The appellants were convicted on a charge that they unlawfully carried on their ordinary calling, to wit, the operation of a bowling alley on a Sunday, contrary to the Lord's Day Act, RS.C. 1952, c. 171. Their appeals were dismissed and they were granted leave to appeal to this Court. Their main attack was that the Canadian Bill of Rights, 1960 (Can.), c. 44, had in effect repealed s. 4 of the Lord's Day Act, or, in any event, rendered it ineffective.
Held (Cartwright J. dissenting): The appeal should be dismissed. Per Taschereau, Fauteux, Abbott and Ritchie JJ.: The Canadian Bill of Rights was not concerned with "human rights and fundamental freedoms" in any abstract sense, but rather with such "rights and freedoms" as they existed in Canada immediately before the statute was enacted. Legislation for the preservation of the sanctity of Sunday has existed in Canada from the earliest times and has, at least since 1903, been regarded as part of the criminal law in its widest sense. Historically such legislation has never been considered as an interference with the kind of "freedom of religion" guaranteed by the Canadian Bill of Rights. The effect rather than the purpose of the Lord's Day Act should be looked to in order to determine whether its application involved the abrogation, abridgment or infringement of religious freedom. There was nothing in that statute which in any way affected the liberty of religious thought and practice. The practical result of this law on those whose religion required them to observe a day of rest other than Sunday was purely secular and financial. In some cases this was no doubt a business inconvenience, but it was neither an abrogation nor an infringement of religious freedom. The fact that it had been brought about by reason of the existence of a statute enacted for the purpose of preserving the sanctity of Sunday could not be construed as attaching some religious significance to an effect which was purely secular insofar as non- Christians were concerned.
Per Cartwright J., dissenting: The purpose and effect of the Lord's Day Act are to compel the observance of Sunday as a religious holy day by all the inhabitants of Canada; this is an infringement of religious freedom. Construed by the ordinary rules of construction s. 4 of the Lord's Day Act is clear and unambiguous and infringes the freedom of religion contemplated by the Canadian Bill of Rights. Parliament could not be taken to have been of the view that the Lord's Day Act did not infringe freedom of religion merely because that Act had been in force for more than half a century when the Canadian Bill of Rights was enacted. To so hold would be to disregard the plain words of s. 5(2) of the Canadian Bill of Rights. Where there is irreconcilable conflict between another Act of Parliament and the Canadian Bill of Rights the latter must prevail. Section 4 of the Lord's Day Act infringes the freedom of religion declared and preserved in the Canadian Bill of Rights and must, therefore, be treated as inoperative.
APPEAL from a judgment of the Court of Appeal for Ontario affirming the conviction of the appellants on a charge of operating a bowling alley on Sunday. Appea1 dismissed, Cartwright J. dissenting.
lants.
W. C. Bowman, Q.C., and F. W. Callaghan, for the respondent.
T. D. MacDonald, Q.C., and D. H. Christie, for the Attorney General of Canada.
I. G. Scott, for the Lord's Day Alliance.
J.:-This is an appeal brought with leave of this Court from a judgment of the Court of Appeal for Ontario rendered without formal reasons, which dismissed an appeal from a judgment of Schatz J. dismissing an appeal by the appellants, by way of stated case for the opinion of the Court, against their conviction by a provincial magistrate in and for the County of Hamilton of a charge that they did unlawfully carry on their ordinary calling, to wit, the operation of a bowling alley, contrary to The Lord's Day Act, R.S.C. 1952, c. 171.
By the stated case the learned Magistrate raised the following questions:
Was I right:- (a) In holding that the appellants were in contravention of The Lord's Day Act, R.S.C., 1952, Ch. 171, and not solely in breach of By-Law No. 9252 of the Corporation of the City of Hamilton;
(b) In assuming that in proper construction and application the Lord's Day Act, R.S.C. 1952, Ch. 171, is not in conflict with the Canadian Bill of Rights, S.C. 1960, C. 44 and more particularly with Section 2 thereof.
Mr. Justice Schatz having answered both these questions in the affirmative without giving any formal reasons, the sole ground of appeal argued before the Court of Appeal for Ontario was that:
This Court however granted the appellants leave to appeal "at large" and on their behalf argument was directed to the following issues:
(a) That by the legislative imposition of Sunday observance as a religious value upon the whole Canadian Community, including Ritchie J.
those whose religious values and precepts permit them to engage in activities thus prohibited, the Lord's Day Act is in conflict with that human right and fundamental freedom set out in the Bill of Rights as "freedom of religion".
(b) That the effect of Section 2 of the Bill of Rights is, subject to the single qualification set out in that section, to repeal any federal enactments which are in direct conflict with enumerated ". . . human rights and fundamental freedoms declared and enshrined in the Act.
(c) That statute law necessary for the regulation of the mode and method in which premises on which bowling is carried on are to be enjoyed, including the conditions as to time and otherwise during which the game and recreation might properly be carried on, is properly the subject of Provincial legislation.
By Section 1 of the Canadian Bill of Rights it is "recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex the following human rights and fundamental freedoms, namely,
(a) The right of the individual to life, liberty, security of the person and enjoyment of property; and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
(c) freedom of religion;
(d) freedom of speech;
(e) freedom of assembly and association; and
(f) freedom of the press."
It is to be noted at the outset that the Canadian Bill of Rights is not concerned with "human rights and fundamental freedoms" in any abstract sense, but rather with such "rights and freedoms" as they existed in Canada immediately before the statute was enacted. (See also s. 5(1)). It is therefore the "religious freedom" then existing in this country that is safe-guarded by the provisions of s. 2 which read, in part, as follows:
Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, . . .
It is accordingly of first importance to understand the concept of religious freedom which was recognized in this country before the enactment of the Canadian Bill of Rights Ritchie J. and after the enactment of the Lord's Day Act in its present form, and in this regard the following observations of
Taschereau J., as he then was, speaking for himself and
Kerwin C.J. and Estey J., in Chaput v. Romain', appear to me to be significant:
All religions are on an equal footing, and Catholics as well as
Protestants, Jews, and other adherents to various religious denominations, enjoy the most complete liberty of thought. The conscience of each is a personal matter and the concern of nobody else.
The position of "religious freedom" in the Canadian legal system was summarized by Rand J. in Saumur v. The City of Quebec , where he said:
From 1760, therefore, to the present moment religious freedom has, in our legal system, been recognized as a principle of fundamental character; and although we have nothing in the nature of an established church, that the untrammelled affirmations of 'religious belief' and its propagation, personal or institutional, remain as of the greatest constitutional significance throughout the Dominion is unquestionable.
It is apparent from these judgments that "complete liberty of religious thought" and "the untrammelled affirmation of 'religious belief' and its propagation, personal or institutional" were recognized by this Court as existing in
Canada before the Canadian Bill of Rights and notwithstanding the provisions of the Lord's Day Act.
It is to be remembered that the human rights and fundamental freedoms recognized by the Courts of Canada before the enactment of the Canadian Bill of Rights and guaranteed by that statute were the rights and freedoms of men living together in an organized society subject to a rational, developed and civilized system of law which imposed limitations on the absolute liberty of the individual. In referring to the "right of public discussion" in Re Alberta Statutes 3 ,
1[19551 S.C.R. 834 at 840, 1 D.L.R. (2d) 241 at 246, 114 C.C.C. 170.
[19531 2 S.C.R. 299 at 327, 106 C.C.C. 289.
[19381 S.C.R. 100 at 133, 2 D.L.R. 81.
Sir Lyman Duff acknowledged this aspect of the matter when he said:
The right of public discussion is, of course, subject to legal restrictions; those based upon considerations of decency and public order and others conceived for the protection of various private and public interests Ritchie J. with which, for example, the laws of defamation and sedition are concerned. In a word, freedom of discussion means, to quote the words of Lord Wright in James vs. Commonwealth, (1936)
A.C. 578, at 627, 'freedom governed by law'.
Although there are many differences between the constitution of this country and that of the United States of America, I would adopt the following sentences from the dissenting judgment of Frankfurter J. in Board of Education v. Barnette', as directly applicable to the "freedom of religion" existing in this country both before and after the enactment of the Canadian Bill of Rights:
The constitutional protection of religious freedom terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma. It is against this background that the effect of the provisions of the Lord's Day Act on "religious freedom" as guaranteed by the Canadian Bill of Rights is to be considered. Section 4 of the Lord's Day Act reads as follows: It shall not be lawful for any person on the Lord's Day, except as provided herein, or in any provincial Act or law now or hereafter in force, to sell or offer for sale or purchase any goods, chattels, or other personal property, or any real estate, or to carry on or transact any business of his ordinary calling, or in connection with such calling, or for gain to do, or employ any other person to do, on that day, any work, business, or The italics are my own and indicate the offence with which the appellants were charged.
There have been statutes in this country since long before Confederation passed for the express purpose of safeguarding the sanctity of the Sabbath (Sunday), and since the decision in Attorney General for Ontario vs. Hamilton Street Railway', it has been accepted that such legislation and the penalties imposed for its breach, constitutes a part of the criminal law in its widest sense and is thus reserved to the Parliament of Canada by s. 91(27) of the British 1(1943), U.S. at
2 [1903} A.C. 524, 2 0.W.R. 672, 7 C.C.C. 326.
North America Act. Different considerations, of course, apply to the power to legislate for the purely secular purpose of regulating hours of labour which, except as to the regulation of the hours of 1abour of Dominion servants, is
VU primarily vested in the provincial legislatures. See the reference re Hours of Labour' and Attorney General for
Canada v. Attorney General for Ontario Reference re
Weekly Rest in Industrial Undertakings Act, Minimum
Wages Act and Limitation of Hours Act
The immediate question raised in this appeal, however, is whether the prohibition against any person carrying on or transacting any business of his ordinary calling on Sunday as contained in the Lord's Day Act, supra, is such as to "abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of .
the right of the appellants to freedom of religion.
It is said on behalf of the appellants that freedom of religion means "freedom to enjoy the freedom which my own religion allows without being confined by restrictions imposed by Parliament for the purpose of enforcing the tenets of a faith to which I do not subscribe." It is further pointed out that Orthodox Jews observe Saturday as the
Sabbath and as a day of rest from their labours, whereas
Friday is the day so observed by the members of the
Mohammedan faith, and it is said that the Lord's Day Act imposes an aspect of the Christian faith, namely, the observance of Sunday on some citizens who do not subscribe to that faith.
My own view is that the effect of the Lord's Day Act rather than its purpose must be looked to in order to determine whether its application involves the abrogation, abridgment or infringement of religious freedom, and I can see nothing in that statute which in any way affects the liberty of religious thought and practice of any citizen this country. Nor is the "untrammelled affirmations religious belief and its propagation" in any way curtailed.
The practical result of this law on those whose religion requires them to observe a day of rest other than Sunday, is a purely secular and financial one in that they are required to refrain from carrying on or conducting their business on Sunday as well as on their own day of rest. In some cases this is no doubt a business inconvenience, but it is neither an abrogation nor an abridgment nor an infringement of religious freedom, and the fact that it has been brought about by reason of the existence of a statute enacted for the purpose of preserving the sanctity of Sunday, cannot, in my view, be construed as attaching some religious significance to an effect which is purely secular in so far as non- Christians are concerned.
As has been indicated, legislation for the preservation of the sanctity of Sunday has existed in this country from the earliest times and has at least since 1903 been regarded as a part of the criminal law in its widest sense. Historically, such legislation has never been considered as an interference with the kind of "freedom of religion" guaranteed by the Canadian Bill of Rights.
I do not consider that any of the judges in the courts below have so construed and applied the Lord's Day Act as to abrogate, abridge, or infringe or authorize the abrogation, abridgment or infringement of "freedom of religion" as guaranteed by the Canadian Bill of Rights, nor do I think that the Lord's Day Act lends itself to such a construction. I dismiss this appeal with costs.
J. (dissenting) :-The appellants were convicted on February 21, 1962, on the charge that they did, at the city of Hamilton, unlawfully carry on their ordinary calling, to wit, the operation of a bowling alley on January 14, 1962 (which was a Sunday) contrary to the Lord's Day Act, R.S.C. 1952, 171.
It is not questioned (i) that the appellants did in fact carry on their business as charged or (ii) that their so doing was forbidden by s. 4 of the Lord's Day Act or (iii) that that Act is intra vires of the Parliament of Canada. The conviction is attacked on the ground that the Canadian Bill of Rights, 1960, 8-9 Eliz. II, c. 44, has in effect repealed s. 4 of the Lord's Day Act or, in any event, rendered it ineffective.
The relevant words of the Canadian Bill of Rights are set out in the reasons of my brother Ritchie, which I have had the advantage of reading. As applicable to the circumstances of this case the provisions of s. 2 may be put as That the Lord's Day Act is a 'law of Canada within the intendment of this section is made clear by s. 5(2) of the Canadian Bill of Rights which reads:
The first question to be decided is whether s. 4 of the Lord's Day Act does infringe freedom of religion, within the meaning of those words as used in the Canadian Bill of Rights. In approaching this question it must be borne in mind that it has been decided repeatedly that the constitutional power of Parliament to pass the Lord's Day Act is found in the fact that it is enacted in relation to religion and prescribes what are in essence religious obligations. It is for this reason that it has been held to fadl within head 27 of s. 91 of the British North America Act, the Criminal Law. Conversely it has been decided that legislation affecting the conduct of people on Sunday but enacted solely with a view to promoting some object having no relation to the religious character of that day is within the powers of the Provincial Legislatures.
It cannot be doubted that in 1867 and for many years prior thereto laws forbidding or compelling specified conduct on Sunday were regarded as forming part of the criminal law.
In Blackstone's Commentaries, vol. IV, p. 63, the learned author says:
In Fennell et al. v. Ridler', Bayley J. delivering the judgment of the Court of King's Bench and referring to An Act for the better observation of the Lord's Day, commonly called Sunday (1676) 29 Charles II, c. 7, said:
In Henry Birks & Sons (Montreal) Ltd. v. Montreal and Attorney General for Quebec , the Court was considering the question whether provincial legislation could authorize the enactment of a by-law requiring shops to be closed on certain religious feast-days. Kellock J., with whom Locke J. agreed, said at page 823:
I can find no answer to the argument of counsel for the appellant, that the purpose and the effect of the Lord's Day Act are to compel, under the penal sanctions of the Criminal law, the observance of Sunday as a religious holy day by all the inhabitants of Canada; that this is an infringement of religious freedom I do not doubt.
I agree with my brother Ritchie that the following words which he quotes from the judgment of Frankfurter J. in Board of Education v. Barnette, supra, are appropriate to describe the freedom of religion referred to in the Canadian Bill of Rights:
But this passage presupposes that the word "law" which I have italicized means a law which has a constitutionally valid purpose and effect other than the forbidding or commanding of conduct in a solely religious aspect.
In my opinion a law which compels a course of conduct, whether positive or negative, for a purely religious purpose infringes the freedom of religion.
A law which, on solely religious grounds, forbids the pursuit on Sunday of an otherwise lawful activity differs in degree, perhaps, but not in kind from a law which coMmands a puredy religious course of conduct on that day, such as for example, the attendance at least once at divine service in a specified church.
J. It was argued that, in any event, in the case at bar the appeal must fail because there is no evidence that the appellants do not hold the religious belief that they are under no obligation to observe Sunday. In my view such evidence would be irrelevant. The task of the Court is to determine whether s. 4 of the Act infringes freedom of religion. This does not depend on the religious persuasion, if any, of the individual prosecuted but on the nature of the law. To give an extreme example, a 'law providing that every person in Canada should, on pain of fine or imprisonment, attend divine service in an Anglican church on at least one Sunday in every month would, in my opinion, infringe the religious freedom of every Anglican as well as that of every other citizen.
I have reached the conclusion that construed by the ordinary rules of construction s. 4 of the Lord's Day Act is clear and unambiguous and does infringe the freedom of religion contemplated by the Canadian Bill of Rights.
I cannot accept the argument that because the Lord's Day Act had been in force for more than half a century when the Canadian Bill of Rights was enacted, Parliament must be taken to have been of the view that the provisions of the Lord's Day Act do not infringe freedom of religion. To so hold would be to disregard the plain words of s. 5(2) quoted above.
It remains to consider the reasons for judgment of Davey J.A. in Regina v. Gonzales'. At page 239 of the C.C.C. Reports the learned Justice of Appeal says:
With the greatest respect I find myself unable to agree with this view. The imperative words of s. 2 of the Canadian Bill of Rights, quoted above, appear to me to require the courts to refuse to apply any law, coming within the legislative authority of Parliament, which infringes freedom of religion unless it is expressly declared by an Act of Parliament that the law which does so infringe shall operate notwithstanding the Canadian Bill of Rights. As already pointed out s. 5(2), quoted above, makes it plain that the Canadian Bill of Rights is to apply to all laws of Canada already in existence at the time it came into force as well as to those thereafter enacted. In my opinion where there is irreconcilable conflict between another Act of Parliament and the Canadian Bill of Rights the latter must prevail. Whether the imposition, under penal sanctions, of a certain standard of religious conduct on the whole population is desirable is, of course, a question for Parliament to decide. But in enacting the Canadian Bill of Rights Parliament has thrown upon the courts the responsibility of deciding, in each case in which the question arises, whether such an imposition infringes the freedom of religion in Canada. In the case at bar I have reached the conclusion that s. 4 of the Lord's Day Act does infringe the freedom of religion declared and preserved in the Canadian Bill of Rights and must therefore be treated as inoperative. It follows that I would allow the appeal and quash the conviction. Since I have the misfortune to differ from the other members of the Court as to the result of the appeal it is unnecessary to consider what order I would otherwise have suggested as to costs.
Appeal dismissed with costs. Solicitors for the appellants: White, Paikin, Foreman & Dean, Hamilton.
Solicitor for the respondent: J.
Act, R.S.A. 1955, c. 126, s. 44-By-law No.
205 of the Municipal District of Strathcona.
FUR
APPEALS
1. Acquittal-Court of Appeal ordering extension of time for applying for stated case- Stated case remitted for hearing and disposal on its merits-Supreme Court without jurisdiction to grant leave to appeal.
2. Practice and Procedure-Jurisdiction- Criminal law-Application for leave to appeal by Crown-Whether on a question of law alone.
BANKRUPTCY
See-Voir: Immeubles.
BILLS AND NOTES
Promissory note signed in blank-Authority given holder to complete-Holder in due course-Bills of Exchange Act, R.S.C. 1952, c. 15, ss. 31, 32.
v. INVESTMENT
CERTIORARI
See-Voir: Physicians and surgeons.
CIVIL CODE
Articles 443, 446 (Usufruct).
See-Voir: WILLs 1.
CIVIL CODE-Continued-Suite 2.-Articles 549, 551, 556 (Servitudes)............................ 3.-Article 782 (Gift inter vivos).... 4.- Article 864 (Legacies).......... 5.- Article 891 (Seizin of legatees).. 6.- Article 900 (Lapse of testamentary disposition)................ .- Articles 925, 929, 957 (Substitution).......................
8.- Article 952 (Substitution) ...... Article 993 (Fraud) ............ 10.-Article
1029 (Stipulation third party).............. ...... Article (Quasi-delict)..... 12.- Article 1056 (Quasi-delict)..... Article (Object obligations)............................
Article 1065 (Effect of breach obligation)......................... 15.-Article 1085 (Conditional obligation)...........................
16.-Article 1530 (Redhibitory action).............................
CIVIL CODE-Concluded-Fin
17.-Article 1592 (The giving in payment).........................
18.-Article 1691 (Work by estimate and contract)...................
19.- Article 2193 (Possession)...... 641
See-Voir: 7.
CODE OF CIVIL PROCEDURE
1.-Articles 174 et seq. (Exception to the form)......................
2.-Article 1064 (Possessory action). 641
See-Voir: 7.
3.- Article 1292 (Evocation) .......
COMPANIES
1. Offer to purchase shares of company subsidiary of majority shareholder-Offeror not entitled to order for compulsory acquisition of minority shares-Approval of ninetenths majority required-Shares must be independently held-Companies Act, R.S.C.
1952, c. 53, s. 128(1).
J. W.
M. A.
2. Mortgage executed by company as security for payment of its shares by of the company-Statutory prohibition- Mortgage void-Covenant as to payment of taxes on land described in mortgage also void.
Petition for winding-up order-Resolution common shareholders-Whether preference shareholders entitled to notice meeting and a vote-Whether a discretion in the Court to refuse order-Winding-up
Act, R.S.C. 1952, 296, 10(b)-Companies Act, R.S.C. 1952,
CONFLICT OF LAWS 1. Rule that foreign States cannot directlyor indirectly enforce their tax claims in our courts not affected by taking judgment foreign States-Stipulation judgment-Lia-bility to pay tax not converted into contractual obligation.
See also-Voir aussi: Conflit de CONFLIT DE LOIS
1. Loi 6trangbre-Quasi-d6lit-Accident fatal dans l'Etat du Maine-Victime y domicili6e-Ddfendeur domicili6 dans la Provincede Qu6bec-Action prise dans Quebec parla veuve et les enfants personnellement- Loi du Maine exigeant qu'une telle action soit prise par l'administrateur de la succession-Question de procedure ou sub-stance-Validit4 de l'action-Code Civil,. art. 1056-Code de Prod6dure Civile, Arts.. 174 et seq.
See also-Voir aussi: Conflict of laws CONSTITUTIONAL LAW 1. Companies Act, R.S.C. 1952, c. 53, s. 28-Whether intra vires Parliament. Esso W. M. A. transaction tion-Whether intra Legislature-The tions Relief Act, R.S.O. 1960, 140- Interest Act, R.S.C. 1952, c. 156, s. 2- B.N.A. Act, 1867, s.
Labour law-Trade prohibited from using membership fees for political purposes-Whether legislation ultra vires Provincial Legislature-Labour Relations Act, R.S.B.C. 1960, 205, 9(6) [enacted 16-601 4. Sunday closing-Licensing by-law-Validity by-law-Whether field of criminal law-Whether in conflict Concluded-Fin with Lord's Day Act, R.S.C. 1952,
Whether in conflict with Criminal Code,
1953-54 (Can.), 176-B.N.A.
Act,
Criminal law-Sunday closing-Bowling alley-Whether infringment of religious freedom-Whether conflict with Canadian
Bill of Rights, 1960 (Can.), 44-Lord's
Day Act, R.S.C. 1952,
CONTRACTS
1. Insurance-Agency-"Expirations"
to remain property of general agent on termination of contract-Company soliciting subagents for direct agency agreements- Whether breach of contract.
Letting and hiring-Lease of public garage-Misrepresentation as to earnings- Action in annulment-Whether fraudratification contract-Civil
Code, arts. 993, 1530.
Agreement to forbear from taking action on promissory notes-Undertaking debtor to perform certain obligations- Good consideration-Creditor's right to sue suspended-Action on notes premature.
4. Agreement to supply water to pulp mill- Validity of agreement-Whether beyond powers of City to make-An Act to consolidate the Laws Relating to Sewerage and
Water Supply, in the City of Saint John, and in Portions of the Parishes of Lancaster and Simonds, 1914 (N.B.),
83-Saint
John City Assessment Act, 1948 (N.B.),
V. &
5. Building subcontract-Trial judge wrong in implying term as to progress construetion to permit commencement of work subcontractor-Subcontractor not excused for performance by reason of alleged breach of contract by general contractor.
W. J.
CONTRACTS-Concluded-Fin Partnership agreement-Annual payments by one partner in reduction of capital account of other partner-Essentials of an agreement for sale lacking-Dissolution partnership-Distribution of assets-The Partnerships Act, R.S.O. 1960, 288, 44. Breach-Right to rescind claimed-Seriousness of defective performance-Case one for damages and not recission.
V. 632, 8. See also-Voir aussi: Contrat
CONTRAT
1. Construction d'un h6pital-Droit de canceller pour raisons estimdes raisonnables -Octrois du gouvernement refus6s-Cancellation-Action en dommages-Code Civarts,
Option d'achat-Actions de compagnie- D~p6t d'actions A une compagnie de fideicommis pour 6tre livrbes sur paiement du prix-Rvocation unilat6rale avant expiration du terme-Refus de livraison-Action en dommages-Int6r6ts-Stipulation pour autrui-Responsabilit6 solidaire-Code Civil, arts. 1029, 1065.
See also-Voir aussi: Contracts COPYRIGHT
See-Voir: Practice and procedure CRIMINAL LAW
1. Conviction for counterfeiting-Monies possession of accused at time of arrest as exhibits-Disappearance of monies from registry-Application for return of exhibits or equivalent sum-Alternative claim a claim to recover monies from Crown- Proceedings to be initiated by petition of right-Crown's liability to be first determined by Supreme Court of the province. THE 3.
CRIMINAL LAW-Continued-Suite
2. Hall leased for bingo games-Owner's president on premises when games played- No participation in games by president- Refreshment stand and commissionaire provided by company-Whether president was
"one who keeps a common gaming house"- Criminal Code, 1953-54 (Can.), c. 51, s. 176.
QUEEN v. 124
3. Capital murder-Body of alleged victim never found-Circumstantial evidence- Theory that one of two accused merely an accessory after fact to murder committed by other-Whether sufficient reality to theory to require trial judge to place it before jury.
4. Summary convictions-Appeals- Whether affidavit of service identified the respondent-Criminal Code, 1953-54
Arrest-Escaping from lawful custody- Assistant forest ranger making search of vehicle under Game Act-Whether a "peace officer"-Whether escape constitutes escape from lawful custody-The
Game Act,
R.S.N.B. 1952, c. 95-The Forest Service
Act, R.S.N.B. 1952, c. 93, s. 7, as amended by 1960 (N.B.), c. 34-Criminal Code, ss.
2(30) (c), 29(2)(b), 110(a), 125(a), 434, 437.
6. False representations-Whether any evidence-Question of law-Question of fact.
JANOS v. THE 451
7. Criminal negligence causing death- Motor vehicle-Jury trial-Lack of evidence-Insufficiency of evidence-Question of law.
8. Counts of conspiracy to defraud and conspiracy to steal involving six separate transactions-Whether count of conspiracy to defraud bad as being contrary to s.
492(1), Criminal Code-Whether facts that jury returned verdict of guilty on both counts and that this verdict was recorded fatal to maintenance of either conviction- Charge of making, circulating or publishing false prospectus-Criminal Code, 1953-54
(Can.), c. 51, ss. 322(1), 343 (1), 492, 497,
500(1)(a), 592.
COX
CRIMINAL LAW-Concluded-Fin 9. Capital murder-Whether murder was "planned and deliberate"-Meaning of word "deliberate"-Medical evidence showing impairment of ability to think-Whether misdirection as to weight of that evidence -Substantial wrong-Miscarriage of justice-Criminal Code, 1953-54 (Can.), c. 51, ss. 16, 201(a)(i), 202A(a) (iii), 592. v. THE 522.
10. Special pleas-Conspiracy-Interference with administration of justice-Six count indictment-Whether acquittal on conspiracy charge a bar to prosecution on second conspiracy charge-Autrefois acquit -Res judicata-Criminal Code, 1953-54 (Can.), c. 51, ss. 101(b), 518.
Lotteries-Mail order product distribution plan-Whether scheme contrary to s. 179(1) (e) of the Criminal Code, 1953-54 (Can.), c. 51.
also-Voir aussi: Appeals also-Voir aussi: Constitutional law also-Voir aussi: Droit criminel CROWN
1. Servant-Soldier injured while on leave -Action by Crown to recover for loss of services and medical and hospital expenses defendant negligent-Civil Code, art. 1053.
also-Voir aussi: Motor vehicles DAMAGES
1. Quantum of damages-Trial judge's assessment varied by Court appeal- Amount fixed by Court of appeal not interfered with by Supreme Court.
Negligence-Equal apportionment of liability-Jury's assessment of damages greater than amount claimed in statement of claim -Amount recoverable.
v. 86.
also-Voir aussi: Trial
1. Acceptation d'argent en vue d'exercer une influence auprbs d'un fonctionnaire- Obtention d'un permis de bibre-Employds de la Commission des Liqueurs sont-ils des officiers publics-Statut de la Commission- Code Criminel, arts. 99 (d) (e), 102.
v. 440
2. Possession d'un objet vol6-Preuve de possession au sens de l'art. 296 du Code
Criminel.
LA
3. See also-Voir aussi: Criminal law
EXPROPRIATION
1. Land taken by conservation authority- Order of Ontario Municipal Board fixing compensation-Appeal on questions of law and jurisdiction-Court of Appeal without jurisdiction to determine amount of compensation-Matter returned to Board to be dealt with in accordance with opinion of
Supreme Court.
3. Industrial building-Value to owner- Market value of land-Reproduction cost of building less depreciation.
4. Land taken as source of rock for causeway-No market for rock apart from building of causeway-Compensation for special adaptability-Expropriation
Act, R.S.C.
1927, c. 64.
IMMEUBLES
1. Hypothbque avec clause de dation paiement-Faillite--Clause jouant automatiquement dans ce cas-Nature et effet de la dation-Cr6ancier plus qu'un cr6ancier garanti-Droit propri6t6-Effet sur
IMMEUBLES-Concluded-Fin autres cr6anciers-Code Civil, arts. 1085, 1592-Loi sur la faillite, S.R.C. 1952, c. 14, arts. (r), 50.
LimiTE also-Voir property INSURANCE
1. Travel accident policy-Clause excluding liability if insured intoxicated-Liability also excluded if death caused by disease or natural causes-Burden of proof-Blood quantity Automobile-Action bursement payment satisfaction judgment against insured-Insured alleged to have been intoxicated in breach of statutory condition of policy-Standard of proof applicable-The Evidence Act, R.S.O. 1950, 119, 20-The Insurance Act, R.S.O. 1950, 214.
Life-Death of insured result of gunshot wounds-Claim by beneficiary-Defence suicide raised-Proof of suicide not established-Whether proper standard of proof adopted.
4. Contractor's public liability policy- Coverage for "liability imposed by law"- "Liability assumed under contract" cluded-Liability of insured tortious liability independently of contract-Whether claim within exclusion clause.
See also-Voir aussi: Contracts JURISDICTION
See-Voir: Appeals compensation-Discontinu- Board-Examination LABOUR-Concluded-Fin
Notification rejecting appeal-Matters contained in specialist's certificate not included in notification-Application for writ of mandamus with certiorari in aid to quash
Board's decision-Workmen's Compensation Act, R.S.B.C. 1960, c. 413.
2. See also-Voir aussi: Constitutional law
3. See also-Voir aussi: Trade unions
MASTER AND SERVANT
See-Voir: Crown
MECHANICS' LIENS
1. Construction equipment supplied on rental basis.-Whether liens created in respect of rentals charged-The Mechanics'
Lien Act, R.S.O. 1960, c. 233, s. 5.
TRUS- L. Di
2. Whether last work done under contract performed within 45 days of filing of lien as required by statute-Interest in lands- Mechanics' Lien Act. R.S.N.S. 1954, c. 171, s. 23.
MINES AND MINERALS
1. Participation agreements-Right to share in net proceeds of production-Nature of participant's interest-Not registrable
(Alta.), c. 49.
&
2. See also-Voir aussi: Real property
MOTOR VEHICLE
1. Collision at unprotected intersection- -Right-of-way-Passenger injured-Liabi- MOTOR VEHICLE-Concluded-Fin lity-Failure to respect hitting highway-Block at tion-Driver killed-No Whether liability Department. GNPRAL See also-Voir aussi: Criminal law 4. See also-Voir aussi: Insurance 5. See also-Voir aussi: Negligence MUNICIPAL CORPORATIONS 1. Water service outside citv limits- Whether municipality acquired status of a public utility-Public Utilities Act, R.S.B.C. 1960, c. 323.
NEGLIGENCE
1. Driver under influence of liquor to extent unable to safely drive his car-Passenger injured in accident-Volenti non fit injuria not applicable-Distinction between physi- LEINERT 38.
Motor vehicles-Passengers pursuant to particular journeys -One passenger injured and another killed -Whether vehicle "operated in the business of carrying passengers for compensation"- Liability of owner-The Highway Traffic Act, R.S.O. 1960, c. 172, s. 105 (2). Motor accident-Injuries gratuitous passenger-Whether constituted negligence-Opinion appellate court quality of negligence not to be substituted for that of trial judge-Highway Traffic Act, R.S.M. 1954, c. 112, s. 99(1). Defendant contractor independent contractor particular repair on plaintiff's building-No contract as between defendant and plaintiff to effect repair-Building NEGLIGENCE-Concluded-Fin of independent contractor's negligence- Extent of duty owed to plaintiff by defendant.
5. Construction contract-Inspection of work clause-Right of owners to access and proper facilities for access and inspection
-Owners injured by fall while inspecting unfinished roof.-Whether contractor liable.
C. A.
& 637
6. See also-Voir aussi: Animals
7. See also-Voir aussi: Damages
PATENTS
Action for infringement-Claims for substances produced by chemical process and intended for food or medicine-Claim for substance only when produced by particular process of manufacture-Valid process claim also required-Patent Act, R.S.C. 1952,
203, s. 41 (1), (2), (3).
C. H.
PHYSICIANS AND SURGEONS
Acts derogatory to medical profession- Writ of certiorari while proceedings before
Council on Discipline-Whether premature
-The Quebec Medical Act, R.S.Q.
PRACTICE AND PROCEDURE
1. Exchequer Court-Copyright-Infringement-Notice of statement of claim-Order for service out of jurisdiction-Material required in affidavit in support of application-Whether proper case for order for service ex juris-Exchequer Court Act,
R.S.C. 1952, 98, 75(1)-Rr. 42, 76- English Order XI Rr. 1,
2. See also-Voir aussi: Appeals
PROMISSORY NOTES
See-Voir: Contracts
PUBLIC UTILITY
See-Voir: Municipal corporations REAL PROPERTY
1. Servitude-Passageway-Sale of part dominant land noncontiguous to servient land-Whether servitude extinguished- Whether servitude by destination created- Action confessoire-Civil Code, arts. 549, 551, 556.
2. Conveyance registered and new certificate of title issued-Registrar erroneously acting under impression he had duplicate certificate of title in his possession- Whether registrar must automatically, on discovering error, cancel new certificate of title-Land Registry Act, R.S.B.C. 1960, 208, 256.
Pipe line right of way-Compensation for mines and minerals-Jurisdiction of National Energy Board-National Energy Board Act, (Can.), 46-Railway Act, R.S.C. 1952, c. 234.
4. Deed of sale-Interpretation-Right to expropriation indemnity-Rights of privilege creditors.
5. Petroleum and natural gas lease-Farmout agreement-Production of petroleum- Property interest of Crown in percentage recoverable oil-Effect on royalty obligations-The Road Allowances Crown Act, 1959 (Sask.), c. 53.
Lease of store-Prohibition to lease another store to company in same business in same shopping centre-Whether prohibition violated.
Possessory action-Encroachment- Demolition of extension to building- Necessary possession established-Findings of fact-Civil Code, art. 2193-Code Civil Procedure, art. 1064.
8. See also-Voir aussi: Immeuhles Loss of cargo-Unseaworthy vessel-Due diligence not exercised by owner to make ship seaworthy-Water carriage of Goods
Act, R.S.C. 1952, c. 291, Sched., Article IV,
Rules 1, 2(a).
C.N.R. v. E. & S. 323
STATUTE
Interpretation -Whether
"grain" under Crow's Nest Pass Agreement and Crow's Nest Pass Act, 1897 (Can.), c. 5-Railway Act, R.S.C. 1952, c. 234, s.
328 as amended, 1960-61 (Can.), c. 54.
C.P.R. C.N.R., 247
STATUTES
1.-Act to Consolidate the Laws
Relating to Sewerage and Water Supply, in the City of Saint John, and in
Portions of the Parishes of Lancaster and Simonds, 1914 (N.B.), c. 83 ......
2.-Bankruptcy Act, R.S.C. 1952, c.
14, ss. 2(r), 50...................
3.-Bills of Exchange Act, R.S.C.
1952, c. 15, s. 31, 32 ................
4.- B.N.A. Act, 1867, s. 91 (19)....
5.- B.N.A. Act, 1867. c. 3 .........
6.-Canadian Bill of Rights, 1960
(Can.), c. 44....................
7.-Companies Act, R.S.C. 1952, c.
53, s. 128(1)..
....................
8.-Companies Act, R.S.C. 1952, c.
53, s. 28..
.....................
9.-Companies Act, R.S.C. 1952, c.
53,s. 101......................
10.-Criminal Code, 1953-54 (Can.), c. 51. s. 176....... ..............
STATUTES-Continued-Suite 11.-Criminal Code, 1953-54 (Can.), c. 51, ss. 722, 723................ 12.-Criminal Code, 1953-54 (Can.), c. 51, as. 99 (d) (e), 102 .............. 13.-Criminal Code, 1953-54 (Can.), c. 51, ss. 2 (30)(c), 29(2)(b), 110(a), 125(a), 434, 437..................... 14.-Criminal Code, 1953-54 (Can.), c. 51, s. 296.....................
15.-Criminal Code, 1953-54 (Can.), c. 51, ss. 322(1), 343(1), 492, 497, 500(1)(a), 592................... See-Voir: 8. 16.-Criminal Code, 1953-54 (Can.), c. 51, ss. 16, 201(a)(i), 202A(a)(iii), 592. 522 See-Voir: 9. 17.- Criminal Code, 1953-54 (Can.), c. 51, as. 101(b), 518................. 18.-Criminal Code, 1953-54 (Can.), c. 51, a. 179(1)(e)................ 19.-Criminal Code, 1953-54 (Can.), c. 51, ss. 160, 176................ 20.- Crow's Nest Pass Act, 1897 (Can.), c. 5.....................
21.-Evidence Act, R.S.O. 1950, c. 119, s. 20......................
22.-Exchequer Court Act, R.S.C. 1952, c. 98, s. 75(1).............. 23.-Excise Tax Act, R.S.C. 1927, c. 179, es. 80A, 105 (6)................. See-Voir: 7. 24.-Expropriation Act, R.S.C. 1952, c. 106, as. 9, 24(1), (4)............... 25.-Expropriation Act, R.S.C. 1927, c.64..........................
STATUTES-Continued-Suite
26.-Forest Service Act, R.S.N.B.
1952, 93, 7, as amended,
(N.B.), c. 34....................
27.-Game Act, R.S.A. 1955, a. 44..........................
28.-Game Act, R.S.N.B. 1952, c. 95 445
STATUTES-Continued-Suite 41.- Labour Relations Act, (B.C.), c. 17, now R.S.B.C. 1960, c. 205, ss. 10, 12, 63, 65(2)............. 42.-Labour Relations Act, R.S.B.C. 1960, c. 205, s. 9(6), enacted, 1961 (B.C.), c. 31, s. 5................... 43.- Land Registry Act, R.S.B.C. 1960, c. 208, s. 256.................. 44.-Lord's Day Act, R.S.C. 1952, c. 171.........................
45.-Lord's Day Act, R.S.C. 1952, c.171.........................
328, as amended, 1960-61 (Can.), c. 54........................ 55.-Railway Act, R.S.C. 1952, c. 234 ................................ 29.-Highway
1960, c. 172, s. 105(2)............
See-Voir: Negligence
30.-Highway Traffic Act, R.S.M.
1954, c. 112, s. 99(1)............. .329
31.-Income Tax Act, R.S.C. 1952, c. 148, a. 83(5), as enacted by 1955
(Can.), c. 54, a. 21(1)............
32.-Income Tax Act, 1948 (Can.), c. 52, as. 3, 4, 127(1)(e)..............
33.-Income Tax Act, R.S.C. 1952, c. 148, as. 3, 4, 139(1)(e) .............
34.- Income Tax Act, 1948 (Can.), c. 52, as. 3, 4....................
36.-Income Tax Act, R.S.C. 1952, c. 148, as. 3, 4, 139(1)(e).............
38.-Income War Tax Act, R.S.C.
1927, c. 97, s. 3.....................
39.-Insurance Act, R.S.O. 1950, c.
183, s. 214..
....................
40.-Interest Act, R.S.C. 1952, c.
156, s. 2...........................
STATUTES-Concluded-Fin
56.--Road Allowances Crown Oil
Act, 1959 (Sask.), c. 53..............
See-Voir: 5.
57.---Saint John City Assessment
Act, 1948 (N.B.), c. 137........
.... .213
58.- Unconscionable Transactions
Relief Act, R.S.O. 1960, c. 410........
59.-Water Carriage of Goods Act,
R.S.C. 1952, c. 291, Sched., Article IV,
Rules 1, 2(a)....................
60.-Winding-up Act, R.S.C. 1952, c. 296, s. 10(b)......................
61-Workmen's Compensation Act,
R.S.B.C. 1960, c. 413................
SUBSTITUTION
1. Gift inter vivos-Conditional substitution-Right of donee to dispose of property donee has right to dispose by will-Civil Code, arts. 782, 952.
2. See also-Voir aussi: Testament
3. See also-Voir aussi: Wills
TAXATION
1. Income tax-Whether taxpayer qualified to claim certain deductions by reason of having paid income tax in Quebec-Requirements to constitute a permanent establishment-The Income Tax Act, 1948, s. 31, enacted by Statutes of Canada 1952, c. 29, s. 13-Income Tax Act, R.S.C. 1952, c. 148, s. 40, amended by Statutes of Canada 1952- 53, c. 40, s. 59(1)-Income Tax Regulations
400, 401, 402, 411(1)(a)(b), (2).
2. Income tax-Exemption for new mines- Mine operated by sub-lessee-Whether royalties paid to lessee by sub-lessee on ore shipped from leased mine exempt as "income derivedjfrom the operation of a mine"
TAXATION-Concluded-Fin within meaning of s. 83(5) of the Income Tax Act, R.S.C. 1952, c. 148, as enacted by 1955 (Can.), c. 54, s. 21(1).
3. Income tax-Agreements for sale, leaseoption agreements and mortgages purchased at a discount and held to maturity-Whether profits taxable income or capital gain- Income Tax Act, 1948 (Can.), c. 52, ss. 3, 4, 127(1)(e)-Income Tax Act, R.S.C. 1952, c. 148, ss. 3, 4, 139(1)(e).
& 6. Income tax-Lumber dealer-Option to buy shares of supplier with intent to make a subsidiary-Exercise of option and resale of shares at profit-Whether income or capital gain-Income Tax Act, R.S.C. 1952, ss. 4, 139(1)(e).
Excise tax-Tax paid on dressed sheepskins not legally owing-Petition of right to recover amount paid-Whether refundable to dresser or to dealer who reimbursed dresser-Statutory delay for claim-Excise Tax Act, R.S.C. 179, ss. 80A, 105(6). THE M. TESTAMENT
Interprtation-Don souche"-Survivants-Usufruit-Substitution- Intention du testateur.
2. See also-Voir aussi: Wills
Locals of union reorganized to form one local of new union-Variation of certificate of bargaining authority-Jurisdiction of
Labour Relations Board-Labour Relations
TRIAL
Injuries received in fall on escalator- Action for damages-Questions submitted to jury-Supplementary charges, questions and suggestions-Jurymen confused-New trial directed.
V. T. EATON
USUFRUCT
1. See-Voir: Testament
2. See also-Voir aussi: Wills
WILLS
1. Interpretation-Usufruct-Substitution -Meaning of words "legal heirs"-Civil Code, arts. 443, 446, 864, 891, 900, 925, 929, Charities-Gift to bishop for such works as would aid French Canadians of diocese- Whether bequest charitable.
v. 358
See also-Voir aussi: Testament WINDING-UP
See-Voir: Companies
WORKMEN'S COMPENSATION See-Voir: Labour
Cases cited
- the Lord's Day Act the Lord's Day Act, supra
- Board of Education v. Barnette Board of Education v. Barnette, supra
Statutes and regulations cited
-
Canadian Bill of Rights
-
- s. 128(1)
- ss. 101(b)
- ss. 3
- 139(1)(e)
- s. 3
- s. 214
- s. 10(b)
- s. 13
- s. 40
- s. 59(1)
- s. 83(5) of the Income Tax Act
- s. 21(1)
- 127(1)(e)
-
Unresolved citations
- s. 4 of the Lord's Day Act
- Section 4 of the Lord's Day Act
- s. 91 of the British North America Act