Majority
The judgment of Rand and Fauteux JJ. was delivered J.:-Two questions arise in this appeal: the first is whether there was a concluded contract between the appellant, Dawson and the respondent company, and secondly, if so, was it thereafter so affected by the conduct of both or either of them that no cause of action arose on which these proceedings could be founded.
The existence and terms of the contract, if any, must be gathered from correspondence carried on between Dawson and agents of the respondent. It began with a letter dated December 28, 1950 from Dawson, an American citizen, then an officer in the United States Naval Reserve Engineering Corps, at Willard, Utah, to Kidd in Vancouver, a geologist with whom Dawson had had previous communications. It recalled the latter which concerned a mineral deposit at the head of Leduc River in British Columbia, in very rough country, which had been discovered and staked by Dawson, and claims filed which later lapsed, and had been described by him in a report made in 1931 to one Stewart which was later published in a British Columbia Mines Department report. Kidd was asked whether he thought it possible to interest Canadian mining men in the deposit. The opinion was expressed that large quantities of high grade concentrate might be flown out to Tidewater and that there would be no difficulty in again locating the showings.
This was acknowledged on January 3, 1951.- Kidd stated EXO that, although they had been in the district, "our men" RdJ had not seen anything like that which the report describes, but that "one has been most keen to go back". It added,
We now have our own helicopter which should be ideal for hopping over from Stewart. I will follow this up and write you again shortly.
In Dawson's reply of January 13, 1951, he expressed anxiety to "get some responsible party interested in these properties as soon as possible" and his willingness "to work with them" (the interested party) "toward that end.";
and he stated that "A large mining company in Salt Lake is showing a definite interest. To protect my own interest, it will be necessary for me to arrive at some definite arrangement soon."
The next communication, of January 17, came from one
Springer of Vancouver, an associate of Kidd, to whom the latter had turned over Dawson's letter of the 13th. After mentioning that he and Kidd had developed a gold property on the Unuk River, in the vicinity of the Leduc, and had been doing general exploration in the area and to the north which they expected to continue, he proceeds:- I would be interested in making some arrangement next summer to finance you in staking the claims for which we would give you an interest.
I would suggest that we should pay for your time and expenses and carry you for a ten per cent non-assessable interest in the claims.
I will probably be in the south-western states sometimes during the winter and will be pleased to call on you at Willard. In the meantime you could advise me if the arrangements as outlined above would be satisfactory to you.
To this Dawson replied on January 22 from Ogden, Utah.
He says:- Your proposition as stated in your letter appeals to me as being a fair one. I would be pleased to meet you in Ogden.
On February 14, 1951, Dawson wrote Springer from
San Francisco that he had been recalled to active duty and was under orders to leave for overseas (Pacific)
about
March 10, but that
This abrupt change in my plans need not necessarily interrupt our plans regarding the Leduc R. plans. It is quite possible I can get away for a short time, and if not, I have a man who can locate these properties.
On February 28 Dawson followed this with another letter to Springer. There had been a change in orders and he was leaving for overseas the next day. He suggested that if convenient and so desired by Springer, arrangements could Co.LTD.
be made through his wife in Ogden who had authority to Rand J. handle his business affairs during his absence.
She was said to have in her possession and to be familiar with all of his information concerning the Leduc *properties consisting of maps and photographs "of generous size, extremely clear and well preserved". He concluded:- As I informed you in a previous letter, your offer of a nonassessable interest for re-locating and finding these properties is acceptable to me, provided there is a definite arrangement to this effect in the near future.
If it is not possible for me to get away for a month or so to personally undertake this work, I will send in a man with your party who .
knows the location of these properties. It is very probable that with your assistance and contact with the proper government agencies, that I can get some time off.
Or you may prefer to use the information mentioned above and use your own party.
Personally, I would prefer going in myself, if that is possible.
A postscript was added:- The reason that I prefer going in is to personally check up the possibility of getting some of this ore out. I have some very definite information and ideas along this line.
On March 5, 1951, Springer directed a letter to Dawson at Ogden.
After remarking that he had thought to see Dawson before that time and that he had just received the letter of February 28, he proceeds:- I agree with you that the best arrangements would be to have you take us into the property, as you know definitely where your showings are. I am expecting to operate the helicopter in that country this year. It would depend upon whether I get a pilot or not. If I am operating it, it will be a simple matter to go into this country, probably from Stewart or Summit Lake, north of the Premier.
I hereby agree that, if you take us in to the showings and we think they warrant staking, that we will stake the claims and give you a 10% non-assessable interest. The claims would be recorded in our name and we will have full discretion in dealing with them-you to get of the vendor interest.
I do not think one should attempt to go into this country until about the first of August, so any time during August would do. You can keep me advised as to your movements and when you could get away during that month.
If it is impossible to get away in August, the last half of July and all September would be alright.
My full name is Karl John Springer. I note you have been addressing me as Otto, due to my poor writing.
I wish you the very best luck your present activities.
To this, on April 12, 1951 from the Naval Operating Base, Dawson answered:- Your recent letter regarding the Leduc R. properties was forwarded by my wife.
August or Sept. is the proper time to inspect this locality. The most ground can then be seen.
- If you will inform me, if and when you obtain a pilot for your 'copter, I will immediately take steps for a temporary release in order to be on hand.
Should it appear that you will not be able to get a pilot I would appreciate it if you would so inform me.
This was followed by a letter of May 27, 1951:- Would like to know if your plans for further exploration work in the Unuk River area have become definite.
In your last letter you stated that you had obtained a helicopter, but did not yet have a pilot. For me to get away from my present duties on a furlough, it may be necessary for me to have several weeks notice.
On June 7, 1951, Springer wrote as follows:- Up to a little over a week ago it did not look as though we would be able to secure a pilot for our helicopter. However, we have a man now who we hope will be satisfactory.
I was talking to Tom McQuillan, who is prospecting for us this year; he said he had been over your showings at the head of the Leduc River, and in his opinion it would be practically impossible to operate there, as the showings were in behind ice fields, which along with the extreme snow falls made it very doubtful if an economic operation could be carried on.
We have also been delayed in getting away this year, due to pilot trouble, and have so much work lined up that I am doubtful whether we will have time to visit your showings, also I do not think we would be warranted in making the effort to get in there due to the unfavorable conditions. I must advise you therefore, not to depend on our making this trip, and suggest if you are still determined to go in, to make other arrangements.
To this no reply was sent by Dawson.
On August 1 an exploration party of the respondent investigated the Leduc area and located the showings reported in 1931 by Dawson. This did not become known to Dawson until some time in 1952. In 1953 the respondent made arrangements to enter upon the development of the claims by q. new company to which the claims were sold in exchange for paid-up shares of the capital stock. Later on Dawson took legal advice and the action was launched on November 23, 1953. The substantial contention of the respondent is that any offer contained in the correspondence and in particular the letter of March 5 called *for an acceptance not by promise but by the performance of an act, the location of the claims by Dawson for the respondent.
It is based upon the well known conception which in its simplest form is illustrated by the case of a reward offered for some act to be done. To put it in other words, no intention was conveyed by Springer when he said "I hereby agree" that Dawson, if agreeable, should have replied "I hereby accept" or words to that effect: the offer called for and awaited only the act to be done and would remain revocable at any time until every element of that act had been completed.
The error in this reasoning is that such an offer contemplates acts to be performed by the person only to whom it is made and in respect of which the offeror remains passive, and that is not so here.
What Dawson was to do was to proceed to the area with Springer or persons acting for him by means of the respondent's helicopter and to locate the showings. It was necessarily implied by Springer that he would participate in his own proposal. This involved his promise that he would do so and that the answer to the proposal would be either a refusal or a promise on the part of Dawson to a like participation. The offer was unconditional but contemplated a performance subject to the condition that a pilot could be obtained by the Dawson's answer of April 12 was, as I construe it, similarly an unqualified promissory acceptance, subject as to performance to his being able to obtain the necessary leave.
It was the clear implication that Springer, controlling the means of making the trip, should fix the time and should notify Dawson accordingly.
As the earlier letters show, Dawson was anxious to conclude some arrangement and if he could not make it with Springer he would seek it in other quarters.
Although in the circumstances, because the terms proposed involve such complementary action on the part of both parties as to put the implication beyond doubt, the precept is not required, this interpretation of the correspondence follows the tendency of courts to treat offers as calling for bilateral rather than unilateral action when the language can be fairly so construed, in order that the transaction shall have such "business efficacy as both parties must have intended that at all events it should have": Bowen L.J. in The Moorcock (1).
In theory and as conceded by Mr. Guild, an offer in the unilateral sense can be revoked up to the last moment before complete performance. At such a consequence many courts have balked; and EXLORTDON it is in part that fact that has led to a promissory construction where that can be reasonably given. What is effectuated is the real intention of both parties to close a business bargain on the strength of which they may, thereafter, plan their courses.
This question is considered in Williston on Contracts, 1936 Ed. Vol. 1, pp. 76 and 77, in which the author observes:- Doubtless wherever possible, as matter of interpretation, a court would and should interpret an offer as contemplating a bilateral rather than a unilateral contract, since in a bilateral contract both parties are protected from period prior to the beginning of performance on either side-that from the making of the mutual promises.
At the opening of the present century the courts were still looking for a clear promise on each side in bilateral contracts. bargain which lacked such a promise by one of the parties was held to lack mutuality and, therefore, to be unenforceable.
Courts are now more ready to recognize fair implications as effective: promise may be lacking, and yet the whole writing may be 'instinct with an obligation,' imperfectly expressed,"
which the courts will regard as supplying the necessary reciprocal promise.
The expression "instinct with an obligation" first used by Scott J. in McCall v. Wright (2), is employed by Cardozo J. in Wood v. Lady Duff Gordon (3), in the following passage:- It true that he does not promise in so many words that he will use reasonable efforts to place the defendant's indorsements and market her designs.
We think, however, that such promise fairly to be implied. The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. promise may be lacking and yet the whole writing may be "instinct with an obligation" imperfectly expressed.
These observations apply obviously and equally to both offer and acceptance.
The question of an anticipatory breach by the letter of June 7 was raised, but that was superseded by the subsequent events. Dawson was bound to remain ready during a reasonable time prior to that mentioned for the trip to endeavour, upon notice from Springer, to obtain leave of P.D. at
App. Div. (N.Y.) (3) N.Y. at absence. But in promising Dawson that the company would co-operate, Springer impliedly agreed that the company would not, by its own act, prevent the complementary performance by Dawson. In doing what it did, the company not only violated its engagement, but brought to an end the subject matter of the contract.
By that act it dispensed with any further duty of readiness on the part of Dawson whether or not he was aware of what had taken place. Even assuming the technical continuance of the obligations and the necessity of an affirmative step in order to treat an anticipatory breach as a repudiation, the action was not brought until long after the time for performance had passed.
Being thus excused, Dawson's obtaining leave, apart from any pertinency to damages, became irrelevant to the cause of action arising from the final breach.
I would, therefore, allow the appeal and remit the cause to the Supreme Court of British Columbia for the assessment of damages.
The appellant will have his costs throughout.
The judgment of Estey and Cartwright JJ. was delivered J.:-The appellant contends that he and respondent entered into a contract under which he would endeavour to relocate certain mineral claims and was prevented from so doing by respondent's refusal to carry out its obligations thereunder and, in this action, claims damage suffered thereby. The learned trial judge held a contract had not been concluded and, even if it had, the plaintiff had abandoned it prior to the bringing of this action. Court of Appeal for British Columbia unanimously dismissed appellant's appeal.
After preliminary correspondence relative to the relocating of these mineral claims, the appellant, on February 28, 1951, wrote to Springer, President and General Manager of the respondent, who at all relevant times conducted the correspondence on behalf of the respondent, in part: j On March 5, 1951, Springer replied in part:
I agree with you that the best arrangements would be to have you take us into the property, as you know definitely where your showings are. I am expecting to operate the helicopter in that country this year. It would depend upon whether I get a pilot or not.
If I am operating it. it will be a simple matter to go into this country, probably from Stewart or Summit Lake, north the Premier.
hereby agree that, if you take us to the showings and we think they warrant staking, that we will stake the claims and give you a non-assessable interest.
The claims would be recorded in name and will have full discretion in dealing with them-you to get of the vendor interest.
I do not think one should attempt to go into this country until about the first of August,. so any time during August would do.
You can keep me advised as to your movements and when you could get away during that month.
If it is impossible to get away in August, the last half July and September would be alright.
This letter was acknowledged by the appellant under date of April 12, 1951, reading as follows:
Your recent letter regarding the Leduc R. properties was forwarded by my wife.
. August or Sept. the proper time to inspect this locality. The most ground can then be seen.
If you will inform me, if and when you obtain a pilot for your 'copter, I will immediately take steps for a temporary release in order to be on hand.
Should it appear that you will not be able to get a pilot I would appreciate it if you would so inform me.
The appellant, a Lieutenant Commander in the United States Naval Engineering Corps, was stationed in the Marshall Islands from March, 1951, until the middle of December, 1951, and, therefore, the references to the letter being forwarded by his wife and to obtaining a temporary release.
The letter of March 5, 1951, was an offer on the part of the respondent made in response to appellant's request for "a definite arrangement" and, with great respect to those who hold a contrary view, the appellant's letter of April 12 constitutes an acceptance of that offer, more particularly as every portion thereof is consistent only with the appellant's intention that he was accepting and holding himself in readiness to perform his part. While it has been repeatedly held that an acceptance must be absolute and unequivocal, McIntyre v. Hood (1), Oppenheimer v. Brackman & Ker Miling Co. (2), Harvey v. Perry (3), it is equally clear that Can. S.C.R.
Can. S.C.R. 1 S.C.R.
such an acceptance need not be in express terms and may DAwson be found in the language and conduct of the acceptor. The HiEmIPT learned author of Pollock on Contracts, 13th Ed., in discussing the rule that "the acceptance must be absolute and unqualified," states at p. 30:
Simple and obvious as the rule is in itself, the application to a given set of facts is not always obvious, inasmuch as contracting parties often use loose and inexact language, even when their communications are in writing and on important matters. The question whether the language used on a particular occasion does or does not amount to an acceptance is wholly a question of construction, and generally though not necessarily the construction of a written instrument.
Lord Tomlin in Hillas & Co., Ltd. v. Arcos, Ltd. (1), stated:
. . . the problem for a court of construction must always be so to balance matters that without violation of essential principles the dealings of men may as far as possible be treated as effective and that the law may not incur the reproach of being the destroyer of bargains. . . . It is in the application of them to the facts of a particular case that the difficulty arises, and the difficulty is of such a kind as often to afford room for much legitimate difference of opinion and to present a problem the solution of which is not as a rule to be found by examining authorities. The respondent's undertaking would require that it make reasonable efforts to locate a pilot and, having done so, that it would convey the appellant into the area in August or September of 1951 and if, when relocated, the respondent staked the claims it would give to the appellant a 10%o non-assessable interest. If, under this contract, the respondent did not obtain a pilot, the contract would be at an end. Moreover, if the claims were relocated and, in the opinion of the respondent, were not worth staking, the appellant would not receive the 10o. These terms were agreed upon and may be described as conditions subsequent.
A contract may contain within itself the elements of its own discharge. in the form of provisions, express or implied, for its determination in certain circumstances. These circumstances may be the non-fulfilment of a condition precedent; the occurrence of a condition subsequent; or the exercise of an option to determine the contract, reserved to one of the parties by its terms.
In the second case the parties introduce a provision that the fulfilment of a condition or the occurrence of an event shall discharge either one of them or both from further liabilities under the contract. Anson's Law of Contract, 20th Ed., 310-11.
(1) (1932) 43 Ll. L. Rep. 359 at 364.
Moreover, when this correspondence is read as a whole, respondent's letter of repudiation dated June 7, 1951 (hereinafter set out) appears to be written on the basis that the parties had agreed with respect to taking the appellant into the area. It is not suggested that there was any term or item left in abeyance or to be subsequently agreed upon. The suggestion is rather that, because of the additional information, the project did not commend itself from an economic point of view, and, in any event, the respondent had not time to undertake it, and the letter concludes with the sentence:
I must advise you therefore, not to depend on our making this trip, and suggest if you are still determined to go in, to make other arrangements.
The word "arrangements" is rather a general term with no precise meaning, but it is of some significance that the appellant, in his letter of February 28, 1951, asked for "a definite arrangement," which was concluded, and the respondent now suggests that appellant make other arrangements.
A reading of this letter as a whole appears to corroborate that the parties had concluded a contract. The learned trial judge further held:
Alternatively if the correspondence establishes a contract, then there was a termination of it by Springer, accepted by the plaintiff, and a mutual abandonment of it by the parties.
The repudiation referred to is contained in respondent's letter to appellant dated June 7, 1951, reading as follows: Up to a little over a week ago it did not look as though we would be able to secure a pilot for our helicopter.
However, we have a man now who we hope will be satisfactory.
I was talking to Tom McQuillan, who is prospecting for us this year; he said he had been over your showings at the head of the Leduc River, and in his opinion it would be practically impossible to operate there, as the showings were in behind ice fields, which along with the extreme snow falls made it very doubtful if an economic operation could be carried on. We have also been delayed in getting away this year, due to pilot trouble, and have so much work lined up that I am doubtful whether we will have time to visit your showings, also I do not think we would be warranted in making the effort to get in there due to the unfavourable conditions.
I must advise you therefore, not to depend on our making this trip, and suggest if you are still determined to go in, to make other arrangements.
The appellant made no reply to this letter and nothing passed between himself and the respondent until he called at the latter's office in Vancouver about December 15, 1952, when he and Springer had a conversation, during which, as the appellant deposes, Springer, in referring to the correspondence in 1951, said:
it was not their original intention to go in but that Kvale had made an independent discovery of the copper back in 1948 and they decided to go back and check up on that."
This statement is largely corroborated by Kvale and is not referred to by Springer. About April 4, 1953, appellant again interviewed Springer at respondent's office in Vancouver, when Springer made it clear that he would neither pay any amount to the appellant nor further discuss this matter. Appellant, in November of that year, put the matter in the hands of his solicitor. It is contended that the appellant's silence, after his receipt of the letter of June 7, 1951, until his interview in December, 1952, constituted an abandonment of the contract. No authority was cited where silence alone has been held to constitute an abandonment.
In The American National Red Cross v. Geddes Brothers (1), the Red Cross, upon receipt of the letter of repudiation, recorded in its books what amounted to an acceptance of the repudiation and, while it did not communicate its acceptance, its failure to complain with respect to the non-delivery of the yarn, as called for under the contract, was held sufficient to justify Geddes Brothers in concluding, as, in fact, they did, that the contract was abandoned. As stated by Duff J. (later C.J.) at p. 161:
Anglin J. (later C.J.) stated at p. 164:
In construing this letter of June 7, 1951, it is desirable to look at the correspondence as a whole and endeavour, as far as possible, to place oneself in the position of the writer of the letter. As Newcombe J. stated:
Also at p. 705 his Lordship quotes from Lord Watson in Birrell v. Dryer (1):
This observation would be equally applicable when construing a letter of repudiation.
As already stated, Springer, at the outset of the correspondence. expressed his interest in appellant's claims and the respondent's financing him upon a percentage basis. In February, 1950, the respondent corporation was incorporated and Springer became President and General Manager.
Both McQuillan and Kvale were employed by the respondent in 1951 and Kvale's contract is dated April 20 of that year. Springer, in the course of his evidence and in discussing the letter of June 1951, stated: The letter of repudiation is dated June 7, 1951, and during the next month Kvale and McQuillan were taken into the area. by helicopter. They were again taken into the area where, on August 2 of that year, they staked a number claims which were duly recorded.
The record does not indicate when respondent changed its mind as indicated by Springer's remark to appellant at its office in December, 1952, but it is apparent that many of the difficulties emphasized in the letter of June 7 had either disappeared or been overcome by the following month.
Upon this record it rather appears that the respondent concluded it could continue without assistance from the appellant and, therefore, wrote the letter of repudiation.
The respondent, in this letter of repudiation, set forth its reasons therefore which it would be difficult for the appellant, stationed as he was in the Marshall Islands, to effectively appraise.
I do not think that under such circumstances a conclusion adverse to the appellant can be drawn from his failure to further press the respondent at that time. Immediately upon his return in December, 1950, he "wrote to the Mining Recorder at Prince Rupert" and apparently continued his examination to ascertain what had, in fact, taken place.
He visited the premises in June and July, 1950, and relocated the three claims which he had found in 1931. When he had ascertained, at least in part, what had J. taken place, he made his position known to the respondent in December of 1952. Moreover, while silence may be evidence of repudiation, its weight must depend upon the circumstances and here I do not think his silence, coupled with the steps he took immediately upon his retuin from the Marshall Islands, sufficiently supports a conclusion that he, at any time, intended to abandon his rights under the Upon receipt of the letter of repudiation dated June 1951, the appellant might have accepted it and forthwith claimed damages.
Since, however, he did not accept it, the contract remained in force and binding upon both parties. It, therefore, remained the duty of the respondent, having obtained a pilot, to take the appellant into the area in August or September. Not only did the respondent not do so, but, notwithstanding the terms of its letter of repudiation, it, in fact, took Kvale and McQuillan into the area where they staked claims on behalf of the respondent. This conduct constituted a breach of its contract.
The appeal should be allowed with costs throughout and the matter referred back to the Supreme Court of British Columbia to determine the damages.
Appeal allowed with costs. Solicitors for the appellant: Mason & Lane.
Solicitors for the respondent: Guild, Lane, Sheppard, Yule & Locke.
ANNUITIES-Wills-Annuities-Payable out of rents and profits of designated property-Continuing charge on income- Right of annuitant to Arrears-To accumulation of surplus income meet actual contemplated deficiencies.............
APPEAL-Appeal-Jurisdiction-Judgment for less than 8500 in favour of Her
Majesty-Automobile Accident-Exchequer
Court Act, R.S.C. 84, ss.
When no appeal lies without leave under ss. 82 and 83 of the Exchequer Court Act, a judge of the Supreme Court of Canada has no jurisdiction to grant leave in an action arising out of a motor vehicle accident and in which the applicant was ordered to pay Her Majesty a sum not exceeding
$500. The words "any sum of money"
must be construed as ejusdem generis with the preceding words and limited in their meaning to a sum payable to Her
Majesty of the same kind as a fee of duty, rent or revenue, and cannot be construed as including a claim for damages suffered by the Crown as a result of negligent driving. The difference in the wording of s. 30(d) and that is too marked to permit a conclusion that the words "an action relating to a sum of money payable to Her Majesty" are intended to describe an action in tort for unliquidated damages suffered by the Crown.
Jurisdiction
8480 seeking to have conveyance debtor to wife set aside-Conveyance made through intermediary-Action paulienne-Test of this
Court's jurisdiction. Where a debtor is not bankruptcy nor in liquidation, this Court is without jurisdiction to entertain an appeal in the action of a creditor holding a judgment for $430 to set aside a conveyance made by the debtor to his wife through an intermediary.
The test of this Court's competency is the value of the appellant's interest in the appeal, which, in this case, is below the required amount.
3.-Appeal-Jurisdiction-Extradition- Refusal of judge to issue warrant of committal under Extradition Act, R.S.C.
s. 18-Whether judgment within Supreme
Court Act, R.S.C. The refusal of a judge of the Superior Court of the
Province of Quebec to issue a warrant committal under of the Extradition
APPEAL-Continued
Act, R.S.C. 322, is not a judgment within the meaning of of the Supreme Court Act, R.S.C. 259. Consequently, this Court has no jurisdiction to grant leave to appeal from such refusal. 4.-Appeal, lack of substance-Municipal Corporation-Ratepayer-Right to appeal from judgment rendered against municipality where latter decides not to. The appellants as ratepayers brought action against the Town of Bala and the Royal Bank Canada in which they sought a declaration that a contract entered into by the Town for the installation of a water and sewer system and for the borrowing of money from the Bank to finance the scheme should be declared ultra vires.
Subsequently separate action were brought by the Bank and by the contractor to recover the money they respectively claimed due them. The three actions were not consolidated but were tried together and the Town in its defence denied allegations of improper purposes the action taken, or that the scheme was fraudulent, discriminating and illegal as against the majority of the ratepayers and, as to the alleged illegality, submitted itself to the jurisdiction of the court; otherwise it adopted all the argument of the present appellants.
The -trial court dismissed the first action and gave judgment for the Bank and the contractor in the other two. From these judgments appeals were taken to the Court of Appeal, were argued together and were the Town again supporting the present appellants. Town did not appeal further and before this Court asked that the appeal taken from the first judgement be dismissed. The question ultra vires was raised the courts below where the Town supported the present appellants.
The question having been decided against the Town and it having refused to appeal further, it would be improper to permit the appeal to continue. Per Rand, Kellock and Cartwright JJ.: The right of a ratepayer to bring a municipal corporation into court as a means of asserting the illegality of corporate action arises from the delinquency of the corporation. If the corporation, of its own accord, has taken appropriate action, the basis of the interposition by a ratepayer, a breach of duty, does not arise. Paterson v. Bowes, 4 Grant at distinguished. APPEAL-Concluded
Appeal-Evidence-Husband and wife
-Real
Property-Property claim wife raised non-support issue-Relevancy of wife's behaviour-Admissibility of husband's evidence-Trial judge alone-Question
Fact-Principles governing appellate court
. ... . . . . .. .. . . . . . .. . . . . . . .. . . . . . . . 6 8
6.-Appeal-leave-Amount in controversy-The Supreme Court Act, R.S.C. 1927, s. 86. Whether the amount or value of the matter in controversy in an appeal exceeds $2,000 within the meaning of of the Supreme Court Act very often shown sufficiently in the allegations fact in the statement of claim and in the amount claimed.
In the circumstances present case, where the trial judge, had he considered the plaintiff entitled succeed, would have fixed the damages at the extravagant amounts inserted in the statement of claim are no criterion of such amount or value. It was not a case where leave to appeal should be granted.
ARBITRATION-Arbitration and award- Arbitrator-Possible bias ground for disqualification.
Each party to an arbitration, acting reasonably, entitled to a sustained confidence in the independence of mind those who sit in judgment on him and his affairs.
Where there a basis for a reasonable apprehension of an arbitrator not acting in an entirely impartial manner, a finding made by him may be set aside.
Here when it was established that one of the arbitrators was jointly engaged in a real estate speculation with one of the parties, unknown to the other party-the award was set aside. Kemp v. Rose 1 Giff. 258;
Walker v. Frobisher Ves. Jr. 70 followed.
AUTOMOBILES- Motor vehicles - Driving-"Without due care and attention without reasonable consideration for other persons using the highway"-Whether two offences-The Highway Traffic Act, R.S.O.,
167, s. 29 (1)-The Summary
Convictions Act, R.S.O. 1950, 879, 8 (1)
-the Criminal Code-ss. 710 (8), 728 (8), and 725.
The appellant in proceedings taken under The Summary Convictions Act,
R.S.O. 1950, 370, was charged with having driven a motor vehicle "'without due care and attention or without reasonable consideration for other persons using the highway" contrary to 29 (1) of The
Highway Traffic Act, R.S.O. 1950,
He was acquitted of the charge by a magistrate but on appeal by the Crown, a conviction was entered by the County Court judge whose judgment was affirmed by a majority of the Court of Appeal
Ontario. Held: that two separate offences
AUTOMOBILES-Continued were created by 29 of The Highway Traffic Act (Ont.) and the appellant having been charged with two offences in the alternative contrary to 710 of the Criminal Code, the conviction was invalid.
The King v. Surrey Justices 1 K.B. 450 followed. Gatto v.
The King S.C.R. 423, distinguished.
2.-Automobiles-Action Gratuitious Passenger-Jury's finding set aside Court of Appeal-"Gross Negligence" question fact for jury-Where evidence will support such finding, it should not disturbed. a gratuitous passenger, sued the respondent to recover damages for injuries suffered by her when an occupant of a motor car owned and driven the respondent and arising out of a collision between the respondent's motor car and a motor truck. The accident occurred winter time on the curve of a narrow mountain road with an icy, slippery surface.
jury having found negligence on the part of both drivers and that of the respondent to have amounted to gross negligence, judgment was entered against the respondent and the action against the other driver dismissed. The British Columbia Court of Appeal by a majority decision set the judgment aside on the grounds that the finding of the jury was perverse. Held: Whether conduct falls within the category of gross negligence a question of fact for the jury. Here there was evidence upon which a jury, if they chose to believe it, might find negligence on the part the respondent and hold that this was very great negligence in the circumstances. Studer v. Cowper S.C.R. 450; City of Kingston v. Drennan ?7 Can. S.C.R. 46; Holland v. City of Toronto S.C.R. and McCulloch v. Murray S.C.R. referred to.
Judgment the Court of Appeal for British Columbia (1953-54), W.W.R. (N.S.) 602, reversed and judgment at trial restored. Negligence-Motor Cars-Collision- Both drivers at fault-No clear line between fault of the one or the other-Apportionment Negligence Act, R.S.O. 1950, 252, s. 5 applied-The rule in Davies Mann, considered. Where in an action for damages for negligence both parties are found to be at fault and no clear line can be drawn between the fault of the one and the other the rule in Admiralty Commissioners v. S.S. Volute A.C. at 144 applies. In the circumstances of this case of The Negligence Act, R.S.O. 1950, 252, should be applied and the parties found equally at fault. In an action in damages arising out the collision of two motor cars it appeared that the male appellant, on a bright moonlight night, turned his car into a laneway on the east side of a highway running north and south and then turned out again facing southward so that part AUTOMOBILES-Continued of it projected into the highway so as to obstruct north-bound traffic.
He then turned on a small parking light on the right front of the car. While seated in the car with his fianc6 and co-appellant, he saw the respondent's car approaching from the south a quarter of a mile distant but did nothing further to give notice of the position of his own car. The respondent, proceeding at some 45 m.p.h., did not the stationary car until an instant before the collision.
The trial judge found both parties negligent but held that the negligence of the respondent was the sole cause of the collision. The Court of Appeal
Ontario varied the judgment by finding both parties equally to blame.
Held: that the appeal should be dismissed. Per Rand J.:
The rule in Davies v. Mann M. & W. 546 does not contemplate a case in which one of the parties becomes aware in time to avoid the negligence of the other.
Eurymedon P. at 49; Davies v.
Swan 291 at 311; Boy Andrew v.
St. Rognvald A.C. at and
Sigurdson v. B.C. Electric Ry. Co.
A.C. 291 at 302, applied. McKee and Taylor v. Malenfant and Beetham S.C.R.
distinguished. Decision of the Court
Appeal for Ontario O.R. 265 affirmed.
V. MCINTYRE...............
Automobiles - Oncoming vehicles - Collision while passing-Claim and Counterclaim-Conflicting evidence-Negligence - Trial judge unable to make any finding as liability-Dismissal of claim and counterclaim. Following a collision between two oncoming trucks, a claim and counterclaim was made by the parties.
The accident occurred in daylight at a curve on a dirt road, which was dry and level. The weather was clear.
Both parties alleged that the accident occurred after the front parts their vehicles had passed and that the collision was caused by the negligence the other driver.
The two drivers were the only witnesses of the accident and each testified that he had been driving on his own side of the road. There were no marks on the road, there was ample clearance between the front parts of the vehicles as they passed, and both drivers saw the other vehicle as they approached. The trial judge was unable to make a finding of negligence against either driver.
He found that neither side had proved its case and dismissed both the claim and the counterclaim.
The appeal and the cross-appeal were both dismissed by the Court Appeal.
Only the plaintiff appealed to this Court.
Held (Kellock J. dissenting):
that the appeal should be dismissed. Per Taschereau J.: The contention that there is a collision between two motor vehicles, under such circumstances that there must have been negligence on the part of one or both drivers, and the court is unable to distinguish between such drivers as to liability both drivers should be found equally at
AUTOMOBILES-Continued fault, untenable. There are no principles of law that may justify a court of justice, in a case like the one at bar, to hold a person liable in damages, unless negligence established.
There was no prima facie case that both parties were negligent and it is impossible to infer from the facts where the responsibility lies.
Neither party has proved its case and both claims were rightly dismissed.
Per Estey J.: There is no suggestion on the part of the trial judge that either driver must have been negligent and the evidence is not such as to lead necessarily to the conclusion that one or the other, or both, were negligent. No basis disclosed in this case for holding that the judgments below are characterized by some aberration from principle or affected by some error at once radical and demonstrable in the appreciation of the evidence adduced or in the method by which the consideration of has been approached.
Per Locke and Fauteux JJ.: The onus of proving negligence, which was the only cause of action asserted in both the action and the counterclaim, lay upon the party advancing the claim.
The appellant's contention that the respondent's truck had been driven around the curve at a high rate of speed, causing its rear wheels to skid and to come in contact with the appellant's vehicle, was rejected by the trial judge. There are concurrent findings on this question fact and this Court should not interfere unless satisfied that the courts below were clearly wrong.
The trial judge and the Court Appeal declined to draw the inference that both parties were at fault and the evidence did not justify such an inference.
The respondent may not be found liable on the footing that one or the other of the drivers was guilty of the negligence which caused the collision. Per Kellock J. (dissenting): The problem presented such case as the present one to be approached not only from the point of view that either the one driver or the other had been negligent, but also from the standpoint that the collision had occurred from the negligence of both, and to be determined upon the balance of probabilities. The trial judge did not approach the case from that standpoint.
consideration the evidence leads to the conclusion that the negligence which caused the accident was that of the driver of the respondent's car.
Automobiles - Head-on collision top of hill-Both on wrong side of road- Gratuitous passenger-Whether gross negligence-Vehicles and Highway Traffic Act, R.S.A. 1942, 275, s. 104(1). Two approaching cars collided on the top of a hill so steep that a car approaching from the opposite direction would be hidden from view.
Both cars were on the wrong side the road. The respondent was a gratuitous AUTOMOBILES-Concluded passenger in the appellant's car. The trial judge found both drivers grossly negligent.
His findings, with regard to the appellant, were that the latter immediately prior to the application of his brakes was travelling at a speed in excess of 35 m.p.h.; that he was driving with part of his car on the wrong side; and that he was not keeping a proper lookout for approaching traffic.
The Court of Appeal divided equally and the judgment at trial was therefore affirmed.
The appellant admits his negligence but denies the charge of gross negligence.
Held (Taschereau and Locke JJ. dissenting): That the appeal should be allowed.
The appellant was not grossly negligent within the meaning of 104(1) of the
Vehicles and Highway Traffic Act, R.S.A.
Per Estey, Cartwright and
Abbott JJ.: The evidence does not support the trial judge's findings that the appellant was proceeding at a speed in excess of m.p.h. and that he did not maintain a proper look-out. Per Estey J.: It would seem that the appellant, when confronted with an oncoming car which was more the wrong side than he was and which was proceeding with such speed and in such proximity, followed a course that one cannot say would not, in the circumstances, have been followed by a reasonable man.
Per Cartwright J.: The fact that the appellant's car was partly to the left the centre line does not appear to have been a cause of the collision. Had the appellant turned his car completely to his right side of the centre line the evidence indicates that the impact would have been no less violent than it was.
Per Taschereau J.
(dissenting): The trial judge reached the right conclusion. Both drivers were driving in a careless way and their negligence falls into the category called gross negligence.
Per Locke J. (dissenting)
:
Whether the appellant was guilty of very great negligence was a question of fact (McCulloch v. Murray S.C.R. 141), and there are concurrent findings on that question.
It cannot be properly said that such a finding was clearly wrong, and the appeal should accordingly fail.
Negligence - Contributory Negligence
-Running down action-Traffic Light Signals-Right to proceed subject to common law duty..........................
Barrister
Solicitor
Law Society of Upper Canada, Discipline
Committee, powers of-Admissibility
Statutory Declaration to rebut defence to professional misconduct charge-Only members hearing case would appear qualified participate in Discipline Committee's decision
Law Society Act, R.S.O. 1950, 200, s. 48-Law Society Rules, r. 74 (4). The appellant, a member of the Law Society
Upper Canada, was charged with conduct
BARRISTER-Concluded unbecoming a barrister and solicitor in that he had failed to account for money had and received on behalf a client. At an inquiry conducted by the Society's Discipline Committee the appellant admitted the receipt of the money and claimed he had advised his client by letter that he was retaining it as payment on account of an agreed fee of 810,000 for conducting certain litigation. At a second meeting the Committee a declaration of the client, who had left the country, was introduced. This declaration, which was obtained the Committee on its own initiative, denied the appellant's evidence.
objected to its reception but the objection was overruled.
Following a third hearing the Committee reported to the Society that it found the appellant guilty of the misconduct charged.
The report set out the fact of the declaration having been obtained and a summary of its contents, but stated that the Committee had disregarded it in reaching its decision. Its report was adopted by the Benchers of the Society in Convocation and as a result the appellant on the order the Registrar the Supreme Court of Ontario was disbarred. Held: That the appeal be allowed, the resolution the Benchers the Law Society of Upper Canada, and the report of the Discipline Committee, be quashed; the order of the Supreme Court of Ontario set aside, and the name of the appellant be restored to the' Rolls.
Per Curiam: The Committee regarded the declaration as admissible in evidence under r. 74 which provides, that for the purpose of its investigation and report the Committee may receive and accept as prima facie evidence of any facts stated in it, a statutory declaration.
Assuming, without deciding, that r. 74 (4) valid, the declaration was neither sought nor received as prima facie evidence of the facts stated it, but as evidence to contradict on a vital point the defence which had been sworn to by the appellant.
The reception of such evidence was wrongful and fatal to the proceedings which accordingly should be quashed. This result was not avoided the statement in the report of the Committee that the declaration had been disregarded.
Walker v. Frobisher Ves. approved in Szilara v. Szaz S.C.R. followed. Decision of the Court Appeal for Ontario
O.R. 692, reversed. Semble: Only those members of the Discipline Committee who have heard all the evidence given at the inquiry should take part in rendering a decision.
Rex v. Huntingdon Confirming Authority 1 K.B. 698 at 714 and 717 referred to. CEMETERY - Cemetery Companies - Powers-Municipal By-Laws, application thereto-Cemetery Companies Act, R.S.B.C. 1948, c. 69-Municipal Act, R.S.B.C. CEMETERY-Concluded
282, s. 58 (78), (74). The Municipal Act, R.S.B.C. 1948, 232, provides that in every municipality the entering into agreements with cemetery companies for the provision of cemetery
(74) For prohibiting the burial of human authorized. The appellant was incorporated in 1935 under the Cemeteries Companies
Act, now R.S.B.C. 1948, 59, and with the approval of the respondent Municipality acquired land within the latter's limits for the purpose of a burial ground.
In it acquired two additional parcels for similar purposes.
under the authority of a by-law passed under 58 (74) of the Municipal Act refused approval of such use of the additional lands and, upon the appellant commencing to so use the lands without its consent, brought action to restrain such use.
It was contended for the appellant that the Act under which it was incorporated was a special Act and that powers granted it upon its incorporation included authority to establish its cemetery in the respondent municipality and that it was not subject to the municipal by-law here in question. The trial judge, Coady J., gave judgment for the municipality and upon the appellant's appeal to the Court of Appeal for British Columbia that court reaffirmed his judgment.
Upon appeal to this Court. Held: That the appeal should be dismissed.
(By Rand, Kellock, Estey and Locke JJ.) Held: That the Cemetery
Companies Act does no more than provide the means by which a public cemetery corporation may be brought into being and endowed with certain powers, those powers so far as the actual location of a burying ground is concerned, to be subject to the Municipal Act as to the consent the municipality within whose boundaries the cemetery proposed to be established.
Kerwin C.J. would have dismissed the appeal for the reasons given by the trial judge concurred in by the Court of Appeal.
CIVIL CODE - Article 177 (Capacity married woman to contract) ...........
Article 209 (Dissolution of community )..............................
3.-Article 210 (Effect of separation from bed and board)......................
4.-Article 1025 (Effect of contracts) 298
5.-Article 1082 (Action paulienne)
See J.
CIVIL CODE-Concluded
Article 1053 (Delict and quasidelict)............................. 7.-Article 1065 (Effect of Obligations) 298 8.- Article 1117 (Joint and several obligation )............................
Article 1422 (Capacity of wife separate as to property) ..............
Article 1472 (Sale) ........... 11.-Articles 1491, 1492 (Delivery) 298 Article 1823(3) (Judicial sequestration)............................ CODE OF CIVIL PROCEDURE-Article 88 (Action against public officers).. . 834 2.-Article 594 (Provisional execution).............................
3.- Article 1114 (Habeas corpus).... 263 Constitutional
Land
Mining of Saskatchewan lands issued Dominion prior transfer of natural resources-Leases replaced before expiration of provincial leases-Whether previous leases surrendered present leases subject to Natural Resources Agreement, 1930.
In 1930, the respondents were the holders of sixteen alkali mining leases issued by the Dominion prior to the passage of the National Resources Agreement, 1930, between the Province of Saskatchewan and the Dominion providing for the transfer of the natural resources from the Dominion to the Province.
Section of the Agreement provided that the Province agreed to carry out the obligations of the Dominion under contracts such as the ones held by the respondents and not to alter any of their terms except with the consent of all parties other than the Dominion.
The lease question provided for a 20-year term with the right of renewal.
In prior to their expiration, the leases were replaced by two licences granted for eighteen years by the Province, which included some four hundred acres of new land, and which, turn, were replaced in by two leases each for a term of twenty years. Both the licences and the new leases provided for the right of renewal. The trial judge and the Court of Appeal held that the new leases were subject to 2 of the Agreement and CONSTITUTIONAL LAW-Continued that, consequently, the Province could not change the royalty payable under the leases.
(Estey and Locke JJ.
allowed.
Per Kerwin C.J., Kellock and
Fauteux JJ.: The doctrine of surrender, which not limited to cases of landlord and tenant and which does not depend upon intention, applies in the case at bar. The new licences which were accepted in 1931 could not have been granted by the Province unless the original leases had been surrendered.
There could be no renewal of the terms the original leases prior to the expiration of the existing terms, and the instruments did not purport to be renewals. As to the intention of the parties, it cannot be contended that the four hundred acres new land ever became subject to the terms of the old Dominion regulations or to the
Dominion-Provincial agreement, if for no other reason than that the provincial
Minister, who granted the new licences, had no power under the Mineral Resources
Act to do so. Nothing done in 1937 in the surrender of the licences and the granting of new leases can assist the respondents. Accordingly, 2 of the Agreement ceased to be applicable to the respondents whose rights became subject to the provincial law.
Per Estey J. (dissenting)
: The new licences issued in were but consolidations and renewals of the original leases and remained subject to the provisions of the Agreement.
The changes and additions in the licences appear to have been made under 2 the Agreement without any intention to surrender or cancel the leases in the sense that the parties would not be subject to the Agreement.
If the licences leave that issue in doubt, an examination of the circumstances supports the conclusion that the parties intended to consolidate and to make alterations and additions. There was no surrender by operation of law as there was no basis for an estoppel and as the parties had no other intention than to consolidate and renew the former leases.
The 1937 leases cannot be construed as expressing the intention that Regulations adopted afterwards varying or fixing a new royalty should become part of such leases. Consequently, there was no consent within the meaning the Agreement. Per Locke J. (dissenting): The correspondence leading to the licences showed clearly that both parties intended that the licences were granted in the exercise of the right of renewal and that only the rights the lessee in respect of the unexpired term the previous leases surrendered together with the instruments.
There appears to be no room for doubt that this was the intention of the parties. The case
Lyon v. Reed ((1884) M. & W. 285)
does not support the contention that where a lessee accepts a renewal of a lease before the expiration of the term, not only is the right to the unexpired portion of the
CONSTITUTIONAL LAW-Continued term extinguished but also the benefit of all other collatoral covenants, even though, as in this case, the parties intended and stated their intention that such rights should be preserved. For the same reasons, all that was surrendered in 1937 were the unexpired terms of the licences and possession of the instruments.
By signing the 1937 leases, the respondents did not waive their right to insist that the rates of rentals and royalties could not be changed during the currency of the leases. A.G. Validity and applicability of the Industrial Relations and Disputes Investigation Act, R.S.C. 1952, 152, s. 1 to 58 inclusive. Part I of the Industrial Relations and Disputes Investigation Act, R.S.C. 152, deals with labour relations and provides for collective bargaining, certification and revocation thereof, unfair labour practices, strikes, lockouts and conciliation proceedings. Its application is restricted by which states that Part I "applies in respect employees who are employed upon or in connection with the operation of any work, undertaking or business that within the legislative authority of the Parliament of Canada including but not as to restrict the generality the foregoing, (a) works, undertakings or businesses operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada".
Other paragraphs specify other works, undertakings and businesses to which Part I applies. (Per Kerwin C.J., Taschereau, Kellock, Estey, Cartwright, Fauteux and Abbott JJ.): Ss. 1 to 53 inclusive of the Act which alone argument was heard) are intra vires the Parliament Canada, and their application will depend upon the circumstances of any particular case. Per Rand J.: The Act is valid if applied to works and undertakings within 91(29) and 92(10) of the B.N.A. Act. But crews of vessels engaged in strictly local undertakings or services and locally organized stevedores are outside the scope the Act. Per Locke J.: Sections 1 to 53 inclusive of the Act are intra vires, except as to employees engaged upon or in connection with the works, undertakings or businesses operated or carried on for or in connection with shipping, the activities of which are confined within the limits of a province, upon works, undertakings or businesses which the main or principal part is confined.
The Eastern Canada Stevedoring Company Ltd., incorporated under Companies Act of Canada, 1934, supplied stevedoring and terminal services Toronto consisting exclusively services rendered in connection with the DEX
CONSTITUTIONAL LAW-Continued loading and unloading of ships, pursuant to contracts with seven shipping companies to handle all loading and unloading of their ships arriving and departing during the season."
All these ships were operated on regular schedules between ports
Canada and ports outside of Canada. Held
(Rand J. dissenting and Locke J. dissenting in part): The Act applied in respect of employees in Toronto of the Company employed upon or in connection with the operation of the work, undertaking or business of the Company as described in the
Order of Reference. Per Rand J. (dissenting): On the evidence submitted, the Act did not apply to the employees of the Company.
Per Locke J. (dissenting in part)
: The
Act applied to the stevedores, as defined the Order of Reference, but not to the office staff of the Company. re
ACT................ 529
-Constitutional law
Provincial statute-Municipal by-law-Closing of stores on Holy Days-Whether legislation ultra vires-Criminal law-In relation to religion
-Freedom of religion-The Early Closing
Act, R.S.Q. 1941, 239-Act to amend the
Early Closing Act, 1949, 13 VI, 61
-B.N.A.
Act, 1867, ss. and 92-By-law
2048 of the City of Montreal. Held: The
Quebec Statute, Geo. VI, c. purporting to authorize municipal councils cities and towns to pass by-laws for the closing of stores on New Year's Day, the festival of Epiphany, Ascension Day, All
Saints' Day, Conception Day and Christmas Day, is ultra vires and accordingly
By-Law 2048 of the City of Montreal passed under the said statute, is invalid.
(Judgment of the Court of Queen's Bench,
Appeal Side, Province of Quebec, Q.R.
Q.B. 679, reversed).
Per Kerwin
C.J., Taschereau, Estey, Cartwright, Fauteux and Abbott JJ.: In its true nature and character, the impugned statute authorizes municipal councils to compel Feast
Day observance.
Similar legislation
England, as is Sunday observance legislation, assigned to the domain criminal law. Furthermore, in its essence, the statute is prohibitory and not regulatory. As such, it is beyond the legislative competence of the legislature as infringing on criminal law. In these views, neither the abstinence of Parliament to legislate in the matter nor the territorial restriction as to the operation of the legislation can validate
*the same. Per Rand J.: The history of the legislation relating to Sundays and Holy
Days demonstrates their association, and the prohibition here, with sanctions, of carrying on business on days given their special and common characteristic
Church law being in the same category as the law of Sunday observance, is, likewise, within the exclusive field of the Dominion as criminal law.
The statute was also
CONSTITUTIONAL LAW-Concluded enacted in relation to religion since prescribed what is in essence a religious obligation and, therefore, was beyond the provincial authority (Saumur v. City Quebec 2 S.C.R. 299). Per Kellock and Locke JJ.: The division of jurisduction in 1867 by ss. and 92 was on the footing of what would be understood by an English legislature at that time as falling within the domain of criminal law, and legislation in relation to Sundays and Holy Days at that time in England was part of the criminal law, and accordingly exclusively within the jurisdiction conferred upon Parliament by 91(27). Even if it could be said that such legislation is not properly "criminal law", it would still be beyond the jurisdiction of a province as being legislation with respect to freedom of religion. A.G. or QUEBEC....................... Construction street-Payment for materials to weight and engineer's certificate condition precedent to payment-Effect of engineer's failure to comply with prescribed conditions. A contract entered into by the appellant municipality with the respondent provided that as to the gravel and ashpalt to be supplied by the latter, payment should be by weight, and that possession of an estimate or certificate signed by the appellant's engineer should be a condition precedent to the right of payment. respondent complied with the provisions of the contract but the appellant's engineer refused to certify for the materials by weight and arrived at the amounts to be paid for each by his own methods of calculation.
Held: That when the engineer refused to certify, as called for by the contract, he abdicated his proper function thereunder and the having concurred in the position he took, brought itself within the principle of Panamena v. Leyland A.C. 428. The respondent was thus absolved from the requirement with respect to the final certificate and the construction of the contract became in the circumstances entirely a matter for the court. Appeal dismissed and judgment of the Court of Appeal for Ontario O.R. 578, affirmed but varied by deducting $1,305.02, the value of 160-125 tons of asphalt, supplied in excess of the estimate. v. PAVING ....................
2.- Contract-Action to enforce written agreement dismissed-Whether trial judge's finding one of fraud and supported the evidence-Duty of appellate court in dealing with finding.
The appellant signed a document in the belief that as drafted by the respondent it was in accordance with a prior discussion between the parties whereby the appellant had agreed to act for the respondent in the sale of certain stock. The document in fact recorded the sale of the CONTRACT-Continued stock by the respondent to the appellant.
An action to recover the purchase price set out the agreement was dismissed on the ground that it appeared to have been obtained by a trick on the part of the
The decision was reversed by the court of appeal who found that the trial judge had not made a finding of fraud and, in any event, that there was no evidence of fraud. Held: that the finding the trial judge was to be interpreted as a finding of fraudulent misrepresentation which warranted the repudiation the agreement by the appellant. Max v. Platt
1 Ch. 616 at 623; Blay v. Pollard
[1930] 1 K.B. 628 at 633, referred to.
Judgment of the Court of Appeal for
Ontario reversed and judgment at trial restored. v.
3.-Contract-Married woman separate as property-Civil capacity-Right to purchase immoveables-Sale with right redemption-Reserved property used for purchase-Whether authorization necessary
-Civil
Code, Articles 177, 210,
Desirous to borrow an amount of $3,000, the respondent sold, for a like sum, a group of contiguous immoveables to the appellant.
In the premises, the latter, a married woman separate as to property, was unauthorized unassisted.
The sum of $3,000 which she paid at the signature of the deed of sale was her own property and was made up as follows:-$500 savings, $2,000 insurance indemnity for moveables destroyed by fire and $500 borrowed from her father; the validity the latter loan has not been questioned. The majority of these immoveables were sold subject to a right of redemption in favour of the respondent; and all of them were, already, subject to a mortgage as to which the appellant assumed no personal obligation. The sale was declared null and void by the trial judge and this judgment was affirmed by a majority should be allowed.
The law of (21
Geo. V, has, to a certain measure, enlarged the civil capacity of a married woman separate as to property to act without any authorization and has formally recognized her right to dispose freely her moveable property but does not, however, justify the conclusion that she has been entirely released from the rule of relative incapacity affecting generally married women.
Legislature is not presumed to have had the intention to make substantial and radical changes to the law it modifies beyond what is explicitly declared, either in express terms or by clear implication.
Thus it cannot be said that because Article 1422 C.C. does not forbid her to purchase immoveable without authorization or assistance, she for that reason alone free to do so without
The authorities, however, support the proposition that the appellant, in the present case, had the right to purchase
CONTRACT-Continued without authorization, as an investment, the immoveable rights in question making a cash payment in full out of these moneys she had the right to freely dispose of. The purchaser's consent to the inclusion a right of redemption in a deed of sale not a covenant to alienate. The clause remere an expressed resolutive condition subject to which the vendor has consented to sell and according to which it has been agreed that it would be within his power to dissolve the contract. Such condition, when accomplished, effects right the dissolution of the contract and replaces things in the same state as if the contract had not existed;
the purchaser is then 'deemed to have never been the owner and the vendor to have never ceased to be the owner.
Furthermore, the obligation imposed upon the purchaser of an immoveable sold with the right of redemption to give to the vendor, once the latter has exercised his right, a deed of retrocession totally foreign to the juridicial factors conditioning the right of the vendor to take back the property sold. Such deed of retrocession not a conveyance property but an acknowledment of the retrocession pleno jure of the contract.
As to the mortgage, neither the surrender of the immoveables nor their adjudication to another person, should they take place, would constitute the contractual alienation prohibited the law.
The law forbids the married woman from alienating her immoveables without authorization or assistance but does not impose upon her the obligation to conserve them. CooK 4.-Mandamus-Contract between member and Agricultural Co-Operative Society- Member expelled from Society for breach contract-No allegation in pleadings that member was not heard or summoned before expulsion-Whether court can act proprio motu-Co-operative Agricultural Association Act, R.S.Q. 1941, 120, ss. 14. The appellant was a shareholder member of the respondent agricultural co-operative, which organized under the
Co-operative Agricultural Association Act, R.S.Q. In common with other members, he had entered into a contract with the respondent, providing that each member should purchase from the respondent all his required feed, seed grain and chemical fertilizer, that if a member committed a breach of his contract, the respondent might claim stipulated damages and the board of directors was authorized to strike off such member from the list of members.4 For breach of contract by the appellant, the directors passed a resolution declaring him to be no longer a member. He applied a mandamus to have the resolution declared illegal, null and void, alleging that he had fulfilled all the terms of the contract and that the respondent had acted unjustly, arbitrarily and illegally.
The trial judge and the majority in the Court of Appeal CONTRACT-Continued dismissed his application.
The dissenting judgments in the Court of Appeal held that the directors should have heard the appellant before adopting the resolution and that, whether pleaded or not, the court itself was entitled to raise the doctrine audi alteram partem.
should be dismissed.
1. The trial judge was not required nor entitled to act proprio motu on the doctrine audi alteram partem, which had not been pleaded by the appellant before the trial judgment was rendered.
Assuming that the directors were acting in a quasi-judicial capacity, the failure to hear or summon the appellant before adopting the resolution was a question of fact which should have been expressly pleaded if the appellant wished to rely upon it in his action.
On a true interpretation of the obligations of the appellant, there was ample evidence to show that the decision of the directors was not unjust, arbitrary illegal.
ROSALIE..........................
5. - Undertaking School
Board buy immoveable-Resolution adopted board but not published-Refusal
Superintendent of Education to authorize purchase-Action to claim purchase price- No offer signed deed and titles-Whether authorization of provincial authority necessary lack of publication annuls resolution-Education Act, R.S.Q. 1941, 59,
29, 286, 807-Civil Code, Arts.
1025, 1065, 1472, 1491, 1492. By a written instrument, the respondent undertook to purchase an immoveable from the appellant for a sum of $25,000, of which $4,000 was to be paid within thirty days that the property could be freed from an existing mortgage.
few days later, the respondent adopted, but did not publish, a resolution ratifying the undertaking and authorizing a notary to obtain the title-deeds and to prepare the deed of sale. Subsequently, the
Superintendent of Education refused to approve the purchase because the property was not of the size required by regulations.
The Superior Court dismissed the action taken by the appellant and this judgment was affirmed by the Court Appeal.
Held: The appeal should be dismissed.
Per Taschereau, Locke, Fauteux and Abbott
JJ.: In an action to recover the price sale, the would-be purchaser does not have to carry out his obligation to pay the purchase price before the would-be seller has carried out his own obligations to deliver and warrant the thing sold. Consequently, since the appellant has at no time tendered a deed sale, prepared conformity with the contract and signed by him, and his title-deeds, his action cannot succeed.
The purchase of an immoveable for the erection a school must be ratified by the provincial authority.
The powers conferred on the school board by 236 of the Education Act are clearly
CONTRACT-Continued subordinated to the regulations adopted the Committee of the Council of Education. It is doubtful if the lack of publication the resolution did not render it null, but at all events it was not in force at the time of the institution of the action because only takes effect thirty days after its publication.
Per Kellock J.: The resolution never became operative as such a resolution does not come into force until thirty days after publication, and there was no publication here. V. ...... Breach repudiation - Whether continuing-Whether issue of writ sufficient notice of acceptance of repudiation, and made within a reasonable time. By a contract in writing entered into in Feb. the appellant agreed to sell and the respondent to buy a quantity of powdered egg yolk and egg albumen. It was provided that intial deliveries were to begin July 15 following, and that if the powder was not satisfactory, or not in accord with the specifications, it was to be returnable within days of delivery. On May the appellant notified the respondent that the contract was not valid and that it would not make delivery. Despite the notice, the respondent continued negotiating for delivery until June 1, when because of the appellant's continued refusal to deliver the order, other than a small quantity albumen, without notifying appellant made the purchases elsewhere. On June 25 it brought action for a declaration that a valid contract had been entered into and claimed damages for an anticipatory repudiation thereof.
Held: That the refusal by the appellant on May to perform the contract, which it never retracted, constitued in the circumstances, a continuing refusal.
Ripley v. McClure Ex. R. 344;
Hochster v. De la Tour E. & B. 678, 22 L.J. 455. The issue of the writ by the respondent was sufficient notice of its acceptance of the appellant's continuing repudiation, and even if there was on June 1 another and independent act of repudiation, the acceptance thereof was made within a reasonable time. Roper v. Johnstone L.R. C.P. 167; Ripley v. McClure, supra. Decision of the Court Appeal for Saskatchewan (1954) W.W.R. (N.S.) affirmed.
Contract-To bottle and sell drinks-Termination of-Whether reciprocal obligation sell and buy supplies on hand. The appellants, by contract with the bottle and sell soft drinks made from concentrates manufactured by the respondents. The appellants had to buy the concentrates and all the supplies such as bottles, cases, stationery, advertising materials, vehicles, etc.
Clause 5(c) COTRACT-Concluded contract provided that, at the termination of the contract, the appellants "shall collect and make available for inspection"
all supplies on hand, and by clause 5(d)
it was stipulated that the respondents "shall purchase" all supplies in good condition, and what was not so purchased "shall not be sold" except to other licensees. The contract was terminated and the respondents brought action to enforce their right to purchase the supplies which the appellants contended they were not obliged to sell.
The trial judge dismissed the action, but this judgment was reversed by a majority in the Court of Appeal.
Held (Rand J.
dismissed. Per Taschereau, Estey, Fauteux and Abbott JJ.: The parties were reciprocally obligated; the respondents, to buy the supplies and the appellants, to sell them at the termination of the contract.
If the appellants were not obliged to sell, there would be no reason for clause 5(c)
nor for the last paragraph of clause 5 (d).
Furthermore, the use in the bottle trade of the trade mark of another person without the consent of that person, is prohibited by Art. 490 of the Criminal
Code. Per Rand J. (dissenting): Clause
5 (d) of the contract created an obligation to purchase but for the benefit only of the appellants, that is to say that the appellants were not bound to sell but could require the respondents to purchase. To interpret the language as implying an obligation to sell would be in direct conflict with what was in fact contemplated.
Contracts - Performance subject conditions-When bilateral rather than unilateral contract will implied. In an action for breach contract based on correspondence exchanged between the parties it was
Kerwin
C.J. dissenting, that a bilateral agreement was entered into subject to two conditions in the performance thereof.
The question of interpreting an offer in a unilateral and bilateral sense, considered.
The Moorcock 14 P.D. 64 at
68; McCall v. Wright App. Div. (N.Y.)
62; Wood v. Lady Duff Gordon .222 N.Y.
88 at 90; Williston on Contracts 1936 Ed.
Vol. I, 76, 77; R. Williams Machinery
Co. v. Moore S.C.R. 692 at 705;
Pollock on Contracts 13 Ed. p. 30; Hellas
& v. Arcos Ltd. 43 Ll. L.R. 349 at
364; Anson's Law of Contracts 20 Ed.
referred to. The American National
Red Cross v. Geddes Bros. S.C.R.
143, distinguished. Kerwin C.J. dissenting, concurred in the finding of the trial judge,
Coady J., whose decision was affirmed by the Court of Appeal for British Columbia, that there was no contract.
COVENANT - Covenant - Restrictive - Real property-Against the use of land for certain business-Expressed to for benefit
COVENANT-Continued of vendor-No reference to land retained by vendor-Whether runs against subsequent purchaser-Admissibility of oral evidence to show attachement retained land-Land Titles Act, R.S.A. 1942, 205, ss. The respondent owned two parcels of land situate approximately 1,000 ft. apart and on different streets. It was carrying on a lumber and building material business on one of them, and, in 1944, sold the other under an agreement in which the purchaser covenanted not to use the land for 25 years for dealing in lumber and building materials. It was stated in the agreement that the restriction attached to and was to run with the land sold.
There was no reference to the land retained by the vendor, but it was stated that the restriction was to be for the benefit of the vendor. respondent took action to maintain against the appellant, a successor in title of the purchaser, the caveat it had filed with the agreement.
The amended statement of claim alleged that the covenant had been obtained for the protection of the land not sold and that this land was the dominant tenement. The trial judge held that the covenant was personal to the respondent and not for the benefit of its land. Court of Appeal reversed this judgment. Held: The appeal should be allowed. the true construction of the agreement the covenant was merely personal to the vendor and not for the benefit of the land retained by it and was therefore not binding upon Per Taschereau, Rand, Estey and Cartwright JJ.: The agreement being a formal and carefully prepared instrument obviously intended to be a complete statement of the whole bargain, extrinsic evidence was inadmissible to contradict, vary or add to its contents. However, assuming that all the evidence as to surrounding circumstances received at the trial was admissible, the trial judge was right in his view that the covenant was intended by the parties to be personal to the respondent and not for the benefit of its retained land.
In construing the agreement, the difference, stressed by the authorities, between a convenant personal to the vendor and one for the benefit of his land, can hardly be supposed to have been absent from the mind of the draftsman. The mere fact that at the time the respondent owned other land so situate that it might be capable of being regarded as a "dominant tenement", does not give sufficient reason for construing the agreement otherwise than as was done by the trial judge. There is nothing in ss. 51 and 131 of the Land Titles Act, R.S.A. 1942, c. 205, which alters the general law as to restrictive covenants running with the land. Locke J.: Oral evidence was not admissible in construing the agreement.
There was no ambiguity in its language, and oral evidence calculated to add a term to the agreement instead of explaining the terms or identifying the subject matter, could not COVENANT-Concluded supplement its provisions.
Union Bank of Canada v. Boulter Waugh Ltd. 58 S.C.R.
385, referred to.
Zetland v. Driver
All E.R. Smith v. River Douglas
2 E.R. 179 and Laurie v. Winch
1 S.C.R. 49, distinguished. Even the inadmissible evidence were to be considered the covenant was a covenant gross and did not run with the land.
Co. v.
CRIMINAL LAW - Criminal law -Murder-Alleged misdirection on doctrine reasonable doubt and circumstantial evidence
-Alleged inflammatory language Crown
Counsel to jury-Criminal Code, ss. 1014(2),
The appellant was found guilty murder. His appeal to the Court of Appeal was unanimously dismissed. He now appeals to this Court, by special leave,on grounds of misdirection with reference to reasonable doubt, circumstantial evidence and inflammatory language used by Crown counsel his address to the jury. Held (Taschereau and Abbott JJ. dissenting), that the appeal should be allowed, the conviction quashed and a new trial ordered.
1. There was no misdirection in the trial judge's charge with respect to the doctrine reasonable doubt. Per Kerwin C.J., Kellock, Estey,
Locke,
Cartwright
Fauteux
JJ.:
Difficulties would be avoided if trial judges would use the well known and approved adjective "reasonable"
or "raisonnable"
when describing that doubt which sufficient to require the jury to return a verdict of not guilty.
There was misdirection by the trial judge with reference to the rule as to circumstantial evidence.
Neither the language of Rex v. Hodge ((1838)
2 Lewin C.C. 227) nor anything remotely approaching it was used. Per Kerwin C.J.
and Estey J.: Even though expressions other than the ones used in the Hodge case are permissible, a trial judge should use the well settled formula and obviate questions arising as to what is its equivalent.
Crown counsel exceeded his duty when he expressed in his address by inflammatory vindictive language his personal opinion that the accused was guilty and left with the jury the impression that the investigation made before the trial by the
Crown officers was such that it had brought them to the conclusion - that. the accused was guilty. It is improper for counsel for the Crown or the defence to express his own opinion as to the guilt or innocence of the accused. The right of the accused to have his guilt or innocence decided upon the sworn evidence alone uninfluenced statements of fact by the Crown prosecutor, is one of the most deeply rooted and jealously guarded principles of our law.
4. Per Kerwin C.J., Rand, Kellock, Estey,
Cartwright and Fauteux J.J.: It could not be safely affirmed that had such errors not occurred the verdict would necessarily have been the same. Per Locke J.: There was a substantial wrong and consequently 1014(2) of the Code had no application. Per Taschereau and Abbott JJ. (dissenting): As the verdict would have necessarily been the same there had been no substantial wrong or miscarriage of justice.
Murder to jury-Plea of insanity-Possible verdicts -Alleged illegal cross-examination of accused miscarriage of justice-Criminal Code, ss. 1014 (2), 1025.
was convicted of murder. His appeal was unanimously dismissed by the Court of He now appeals to this Court, by leave granted under 1025 of the Criminal Code, on grounds that the trial judge erred (a) in his instructions as to the possible verdicts and in omitting to mention the possibility of a disagreement, and (b) in his instructions as to the plea insanity and in his statement of the evidence in support thereof.
Subsequently, of its own motion, the Court ordered a new hearing on a point dealing with an alleged improper cross-examination of the accused as to statements made to the police but not proved to have been voluntarily made. Held (Locke, Cartwright and Fauteux JJ. Per Kerwin C.J., Taschereau, Rand, Estey and Abbott JJ.: There is no obligation upon a trial judge to explain to the jury that they may disagree. The trial judge had adequately presented the issue insanity and the evidence in support thereof. Per Kerwin C.J., Taschereau and Abbott JJ.:
Assuming that the crossexamination was improper, there was no duty on the trial judge in the circumstances to point out to the jury that this was not evidence.
There had been no substantial wrong or miscarriage of justice, even if the trial judge should have gone into the matter. Per Rand J.: Assuming that the statements were inadmissible, there had been no miscarriage of justice since the remaining evidence was so overwhelming and conclusive. Per Kellock J.: Such a statement could not be used even in crossexamination until its voluntary nature had been established. However, no substantial wrong or miscarriage of justice had occurred since the cross-examination simply brought out in more detail what was involved the evidence not objected to. Per Estey J.: Assuming that the cross-examination was improper, there had been no miscarriage of justice since any of the suggestions made in the course of the cross-examination were either contained in or directly implied statements already in evidence. Per Locke and Fauteux JJ. (dissenting): The right to disagree was not excluded in the trial judge's charge. The trial judge had adequately presented the issue insanity, but not the medical theory of the defence. Per Locke, Cartwright and Fauteux JJ. (dissenting): The trial judge should not have permitted the statements to be used in cross-examination without first having decided as to their free and voluntary character. The avowed purpose of the crossexamination was to destroy the factual basis, i.e., the lack of memory of the accused, upon which the medical expert for the defence mainly rested his opinion as to the insanity of the accused.
It is impossible to affirm that had this illegal cross-examination not taken place, the jury would necessarily have convicted the
Murder of accident or self-defence -No charge jury as manslaughter-Whether there was material call for charge with respect manslaughter-Criminal Code, 259 (a),
(b).
The respondent was convicted the murder of a woman.
He and the deceased were alone in a house when the occurrence took place.
His defence was accident or self-defence in a struggle over a knife said by the respondent to have been in the hand the victim. Apart from his evidence, there was nothing to show the particulars of what took place. There was evidence that the respondent and the deceased had agreed upon marriage and that there had been prior discussion between them over the mode of by the deceased.
Shortly before the fatal act, they were heard quarrelling. The trial judge did not charge the jury as to manslaughter. The Court Appeal ordered a new trial and the Crown appealed to this
Court.
Held (Locke J. dissenting): that the appeal should be dismissed. Per Kerwin
C.J., Taschereau, Rand, Kellock, Estey,
Cartwright,
Fauteux and
Abbott JJ.:
The circumstances were sufficient to call for the trial judge to charge the jury with respect to manslaughter.
If the jury concluded upon the evidence that the homicide was culpable, it was necessary for them to decide as a fact, with what intent the respondent had inflicted the fatal wound.
If they had a reasonable doubt that he possessed the intent required by 259 (a) or of the Criminal Code, the prisoner must be given the benefit that doubt, and the jury should then consider the offence of manslaughter.
Locke J. (dissenting)
: There was no material before the jury to justify a direction that they should consider a possible verdict manslaughter.
Murder of provocation-Appeal Crown-Whether evidence to support defence of provocation- Element of suddenness required in provocation-Criminal Code, s.
The respondent had emigrated to Canada from Italy.
His wife and children had remained behind.
In correspondence received from friends and relatives abroad, he was advised that his had been unfaithful while he was
Canada and had suffered an abortion. Subsequently, he arranged for his wife and children to come to Canada, where he strangled his wife a few days after her arrival.
The theory the Crown was that he had brought his wife to Canada with the intent to kill ker when she got here.
This was supported by a letter written by him to his brothers and statements, admitted in evidence, given by him to the police.
pleaded that he was provoked by her admission to him that she had been guilty of infidelities while he was in Canada. He was convicted of murder and the Court of Appeal ordered a new trial. The Crown obtained leave to appeal to this Court on the ground, inter alia, that the Court of Appeal erred in holding that there was any evidence to support the defence provocation.
Held (Kerwin CJ., Estey, Cartwright and
Abbott JJ. (dissenting)
): that the appeal should be allowed and the conviction restored.
Per Taschereau, Rand and Fauteux JJ.: What the Criminal Code provides for is "sudden provocation", and it must be acted upon by the accused sudden before there has been time for his passion cool".
"Suddenness" must characterize both the insult and act of retaliation. The expression "sudden provocation"
means that the wrongful act or insult must strike upon a mind unprepared for it, that it must make an unexpected impact that takes the understanding by surprise and sets the passion aflame. There was nothing of that in the case at bar. What was said between the accused and the victim could not, in the circumstances, amount to "sudden provocation".
The words furnished not the provocation but the release of his pent-up determination to carry out what he had deliberately decided upon, as he put it, to avenge his family honour. Per Kellock and Locke JJ.: If, upon becoming aware of his wife's adultery, a husband determines to kill her, he may rely upon provocation only if he acts "on the sudden" before there has been time for his passion to cool.
Consequently, the suggestion that if such an intention, once formed, was given up but was renewed upon subsequent mention of the previous information may be relied upon as "sudden provocation", cannot be accepted.
There is then no element
"suddenness"
as expressly required by 261 of the Code. In the case at bar, there no question but that the accused already knew and had for some time known what was involved in the statement made by his wife to him immediately before the tragedy.
Per Kerwin C.J., Estey, Cartwright and Abbott JJ. The jury were not properly instructed with regard an alternative defence, disclosed in the evidence, to the effect that even if the accused had once intended to kill his wife upon her coming to Canada, he had thereafter forgiven her and that, therefore, at all relevant times he had no intention of killing her.
The trial judge did not, also, make it sufficiently clear to the jury that if, in respect of provocation, they entertained a reasonable doubt, the accused should be given the benefit of it. v. TRIPODI
.....................
Manslaughter
Blood test-Obtained without a warning- Whether confession-rule and privilege-rule applicable-Admissibility of test-Whether s-ss. 4(d) and 4(e) of s. 285 of Criminal
Code applicable.
Criminal Code and convicted of motormanslaughter. At the trial, the Crown, to prove intoxication, tendered evidence of a blood test taken of the accused while he was in custody.
His consent had been obtained but he had not been warned that it might be used in evidence against him.
Considering that this evidence had been illegally admitted, the Court of Appeal ordered a new trial. The Crown obtained leave to appeal to this Court on the following questions of law: (1) Was the Court of Appeal right in deciding that s-ss. 4(d)
and 4(e) of s. 285 of the Code enacted in
1951 had no application, and (2) in deciding that a warning was necessary in this case.
Held: The appeal should be allowed and the conviction restored.
Cartwright J. would have referred the matter back to the
Court of Appeal for disposal of a ground of appeal and of the appeal as to sentence which that Court had found unnecessary to consider and which were not argued in this Court. Per Kerwin C.J. and Abbott J.:
The evidence of the blood test was admissible, and would have been even if the accused had not been asked and had not given his consent. The matters of admissibility of statements or admissions and selfincrimination are entirely distinct.
taking a blood test, the accused does not say anything because he is not asked any questions.
S-ss 4(d) and 4(e) of s. 285, enacted in 1951, have no application.
The accused was charged with manslaughter under a different section of the Code.
The contention that the mere fact that
Parliament had provided as it did by these two subsections indicated that it was not prepared to enact the same provisions with reference to charges other than those dealt with by these subsections, cannot prevail. In 1951, Parliament was confining itself to the offences described in s-ss. 4 and 4(a).
Per Taschereau, Cartwright and Fauteux JJ.: Under the general law, as it was before the addition of s-s. 4(d) of s. 285 of the Code, evidence of a blood test taken without a warning is admissible.
The contrary view is based on a misapprehension of the reason and object of the confession-rule and of the privilege-rule both of which are related to the very
53865-3 substance of the declarations made respectively by an accused or witness. The taking of a blood test does not give rise to the application of these rules nor does the fact that while the method used to obtain a blood test might be illegal and give rise to civil or criminal recourses, renders, per se, inadmissible the evidence resulting therefrom.
There does not appear to be in the amendment of 1951 any intention to change the general law on that point. BEGIN......... Criminal Law - Conspiracy - Trial judge having adequately charged jury as to elements requisite to support charge conspiracy refused to indicate difference between crime charged and aiding and abetting -Whether new trial warranted. The respondent, following a trial by a judge and jury, was convicted of conspiring with another to commit the indictable offence of illegally selling a drug. The trial judge adequately charged the jury as to the law relating to criminal conspiracy and as to its duty to give the accused the benefit of any reasonable doubt but, on the grounds that to do so might confuse the issue, refused accused counsel's request to instruct the jury as to the difference in law betwen aiding and abetting and conspiring.
The accused appealed contending that the trial judge by his refusal had deprived him of one of his grounds of defence. The Court of Appeal for British Columbia by a majority judgment allowed the appeal and ordered a new trial.
The Crown appealed. (Cartwright J. dissenting): That it clearly appeared from the evidence and from the trial judge's address that the only question left to the jury was whether or not the respondent had agreed to co-operate with his co-accused to bring about the illegal sale, that they could not convict unless they could so find, and that the jury clearly understood the issue to be decided by it. Held: Also, that there was no obligation on the trial judge to instruct the jury as to the difference between the crime charged and another crime for which the accused was not indicted and which the jury was not called upon to consider.
Per Cartwright J. (dissenting)
: The objection of counsel was that when the trial judge came to relate the theory of the defence to the law, which he had correctly stated, he did so in words which may have misled the jury, and it could not be said that the conclusion of the majority fo the Court of Appeal, that the jury may have been so misled, was wrong in law. Decision of the Court of Appeal for British Columbia (1955) 14 W.W.R. 112 reversed and verdict of jury restored.
...... Criminal law - Testimony of accomplice-Whether corroborated-Whether admission made accused was corroboration- Whether fact that accused has previously changed his plea from guilty to not guilty could taken as corroboration. The appellant was convicted of having broken and entered a shop with intent to commit a theft.
The Crown's case was supported by the testimony of a person whom the trial judge regarded as an accomplice but whose evidence he found was corroborated by (1) an admission made by the appellant and received in evidence by the trial judge, and (2) by the fact that the appellant had previously entered a plea of guilty, which had been withdrawn by leave of the Court.
The conviction was affirmed by the Court of Appeal and leave to appeal to this
Court was granted on the question as to whether there had been error in the acceptance of these two items as legal corroboration. Held: The appeal should be allowed and the conviction quashed. Per Kerwin
C.J., Cartwright and Abbott JJ.: At any time before sentence the Court has power to permit a plea of guilty to be withdrawn, and that decision rests in the discretion of the judge and will not be lightly interfered with if exercised judicially.
The original plea should then be treated, for all purposes, as if it had never been made. Consequently, the evidence that an accused had previously pleaded guilty to the charge but had been allowed to withdraw such plea, is legally inadmissible.
There was also error in admitting in evidence the statement made by the accused, as it cannot be safely affirmed that the trial judge would have decided to admit it if he had not been influenced, as appears clearly in his judgment, by the evidence of the plea of guilty.
On the properly admitted evidence in the record it would have been unreasonable to convict the appellant.
Per Taschereau and Fauteux JJ.: The decision to allow the withdrawal of a plea of guilty rests with the discretion of the judge, and if that discretion is exercised judicially the Appeal
Courts will not interfere unless there exists serious reasons. Like considerations should guide the trial judge in deciding whether a withdrawn plea of guilty should be used in evidence to implicate the accused.
In the case at bar there was nothing to suggest that this should have been permitted.
In these circumstances, it was illegal to use this withdrawn plea of guilty in the consideration of the question of the admissibility of the confession.
Furthermore, that statement was exculpatory, and if the trial judge had the right to disbelieve all or part of it, he had no right to supply to it, as he did, what was not in it. The remaining evidence in the record would not reasonably justify a verdict of guilty.
Criminal Code - False Pretences - Conditional Sale-Obtaining goods through medium of written contract-Whether a buyer "obtains anything capable of being stolen" on acquring a property interest in goods under a conditional sales agreement- CRIMINAL LAW-Concluded
The Criminal Code, s. 405 (1)-Conditional Sales Act, R.S.B.C. 1948, s. 64. An accused was convicted by a jury under s. 405 (1) of the Criminal Code, R.S.C. 1927, c. 36, of having obtained certain goods by false pretences through the medium of a contract in writing.
The conviction was quashed by the British Columbia Court of Appeal on the ground that as title to the goods was expressly reserved to the vendor by the terms of the contract, a conditional sales agreement, until the purchase moneys were fully paid, the conviction could not be supported. Held: That the judgment should be set aside and the conviction at trial restored.
The accused by false pretences induced the vendor not only to part with possession of the goods but also to pass to the accused a property interest recognized by the Conditional Sales Act, R.S.B.C. 1948, c. 64, and such an interest fell within the words "obtains anything capable of being stolen" as used in s. 405 of the Criminal Code. Held: Further, by Kerwin C.J. and Estey and Abbott JJ., that the word "obtained" in s. 405 of the Criminal Code must be given a more extended meaning than that attributed to it in the British Larceny Act. Rex v. Scheer 39 Can. C.C. 82 at 83, Rex v. Craingly 55 Can. C.C. 292 and Rex v. Kennedy 91 Canada C.C. 347, approved. 712 CROWN - - Action to recover subsidies paid the Commodity Prices Stabilization Corporation-Non-compliance with condition attached payment-Whether Crown bound statement of officer-Whether Crown had the right to sue.
The Crown sought a return or reimbursement of "special subsidies" granted by the Commodity Prices Stabilization Corporation, a Crown corporation established under the direction of the Wartime Prices and Trade Board, to the appellant on textiles importations made by it in 1947.
The order for these textiles had been placed in May, 1947, but they were not brought into Canada until September and October, 1947
The subsidies were payable subject to all the conditions imposed by the Corporation. appellant was advised in a letter from an assistant supervising examiner Corporation, that the date prior to which the goods had to be invoiced and shipped was December 31, 1947.
The goods were not invoiced and shipped at that date. The trial judge maintained the action. The appeal should be dismissed. Kerwin C.J., Taschereau and Fauteux JJ.: The statement in the letter of the supervising examiner was a sufficient specification, under the statement of policy of the Board, of the date before which the goods had to be sold in order to qualify for the subsidy.
The supervising examiner had no authority to declare a policy for the Board but in any event there was no policy declared in the letter.
The Corporation was the agent of the Crown and a principal CROWN-Concluded has the right to sue in his own name.
Per Rand and Kellock JJ.: The goods question came within the requirement sale on or before December The letter the supervising examiner was only a warning that the matter rested within the judgment of the Board and that on goods sold after the specified date the subsidy situation would be precisely what the
Board might decide.
The writer of the letter had no authority to do more than to indicate what that policy might be.
meeting in house dispersed police - Jehovah's Witnesses-Whether house owner has recourse against police officers-Moral damages-Provincial Police Force Act and
Liquor Police Force Act, R.S.Q.
1941,
47-Magistrate's Privilege Act, R.S.Q.
1941, 18-Art. 1053 Civil Code-Art. 88
Code of Civil Procedure-Criminal Code, ss. 199, 200. Acting on orders from their superior, the respondents, members of the provincial police, broke up an admittedly orderly religious meeting conducted by a minister of the Jehovah's Witnesses the appellant's house, seized a Bible, some hymn books and a number of booklets religious subjects, and ordered those present to disperse.
The entry and the seizure were made without a warrant. No charge was at any time laid against any of the partiepants including the appellant and the items seized were not returned. The appellant took action against the three police officers for damages and for the value the articles seized.
This action was dismissed by the trial judge and by the Court of Appeal.
Held: The appeal should be allowed and the damages assessed at
$2,000. Per Kerwin C.J., Taschereau and
Estey JJ.: The respondents committed an illegal act; a violation of ss. 199 and 200 of the Criminal Code, by obstructing a minister of Jehovah's Witnesses in ciating at a religious meeting. The Provincial Police and Liquor Police Force Act and
The Magistrate's Privilege Act afforded the respondents no protection. These Acts do not relieve the authors of a delict or quasidelict from the liability resulting from Art.
C.C.
Moreover, they grant certain privileges only when good faith established by the evidence, which not the case here. They, therefore, do not apply.
the action of the respondents was forbidden by law, the defence reasonable and probable cause cannot be invoked, nor this particular case, can the defence that the respondents acted by order of a superior officer be raised.
The appellant had the indisputable right to convene such a meeting at his house. In this country, there no state religion and all denominations enjoy the same degree of freedom of speech and thought. The action instituted by the appellant not barred by any Quebec statute, and the appellant entitled to
53865-3,
897' DAMAGES-Concluded moral damages. In the Province of Quebec, exemplary or punitive damages are not recognized. Damages that may be awarded in such a case as the present are of an exclusively compensatory nature. Rand and Kellock JJ.: The Magistrate's Privilege Act and the Police Force Act provided no substantive defence to the actions of the respondents.
Furthermore, from a procedural point of view, the Magistrate's Privilege Act had no application, since there was not only a total absence authority for the conduct of the respondents but such conduct was specifically prohibited by law.
Per Locke J.: The actions of the respondents were wholly unlawful and criminal in their nature. The Provincial Police Force Act and the Magistrate's Privilege Act had nothing to do with the substantive questions raised in the action, and Art. 88 of the Code Civil Procedure was equally inapplicable. The appellant was entitled to recover substantial general damages.
Per Cartwright and Fauteux JJ.: There was nothing to suggest that any violation of the law had been, was actually or about to committed by anyone.
By no text of law has it been sought to justify the authority assumed, in the circumstances, by the respondents. In itself, the intervention the respondents was, at the least, unlawful if not criminal, and they must answer the damages resulting therefrom. operation the Magistrate's Privilege Act is conditioned upon the existence of good faith and, in its substance, does not constitute a bar to the responsibility decreed under Art. 1053 C.C.
The provisions this special law imply, on the contrary, the application of Art.
Per Abbott J.: The respondents were acting in good faith and in the execution of their functions when they entered the appellant's house, as the meeting being held there was a public meeting advertised as such.
When they dispersed this meeting, however, they could no longer be considered in good faith and in the execution of their functions. They had no right to disperse such a meeting, and the Magistrate's Privilege Act provided them with no defence either on the merits or from a procedural point of view. The appellant was, therefore, entitled to moral damages.
et at ....... ery-Standard of Proof required in Ontario -Criminal Conversation-Admission one alleged adulterer not in presence of other- Admissibility against latter where no objection raised him. In a suit by a husband for divorce, joined with a claim against the co-respondent for damages for alienation of his wife's affections and for criminal conversation, the husband testified his wife had admitted to him having committed adultery with the co-respondent. allegation was denied by both defendants. DIVORCE-Concluded
The jury found adultery to have been committed and assessed damages.
appeal it was contended that the trial judge had not properly instructed the jury as to the degree of proof necessary to prove adultery; that in an action for criminal conversation an even heavier onus rested upon the plaintiff than in an.action for divorce; that the trial judge should have instructed the jury that any admission, even if made, was no evidence against the co-respondent, and, in any event, that was not evidence of the truth of the statement allegedly made.
Held: 1. That the standard proof required in proceedings brought under the Divorce Act (Ontario)
R.S.C. 85, as to the commission a marital offence, where no question the legitimacy of offspring arises, is the same as in other civil proceedings, that is a preponderance of evidence, and the trial judge's charge complied with the rule laid down in Smith v. Smith and Smedman
2 S.C.R. 312. 2. That since counsel for the co-respondent had not objected that evidence as to the alleged admission by the wife was not admissible as against his client, he could not be heard on appeal to complain of non-direction on that point.
Nevill v. Fine Art and General Insurance
A.C. 68 at 76 applied.
Kerwin C.J. and Cartwright
J.:
No substantial wrong or miscarriage of justice occurred in connection with the alleged admission of the wife.
Per Locke J.:
In view the position adopted by counsel for the co-respondent at the trial it was not open to him to complain of the admission of the evidence.
Scott v. Fernie
Lumber Co. B.C.R. at 96 approved in Spencer v. Field S.C.R. 36 at
BoyKowycH v. BoYKowyci .....
Divorce - Obtained husband - Adultery of wife-Whether husband can oppose demand of wife for partition common property-Civil Code, Art. 209.
The husband, who obtained a Canadian parliamentary divorce on the ground the adultery of his wife, cannot, in an action subsequently instituted by the latter for partition of the common property, allege in defence the fact this misconduct in order to have a judgment declaring, under Art. 209 C.C., that she has for that reason forfeited her right to demand partition. Such a divorce dissolves the juridical tie of marriage and this dissolution operates dissolution community
EVIDENCE -Divorce-Evidence-Adultery
-Standard of Proof required in Ontario
-Criminal Conversation-Admission one alleged adulterer not in presence of other- Admissibility against latter where no objection raised him. In a suit by a husband for divorce, joined with a claim against the co-respondent for damages for alienation his wife's affections and for
EVIDENCE-Continued conversation, the husband testified his wife had admitted to him having committed adultery with the co-respondent. allegation was denied by both defendants. The jury found adultery to have been committed and assessed damages. appeal it was contended that the trial judge had not properly instructed the jury as to the degree of proof necessary to prove adultery; that in an action for criminal conversation an even heavier onus rested upon the plaintiff than in an action for divorce; that the trial judge should have instructed the jury that any admission, even if made, was no evidence against the co-respondent and, in any event, that was not evidence of the truth of the statement allegedly made. Held: 1. That the standard of proof required in proceedings brought under the Divorce Act (Ontario) R.S.C. 1952, 85, as to the commission a marital offence, where no question the legitimacy of offspring arises, the same as in other civil proceedings, that is a preponderance of evidence, and the trial judge's charge complied with the rule laid down in Smith v. Smith and Smedman 2 S.C.R. 312. That since counsel for the co-respondent had not objected that evidence as to the alleged admission the wife was not admissible as against his client, he could not be heard on appeal to complain of non-direction on that point. Nevill v. Fine Art and General Insurance Co. A.C. 68 at 76, applied. Kerwin C.J. and Cartwright J.: No substantial wrong or miscarriage justice occurred in connection with the alleged admission of the wife. Per Locke J.: In view of the position adopted by counsel for the co-respondent at the trial it was not open to him to complain of the admission of the evidence. Scott v. Fernie Lumber B.C.R. at 96 approved in Spencer Field S.C.R. 36 at 42. wycn v. BoYowycH............... 2.-Discovery, Examination for-Witness -Privilege against self-crimination-Validity of s. 5, Evidence Act (B.C.) Order 31A, r. 370 matter of practice and procedure- Application of common law rule-Evidence Act (B.C.)-Evidence Act (Can.)-Court Rules of Practice Act (B.C.) ss. 2, 4(8). 5 of the Evidence Act, R.S.B.C. 1948, provides: "No witness shall be excused from answering any question upon the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person: Provided that if with respect to any question the witness objects to answer upon the ground that his answer may tend to criminate him or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this section the witness would therefore have been excused from answering the question, then, although the EVIDENCE-Continued witness shall be compelled to answer, yet the answer so given shall not be used receivable in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place other than a prosecution for perjury in giving such evidence."
In an action for damages for fraud and deceit each of the individual appellants and an officer of the United
Distillers of Canada, Ltd., the appellant corporation, on their respective examinations for discovery refused to answer certain questions, or to produce certain documents, on the ground that such answers might tend to criminate him.
Upon an application for an order directing the individuals to answer the questions and produce the documents in question the general objections were upheld by Clynne J.
but his order was reversed by the majority of the Court of Appeal for British Columbia. Held: (Affirming the Court of Appeal):
1. Examinations for Discovery under Order
31A, r. 370 of the British Columbia
Supreme Court Rules are covered by 5 of the Evidence Act. This rule does not go beyond the power contained in 2 of the Court Rules of Practice Act, R.S.B.C.
1948,
293, and its predecessors, and
4(3) thereof enacts that r. 370 is a matter of practice and procedure. "Criminal proceedings" in of the Evidence
Act not confined to what are known as provincial crimes.
Staples v. Isaacs and
Harris 55 B.C.R. 189 overruled.
further, on a point taken for the first time in this court, that of the Evidence Act is ultra vires the Provincial Legislature as the proviso may not be disregarded.
common law rule that no one was obliged to criminate himself applies as well to an officer taking the objection on behalf of his company as to an individual litigant.
both cases, however, the objection must be made on the oath of the person under examination that to the best of his belief his answers would tend to criminate him, or the company, as the case may be. He must pledge his oath in his belief that his answers to particular questions seriatum would so tend.
Power v. Ellis Can.
S.C.R. 1 applied.
The officer may claim the privilege on behalf of his company, either as to answers to questions or as to documents, but the latter cannot hide behind any claim advanced by the on his own behalf in respect of documents.
If he is put forward as the proper person on behalf of a company to make an affidavit on production he is not entitled to make a claim for personal privilege in respect
Husband and wife-Real Property-Property claim wife raised non-support issue-Relevancy wife's behaviour - Admissibility of husband's evidence-Trial judge alone- Question of Fact-Principles governing appellate court.
The respondent in an action
EVIDENCE-Concluded against her husband alleged that certain lands had been purchased with moneys earned by their joint efforts under a parol agreement whereby she was entitled to a one-half interest; that they had married in and that he deserted her in 1941 and had since refused to support her. At the trial questions were put to her in crossexamination, which might tend to indicate that she had committed adultery and had been intimate with several men, which she denied.
The trial judge rejected the evidence of the respondent, accepted that of the appellant and dismissed the action. The Court of Appeal for Manitoba by a unanimous judgment reversed the trial judge and held that the questions put the respondent in cross-examination were prohibited by 8 of The Manitoba Evidence Act and were irrelevant as the case was not one in which the character of the parties was involved:
that the appellant was bound by the respondent's denials and his evidence in contradiction was improperly allowed in and that, as it was impossible to ascertain to what extent the trial judge may have been influenced in his findings by the inadmissible and irrelevant evidence adduced, the advantage of his having seen and heard the witnesses was not sufficient to explain or justify his conclusion. 1. That the Statement of Defence put issue the question non-support and was so treated by both parties. The behaviour of the wife thus became a relevant matter to be considered and the appellant's evidence, admitted without objection, was properly admitted. That upon this issue the respondent might properly be crossexamined as to her association with other men, restricted however by the provisions of 8 of The Manitoba Evidence Act. That even if the questions asked in cross-examination offended against the section could not have affected the judgment the trial judge in deciding upon the veracity the parties in view of the husband's evidence and of the admitted fact that the wife had been living in adultery and had given birth to an illegitimate child. 4. That the questions were answered by the wife without objection and it was for her to claim the protection the section. Hebblethwaite v. Hebblethwaite L.R. P & D 29. That the questions to be determined were questions of fact and there was nothing in the record to indicate that the trial judge in reaching the conclusion that the respondent's story was not worthy credence acted upon any wrong principle or was influenced by irrelevant matter. SS. Hontesroom v. SS. Sagaporack A.C. 37 at 47; Yuill v. Yuill A.C. at Powell v. Streathent Manor Nursing Home A.C. 243 and Watt or Thomas v. Thomas A.C. 484 at 487-8 referred to. Decision of the Court Appeal for Manitoba (1954) W.W.R. (N.S.) 1 reversedand judgmentof trial judge restored. Immigration
Ha- Entry Canada
Visa irregular-Immigrant detained then freed bail-Whether order of deportation can reviewed-Whether immigrant entitled writ of habeas corpus-Immigration Act, R.S.C.
1927, 93, ss. 3 (i), 19, 23, 40-Code
Civil Procedure, Art. 1114 ............
HUSBAND AND WIFE - Husband and wife-Claim for possession of matrimonial home - Discretion of trial judge - Jurisdiction of Supreme Court of Canada-The
Married Women's Property Act,
R.S.O.
1950, 223, s. 192-Supreme Court Act,
R.S.C. 1952, 259, ss. 41, 44. In an action by a husband to recover possession of the matrimonial home and damages for mesne profits, the Court directed trial the following issues: (a) the right of the husband to an order for possession;
(b) his right to payment for use and occupation by the wife; the wife's right to alleged arrears under the provisions of a deed separation. The trial judge held as to issue
(a) that the husband was not entitled to the order but that so long as the wife continued in occupation she was to pay all taxes, maintain adequate insurance and make all necessary and reasonable repairs and assert no claim for alimony, and that their respective claims under issues (b)
failed.
dismissed the husband's appeal as to the disposition of issues (a) and (b).
There was no cross-appeal as to issue (c). The husband appealed and motion was made to quash on the ground, inter alia, that the judgment from which the appeal was sought to be taken was made in the exerof judicial discretion and that, reason of the provisions of 44 of the
Supreme Court Act, R.S.C. 1952, c, 259, no appeal lies to that Court. The motion and the appeal were heard together. Held:
1. That issue (a) raised a question between husband and wife as to possession
No question title arose and the trial judge's judgment was given in the exercise of the judicial discretion conferred upon him by of the Married
Women's Property Act, R.S.O. 1950, c. 223.
It was not made in proceedings in the nature of a suit in equity and was one as to which under the terms of 44 of the
Supreme Court Act no appeal lies to that
Court. Minaker v. Minaker S.C.R.
distinguished. Lee v. Lee 1
E.R. at 1300, Hutchinson v. Hutchinson and Stewart v. Stewart E.R.
at 793 and 813 at 814 referred to.
That since of the Supreme Court
Act expressly made subject to 44, leave to appeal could not be granted.
That the Court had jurisdiction to entertain the appeal so far as it related to issue
(b) as the trial judge in dealing with was not called upon to exercise the discretionary power conferred upon him s. of the Married Women's Property Act
HUSBAND AND WIFE-Concluded but to apply the law to ascertained facts. If the appellant's claim was regarded as one for mesne profits, it could not be entertained. If treated as a claim in contract or an implied agreement to pay reasonable rent, the trial judge's finding on the facts, concurred in by the Court of Appeal, should not be disturbed. Appeal quashed as to issue (a) and dismissed as to issue (b). Decision the Court of Appeal for Ontario O.W.N. 548, affirmed.
Immigration Habeas Corpus - Entry in Canada-Visa irregular-Immigrant detained then freed bail-Whether order or deportation can reviewed-Whether immigrant entitled writ of habeas corpus-Immigration Act, R.S.C. 1927, 93, ss. 3(i), 23, 40- Code of Civil Procedure, Art. 1114. appellant, an Italian subject, was allowed to enter Canada as an immigrant. He had obtained what purported to be a visa from a Canadian officer in Naples, authorized to issue such documents, but, in fact, the issue that visa had been irregular and the usual medical and other examinations required an immigrant by the Immigration Act, R.S.C. c. 93 and regulations thereunder had not taken place. Subsequently, a complaint, under 40 of the Act, to the effect that he was a prohibited immigrant under 3(i) of the Act, was lodged.
He was taken into custody and appeared and was represented by counsel before a Board of Inquiry, who ordered that he be detained and deported. He was released on bail and undertook writing to report in person once a week to an immigration officer.
Upon appeal, the order of the Board was confirmed by the Minister.
While thus at liberty, appellant obtained the issue a writ habeas corpus ad subjiciendum. The writ was quashed by the trial judge and this judgment was affirmed by a majority should dismissed.
Per Taschereau J.: When, as was the case here, the order the Board of Inquiry, confirmed by the Minister, seems to have been made accordance with the provisions of the Immigration Act, the courts cannot intervene: 23 of the Immigration Act. courts cannot decide if in fact an immigrant or not a desirable person. Per Taschereau and Abbott JJ.: The legality of the appellant's entrance to Canada was subject to question at any time until he had acquired Canadian domicile, and, consequently, his contention that because he was allowed to land in Canada on the strength of a visa and a certificate of medical examination assumed to have been legally issued, no complaint to the Minister could be validly laid under 40 of the Act, cannot be sustained.
Immigration Canada a privilege and not a matter right. In this case, it was established to IMMIGRATION-Concluded the satisfaction of the Board of Inquiry that the requirements of the Act regulations had not been met.
Furthermore, by virtue of 23 of the Act, it clear that where a board of inquiry has taken evidence in good faith and has otherwise complied with the provisions of the statute, as was done here, a court has no jurisdiction to substitute its judgment for that of the board. Per Locke, Cartwright and Fauteux JJ.: The writ of habeas corpus, by its terms and its very nature, inapplicable to a situation where the person is at liberty on bail and is not confined restrained his liberty. The language
Article 1114 of the Code of Civil Procedure is to be construed in the same manner as similar language in the statutes to which it owes its origin.
In the present case, the immigration officer to whom the writ was directed had neither the custody control of the appellant, either at the time the writ was issued or when it was served or when he made his return to the writ and the contention that he was restrained of his liberty within the meaning of Art.
1114 C.P.C. was without foundation. Consequently, the appellant was not entitled to the remedy of a writ of habeas corpus and as no proceeding by way of certiorari was taken, this was fatal to the appeal.
Reg. v. Cameron, 1 C.C.C. and de Bernonville v. Langlais, Q.R.
S.C. 277 disapproved.
Immigration -Deportation
Order - Meaning of "ethnic"-"Asian"-The Immigration Act, R.S.C. 1952, 325, s. 61(g)- The Immigration Regulations, 1958, s. 20(2).
Section of the Immigration Act,
R.S.C. 1952, 325 authorizes the making of regulations respecting the prohibiting or limiting of admission of persons into
Canada by reason nationality, citizenship, ethnic group, class or geographical area of origin. Regulation 20 (2) provides that subject to the provisions of the Act and to the regulations authorized by it, the landing in Canada of any "Asian"
limited to certain classes, none of which embraced the present appellants.
latter, who were born in Trinidad, where their parents and grandparents were also born, appealed from an Order Detention and Deportation made by a Special Inquiry
Officer under the provisions of the above
Held: That the dictionary meaning of the word "ethnic"
applicable under
Regulation 20 was: "pertaining to race;
peculair to a race or nation" and the Order was authorized by the regulation and the regulation itself was within the statute.
Decision of the Court of Appeal for Ontario
O.R. 784, affirming the judgment
Aylen J., affirmed. v. A.G.
Insurance
-Registered letter cancelling policy sent by insurer-Letter not received insured- Letter returned to insurer-Whether policy effectively cancelled. Condition of an automobile insurance policy provided that "This policy may be cancelled by the Insurer giving fifteen days' notice writing by registered mail, or five days' notice personally delivered, and refunding the excess of paid premium . .. Such repayment shall accompany the notice, and such case, the fifteen days shall commence to run from the day following the receipt of the registered letter at the post to which it addressed".
Condition 15 provided that "Written notice may be given to the insured by letter personally delivered to him or by registered letter addressed to him at his last post the Insurer respondent took action in warranty against his insurer, the appellant, following a collision involving his automobile. appellant denied liability on the ground that it had cancelled the policy by sending to the respondent by registered mail a 15-day notice in writing of cancellation. cheque representing the correct refund due to the respondent was enclosed with the notice.
The evidence disclosed that the letter was properly addressed to the respondent, that it was never received him or delivered to his address, and that was eventually returned to the appellant who filed it unopened.
No other action was taken by the appellant up to the time the claim.
The trial judge held that the policy was cancelled, but this judgment was reversed by the Court of Appeal. Cartwright J. (dissenting): That the appeal should be allowed as the policy was effectively cancelled. The conditions in the policy were unequivocal in providing for both the delivery of notice personally or means of registered post.
The risk actual delivery by the post after the letter reached destination was placed upon the insured.
Per Cartwtght J. (dissenting)
: The receipt of the letter at the postal station was not a receipt "at the post to which it was addressed", since it was not addressed to such post It was addressed to a street number where it was not received.
Insurance - Sickness - Total disability-Whether insured confined to his house. The respondent sought to recover under a contract of accident and sickness insurance on the ground that during the period in question he was totally incapacitated and was "n6cessairement, strictement et continuement retenu dans la maison", within Clause of Part 4 of his policy. The evidence disclosed that he was totally incapacitated during that time and that, although confined to the house, he made numerous visits to his doctor on the occasion of which he also visited each time the INSURANCE-Concluded offices of his insurance company; that he went out each day for a short walk; that he was able to drive his car, although he did not do so in fact; that he regularly visited a store nearby and called at least once at the office of his lawyer. Both the trial judge and the majority in the Court of Appeal held that he was entitled to the benefit of the clause.
should be allowed. The words "n6cessairement, strictement et continuement retenu dans la maison" in the clause must be given the natural, ordinary meaning which they bear in relation to the context, and on the facts established the respondent was not entitled to recover under that clause.
Otherwise, Clause B of Part 4, dealing with the case when the insured is not confined to the house, would be meaningless and inoperative.
Pleading - Practice-Mutually inconsistent remedies- Judgment on covenant pay in a mortgage bar to judgment for money had and received thereon. The respondent sued her husband, the appellant, and the mortgagor in a mortgage of which she was the mortgagee, to secure an accounting of moneys she alleged had been paid by the mortgagor to her husband on account of the mortgage, the purported discharge of which she alleged was a forgery. She also claimed a judgment for the amount of the mortgage and accrued interest against the defendants or such as should be found liable. The appellant pleaded that he himself had advanced the moneys and that the respondent had signed the discharge and received the proceeds which she had invested in a rooming house.
By way of counter-claim he alleged that in consideration of the discharge of the mortgage by the respondent he had advanced her the money to purchase an interest in the rooming house and, in the alternative, that if he owed her anything on account of the mortgage then she held such interest subject to a resulting trust in his favour. The mortgagor pleaded that the mortgage was a building mortgage that had been obtained from the appellant and that all dealings with respect to it had been with the appellant and all moneys advanced had been repaid to him and that the discharge of the mortgage had been delivered by him. The trial judge found that it was the intention of the appellant to make a gift of the mortgage and the moneys thereby secured to the respondent and that her purported signature to the discharge was a forgery. He directed that the respondent recover from the appellant and the mortgagor the amount advanced on the mortgage and interest; that the mortgagor be entitled to recover by way of indemnity from the appellant any amount the mortgagor might be called upon to pay the judgment, and that the counter-claim be
In an appeal to the Court of
JUDGMENT-Concluded
Appeal for Ontario the appellant raised no question as to the judgment for indemnity in favour of the mortgagor and on appeal to this Court did not make the mortgagor a party to the appeal. Held: That under the circumstances this Court has no jurisdiction to interfere with the respondent's judgment against the mortgagor, or with mortgagor's judgment for indemnity against the appellant, but that the respondent could not have judgment against both the mortgagor and the appellant.
By taking judgment against the mortgagor she had of necessity asserted as against him that the moneys paid by him to the appellant were not paid on account of the mortgage, and she could not be heard to assert as against the appellant that they were so paid. Allegans contraria non est audiendus. M. Brennen & Sons Mfg. Co. v. Thompson 33 O.L.R. 465 at 469 approved. JURISDICTION - Jurisdiction Judgment for less than $500 in favour Her
Majesty - Automoible accident - Exchequer Court Act, R.S.C. 1927, 34, ss. 82, 88..........................
Jurisdiction - Creditor $430 seeking to have conveyance debtor to wife set aside-Conveyance made through intermediary-Action paulienne-Test this Court's jurisdiction.............. Jurisdiction - Extradition - Refusal of judge issue warrant of committal under Extradition Act, R.S.C. 1952, 822, s. 18-Whether judgment within Supreme Court Act, R.S.C. 1952, 259....... 4.- Taxation, Municipal- Jurisdiction-Claim for refund of Business Tax-Plant closed strike-Office Staff employed-Whether manufacturing business carried on-The Assessment Act, R.S.O. 1950, 24, s. 124 (e)...............
Husband and wife - Claim for possession of matrimonial home-Discretion of trial judge-Jurisdiction of Supreme Court of Canada-The Married Women's Property Act, R.S.O. 1950, 223, s. 12- Supreme Court Act, R.S.C. 259, ss. 41, 44......................... Mechanic's lien - Action subcontractor to enforce trust under s. 19 of the Mechanic's Lien Act, R.S.B.C. 1948, 205 -Meaning and applicability of s. 19- Assignment of book debts contractor to creditor-Whether moneys received contractor subject trust-Principle of distribution-Jurisdiction .................
See LIEN. Labour - Trade Unions - Collective Bargaining-Whether a group, a fractional part of a larger unit, already certified, the majority of whom favour continuance of existing bargaining authority, may be certified-Industrial Conciliation and
2.- Labour - Workmen's Compensation
-Whether injuries arose out of employment
-Workmen's
Compensation Act, R.S.N.B,
1952, c. 255, s. 6. The appellant together with his truck and tractor was engaged by his two sons at a fixed rate per day to truck supplies and do hauling at their lumber camp, they to supply the gas and oil. The tractor was to be kept at the site of the work. One of the sons while using the tractor damaged it and told the appellant to take it to a garage for repairs or buy a new one. The appellant took the tractor home on his truck and to a garage the next day. There he decided to buy a new one and had the tracks of the old one transferred to it. While trying it out he was injured. Held: Rand and Cartwright
JJ. (dissenting)
) that the appellant elected in his own interest to make the purchase and there was no basis upon which it could be said that the accident arose out of his
"employment" within the meaning of s. 6 the Workmen's
Compensation Act,
R.S.N.B. 1952, c. 255.
Reed v. Great
Western Ry. Co. [1909] A.C. 31, applied.
Per Rand and Cartwright JJ. (dissenting)
:
The significant fact was that the sons were to pay for the use of the tractor throughout the operation.
It was to remain on the work and the father was not exclusively to operate it. The damage was done by the employer and the instruction to have it repaired or to get a new one was of primary importance in interpreting what followed.
In obtaining the repairs or their substitute, the father was at some time acting within his employment. Treating his driving home and to the garage the next day as for his own purposes, when he reached the latter place, he had clearly re-entered upon what he was to do under instructions. In the broad perspective of the circumstances, the occurrence was caused by the work and in the course of it.
BOARD........
MANDAMUS-Mandamus-Contract between member and Agricultural Co-operative
Society-Member expelled from Society for breach of contract-No allegation in pleadings that member was not heard or summoned blfore expulsion-Whether court can act proprio motu-Co-operative Agricultural
Association Act,
R.S.Q.
1941, c. 120, ss.18,14......................
MASTER AND SERVANT-Master and servant-Contract-For Fixed Term-Termination without cause-Damages. appellant company and the respondent, its general manager, entered into a written contract whereby the company agreed to the manager's retirement subject to its right to retain the benefit of his business connections and to call upon him for such engineering and business advice as was consistent with the respondent's enjoyment of a life of reasonable leisure and his right to practise his profession.
The date of retirement was fixed at Dec. 31, 1946, and the respondent's services were to be available and his salary paid to December, 1953. The appellant having purported to cancel the agreement, the rejected the repudiation and sued for a declaration that the agreement was valid and binding and for damages. That the agreement was a valid and binding contract whereby the respondent was to furnish the appellant with the described services when called upon to do so. The having complied with the obligation, if any, to mitigate his loss, was entitled to damages.
Per Locke J.: The respondent's rejection of the appellant's attempted repudiation continued the contract in force (Heyman v. Darwins Ltd. [1942] A.C. 356 at 361) and since the contract was not simply one of hiring and service the respondent was entitled to rerecover the amounts payable under its terms up to the date of trial and to a declaration that as of that date the agreement was valid and subsisting.
MECHANIC'S LIEN - Mechanic's lien -Action by sub-contractor to enforce trust under s. 19 of the Mechanic's Lien Act, R.S.B.C. 1948, c. 205-Meaning and applicability of s. 19-Assignment of book debts by contractor to creditor-Whether moneys received by contractor subject to trust-principle of distribution-Jurisdiction. The appellant claimed an accounting of moneys claimed to be held in trust by the respondent under s. 19 of the Mechanic's Lien Act, R.S.B.C. 1948, c. 205, and for judgment for any amount due. A sub-contractor, which had a contract from the general contractor to install heating plants in four schools being built by the general contractor, had engaged the appellant to supply and install the automatic heating controls. respondent was the principal supplier of materials engaged by the sub-contractor for this contract and earlier contracts. Before the completion of its contract for the schools, the sub-contractor, which was then indebted to the respondent in the sum of $19,278.41, assigned to the respondent its present and future book accounts as security for that debt.
The general contractor was notified of the assignment and thereafter made payments by cheques payable jointly to the sub-contractor and Both then would decide MECHANIC'S LIEN-Continued what accounts of the sub-contractor should be paid, and the remaining moneys were applied on account of the indebtedness the sub-contractor to the
The appellant, which had lost its right to a mechanic's lien against the schools by not filing within the prescribed time, obtained judgment against the sub-contractor for the balance of moneys owed it.
Subsequently the sub-contractor went into liquidation.
The trial judge found that the sub-contractor was a sub-contractor within the meaning of that the assignment secured only the specific debt, that the debt had been extinguished and that subsequent moneys subject to the trust of had been received by the
The Court of Appeal by a majority, reversed this judgment.
The appeal should be allowed and the judgment at trial restored but modified.
Per Rand, Kellock, Estey and Fauteux JJ.:
The appellant was cestuis que trust of the moneys received by the sub-contractor.
The word "received" in 9 includes money paid to an assignee.
Otherwise the entire purpose of could be nullified by an assignment contemporaneous with the
But these payments, whether direct or to an assignee, remain subject both to as respects liens and to 19 as to the beneficiaires the trust.
No assignment can destroy the rights created by in the moneys paid.
However, the moneys are not required to be distributed on a pro rata basis. The sub-contractor has a discretionary power and his obligation is satisfied when the moneys are paid to persons entitled to the trust, whatever the division. In the present case, the respondent was properly liable as for a breach of trust to the extent of trust moneys received beyond the debts arising out of the contracts considered severally and applied to other debts. To the amount of that excess it is liable to the appellant for any balance that may be owing it the same contract; and the right to have this determined and to recover judgment for any amount so found to be due can be enforced in any appropriate court of the province. Per Locke J.: Once the specific debt for which the assignment was given was extinguished, the sub-contractor was entitled to all further moneys payable in respect of its sub-contract. The assignment secured only that debt and not any further liability incurred thereafter by the subcontractor to the respondent. The moneys received during the life of the assignment were not received by the sub-contractor but were the property of the respondent and therefore not subject to the trust.
There is no ambiguity in s. 19, and while it creates difficulties to contractors seeking credit and there no direction as to the apportionment of the fund, this is not sufficient to say that the rights can only be exercised by those who have a right of lien upon the work; the section was
MECHANIC'S LIEN-Concluded apparently designed to provide further security. does not apply to the rights given to a creditor by Claims under are for the recovery of moneys declared to be trust funds and are recoverable by action in the Supreme Court of British Columbia.
The Laws Declaratory Act, R.S.B.C. 1948, and Castelein v. Boux (1934) 42 Man. R. 97 referred to. MINERALS-Real Property-Land Titles -Mines and Minerals-Unauthorized entry Registrar on Certificate of Title-Application cancel "Minerals in the Crown" and substitute "Minerals Included"-The Land Titles Act, R.S.C. 1953, 108, (1), (10), 65, 66, 82....................
MUNICIPAL CORPORATION - Municipal Corporations-Power to pass by-laws for licensing, regulating and governing taxicabs-Taxicab licensed in one municipality parking on private property in other municipality-Applicability and validity of by-law purporting to prohibit same-The Municipal Act, R.S.O. 1950, 248, 406(1). The appellant, a taxicab owner and driver, was convicted having violated 42(b) of By-Law No. 12899 of the Township York, by parking his cab on private property in the municipality for the purpose of obtaining a fare.
held a taxicab licence from a different municipality.
The by-law was passed under the authority of 406(1) of the Municipal Act, R.S.O. 243, which provides for the licensing, regulating and governing of owners and drivers of cabs, etc. The appellant contends that 42(b) of the by-law applies only to the owners or drivers licensed by the municipality using cabs in operations which could not lawfully be carried on without such a licence and alternatively, that if it applies to the appellant it is ultra vires of the municipality.
Held (Kerwin C.J. dissenting): that the appeal should be allowed and the conviction quashed, the costs the appellant throughout to be paid the informant.
Per Estey, Locke, Cartwright and Fauteux JJ.: The judgments in The Commodore Grill v. The Town Dundas O.W.N. 408 and Rex rel Stanley v. De Luxe Cab Ltd. 4 D.L.R. 683, do not support the conclusion of the Court of Appeal that although the municipality had no power to require the appellant to obtain a licence it could validly regulate his conduct in regard to his cab so long as the cab was physically situate within the limits of the municipality. its proper construction, 42(b) intended to apply to owners of cabs although neither licensed nor required to be licensed by the municipality.
However, to the extent that it prohibits the owner of a cab, Concluded who does not require a licence, from permitting the cab to stand on private lands within the municipality, 42(b) is ultra vires of the municipality. It would require clear and explicit words to confer power on the municipality to prohibit the owner of such a cab from allowing it to stand on private property in the municipality whether owned by him or by some other person.
The general words of 406(1)
of the Municipal Act are not apt to confer so unusual a power.
Per Kerwin C.J.
(dissenting): 42(b) applies to owners of motor vehicles used for hire although neither is licensed nor required to be licensed by the municipality, and is intra vires the municipality. The terms of 406(1) of the
Municipal Act are wide enough to authorize municipality provide that no owner or driver of any cab, when not actually in use for hire, shall permit the same to stand on any public highway or any private lands owned either by the owner or driver or by anyone else.
municipality is not attempting to restrict the use of private lands as such. Ross v.
Cemetery Companies - Powers - Municipal By-Laws, application thereto- Cemetery Companies Act, R.S.B.C. 1948, c. 59-Municipal Act, R.S.B.C. 1948, 232, s. 58 (78), (74)....................
NEGLIGENCE - Negligence - Motor Car
-Collision-Both drivers at fault-No clear line between fault of the one or the other- Apportionment-The Negligence Act, R.S.O.
1950, 252, s. 5 applied-The rule in
Davies Mann, considered ..........
2.-Automobiles--Oncoming vehicles-Collision while passing-Claim and Counterclaim-Conflicting evidence-Negligence - Trial judge unable make any finding as liability-Dismissal of claim and counterclaim..........................
...
3.- Automobiles-Head-on collision on of hill-Both on wrong side of road-Gratuitous passenger-Whether gross negligence- Vehicles and Highway Traffic Act, R.S.A.
1942, 275, s. 104 (1) ..............
4.- Negligence
Contributory Negligence
-Running down action-Traffic Light Signals-Right to proceed subject to common law duty. Provisions enacted to facilitate and make safer the movement of pedestrian and vehicular traffic on the highways and public streets by means of regulatory traffic lights are supplementary to the common law duty that rests on all persons to exercise due care. The right to proceed on a "go" signal, whether a green light
NEGLIGENCE-Concluded a pedestrian "walk" signal , is not an absolute right but is qualified by the common law duty to exercise due care. Where, as in the present case, a pedestrian proceeds on a "walk" signal without looking to see if any traffic may be proceeding contrary to traffic signals and injured, he may properly be held to be liable for contributory negligence.
Here, at the intersection of two streets where vehicular traffic was controlled by green, yellow and red signals and pedestrian traffic by "wait" "walk"
signals, while awaiting the "walk"
signal saw a bus stopped west of the intersection. He proceeded on the' "walk" signal and, after entering the cross-walk, was knocked down by the appellant's bus.
The trial judge held the bus driver guilty of very great negligence;
that entitled to assume vehicular traffic would obey the traffic regulations and that the respondent's failure to again look for approaching traffic before proceeding did not, in the circumstances, amount to contributory negligence. The Court of Appeal for British Columbia by a majority judgment ordered a new trial. Held (Cartwright J. dissenting in part): That the negligence of the bus driver was the direct cause the accident but that the failure the respondent to again look to his left before proceeding on the "walk" signal constituted a failure to take reasonable care and in the circumstances amounted to contributory negligence.
Held: Also, that the appeal should be allowed and the judgment at trial restored with the variation that 80 per cent of the fault be apportioned to the appellant and 20 per cent to the respondent. Cartwright J. (dissenting) would have set aside the order of the Court of Appeal and restored the judgment at trial. Applying Glasgow Corporation v. Muir A.C. 448 at 457, he was of opinion that it had not been established that the trial judge erred in concluding that the respondent in the circumstances was not guilty contributory negligence.
Toronto Ry. Co. v. King A.C. 260 at 269 followed in Swartz v. Wills S.C.R. 628; Chisholm v. London Passenger Transport Board 1 K.B. 426; Boxenbaum v. Wise S.C.R. 292;
King v. Anderson S.C.R. 129; London Transport Board v. Upson A.C. 155;
Nance v. B.C. Electric Railway Co.
A.C. 601; Walker v. Brownlee D.L.R. 450; Johnston National Storage v. Mathieson D.L.R. 604, considered. B.C. Ry. PATENTS-Patents-New process for manufacture of aldehyde-Application for patent new process and for patent to product produced thereby-No novelty in product- The Patent Act, 1935, S. of 1985, 32, ss. 2 (d), 26(1), 35(2), 40(d). The appellant invented a new process for the manufacture of aldehyde and in his application for a PATENTS-Continued patent for the process also claimed a patent to the product produced by such process.
Held: There being nothing new about the product, the appellant was not entitled to obtain a patent therefor even on the basis of a process dependent product claim.
Von Heyden v. Neustadt Ch. D. 230;
Auer Incandescent Light Mfg. Co. v. O'Brien
5 Ex. C.R. 243; Toronto Auer Light Co.
Ltd. v. Colling 31 0.R. 18. Per Kerwin C.J.
and Taschereau, Locke and Cartwright
JJ.: S. 41 (1) of the Patent Act, S. of C.
1935, c. 32, prohibits a claim for a substance for which a claim might otherwise be made:
it does not authorize a claim for any substance which is not authorized by the other provisions of the Act. Per Rand J.:
The prohibition applies to a new substance alone but allows one for that substance as produced by the new process.
special protection afforded the latter by s-s. (2) would seem to confirm the view that both the substance and process are to be new, but at least the substance must be new, and no inference can. be drawn from it of a process dependent product claim where the product is old.
&
PATENTS...........................
Patents - Infringement - Claims - Language of claims differing from that specification-Applicability of doctrine mechanical equivalents.
owner of the Canadian patent to a signal device known as a liquid level indicator, designed for indicating the liquid level in fuel tanks, claimed the purpose of its invention was to provide a continuous audible signal until the liquid introduced into a tank reached a predetermined level, and that it accomplished this by a whistle which commenced to operate as soon as the liquid was introduced and continued until the latter reached a point predetermined by the extension of a tube into the tank.
The whistle was stopped by the trapping of the lower end of the tube by the rising liquid.
The respondent's device was designed for the same purpose and the audible device was also provided by means of a whistle but the vented gas went from the tank directly to the opening in the whistle. No dependent tube was used and the whistle was stopped by means of a cork suspended below the level of a casing by a rod. The rising liquid caused the cork and the rod to float upward until it covered the lower opening in the whistle and thus shut off the sound. In the Exchequer Court,
Cameron J. held that the dependent tube constituted an integral and essential part of the appellant's invention; that the doctrine of mechanical equivalents did not apply and that the appellant had failed to establish an infringement. Held: (Rand
J. dissenting) that for the reasons given by the trial judge, the appeal should be dismissed.
Per Estey J. Throughout the appellant contended that a dependent tube
PATENTS-Concluded projecting into the fuel tank was not an essential part of its invention and that, as in all other essentials the respective inventions were identical, an infringement had been effected. Upon the evidence it would seem that in any practical sense the dependent tube was essential to the efficient operation of the invention.
A reading of the specification as a whole not only did not suggest any alternative meaning but in fact, .supported the finding of the trial judge that "a second vent passage of smaller capacity" in claim 9 meant the dependent tube. Per Rand J. (dissenting)- Although only the tube that extended into the tank was described as the means of signalling the required level, that circumstance could not be taken as intending to embody the tube as the essential means of the device for that purpose. The tube or the float being obviously means of completing the purpose of the invention, the latter as defined in claim 9 was infringed. The tube not being essential an element in the combination, the use of the float was that of a mechanical equivalent. YORK CO... 518 PETITION OF RIGHT - Petition right-Sale of land to Crown-Crown's liability for municipal taxes-Former owner claiming reimbursement for taxes paid. On April 27, 1949, by a deed of sale, to which was attached the order-in-council authorizing the purchase, the Crown bought a property in Montreal from the appellant. The deed provided that the Crown would pay all the taxes "A compter du ler avril courant (1949)".
The order-in-council authorized the payment of the purchase price "together with such amount as may be legally due by the Crown in respect of taxes or other adjustments . . .". Crown reimbursed the appellant one twelfth of the municipal taxes for the year 1948-49. In October, 1949, the municipality claimed payment from the appellant of the municipal taxes which were due for the year commencing May 1, 1949.
The by-law imposing that tax had been adopted in March 1949. Upon threat of legal action by the municipality, the appellant paid the tax and claimed from the Crown, by petition of right, the reimbursement of The Exchequer Court dismissed the appellant's claim.
should be dismissed. The taxes for which reimbursement was sought were not those which the Crown had consented to pay. By the terms of the order-in-council, the only obligation assumed in this respect, by the Crown was to pay the taxes legally due by it, and the Crown is not liable for municipal taxes other than those levied for municipal services, which was not the case here.
The representative of the Crown could not bind the Crown to make a payment which was not authorized, nor could or did the Minister, through the mandate given to the
Crown's representative, PETITION OF RIGHT-Concluded intend or undertake to ratify such an obligation. Indeed, at the time of the contract, the taxes were not due from anyone.
THE 177
PRACTICE - Pleading - Practice-Mutually inconsistent remedies- Judgment on convenant to pay in a mortgage bar to judgment for money had and received thereon ............................
REAL PROPERTY - Real Property - Mines and Minerals-Unauthorized entry by Registrar on Certificate of Title-Application to cancel "Minerals in the Croum" and substitute "Minerals Included"-The Land
Titles Act, R.S.C. 1953, c. 108, ss. 2 (1),
(10), 65, 66, 89.
The appellants made application under 82 (b) of The Land
Titles Act, R.S.S. 1953, c. 108, for an order directing the respondent
Registrar cancel the notation "Minerals in the Crown"
appearing on the certificate of title to certain lands held by them and to substitute therefor "Minerals Included".
The lands in question were originally "Dominion
Lands" as defined by The Dominion Lands
Act, R.S.C. 1886, c. 54, and the grant from the Crown contained no reservation as to minerals but on the certificate of title issued to the original grantee on
December 23,
1889, there was endorsed the words "Minerals Included".
Subsequent conveyances contained no reservation as to minerals and by virtue of a final order of foreclosure of mortgage, title was vested in one Eliza Jane Clements.
By a certificate of title issued to her
December 20, 1928, there was entered thereon "Minerals in the Crown". Following her death the land was transferred to her executors and by the survivor of them to the present appellants.
Certificates of title were issued the transferees on each occasion bearing a similar notation. Held:
There was no authority under The Lands
Title Act (Sask.) for the notation "Minerals in the Crown" made by the Registrar of
Land Titles on the certificates of title issued to Eliza Jane Clements, to her executors, or to the appellants, and the application of the latter so far as it asked for the cancellation thereof should be granted.
The substituted notation asked for should not be allowed. Judgment of the Court of
Appeal for Saskatchewan (1954) 11 W.W.R.
(N.S.) 469, reversed.
MoosoMIN
Covenant - Restrictive - Real property-Against use of land for certain business-Expressed to be for benefit of vendor- No reference to land retained by vendor- Whether runs against subsequent purchaser- Admissibility of oral evidence to show attachment to retained land-Land Titles Act,
R.S.A. 1949, c. 905, ss. 51, 181. . .....
SHIPPING - Shipping - Salvage - Beneficial services rendered at request-Services contributed to eventual salving-Amount of reward. In an action for salvage services following a maritime collision, the trial judge found that the respondent vessel was in a position of considerable danger up to the time that, at her request, she was taken in tow by the appellant's steamship Birchton and that she was brought by the Birchton to a position where she remained without damage until finally taken in tow by tugs and brought to port.
He concluded that the appellant's services had been of a beneficial nature and had contributed to the eventual salving of the property and should be rewarded as such. Notwithstanding this he assessed the services on a lower basis, because of the fact that the services had been requested and had not been the sole instrument in the ultimate salving. Held: The fact that, in response to a call for aid, either immediately or through an intermediary, assistance is asked and without more rendered, does not deprive the assisting ship of salvage. The appellant ship fell within the second proposition set forth in the judgment of Phillimore J. in The Dart (1899) 8 Asp. M.L.C. 481 at 483, "If a salvor is employed to complete a salvage and does not, but, without any misconduct on his part, fails after he has performed a beneficial service, he entitled also to a salvage award." If the trial judge had not considered himself bound by what he wrongly conceived to be the applicable principle he would have allowed more than the $12,000 fixed by him. The appeal was therefore allowed and the amount increased to $20,000. STATUTES-1.-Act to amend the Early Closing Act (Que.), 1949, 18 Geo. VI, c. 61 ....... 2.- Assessment Act, R.S.O. 1950, c. 94, ss. 80, 89, 83...................... 3.-Assessment Act, R.S.O. 1950, c. 94, s. 194(e)........................... 4.- B.N.A. Act, 1867, s. 96........ 454 5.- B.N.A. Act, 1867, ss. 91, 92 .... 6.-Cemetery Companies Act, R.S.B.C. 1948, c. 59......................... 7.-Companies Act, S. of C. 1934, c.33.............................. STATUTES-Continued
8.-Conditional Sales Act, R.S.B.C. 1948,
64.............................
9.-Co-operative Agricultural Association
Act, R.S.Q. 1941, c. 120, ss. 14....
Court Rules of Practice Act, R.S.B.C.
Criminal Code, R.S.C. 1927, 86,
1014(2), 1025...................
Criminal Code, R.S.C. 1927, 36, ss. 1014(2), 1025...................
Criminal Code, R.S.C. 1927, 36, s.259(a)..........................
Criminal Code, R.S.C. 1927, c. 36, s.261 .............................
Criminal Code, R.S.C. 1927, c. 36, s. 285 (4) (e).
...............
See 5.
Criminal Code, R.S.C. 1927, 36, s. 405(1)..........................
See 8.
19.-Crown Lands Act, R.S.N.
1952,
174, ss. 82, 83....................
20.-Early Closing Act, R.S.Q.
1941,
239 .............................
21.-Education Act, R.S.Q. 1941, 59, sa. 29, 807.................
22.-Evidence Act, R.S.B.C. 1948, s.5 ...............................
23.-Evidence Act, R.S.C. 1952, 807
........................
24.-Exchequer Court Act, R.S.C. 1927,
34, ss. 82,83 ......................
STATUTES-Continued
25.- Extradition Act, R.S.C. 1952, 322, s.18.............................
26.- Highway Traffic Act, R.S.O. 1950, 167, 29 (1) .....................
Immigration Act, R.S.C. 1927, ss. 8 (i), 18, 19, 23, 40 ...............
28.-Immigration Act, R.S.C. 1952 825, 61(g).......................
See 2.
29.-Income Tax Act, S. of 1948, s. 12(1)...........................
30.- Income Tax Act, S. of 1948, 11(1), 20(2), 127(5)............. 31.- Income Tax Act, S. of 1948, 52, ss. Income Tax Act, S. of 1948, c. 11(1)..........................
Income War Tax Act, R.S.. .1927, 97, s. 6(1).......................
Income War Tax Act, R.S.C. 1927, 97,ss. 4(e), 4(h).................
Income War Tax Act, R.S.C. 1927, 97, 3..........................
Industrial Relations and Disputes Investigation Act, R.S.C. ss. 1.to 53.........................
STATUTES-Continued
41.-Land Titles Act, R.S.S. 1953, 108, as. 2(1), 65, 66, 83..................
42.- Land Titles R.S.A. 1943, 205, ss. .........................
43.- Law Society Act, R.S.O. 1950, 200, s.48 ..............................
44.- Magistrate's Privilege Act, R.S.Q.
1941, 18........................
45.- Married Women's Property Act,
R.S.O. 1950, 338, s. 12 ............
46.- Mechanic's Lien Act, R.S.B.C. 1948,
205, s. 19.......................
47.- Motor Vehicle Act, R.S.B.C. 1948,
337, s. 83........................
48.- Municipal Act, R.S.O. 1950,
43,
406(1).........................
49.--Municipal Act, R.S.B.C. 1948,c.
58(73), (74).....................
50.- Negligence Act, R.S.O. 1950, s5 ..............................
52.- Provincial Police Force and Liquor
Police Force Act, R.S.Q. 1941, 47. . 834
53.- Sale of Goods Act, R.S.M. 1940,
54.- Special War Revenue Act, R.S.C.
1937, 179, s. 86(1)...............
55.-Summary Convictions Act, R.S.O.
1950, 379, s. 3(1).................
56.- Supreme Court Act, R.S.C. 1953,
359 .............................
57.-Supreme Court Act, R.S.C.
259, ss. 44... ................
STATUTES-Concluded
58.-Supreme Court Act, R.S.C. 1937, 35, s.36..............................
Workmen's Compensation Act, R.S.N.B. 255, s. 6...........
SURRENDER - Crown land-Mining leases of Saskatchewan lands issued Dominion prior transfer of natural resources-Leases replaced before expiration of provincial leases-Whether previous leases surrendered-Whether present leases subject to Natural Resources Agreement,1980......................... TAXATION-Taxation-Sales tax-Meaning of term "F.O.B. hd. of Lakes"-Whether delivery of the goods-Whether property passed to purchasers-Special War Revenue Act, R.S. 1937, 179, s. 86(1)-Sale of Goods Act, R.S.M. 1940, 185, 18, 33(1). The appellant, a Montreal manufacturer, received orders for the purchase of unascertained goods from buyers in Western Canada. The orders had been placed and accepted at the sales of the appellant at Winnipeg.
In accordance therewith, the goods delivered to a steamship carrier at Montreal for shipment. invoices showed that they were to be shipped from Montreal by the carrier to the head of the lakes when navigation opened and by rail from there to their destination. The freight was to be collect, but the invoices were marked "F.O.B. Hd. of Lakes" and showed that the freight from Montreal to the head of the lakes was to be deducted from the sale price. The bills of lading, obtained by the appellant and forwarded to the purchasers, showed that the goods were appropriated to the several contracts.
The goods were destroyed by fire while in the carrier's possession in Montreal awaiting shipment. The Crown's claim for sales tax on the price of the goods was based on 86(1)(a) of the Special War Revenue Act, R.S.C. which provided that sales tax was payable in respect of goods when they were delivered to the purchasers or when property in them passed to the purchasers. The Exchequer
Court maintained the Crown's claim. Held (Abbott J. dissenting), that the appeal should be allowed. Kerwin C.J. and Fauteux J.: The presence in the invoices of the words "F.O.B. Hd. of Lakes" brings the case within the opening part of 20 of the Manitoba Sale of Goods Act, R.S.M. 1940, which applies to the contracts between the appellant and its customers: "Unless a different intention appears . . .".
The circumstances do not take it out of the general rule, as stated in the 8th edition of Benjamin on Sale page 691, that the property passes only when the goods are put on board. Even if it could be said that there had been no physical delivery, the second proviso of s. 86(1) of the Special War Revenue Act does not apply, since the property did not pass to the purchasers. Per Taschereau and Locke JJ.: Liability for the tax would attach only when the goods were delivered in accordance with the contracts or the property in them passed to the purchasers and they became liable to payment of the purchase price. Here there was no delivery and the purchasers had not become liable.
The evidence adduced by the Crown proved that the sales were made F.O.B. Port
Arthur or Fort William, terms which have an accepted legal meaning:
Wimble v.
Rosenberg (1913) 3 K.B. 743, Benjamin on
Sale, 8th Ed. p. 691: Maine Spring Co. v.
Sutcliffe (1917) 87 L.J.K.B. 382. In view of the terms of the contracts the matter was not affected by s. 33(1) of the Manitoba Sale of Goods Act.
Per Abbott J.
(dissenting): The delivery by the appellant to the carrier was a delivery to such carrier as agent of the buyer within the meaning of s. 86(1) (a) of the Special War Revenue
The use of the term "F.O.B.", in this case, merely conditioned one of the constituent elements in the sale price.
2.-Revenue-Income Tax-Deductions- Borrowed capital used in the business to earn income-Borrower-lender relationship essential-Interest allowed only on amount actually so used-Depreciation allowance in
Minister's discretion-The Income War Tax
(1) (n). By s. 5 (1) (b) of the Income War
Tax Act, R.S.C. 1927, c. 97, "Income"
as hereinbefore defined shall for the purpose of this Act be subject to the following deductions:
(b) Such reasonable rate of interest on borrowed capital used in the business to earn income as the Minister in his discretion may allow ....
in 1929 financed the erection of an office building by an issue or debentures secured by a deed of mortgage and trust bearing interest after as well as before maturity and after as well as before default. The debentures after discount and brokerage charges netted $90 per $100 bond.
appellant defaulted on the interest payments but, in its annual income tax returns, deducted the interest payable, including interest on interest, as a charge against operating revenue. In assessing the appellant in 1946, 1947 and 1948 the Minister disallowed the deductions of interest on unpaid interest and also interest on $10 of each $100 debenture issued and disallowed part of the depreciation claimed on the building.
Held: 1. That the interest in default upon which, by the terms of the mortgage, the borrower was obligated to pay interest was not "borrowed capital used in the business to earn income" within the meaning of s. 5 (1) (b) of the Income War Tax Act.
The relation of borrower and lender necessary to justify the allowance was absent.
2. that the borrowed capital referred to in s. 5 (1) (b) is the amount of money borrowed, not the extent of the obligation incurred in order to borrow it. The appellant was able to borrow 90 per cent of the face amount of the debentures and it was that amount alone which was used in the business and upon which interest was allowable as a proper deduction from income.
Montreal Light, Heat & Power Consolidated v. Minister of National Revenue [1942] S.C.R. 89, followed. 3. that the amount of depreciation to be allowed in computing the amount of profits to be assessed was such amount as the Minister in his discretion may allow and there was no evidence adduced to establish that the Minister failed to exercise the discretion vested in him in good faith and upon proper principles.
Decision of the Exchequer Court of Canada [19541 Ex. C.R. 230, affirmed.
CORP.
Taxation - Income Tax -Business and business premises inherited subject to personal covenant to pay annuity- Premises also charged with payment- Whether such payments allowable as Income Tax deductions-The Income War Tax Act, R.S.C. 1927, c. 97, ss. 6(1) (a), (b), (c)- The Income Tax Act, S. of C. 1948, c. 52, s. 12 (1) (a), (b), (d). T by his will gave his business and the land on which it was carried on to his son, the appellant, subject to the son's entering into a covenant to pay T's widow an annuity and maintain two residences for her lifetime, the land being charged with the performance of the covenant.
The appellant claimed the disbursements made by him in fulfilling the covenant as deductions from his income for the years 1946, 1947, 1948 and 1949. The respondent disallowed them on the grounds that they were not as regards The Income War Tax Act, R.S.C. 1927, c. 97 as amended, "disbursements and expenses wholly, exclusively and necessarily laid out or expended for the purpose of earning income" within the meaning of s. 6(1) (a) of that Act but were "capital expenses" within the meaning of s. 6(1) (b) and that as regards The Income Tax Act, S. of C. 1948, c. 52 as amended, the disbursements were not "an outlay or expense incurred by the appellant for the purpose of gaining or producing income" within the meaning of s. 12 (1) (a) but a "capital outlay" within the meaning of s. 12 (1) (b) of that Act. Held (Estey and Locke JJ. dissenting): That for the purpose of determining the appellant's taxable income the receipts from the business should be reduced to the extent of the rental value of the land charged.
Raja Bejoy Singh Dudhuria v.
Commsr. of Income Tax (1933) 1 I.T.R.
135; 60 Ind. App. 196, followed.
Estey and Locke JJ. (dissenting)
: As the payments made in discharge personal covenants entered into to obtain the business and the business premises, they were not deductions allowable under s. 6 (1) (a) or s. 12 (1) (a) of the respective
Acts. The Raja Bejoy Singh Dudhuria case, supra, distinguished. Per Locke J. (dissenting): There was no charge upon the business or the income from that business but upon the land alone. The income was accordingly not diverted to the widow nor did the appellant receive any part of it on her behalf. As the payments were not incurred in earning the income of the business no deduction was allowable for the annual value of the businesx premises under s. 6(1)
Exchequer Court of Canada, Cameron J.,
[1954] Ex. C.R. 36, reversed.
4.-Assessment-Taxation-Powers and jurisdiction of Court of Revision, County
Court Judge, Municipal Board, Court of
Appeal-The Assessment Act, R.S.O. 1950, c. 24, ss. 80, 82 and 88-The British North
America Act, s. 96.
The issue raised by this appeal was whether the respondent's bowling alleys formed part of the real estate as defined by the Assessment Act,
R.S.O. 1950, c. 24, s. 1 (i) (iv) and were therefore assessable. Held: (Affirming the decision of the Court of Appeal for Ontario,
Rand, Kellock, Locke and Cartwright JJ.
that the question was a question of law and that the Court of
Appeal was right in determining that the
Ontario Municipal Board had no power to decide it. Toronto Ry. Co. v. Toronto Corp.
[1904] A.C. 809. Bennett & White (Calgary)
Ld. v. Municipal District of Sugar City
No. 5 [1951]
A.C.
786 distinguished.
Per Estey, Fauteux and Abbott JJ.: The question could only be determined by a court presided over by a judge appointed under s. 96 of the British North America
Quance v. Ivey [1950] O.R. 397 approved.
Phillips & Taylor v. City of
Sault Ste. Marie [1954] S.C.R. 404 distinguished. Per Rand and Cartwright JJ.
(dissenting): The series of special appeals from an original assessment is, on the present statutory language limited to the task of completing the assessment roll and does not extend to the judicial determination of liability to taxation, a function of the civil courts alone. Under s. 83 an appeal to the Court of Appeal does not
53865-4 embrace the determination of taxability either appellate or original, the section gives an appeal only on a question of law properly arising before the lower tribunals. On an appeal to the Municipal Board that body would be concerned with administrative jurisdiction only in the sense of being the final tribunal in review of the original assessment, its decision having no greater effect judicially than the act of the assessor. On appeal it may (as here) revise the acts of the assessor, amend the assessment roll and give it administrative finality.
The court in Quance v. Ivey, supra, did -not consider the administrative function of the Board. On this view of the statute it was within the jurisdiction of this Court to review the appeal to the Court of Appeal on the question of the jurisdiction of the Board. Per Kellock J. (dissenting): The Assessment Act lays a statutory duty upon the assessor to determine whether a given piece of property is or is not "land" or is assessable or exempt. He is to form his own judgment and act upon it. The same is true of the several assessment tribunals charged with the statutory duty of preparing and settling the assessment roll.
The function of the courts is to determine in any given case to what extent, if any, liability to taxation follows. The decision of the Privy Council in the Sugar City case, supra, was not, as wrongly decided in Quance v. Ivey, supra, that the legislation was to be construed as conferring upon the assessment tribunals a jurisdiction formerly exercised by the courts and therefore ultra vires, but upon the view that it did not confer any such jurisdiction at all.
The same is true of the judgment of this Court in Phillips and Taylor v. Sault Ste. Marie, supra. Locke J. (dissenting): The powers given to the Court of Revision, the County Court Judge and the Municipal Board by s. 83 of the Assessment Act to decide whether property is or is not assessable, may properly be exercised by them respectively, in discharge of their statutory duties as administrative acts to enable the completion of assessment rolls with reasonable promptness. Bennett & White v. Municipal District of Sugar City, supra, at 811 and 812; Ladore v. Bennett, [1939] A.C. 468 at 480. Quance v. Ivey, supra, distinguished. 5.- Taxation, Municipal -Jurisdiction-Claim for refund of Business Tax-Plant closed by strike-Office Staff employed-Whether manufacturing business carried on-The Assessment Act, R.S.O. 1950, c. 24, s. 124 (e). The appellant, a manufacturer of rubber goods, was forced to shut down its plant for a four-month period due to a strike. In the interval its staff, housed in a separate building, continued in their employment in so far as they were able to do so. The appellant subsequently applied under 124 the Assessment Act, R.S.O. 1950, 24, to the Court of Revision for a refund of the business assessment tax paid by it for the period the shut-down. The application was granted. An appeal by the respondent was dismissed by the Ontario Municipal.
Board but the Court of Appeal for Ontario set aside the Board's order. The appellant appealed and contended that the Court of
Appeal had assumed jurisdiction which was not conferred on it by the Act and had purported to determine a fact (whether the appellant occupied or used land for the purpose a manufacturer) which was not within its jurisdiction.
Held: That the appellant failed to establish that it did not, within the meaning of 124 of the
Assessment Act, carry on the business of a manufacturer for the period in question and its appeal should be dismissed. Held also by (Kerwin C.J. and Estey and Locke
JJ.): That the Court of Appeal had jurisdiction.
Per Kerwin C.J. and Estey J.:
The finding the Board that the business of a manufacturer had not been carried on within the meaning of 124 raised a question of law as to whether there was evidence to support such a finding.
Kerwin C.J. and Locke J.: If there was such evidence, it was also a question law whether the evidence brought the case within the Statute. Loblaw Groceterias v.
City of Toronto S.C.R. 249; Rogers- Majestic Corp. v. City of Toronto
S.C.R. 440; South Behar Ry. Co. v. Commsrs.
Inland Revenue A.C. 476 at 485, referred to.
Decision of the Court
Appeal O.R. 493, affirmed.
&
6.-Assessment -Taxation -Income
Tax
-Capital cost allowance claimed corporation on assets purchased from another- Whether corporations controlled same persons-Whether dealing at arms length- The Income Tax Act, S. of 1948, c. 52, ss. 11(1) (a), 20(2), 127(5). The respondent was incorporated under the Companies
Act (Can.) in June, 1949, and by an agreement dated July 4, purchased the assets
Sheldon's Limited, an Ontario corporation.
In its income tax return for that year claimed, under (1)
Tax Act, a deduction in respect to capital cost allowance (depreciation) based on the capital cost to the respondent of certain assets purchased from the old company.
The claim was disallowed by the appellant on the ground that by virtue of 20 the Act, the capital cost for the purpose paragraph (a) was deemed to be the capital cost to the old company since the transaction had not been one between
"persons dealing at arm's length" within the meaning of that section.
Sheldon's
Ltd. was controlled by its president and secretary who held a majority interest which they agreed to sell to three minority shareholders. The latter negotiated a loan with the Bank to finance the purchase and the Bank stipulated that the borrowers should deposit with and assign to it as collateral security eighty per cent of the issued shares of the old company, that a new company be formed to acquire the shares purchased from the majority interest and the assets of the old company, the new company to issue bonds to be applied toward retiring the loan and that an agreement be obtained with an underwriter to purchase the bonds when issued. The terms were complied with. new company, the respondent, was incorporated and the shares of the old company deposited with the Bank which had them transferred into the names of its own nominees. The transaction between the two companies was completed on July 4 on which date the directors of the old company passed a by-law authorizing the sale and a winding-up and distribution of its assets. This action was ratified by a general special meeting its shareholders at which the Bank's nominees were in control.
The new company's directors then authorized purchase of the assets and the bond issue and their action was ratified by its shareholders.
The directors then authorized purchase of the controlling interest in the old company and assumption of the bank loan. The result was that the new company became entitled to a conveyance of all the assets of the old company, and by virtue of having acquired all its issued shares, to the amount realized from the sale of its assets. Held: At the time the sale of the depreciable property in respect of which the capital cost allowance was claimed, was made, the old company was completely controlled by the Bank.
In the circumstances ss. 20(2) and 127(5) of the Income Tax Act had no application and the parties were at arm's length within the commonly accepted meaning of that expression. Partington v. The Attorney General L.R. 4 H.L. at 122.
Versailles Sweets v. Attorney General of Canada S.C.R. 466 at 468, applied.
Judgment of the Exchequer Court of Canada
Ex. Cr. 504, affirmed.
transaction between shareholder and company was at arm's length--Onus-Income Tax Act, S. of 1948, 52, ss. 20(2), 127(5). The appellant acquired a farm from one its shareholders at a price far exceeding the original cost to the vendor. The appellant claimed a capital cost allowance based the price paid.
the issued shares the appellant, minus three, were owned the vendor and his five brothers, with more than one-half of the shares being owned by the vendor and any three of his brothers. Considering that the purchase the appellant was not a transaction "at arm's length" but was one between a corporation and one of several persons by whom the corporation was controlled, the Minister rejected the claim and based the allowance on the original cost to the vendor.
The appeals to the Income Tax
Appeal Board and to the Exchequer Court respectively were dismissed.
Held: The appeal should be dismissed. Under s-s.
of of the Income Tax Act, 1948, 52, the appellant and the vendor were deemed not to have dealt with each other at arm's length. Per Kerwin C.J. and Fauteux J.:
Since the appellant was controlled the vendor and three of his brothers, the vendor was one of several persons by whom the appellant was directly or indirectly controlled.
Per Taschereau, Kellock and
Abbott JJ.: The appellant failed to show error in respect of the Minister's conclusion that the transaction was not one between persons dealing at arm's length.
MInON
................
Taxation
Tax-Allowance deductible in respect of an oil or gas well in computing income-The
Income Tax Act, 1948, Can. 52, 11(1)
(b)-Income Tax Regulation No. 1901(1),
(4)-Income Tax Amendment Act, 1949,
Can. 2nd Sess., 25, s. The appellant a corporation whose principal business the production of petroleum and the exploring and drilling for oil or natural gas within the meaning of of the
Income Tax Amendment Act, Can.
2nd Sess., 25). In computing income for the years and 1950 for the purpose calculating depletion allowance under
11(1)(b) of the Income Tax Act and Regulation No. of the Income Tax Regulations and 53 of the Income Tax Amendment Act, it deducted exploration, development and other expenditures incurred in respect of .wells that had shown a profit an individual well basis excluding similar expenditures incurred on wells operated at a loss. The respondent ruled that the latter expenditures, as well as the former, should be deducted but on an aggregate well basis. Held: That the deductions are to be related to the wells individually and that unless the items of expenditure under 53 are clearly related to a profit producing well, they are not to be taken into account in determining the allowance under
Regulation No. in respect of that well.
Appeal allowed and the matter remitted to the Minister for re-assessment on the basis indicated.
Decision of the
Exchequer Court
Ex. C.R. 622 reversed.
Income and excess profits taxes-Company incorporated under Part I of the Companies Act, 1984, for purpose training pilots under the British Commonwealth Air Training Plan-Whether income
53865-42 exempt-Income War Tax Act, R.S.C. 1927, 97, 4(e) and 4(h). The respondent was incorporated in 1940 as a private under Part the Act, of 1934, c. 33, for the purpose giving flying training in conjunction with the British Commonwealth Air Training Plan.
Its letters patent prohibited the declaration of dividends and the distribution of profits "during the hostilities during the period that the company required to carry on elementary training under the Training Plan".
The shareholders made a declaration of trust to the effect that they held their shares in trust for the benefit of the St. Catharines Flying Club, a company whose objects were the promotion of flying and aviation in general and the teaching and training of persons in flying and aerial navigation and whose letters patent provided that all profits and accretions should be used in promoting its objects. The respondent entered into two contracts with the Crown in 1940 and in Both contracts provided the terms of payments to made for the services to be rendered, and in the second it provided further that any profit should be held in a reserve account until the termination of the contract to be then paid to a flying club approved by the Minister of National Defence, failing which it would revert to the Crown. The respondent made a profit on both contracts and this was assessed for income and excess profits taxes. The assessment was affirmed by the Minister National Revenue, but set aside by the Exchequer Court. Held: The appeal should be allowed as to the profit made under the first contract and dismissed as to the second.
Under the second contract, there was no income liable to taxation since the terms of that contract amounted to a declaration that any surplus would be held subject to the direction of in trust for the Crown.
Under the first contract, any profit realized under the powers granted to the company by its letters patent was income liable to taxation under the terms of the statute. The fact that the company was incorporated under Part I of the Companies Act and the reference to dividends in the letters patent indicated that profits were contemplated. These profits were the property of the company which could retain them and distribute them after the termination the hostilities or the period during which it was required to carry on under the Training Plan.
The income under this contract was not exempt from taxation under 4(h) or 4(e) of the Income War Tax Act.
REv- Taxation - Tax-Whether sum reserved to pay Foreign exchange but not drawn on "income"- The Income War Tax Act, R.S.C. 1927, 97,
The appellant, the Canadian subsidiary of an American corporation, for the years 1940-1945 inclusive, purchased goods from the parent company totalling
$649,978.29 in American currency. During that time the United States dollar was at a premium and the appellant, though made no payments on account, set up in its books the amount of its indebtedness
Canadian dollars (as if the two currencies were at parity) plus the amount required each year to cover the premium on exchange for the purchases made in that year.
At the end of the amount of Canadian dollars required to cover the premium totalled $67,302.77.
In filing its income tax returns in each of these years the appellant included the premium so computed as an expense and it was allowed by the taxing authorities.
In July, 1946, the Canadian dollar attained a position parity with the United States dollar and the appellant in its 1946 profit and loss account included the said sum of $67,302.77 as income under the heading of "Foreign
Exchange Premium Reduction" and, filing its income tax return for that year, treated the amount as a capital rather than an operating profit and deducted it determining its net income subject to tax.
The deduction was disallowed by the Minister.
Appeals by the taxpayer to the
Income Tax Appeal Board and to the
Exchequer Court were each
In its appeal to this Court the appellant contended that as all the goods were purchased prior to 1946 it, in making settlement the indebtedness in that year
(which it effected with $640,978.29
Canadian dollars by the issue of additional shares to the parent company without payment of any exchange) realized neither a profit, gain nor gratuity within the meaning of the Income War Tax Act and therefore the amount in question was not properly included in the word
"income" as defined in that section. Held
(Locke and Cartwright JJ. dissenting):
That the amount set up by way of reserve to meet payments of foreign exchange when unnecessary for that purpose was properly included as an item of profit computing income tax.
In 1946, owing to the change in the rate of exchange, the
$67,302.77 held by the appellant as a reserve to provide for the contingency having to pay for the United States dollars required to discharge its indebtedness ceased to be required for that purpose.
thereupon became available for the general purposes of the appellant and was properly treated as income in the year which it became so available.
Davies v.
The Shell Co. of China Ltd., 32 T.C.
at and H. Ford & Co. Ltd. v. Commssr.
of Inland Revenue, T.C., 997 at 1004, applied.
The Texas Co. (Australasia)
Ltd. v. Federal Commssr of Taxation,
C.L.R. 382, referred to. British Mexican
Petroleum Co. v. Jackson, T.C., dis- TAXATION-Concluded tinguished.
Per Locke J. (dissenting)
: It was income and income only, which was taxed by the Income War Tax Act as amended, which applied to the taxation year 1946.
As applied to corporations, taxable determinable calculating the amount received from the operation of the company's business less operating expenses and other deductions permitted by the Act in calculating such The appellant was benefited the restoration of the value of the Canadian dollar in terms of United States' currency, an event over which it had no control, but the advantage of it, as distinguished from the extent to which its profits were increased by its occurrence, was no more a trading receipt than the advantage accruing to an export company by a recovery in world trade, or the benefit accruing to all trading corporations by a reduction in income or other taxation. British Mexican Petroleum Co. v.
Jackson T.C. 570, applied. Per Cartwright
J.
indebtedness the appellant to its parent company which accrued from 1940-1945 inclusive was rightly calculated and allowed in those years at $708,281.06 in Canadian funds.
The fact that in 1946 owing to a change in the rate exchange, the appellant was able to discharge its indebtedness payment of $640,978.29 in Canadian funds did not render the difference between these amounts, income of the appellant. the year the appellant neither received the sum $67,302.77 nor acquired any right to receive payment it. principle of the decision in British Mexican Petroleum Co. v. Jackson, supra, applied. of the Exchequer
Court Canada
Ex. C.R. 269, affirmed. 11.- Income tax - Assessment nil-Whether right appeal to Income Tax Appeal Board-"Assessment" in ss. 69a and of the Income War Tax Act, R.S.C. 1927, 97.
The word "assessment" 69a and of the Income War Tax Act, R.S.C. 1927, 97, means the actual sum in tax for the payment of which the taxpayer is held liable by the decision the Minister.
If there is no tax claimed by such decision, there no assessment within the meaning of 69a and therefore no right of appeal under TRADE UNION
Labour-Trade Unions -Collective
Bargaining-Whether a group, a fractional part of a larger unit already certified, the majority of whom favour continuance of existing bargaining authority, may certified-Industrial Conciliation and Arbitration Act, R.S.B.C. 1948, 155, ss. 47, 58. The respondent Local was certified by the respondent Labour Relations Board and entered into a collect- TRADE UNION-Concluded ive agreement with the respondent Association in respect of hotels for a period ending April 30, 1953.
The appellant made application to the Board on April to be similarly certified for three units composed of the employees three of the hotels included in the above-mentioned hotels.
The respondent Association supported by the respondent Local thereupon made application for a writ of prohibition directed to the said Board prohibiting certification.
An order nisi, granted
Wood J., was discharged by Manson J.
The order of the latter was reversed by the
Court of Appeal for British Columbia.
appeal from that judgment.
Held: that the appeal should be allowed and the order of Manson J. restored. Per Kerwin
C.J., Estey and Cartwright JJ.: The Act contemplates that, in the main, a collective agreement negotiated under its provisions will remain in force for the period therein specified. It was apparent to the Legislature however, that circumstances might develop which would make that impossible undesirable and provision was made for its termination under 47, its cancellation under and the replacement and revocation a bargaining authority under and While therefore cancellation was provided for only under would seem that the provisions ss. 10 contemplate the making of an application such as that here in question prior to, and quite independent of, cancellation under
Per Rand J.:
The provisions of the Act enable the Board, within the conditions laid down, to certify a group as a unit appropriate for bargaining purposes even though the group may be a fractional part of a larger unit already certified the majority of employees which are in favour of continuing the existing bargaining authority.
Per Locke
J.: It was the duty of the Board upon receiving the application to consider whether the proposed unit was one appropriate for collective bargaining, a decision involving the exercise of a discretion as to which the determination of the Board was conclusive by reason of the term of 58 (1).
Had the proceedings halted by the writ been proceeded with and the unit found appropriate it would have been the obligation of the Board to certify the appellant.
B.C. B.C.
WATERCOURSES - Water and Watercourses-Right to float logs-Obstruction to
Nuisance
Trespass
Practice-Action claiming declaration-No cause of action at date of writ-Rules
Supreme Court (Nf/d.) 0. 25, r. 5.
appellant and respondent operated saw mills on the Colinet River, which a tidal water for a short distance above the appellant's mill. To enable driving operations to be carried on in the summer when
WATERCOURSES-Concluded the natural alone would not suffice, the appellant built a dam upstream at Ripple Pond and another on a tributary, the Back River. In June, by opening the Ripple Pond dam it brought down its first drive of the season, holding back another drive behind the Back River dam for a later operation, and as required by the salmon regulations, left the Ripple Pond dam open. The respondent requested it be closed but in the absence of permission from the Crown, the appellant refused to act. The respondent then, mistakenly relying anticipated rainfall, started his drive down the Colinet and his logs became stranded. The appellant brought an action in damages and for an injunction alleging the obstruction of the river by the respondent's logs had prevented it bringing down its second drive and forced it to shut down its mill. further claimed the respondent had moved a boom placed by the appellant above its mill and had thereby committed a technical trespass.
denied the allegations and counterclaimed for a declaration that he was entitled to unrestricted flowage rights on the Colinet to drive his logs.
After the issue of the writ the dam was closed and on its opening in August the respondent was able to complete his drive.
Held: 1. That under ss. 82 and 83 of The Crown Lands Act, R.S.N. 1952, 174, both parties had equal rights to float logs on the Colinet. Caldwell v. McLaren 9 App. Cas. 392 at 2. That at the time the appellant brought its action it had not suffered damage because of any obstruction in the river and its action therefore could not succeed. Original Hartlepool Collieries Co. v. Gibb, Ch. D. 713; Creed v. Creed 1 I.R. 48; Eshelby v. Federated European Bank Ld. 1 K.B. 254. 3. That the appellant's boom was an interference with the respondent's right to float logs to his mill and the latter had a statutory right to move it in the way he did. Wood v. Esson, 9 S.C.R. 239 at 242. Per Locke J.: The piers placed in the tidal and navigable waters at the mouth of the river without statutory authority amounted to a public nuisance and no right of action arose by reason of the respondent's interference with them. SS. Eurana v. Burrard Inlet Tunnel and Bridge Co. A.C. 300. 4. That as the declaration sought by the respondent would impose a duty upon the appellant which might seriously interfere with its operation and would be of no assistance to the respondent, it should be refused. Per Locke J.: The rule enabling the Court to make a declaratory decree ought not to be applied where a declaration is merely asked as a foundation for substantive relief which fails. Hamerton v. Dysart (Earl) 1 A.C. 57 at 64.
would have made the declaration claimed. Annuities
Payable out of rents and profits of designated property
-Continuing charge on income-Right annuitant to Arrears-To accumulation surplus income meet actual or contemplated deficiencies.
testatrix by her will gave to her husband a interest in her whole estate and directed the payment of annuities out of the rents and profits of a certain property to her surviving daughters and a granddaughter.
By a residuary gift the rest of her estate went to all her sons and daughters to be equally enjoyed them during the terms of their natural lives, and after their deaths to their heirs and assigns forever. The testatrix died in and her husband in 1913.
Following his death the annuities were paid out of the profits the property charged with their payment and the surplus distributed under the residuary clause.
Between 1932 and the revenue from the property below the amount required to meet the charges, and the advice of the court was sought, as to whether deficiency arising in any year was payable out of the rents and profits any other year years. Judson J., to whom the application was made, held that it was, and his judgment was affirmed the Court Appeal for Ontario. Held: By Rand, Estey, Locke and Fauteux JJ.-That any existing deficiency in a share the gross annuity was in the first instance to be made up out that portion the rents and profits corresponding to that share, and so far might be paid in priority to the payment of the current annuity attributable to that portion, but this was not to affect the payment the share of the gross annuity out of the appropriate portion the rents and profits in relation to which there was no deficiency.
In any year a deficiency prevented payment in full of the annuity recourse could be had to the rents and profits accrued during the lifetime the annuitant in the first instance in the proportion set out above.
Any deficiency existing at the death of the last person entitled to the annuity to cease to be payable out the rents and profits earned after the death such person. The appeal therefore allowed in part and the judgment amended accordingly.
Kerwin C.J.
would have dismissed the appeal in he agreed with the conclusions of the trial judge and the Court of Appeal. Held:
Further, that the costs in this court and in both the courts below should be payable out capital.
Judgment of the
Court Appeal for Ontario O.R.
are affirmed, subject to a variation.
2.-Wills-Residuary estate consisting unauthorized securities-Trust for conversion with power to postpone-Rights of Tenant for life-Enjoyment in specie.
testator gave the residue of his estate upon trust to convert with power to postpone conversion and directed his trustees to pay the income.of his residuary estate to his widow
WILLS-Continued for life and upon her death to set aside sufficient of the residue to yield certain annuities and subject thereto to divide the residue among the testator's nephews and nieces then alive.
The major part of the residue consisted of shares in a company a type of security in which trustees were not by law authorized to invest. At the date of death the company had built up a large surplus which it proceeded to distribute to shareholders as a dividend. This raised the question as to whether the widow was entitled to enjoy the dividends in specie or whether an order similar to that in In re Chaytor: Chaytor v. Norn 1 Ch. 233 should be made. Held: (Estey and Cartwright JJ. dissenting): That upon a proper construction of the will it was to be presumed that the testator intended that the residue was to be enjoyed different persons in succession and applying the rule in Howe v. Dartmouth (Earl) Ves. a duty rested on the trustees to convert.
The rule might have been excluded the will disclosed an intention either express direction or necessary implication that the property should be enjoyed in specie but the onus of showing this had not been met. Per Estey and Cartwright JJ. (dissenting): By clause IV the will power was conferred upon the trustees to retain until the trusts were completely executed.
By clause IV the testator gave to his widow the net annual income of all the securities representing the residue of his estate including income from unconverted property subject only to payment specified annuities thereby excluding the rule in Howe v. Dartmouth, Earl, supra. Re Thomas Ch. 482 at 486 approved in In Re Chaytor, Chaytor v. Horn Ch. 233 at 238 referred Will tors for sale with direction to pay net proceeds into Trust Fund-Sale testator-Proceeds deposited in bank-Subsequent withdrawals -Effect on legacy.
testator by his directed his executors to sell and convert into money all the assets his estate and after the payment of debts and a legacy to the Flower Fund of a church "to pay the net proceeds from the sale my automobile, furniture and Adelaide Street property in the said city of Saint John" to the appellant upon certain trusts, to pay certain other pecuniary legacies; and the residue to the respondents FitzGerald and Carloss. He finally directed that "Should the net proceeds my estate at the time of my death be insufficient to pay the aforesaid legacies in full then I direct that they should be paid pro rata but that the gift for the Flower Fund and of the net proceeds of the sale of my automobile, furniture and real estate shall be paid in full." Prior to his death the testator sold the three last mentioned items and deposited the proceeds in his bank account.
He later WILLS-Concluded drew against the account but at his death the balance in the account was greater than the net proceeds arising from the sale. Held (Cartwright J. dissenting): that the principle of ademption did not apply:
the phrase "net proceeds of the sale"
meant the means of determining the amount a pecuniary bequest; there was no specific property.
The testator providing that the event "the net proceeds of my estate at the time my death"
should be insufficient for the payment
"the aforesaid legacies in full" indicated that he intended his net estate, whatever it might be at the date his death, should be employed in payment all his legacies, priority to be given that the appellant.
Hicks v. McClure 64 Can. S.C.R.
referred to. Per Cartwright J. (dissenting):
The words of the clause in question are indistinguishable from those in Hicks v.
McClure (supra) and must accordingly be construed as a gift not of the Adelaide Street property but of the proceeds of the sale thereof so long as those proceeds retained a form by which they could be identified as such. For the reasons given by the judge of first instance, such proceeds had lost their identity at the date of the testator's death and the legacy was adeemed.
Re Stevens
D.L.R. 322 followed.
OF v.
Will
Gift a class-Ascertainment thereof.
A testator left the residue of his estate to his widow for life, with a discretionary power appointment both of income and corpus in his personal representative for the maintenance of his wife and his son, the corpus to vest in the son upon his surviving the testator's wife and attaining the age of thirty years. The son died the testator's lifetime, intestate and unmarried.
The will provided that in such event the corpus be divided among the heirs-at-law as though the corpus were part the son's estate.
Held (Rand and
Kellock JJ. (dissenting)
): That there was no intestacy as to the corpus as the testator had specifically dealt with the contingency that had arisen. The general rule as to vesting is that where there a direction to pay the income of a fund to one person during his lifetime and to divide the capital among certain other named and ascertained persons on his death, even although there are no direct words of gift either of the life interest the capital, vesting of the capital takes place a morte testatoris in the remaindermen.
Brown v. Moody A.C. 635 at 645.
The rule also applies where the remaindermen are referred to as a class rather than named specifically. Ross v. National Trust
S.C.R. 276. The general rule as to vesting will be displaced only if the will contains a clear indication a contrary intention. There was no evidence of such intention here. v.
Winding-up Provisional liquidator-Setting aside of appointment and winding-up order-Liability for fees of liquidator-Winding-up Act, R.S.C. 1927, 213, ss. 28, 94, 106, 188-Civil Code, Arts. 1117, 1823 (3)-Code of Civil Procedure, Art. 594.
On the petition the respondent, the Superior Court made a winding-up order against the appellant and appointed a provisional liquidator. Provisional execution the order in far as the appointment of the provisional liquidator was concerned was granted Subsequently, the Court Appeal set aside the winding-up order and dismissed the petition. appellant now appeals from that part of the judgment of the Court of Appeal directing it to pay the fees, charges and expenses, other than court costs, of the provisional liquidator.
should be allowed, the provision complained of struck out and the matter referred back to the Superior Court to determine the amount the fees, including their apportionment between the parties pursuant to Art. C.C.
By reason of and the Winding-up. Act, Article 594 the Code of Civil Procedure constitutes ample authority for the order granting provisional execution. The appointment the provisional liquidator was legally made under 28 of the Act and he was, therefore, entitled to his fees and disbursements. There having been no liquidation and therefore no assets, 94 of the Act does not apply, but by the ordinary practice the Superior Court in analogous cases invoked and, consequently, Art. 1823(3) C.C., respecting judicial sequestrators, whose functions are closely analogous to those of the provisional liquidator, the appropriate rule to be looked at. Following the authorities, both parties must be held to be jointly and severally liable for the fees the provisional liquidator, the same as they are held to be in respect of the judicial sequestrator appointed under Art. 1823(3) C.C.
As there is no tariff the province for the taxation of the judicial sequestrator's fees, 42(1) the Windingup Act applies- and the liquidator is to be paid such salary or remuneration by way percentage or otherwise as the court directs upon such notice to the shareholders as the court orders.
WORDS AND
PHRASES - "Asian" (Immigration Act, R.S.C. 1952 325, s. 61(g) ).......................... 395 "Assessment" (Income War Tax Act, R.S.C. 1927, 97, ss. 69a, ...... "Ethnic" (Immigration Act, R.S.C. 1952. c. 325, s. 61(g) )............. 395 WORDS AND PHRASES-Continued
WORDS AND PHRASES-Concluded 4.- "Gross negligence" (Motor Vehicle Act,
6.- "Without due care and attention or R.S.B.C. 1927, c. 227, s. 82) .........
without reasonable consideration for other See 2.
persons using the highway"
(Highway Traffic Act, R.S.O. 1950, c. 167, s. 29(1) ) 5.- "Obtains anything capable of being
................................
stolen" (Criminal Code, R.S.C. 1927, c. 86,
See 1.
s. 405(1) )........................
See 8.
Cases cited
- Ripley v. McClure Ripley v. McClure, supra
- 14 W.W.R. 112 14 W.W.R. 112
- A.C. 31 A.C. 31
- A.C. 356 A.C. 356 361
- Montreal Coke and Manufacturing Co. v. Minister of National Revenue / Montreal Light, Heat scr-1942-89
- Raja Bejoy Singh Dudhuria Raja Bejoy Singh Dudhuria case, supra
- A.C. 809 A.C. 809
- O.R. 397 O.R. 397
- Phillips and Taylor v. Sault Ste. Marie (City) scr-1954-404
- Quance v. Ivey Quance v. Ivey, supra
- the Sugar City the Sugar City case, supra
- Taylor v. Sault Ste. Marie Taylor v. Sault Ste. Marie, supra
- Bennett & White v. Municipal District of Sugar City Bennett & White v. Municipal District of Sugar City, supra, at 811 and 812 811 and 812
- Ladore v. Bennett A.C. 468 480
- 480. Quance v. Ivey 480. Quance v. Ivey, supra
- British Mexican Petroleum Co. v. Jackson British Mexican Petroleum Co. v. Jackson, supra
- Earl Earl, supra
Statutes and regulations cited
-
- ss. 82
- 83 of the Exchequer Court Act
- s. 30(d)
- 88
- 83
- s. 83
- 82
- s. 82
-
- s. 405(1)
- ss. 28
- s. 29(1)
-
Unresolved citations
- ss. 51
- 131 of the Land Titles Act
- s. 19 of the Mechanic's Lien Act
- s. (2)
- s. 86(1) of the Special War Revenue Act
- s. 33(1) of the Manitoba Sale of Goods Act
- s. 83 of the Assessment Act
- paragraph (a)
- ss. 82
- 83 of The Crown Lands Act