed in the case at bar would not inevitably result in full notice of the pending proceedings being brought to the immediate attention of all those having an interest or a duty to resist the claim.
CoMuissIoN
QuhBEc.................
SHIPPING - Shipping - Damage to cargo-Seaworthiness of vessel-Perils of the sea-Onus-Water Carriage of Goods Act,
1936, 1 Ed. VIII, 49. In an action damage caused to a cargo of barley shipped in good order by the respondent on the appellant's vessel under bills of lading subject to the Water Carriage of Goods Act,
1936, the appellant pleaded that the vessel had been seaworthy and that the loss had been caused by perils of the sea.
The District Judge in Admiralty found that the damage had been caused by a break in a steam pipe which had occurred some time before the accident relied upon by the appellant as a peril of the sea, that the appellant had not discharged the onus showing that the damage resulted from perils, dangers and accidents of the sea, and that the unseaworthiness of the vessel had not been
SHIPPING-Continued shown.
missed since the appellant had not satisfied the onus which rested upon it to show that the damage resulted from perils, dangers and accidents of the sea.
Per Taschereau, Locke and Cartwright JJ.: Since the District Judge had found that the defence of perils of the sea had not been made out, it was, the state of the pleadings, unnecessary him to deal with the seaworthiness the vessel at the time the cargo was shipped. (Bradley v. Federal Steam Navigation Ltd. 27 LI.L.R. 395, Gosse Millard v. Canadian Government Merchant Marine K.B. 432 and Paterson Steamships Ltd. v. Canada Co-operative Wheat Producers A.C. 538 referred to).
2.-Shipping-Action in rem-Tug and tow-Liability of res where negligence that charterer-Where negligence that of an independent contractor. In a day of rough weather three unmanned scows, possessing neither motive or steering power, drifted into and damaged the appellant's booming ground in Vancouver Harbour.
In an action in rem, brought against each of the respondent vessels, it was established that the scow AT & B No. 28 was under a charter which placed her in the charterer's sole control but no evidence was given as to had drifted into the booming ground. The scow ESM No. X had been unmoored by the crew of a tug, an independent contractor, who was employed to tow her elsewhere but abandoned her to pick up that adrift she drifted into the booming ground. action brought against the Marpole II was taken in error as the damage alleged to have been done by her was done by the Marpole XI, a scow belonging to the same owners.
Held: 1. There was a prima facie case of negligence against the charterers the AT & B No. 28 which was unanswered and, since negligence in the navigation a ship for which the charterer is liable subjects the ship itself to a maritime lien for the damages caused thereby, she was therefore liable.
The Bold Buccleugh Moo. P.C. 267 approved in Currie v. McKnight A.C. 97, applied.
That as the negligence causing the damage done by the ESM No. X was solely that of the independent contractor no liability attached to her.
Per The Chief Justice and Locke JJ.: If the claim was in nuisance, it would fail since the nuisance, if any, resulted from the act of an independent contractor and there was no evidence upon which it could be found that the owner had become aware it should have become aware it and thereafter failed to abate it.
Sedleigh Denfield v. O'Callaghan A.C. 880 at 904 applied. That the action against the Marpole was not maintainable.
She could not be held responsible for damages done another ship even if the property of the SHIPPING-Concluded same owners. Judgment of Smith J., District Judge in Admiralty [1952] Ex. C.R.
226, varied.
(Scow AT & B No. 28).... 513
SLOT MACHINES-Whether certain coin machines, "slot machines", as defined by s.
2(b) of The Slot Machine Act, R.S.A. 1942, c. 333.
The appellant sued to recover the balance of the purchase price owing on eighteen coin machines.
pleaded the machines were "slot machines"
within the meaning of The Slot Machine Act,
R.S.A. 1942, c. 333 and that under it there could be no property in them and no money owing in respect to them. By s. 2(b) of the Act "slot machine" is defined to mean:
(i) any machine which under the provisions of s. 986(4) of the Cr. Code is deemed to be a means or contrivance for playing a game of chance.
(ii) any slot machine and any other machine of a similar nature, the result of one of any number of operations of which is, as regards the operator, a matter of chance and uncertainty or which as a consequence of any given number of successive operations yields different results to the operator, notwithstanding that the result of some one or more or all of such operations may be known to the operator in advance.
(iii) any machine or device the result of one or any number of operations of which is, as regards the operator, a matter of chance or uncertainty or which as a consequence of any given number of successive operations yields different results to the operator notwithstanding that the result of some one or more or all of such operations may be known to the operator in advance. The machines in question were operated by placing a coin in a slot whereupon discs, balls or other projectiles were released to be thereafter set in motion by means of a plunger, trigger or the like and the score made was automatically recorded.
No free plays or prizes were awarded regardless of the score obtained and nothing was furnished, beyond entertainment through the test of skill, the score depending upon the proficiency in the handling or manipulation of the total operation. Held: (Kerwin and Estey JJ. dissenting) that the machines were not "slot machines" within the definition of s. 2(b)
of The Slot Machine Act. Laphkas v. The
King [1942] S.C.R. 84, followed.
Decision of the Appellate Division of the Supreme
Court of Alberta (1952-53) 7 W.W.R. (N.S.)
433 reversed and judgment at trial restored.
v. AL- 2.-Constitutional Law-Property and Civil Rights-Criminal Law-Confiscatory Legislation-Validity of The Slot Machine Act,
R.S.A. 1935, c. ..................
SLOT MACHINES-Concluded
3.- Constitutional Law-Validity of Slot Machine Act, 1951, c. 215 (N.B.)-Application of definition of "slot machine"-Criminal Law-Property and Civil Rights-Confiscatory Legislation...................... STATUTES-1.- Act respecting the City of Toronto, 1910, (Ont.), c. 135 ........ 2.- Architects Act, R.S.Q. 1941, c. 272 3.- Assessment Act, R.S.O. 1950, c. 24, s. 4(1), 32 (1, 4)................... See 3.
7.-Children's Protection Act, R.S.O. 1950, c.58 ............................... 8.-Companies Act,
R.S.Q.
1941, 276................................ 9.-Contributory Negligence Act, R.S.B.C. 1948, c. 68......................
10.-Copyright Act, R.S.C. 1927, c. 8 624 11.-Criminal Code, R.S.C. 1937, c. 36, as. 16, 31, 573....................... See 7.
13.-Criminal Code, R.S.C. 1937, c. 36, s. 573.............................. See 9.
17.-Excess Profits Tax Act, 1940, S. of
C., c. 82............................
18.-Excess Profits Tax Act, 1940, S. of
C., c. 32, s. 2(1).....................
See 6.
19.- Exchequer Court Act, R.S.C. 1927, c. 34, es. 82, 83.....................
20.-Excise Tax Act, R.S.C. 1927, c. 179, as.140,142.....................
See 4.
21.-Expropriation Act, R.S.C. 1927, c.
64.................................
22.-Highway Traffic Act, R.S.O. 1950, c. 167, s. 48(1)......................
23.-Hydro-Electric CommissionAct, (Que.)
(1944) 8 Geo. VI, c. 22 and (1945) 9
Geo. VI, c. 30...................
24.-Immigration Act, R.S.C. 1927, c.
93.................................
25.-Income Tax Act, 1948, S. of C., c. 52.
8s.32, ,.4.......................
26.-Income Tax Act, 1948, S. of C., c.52, s.121.........................
27.-Income War Tax Act, R.S.C. 1927, c. 97, s. 6(1)........................
28.-Income War Tax Act, R.S.C. 1927, c. 97, e. 81.........................
29.-Income War Tax Act, R.S.C. 1927, c. 97, s. 3(1)........................
See 6.
30.-Insurance Act, R.S.O. 1950, c. 183, s.197..............................
31.-Insurance Act, R.S.O. 1950, c. 183, s.200.........................
32.-Interpretation Act, R.S.O. 1950, c.
184, s.1, 2.........................
87583-4
STATUTES-Continued
33.- Land Titles Act, R.S.A. 1942, c. 205................................ 34.-Land Titles Act 1906 (Alta.), c. 24................................. 35.-Magistrates Act, R.S.O. 1937, c. 138 s.8(1)............................. 36.-Manitoba Provincial Lands Act, 1887, c. 21......................
37.-Mechanics' Lien Act, R.S.O. 1950, c. 227, as. 13, 20:................... 38.-Mechanics' Lien Act, R.S.B.C. 1948, c. 205.............................. See 3. 39.-Mechanics' Lien Act, R.S.A. 1942, c. 236.........................
40.-Mechanics' Lien Act, R.S.A. 1952, c. 236.........................
See 3.
41.-Motor Vehicles Act, R.S.Q. 1941, c. 142, s.21........................... 42.-Motor Vehicles Act, R.S.Q. 1941, c. 142, as. 36, 41...................... See 3.
43.--Municipal Act, R.S.O. 1937, .c. 266, as.480,481...................... 44.- Municipal Act, R.S.O. 1950, c.243, s. 884.............................. See 4. 45.-Professional Engineers Act, R.S.Q. 1941, c. 270......
...........
46.-Provincial Lands Act, R.S.M. 1913, c. 155, a.25........................ 47.- Public Authorities Protection Act, R.S.O. 1987, c. 135, 1, 2, 3(1) ...... 48.- Public Commercial Vehicles Act, R.S.O. 1950, c. 304.................. See 3.
49.- Railway Act, R.S.C. 1927, c. 170, as. 263, 392......................... STATUTES-Concluded
50.-Real Property Act, R.S.M.
2, 78, 79....................
51.-Real Property Act, R.S.M. 1940, c.
178, s. 61..........................
52.-Registry Act, R.S.O. 1950, 836, s. 69 ...............................
53.-Slot Machine Act, R.S.A. 1935,
83 .............................
54.-Slot Machine Act (N.B.),
215...............................
55.-Succession Duty Act 1939, S. of 0.,
1 ................................
56.-Supreme Court Act, R.S.C. 1927,
35, s. 46.........................
57.-Supreme Court Act, R.S.C. 1927,
35 ...............................
58.-Toronto Debt Consolidation Act 1889
(Ont.), 74.......................
See 4.
59.-Vehicles and Highway Traffic Act,
R.S.A. 1942, 275, s. 58(1) ..........
60.-Water Carriage of Goods Act, 1936,
49 ...............................
Water Carriage of Goods Act, 1986
49 ...............................
Duties-Joint owned shares transferable at
Toronto or Montreal-Claim for succession duties Ontario-Subsequent split of shares
-New certijicates made transferable at Winnipeg also-Refusal of transfer agent in
Winnipeg make transfer until Ontario's claim settled-Action for damages-Succession Duty Act, S. of 0., 1939, 2nd Session,
1..............................
TAXATION-Taxation-Whether legal expenses incurred in making representations to the Commissioner under the Combines Investigation Act and in successfully defending charge under Criminal Code regarding operation of alleged illegal combine, are deductible
TAXATION-Continued under s. 6(1)(a) of the Income War Tax Act, R.S.C. 1927, 97 as amended. The legal expenses incurred by the respondent companies in connection with an investigation into an alleged illegal combine and in successfully defending a charge under 498 the Criminal Code regarding the operation such alleged illegal combine, were deductible in ascertaining taxable income as they were "wholly, exclusively and necessarily laid out or expended for the purpose earning the income" within the meaning 6(1)(a) of the Income War Tax Act, R.S.C. 1927,
(Minister of National Revenue v. The Kellogg Company of Canada Ltd. S.C.R. 58 followed.)
Taxation tween taxicab association and taxicab owners moneys paid to association as admission fees pursuant contract, taxable- The Income Tax Act, S. of 1948, 52, ss. 2, 4-Companies Act, R.S.Q. 1941, The appellant, a taxicab association incorporated in under Part III of the Quebec Companies Act (R.S.Q. 276) without share capital, received moneys during 1949 from taxicab owners pursuant to contracts under which the taxicab owner became a member the Association and the latter was to render certain services. The contracts read as follows: Par les pr6sentes, est entendu et convenu qui suit: Le membre d6pose la somme de $500 comme droit d'entr6e pour obtenir privilbge de mettre un taxi en service dans ladite Association.
Le membre consent A que ledit droit d'entrie devienne la propridt6 absolue de la Dominion Taxicab Association lors de son d6part, A moins que les deux signataires des prtsentes consentent mutuellement au transfert dudit d6p6t A un nouvel acqu6reur.
La Dominion Taxicab Association s'engage A considdrer ce droit d'entr6e comme un d6p6t sur lequel un intdrit pourra 6tre pay6 quand le Bureau de Direction jugera A propos.
The Minister included these moneys when computing the Association's income.
The appellant contended that the contracts were contracts of deposit and that each member remained the owner the moneys so deposited.
The assessment was maintained by the Income Tax Appeal Board and by the Exchequer Court. Held: The appeal should be allowed and the assessment set aside. Per Kerwin, Locke, Cartwright and Fauteux JJ.: On the true construction of the contract and on the evidence, none of the moneys became the absolute property of the Association in the year 1949; as each deposit was received the Association and became part of its assets there arose a corresponding contingent liability equal in amount.
Such deposit could not, therefore, be regarded as a profit from the appellant's business. Rand J.: The payments, both in the inten- TAXATION-Continued tion of the subscribers and of the Association, were to enable capital assets to acquired and were limited in their application to that purpose.
They cannot, therefore, be held to be income.
(Diamond
Taxicab Association Minister of National
Revenue Ex. C.R. 331; C.T.C.
104, distinguished).
..........................
3.-Taxation-Municipal Assessment land belonging to Crown in right of Canada- Validity of tax levied on persons occupying such land carry out duties as servants
Crown-Whether indirect tax-B.N.A. Act
(Imp.) s. 15-The Assessment Act, R.S.O.
1950, 94, ss. 4(1), 39(1), (4). The appellants occupied houses and premises owned by the Crown in the right of Canada where they were required to live while carrying out their duties as Crown servants. Deductions from their salaries were made bearing no relation to the rentable value of the properties.
The right of occupancy terminated with their employment.
municipality pursuant to 32(1) of the
Assessment Act, R.S.O., 1950, 24, assessed the appellants as tenants land owned by the Crown to whom rent valuable consideration was paid in respect of such land.
The assessments and levies were upheld by the lower courts. The appellants appealed on the ground that the assessments made and taxes levied were lands belonging to Canada and invalid virtue of s. of the British North America
Act, or in the alternative, that both the assessments and taxes were personal, and so far as they purported to apply to servants of the Crown in the right of Canada, ultra vires as being a law levying an indirect tax, or as being a law which in pith and substance was not in relation to any of the classes of subjects assigned exclusively to the Legislatures of the Provinces by of the B.N.A. Act. Held: 1. That under
32(1) of the Assessment Act (Oat.) the assessor places a value on Crown property for tax purposes but the person assessed respect of the land not the Crown but the
"tenant" who is the one who pays the tax.
The value of the land is the measure of the tax, but the Act does not make the land liable to taxation and, therefore, does not conflict with of the B.N.A.
2. That the tax clearly direct. The tenant the person intended by the Legislature to pay the tax for which he liable, and it is he who eventually bears the burden of it.
That as a result of an agreement private bargain it be paid by some one does not change the nature of the tax demanded directly from the tenant. The ultimate incidence of the tax the main factor in the determination of its classification.
Bank of Toronto v. Lambe 12 App. Cas. 575;
for B.C. v. C.P.R. A.C. 934 at
938; Rex v. Caledonia Collieries Ltd.
A.C. 358 at 361; Atlantic Smoke Shops v.
87583-4,
TAXATION-Continued
customer, wanting to borrow money, was made to sign a form declaring that he had sold the article pledged.
The object was described in the form and the amount the sale indicated therein.
The period for which the loan was made was set out in code and within that period, on repayment his debt, the borrower could redeem his article. The Crown claimed that the repossession the article by the borrower amounted to a sale and demanded sales tax pursuant to the Excise Tax Act, R.S.C. 1927, action was dismissed by the Exchequer Court of Canada.
Held: The appeal should be dismissed.
Though the contract entered into between the respondent and his customers used the word "sale', the transaction was not a sale.
The obligation of the respondent to return the article pledged upon repayment of the loan was part of the original contract and therefore the return of the article was nothing else than the carrying out of that contractual obligation. The respondent was simply giving back the possession to the borrower who had remained the owner under a suspensive condition. Before the expiration of the specified loan period, the respondent could not have disposed of the article pledged.
v. .....................
5.-Privileged documents - Evidence - Production of income tax returns sought in a criminal prosecution-Objection Minister contrary to public policy-Income War Tax Act, R.S.C. 1997, 97, s. 81 -Income
Tax Act, 1948, S. of 1948, 191-Excess Profits Tax Act, 1940, S.of 1940............................
6.-Revenue-Income tax-Excess profits tax-Whether respondent in computing its net taxable income for 1947 was entitled to use the LIFO method of inventory accounting -Excess Profits Tax Act, 1940, S. of 1940, 32, s. 2(1) (F)-Income War Tax Act, R.S.C. 1997, 97, s. 3(1). The respondent, at its primary brass mill, produced semifinished copper and other copper alloys from raw metals it. purchased.
It neither traded nor speculated in its raw materials. The prices at which it sold its products were based upon the replacement cost of their metal content and a processing charge which included all expenses, other than the replacment cost of the metal, and an allowance for profit. The nature of its business required a large inventory and the rate of its turnover was slow.
It made no attempt to STATUTES-Continued use the raw materials in the order of their purchase or in any particular order. The respondent had been using the last in first out (LIFO) method of inventory accounting, for its own corporate purposes, since
1936, but only commenced using it in computing its income and excess profits tax in
The Minister refused to recognize the right to use that method and determined that the first in first out (FIFO)
method should be followed.
The respondent's appeal to the Exchequer Court in respect of its assessment for the year 1947 was successful.
Held: (Kerwin C.J. and
Estey J. (dissenting)
), that the appeal should be dismissed.
Per Taschereau and Locke
JJ.: In the absence of any statutory direction, manufacturing costs of this nature are to be determined upon the ordinary principles of commercial trading. The evidence in this case leads to the conclusion that, in a business such as this, the LIFO method of inventory accounting determined what was the true income of the respondent with greater accuracy than any other method which it was practical to apply.
Per Taschereau and Cartwright JJ.: Where as in the case at bar, the dispute as to what were the true gains for a particular year centred on the question as to which of two well-recognized systems of accounting would in the case of the business carried on by the respondent most nearly arrive at the true figure for the materials cost of its sales for such year, that question was one of fact.
The evidence fully supported the finding of fact made by the trial judge on this crucial question. Per Kerwin C.J. (dissenting):
Even though the LIFO assumption is recognized as a proper method for corporate purposes, that is not sufficient for the purposes of the taxation sought to be imposed, as it does not determine the respondent's true profits more accurately than the FIFO method which is more in accordance with the known facts. Per Estey J. (dissenting):
Under the LIFO method, the current market value is used to compute the value of only that quantity assumed to be added to the inventory in the last year and the valuation of the balance of the inventory is computed by using the market values of former years. Consequently, since the assumption under the FIFO method eliminates many of the former years, the computation under the FIFO method more closely approximates the current value.
or
WILLS-Wills - Charity - Charitable quest-"Charitable, relzgious, educational or philanthropic purposes -Uncertainty.
A testatrix by her will directed her executors
WILLS-Concluded to apply the residue of her estate "for charitable, religious, educational or philanthropic purposes" and vested in them special powers of appointment but restricted the allocations to be made under the powers of appointment to the Province of New Brunswick. By a second paragraph, without restricting the powers of appointment, she expressed the wish that a special trust scholarship or foundation be established ana named the Robert Loggie and/or Alexandra Loggie Trust, Scholarship or Foundation. Held: That the whole of the purported trust was void for uncertainty as not confined to charitable purposes. Decision of the Supreme Court of New Brunswick, Chancery Division
(1953) 34 M.P.R. 66, varied and A.G. NEW 645 WATER CARRIER-Damages - Negligence-Third Party proceeding--Water carrier-Carrier held liable for damages to cargo-Relief over against negligent ship's repairer-Proximate cause of the damage- Contributory negligence-Estoppel-Water Carriage of Goods Act, 1936, c. 49-Contributory Negligence Act, R.S.B.C. 1948, c. 68 ................................. WORDS
PHRASES-"Misdescription" (Land Title Act, 1906 (Alta.), c.24).............................. 2.- "Mutatis Mutandis" (Hydro-Electric Commission Act, (Que.) 8 Geo. VI, c. 88 and 9 Geo. VI, c. 80, s. 16a) ......... 695 3.-"Parked or left standing" (Highway Traffic Act, R.S.O.1950, c. 167,8. 43(1).) 651 4.-"Prior certificate of title" (Land Titles Act, 1906 (Alta.), c. 94)............. 5.-"Slot Machines" (Slot Machine Act, R.S.A. 1942, c. 383, s. 2(b).) ......... 6.-"Slot Machines" (Slot Machine Act 1951 (N.B.), c. 215)................. 7.-"Wrong description" (Land Titles Act, 1906 (Alta.), c. 84) .................
Cases cited
- S.C.R. 569 S.C.R. 569
- A.C. 318 A.C. 318
- 1 D.L.R. 462 1 D.L.R. 462
- Woods v. The King scr-1951-504
- Trottier v. Rajotte scr-1940-203 208
- Stephens v. Falchi scr-1938-354
- Minister of Finance of British Columbia v. The King scr-1935-278 285
- Joy Oil Co. Ltd. v. The King scr-1951-624 642
- A.C. 432 A.C. 432
- A.C. 75 A.C. 75
- Cavalier v. Pope Cavalier v. Pope, supra
- Latham v. Johnson Latham v. Johnson, supra
- A.C. 238 A.C. 238
- A.C. 44 A.C. 44
- A.C. 386 A.C. 386
- Counties Bank v. Henty 7 A.C. 741
- A.C. 398 A.C. 398 407
- 2 A.C. 555 2 A.C. 555
- A.C. 248 A.C. 248 254
- Laphkas v. The King scr-1942-84
Statutes and regulations cited
-
- s. 88 of the Exchequer Court Act
- s. 83 of the Exchequer Court Act
- s. 88
- s. 6(1)
- s. 3(1)
- s. 884
- s. 61
- s. 46
- s. 58(1)
-
Unresolved citations
- s. 1(i)
- s. 4
- s. (1)
- s. 1(h)
- s. 15
- s. 200 of The Insurance Act
- s. 211
- Section 53(1) of The Vehicle and Highway Traffic Act
- s. 38 of the Immigration Act
- ss. 2(g)
- Section 13(1) of The Mechanics' Lien Act
- Section 263 of the Railway Act
- s. 21 of the Manitoba Provincial Lands Act, 1887
- s. 43 of the Domminion Lands Act, 1883
- s. 104(e)
- s. 6(1)(a)