Majority
On June 30, 1955, both Pipelines and Harquail filed caveats against the mining claims. Harquail had deposited $25,000 with the Canadian Bank of Commerce at Uranium City on June 28, 1955.
Pipelines obtained from the prospectors the documents of title with respect to the mining claims, together with J. transfers executed in blank by the persons in whose names the claims were recorded. Certain of the claims were actually transferred into the name of Pipelines.
On July 20, 1955, Frobisher commenced action for specific performance of its agreement with the prospectors and on the same date obtained an injunction restraining the respondents from selling, transferring or otherwise disposing of, or entering upon, drilling, exploring, developing, operating or otherwise dealing with the mining claims until the final disposition of the action.
The various respondents, in their statements of defence, pleaded that the agreement between Frobisher and the prospectors was invalid because it had been made on Sunday, June 26, 1955. They also contended that no consideration had been paid by Harquail to the prospectors and that Harquail did not enter into the agreement as agent of Frobisher.
Pipelines, Morrisroe and Meschi also counterclaimed against Frobisher, claiming compensation, pursuant to Reg. 124 of the Quartz Mining Regulations of Saskatchewan, enacted pursuant to The Mineral Resources Act, on the ground that the caveat filed by Harquail had been registered wrongfully and without reasonable and probable cause. A similar counterclaim was also made against Frobisher by Oak and Amren. Pipelines, Morrisroe and Meschi did not submit this contention in the present appeal, but Oak and Amren did.
The respondents Daigle and MacKinnon did not make any counterclaim against Frobisher, but did counterclaim against Pipelines, seeking a declaration that the agreement between Pipelines and the prospectors had been terminated, or, alternatively, that it should be rescinded on the grounds of undue influence and misrepresentation. The main issues at the trial, which was a lengthy one, were those raised by the statements of defence as to the validity of the agreement between Frobisher and the prospectors. The learned trial judge, on ample evidence, found that these defences failed, that the agreement was made on Saturday, June 25, 1955, that there was consideration for the agreement and that it had been made by Harquail as agent for Frobisher. These findings were subsequently upheld by the Court of Appeal of Saskatchewan' and these issues were not involved in the hearing before this Court.
Toward the end of the trial a motion was made on behalf of the respondents Pipelines, Morrisroe and Meschi to amend their statement of defence so as to plead regulations motion was refused by the learned trial judge. The Court of Appeal, Gordon J.A. dissenting, was of the opinion that the amendment should have been allowed and that there should be a new trial restricted to the issues raised by the amendment.
At the conclusion of the trial it was contended by
Frobisher that it should be entitled to compensation, pursuant to regulation 124, on the ground that the caveat filed by Pipelines had been registered wrongfully and without reasonable cause. Argument was subsequently presented regarding the validity of the regulation in question at a hearing at which the Attorney-General of Saskatchewan was represented. The learned trial judge later held that regulation 124(4) was ultra vires and he refused Frobisher's application to amend its statement of claim to claim damages pursuant to that particular regulation.
With respect to this issue, in the Court of Appeal,
Martin C.J.S. agreed with the learned trial judge that regulation 124(4) was ultra vires. Procter J.A., McNiven J.A.
and Culliton J.A. were of the opinion that there was no valid claim under regulation 124(4), since no damage had been proved by Frobisher. Gordon J.A. was of the opinion that leave should not have been given to Frobisher to raise this issue by an amendment to its statement of claim.
The counterclaim of Daigle and MacKinnon as against Pipelines, which had been allowed by the learned trial judge, was dismissed by the Court of Appeal and no appeal was taken to this Court from that part of the judgment of the Court of Appeal.
At the trial the learned trial judge ruled that counsel for J. Pipelines, Morrisroe and Meschi was not entitled to crossexamine MacKinnon and Daigle, except only in respect of the issues raised in the counterclaim of MacKinnon and Daigle as against Pipelines.
On appeal it was contended by Pipelines that, because of this refusal to permit cross-examination by the learned trial judge, a new trial should be ordered. Four of the five judges of the Court of Appeal held that the learned trial judge should have permitted the cross-examination of MacKinnon and Daigle by counsel for Pipelines, Morrisroe and Meschi. Martin C.J.S. was of the opinion that the ruling of the learned trial judge was correct. However, four of the five judges held that in the light of the other evidence no substantial wrong or miscarriage of justice had been occasioned by the ruling the learned trial judge and accordingly held that a new trial should not be granted on this ground. Procter J.A. would have granted a new trial.
On the present appeal the following questions were in issue:
I agree with the view of the majority in the Court of Appeal that the learned trial judge ought to have granted the amendment to the statement of defence so as to plead the non-compliance by Harquail and Frobisher with the provisions of regulations 8(1) and 9(1).
Rule 209 of the Queen's Bench Rules provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and upon such terms as may be just and all such amendments shall be made as may be necessary for the purpose & of determining the real questions in controversy between the parties. Lord Esher, in Steward v. North Metropolitan Tramways Company', stated the general rule as to amendments as Martland J. follows:
The rule of conduct of the Court in such a case is that, however negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed, if it can be made without. injustice to the other side. There is no injustice if the other side can. be compensated by costs: but, if the amendment will put them into such a position that they must be injured, it ought not to be made.
The issue raised by the proposed amendment was one which questioned the legal validity of the agreement of June 25, 1955. If decided in favour of Pipelines, the claim of Frobisher would fail. It was, therefore, an issue of vital importance which Pipelines should have been entitled to raise, unless by making the amendment Frobisher would have been put into a position that it must be injured. I do not think, despite the weighty arguments of Gordon J.A. to the contrary, that Frobisher would have been placed in such a position and consequently I am of the opinion that the amendment should have been allowed.
Regulations 8 and 9(1) of the Quartz Mining Regulations provide as follows:
MINING COMPANY
8. (1) No mining company shall be granted a licence under these regulations unless such company is licensed or registered under the provisions of the Companies Act of Saskatchewan and in the case of a mining syndicate unless such syndicate is registered under The Securities Act.
(2) Notwithstanding anything contained in these regulations, except as provided in Part XIV hereof, a Prospector's, Developer's and Miner's licence issued to a company shall only convey the authority to hold mineral claims by transfer or assignment. A licence held by a company does not include the privilege of staking claims and shall not entitle any- shareholder, officer or employee thereof to the rights and privileges of a liuenvb.
Q.B.D.
Counsel for Frobisher admitted on the argument before this Court that Harquail did not acquire a miner's licence until July 27, 1955, that Frobisher was not registered under the provisions of The Companies Act of Saskatchewan until March 9, 1956, and that it did not acquire a miner's licence until March 12, 1956. This admission was made for the purpose of avoiding a new trial on incontrovertible facts and counsel for all parties agreed that it should be regarded as evidence given before this Court under s. 67 of the Supreme Court Act.
Accordingly the issue which was argued was as to whether or not the agreement of June 25, 1955, was rendered void by reason of the provisions of these regulations.
The argument of Pipelines was that the agreement, being an option in respect of the mineral claims described in it, created an interest in Frobisher in the claims. It was contended that the acquisition of any interest in the claims by a company not holding a miner's licence being forbidden by regulation 9(1), the agreement was, therefore, illegal and was void.
For Frobisher it was contended that at the time the agreement was made with the prospectors on June 25, 1955, Frobisher did not acquire any interest in the claims, but only an option which gave time for it to decide whether, on the turning over of the transfers to the mineral claims by the prospectors, it would pay the cash sum of $25,000 and thus acquire an option in respect of the claims on the terms provided in the agreement. It was also urged that the agreement did not contemplate an ultimate transfer of the mineral claims to Frobisher, but to a new company for the incorporation of which the agreement provided.
The argument of Pipelines is based upon the judgment of the Court of Appeal in England in the case of London and South Western Railway Company v. Gomm', which
.* is the decision chiefly relied upon by the majority of the Court of Appeal in directing that there be a new trial. Counsel for Pipelines also referred to other cases in which el. that judgment had been followed.
That case involved an indenture dated August 10, 1865, between the London and South Western Railway Company and George Powell, by which the railway company conveyed to Powell a parcel of land no longer required for the purposes of the railway. Powell, for himself, his heirs, executors, administrators and assigns, convenanted with the railway company, its successors and assigns, that he, his heirs and assigns, owner and owners for the time being of the lands intended to be conveyed, and all persons who should or might be interested, should, at any time thereafter, whenever the land might be required for the railway or works of the company, whenever requested by the company, its successors or assigns, by six months' previous written notice and on payment of 100 pounds, reconvey the land.
In 1879 Powell sold the lands to Gomm, who had full notice of the contents of the deed of 1865. Notice was given by the railway company to Gomm on March 12, 1880, claiming to repurchase. Gomm refused to reconvey and the railway company sued for specific performance of the covenant in the deed.
The case was first heard by Kay J., who held that the covenant did not create any estate or interest in land and, therefore, was not obnoxious to the rule against perpetuities.
He held that Gomm was bound by the covenant in the deed on the principle of Tulk v. Moxhay'.
On appeal it was held that the covenant gave to the railway company an executory interest in land, to arise on an event which might occur after the period allowed by the rules as to remoteness, and was invalid.
Jessel M.R., at p. 580, after referring to the covenant giving the right of repurchase, said:
to me, does or does not the covenant give an interest in the land? If it is a bare or mere personal contract it is of course not obnoxious to the rule, but in-that case it is impossible to see how the present Appellant 'v.
can be bound. He did not enter into the contract, but is only a purchaser from Powell who did. If it is a mere personal contact it cannot be enforced against the assignee. Therefore the company must admit that it somehow binds the land. But if it binds the land it creates an equitable interest in the land. The right to call for a conveyance of the land is an equitable I .
interest or equitable estate. In the ordinary case of a contract for purchase .31artland J there is no doubt about this, and an option for repurchase is not different in its nature. A person exercising the option has to do two things, he has to-give notice of his intention to purchase, and to pay the purchasemoney; but as far as the man who is liable to convey is concerned, his estate or interest is taken away from him without his consent, and the right to take it away being vested in another, the covenant giving the option must give that other an interest in the land.
* Sir James Hannen and Lindley L.J., the other members of the Court, agreed.
On principle it would appear to me that the decision of Kay J., who later, in Mackenzie v. Childers', described the proposition thus enunciated -as "entirely novel", was right. An optionito purchase land is nothing more than an offer to- sell and differs only from other offers in that for a stipulated period it is irrevocable. No contract for the acquisition of land results unless the offer is accepted. In this connection the decision of the House of Lords in Helby v. Matthews 2 , is of some interest. In that case there was under consideration the effect of an option to purchase a chattel. The owner of a piano let it on hire, the hirer agreeing to pay rent by monthly instalments. The hirer could terminate the hiring by delivering up the piano to the owner, the hirer remaining liable for all arrears of hire. If the hirer paid all of a stipulated number of monthly instalments, he would then acquire title to the piano, but, until that time, it remained the sole property of the owner. The question in issue was as to whether the hirer was ''a person having agreed to buy goods" within the meaning of the Factors Act, he having pledged it to a pawnbroker after paying only a few instalments of rent and the pawnbroker claiming title to the piano under that Act. - The Lord Chancellor, Lord Herschell. said.at p. 477: It was said in the Court of Appeal that there was an agreement by the appellant to sell, and that an agreement to sell connotes an agreement to buy. This is undoubtedly true if the words "agreement to sell" be 1 (1889),
43 Ch. D. 265 at 279. , 2 [1895] A.C. 471.:
'158
It is of interest to note that the grantee of a mineral claim under the Quartz Mining Regulations acquires a chattel interest. Regulation 38 provides:
In the Gomm case itself the option to the railway company was a term of the agreement by which Powell himself acquired title to the land from the railway company and it might be regarded as a limitation upon the grant of that title. The decision, however, appears to be based on an analogy between the option itself and the agreement to purchase which would result upon its acceptance. In that case the terms of the option were such that the optionee, by accepting it, immediately became entitled to a conveyance of title. It will be found that the options considered in other cases which have followed the Gomm case were similar to it in that respect. It seems to me that it is only on this basis that an option might, perhaps, be considered as analogous to an agreement for sale so as to create an interest in land.
In the case of Manchester Ship Canal Company v. Manchester Racecourse Company', the Court of Appeal had to consider a provision in an agreement between these two companies which read, in part, as follows:
This agreement was scheduled to an Act of Parliament, which declared it to be valid and binding upon the parties thereto.
The racecourse company had offered to sell the lands in question to the canal company for 350,000 pounds. At that time the racecourse company already had an offer to purchase from the Trafford Park Company, which wished to use the land for dock purposes, for 250,000 pounds. The al canal company offered 200,000 pounds, which was not accepted, and the racecourse company later sold the land to the Trafford Park Company for 280,000 pounds. The latter company had knowledge of the provision in question and agreed to indemnify the racecourse company in respect of any claim under that clause.
Farwell J., at the trial', held that the racecourse company could not sell the racecourse without offering it to the canal company at the actual price offered by the Trafford Park Company. He held, on the authority of London and South Western Railway Company v. Gomm, that the right of first refusal gave the canal company an interest in the land which could be enforced by it against the Trafford Park Company.
The Court of Appeal held that the clause did not create any interest in the land in the railway company, but also held that the clause involved a negative covenant whereby the racecourse company agreed not to part with one racecourse to anyone else without giving the canal company first refusal and that consequently the clause could be enforced as against the Trafford Park Company by the canal company within the principle of Lumley v. Wagner .
London and South Western Railway Company v. Gomm was followed by Warrington J. in Woodall v. Clifton'. That was a case in which a lease of land for a term of ninety-nine years contained an option to the lessee, his heirs or assigns, to purchase the freehold at a price of 500 pounds per acre. An assignee of the lease sought to exercise the option as against the assigns of the lessor.
Warrington J. held that the option gave to the lessee an interest in land which might not vest within the period fixed by the rule against perpetuities. He held that the option was invalid on the ground of remoteness.
1[1900]
The Court of Appeal upheld his decision on other grounds, holding that the covenant did not come within 32 Hen. VIII, c. 34, so as to make the liability to perform it run with the reversion and that consequently the action could not be PIPE- & maintained against the lessor's assigns.
Warrington J. again followed London and South Western et at. Railway Company v. Gomm in Worthing Corporation v. Mitld J. Heather'. As in the case of Woodall v. Clifton, this decision a . related to an option contained in a lease and the only material difference in the facts was that the option was given for charitable purposes. The option to purchase was held to be void for remoteness and the fact that it was for charitable purposes did not cure it because the interest of the charity did not become effective until the happening of the future event.
Although it was held that specific performance could not be granted, Warrington J. held that the plaintiff was entitled to damages for breach of contract by the defendant for failure to convey upon the exercise of the option. His reasoning on this point was stated at p. 540:
It is not in my opinion the contract which is void because it infringes the rule against perpetuities, but it is the limitation which, by the operation of the doctrines of the Court of Equity, it is the effect of the contract to create, that is void. The contract remains a valid contract in every respect, but it is the limitation it creates in the contemplation of the
Court of Equity, and it is that alone, which is void.
The Gomm case was considered again by Wynn-Parry J.
in Wright v. Dean . In explaining why the option under consideration by him in that case created an interest in land, he says at p. 693:
The option confers upon its exercise a right to call for a conveyance of the freehold and, therefore, it creates an interest in land.
In Griffith v. Pelton , Jenkins L.J., at p. 533, defines what he refers to as an "option in gross" to purchase land in the following manner:
An option in gross for the purchase of land is a conditional contract for such purchase by the grantee of the option from the grantor, which the grantee is entitled to convert into a concluded contract of purchase, and to have carried to completion by the grantor, upon giving the prescribed notice and otherwise complying with the conditions upon which the option is made exercisable in any particular case.
1[19061 2 Ch. 532.
3 W.L.R. 522.
The Gomm case was cited with approval by Duff J. (as he then was) in his dissenting opinion in Davidson v. Norstrant.
Reference has been made to the foregoing authorities because they are of assistance in deciding the extent of the judgment of the Court of Appeal in the Gomm case. Is it to be considered as laying down, as a general proposition of law, that any option which relates to land of necessity vests in the optionee, forthwith upon the granting of it, an interest in land? I do not think that it does.
The word "option" is not a term of art. It does not, by itself, necessarily mean an option to purchase or to call for the whole of the interest of the person giving the option in the subject-matter. Its meaning depends upon the context. Its acceptance results in a contract, the nature of which must depend upon the terms of the offer which is made. In each of the cases above cited in which the Gomm case has been followed the offer which was made for valuable consideration was to convey a title to land to the optionee forthwith upon payment of a stipulated sum of money. The initial option given to Harquail did not, to paraphrase Wynn-Parry J. in Wright v. Dean, confer upon its exercise a right to Frobisher to call for a conveyance of the title to the mineral claims. For that reason, even assuming the correctness of the decision in the Gomm case, I do not think that Frobisher acquired, by virtue of the agreement, any property interest in the mineral claims. What it had was the right, upon payment of the $25,000 when the transfers of the mineral claims had been turned over to the Uranium City Bank of Commerce branch, to acquire an option under the terms of which, upon the payment of the option payments in accordance with the agreement, the mineral claims would, in due course, become the property of a new company to be formed, in which the prospectors would have 10 per cent. of the authorized capital stock. It was that company, not yet in existence, which the agreement contemplated as becoming the ultimate owner of the mineral claims. It was that company which could, in due course, acquire a property interest in the mineral claims, but it was not yet a legal entity and there was no certainty that it would ever exist. If the periodic payments called for by the agreement were not made by Frobisher there would never be any occasion for it to be created. Frobisher acquired only a contractual right, by making the various stipulated payments, to see that the 'mineral & claims were dealt with in this way. In view of this, I do not think that Frobisher could be regarded, even on the lt. reasoning of the Gomm, case as having acquired an equit- Martland J. able property interest in the mineral claims.
There is a second ground upon which I think that the contention of Pipelines fails on this issue. To sum up that argument again, it is this: (1) Applying the rule in the Gomm case, Frobisher purported to acquire, by the option, an interest in the mineral claims. (2) Regulation 9(1). says that Frobisher, not having a miner's licence, shall not acquire such an interest. (3) Therefore, the contract is illegal and void.
An option for the purchase of land creates contractual rights and, if the reasoning in the Gomm case be accepted, its effect may be to create also a contingent limitation of land which may take effect in the future. This is what is referred to by Warrington J. in Worthing Corporation v. Heather in the passage from his judgment previously quoted. The point is well stated by.Farwell L.J. in South Eastern Railway v. Associated Portland Cement Manufacturers (1900), Limited', where he says:
But the fact that there is some connection with or reference to land does not make a personal contract by A. less a personal contract binding on him, with all the remedies arising thereout, unless the Court can by construction turn it from a personal contract into a limitation of land, and a limitation of land only. As regards the original covenantor it may be both; he may have attempted- both to limit the estate, which may be bad for perpetuity, and he.may have entered into a personal covenant which is binding on him because the rule against perpetuities has no applicatin to such a covenant.
The real answer to the argument founded on the inconvenience of tying up land is that the action upon the covenant sounds in damages only unless the defendant has still got the land to which the covenant relates. If he has still that land, then in an action on the covenant the plaintiff may claim specific performance, and- it is for the Court to see whether in such circumstances it is inequitable to grant specific performance, or whether the covenantor ought to pay damages in lieu of it. There is no defence to such an action in the present case.
1[19101 1 Ch.12*at33.
If the option did create an interest in the mineral claims in Frobisher, such limitation would be rendered void by regulation 9(1), as, in the Worthing case, the limitation was rendered void by virtue of the rule against perpetuities. However, the contractual right still remains.
In other words, Frobisher, by the effect of regulation 9(1), did not, when the option was made, have the capacity to acquire, at that time, an interest in the mining claims, but it could acquire contractual rights as against the prospectors to require that the mineral claims should be dealt with, in the future, in accordance with the terms of the agreement. The Quartz Mining Regulations in question are a part of a code of rules laid down by the Government of Saskatchewan regarding the acquisition of quartz mining claims, the property of the Crown in the right of the Province of Saskatchewan. The Crown does not recognize any interest in a mining claim in anyone not possessing a miner's licence. In the case of a company, the authority to hold mining claims by transfer or assignment is acquired by the obtaining of a miner's licence as provided in regulation 8(2). It does not seem to me that these regulations make it illegal for a company which does not possess a miner's licence to obtain contractual rights as against persons who have acquired title to mineral claims regarding the disposition of those claims in the future. Their effect is that such a company is not recognized, in law, as having the capacity to acquire any property interest in mineral claims.
For the foregoing reasons I do not think that the agreement of June 25, 1955, was rendered void by regulations 8 and 9 of the Quartz Mining Regulations.
It was contended by Pipelines that specific perfomance of the contract could not be granted unless it did create an interest in land.
With respect to this point I agree with the proposition stated by Jenkins J. in Hutton v. Watling', that the jurisdiction to grant specific performance of a contract for the sale of land.is founded, not on the equitable interest in land which the contract is regarded as conferring on the purchaser, but on the simple ground that damages will not afford an adequate remedy. Specific performance is merely an equitable mode of enforcing a personal obligation.
While specific performance is granted normally only against a party to the contract, if a stranger gets possession of the subject-matter he may be made a party to the action for specific performance of the contract on the equitable ground that his conscience is affected by the notice.
I turn now to the second point raised on this appeal;
namely, as to whether a new trial should be ordered because of the refusal of the learned trial judge to permit crossexamination of Daigle and MacKinnon by counsel for
Pipelines.
During the course of the cross-examination of Daigle the learned trial judge ruled that he could not be cross-examined in respect of the issues as between Frobisher and Pipelines because his interest as a defendant in Frobisher's action, as disclosed in the pleadings, was the same as that of Pipelines. This view was also adopted by Martin C.J.S. in the
Court of Appeal.
I agree with the view of the majority of the Court of
Appeal that permission to cross-examine should not have been refused. However, I also agree with the majority. of the Court of Appeal that, applying Rule 40 of the Court of
Appeal Rules, a new trial should not be granted because no substantial wrong or miscarriage of justice had been occasioned thereby.
The third question is in respect of the claims for damages sought to be made by Frobisher against Pipelines and by
Oak and Amren against Frobisher by reason of the filing of the caveats by Pipelines and Frobisher.
These claims are based upon regulation 124 of the Quartz
Mining Regulations, which provides as follows:
No claim can be made under this regulation unless the person claiming can establish that he has sustained damage thereby. I do not -find any evidence of damage having been sustained by Frobisher by reason of the filing of the caveat by Pipelines. Any damages sustained by Frobisher resulted from the making of the agreement by the prospectors with Pipelines and the turning over of the documents relating to the mineral claims to Pipelines in breach of the prospectors' agreement with Frobisher. There was no increase in such damages because of the filing of the caveat by Pipelines and the position as between Frobisher and Pipelines was not altered by the filing of it.
No damages were sustained by Oak and Amren as a result of the filing of the Frobisher caveat.
In view of the above conclusions, it is not necessary to express any opinion as to the validity of regulation 124. In the result, in my opinion, the appeal of Frobisher from that portion of the judgment of the Court of Appeal which directed, on terms, a new trial in respect of the issues raised as to non-compliance by Harquail and Frobisher with regulations 8(1) and 9(1) should be allowed. In all other respects, save as to costs, I think the judgment- of the Court of Appeal should be affirmed. Frobisher should be entitled to its costs in this Court as well as in the Court of Appeal. J.:-On June 25, 1955, the appellant, Frobisher Limited, through its agent James A. Harquail, took an option to purchase certain mining claims from four prospectors. On June 29, 1955, the prospectors gave a similar option on the same claims to Canadian Pipelines and Petroleums Limited. This company not only took with notice of the first agreement but actively induced - the breach of it. Frobisher, immediately after hearing of the second agreement, began this action against Canadian Pipelines, its two officers Morrisroe and Meschi and the four prospectors, for specific performance of its agreement and an injunction against any dealings with the claims by the defendants. The main defence was that the Frobisher agreement was made on Sunday and the greater part of the evidence was directed to this issue. The learned trial judge, on ample evidence, made a clear finding that this defence failed and that the Frobisher agreement was made on Saturday, June 25, 1955, and not on Sunday, June 26, 1955, as alleged by the defence.
The Court of Appeal' agreed with this finding and this Jo matter is no longer in issue.
Towards the end of what had proved to be a very long trial, the defence moved to amend by pleading regulations
8 and 9 of the Regulations made under The Mineral
Resources Act. The learned trial judge refused leave to amend and gave judgment for the plaintiff. The Court of
Appeal' was of the opinion, Gordon J.A. dissenting, that the amendment should have been allowed and that there should be a new trial restricted to the issue raised by the amendment. In all other respects the appeal was dismissed.
Frobisher now appeals to this Court from the order of the
Court of Appeal allowing the amendment and seeks the restoration of the judgment given at trial.
Briefly, the regulations provide that no mining company shall be granted a licence unless it is registered under the
Companies Act of Saskatchewan and that no person or company, not a holder of a licence shall prospect for minerals, stake out or record any location or "acquire by transfer, assignment or otherwise howsoever, any mineral claim or any right. or interest therein." The appellant now admits that its agent Harquail had no licence until July
27, 1955; that Frobisher did not register under the Companies Act of Saskatchewan until March 9, 1956, and that it acquired its Miner's licence on March 12, 1956. This admission is made for the purpose of avoiding a new trial on incontrovertible facts and all counsel agree that it should be regarded as evidence given before us under s. 67 of the Supreme Court Act. The question, therefore, is whether Frobisher or its agent acquired any "right or interest" in the claims on June 25, 1955, the date of the
Frobisher agreement when neither company nor agent held any licence. If they did and if, in consequence, the Frobisher FROBISHEa agreement is null and void, then, on the admissions made, .
the action must be dismissed.
&
The Frobisher agreement, signed by the four prospectors, is in the following terms:
TD.
Date-25th day of June, 1955. Judson J.
AGREEMENT
We, the undersigned, the sole owners of mineral claims-EO-1 to 16 incl.
Missing Link 1 to 9 incl.
IO-1 to incl.
In all 37 claims contiguous, located on or near Stewart Island, Lake Athabasca, Province of Saskatchewan,
Canada-do hereby grant to James A. Harquail, Mining Engineer-Suite 2810, 25 King st. West, Toronto, Ontario-in consideration of the sum of $1.00
(one dollar), receipt of which is hereby acknowledged, an option effective to 12 noon- June 30, 1955-to purchase said mineral claims from the undersigned under the terms of the following deal:
On receiving transfers to above claims in good order-on, or as close as possible to June 30th, 1955-said transfers to be turned over to Uranium City Bank of Commerce branch at which time sum of $25,000.00 (twenty-five thousand dollars) will be issued to Mackinnon and partners. (Vendors)
New company to be formed in which vendors will receive 10% (ten percent) of authorized stock.
825,000. Firm cash Option Payments
1st option-Nov. 1, 1955 ..................
25,000.00 2nd option-March 1, 1956 ................
50,000,00 3rd option-November 1, 1956 ..............
50,000.00 4th option-July 1, 1957 ...................
50,000.00 $200,000.00 The above agreement shall be binding on the executors, heirs, etc. of the people signing.
Frobisher submits that during the interval from June 25 to June 30, it acquired no interest in the claims and that the prospectors granted this period of time to Harquail to enable him to find out whether his principal would make the payment of $25,000 on June 30; that, on the other hand, the prospectors needed time to record claims E.O. 1-16 and to complete their deposit of their title papers with the bank to be delivered on payment of the $25,000; and further that the option did not begin until the $25,000 had been paid. During this five day period Frobisher says that it held no more than an option to decide whether it would take an option. It was conceded that an interest in land would arise when the payment of $25,000 was made.
I am quite unable to see any valid distinction between al. Frobisher's position during the five day period and what Juon J. it would have been had the first $25,000 actually been paid. It was during this five day period that the prospectors repudiated their obligation to Frobisher by making the other agreement with Canadian Pipelines and refusing to deposit their title papers with the bank. Frobisher did everything that it could do in the circumstances to make the payment on June 30. What Frobisher had during the five day period was an irrevocable offer, obtained for the consideration of one dollar, which was actually paid. What it would have had on June 30 on payment of $25,000 was an irrevocable offer for the period ending November 1,
1955. The further payments provided for in the agreement would hold the offer irrevocable until the dates specified and on the making of the last payment Frobisher would be entitled to the title papers for the purpose of transfer to the new company. The position of Frobisher as the optionee under this agreement is the same throughout all its stages. It has the right to have the offer kept open on payment of the stated consideration. The payments, if completed, constitute the purchase price and all that then remains to be done is to form the new company, transfer the claims and allot to the prospectors 10 per cent.
of the authorized stock.
Does an option to purchase land give rise to an equitable interest in land? The question has usually been considered in connection with conveyances and leases and the rule against perpetuities, and it has been held that the option is too remote if it can be exercised beyond the perpetuity period. The underlying theory is that the option to purchase land does create an equitable interest because it is specifically enforceable. There is a right to have the option held open and this is similar to the right that arises when a purchaser under a firm contract may call for a conveyance.
In both cases there is an equitable interest but in the case of the option it is a contingent one, the contingency being the election to exercise the option.
In London & South Western Railway Co. v. Gomm', tal
Kay J. held that such an interest did not arise, that an option to purchase was not within the rule against perpetuities and that a purchaser for value without notice. of the option would not be bound by the covenant to re-convey. In the particular case before him, he held that the defendant Gomm had taken with notice and that he was 'bound in Equity by the covenant, on the principle of Tulk v. Moxhay'. The facts of the case may be stated in very simple terms for the purpose of these reasons. The Railway Company conveyed surplus lands to one Powell in fee simple and exacted a covenant that the grantee, his heirs or assigns would re-convey on payment of the consideration of £100, should the lands at any time be required for railway purposes. The Court of Appeal, reversing the judgment of Kay J., held that Gomm, the purchaser from Powell, was not bound by the covenant because it created an equitable interest in the land, which offended the rule against perpetuities. The two conflicting views of the problem are thus stated in the plainest terms in this decision. Is the matter one of contract or property? Since the decision in Gomm, I am unable to find in any judicial decision in England any deviation from the rule that the matter is one of a property interest and not merely of contract. Even though Kay J. in the subsequent case of Mackenzie v. Childers ,. expressed the opinion that the doctrine enunciated in Gomm was "entirely novel", judicial re-examination from time to time has resulted only in an affirmation of the rule that an option holder has an equitable interest-for example, by Warrington J. in Woodall v. Clifton', and in Worthing 'v. Heather , and by Jenkins L.J. in Hutton v. Watling', and in Griffith v. Pelton'.
In this Court, Duff J. in Davidson v. Norstrant', in a disj-" senting opinion which alone referred to this matter, stated: Further, in Auld v. Scales , where there was option to purchase contained in a lease which, at the time of the litigation, had become one from year to year, it was held that the option did not offend the rule against perpetuities, because the lease and with it the option could be terminated at any time on proper notice. Although the decision in Gomm is not expressly mentioned, the judgment is based on the assumption that the option to purchase under consideration did create an interest in land.
The New Zealand Court of Appeal, in Morland v. Hales , also reached the same conclusion. An owner of land, for valuable consideration, gave an option to purchase for a period of ten days. Under the mistaken impression that the option had been abandoned by the optionee, the owner gave a similar option to a second person, and then the first optionee exercised his option by acceptance within the ten days. It was held, following the decision in Gomm, that the option created an interest in land and that the holder of the first option had therefore a superior equity to that of the holder of the second option.
In the present case, in view of my opinion that Frobisher's attempt to distinguish its position at the first stage of the option from the later stages fails, there is no conclusion possible other than the one that in the period June 25 to June 30 it did acquire an interest in these claims. This was also the opinion of the Court of Appeal and once they had reached this conclusion, which is really decisive of the whole case, they had no choice but~to rule that the rejection of the amendment by the learned trial judge was an erroneous exercise of discretion. I am in respectful agreement with their order based, as it is, upon the theory that the option created an equitable interest in the claims. Gordon J.A. dissented and would have rejected the motion to amend on many grounds, all of them substantial; that it was made too late; that the point should have been raised in the Judn J. statement of defence; that the litigant should be bound by his conduct of the case; and finally, that the amendment might leave the plaintiff open to a large claim for damages under regulation 124 for "wrongfully and without reasonable cause" registering a caveat against the claims. The force of most of these objections to the amendment largely disappears when one has in mind that the facts on which the application was based were not open to controversy. In the view I take of regulation 124 no claim for damages can arise in this case.
My conclusion therefore is that this option, creating as it did an equitable interest in these claims, was rendered void and of no effect because it was given and taken against the express prohibition contained in regulation 9. I reach this conclusion with regret and with knowledge that an honest bargain is being defeated on technical objections, taken late in the proceedings by defendants who, by concurrent findings of fact, have been found guilty of a conspiracy to induce a breach of contract. The appeal of Frobisher must be dismissed with costs and in view of the admission that the necessary licences were not held at the date of the taking of the option and that a new trial is unnecessary, the action must be dismissed. I would maintain the disposition of the Court of Appeal as to costs of the trial and the appeal to the Court of Appeal.
Two of the prospectors, Oak and Amren, counter-claimed against Frobisher for damages for breach of regulation 124 in connection with the registration of a caveat against the claims. Regulation 124 reads:
The learned trial judge, on proper notice to the Attorney- General held this regulation to be void as going beyond the authority contained in the statute. In the Court of Appeal only the Chief Justice dealt with this matter and he agreed with the trial judge. In this Court counsel for Oak and Amren opened the question again and argued in favour of the validity of the regulation and sought an assessment of damages. I agree with the majority in the Court of Appeal that it is unnecessary in this case to determine whether or not regulation 124 is intra vires because it was clearly shown that no damage arose from the registration of the caveat. The damage, if any, resulted from the litigation which followed almost inevitably when the prospectors gave two options for the same claims to competing interests. I am also of the opinion, although it is unnecessary to base my judgment on this ground, that registration of a caveat "wrongfully and without reasonable cause" means something in the nature of an officious intermeddling without any colour of right and that the regulation, if valid, has no application when there is a bona fide dispute.
The result is that the appeal of Frobisher and the crossappeal of Oak and Amren are dismissed with costs. Judgment should be entered dismissing the action and the counterclaim both with costs to the plaintiff because of the shortcomings of the defendants in the conduct of their defence. The costs of the appeal to the Court of Appeal should stand as ordered by that Court. The cross-action of the two prospectors Daigle and MacKinnon against Pipelines was finally disposed of in the Court of Appeal.
Appeal and cross-appeals dismissed with costs, and JJ. dissenting.
Solicitors for the plaintiff, appellant: Davidson, Davidson & Blakeney, Regina.
[19601 Solicitors for the defendants, Canadian Pipelines & Petroleums, Morrisroe and Meschi: MacPherson, Leslie & LTD. V.
Tyerman, Regina.
&
PemoLuMs
Solicitors for the defendants, Oak and Amren: Pitcher, eta
Ehmann & Murphy, Regina.
JTudson J.,
THE BQARD OF EDUCATION FOR
*Oct. 22,23
THE CITY OF TORONTO AND J. C.
APPELLANTS; Dec.
HUNT (Defendants) ............
AND
WILLIAM HIGGS by his next friend,
JOHN
CECIL ,LOWINGS,
AND
RESPONDENTS. HELEN HIGGS (Plaintiffs) .....
ON APPEAL FROM THE APPEAL ONTARIO Negligence-Boy injured by another during school recess-Injury aggravated by teacher ordering boy into line and into class-Liability- Finding of failure to have sufficient teachers on duty-Whether liability of Board of Education and teacher-The Public Schools Act; R.S.O. 1950, c. 816, s. 108(g).
During the school recess period, the plaintiff infant was injured hen another pupil, known as a boy who indulged in rough play, lif tim off his feet and carried him over to a rink where he dropped him on the ice. None of the four teachers who were supervising the recess saw the incident. One was called over by other pupils and ran across the ice. The boy refused help, and another teacher ordered him into line and into class although he was limping and complaining. Ultimately he was sent to see the nurse and then sent home in a taxi. The initial injury was found to have been a hip bone displacement which was aggravated when the boy was required to walk. The action alleged negligence in (1) failure to provide adequate supervision; (2) permitting rough play which the defendants knew or ought to have known would cause injury; and (3) failure to intervene when they saw or ought to have seen that the rough play was likely to cause serious injury. At trial and in this Court liability for the initial injury was treated separately from liability for the aggravation: The jury found that the initial injury was the result of the failure of the defendants to supervise the activities of the pupils because there was not a sufficient number of teachers on duty, in view of the winter conditions, the number and ages of the children and the fact that ice being on such a large area would limit the access of the teachers to the scene of the accident. On the second branch of the Taschereau, Cartwright, Martland, Judson and Ritchie JJ. case, the jury found negligence which had aggravated the injury. The action was accordingly maintained, and this judgment was affirmed ' ' by the Court of Appeal.
Held: The appeal should be allowed in part by dismissing the claim for ToRoNTo the initial injury.
VG As to the initial injury. The omission as found by the jury did not constitute the breach of a duty owing to the injured boy by both or either of the defendants. Neither inadequate supervision of the rough boy nor failure to see him pick up and carry the injured boy formed any part of the failure found. The finding of the jury raised the question of the adequacy of the system for supervising the break period used by the school principal, who alone had the authority to control the matter. That system had been employed satisfactorily by the principal for several years, and, in the absence of proof to the contrary, he had no reason to believe that it did not constitute a reasonable safe system having regard to the number and ages of the children, and there were not any unusual circumstances that day which made it reasonably foreseeable that a greater number of teachers would be required. The winter conditions specified by the jury did not constitute such an unusual circumstance. Even if the "failure" as found by the jury had constituted a breach of duty, it had not been shown to be probable that any of the ingredients of that "failure" caused or contributed to the injury. The particulars of the failure found by the jury were such as to negative the other grounds of negligence suggested. Even on the view that the jury's answers included a finding of "inadequate supervision," it is not the duty of school authorities to keep pupils under supervision every moment while they are in attendance at school.
As to the aggravation of injury. Section 108(g) of The Public Schools Act imposes upon every teacher a duty "to give assiduous attention to the health and comfort of the pupils . . .". There was evidence to support the jury's answers as to the negligence of the two teachers particularly having regard to the requirement of "assiduous attention", and the Board must bear the responsibility for their subsequent actions.
APPEAL from a judgment of the Court of Appeal for Ontario, affirming a judgment given at a jury trial. Appeal allowed in part.
C. L. Yoerger, Q.C., for the defendants, appellants. P. de C. Cory, for the plaintiffs, respondents.
Judgment of the Court
RITCHIE J.:-This is an appeal by the defendants from a judgement delivered by Laidlaw J.A. on behalf of the Court of Appeal for Ontario dismissing an appeal from the judgment of McLennan J., sitting with a jury. The plaintiff (respondent) in this action was a student in the academic and vocational class of the Maurice Cody School in the City of Toronto and in the month of January 1957 was 15 years of age or thereabouts. He was apparently a normal boy and had achieved some distinction as a golfer, and while there is some evidence that he was subjected to ridicule from time to time by other students, there is nothing to suggest that at.
he was in any way markedly different from his fellows or J. that he required any special attention from the authorities. He had an association with a boy by the name of Taylor who was a fellow student in the same class which involved lunching together and a certain amount of horse play which Higgs himself describes by saying "We used to fall around all the time".
On January 31, 1957, Higgs appears to have spent the greater part of the morning break talking to some girls in the neighbourhood of a large patch of ice generally referred to as the "pleasure rink" which had been cleared away in the school yard for the purpose of sliding and skating and which was played on to some extent during the break. Towards the end of the break, while Higgs was still in conversation with the girls, Taylor appears to have come tip from behind, and lifting him off his feet, carried him a distance of about 20 feet and dropped him on the ice. Taylor was a -boy about the same size as Higgs but apparently a good deal stronger. He was known to the school authorities to be a boy who indulged in rough play. He had been warned and disciplined for his behaviour on more than one occasion in the past, and indeed his behaviour on this morning bears out the character of a rough and overbearing youth. After he dropped Higgs on the ice, he proceeded to kick snow in his face from the pile of snow that had been cleared off around the ice-covered area.
Although five students, who had been close to the boys at the time of the incident, gave evidence, none of them was able to testify to seeing Higgs being picked up, although two say that they saw him being carried and two others that they saw him being dropped on the ice.
It is important to note that the school yard consisted of an area of about 250 feet in length and approximately 400 feet in width although the width varied. At the north end of the yard a substantial area consisted of a hockey rink and in approximately the middle of the yard there was the pleasure rink above referred to and at the southern end of the yard there was a concrete area in front of the L-shaped school building itself. The evidence discloses that there were four teachers out of doors on duty supervising the break period. One of them, Mr. Hunt, was stationed in the northwest portion of the yard and his area of operations ran from the southwest corner of the hockey rink down the western side of the pleasure rink to approximately the point where the concrete surface began. Mr. Herlick fulfilled a similar function on the east side of the yard and there is some evidence to the effect that both these masters were directing their attention more to the students on the hockey rink than to those in the central part of the playground. There were also two female teachers stationed on the concrete surface outside the school who covered the southern area of the playground and one of whom, according to Higgs, was only about 35 feet away from the scene of the accident. None of the teachers saw this happening or knew anything about it until Herlick, who was then standing at the southeast corner of the hockey rink, was alerted by some boys who came across the ice to draw his attention to it. Herlick appears to have acted quickly because he ran across the ice and reached Higgs before he had got up. Higgs' own estimate was that Herlick was there in two or three minutes while other say that it only took him one minute.
Herlick found the boy with tears in his eyes and gained the impression that he was hurt and very much aggrieved, but the boy refused his offer of assistance and Herlick did not insist on taking him in to the school nurse. Shortly after this Mr. Hunt also came to the scene, and although there is some conflict as to exactly how Higgs reached the school it is apparent that when he got there he hung up his coat and hat, and although he was limping quite obviously and complaining, Mr. Hunt ordered him into line and into class.
The boy says that Hunt struck him, but in any event he was required to walk into the classroom, and having reached it he appears to have shown very apparent signs of pain and disturbance as a result of which Mr. Hunt ultimately sent him to the nurse. The treatment he received from the nurse was somewhat superficial, although this is no reflection on her, and the upshot of it all was that he was sent home in a taxi and on arrival there was put to bed where the family physician attended him that evening. Upon X-rays being taken, it appeared that the boy's hip bone was dislocated and it was the opinion of his doctors that the original injury sustained by being dropped on the ice would probably not have resulted in more than a 20 per cent. displacement Hicas which could have been cured by manipulation, but that the Ritchie J. fact that he had been required to put his weight on his leg was likely to have caused the more severe condition which required hospitalization.
Higgs, by his next friend, sued the Board of Education and Mr. Hunt claiming general damages and Mrs. Higgs joined in the action asserting her claim for special damages. The statement of claim alleges that the injuries to the plaintiff were caused by the negligence of the defendant in the manner following:
(a) failure to provide reasonable or adequate supervision during the recess period:
(b) allowing and permitting rough play of such a nature or kind that they knew or ought to have known that it was likely to cause serious injury to pupils such as the plaintiff entrusted to their care;
(c) failure to intervene when they saw or ought to have seen that the actions hereinbefore related were likely to cause serious injury to the plaintiff.
In putting this matter to the jury and indeed to this Court, the question of liability for the initial injury sustained when the boy was dropped on the ice was treated separately from that of liability for the events which succeeded and allegedly aggravated it.
On the first branch of the case the following questions were submitted to the jury and answered in the manner indicated:
1(a) Were the injuries suffered by the Infant Plaintiff the result of the failure of the defendants to supervise the activities of the students?
Answer "Yes" or "No"
Answer: YES (b) If your answer to Question 1(a) is "Yes", then in what respect did the defendants fail to supervise such activities. Answer fully There was not a sufficient number of teachers on duty in the playground, in view of the winter conditions, the number and ages of the children and the fact that ice being on such a large area of the yard would limit the access of teachers to the scene of any accident.
(c) Irrespective of how you answer Question 1(a), at what amount do you assess the damages
(1) of the adult plaintiff ..........
8 1,184.40
(2) of the infant Plaintiff ..........
13,000.00
It is noteworthy that these answers do not appear to reflect the last two particulars of negligence alleged in the BD. statement of claim, but it was urged in this Court on behalf aTONT of the respondent that by reason of his known tendency to rough play the Taylor boy constituted a species of foreseeable danger against which the school authorities were Ritchie J. under a duty to guard his fellow pupils, and that it could be assumed that the jury's verdict included a breach of this duty as a part of the "failure" referred to in questions 1(a) and 1(b), and it would appear that the Court of Appeal for Ontario shared this view.
In this regard it is to be noted that the learned trial judge, in directing the jury to answer question 1(b) "fully", had this to say:
...
and I should tell you now, when I say "Answer fully", it is not sufficient to say the defendants failed to supervise, but the Court requires you to give the facts on which you say there is no supervision, if that is the conclusion you come to.
These are the submissions of counsel for the plaintiff:
In the circumstances there were not enough teachers supervising; There was, secondly, an inadequate supervision of Taylor that day; And thirdly, there was a failure of the particular supervisors to see Taylor pick up Higgs and carry him the twenty feet and dump him on the ice, which could have been stopped by a single word.
Counsel for the defendant, on the other hand, says you should answer Question 1(a), "No", and he says that there was adequate supervisiontwo men teachers over these boys on the north end of the school yard-and that teachers are not bound to watch Taylor every minute; and I think there is undoubtedly something in that submission. If a person is so dangerous a character that he has to be watched every minute, then he should not be in the school at all. Then, as to the defendants' third point, -he says there was no time to do anything because it happened so quickly.
When the answers to questions 1(a) and 1(b) are read together in light of these instructions and of the pleadings, it is my view that neither "inadequate supervision of Taylor" nor "failure of any particular supervisor to see Taylor pick up Higgs and carry him twenty feet and drop him" forms any part of the "failure" which the jury found to have resulted in the respondent's injury, which "failure" is confined to not having "a sufficient number of teachers in the playground in view of:
(1) The winter conditions;
(2) The number and ages of the children;
(3) The fact that ice being on a large area of the yard would limit the access of teachers to the scene of any accident."
In rendering the decision of the Court of Appeal for Ontario from which this appeal is asserted, Laidlaw J.A., having expressed his opinion to the effect that the jury properly took these three matters into consideration, went on to say, "The omission constituting a breach of duty con- J. sisted in not having sufficient teachers on duty in the particular circumstances as found by the jury". With all respect, I have the greatest difficulty in agreeing that the "'omission" as so found did indeed constitute the breach of a duty owing to the infant respondent by both or either of the appellants.
The primary responsibility for the manner in which the pupils in this school are to be supervised while at play lies upon the Board of Education for the City of Toronto (hereinafter called the "Board") itself as distinct from its employees, but the regulations which it had promulgated to this end were excluded from the evidence by the learned trial judge and there is, accordingly, no evidence one way or the other respecting the steps, if any, taken by the Board as such in this regard.
At the other end of the chain of responsibility are the teacher-supervisors (including the appellant, Hunt) who were seized with the task of actual supervision but who had neither the power nor the responsibility of controlling or regulating the number of teachers to be on duty in the playground. The law does not contemplate the existence of a duty in an individual who is powerless to discharge it, and it must, therefore, be concluded that these findings cannot apply to the appellant, Hunt, and that the order appealed from should be set aside insofar as it relates to his responsibility for the initial injury to the respondent. Under the circumstances disclosed by the evidence, the school principal, Mr. Macpherson, was the person and the only person vested with authority to control the matter of "having sufficient teachers on duty in the playground", and it is the nature of the duty resting upon him which must be examined in order to determine whether there was such a failure as to make the Board liable for the injury which resulted from the actions of the Taylor boy.
The duty of supervision which a school authority owes to its pupils while they are at play must of necessity vary from school to school and even from day to day, and it is, therefore, not possible to elicit from the decided cases any guiding principle for the exact measurement of the degree of care to which any particular set of circumstances may give rise.
In the decision appealed from in the present case, Laidlaw J.A. has this to say on the subject:
Ritchie There can be no disagreement with the views of the learned judge in this regard except that it seems to me that the analogy between, the duty of a school master to his pupils and that of a parent to his children, while it applies with some force to the duty which the individual master owes to children under his care, cannot be related with the same validity to the responsibilities of organization and administration which rested on Mr. Macpherson as principal of a school with an enrolment of 750 pupils. If the jury had found any "failure" on the part of an individual supervisor, then other considerations might apply, but the jury did not find this and their answers to questions 1(a) and 1(b) are directed solely to the "failure" to so organize the break period as to have more than four teachers on duty in the playground. It is, therefore, a question of what standard of organization the law requires of 'a school authority under such circumstances which must be determined.
-It is really the "system" employed by Mr. Macpherson for supervising the break period which is in question and it is a factor to be considered, although not a conclusive one, that exactly the same number of teachers had been stationed in the same area of the same playground in both winter and summer ever since Mr. Macpherson came to the school in 1952.
In direct examination Mr. Macpherson gave the following evidence:
Q. 18f On the face of it there does not appear to be anything unreasonable about the system which was employed, and although no evidence was called to show that it had proved satisfactory over the years there was, on the other hand, no evidence called to the contrary effect except the happening of this one accident, and, as Laidlaw J.A. has said in the decision appealed from, it is not suggested that "the duty of supervision should be measured or determined by the happening of an extraordinary accident." As the burden of proving that the system was defective lay upon the respondents, it can, I think, be taken that Mr. Macpherson had no reason to believe that the four teachers allocated to the various areas of the playground specified by him constituted anything less than a reasonably safe system of supervision having regard to the number and ages of the children at the school unless there existed on the day in question any unusual circumstances which made it reasonably foreseeable that a greater number of teachers would be required.
In my view the winter conditions specified by the jury did not constitute such an unusual circumstance. The evidence in this regard is to the effect that the pupils might be a little more excitable in wintertime and that the attention of the supervisors at the north end of the yard might be somewhat more engaged with the activities on the hockey rink than on the centre of the playground but that there was about the same amount of activity in both areas throughout the year. This does not indicate a condition which would cause a prudent school principal to anticipate danger to his pupils, and certainly gives no ground for anticipating such an accident as that which occurred.
Nor does the fact that ice, being on a large area of the yard, would limit the access of teachers to the scene of any et accident indicate any such condition. The relevant evidence in this connection is that when the accident in question happened one of the pupils ran over and brought Mr.
Herlick back across the ice to the scene within one or at most two or three minutes, and in any event before Higgs had got up from the ice.
There was a teacher on duty at each corner of the playground and indeed Higgs himself stated that one of the women teachers was within 35 feet of him. The only evidence to suggest that this number was inadequate was the fact that the accident happened. It is said that this was an event which the principal was under a duty to foresee and guard against, but even if this had been so it was not a duty to which any of the matters specified in the answer to question 1(b) gave rise.
Looking at another aspect of these same facts, I have also concluded that even if the ''failure" as found by the jury had constituted a breach of duty, it has not been shown to be probable that any one of the ingredients of that
"failure" as specified in the answer to question 1(b) caused or contributed to the respondent's injury which was occasioned by the sudden and unheralded action of the boy
Taylor.
In analyzing the jury's answers to these questions as I have done, I am not unaware of the caution with which any
Appellate Court should embark upon too meticulous a criticism of the findings of a jury, but having regard to the pleadings and the very full charge of the learned trial judge
I am satisfied that this is a proper case in which to invoke the principle which is embodied in the decision of
Taschereau C.J. in Andreas v. Canadian Pacific Railway', and to hold that the particulars of "failure" as set forth in the jury's answer to question 1(b) are such as to negative the other grounds of negligence which have been suggested.
would not be proper to leave this branch of the case without taking note of the fact that the decision appealed from is based in large measure on the assumption that the jury's answers were capable of being construed as including a finding that the school authorities were negligent in failing J. to provide against the foreseeable danger represented by the Taylor boy. It seems to me that even if this element were deemed to form a part of the jury's answers, it would have to be remembered that not only did none of the teachers see the incident but that of the 750 pupils in the playground, some of whom were only 10 feet away, not one of them saw its inception and only two even saw Higgs being carried.
It is true that the rough habits of Taylor made him a pupil to be watched, but with the greatest respect the facts do not seem to me to make it probable that having additional teachers on duty would have resulted in his being seen and stopped before the damage was done, and the fact that the presence of a teacher within 30 or 40 feet at the time of the incident did not deter him strongly suggests that the presence of additional persons in authority would not have affected his conduct.
As Laidlaw J.A. has said, "It is not the duty of school authorities to keep pupils under supervision during every moment while they are in attendance at school" and in my opinion nothing less would have served any effective purpose in the present case.
Speaking of circumstances which were not dissimilar, Denning L.J. said in the Court of Appeal in England in Clark v. Monmouthshire County Council':
and in the same case Morris L.J., speaking of supervisors in the playground, said at p. 250:
Even on the view that the jury's answers included a finding of "inadequate supervision of Taylor" as a cause of the accident, I am still far from satisfied that this accident would not have happened whether additional supervisors V.as had been there or not.
As to the second branch of the case, the following ques- Ritchie J. tions were put to the jury and answered in the manner indicated below:
2.
(1) Herlick
"Yes"
(2) Hunt
"Yes"
which aggravated the Plaintiff's original injury?
(b) If your answer to Question 2(a) is "Yes", state the particulars with respect to each; Answer fully
(1) Herlick should have taken Higgs, personally and carefully, straight to the nurse, despite the protestations of Higgs. In the alternative, Herlick should have immediately informed Hunt as to the obvious suffering of Higgs. By these omissions we hold him to be partially responsible for the aggravation.
(2) By ignoring the plea from Higgs that 'he could not walk and following his admitted observance of Higgs in the playground, he caused further aggravation of the injury by insisting that Higgs walk into the class room.
(1) of the adult plaintiff ................
..... 8 510.95 (2) of the infant plaintiff ...................
As to this phase of the matter, very different considerations apply. Section 108, subs. (g) of The Public Schools Act, R.S.O. 1950, c. 316, imposes upon every teacher .a duty "to give assiduous attention to the health and comfort of the pupils . . . ." The .master, Herlick, came promptly to the aid of the respondent as he lay on the ice and his offer of further assistance was refused, but it cannot be said that there was no evidence to support the jury's answer to question 2(b) (1) particularly having regard to the requirement of "assiduous attention" which is prescribed in the-statute and the Board must bear the responsibility for his actioisi These latter considerations apply with even greater force to the conduct of Hunt, and there is no reason to disturb the finding of the jury contained in the answers to questions. 2(a), (b) and (c).
80667-9-1
In view of all the above, I am of opinion that the appeal EDU- should be allowed insofar as the first branch of this case is concerned and the order of the trial judge should be set aside insofar as it attributes responsibility to either of the appeltal.
lants for the initial injuries sustained by the respondent, Ritchie J. but as to the second branch of the case the appeal is dis- missed. In the result the adult respondent will recover $510.95 and the infant respondent $10,000.
In the special circumstances of this case, the respondents will have their costs of this appeal.
Appeal allowed in part. Solicitor for the defendants, appellants: D. H. Osborne, Toronto.
Solicitors for the plaintiffs, respondents: Horkins & Cory, Toronto.
EDWIN McDONALD ...................
APPELLANT; *Oct. 8,9,
13,14,
AND
Dec. 21
HER MAJESTY THE QUEEN .......... RESPONDENT. ON APPEAL FROM THE APPEAL ONTARIO Criminal law-Narcotic drugs-Charge of trafficking-Evidence of association with convicted drug addict-Alleged conspiracy by police against accused-Whether acquittal on same facts of charge of conspiracy to traffic raises question of res judicata-The Opium and Narcotic Drug Act, R.S.C. 1952, c. s. 4, as re-enacted by 1958-64, c. 38.
The accused, who had previously been acquitted on the same facts on a charge of conspiracy to commit the same indictable offence, was convicted on the substantive charge of being in possession of a drug for the purpose of trafficking. This conviction came at a new trial ordered by the Court of Appeal. The conviction was affirmed by the Court of Appeal, and the accused was granted leave by this Court to appeal on six grounds.
Held (Cartwright J. dissenting): The appeal should be dismissed. Per Taschereau, Fauteux, Abbott, Martland, Judson and Ritchie JJ.: As held by the Court of Appeal, there was no violation at the trial of the principle that the prosecution cannot attack initially the character of the accused and that he is to be tried upon the evidence pertaining to the crime with which he is charged.
Taschereau, Cartwright, Fauteux, Abbott, Martland, Judson and Ritchie JJ.
2. The evidence which the accused sought to introduce for the purpose of attacking the credibility of the witnesses, was not properly admissible. MCoALD The accused wanted to show a conspiracy on the part of the narcotic squad to prepare false reports and give false evidence against him. It was proposed to lead evidence that two other persons, at other hearings, had given inaccurate evidence, on the basis that such evidence would be admissible because they were members of the same police squad as the witnesses in this case and were "acting in concert" together. This was proposed to be done by putting in evidence of a transcript of their testimony at the other hearings.
3. The crown was under no duty to call these two officers as they were not witnesses to the important incidents related to this case. Consequently, there was no necessity for the trial judge, in instructing the jury, to comment upon the fact that they had not been called.
4. There was no substance to the contention that the trial judge had failed adequately to present to the jury the theory of the defence.
5. The submission that it was wrong to permit the Crown to adduce evidence as to the movements of F (who had been seen talking to the accused on the day of the offence) in the absence of the accused, and as to F's addiction to drugs and his previous convictions for narcotic offences, could not be maintained. That evidence was relevant to the charge of trafficking which was laid under s. 4(3) (b) of the Opium and Narcotic Drug Act. The clear purpose of s. 4(4) of the Act is that once there has been a finding of possession the onus then rests upon the accused to prove that he was not in possession for the purpose of trafficking. This cannot preclude the Crown from bringing evidence in its case in chief to establish the purpose of trafficking, nor can defence counsel preclude the leading of such evidence merely by stating, as was done in this case, that the defence will be that the accused was not in possession of the drug.
6. The accused contended that the acquittal on the conspiracy charge must mean that the verdict resulted from a finding that he was not in possession of the drug, that there was res judicata in respect of the substantive charge and that he should have been permitted to adduce evidence of the acquittal. That contention could not be entertained. The essence of the charge of conspiracy is the agreement for that purpose. The verdict of innocence only established his innocence in respect of the conspiracy, and not that he was found not to be in possession. The principle of res judicata enunciated in Sambasivam v. The Public Prosecutor, Federation of Malaya, [19501 A.C. 458 at 479, only estops the Crown in the later proceedings from questioning that which was in substance the ratio of and fundamental to the decision of the earlier proceedings. The acquittal in the earlier trial was not relevant to the charge which was the subject-matter of this case and was not admissible in evidence.
Per Cartwright J., dissenting: It was the duty of the trial judge to admit the evidence related to the acquittal of the accused on the charge of conspiracy and to give to the jury an unequivocal direction that in approaching the question of his guilt or innocence they must give due weight to the facts thus conclusively established. These facts were that during the period which included the date of the offence of which the accused was convicted he was not engaged in a conspiracy with 80667-9-14
Ontario', affirming the conviction of the accused. Appeal dismissed, Cartwright J. dissenting.
M. Robb, Q.C., and C. Thomson, for the appellant. J. D. Hilton, Q.C., for the .respondent.
J.:-This is an appeal from a judgment of the Court of Appeal of Ontario' affirming the conviction of the appellant on a charge of being in possession of heroin for the purpose of trafficking. The conviction was made following a trial by jury on November 18, 1958.
The date of the offence alleged was September 18, 1955. The appellant was tried in April, 1957, on a charge of conspiracy to commit the indictable offence of having possession of. heroin for the purpose of trafficking, and was acquitted. He was tried before a jury on the substantive charge in October, 1957, and was convicted, but, on appeal, the Court of Appeal' ordered a new trial, following which the trial in question in these proceedings was held.
The evidence on behalf of the Crown was mainly that of two RCMP officers, Corporal Macauley and Constable Yurkip. .Briefly summarized, this was that at about 6.55 p.m. on September 18, 1955, the appellant was observed to make a thiowing motion near a hydro pole on Dupont Street in Toronto and then, 'to depart. The two' officers then discovered a cigarette .package near the pole, which contained fifty capsules of heroin. Some of these were removed and then, after the package had been initialled, it was replaced near the pole. As Yurkiw was about to replace the package T.E they saw one Fillmore, a convicted drug addict,. walk past Martiand J. the pole.
Later, at about 8.40 p.m., the appellant was seen to cross
Dupont Street to the pole and make a motion as though picking something up. The base of the pole was subsequently searched and it was found that the package was gone. The police officers then saw the appellant and Fillmore together about 240 feet away.
Later they saw the appellant's car stalled in the middle of the street on Lansdowne Avenue, about one block south of Dupont Street, and being pushed by one Cook into a parking lot. The appellant then got into Cook's car and drove away, following which Macauley and.Yurkiw found the appellant's car on the parking lot.
Subsequently, at about 9.30 p.m., the cigarette package, containing no narcotics, was found on the laivn of a house about six to eight feet from the place. where' the appellant and Fillmore had been seen earlier standing together.
Evidence was given by Constable Webster of the RCMP that at about 11.30 p.m. he, in company with Corporal
LaBrash, saw the appellant and one Fred Walsh leave
180 Lansdowne Avenue, go to a parking lot and put something into the gas tank of the appellant's car. The appellant then drove off.
Leave to appeal to this Court was granted on six grounds of appeal, each of which was fully argued.
The first ground alleged was that the Crown led evidence and cross-examined the appellant and other witnesses: for the defence to show the appellant's association with known criminals, including persons with previous convictions. for narcotic offences, and to show that the appellant had committed other criminal acts of which.he had not been eonvicted. It was contended that the Crown had generally attacked the appellant's character, both before and while he was in the witness box, and had sought to have it inferred that, by reason of his alleged associations with persons-of bad character, he was likely to have committed the offence
With respect to this point, I agree with what has been said concerning it in the judgment of the Court of Appeal and am of the opinion that it fails.
The second point argued was that counsel for the appellant had been prevented from adducing the most substantial supporting aspects of his defence; namely, that a small group of officers, acting in concert, were engaged in submitting false reports and preparing false evidence to implicate the appellant in the traffic of drugs during the period surrounding September 18, 1955.
The evidence which counsel for the appellant sought to adduce was taken on the voir dire, but was not given before the jury. In brief, it was that Constable Tomalty of the RCMP, at the preliminary hearing, and Corporal LaBrash of the RCMP, at the conspiracy trial, had testified to having seen the appellant in the company of one Fred Walsh in the early hours of October 19, 1955, whereas, in fact, the evidence was that Walsh was in custody at the No. 8 Police Station in Toronto, sometimes referred to as the Pape Avenue Station, at the time in question.
The contention of the appellant was that the Narcotic Squad of the RCMP in Toronto, consisting of LaBrash, Macauley, Tomalty, Yurkiw and Webster, were "acting in concert" to prepare false reports and give false evidence concerning the appellant and that the evidence above referred to should have been admitted as being relevant to the establishment of a conspiracy among them for that purpose.
It is true that on a charge of conspiracy the acts and declarations of each conspirator in furtherance of the common object are admissible in evidence as against the rest. The same rule has been applied in civil cases. The rule is, however, one which determines the admissibility of evidence as against a person who is a party to legal proceedings. In the present case what is sought to be done is to introduce evidence of this kind, not as against a person charged with conspiracy or sued in relation to a conspiracy, but in respect of a witness who, it is alleged, was a party to a conspiracy not the subject of these proceedings. In the one case the conspiracy is in issue as a part of the case and the rule determines the kind of evidence which may be adduced in relation to that issue. In the present case it is proposed to lead such evidence for the collateral purpose of attacking the credibility of a witness.
Facts to establish bias on the part of a witness may be 1\artland elicited on cross-examination and, if denied, may be independently proved. It was open to the defence to crossexamine Macauley and Yurkiw as to whether they were parties to a conspiracy which sought wrongfully to obtain a conviction against the appellant. If denied, evidence which directly implicated either of them as being parties to a conspiracy for that purpose would be relevant because this would relate directly to the establishing of bias. But the evidence sought to be introduced here is not evidence of that kind. It was proposed to lead evidence that two other persons, at other hearings, had given inaccurate evidence, on the basis that such evidence would be admissible because they were members of the same RCMP squad as the witnesses who gave evidence in this case and were "acting in concert" together. This was proposed to be done, not by calling these two persons themselves, but by putting in evidence of a transcript of their testimony at the other hearings. In my opinion this is not evidence which is properly admissible for the purpose of attacking the credibility of the witnesses in this case.
The third ground of appeal was that the Crown did not call as a witness either LaBrash or Tomalty and that the learned trial judge did not instruct the jury as to the inferences which they might draw from this fact.
That counsel for the Crown was under'no duty to call either Tomalty or LaBrash is, I think, sufficiently established by the decision of this Court in LeMay v. The King'.
Neither LaBrash nor Tomalty was a witness to the important incidents on Dupont Street on the evening of September 18, 1955. Any evidence they could give related only to collateral matters. This being so, I do not see why there was any necessity for the learned trial judge, in instructing the jury, to make any comment upon the fact that they had not been called to give evidence.
The fourth point submitted was that the learned trial judge failed adequately to present to the jury the theory of THE the defence. I agree with the Court of Appeal that there is Martland J. no substance to this contention.
- The fifth ground of appeal is that the Crown was permitted to adduce evidence as to the movements of Fillmore in the absence of the appellant and as to Fillmore's addiction to drugs and his previous convictions for narcotic offences.
The charge in this case was laid under s. 4(3) (b) of the Opium and Narcotic Drug Act of being in possession of heroin for the purpose of trafficking. The evidence relating to Fillmore was relevant to the question of trafficking. The appellant contended, however, that, because of the provisions of subs. (4) of s. 4 of that Act and because it had been stated by counsel for the defence, at the outset of the trial, that the defence would be that the appellant was not in possession of the drug at the time and place alleged, the Crown was, therefore, not entitled to lead the evidence regarding Fillmore.
Subsection (4) of s. 4 provides as follows:
In any prosecution for an offence under paragraph (b) of subsection (3), the court shall, unless the accused pleads guilty to the charge, first make a finding as to whether or not the accused was in possession of the drug; if the court finds that he was not in possession of the drug, the court shall acquit him; if the court finds that the accused was in possession of the drug, the court shall give the accused an opportunity of establishing that he was not in possession of the drug for the purpose of trafficking, and if the accused establishes that he was not in possession of the drug for the purpose of trafficking, he shall be acquitted of the offence as charged but shall, if the court finds that the accused was guilty of an offence under subsection (1), be convicted under that subsection and sentenced accordingly; and if the accused fails to establish that he was not in possession of the drug for the purpose of trafficking he shall be convicted of the offence as charged and sentenced accordingly.
The clear purpose of this provision is that, in the case of a charge of being in possession of a drug for the purpose of trafficking, once there has been a finding of possession the onus then rests upon the accused to prove that he was not in possession for the purpose of trafficking. I do not see how this can preclude the Crown from bringing evidence in its case in chief to establish the purpose of trafficking, or how defence counsel can preclude the leading of such evidence merely by stating that his defence will be that the accused was not in possession of the drugs. The Crown must establish its case in respect of the charge laid. Subsection (4) of THE s. 4 assists the Crown in proving its case once possession has Martand J. been established, but I cannot see how that subsection can serve to prevent the adducing of evidence which is obviously relevant to the charge as laid.
The sixth point is that the appellant was not permitted to adduce evidence of his previous acquittal on the charge of conspiracy, although the circumstances and evidence upon which the conviction was sought in the conspiracy trial included the incident upon which the substantive charge was based. It was contended by the appellant that the learned trial judge refused to allow the defence to rely on the findings of fact encompassed by the acquittal in the conspiracy charge in so far as such findings might be relevant in relation to the substantive charge of possession.
In fact, on cross-examination the appellant did testify as to his acquittal on the conspiracy charge, but counsel for the appellant was not permitted to lead evidence otherwise to prove that acquittal. The learned trial judge was obviously following the decision of the Court of Appeal made on the appeal which had been taken in the first trial and which dealt with this specific matter'.
Counsel for the appellant, on this phase of his argument, relied upon the statement of the law regarding res judicata made by Lord MacDermott, who delivered the reasons for the decision of the Privy Council in Sambasivam v. Public
Prosecutor, Federation of Malaya 2 , as follows:
The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence.
To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim
"Res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of
' [19581 O.A. 413, 120 C.C.C. 209, 27 C R. 333.
2 [1950] A.C. 458 at 479.
S.C.11.
In that case the accused had been tried on two charges, under the Emergency Regulations, 1948, of carrying a firearm and of being in possession of ammunition respectively. He was acquitted of the second charge, but a new trial was ordered on the first one.
At the second trial a statement of the accused was introduced which had not been in evidence at the first trial. If accepted as the truth, it went to prove his guilt on the second charge, of which he had been acquitted, as clearly as it would establish his guilt on the first charge. The statement was admitted and no intimation was given to the assessors of the fact that the accused had been acquitted on the second charge and was, therefore, to be taken as innocent of that offence.
In view of these circumstances it was felt that the acquittal of the appellant on the charge of being in possession of ammunition was relevant to the consideration by the assessors in the second trial of the effect of this statement. It might have been a ground for excluding the statement in its entirety, because it could not have been severed satisfactorily. The result of the omission to refer to the acquittal on the second charge was that the Crown was enabled to rely upon the existence of facts in respect of which there had already been a contrary finding in favour of the accused.
The appellant does not contend that in every case an acquittal on a charge of conspiracy must result in an acquittal on the substantive charge in respect of the crime to which the alleged conspiracy related. His argument is that in a case of the kind before us an accused could only become in wrongful possession of narcotics as a result of a conspiracy with somebody. Therefore, he contends that an acquittal on the conspiracy charge must mean that the verdict of acquittal resulted from a finding that the accused was not in possession of the drug. Consequently that finding is a bar to a conviction in respect of the substantive offence. I do not accept the validity of this reasoning. The conspiracy charge was in relation to an alleged conspiracy to be in possession of drugs for the purpose of trafficking. The essence of that charge is the agreement for that purpose. The verdict of acquittal establishes, but only establishes, innocence in respect of the conspiring. It does not establish that the appellant was found not to be in possession of drugs. He could have been in possession of them without being party to a conspiracy to have that possession for the purpose of trafficking.
As I see it, the principle of res judicata enunciated in the
Sambasivam case only estops the Crown in the later legal proceedings from questioning that which was in substance the ratio of and fundamental to the decision in the earlier proceedings. The use of the statement of the accused in that case involved an allegation against the accused of guilt, in relation to the possession of ammunition, which had already been decided in his favour. The acquittal of the appellant, on the charge of having conspired with others to be in possession of drugs for the purpose of trafficking, did not decide in his favour that he had not been in possession of drugs on September 18, 1955. This being so, the acquittal in the earlier trial was not relevant to the charge which was the subject-matter of the present proceedings and was not admissible in evidence in those proceedings.
For the foregoing reasons I am of the opinion that this appeal should be dismissed, but the time during which the appellant has been confined in prison pending the determination of this appeal should count as part of the term of imprisonment imposed pursuant to his conviction.
(dissenting):-The nature of this appeal and the facts out of which it arises are stated in the reasons of my brother Martland.
The notice of motion for leave to appeal to this Court sought to raise six questions of law and leave was granted as to all of them. I find it necessary, however, to deal with only the following two of those questions:
that engaged in submitting false reports and preparing false evidence to implicate the accused in the traffic of drugs during the period surrounding September 18th 1955, and whether the learned trial judge erred in law in THE not adequately setting out to the jury the above theory of the defence? Cartwright J.
6. Whether the learned trial judge erred in law in refusing to allow counsel for the applicant to adduce evidence of a previous acquittal of the applicant on a charge of conspiring to possess narcotic drugs for the purpose of trafficking, especially as evidence was led by the Crown of the applicant's association with Victor Jowett and certain other persons named and persons unknown during the period under review, and erred in law in not charging the jury that such verdict of acquittal was binding and conclusive in all subsequent proceedings between the parties to the adjudication with respect to all facts which must necessarily have been decided in favour of the applicant in order that the first verdict could have been reached?
I propose to deal first with the last-mentioned point. In September 1956 an indictment was preferred at the sittings of the Court of General Sessions of the Peace for the County of York, count 1 of which read as follows: (the appellant) and in the year 1955, at the City of Toronto, in the County of York, and elsewhere in the Province of Ontario, unlawfully did conspire together, the one with the other or others of them, and with Harry Ross and persons unknown, to commit the indictable offence of having in their possession a drug, to wit, diacetylmorphine, for the purpose of trafficking, an indictable offence under the Opium and Narcotic Drug Act, contrary to the Criminal Code. Counts 2 to 5 inclusive charged Jowett, Nicolucci, Walsh, McIntosh and LaBrasseur with having possession of the drug mentioned for the purpose of trafficking on or about specified dates in the year 1955.
Count 6 read as follows:
6. THE that the said Edwin McDonald, on or about the 18th day of September, in the year at the said City of Toronto, unlawfully did have in his possession a drug, to wit, diacetylmorphine, for the purpose of trafficking, contrary to Section 4(3) of the Opium and Narcotic Drug Act, Revised Statutes of Canada, 1952, Chapter 201, and amendments thereto.
In December
1956, Jowett, Nicolucci,
LaBrasseur, McIntosh and Walsh, were tried together on count number 1, before His Honour Judge Forsyth and a jury and on December 12, 1956, Jowett and Nicolucci were convicted and the other three were acquitted.
In April, 1957, the appellant was tried on count number 1, before His Honour Judge Forsyth and a jury and, on April 17, 1957, was acquitted.
THE In October 1957, the appellant was tried on count num-Cartwright J. ber 6 before His Honour Judge Factor and a jury and, on October 24, 1957, was convicted of having possession of the drug mentioned for the purpose of trafficking; on the following day he was sentenced to seven years' im'prisonment. On March 3, 1958, the Court of Appeal' gave judgment quashing this conviction and directing a new trial.
.The new trial was held before His Honour Judge Shea and a jury and resulted in a conviction on November 18, 1958. On the following day the appellant was sentenced to six years' imprisonment. An appeal was dismissed by the Court of Appeal' on April 29, 1959, and it is from that judgment.that this appeal is brought.
In order to deal adequately with question 6, it is necessar,-to say something as to the course of the trial. It should first be mentioned that the indictment was not placed before the jury; they were given only a copy of count 6.
In his opening address to the jury Crown counsel said in part:
Now the evidence began and it involves, as you heard from the charge, an incident on the 18th of September 1955, that is quite a while ago, and that particular day, pursuant to their instructions, two officers of the Royal Canadian Mounted Police, Corporal Macauley and Police Constable Yurkiw, were proceeding, in the course of an investigation, on Bloor St. in.an easterly direction some time shortly after supper, I think around 6.55. Asthey were proceeding easterly, at the corner of Dundas and Bloor they were stopped for a stoplight and they saw an automobile which they knew. or,believed was the automobile of the accused Edwin McDonald, which was a red and black sedan, proceed in a northerly direction on Dundas and make a sharp right hand turn to go east on Bloor. Now in relation to their investigation they were interested in this automobile, so when the light changed they took off after it.
After outlining the incidents on Dupont St. in regard to -the cigarette package containing capsules of heroin described in the reasons of my brother Martland; Crown counsel continued:
The officers then went and got their car and started to go up and down the area to see where they had gofie, and a short time later working down through these side streets got down to Bloor Street and as they 1 [19581 OR. 413, 120 C.C.C. 209, 27 C.R.-333.
[1959] O.W.N. 187, 124 C.C.C, 278, 30 C.R. 243.
were coming in a westerly direction saw a car of one Cook, who was known to them, go up Margueretta Street, made a left hand turn in front of them and they went on past and went up Emerson Avenue, up the laneway, came across the stop of Emerson Avenue ahead of the Cook car and paused at the top and allowed the Cook car to pass them. I think they Cartwright J stopped about at the corner of Dufferin and I forget the name of the street, Wallace I believe, and allowed the car to pass them and they then followed this car and it came up and stopped back of the McDonald car where it had been left on the north side of Dupont. McDonald got out of Cook's car, got into his own car and drove it in a westerly direction on Dupont to Lansdowne.
McDonald got again into the Cook car and proceeded into a house farther down Lansdowne Avenue. Later that night, others observed, and the evidence will be how they came back with other persons known to the Police and picked up the McDonald car later on.
Counsel for the appellant submits that the effect of these passages and particularly the words I have italicized would be to convey to the jury that prior to the date of the alleged offence the activities of the appellant and "others known to the police" were the subject of a continuing investigation by the police, with the natural inference that the appellant and these others were working in association.
The first witness called by the Crown was Sergeant Gove who gave evidence as to the taking of certain photographs and as to the examination he had made of the cigarette package. In cross-examination, in the absence of the jury, counsel for the appellant put the following questions to Sergeant Gove:
Q. Now, Sergeant Gove, were you present at the trial of this same Edwin McDonald at this same court room, in the Court of General Sessions of the Peace in the County of York, held at Toronto, on the 8th, 9th, 10th, 11th, 12th, 15th, 16th and 17th days of April 1957 and did you give evidence at that trial on that date?
Q. And the next question, Sergeant Gove, is: was he, Edwin McDonald, there acquitted of a charge of conspiracy with Victor Jowett, Joseph Nicolucci, Harry Ross and persons unknown that at the City of Toronto, in the County of York, and elsewhere in the Province of Ontario, in the year 1955 he did commit the indictable offence of having in their possession a drug, to wit, diacetylmorphine, for the purpose of trafficking, an indictable offence under the Opium and Narcotic Drug Act.
Q. And finally, Sergeant Gove, during that trial did you give substantially the same evidence as you have given here with reference to the taking of photographs at the general vicinity of Dupont and Emerson Avenues, Toronto, on September the 19th and with respect to the handling of a cigarette package with respect to fingerprints at some other time? All these questions were objected to by Crown counsel and were disallowed by the learned trial judge, who regarded himself as bound to follow this course by the judgment of the Court of Appeal' on the appeal from the conviction before His Honour Judge Factor.
In the examination-in-chief of Corporal Macauley Crown counsel, referring to September 1955, brought out the following:
Q.
In the examination-in-chief of Constable Webster Crown counsel brought out that the appellant had been seen at
58 South Kingsway with Frederick Walsh.
The defence called a number of witnesses. Among these was Mrs. Near, a sister of the appellant, who testified in chief that Corporal Macauley had made a threat to the appellant some years prior to the date of the alleged offence at a time when the appellant and his brother Alex were living with her, the alleged threat being "I'll get you yet".
In her cross-examination by Crown counsel the following appears:
The defence called Mary Olive Lehman who was living with the accused as his wife at the time of the alleged offence to prove two things, (i) that he never went out without her on Sundays during a period which included September,
1955, and (ii) that he never went out without wearing a hat as he was sensitive about premature baldness. In her cross-examination, Crown counsel brought out the fact that at the date of the alleged offence she and the appellant were
Cases cited
- A.C. 471 A.C. 471
- A.C. 458 A.C. 458 479
Statutes and regulations cited
-
Supreme Court Act
- s. 67 of the Supreme Court Act
- s. 108(g)
- s. 4
-
Unresolved citations
- Section 108(g)
- subs. (4)
- Subsection (4)
- paragraph (b)
- subsection (3)
- subsection (1)
- Section 4(3) of the Opium and Narcotic Drug Act