Majority
In 1951, under an agreement between the appellant and B, a substantial shareholder of Federated Petroleums which held a large number of shares of Home Oil Company, the appellant, who had been employed by Imperial Oil for many years, was paid by B 8250,000 to resign his position and accept employment with Federated Petroleums. Under a separate agreement, signed on the same day, Federated Petroleums undertook to employ the appellant as its general manager, subject to the condition that he should serve as manager of any other company or companies in which Federated Petroleums had a financial interest. The appellant, after resigning from Imperial Oil, became president and managing director of Home Oil at the same salary that he was drawing before but with no superannuation benefits. The Minister assessed the $250,000 as income. The assessment was upheld by the Income Tax Appeal Board and by the Exchequer Court. Held (Taschereau J. dissenting): The payment of $250,000 received by the appellant was income within s. 3 of the Income Tax Act. In view of Cameron v. Prendergast, [1940] A.C. 549, the House of Lords' previous decision in Hunter v. Dewhurst, 16 Tax Cas. 637, must be taken to have been decided on its very special facts. Tilley v. Wales, [1943] A.C. 386, distinguished.
Per Kerwin C.J. and Locke and Judson JJ. The true nature of the payment made to the appellant was to be found in the terms of the two agreements and the surrounding circumstances including the fact that it did not come from the former employer. The payment was made for personal service only and that conclusion really disposed of the matter as it was impossible to divide the consideration. While, from the point of view of the respondent, no assistance could be obtained from a consideration of s. 24A of the Act, the submission on behalf of the appellant that the section established non-taxability in this case, could not be agreed with.
Per Locke, Martland and Judson JJ.: Considering the two agreements together, the circumstances in this case made it clear that the payment constituted a payment for services to be rendered, and therefore, was income.
The argument based upon the proposition that the agreement with B was to provide compensation for loss or relinquishment of a source of income, which source was of itself a capital asset, *PPESENT: Kerwin CJ. and Taschereau,
Locke, Martland and Judson JJ.
uer Court of Canada , affirming a decision of the Income Tax Appeal Board.
Appeal dismissed, Taschereau J. (dissenting)
.
H. H. Stikeman, Q.C., and P. N. Thorsteinsson, for the appellant.
W. R. Jackett, Q.C., F. J. Cross and G. W. Ainslie, for the respondent.
THE JUsTIcE:-This is an appeal by Robert B. Curran against the judgment of the Exchequer Court' affirming the judgment of The Income Tax Appeal Board, which had dismissed his appeal to it from a re-assessment made under the provisions of the Income Tax Act of the appellant's income for the taxation year 1951. The re-assessment thus confirmed was with reference to the sum of $250,000 received by the appellant in that year.
The appellant, a geologist and highly regarded in his field, was employed as manager of the producing department of Imperial Oil Limited. He had been connected with the latter for some years and in 1951 was earning $25,000 a year with the expectation that his salary would be increased, and had he continued until the retirement age of sixty-five he would have been entitled to a pension equal to approximately one-half the average of his salary for the five years immediately preceding his retirement. He had been offered a directorship in this company late in 1950 and early in 1951 but declined because he preferred to remain in the position he then occupied and to live in Calgary. The salary attached to the position of a director in Imperial Oil Limited is considerable.
In the spring of 1951 Robert A. Brown Jr. approached the appellant with a view to inducing him to resign his position in Imperial Oil so that he might accept employment with Brown or one of the companies in which the latter was interested. Mr. Brown was a substantial shareholder of Federated Petroleums Limited and president and general manager of that company. The company itself held a large number of shares of Home Oil Company Limited. Calta Assets Limited was a small holding company, the shares of which were wholly owned by Mr. Brown and his brother and sister and it was a substantial shareholder in both Federated and Home Oil. Mr. Brown did not hold any office in Home Oil, of which Major Lowery was president and managing director and exercised both share and management control. Mr. Brown had become dissatisfied with the management of Home Oil and desired to secure the appellant's services as manager of Federated and Home Oil with the expectation that Major Lowery would then relinquish the active management of Home Oil. The negotiations between Brown and the appellant culminated in a written agreement, dated August 15, 1951, between Brown, called therein the grantor, and the appellant, referred to therein as the grantee. As the appellant emphasizes the terms of that agreement, it is set out in full: AND WHEREAS the grantee has been mentioned as a prospective member of the Board of Directors of Imperial Oil Limited which if he were to be so appointed would mean an immediate substantial increase in salary and would in the ordinary course of events lead eventually to OF one of the senior positions in the oil organization of which Imperial Oil Limited forms a part.
AND WHEREAS it is not the policy of Imperial Oil Limited and its Kerwin CJ. affiliates to re-employ in any part of such world wide organization anyone who has voluntarily left the service of any of the companies in or affiliated therewith.
AND WHEREAS FEDERATED PETROLEUMS LIMITED, a comparatively small oil company operating only in Canada and having no connection with Imperial Oil Limited or any of its affiliates, has recently intimated its willingness to offer the grantee a position as Manager at a salary equivalent to that which he draws from Imperial Oil Limited, which proposed offer the grantee has intimated that he would refuse solely by reason of the fact that he would be obliged to give up his chances of advancement with his present employers and their affiliates, would lose the opportunity for re-employment with them or any of them, thereby greatly limiting his field of possible future employment, and would lose all accumulated and future rights to pension.
AND WHEREAS the grantor holds a substantial interest in Federated Petroleums Limited, is of the opinion that the grantee's experience, capabilities and connections would be valuable to that Company, and is very desirous of persuading the grantee to resign from his present position in order that he may then be free to accept an offer of employment from Federated Petroleums Limited.
AND WHEREAS the grantor recognizes what the grantee is obliged to give up in the way of chances for advancement, pension rights, and opportunities for re-employment in the oil industry if he resigns from his present position in order to be free to accept the offered employment and has agreed to compensate him liberally therefor.
NOW THEREFORE THIS INDENTURE WITNESSETH 1. The grantor hereby agrees to pay to the grantee the sum of $250,000 in consideration of the loss of pension rights, chances for advancement, and opportunities for re-employment in the oil industry, consequent upon the resignation of the grantee from his present position with Imperial Oil Limited, the said sum to be paid forthwith upon the grantee informing his present employers that he is leaving their employ and whether or not employment has been offered to him by Federated Petroleums Limited or accepted by him, prior to that time.
2. In consideration of the agreement of the grantor to pay the said sum, the grantee hereby agrees to resign his position with Imperial Oil Limited, such resignation to take effect not later than the 15th day of September, AD. 1951.
Mr. Brown paid the $250,000 to the appellant, but Calta Assets Limited actually furnished the funds out of its own assets and from money borrowed from a bank. On the same day, August 15, 1951, the appellant entered into an agreement with Federated Petroleums to act as its general manager at a fixed salary of $25,000 per year and he was to serve as the directors of that company might determine frOmtime to time as manager of any other company or companies in which Federated had a financial interest either in addition to or in lieu of serving as manager of Federated; but any salary from such other company or companies was to the extent thereof to be deemed satisfaction of the salary which under the terms of the agreement Federated was obligated to pay. The appellant was also given the option, within a limited time, to purchase twenty-five thousand shares of Home Oil Company at a given price.
The appellant resigned his position with Imperial Oil Limited shortly after August 15, 1951.
He was never employed by Brown or Federated Petroleums or Calta Assets but became president and managing director of Home Oil at a salary of $25,000 per year with no superannuation benefits. Due to a disagreement with Brown the appellant resigned his position with Home Oil at the expiration of about one year.
Subsection (1) of s. 2 and s. 3 of the Income Tax Act, 1948, c. 52, provide:
As has been pointed out in the recent judgment of this Court in Bannerman v. Minister of National Revenue', there is no extensive description of income such as appeared in the Income War Tax Act. The word must receive its ordinary meaning bearing in mind the distinction between capital and income and the ordinary concepts and usages of mankind. Under the authorities it is undoubted that clear words are necessary in order to tax the subject and that the taxpayer is entitled to arrange his affairs so as to C minimize the tax. However, he does not succeed in the attempt if the transaction falls within the fair meaning of the words of the taxing enactment.
The decision of the House of Lords in Tilley v. Wales' was relied upon by the appellant. Prior thereto their Lordships had decided Hunter v. Dewhurst and Cameron v. Prendergast .
In the latter case they regarded the Dewhurst case as having been decided on its very special facts and in any event distinguished it on the ground that the payment there was not a profit of the directorship but was a compromise of a future contingent liability, i.e., to pay a lump sum upon Dewhurst's eventual retirement from office. In Cameron v. Prendergast the continuance in office was the essence of the bargain which contemplated that Cameron would not resign for at least a reasonable time thereafter. The sum there involved was very large but it was regarded as income since remuneration is still income even though paid once and for all in a lump sum instead of by instalments over a period of years.
When Tilley v. Wales came before the House of Lords, Viscount Simon, with whom Lord Atkin and Lord Russell of Killowen agreed, said, at p. 392, that the decision in Dewhurst was regarded and described as arising in very special circumstances, but he thought that the ratio decidendi was as he had described, i.e., that a certain sum of £10,000 was not a profit from Dewhurst's employment as director and did not represent salary but was a sum of money paid down by the company which had employed Dewhurst to obtain a release from a contingent liability as distinguished from being remuneration under the contract of employment. He pointed out that apart from previous authority he should take the view that a lump sum paid to commute a pension is in the nature of a capital payment, which is substituted for a series of recurrent and periodic sums which partake of the nature of income.
He then continued:
In the present case the substance of the matter was the engagement by the appellant to work for Mr. Brown or one of the companies in which the latter was interested and the agreement by the appellant with Federated Petroleums. It is true that in order to fulfil his obligations under the contracts the appellant was obliged to resign his position with Imperial Oil Limited and thereby gave up not only the annual salary, a like amount which he was to receive, but also his pension rights and further prospects. However, the payment of $250,000 was made for personal service only and that conclusion really disposes of the matter as it is impossible to divide the consideration. The mere fact that the first agreement of August 15, 1951, states that Brown agreed to pay the appellant $250,000 in consideration of the loss of pension rights, chances for advancement and opportunities for re-employment in the oil industry cannot change the true character of the payment. Its true nature must be found in the terms of the two agreements and the surrounding circumstances including the fact that the $250,000 did not come from Imperial Oil Limited. I have been unable to secure any assistance from the other cases referred to by Mr. Stikeman including Van Den Berghs Ltd. v. Clark', a decision of the House of Lords, and the judgment of Williams J. in the High Court of Australia in Bennett v. Federal Commissioner of Taxation . I should add that while, from the point of view of the respondent, I obtain no assistance from a consideration of s. of the Act, I cannot agree with the submission on behalf of the appellant that it establishes non-taxability of the appellant. The appeal should be dismissed with costs.
J. (dissenting):--All the material facts of this case have been fully recited by the Chief Justice and my brother Martland, and it is therefore unnecessary to deal with them once more.
The learned trial judge has reached the conclusion that the sum of $250,000 paid to the appellant in 1951, constituted income within the meaning of the Act and was properly assessed as such.
I cannot escape the conclusion that a substantial part of this amount paid to the appellant by Robert A. Brown Jr., was a capital receipt in the circumstances of this case, and not taxable as such.
The appellant had been with the Imperial Oil Company since 1933, with one short interval, and in August, 1951, was manager of the Producing Department. He enjoyed a very high reputation as a geologist, and was a man of extensive knowledge. He earned a salary of $25,000 a year, and on two occasions had been invited to become a director of the company. If the appellant had remained in the employment of Imperial Oil Co. or an affiliated company, he would have been entitled, when reaching the retirement age of 65, to an annual pension of approximately $12,500, and as an employee of the company, many other privileges were available to him, such as group insurance, sick benefits, and a stock purchase privilege. There were also great possibilities of salary increases.
It would indeed have been a very poor bargain for the appellant to enter into, without insisting upon a fair compensation, as he did in his written agreement with Brown, for foregoing such substantial actual and eventual benefits. I do not think however that the total of this amount of $250,000, which is in my view divisible, was paid to the appellant as consideration of the loss of those benefits. I believe that a proportion was for personal services to the new employer. As this division has not been made by the trial judge, I would allow the appeal with costs, and refer the case back to the Exchequer Court so that it may apportion the part of this sum of $250,000 which is income, and therefore taxable, and the other part which is of a capital nature.
J.:-The facts of this case are contained in the judgment of the Chief Justice, including the contents of the agreement dated August 15, 1951, made between the appellant and Mr. R. A. Brown Jr. I agree with counsel for the respondent that this agreement must be considered in conjunction with the agreement of the same date, between the appellant and Federated Petroleums Limited (hereinafter referred to as "Federated"), which was executed immediately following the execution of the first-mentioned agreement. The agreement with Mr. Brown specifically recites that Brown, the holder of a substantial interest in Federated, is very desirous of persuading the appellant to resign from his position with Imperial Oil Limited in order to be free to accept an offer of employment from Federated. The employment contract with Federated enabled it to require the appellant to serve as manager of any other company or companies in which Federated had a financial interest.
Mr. Brown's evidence made it quite clear that his purpose in approaching the appellant and paying him the consideration of $250,000 was in order that the appellant would be available to become associated with Federated and that it was his wish, for the reasons which he gave, that, if possible, the appellant should become President and Managing Director of Home Oil Company Limited (hereinafter referred to as "Home"). At that time, though both Brown and Federated held substantial interests in Home, they did not have control of it and Brown was not then a director of Home.
In due course, subsequently, the appellant did become president and managing director of Home and Brown became a director of that company.
These circumstances make it clear that the $250,000 payment was made by Brown to the appellant and received by the appellant to induce him to serve as manager of Federated or of Home and preferably, if possible, the latter. This being so, it seems to me that it constituted a payment for services to be rendered by the appellant.
For the appellant it is contended that the payment represented a capital receipt and not income. The argument is based upon the proposition that the agreement made by him with Brown was to provide compensation for loss or relinquishment of a source of income, which source was of itself a capital asset of the appellant.
J. In support of this submission several English decisions and an Australian case were cited. All of these were, however, cases in which an employer purchased from its employee a surrender by the latter of rights which he had previously held as against the employer. Thus, for example, in Hunter v. Dewhurst' (a case which has been regarded in later decisions as arising in very special circumstances) the employee, for a consideration, released the employing company from a contingent liability. The payment was distinguished by the majority of the House of Lords from being remuneration under the contract of employment.
Hose v. Warwick was a case in which the employee, for a consideration, turned over to the employing company his extensive personal connection in the insurance business, which he had previously been entitled to retain for himself.
In Tilley v. Wales', the taxpayer had been employed by a limited company as Managing Director at a fixed salary of 6,000 pounds per annum and had a right to receive a pension of 4,000 pounds per annum for a period of ten years after cessation of his employment. He entered into an agreement with the company to release it from its obligation to pay the pension and to reduce the salary to 2,000 pounds per annum in consideration of 40,000 pounds paid to him by the company in two consecutive, annual instalments of 20,000 pounds each.
The House of Lords held that so much of the payment as represented consideration for a reduction in salary was income and subject to tax, but that the consideration received by the taxpayer for commutation of his pension rights was not income.
Duff v. Barlow' is a case in which the employee surrendered his right to remuneration for services being rendered by him to a subsidiary of the employing company in consideration of a lump-sum payment. The parent company had decided that it was in its interest to terminate the agreement under which these services were being rendered and it was determined.
It was held that, as there was thereafter no obligation to perform services for the subsidiary, such services could not be any part of the consideration for which the lump sum was paid.
In Beak v. Robson', the money consideration received by the employee was for his covenant not to compete for five years within a certain radius if and when he terminated or caused to be terminated his contract of employment. The Australian case cited was that of Bennett v. Federal Commissioner of Taxation .
The payments in question there were made to an employee for the cancellation of an employment agreement, which was replaced by another contract under which the term of employment had been reduced and the employee had been shorn of his previous absolute control of the company.
All of these are cases in which the money payments to an employee have been held not to constitute taxable income because they were not made in respect of the performance of services by the employee, but rather in order to acquire from him rights which he had previously held against the employer.
On the other side of the line are cases such as Cameron v. Prendergast3, where the House of Lords decided that a lump-sum payment made to a Director to induce him not to resign his Directorship of a limited company was a profit from his Directorship and, as such, was liable to tax. In that case it was held that the payment was made so that the taxpayer would continue to perform services as a Director of the company. The contention that the payment was made merely to persuade the taxpayer not to exercise the right which he had to resign from office was rejected. In the present case it is clear that Mr. Brown was not seeking to acquire any rights which the appellant had under his existing employment contract with Imperial Oil Limited. The agreement made by Brown with the appellant and Brown's evidence make it clear that he was seeking to acquire the skilled services of the appellant as a manager.
In order that those services might be available it was necessary that the appellant should resign from his position with MINITER OF Imperial Oil Limited and such resignation resulted in the
NATIONAL forgoing by him of various advantages which his employ- . ment with Imperial Oil Limited carried and which are Martland J. referred to in the agreement. However, the essence of the matter was the acquisition of services and the consideration was paid so that those services would be made available.
I, therefore, think that the payment made to the appellant by Brown, under the agreement of August 15, 1951, was income to the appellant within the meaning of s. 3 of the Income Tax Act, which provides:
3. The income of a taxpayer for a taxation year for the purposes of this Part is his income for the year from all sources inside or outside
Canada and, without restricting the generality of the foregoing, includes income for the year from all
(a) businesses,
(b) property, and
(c) offices and employments.
5. Income for a taxation year from an office or employment is the salary, wages and other remuneration, including gratuities, received by the taxpayer in the year plus ...
2 A. An amount received by one person from another,
(a) during a period while the payee was an officer of, or in the employment of, the payer, or
(b) on account or in lieu of payment of, or in satisfaction of, an obligation arising out of an agreement made by the payer with the payee immediately prior to, during or immediately after a period that the payee was an officer of, or in the employment of, the payer, shall be deemed, for the purpose of section 5, to be remuneration for the payee's services rendered as an officer or during the period of employment, unless it is established that, irrespective of when the agreement, if any, under which the amount was received was made or the form or legal effect thereof, it cannot reasonably be regarded as having been received
(i) as consideration or partial consideration for accepting the office or entering into the contract of employment,
(ii) as remuneration or partial remuneration for services as an officer or under the contract of employment, or
N
^NAION Counsel for the respondent conceded that s. 24A was not J applicable to the circumstances of this case.
Counsel for the appellant, however, urged that s. 24A was enacted in order to broaden the scope of s. 5 so as to tax certain kinds of income not otherwise taxable under s. 5. He pointed out that s. 24A might have applied to the payment in question here if it had been made to the appellant by Federated or by Home. Since it did not apply, because the payment was not made by the appellant's employer, he contended that the payment could not be regarded as income within s. 3, because so to hold would make s. 24A meaningless in its application.
It seems to me, however, that s. 24A was essentially a provision dealing with onus of proof and deemed certain payments as therein defined to be payments within s. 5, unless the recipient could establish affirmatively that a payment did not reasohably fall within the provisions of paras. (i), (ii) or (iii) of s. 24A. I do not think that it follows that payments which would fall within s. 24A, except for the fact that they were made by someone other than the employer, of necessity cannot be income within the provisions of s. 3.
In my opinion the appeal should be dismissed with costs. Appeal dismissed with costs, J. dissenting. Solicitors for the appellant: Chambers, Might, Saucier, Milvain, Peacock, Jones & Black, Calgary.
Solicitor for the respondent: A. A. McGrory, Ottawa. Surety-Prepayment by surety-No gift intended-Rights against debtor-Whether accelerating remedy-Whether surety's character changed to mere volunteer- Action for declaration before due date of debt.
v. et al., 661.
AGENCY
Real estate sale-Undisclosed purchaser
-Objections of vendor to purchaser after acceptance of offer-Refusal to pay agent's commission-Whether identity of purchaser material-Whether conflict of interest on part of the agent-Whether agent entitled to commission.
&
LTD. et al., 753.
ANIMALS
Negligence-Cattle straying on highway
-Pastured on road-Collision with motor vehicle-No by-law prohibiting straying- Liability of owner of cattle-Trespass- Whether law of England same as law of
Ontario.
AUTOMOBILES
Collision-Credibility of witnesses-Inferences from physical facts-Judgment at trial reversed on appeal-Art. 1053 of the Civil Code.
v. 21.
BANKRUPTCY
1. Garnishment-Monies paid into Court- Rights of garnishor and trustee in bankruptcy-Whether garnishor a
"secured creditor"-The Bankruptcy Act, R.S.C.
1952, c. 14, as. 2(r), 41(1), 42(2), 43(2),
86, 95(2).
BANKRUPTCY-Concluded CREDIT MEN'S TRUST Assoc. LrD. v. BEAVER TRUCKING LTD. et al., 311. 2. Company-Liability of former shareholder as contributory-The Bankruptcy Act. R.S.C. 1927, c. 11, a. 70(1), (3). TREMBLAY v. et al., 690. 3. Trustee under proposal-Remuneration -Subsequent bankruptcy of debtor-New trustee appointed-Whether claim of former trustee under proposal privileged-The Bankruptcy Act, R.S.C. 1952, c. 14, Part III, ss. 34, 38, 95.
PERRAs V. BOULET et al., 838.
CIVIL CODE
1.-Articles 992, 993 (Error and Fraud)............................ See 4. 2.-Article 1028 (Effect of tracts with regard to third persons),.. . . 206 See 1.
5.-Article 1053 (Quasi-offence)..... See 2.
6.-Article 1053 (Quasi-offence)..... 397 See 3.
7.- Article 1053 (Quasi-offence)..... See 6.
8.-Article 1053 (Quasi-offence)..... See MOTOR VEmcLsS 2. 9.-Article 1054 (Quasi-offence)..... See 5.
10.-Article 1054 (Quasi-offence).... 71117-6-31
CIVIL CODE-Concluded
11.-Article 1056 (Quasi-offence)....
12.-Articles 1106, 1117, 1118 (Joint and Several obligations).............
13.-Article 1156 (Payment with subrogation)........................
14.- Article 1710 (Mandate)....... 206
Articles 1716, 1727 (Mandate). 397
16.- Article
(Short prescription)..........................
17.-Article
2262(2)
(Short prescription)..........................
CODE OF CIVIL PROCEDURE
1.-Article 81 (Parties to actions)... 843
LABoUR 2.
2.-Article 88 (Actions against public officiers).......................
COMPANIES
Removed from register-Escheat of land
-Company
"dissolved" within The Escheat
Act, R.S.B.C. 1948, c.
112-Company restored to register under The Companies
Act, R.S.B.C. 1948, c. 58-Whether company entitled to claim land under The
Quieting Titles Act, R.S.B.C. 1948, c.
282-Application maxim generalia specialibus non derogant.
THE
LTD., 736.
CONSTITUTIONAL LAW
1. Municipal corporations-By-laws--Validity-Licensing of restaurants and places of amusement-Licence requiring approval of chief of police-Whether delegation of power of municipality-Charter of the
City of Montreal, ss. 299, 299a, 300,
300(c).
CONSTITUTIONAL LAW-Concluded CIrY 2. Validity of provincial enactment authorizing municipality to permit Sunday sport-Permissive enactment-Whether within exception of s. 6 of the Lord's Day Act, R.S.C. 1952, c. 171-Whether criminal legislation-Whether delegation of authority-The
Criminal
1953-54 (Can.), c. 51, as. 7, 8, 11-The Constitutional
Questions
Determination R.S.B.C. 1948, c. 66.
et al., CONTRACTS
1. Mines and minerals-Agreement develop oil areas-Terms of letter to be embodied in formal agreement to follow- Unsettled matters to be arbitrated- Whether enforceable contract-Whether binding contract-The Arbitration Act, R.S.A. 1955, c. 15
& Co. 2. Agreement to manufacture and deliver concrete pipe-Bond furnished for proper performance-Defective pipe-Breach contract treated by one party as repudiation-Whether breach of implied conditions under 16(1), (2) of The Sale of Goods Act, R.S.S. 1953, c. 353-Whether contract wrongfully repudiated-Damages. et al., 801.
COPYRIGHTS
1. Infringements-Public (performance of music-Whether coin-operated phonograph or "juke box" in restaurant a gramophone- The Copyright Act, R.S.C. 1952, c. 55, a. 50(7).
C.A.P.A.C.
Co. et al., 488.
2. Infringement-Literary work-Film- Plaintiff not author but assignee-Plaintiff's title put in issue-Presumption arising from certificate of registration- Evidence-Burden of proof-Admissibility of copies of assignment-Damages-The Copyright Act, R.S.C. 1927, c. 532, as amended.
FILu
C.B.C., 602.
-Mandamus for issuance of licence to operate restaurant-Licence would have expired prior to notice of appeal-Restaurant sold prior to argument in this Court- Whether lis remains between parties.
CRIMINAL LAW
1. Theft-Admissibility of statement of accused-Whether dissent on question of law-The Criminal Code, 1953-54(Can.), c. 51, s. 597(1)(a).
v. 369.
2. Charge jury-Drunkenness-Provocation-Rule in Hodge's case-Criminal
Code, 1953-54(Can.), c. 51, ss. 201(a)(ii), v. THE 404.
3. Acquittal at non-jury trial on charge of criminal negligence causing death-No evidence offered by accused after Crown's case-Crown nonsuited-Reasonable doubt
ROSE THE 441.
4. Juvenile delinquents-Whether notice of hearing served on parents-Conviction made in absence of parents-Certiorari- Lack of jurisdiction-Leave to appeal granted by Supreme Court of Canada- Criminal Code, 1953-54(Can.), c. 51, ss. 141,
414, 705, 708(1)-The Juvenile Delinquents
Act, R.S.C. 1952, c. 160, s. 10(1)-The
v. THE 638.
5. Possession of stolen bonds-Whether guilty knowledge-Evidence-Explanation reasonably true-Whether inconsistent with any rational explanation- Criminal
1953-54(Can.), c. 51, s. 296.
v. THE 652.
6. Bribery-Conspiracy-Minister of the
Crown-Whether an "official"-Offences under the old Code-Prosecution commenced after coming into force of new
Code-Whether limitation period provided
CRIMINAL LAW-Concluded by old Code applicable-Effect of transitional provisions in new Code-Criminal Code, R.S.C. 1927, c. 36, ss. 158, 1140- Criminal Code, 1953-54(Can.), c. 51, ss. 102(e), 745, 746.
et al. v, THE CROWN
1. Officers of the Crown-Powers responsibilities-Prime
Minister Attorney-General-Quebec
Liquor Commission-Cancellation of licence to sell liquor-Whether made at instigation of Prime Minister and Attorney-General- The Alcoholic Liquor Act, R.S.Q. 1941, c. 255-The Attorney-General's Department Act, R.S.Q. 1941, c. 46-The Executive Power Act, R.S.Q. 1941, c. 7.
RONCARELLI v. DuPLEssis, 121. 2. Sunday observance-Information under the Lord's Day Act, R.S.C. 1952, c. 171, s. 4, laid against the Canadian Broadcasting Corporation-Whether Act binding on Her Majesty-Whether Act binding on Corporation-Immunity- of Sovereign- Writ of prohibition to prevent further proceedings-The Canadian Broadcasting Corporation Act, R.S.C. 1952, c. 32-The Interpretation Act, R.S.C. 1952, c. 158, s. 16-The Criminal Code, 1953-54(Can.), c. 51, s. 2(15).
C.B.C. v. 188. 3. Petition of right-Claim for breach of contract-Tenant of . former owner remaining in occupation of expropriated Crown land-Nature of tenancy-Absence of authority of Governor in Council- Destruction of chattels on direction of Crown servant by independent contractor Crown liable-Civil Code, art. 1053-The Exchequer Court Act, R.S.C. 1927, c. 34, es. 18, 19(b), (c)-The Public Works Act, R.S.C. 1927, c. 166, s. 18. et al. THE 401. DAMAGES
1. Employee injured-Workmen's compensation paid by employer-Subrogation in favour of employer-Actions by employer and victim against tort-feaser-Apportionment of damages-Workmen's Compensation Act, R.S.Q. 1941, c. 160, ss. 7(3), 8. Co. et al., 43.
DAMAGES-Concluded
2. Action against police officers for false imprisonment and malicious prosecution- Jehovah's Witnesses-Distribution of literature-Defence of prescription-The Magistrate's Privilege Act, R.S.Q. 1941, c. 18, as. 5, 7-The Provincial Police Act, R.S.Q.
1941, c. 47, es. 24, 36-Civil Code, art.
v. BENOIT et al., 321.
3. Land used by tenant expropriated by
Crown-Failure of tenant to remove chattels as requested-Contractor removing same to commence excavation-Damages claimed from contractor-Liability of mandatary for delict or quasi-delict-Civil
Code, arts. 1053, 1716, 1727.
et al. v. MIRoN & FRERE et al.,
4. Action recursoire-Claim against City of Montreal, as joint tort-feaser, for share of amount paid in settlement of action in damages-Pedestrian injured following collision between two vehicles-Stop sign not in place at intersection-Pedestrian's action against owners of vehicles instituted more than six months after accident-Whether
City's liability extinguished by prescription joint and several liability- Charter of the City of Montreal, art. 45- Civil Code, arts. 1106, 1117, 1118, 1156,
LAPIERRE v. CITY 434.
5. Flooding caused by failure of valve in a steam generating system-"Gardien juridique"-Whether damage preventable by use of reasonable means-Whether onus under art. 1054 of the Civil Code satisfied.
M. & W. LTD. V. COOPERBERG et al., 785.
6. Dangerous premises-Garage-Customer falling in greasing pit-Customer aware of location of pit-Whether garage owner liable-Art. 1053 of the Civil Code al., 793.
DOMICILE
Divorce-Whether domicile of choice acquired.
OsvATn-LATKOCZY V. OSVATu-LATKOCzY et al., 751.
EXPROPRIATION
Minister of the Crown-Minister empowered by statute to grant power of expropriation to public utility-Whether Whether obliged to grant hearing and act judicially-Whether right-of-way for power lines interest in land-The Water Resources Act, R.S.A. 1942, c. 65.
POWER
LTD.
et. al. COPITHORNE, 24.
HOSPITALS
Hospital Board's statutory power of general management of public hospital -Validity of by-law excluding qualified practitioners from attending patients hospital-Validity of by-law prohibiting fee-splitting among practitioners enjoying hospital privileges-The City of London Act, 1954(Ont.), c. 11.-The Public Hospitals Act, R.S.O. 1950, c. 307.
et al. v. et al., 655. HUSBAND AND WIFE 1. Defendant committed adultery with plaintiff's wife-Action for damages for adultery joined with action for loss of consortium and enticement-Wife continued to reside with husband-Measure of damages-The Domestic Relations Act, R.S.A. 1942, c. 300, ss. 13, 14, 32, 33- The Limitation of Actions Act, R.S.A. 1942, c. 133.
2. Real property-House purchased by husband in wife's name-Trust claimed by husband-Whether presumption advancement rebutted.
INSURANCE
1. Indemnity bond-Secretary-treasurer of municipal corporation-Disappearance of funds-Secretary-treasurer not to blame- Whether defective notice of claim-Whether type of loss contemplated by policy. v. & & GLOBE INS. Co. LTD., 47.
INSURANCE-Concluded
2. Policies covering property damage and loss of profits or business interruption caused by riot-Riot of workmen forcing closing down of plant-Resultant damages to property and loss of profits-Whether exclusion clause applicable.
FORD MOTOR CO. I/TD.
Co. l/m. et al.,
3. Automobile-Policy providing for extended coverage-Claim by injured passenger against insurer-Right of insurer to set up defences available against insured
-Breach of statutory condition by insured forfeiture-Whether passenger entitled to relief denied to insured-The
Insurance Act, R.S.M. 1954, c. 126, ss. 6,
123, 215, 227-Staturory Condition 6.
INDEMNITY Co. v.
et al., 672.
LABOUR
1. Collective agreement-"Rand Formula"
compulsory check-off clause a
"condition de travail"-Whether valid in the Province of Quebec-The Labour
Relations Act, R.S.Q. 1941, c. 162A, as amended-The Professional Syndicates' Act
R.S.Q. 1941, c. 162, as amended-Arts.
1028, 1710 of the Civil Code.
EMPLOYtS
QUtBEC V.
LTE., 206,
2. Trade union funds-Monies stolen from association holding same for union- Association having no juridical existence incapacity to sue-Trustee
-Deposit-Mandate-Art.
81 of the Civil
Code of Procedure.
PERRAULT et al. V. POIRIER et al., 843.
LIBEL AND SLANDER
School teacher dismissed-Statutory duty communicate reasons to teacher- Defence of qualified privilege-Absence of evidence of malice-The Teachers'
Board
Reference
1946(Ont.), c. 97, s. 2.
V. OF
LICENCES
Cancellation-Motives of cancellation -Done on instigation of Prime Minister and Attorney-General-Whether liability in damages-Whether notice under art. 88 of the Code of Civil Procedure required. MASTER AND SERVANT Automobile-Accident-Taxi driver using employers' car to drive son to school, on payment of fare-Damages caused to third party-Liability of owner-Art. 1054 of the Civil Code.
MECHANICS' LIENS 1. Construction of sewers and mains on public highways for subdivision owner- Claim for price of materials supplied- Assignment of book debts by contractor- Whether sums received from owner by assignee held in trust-Whether trust dependent on right of lien-Whether contractor a "contractor" within the Act- The Mechanics' Lien Act, R.S.O. 1950, c. 227, as. 1, 2, 3, 5.
McAvITY & SoNs LTD., 478.
2. Mines minerals-Surface mineral lease of unpatented Crown lands- Liens for materials supplied for buildingsliens to be registered with Registrar of Land Titles or with Minister of Mines and Minerals-The
Mechanics' Lien Act, R.S.A. 1942, c. 236, as amended. MOLNER V. OIL & GAS Co. et al., 592.
MOTOR VEHICLES 1. Pedestrian injured-Statutory onus of driver-The Highway Traffic Act, R.S.O. 1950, c. 167, s. 51.
2. Head-on collision between two cars- Joint and several liability-Civil Code, art. 1053.
et al. v. Dupuis, 428.
1959]1
1. Waterworks-Municipality granting permit by resolution to erect and operate waterworks system-Whether exclusive franchise-Art.
of the
Municipal
HOGuE, et al., 38.
2. Restrictive building by-laws-Amendment to by-law affecting one lot only- Whether discriminatory-Consent of Municipal Board to amendment given after passing-Whether by-law invalid-The
Municipal Act, R.S.O. 1950, c. 243, s. 390.
TOWNSHIP V.
3. Zoning by-laws-Demand for gasoline station building permit-Permit refused- By-law amended subsequently-Mandamus-Whether accrued rights of owner of land-Effect and purpose of zoning statutory power.
PETROFINA v. MARTIN
CITY ST. 453.
4. Expropriation-Streets-Property subdivided-Indemnity claimed for work done for opening streets-The Cities and Towns
Act, R.S.Q. 1941, c. 233, as amended by
12 Geo. VI (1948), c. 74, s. 6.
VILLE
NEGLIGENCE
1. Express pick-up man calling at commercial building and falling down elevator shaft-Mechanical safeguards defective- Victim familiar with premises-Liability of building owner-Invitor and invitee- Concealed danger-Defence of independent contractor-Whether breach of statutory duty-The
Factory,
Shop and
Office
Building Act, R.S.O. 1950, c. 150.
v. MACINTOSH, 384.
2. Motorcyclist striking oil puddle on road and fatally injured-Action by widow for damages against municipality-Whether notice furnished on time-Prescription- Chater of- the City of Quebec, 19 Geo. V, c. 95, art. 535.-Arts. 1056, 2262(2) of the Civil Code.
V. QU*BEc et al., 609.
3. Police officer-Liability-Police car pursuing stolen car-Warning shot of no effect-Second shot aimed at rear tire- NEGLIGENCE-Concluded Uneven road causing shot to wound thiefdriver-Stolen car going out of control and killing two pedestrians on sidewalk- Whether excessive force used-Whether negligence-The Police Act, R.S.O. 1950, c. 279-The Criminal Code, 1953-54 (Can.), c. 51, ss. 25(4), 230, 232.
4. Municipality-Injury resulting from tripping into pothole in concrete curb of taxi stand-Duty of persons using the stand.
DUouocaL v. CrT 668. PATENTS
1. Compulsory licence-Power of Commissioner of Patents to grant licence- Patent covering both process and substance-Product having therapeuthic value -Product to be sold in bulk by licensee- Infringement-Market already served- Royalty--The Patent Act, R.S.C. 1952, c. 203, s. 41.
PARKE, DAVIS & v. LTD., 219.
2. Action for infringement-Pleadings- Reference to foreign patent-Motion to stike out-Whether irrelevant-Exchequer Court Rule 114.
. BEATTY BROS. v. et al., 245.
3. Process claims-Application of known method to known materials never before applied to them-Whether process claims disclose invention-Novelty-Utility-The Patent Act, R.S.C. 1952, c. 203, s.2(d). RAILWAYS
1. Duty of Board of Transport Commissioners to equalize freight traffic of same description-Whether carriage for domestic and for export traffic is of same description within the meaning of s. 336 of the Railway Act, R.S.C. 1952, c. 234, as enacted by 1951 (Can.), c. 22.
C.N.R. et al., 229. RAILWAYS-Concluded
2. Demurrage charges-Whether Board of
Transport Commissioners has power to refuse to allow demurrage charges-Whether charges contravene s. 328(6) of the Railway
Act, R.S.C. 1952, c. 234.
NORTH-WEST
ELEVATOns AssoCN.
et al. v. C.P.R. C.N.R. et al., 239
3. Carriage of goods-Statutory duty of railway-Duty to supply cars and pull loaded cars from siding-Union picketing shippers' non-union plant-Refusal of railway's employees to cross pickets line- Damages to shipper-Whether breach of statutory duty-Nature of duty-The Railway Act, R.S.B.C. 1948, c. 285, ss. 203, 222.
PATCHETr & LTD. PACIFIC GREAT
EASTERN RAILWAY Co., 271
REAL PROPERTY
1. Sale of land-Innocent misrepresentation by vendor-Contract affirmed purchaser-Whether contract can be rescinded.
v. 3.
2. Whether registered title protects purchaser against claim by adjoining owner based on prior adverse possession-The
Land Titles Act, R.S.O. 1950, c. 197, as.
23(1)
(c), 28(1)-The Limitations Act,
R.S.O. 1950, c. 207, es. 4, 15.
KZIw, 10.
3. Public square-Dedication-Intention- Paper title held by individual-Whether dedication by plan as public highway-The
Land Titles Act, R.S.O. 1950, c. 197.
WRIGHT
BRANCH, 418.
4. Sale of immoveable-Assignment of an
"obligation" owed to purchaser as payment-Erroneous interpretation by vendor of meaning of word "obligation" in agreement-Whether misrepresentation-Whether subjective error-Whether evidence of corroboration-Civil Code, arts. 992, 993.
v. 459.
5. Sale of - land-Description of land- Whether uncertainty of description-No agreement on what to be sold and what to be retained-Whether contract enforceable- Condition that property be annexed by village and subdivision plan approved- REAL PROPERTY-Concluded condition precedent-Whether right of waiver-The Statute of Frauds, R.S.O. 1950, c. 371.
et al. v. 578. 6. Sale of land-Specific performance- Breach of contract-Vendor's claim for specific performance and damages-Plaintiff disposed of property while trial pending foundation for claim in damages gone-Right to elect remedy-Pleadings- Items of recoverable damages-The Judicature Act, R.S.O. 1950, c. 190.
DoBsoN v. ROBINs 775. SURETY
Whether variation in contract without knowledge or consent of surety-Whether surety liable for breach of contract by principal.
et al., SHIPPING
Contracts-Carriage of goods by water- Bill of lading not issued-Truck damaged en route-Limitation of liability-The Water Carriage of Goods Act, R.S.C. 1952, 291, art. IV, rule (5).
Co. v. STATUTES
I.-Alcohole Liquor
R.S.Q. c. 255........................
STATUTES-Continued
6.-Bankruptcy Act, R.S.C. 1927, c. 11, s. 70(l),(3)....................
7.-Bankruptcy Act, R.S.C. 1952, c. 14, Part III,as.34,38,95...........
8.---Canadian
Broadcasting
Corporation Act, R.S.C. 1952, c. 32........
CRoWN 2.
9.--Charter of the City of Montreal, as. 299, 299a, 300, 300(c).............
10.- Charter of the City of Montreal, s.45...............................
11.--Charter of the City of Quebec,
19 Geo. V, c. 95, art. 535............
12.-Cities and Towns Act, R.S.Q.
1941, c. 233, as amended by 12 Geo.
VI, c. 74, e. 6...................
13.--City of London Act, 1954
(Ont.), c. 11....................
14.---Companies Act, R.S.B.C. 1948, c.58..............................
Constitutional Questions Determination Act, R.S.B.C. 1948, c. 66 .....
16.---Copyright Act, R.S.C. 1952, e.
55,s.50(7).....................
17.-Copyright Act, R.S.C. 1927, c.
532, as amended....................
18.-Criminal Code, 1953-54 (Can.), c. 51, as. 7, 8, 11....................
19.-Criminal Code, 1953-54 (Can.), c. 51, s. 597(1)(a)...................
20.--Criminal Code, 1953-54 (Can.), c. 51, as. 201(a)(ii), 203..............
STATUTES-Continued 22.-Criminal Code, 1953-54 (Can.), c. 51, ss.:141, 414, 705, 708(1)........ 23.-Criminal Code, 1953-54 (Can.), c.'51, a. 296....................
24.-Criminal Code, R.S.C. 1927, c. 36, a.1158, 1140.................. 25.-Criminal Code, 1953-54 (Can.), c. 51, as.102(e), 745, 746............. 26.---Criminal Code, 1953-54 (Can.), c. 51, a. 2(15).............. ..... 27.-Criminal Code, 1953-54 (Can.), c. 51, as. 25(4), 230, 232............. 28.-Customs Act, R.S.C. 1952, c. 58, as. 35(1), (2), (3), (7)............. 29.-Domestic Relations Act, R.S.A. 1942, c. 300, as. 13, 14, 32, 33......... 30.- Devolution of Real Property Act, R.S.A. 1955, c. 83.............. 31.-Escheat Act, R.S.B.C. 1948, c. 112................................ 32.-Exchequer Court Act, R.S.C. 1927, c. 34, ss. 18, 19(b), (c).......... See 3. 33.-Executive Power Act, R.S.Q. 1941, c.7......................
34.-Factory,
Shop
Office Building Act, R.S.O. 1950, c. 150 ...... 35.-Highway Traffic Act, R.S.O. 1950, c. 167, a. 51................... 36.-Income Tax Act, 1948 (Can.), c. 52, as. 3, 4.........
........... 37.-Income Tax Act, 1948 (Can.), c. 52, as. 17, 20.................. STATUTES-Continued
39.-Income Tax Act, 1948 (Can.), c. 52, ss 2(1), (3), 3, 4, 127(1)(e) .....
40.-Income Tax Act, 1948 (Can.), c. 52, ss 3, 4....................
TAxATIoN 6.
41.-Income Tax Act, 1948 (Can.), c. 52, 3, 4, 6(b), 11(1)(c), 38(1),
127(1)(av).....................
42.-Income Tax Act, R.S.C. 1952, c. 148, se. 3, 4, 6(b), 11(1)(c), 41(1),
139(1)(az)......................
43.-Income Tax Act, 1948 (Can.), c. 52, 2(1), 3, 5, 24A..............
44.-Insurance Act, R.S.M. 1954, c. 126, se. 6,123,215,227.............
45.- Interpretation
R.S.C.
1952, c. 158, s. 16...................
46.-Judicature Act, R.S.O. 1950, c 190.........................
47.-Juvenile Deliquents Act, R.S.C.
1952, c. 160, s. 10(1)..............
48.-Labour Relations Act, R.S.Q.
1941, c. 162A, as amended...........
49.-Land Titles Act, R.S.C. 1950, c. 197, es. 23(1)(c), 28(1).............
50.-Land Titles Act, R.S.O. 1950, c. 197.........................
51.-Land Titles Act Clarification
Act, 1956 (Alta.), c. 26..............
52.- Limitation of Actions
R.S.A. 1942, c. 133..................
56.- Magistrate's
Privilegc R.S.Q. 1941, c. 18, ses. 5, 7............ 57.-Mechanic's Lien Act, R.S.O. 1950, c. 227, ss. 1, 2, 3, 5............. MECHANIcS' LIENS 1. 58.-Mechanics' Lien Act, R.S.A. 1942, c. 236, as amended............. MECHANICS' LIENS 2. 59.-Municipal Act, R.S.O. 1950, c. 243, s. 390....................... 60.- Municipal Code, art. 408...... 61.-Patent Act, R.S.C. 1952, c. 203, s.41.......................... 62.-Patent Act, R.S.C. 1952, c. 203, s. 2(d)......................... 63.-Police Act, R.S.O. 1950, c. 279................................ 64.-Professional Syndicates' Act, R.S.Q. 1941, c. 162, as amended ...... LABOUR 1. 65.-Provincial Police Act, R.S.Q. 1941, c. 47, ss. 24, 36................ 66.-Public Hospitals Act, R.S.O. 1950, c.307....................
67.-Public Works Act, R.S.C. 1927, c. 166, s. 18....................
68.---Quieting Titles Act, R.S.B.C.. 1948, c. 282....................
STATUTES-Concluded
69.- Railway Act, R.S.C. 1952, c.
234, e. 336, as enacted by 1951 (Can.), c. 22..............................
229 I
70.-Railway Act, R.S.C. 1952, c.
234, s. 328(6).......................
71.-Railway Act, R.S.B.C. 1948, c. 285, ss. 203,222................
72.-Sale of Goods Act, R.S.S. 1953, c. 353.........................
73.--Statute of Frauds, R.S.O. 1950, c.371.........................
74.-Supreme
Court Act, R.S.C.
1952, c. 259, s. 41................
75.-Teachers' Board of Reference
Act, 1946 (Ont.), c. 97, s. 2...........
76.-Water Carriage of Goods Act,
R.S.C. 1952, c. 291, art. IV, rule (5)....
77.-Water Resources Act, R.S.A.
1942, c. 65....................
78.-Workmen's Compensation Act,
R.S.Q. 1941, c. 160, 7(3), 8.........
TAXATION
1. Income tax-Distributor of automobiles receiving rebates from supplier-Whether rebates forgiveness of debt or trading profit-The Income Tax Act, 1948 (Can.), c. 52, ss. 3, 4.
2. Income tax-Capital cost allowance- Timber limit purchased by taxpayer in non-arm's-length transaction-Timber limit not operated by vendor-Whether "depreciable property"-The
Income Tax
Co. LTD.
TAXATION-Continued 3. Income tax-Company funds diverted president-Legal, telephone travelling expenses paid by other shareholder obtain winding-up orderdeductible from shareholder's income-The
Income
Tax
(Can.), c. 52, as. 2, 3, 4, 12, 81.
4. Municipality-"Concentrator"-Assesment of an "iron ore recovery plant"exempt from assessmentliable busniess tax-The Assessment Act, R.S.O. 1950, c. 25, as. 6, 33. CO. 585.
5. Income tax-Sale of one's of taxpayer's operations including inventory-Whether sale of separate business-Whether profit on inventory taxable-The Income Tax Act, 1948 (Can.), 52, 2(1), (3), 3. 4, 127(1)(e).
FRANKEL LTD.
MINISTER NATIONAL REVENUE, 729. 7. Income tax-Foreign tax credit- Interest from U.S. sources-No business carried on there-Payment of U.S. withholding tax-Whether tax credit dependent on whether profit made in U.S.- Interest paid on borrowed money exceeding U.S. interest receipts-Canada-U.S. Tax Convention-The Income Tax Act, 1948 (Can.), c. 52, as. 3, 4, 6(b), 11(1)(c), 38(1), 127(1)(av)-The Income Tax Act, R.S.C. 1952, c. 148, ss. 3, 4, 6(b), 11(1)(c), 41(1), 139(l)(az).
PIPE
REVENUE, 763. 8. Excise tax-Value for duty of imported electric refrigerator-The Customs Act, R.S.C. 1952, c. 58, s. 35(1), (2), (3), (7). DEPUTY
9. Income-Lump sum paid under agreement to resign from position and accept new employment-Loss of pension rights TAXATION-Concluded and opportunity for promotion-Whether sum income or capital-The Income Tax
REVENUE, 850.
TRIAL
Jury-Juror indicating in open Court misapprehension of certain fact-Whether duty of trial judge to redirect jury-No substantial wrong or miscarriage of justice.
McRAE v. 16.
WILLS
1. Joint will by husband and wife-Interpretation on death of husband-Subsequent
WILLS-Concluded transfer of all assets to surviving wife- Whether trust on wife by virtue of agreement leading to joint will-Beneficiaries named in joint will-Whether wife can add other beneficiaries by her will-Whether previous interpretation of joint will was res judicata.
et al. v. et al., 102. 2. Trust estates-Oil lease granted executrix approved by Court-Opposition by beneficiary of 1/28 interest in minerals- Whether delay in administration-Whether oil lease a lease of real property-The Devolution of Real Property Act, R.S.A 1955, c. 83-The Land Titles Act Clarification Act, 1956 (Alta.), c. 26.
et al., 568.
Cases cited
- A.C. 549 A.C. 549
- Tilley v. Wales A.C. 386
Statutes and regulations cited
-
- s. 18
- ss. 7(3)
- 8
- ss. 18
-
Unresolved citations
- Subsection (1)
- s. 3 of the Income Tax Act, 1948
- paras. (i)
- (ii)
- (iii)
- s. 6 of the Lord's Day Act
- s. 336 of the Railway Act