CARTWRIGHT J. (dissenting)
:-This is an appeal from a judgment of the Court of Appeal for the Northwest Territories pronounced on October 26, 1966, dismissing an appeal from a judgment of Sissons J. pronounced on March 9, 1966, finding that the appellant was a dangerous sexual offender within the meaning of the Criminal Code R.C.S.
and imposing a sentence of preventive detention upon him in lieu of the sentences imposed by Magistrate Parker to be mentioned hereafter.
The appeal to this Court was by leave granted on March CartwrightJ. 22, 1967, under the provisions of
s. 41 of the Supreme Court Act, R.S.C. 1952, c. 259. The order of this Court granted leave to appeal on the following questions of law: (1) Whether there was evidence before Mr. Justice Sissons that Klippert was a person who had shown a failure to control his sexual impulses.
(2) Whether the evidence before Mr. Justice Sissons can support the conclusion that the accused "has shown a failure to control his sexual impulses and is likely to cause injury, pain or other evil to any person, through failure in the future to control his sexual impulses or is likely to commit a further sexual offence".
The facts are not in dispute and may be stated briefly. On the morning of August 16, 1965, the appellant was arrested by the R.C.M.P. at Pine Point, N.W.T., as a result of an investigation with respect to a charge of arson (in which he was not involved). In the evening of August 16 he was taken to Hay River after he had given the police a statement. On August 17 the accused was arraigned before Magistrate Parker on four charges of gross indecency under
s. 149 of
the Criminal Code as follows: 1. That Everett George Klippert, mechanic's helper of Pine Point, Northwest Territories, between the 21st day of December, 1964 and the 6th day of August 1965 at or near the settlement of Pine Point in the Northwest Territories, being a male person, did unlawfully commit an act of gross indecency with William Gordon Mellett, another male person, contrary to
Section 149 of
the Criminal Code.
2. That Everett George Klippert, mechanic's helper of Pine Point, Northwest Territories, between the 1st day of May, 1965 and the 15th day of July, 1965, at or near the settlement of Pine Point in the Northwest Territories, being a male person, did unlawfully commit an act of gross indecency with Patrick Betty, another male person, contrary to Section of the Criminal Code.
3. That Everett George Klippert, mechanic's helper of Pine Point, Northwest Territories, between the 10th day of July, 1965, and the 31st day of July, 1965, at or near the settlement of Pine Point in the Northwest Territories, being a male person, did unlawfully commit an act of gross indecency with David Frank L'Heureux, another male person, contrary to Section 149 of the Criminal Code.
4. That Everett George Klippert, mechanic's helper of Pine Point, Northwest Territories, between the 1st day of July, 1965 and the 10th day of August, 1965, at or near the settlement of Pine Point in the Northwest Territories, being a male person, did unlawfully commit an act of gross indecency with Christopher Logan Wolff, another male person, contrary to Section 149 of the Criminal Code.
Pleas of guilty were entered to each charge and the appellant was remanded in custody until August 24, 1965, at Fort Smith, at which time Magistrate Parker imposed a sentence of three years concurrent with respect to each charge.
Following such conviction and sentence a notice of application under
s. 661 of
the Criminal Code to have the appellant declared a dangerous sexual offender was served on him. The appellant was examined by two psychiatrists on behalf of the Crown, Dr. Donald Griffith McKerracher, nominated by the Attorney General pursuant to
s. 661(2) of
the Criminal Code, and Dr. Ian McLaren McDonald. The application was heard before Sissons J. The Crown proved the four convictions before Magistrate Parker. Corporal Armstrong of the R.C.M.P., who had laid the information and had been present at the trial before the Magistrate, identified the appellant as the person convicted but was not asked by either counsel for the Crown or for the defence for any particulars of the offences to which the appellant had pleaded guilty. Corporal Armstrong produced the fingerprints and fingerprint certificates of the appellant which included a record of his conviction on May 4, 1960, on eighteen charges of gross indecency contrary to
s. 149 of
the Criminal Code on which he was sentenced to four years imprisonment on each charge, the sentences to run concurrently.
No evidence was adduced as to the nature of the acts committed by the appellant in respect of either the four substantive charges to which he had pleaded guilty before Magistrate Parker or the eighteen other charges upon which he had been convicted in 1960.
The Crown called the evidence of the two psychiatrists mentioned above, each of whom gave evidence as to, inter alia, statements made to him by the appellant during his examination.
It was held by this Court in Wilband v. The Queen', that a psychiatrist acting pursuant to
s. 661(2) of
the Criminal Code is not a person in authority to whom the rule as to proof by the Crown of the voluntary nature of a statement applies and no question is raised as to the admissibility of any of the evidence which these two witnesses gave.
The effect of their evidence is shown by the following I967 extracts.
Dr. Donald Griffith McKerracher testified:
He (the appellant) did say that he had had homosexual activities at CartwrightJ. the age of 15 for the first time;...C
Further that he had not married; that sexual behaviour, homosexual behaviour had existed since the age of 15; that to him homosexual activity provided his only satisfactory method of the release of sexual tensions. It was his only satisfactory sexual outlet. He found the thought of heterosexual conduct abhorrent. He told me he never had had heterosexual relations, that during 24 years of fairly active homosexual practice he had many partners whose ages varied from the middle teens to 30 or 35. He obtained his sexual partners through previous contacts through some, what I would judge, was discreet soliciting because others in the same pattern of behaviour would, one would judge, be tending to make contacts too. There was no suggestion whatsoever of any violence at any time; that he was most co-operative throughout the interview, restrained in manner, courteous, coherent, relevant and frank.
Q. What are your conclusions from those observations?
A. Well in the first place my opinion is that Mr. Klippert is not inhibited, let us put it this way, his sexual drive is not inhibited and it is my opinion based on my experience with others with similar patterns of conduct that he would have difficulty in inhibiting them in the future.
DR. McKERRACHER: Yes. My conclusion was in terms of this pattern of sexual behaviour that he would have the same drive-a drive toward homosexual relations in the future that he had had in the past. I also concluded that in my opinion there was no danger, this is strictly my opinion, of him doing physical violence or injury to anyone. He did not fit that pattern. If I might put it the same way, if I might make an analogy with the heterosexual activity of a man with heterosexual drives he will continue to seek heterosexual outlets for those drives, some men would do it violently, some would not. I did not feel the accused showed any evidence that he would behave in a violent fashion.
Q. On the question of his sexual conduct in the past what are you able to conclude from that?
A. I conclude-it is based on a homosexual pattern and has been since he was sexually active.
Q. Has he been able to control this?
A. No-I would put it inhibit. He has not inhibited these drives. Q. Now as to...
THE COURT: Just to make it clear what do you mean by "not inhibited"? A. The drive is a desire, to inhibit it is to refuse to follow the desire. It is like a heterosexual drive-most people do not inhibit their heterosexual drives, they follow their drives, the impulse is a drive to seek heterosexual relief.
Dr. Ian McLaren McDonald testified:
Q. And what information did you receive on those points? A. He informed me that he had pleaded guilty to four charges of having engaged in homosexual activity; that he was sentenced in KLIET
August of 1965. He told me that this was the second sentence for similar behaviour. He told me that he had engaged in homosexual activity since the age of or 15. He told me that the people with whom he engaged in these activities ranged in age from 15 to the Cartwnght J.
mid or late 30's. The 15 year old, he said, took part in an incident when he was 17 or 18. He had little or no heterosexual experience, certainly no complete heterosexual experience never having completed a sexual act with a female. He said that he had no desire to partake in heterosexual activity. He said this filled him with revulsion, as I believe his words were "some people are revolted at the idea of having homosexual relations while I am revolted at the idea of having heterosexual relations". He stated that he had engaged in homosexual activity actively when he started work in the dairy in Calgary which would be about the age of 16 or that he had continued this up until his being confined to the penitentiary I believe in 1960. Having been discharged from the penitentiary he was aware of the need to refrain from engaging in this behaviour again. He stated that some attempt, some contacts had been made with him by ex-friends and for this reason, as well as the feeling of his continued presence bringing shame on his family, he decided to leave Calgary and head North.
He acknowledged that he had been warned, or at least a discussion had taken place between himself and a member of the Mounted Police Force at Pine Point some time in the summer of 1964. the implication being that his record was known and that he should more or less watch his behaviour. He said he was able to do this until these events transpired of which he was charged and sentenced.
In describing his behaviour, his homosexual behaviour, he said first of all that he was very careful of the person whom he approached, he was very careful to ascertain whether or not they preferred heterosexual outlets and if they did then he didn't make an overture. If they were ambivalent, that is they had no strong feelings one way or the other then he would make some overtures, generally conversationally.
He denied ever having physically assaulted or coerced any of these people he engaged in these pursuits. He acknowledged that in the past he had a good number of short term affairs. These were not lasting relationships.
Q. Short term affairs with whom? A. The men. He also stated that he denied having any preference for young men, his preference was for people who were responsive, that is people who shared his enthusiasm about the endeavour. As a result of this information that he told me, and based on past experience with people who have presented this kind of sexual behaviour pattern I came to the conclusion that Mr. Klippert was (a) primarily and essentially a homosexual, that this was the prime outlet for sexual drives (b)
I thought it unlikely that he could refrain from indulging in this behaviour again without assistance, that is assistance from other people, trained people. I felt that this man was not the type who would physically injure or coerce people to take part in these activities.
Q. Dr. McDonald then on the point of past sexual conduct and the question of control, briefly what can you tell us about his control from his past conduct? Does he have control, I mean can I have perhaps quoted at unnecessary length from the evidence of these witnesses as it is clear from reading their testimony as a whole that in the opinion of each of them there was no danger of the appellant using violence of any sort or attempting coercion of anyone. They do not suggest that he sought out youthful partners for his misconduct.
What they did foresee was the likelihood of the appellant committing further acts of gross indecency with other consenting adult males.
The question before us is whether on this state of facts the finding that the appellant is a dangerous sexual offender can be sustained in law.
In the case of an application under
s. 661 of the Criminal
Code the onus lies upon the Crown to establish beyond a reasonable doubt that the accused is a dangerous sexual offender. In the case at bar not only is there no evidence that the accused if at liberty would constitute a danger to any person but the evidence of the two psychiatrists, quoted from and summarized above, expressly negatives the existence of any such danger. This would be an end of the matter if it were not for the definition of the phrase "dangerous sexual offender" contained in
s. 659 which reads as follows:
For the purposes of this appeal I will assume that the evidence in the record was sufficient to support a finding that the accused has shown a failure to control his sexual impulses and that, if at liberty, he is likely to commit a further sexual offence of the same sort as those to which he pleaded guilty; there is not a tittle of evidence to suggest that he is likely to commit any other type of sexual offence.
In construing the definition of "dangerous sexual offender" it must be borne in mind that by the combined effect of s. 2(2),
s. 2(3) and s. 2(1) (a) (i) and (ii) of the
Criminal Code must be read as if it concluded with the words "except in so far as this definition is inconsistent TE with the intent or object of this Part or would give to the Cartwright J. expression 'dangerous sexual offender' an interpretation inconsistent with the context".
The intent and object of those sections in
the Criminal Code which deal with dangerous sexual offenders is to protect persons from becoming the victims of those whose failure to control their sexual impulses renders them a source of danger. To construe the definition as compelling the Court to impose a sentence of preventive detention on a person shown by the evidence led by the Crown not to be a source of danger would be to give it an effect inconsistent with the intent or object of the Part.
The words "a further sexual offence" are general words wide enough to embrace every type of offence containing a sexual element and in construing them resort may properly be had to the maxim verba generalia restringuntur ad habilitatem rei vel personae (Bac. Max. reg. 10). The following statement, now found in Maxwell on Interpretation of Statutes, 11th ed., at pages 58 and 59, is supported by the authorities cited and has often been quoted with approval:
It is in the interpretation of general words and phrases that the principle of strictly adapting the meaning to the particular subject-matter with reference to which the words are used finds its most frequent application. However wide in the abstract, they are more or less elastic, and admit of restriction or expansion to suit the subject-matter. While expressing truly enough all that the legislature intended, they frequently express more in their literal meaning and natural force; and it is necessary to give them the meaning which best suits the scope and object of the statute without extending to ground foreign to the intention. It is, therefore, a canon of interpretation that all words, if they be general and not express and precise, are to be restricted to the fitness of the matter. They are to be construed as particular if the intention be particular; that is, they must be understood as used with reference to the subject-matter in the mind of the legislature, and limited to it.
A case often referred to on this point is Cox v. Hakes", in which it was held by the House of Lords that the following words in s. 19 of the Judicature Act, 36 & 37 Vict., c. 66: "The said Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment or order of Her Majesty's High Court of Justice or any Judges or Judge thereof" did not confer jurisdiction to hear an appeal from an order discharging a prisoner 1 (1890), 15 App. Cas. 506.
under a habeas corpus although such an order fell plainly within the literal meaning of the words of the enactment. Applying this principle to s. 659(b) it is my opinion that the concluding words "or is likely to commit a further sexual offence" should be given the meaning "or is likely to commit a further sexual offence involving an element of danger to another person".
If this is the right construction of s. 659(b), as I think it is, it is clear that the finding that the appellant is a dangerous sexual offender cannot stand; it would be directly contrary to the evidence.
I am glad to arrive at this result. It would be with reluctance and regret that I would have found myself compelled by the words used to impute to Parliament the intention of enacting that the words "dangerous sexual offender" shall include in their meaning "a sexual offender who is not dangerous".
Before parting with the matter I wish to mention a further consideration which is not, I think, irrelevant in seeking to ascertain the intention of Parliament. It is not wholesome that the existing criminal law should not be enforced. A law which ought not to be enforced should be repealed. If the law on this subject matter is as interpreted by the Courts below, it means that every man in Canada who indulges in sexual misconduct of the sort forbidden by
s. 149 of
the Criminal Code with another consenting adult male and who appears likely, if at liberty, to continue such misconduct should be sentenced to preventive detention, that is to incarceration for life. However loathsome conduct of the sort mentioned may appear to all normal persons, I think it improbable that Parliament should have intended such a result. It may be that we cannot take judicial notice of the probable effect which such an interpretation would have on the numbers of those confined to penitentiaries; no one, I think, would quarrel with the suggestion that it would bring about serious overcrowding. I would allow the appeal and quash the sentence of preventive detention.
J.:-The circumstances giving rise to this appeal can be briefly stated. In August 1965, the appellant pleaded guilty before Magistrate Parker on four charges under
s. 149 of
the Criminal Code, namely gross indecency, and on August 24, he was sentenced to three years concur- J. rent with respect to each charge. On an application, subsequently made under
s. 661 Cr. C., before Sissons J., he was declared a dangerous sexual offender within the meaning of s. 659(b) of
the Criminal Code. Being of the view that a penitentiary term would be harmful rather than beneficial to the appellant, the learned judge sentenced him to preventive detention,-a detention for an indeterminate period -cf.
659(c), in lieu of the sentence of three years in penitentiary imposed by Magistrate Parker, and recommended to the Minister of Justice to review the case of the appellant, at the earliest possible moment, and that he be released on licence on condition that he submit himself to such treatment which, in the opinion of psychiatrists, could be helpful to him.
An appeal from the decision of Mr. Justice Sissons was launched and was, ultimately, unanimously dismissed by the Court of Appeal for the North West Territories.
Leave to appeal to this Court was thereafter sought and granted on the two following questions of law:
The evidence before Sissons J. consists of the four convictions before Magistrate Parker, a conviction in 1960 on eighteen charges for similar offences-for which appellant was sentenced to four years' imprisonment with respect to each charge, sentences to run concurrently,-and, as required by
s. 661(2), the evidence of two qualified psychiatrists, namely Dr. Donald Griffith McKerracher and Dr. Ian McLaren McDonald. The substance of the evidence of these doctors appears in the excerpts from their testimony, quoted in the reasons for judgment of my brother Cartwright. Considered as a whole, the evidence reasonably indicates that the appellant is a person who, by his conduct in sexual matters, has shown a failure to control his sexual impulses and that he is likely to commit further sexual offences of the same kind, though, he never did cause injury, pain or other evil to any person and is not likely to do so in the future through his failure to control his sexual impulses.
On this state of facts, the determination of the questions of law mentioned above, depends on the meaning given by Parliament to the expression dangerous sexual offender. Part XXI of
the Criminal Code, which deals with Preventive Detention, contains its own interpretation provisions in
s. 659. Section 659(b) defines dangerous sexual offender as follows:
Underlining, numerals and letters have been added to point out the necessary or alternative constituent elements in the definition.
This is a new definition. It was enacted by Parliament in 1961, by 9-10 Elizabeth II, c. 43,
s. 32, of which the opening words are:
Prior to this change, s. 659(b) read:
Underlining and numerals have been added to point out necessary constituent elements in this former definition.
Thus, it appears that, under the new definition, (i) the element of psychological ability to control has been replaced by that of a straight factual investigation and (ii) the likelihood of the commission of a further sexual offence, has been added and made an alternative element to that of the danger of injury to others.
Applied to this case, the new definition justifies the concurrent finding of the Courts below, that the appellant who, on the evidence, (i) has shown a failure to control his sexual impulses and (ii) is likely to commit further sexual offences of the same kind, is a dangerous sexual offender within the meaning which Parliament itself ascribed to this expression.
During the hearing of this appeal, reference was made to a certain part of the French version of the former and of the new definition and some reliance appears to have been placed, by counsel for the appellant, on a lack of difference between the two texts to support the contention that the psychological ability to control has not been replaced by a straight factual investigation and is still a constituent element in the definition. The part of the definition to which we were referred reads as follows:
in the former definition:
and in the new definition:
Both texts are obviously identical in substance. In my opinion, this, in no way, supports the proposition contended for by the appellant. We are not dealing here with a situation where each of the English and of the French text is capable of assisting the other, in a matter of interpretation, but with a situation where one has to elect between either the English text, which manifests the actual intervention of Parliament to change the existing law with respect to one of the constituent elements in the definition, or the French text, which is indicative of no change at all. In Blachford v. McBain', Taschereau J., as he then was, disposed of a similar question by ignoring the version which left the law in the state in which it was, prior to the Act adopted to change it, cf. p. 275. Indeed, to give priority to the French version would, in this case, render the change made in the English version meaningless and the actual intervention of Parliament, to make this change, futile.
With deference, I cannot either agree with the view that the intent and object of the provisions dealing with dangerous sexual offenders, is solely to protect persons from becoming the victims of those whose failure to control their sexual impulses renders them a source of danger and THE that to apply the definition to a person, who is not to be a Fae J. source of danger, would give the definition an effect incon- sistent with the intent or object of these provisions. Obviously, the intent and object of an Act is to be found in its provisions and, in the case of this particular legislation, the provisions which are relevant in this respect are those of
s. 659-the interpretation section-and those of
s. 661-the operative section. Section 659(b), as above indicated, clearly added, as an alternative element in the definition to the danger of injury to others, that of the likelihood of the commission of a further sexual offence, and a consideration of
s. 661 shows that the operative provisions are only consistent with this view of the matter.
Section 661 reads as follows:
(b) an attempt to commit an offence under a provision mentioned in paragraph (a), the court shall, upon application, hear evidence as to whether the accused is a dangerous sexual offender.
(2) On the hearing of an application under subsection (1) the court shall hear any relevant evidence, and shall hear the evidence of at least two psychiatrists, one of whom shall be nominated by the Attorney General.
(3) Where the court finds that the accused is a dangerous sexual offender it shall, notwithstanding anything in this Act or any other Act of the Parliament of Canada, impose upon the accused a sentence of preventive detention in lieu of any other sentence that might be imposed for the offence of which he was convicted or that was imposed for such offence, or in addition to any sentence that was imposed for such offence if the sentence has expired.
(4) At the hearing of an application under subsection (1), the accused is entitled to be present.
In some of the offences referred to in
s. 661(1) (a), such as rape, indecent assault on female, indecent assault on male, violence is involved to a variable degree as an element of the offence. In others, such as sexual intercourse with a female under 14, sexual intercourse with a female between 14 and 16, buggery and gross indecency, violence is not an element of the offence. Particularly, the offence of gross indecency, in which appellant has indulged, is one which necessarily implies consent of the person which must participate with the accused for its commission and one which excludes danger of injury to the participants. With respect to the offences of the first category, it may well be said that the object and intent of Parliament is, as indicated by my brother Cartwright, to protect persons from becoming the victims of those whose failure to control their sexual impulses renders them a source of danger, but, in my respectful view, the same thing cannot be said with respect to the offences of the second category which also includes the offence of bestiality. The language of
s. 661 is clear; if an accused is convicted of one of the offences mentioned in the section, be that one of the first or of the second category, the Court shall, upon application, hear evidence and decide whether the accused is a person who, (i) by his conduct, has shown a failure to control his sexual impulses, and (ii) who (a) is either likely to cause injury, pain or other evil to any person through his failure in the future to control his sexual impulses or (b) is likely to commit a further sexual offence. The general words further sexual offence are clearly embracing the offences mentioned in
s. 661(1) of which, as above indicated, many exclude, as being one of their constituent elements, a source of danger of injury to other persons.
I would, therefore, affirmatively answer the two questions of law upon which leave to appeal was granted.
Whether the criminal law, with respect to sexual misconduct of the sort in which appellant has indulged for nearly twenty-five years, should be changed to the extent to which it has been recently in England, by the Sexual Offences Act 1967, c. 60, is obviously not for us to say; our jurisdiction is to interpret and apply laws validly enacted. I would dismiss the appeal.
Appeal dismissed, and JJ. dissenting. Solicitors for the appellant: Gowling, MacTavish, Osborne & Henderson, Ottawa.
Solicitor for the respondent: D. S. Maxwell, Ottawa. Motor vehicle collision-Action claiming damage to property-Statutory limitation period-Amendments including claim for personal injuries made after limitation period-Whether amendments set up new cause of action-The Vehicles and Highway Traffic Act, 1955, R.S.A., c. 356,
s. 131
1. Judgment at trial and that on appeal involving exercise of judicial discretion- Appeal brought without leave-Jurisdiction of Supreme Court of Canada-Supreme
Court Act, R.S.C. 1952, c. 259,
ss. 41,
44.
2. Motion to quash-Whether judgment appealed from a final judgment.
3. Application to quash-Leave to appeal- Bankruptcy-Order granting creditor leave to take proceedings in own name-Appeal to Supreme Court of Canada-Whether s.
151 of the Bankruptcy Act, R.S.C. 1952, c.
14, applies-Rule 53 of the Bankruptcy
4. Motion to quash-Jurisdiction-Notice of expropriation-Contestation-Procedural irregularities-Code of Civil Procedure, art. 1066e.
Appeal to Supreme Court of Canada- Motion to quash dismissed-Injunction granted by lower
Court now spent- Whether judgment sought to be appealed within words "any final or other judgment"
APPEALS-Concluded-Fin 2085 et al. el al., 6. Appeal to Supreme Court of Canada- Jurisdiction-Amount in controversy-The
Supreme Court Act, R.S.C. 1952, 259, s. 36(a).
1. RequAte pour rejet-Permission d'appeler-Faillite-Ordonnance permettant A un cr~ancier d'intenter des proc6dures en son propre nom-Appel A la Cour Supr~me du Canada-Application de l'art. de la Loi sur la Faillite, S.R.C. 1952, c. 14- Rbgle 53 des Rhgles de la Faillite. et at. et al., 497.
2. Requ6te pour rejet-Juridiction-Avis d'expropriation-Contestation-Irr6gularit6s dans la proddure-Code de Proc6dure Civile, art. 1066e.
2. See also-Voir aussi: LABouR
1. Accident mortel-Collision entre motoet camion-Responsabilit6-Fils mineur adoptif tu6-Parents adoptifs ontils b6n6fice du droit d'action de l'art. 1056 du Code Civil-Code de la Route, Eliz. II (Qu6.), c. 67, art. 36(13), (18)-Loi de l'adoption, S.R.Q.
et AUTOMOBILE-Concluded-Fin
2. Accident mortel-Pi6ton heurt6 la nuit sur la route qu'il traversait-Devoir du conducteur et du pi6ton-Faute de la victime dans le contexte de l'art. 3 de Ia Loi d'indemnisation des victimes d'accidents d'automobile-Code de la Route, S.R.Q.
1964, c. 23, art. 48-Loi d'indemnisation des victimes d'accidents d'automobile, S.R.Q.
1964, c. 232, art. 3-Code Civil, arts. 1053,
1. Assignment of wages to secure loan- Subsequent assignment in bankruptcy by debtor-Assignee failing to prove in bankruptcy-Unconditional discharge of bankrupt-Whether assignment thereafter void unenforceable-Bankruptcy
Act, R.S.O. 1960, c. 421, s. 7(6) [rep. & subs. 1960-61, c.
HOLY RoSARY PARISH (THoROLD) CREDIT
1. Contrefagon-Pr6paration chimique- Revendication de trois proc6d6s-Importation d'un produit semblable-Action en contrefagon restreinte A seulement un des proc6d6s-Y a-t-il lieu d'appliquer la prdsomption de l'art. 41(2) de la Loi sur les
Brevets, S.R.C. 1952, c. 203.
SocILrt CHIMIQUEs RH6NE- POULENC et al. v. R.
2. Conflit de demandes-Date d'invention-Priorit6 de l'invention-Loi sur les
Brevets, S.R.C. 1952, c. 203, art. 45(8).
3. Contrefagon-Validit&-Balai pour le jeu de curling-Red6livrance de brevet- Brevet original ne rdvdlant pas les 616ments essentiels l'invention-Manquement peut-il rem6did par reddlivrance d'un nouveau brevet-Loi sur les Brevets,
S.R.C. 1952, c. 203, art. 50.
BREVETS-Concluded-Fin 4. Conflit de demandes-Droit de trois demandeurs de brevets pour la mgme invention-Y a-t-il invention-Qui fut le premier-Loi sur les Brevets, S.R.C. 1952, 203, art. 45(8).
TIRE & RUBBER CO. v. Do- Co. et al., 664. CIVIL CODE
1.-Article 1040a (Equity in contracts)........
Article 1053 (Quasi-Delicts) .... 3.-Articles 1053, 1054 (Quasi-Delicts)..............................
(Quasi- D elicts)............................ 5.- Article 1056 (Quasi-Delicts).... 6.-Articles 1103, 1106 (Joint and several obligation).................. 7.- Article 1238 (Presumptions) .... 469 CODE OF CIVIL PROCEDURE 1.-Articles 1066 et seq. (Expropriation).......................... 121 See-Voir: EXPROPRIATION 2.-Articles 1066 et seq. (Expropriation).......................... 534 3.- Articles 1066 et seq. (Expropriation) ..........................
CONFLICT OF LAWS Contract-Insurance-Proper law of contract-Factors considered in determination thereof.
1. Crown-Petition of right-Radio station
-Licence-Fee-Validity of Order in
Council increasing fee-Whether licence fee or tax imposed-Discrimation-Retroactivity-Whether made by proper authority- Radio Act, R.S.C. 1952, c. 233,
ss. 3,
4,
10- General Radio Regulations,
s. 5-Order in
2. Mining tax-Provincial tax on net profits of sold and unsold ore-Whether direct taxation-Mining Tax Act, R.S.O. 1950, c.
Act-Whether criminal law-Whether invading field reserved to provinces-Juvenile Delinquents
Act, R.S.C. 1952, c. 160-Motor Vehicle
Act, R.S.B.C. 1960, c. 253-Summary Convictions Act, R.S.B.C. 1960, c. 373.
4. Offshore mineral rights-Whether federal or provincial property-Territorial Sea and Fishing
Zones Act, 1964 (Can.), c. 22-B.N.A. Act, 1871-Supreme Court
Act, R.S.C. 1952, c. 259,
s. 55.
Parol contract between school boards for education of students-Breach of contract-Contract enforceable notwithstanding absence corporate seal-Damages- The Corporation Act, R.S.O. 1960, s. 293.
2. Building contract-Action for damages brought by contractor-Loss by way overhead alleged to have been sustained because contract completion date extended by delays on part of owner-Claim prevented by clause in contract.
Dis- CONTRACTS-Concluded-Fin 3. Construction-Option agreement patently ambiguous-Two time periods provided within which option could be exercised acceptance within time limited in agreement.
et 4. Loan secured by hypothec-Transfer of debt-Right of redemption-Incorporeal property-Whether sixty days notice required under art. 1040a of the Civil Code. v. al., 603. 5. Agreement to log certain timber licences -Interpretation of agreement-Whether an interest in land or timber acquired by contractor.
A. & D. Co. LTD. v. al., 6. Interpretation-Premises in shopping centre constructed for and leased to plaintiff department store-Plaintiff later advised that further development of centre would include additional department store-Injunction sought to restrain developer from constructing proposed store.
et 614. 7. Agreement to sell half-section land- Property subsequently sold to third party- Action for specific performance-Quartersection subject to provisions of The Homesteads Act-Wife's consent to sale not given-Discretionary power to award damages as to remaining quarter-section-The Queen's Bench Act, R.S.S. 67, s. 44(9).
et al. v. HIscocK et al., 781. 8. See also-Voir aussi: 9. See also-Voir aussi: CONTRATS
1. Crdance hypoth6caire-Cession de cr6ance-Droit de rachat-Bien incorporel- Le pr6avis de soixante jours est-il requis sous 'article 1040a du Code Civil. v. al., 603. Revenu-Taxe d'affaires-Motel-Est-ce que la taxe d'affaires est prohib6e par la Loi des licences, S.R.Q. 1941, c. 76, art. 33.
1. P6tition de droit-Chute sur trottoir- La Couronne est-elle responsable de 'entretien-Loi sur la Responsabilit6 de la
(b)-Charte de la Cit6 de Qu6bec, 1929
(Qu6.), c. 95, art. 417-Acte de l'Am6rique du Nord britannique, 1867, art. 125.
2. Contrat-Construction d'un terrain d'atteriissage pour adroport-Les travaux devant 6tre terminds A une certaine date- Clause dans le contrat pr6voyant la rsiliation-La resiliation 6tait-elle justifide.
3. See also-Voir aussi: DoIT CoNsTI- CRIMINAL LAW
1. Dangerous sexual offender-Sentence of preventive detention-Evidence of psychiatrists-Whether admissible-Whether rule of hearsay evidence offended-Whether rule of confession evidence offended- Criminal Code, 1953-54 (Can.), c. 51, ss.
2. Fraud-Real estate transaction-Lawyer for vendor acting also for purchaser- Existence of second mortgage not disclosed to purchaser-Whether case correctly put to jury-Criminal Code, 1953-54 (Can.),
3. Possession of obscene material for purpose of publication, distribution or circulation-Retail bookseller-Charge under s.
150(1)(a) of the Criminal Code-Whether three offences included in charge-Whether accused should properly be charged under s.
CRIMINAL LAW-Continued-Suite 4. Unlawful and wilful damage to public property-Defence of having acted under threat-Whether trial judge erred in ruling evidence compulsion inadmissible- Whether accused in danger as a result of threats-Criminal Code, 1953-54 (Can.), THE 114.
5. Motor vehicle-Care or control while impaired-Car in a ditch and unable to move under own power-Whether car a "motor vehicle"-Criminal Code, 1953-54 (Can.), ss. 2(25), 222, 223. THE 284. 6. Charge of non-capital murder against a juvenile-Application to have trial held in ordinary courts-Juvenile Delinquents Act, R.S.C. 1952, 160,
SHINGOOSE 298. 7. Murder-Youth of years convicted murder-Circumstantial evidence- Whether proper trial-Reference to Supreme Court of Canada-Supreme Court Act, R.S.C. 1952, 259,
REFERENCE MURRAY TRUScoTT, 309.
8. Leave to appeal-Whether question law-Whether magistrate properly exercised discretion as to sanity of accused- Whether accused deprived of right to counsel-Criminal Code, 1953-54 (Can.), 51, ss. 524(1), 597(l)(b)-Canadian Bill of Rights, 1960 (Can.), c. 44. THE 474. 9. Breaking and entering-Trap laid by police-Accused solicited by police informer offence-Criminal Code, 1953- 54 (Can.), c. 51, ss. 292(1)(a), 597(1)(b). 10. Extortion-Belief that thing demanded was due-Whether a defence-Criminal Code, 1953-54 (Can.), c. 51, s. 291. THE v. et al., 539. 11. Habeas corpus-Warrant of committal -Validity-Conditional licence to be at large-Validity of procedures for recommittal-Ticket of Leave Act, R.S.C. 1952, c. 264.
THE 547. 12. Habitual criminal-Preventive detention - Whether expedient - Jurisdiction-
Criminal Code, 1953-54 (Can.), c. 51, s. 660(1).
CRIMINAL LAW-Concluded-Fin
13. Possession of housebreaking instruments-Whether evidence of possession- Instruments normally used for ordinary purposes-Whether onus on accused to explain-Criminal Code, 1953-54 (Can.), c. 51, ss. 3(4), 295(1).
14. Dangerous driving-Whether beyond inadvertent negligence-Whether miscarriage of justice-Criminal Code, 1953-54
15. Indecent assault-Doctor examining female patient in presence of friend, a layman-Friend falsely described as an intern-Whether consent given to examination-Whether consent obtained fraud-Nature and quality of act-Criminal Code, 1953-54 (Can.), c. 51, ss. 21,
16. Accessory-Possession of house-breaking instruments-Actual physical possession in accused's confederates-Possession charge against confederates withdrawn- Effect on accused's conviction for possession-Whether s. 21(2) of the Criminal
Code can support conviction or whether s. 3(4) exhaustive-Criminal Code, 1953-54
17. Contributing to juvenile delinquency- Evidence
Corroboration- Character evidence-New evidence-Affidavit of trial witness contradicting previous testimony-Whether admissible on appeal
Delinquents Act, R.S.C. 1952, c. 160, s. 33(1)(b).
18. Dangerous sexual offender-Homosexual-Preventive detention-Whether a dangerous sexual offender-Criminal Code,
1953-54 (Can.), c. 51,
ss. 149, 658(b) [as enacted by 1960-61 (Can.), c. 43,
s. 661.
1. Rights and powers-Member of the armed forces injured in motor vehicle accident-Action for loss of services- Whether Crown in right of Canada bound by provincial legislation restricting recovery-The Highway Traffic Act, R.S.M.
CROWN-Concluded-Fin 1954, c. 112,
s. 99(1)-The Tortfeasors and Contributory Negligence Act, R.S.M. 1954, 266,
s. 5.
et al., 262. 2. Petition of right-Fall on sidewalk- Whether Crown liable for its maintenance-Crown Liability Act, 1952-53 (Can.), 30, 3(1)(b)-Quebec City
Charter, 1929 (Que.), 95, 417-B.N.A. Act, 1867, v. 503.
Contract-Construction of landing strip for airport-Work to be completed certain date-Clause in contract providing for the cancellation-Whether cancellation justified.
1. Collision of motor vehicles-Personal injuries-Assessment general damages increased by Supreme Court Canada- Applicable principles.
et al. et al.; et al. v. et al. and 166. Construction of sewer-Two contractors having separate contracts from city-Works one contractor flooded by installations the other-Liability-Quantum of damages-Civil Code, arts. J.D. Co. v. DOMMAGES
1. Construction d'un 6gout-Deux entrepreneurs ayant contract6 s6par6ment avec la cit-Travaux d'un des entrepreneurs par par l'autre-Responsabilit&-Qiantum des dommages-Code Civil, arts. 1054. J.D. Co. LTD. A. Co. LTD., 685.
1. Couronne-Pitition de droit-Station de radiodiffusion-Licence d'exploitation- Droit de licence-Validit6 d'un arrAt6 en conseil augmentant le droit de licence- S'agit-il d'un droit de licence ou de l'imposition d'une taxe-Discrimination-R6troactivit6-Autorit6 de 16gif6rer en la matibre
-Loi sur la Radio, S.R.C. 1952, c. 233, arts. 3, 4, 10-Rhglements g6ndraux sur la Radiodiffusion, art. 5-Arrt6 en conseil
2. Loi sur les jeunes dlinquants-Est-ce une l6gislation criminelle-Est-ce que loi empibte sur le domaine r~serv6 aux provinces-Loi sur les jeunes ddlinquants,
S.R.C. 1952, c. 160-Motor Vehicle Act,
S.R.B.C. 1960, c. 253-Summary Convictions Act, S.R.B.C. 1960, c. 373.
3. Droits mindraux au large des c6tes- Propridtd f6ddrale ou provinciale-Lois sur la Mer territoriale et les zones de p~che, 1964
(Can.), c. 22-Loi de I'Ambrique du Nord britannique, 1871-Loi sur la Cour supr~me,
S.R.C. 1952, c. 259, art. 55.
1. D61inquant sexuel dangereux-Sentence de d6tention pr6ventive-T6moignage de psychiatres-Admissibilit6--Rhgle concernant la preuve par oui-dire a-t-elle 6t viol6e-Rhgle concernant la preuve d'aveux a-t-elle t6 viol6e-Code criminel, 1953-54
(Can.), arts. 659, 660, 661.
2. Fraude-Opbration immobilibre-Avocat du vendeur agissant aussi pour I'acheteur-Existence d'une seconde hypothbque non ddvoilde A I'acheteur-La cause a-t-elle
6t6 soumise correctement au jury-Code criminel, 1953-54 (Can.),
art. 323(1).
3. Possession de matibres obschnes aux fins de les publier, distribuer ou mettre en circulation-Libraire-Accusation portde sous l'art. 150(1)(a) du Code criminel-L'accusa- DROIT CRIMINEL-Continued-Suite tion contient-elle trois infractions-L'acte d'accusation aurait-il dd 8tre port6 sous lart. 150(2)(a)-Code criminel, 1953-54 (Can.), c. art.
et al. THE 38. 4. Dommage A un bien public caus4 ill6galement et volontairement-Dfense de contrainte exerc6e par des menaces-Le juge au procks a-t-il err4 en d6cidant que la preuve de contrainte 6tait inadmissible-L'accus6 6tait-il en danger comme r6sultat des menaces-Code Criminel, 1953-54 (Can.), c. 51, arts. 7, 17, 371, 372.
5. Whicule A moteur-Garde ou contrble alors que la capacit6 de conduire est affaiblie-VWhicule dans un foss6 et incapable de se mouvoir de son propre pouvoir-L'automobile est-elle un "v6hicule A moteur"- Code criminel, 1953-54 (Can.), c. 51, arts. 2(25), 222, 223.
THE 284. 6. Accusation de meurtre non qualifi6 contre un enfant-Requite pour avoir le procks devant les cours ordinaires-Loi sur les Jeunes D41inquants, S.R.C. 1952, c. 160, 8.9.
SHINGOOSE v. THE 298. 7. Meurtre-Gargon de 141 ans trouv6 coupable de meurtre-Preuve circonstancielle-Le procks a-t-il 6 instruit correctement-Question d6f~rde A la Cour Supr~me du Canada-Loi sur la Cour suprime, S.R.C. 1952, c. 259, art. 55.
8. Permission d'appeler-Question droit-Le magistrat a-t-il exerc6 proprement sa discr6tion concernant 1'6tat mental de l'accus6-L'accus6 a-t-il 6t6 priv6 de son droit de retenir un avocat-Code Criminel, 1953-54 (Can.), c. 51, arts. 524(1), 597(1)(b)-Dclaration canadienne des Droits, 1960 (Can.), c. 44.
9. Introduction par effraction-Pibge tendu par la police-Accus6 sollicit4 par un mouchard-Y a-t-il eu offense-Code Criminel, 1953-54 (Can.), c. 51, arts. 202(1)(a), 597 (1)(b).
V. THE 492.
Extorsion-Croyance que la chose demand6e 6tait due--Est-ce une d6fense- Code Criminel, 1953-54 (Can.), art. et al., 539. DROIT CRIMINEL-Continued-Suite
Habeas corpus-Mandat de dp6t- Validit6-Permis conditionnel d'6tre en libert6-Validit6 des proc6dures pour r6incarc6ration-Loi sur les Libdrations conditionnelles, S.R.C. 1952, c. 264.
12. Repris de justice-D6tention prdventive-Opportunit6-Juridiction-Code Criminel, 1953-54 (Can.), c. 51, art. 660(1).
13. Possession d'instruments d'effraction- Preuve de possession-Instruments employds normalement pour des fins ordinaires-L'accus4 a-t-il le fardeau de donner une explication-Code Criminel, 1953-54
(Can.), c. 51, arts. 3(4), 295(1).
14. Conduite dangereuse-Est-ce au-delA de la n6gligence inattentive--Y a-t-il eu erreur judiciaire-Code Criminel, 1953-54
15. Attentat A la pudeur-Docteur examinant une patiente en la presence d'un ami non du mtier-Ami d~crit comme
6tant un interne-Le consentement a-t-il
6td donn6 pour l'examen.-Le consentement a-t-il t obtenu par fraude-Nature et caractbre de 1'acte-Code Criminel, 1953- 54 (Can.), c. 51, arts. 21, 141, 230.
16. Partie A une infraction-Possession d'instruments d'effraction-Possession physique actuelle des complices de l'accus- Accusation de possession contre les accusds retirde-Effet vis-A-vis 1'accus6-L'article
21(2) du Code Criminel peut-il supporter le verdict ou l'art. 3(4) 6puise-t-il les moyens contre l'accus4-Code Criminel, 1953-54
17. Contribuer A faire d'un enfant un jeune ddlinquant-Preuve-Complices-Corroboration-Preuve caractbre-Nouvelle preuve-Affidavit d'un t6moin au procks contredisant son t6moignage antdrieur- Est-ce recevable en appel-Loi sur les
Jeunes D6linquants, S.R.C. 1952, c. 160, arts. 33(1)(b).
D61inquant sexuel dangereux-Homosexuel-D6tention pr6ventive-Est-il un d4linquant sexuel dangereux-Code Crimi- DROIT CRIMINEL-Concluded-Fin nel, 1953-54 (Can.), c. 51, arts. 149, 659(b) [tel que ddcr6t6 par 1960-61 (Can.), c. 43, art. 32], 661.
v. THE 822. ECOLES evaluation pour fins de taxes scolaires- Rvaluation d'immeubles inscrits sur les listes protestantes et neutres dans les banlieues de Montrdal-Valeur de la machinerie doit-elle 6tre incluse-Loi concernant 1'6valuation pour fins scolaires, 62 (Qu6.), 10-11 Eliz. II, c. 17, art. 7- Loi des Cit6s et Villes, S.R.Q. 1941, c. 233, art. 488-Charte de la Ville de Montr6al, 1959-60 (Qu6.), 8-9 Eliz. II, c. 102, art. PROTESTANT GREATER MONTREAL et al. EXPROPRIATION
1. Lots non subdivis6s-Indemnit6 bas6e sur la subdivision-D6duction pour frais de subdivision-Code de Proc6dure Civile, art. 1066.
2. Property not subdivided-Indemnity based on subdivision-Deduction for cost of subdivision-Code Civil Procedure, art. 1066.
3. Compensation-Appraisers' valuation of expropriated lands not accepted by arbi trator-Court of Appeal right in varying arbitrator's award and in accepting appraisal one the appraisers as furnishing proper basis on which to compensation. 4. Compensation-Public authority given power to expropriate-Municipal by-law limiting use of lands taken to "public service use"-Determination of valuation. AUTHoRT,
5. Compensation-Part of a parcel of land taken-Application "before" and "after" method of valuation.
EXPROPRIATION-Concluded-Fin
6. Indemnity fixed by Public Service Board
-Increase granted by Court of Appeal- Value of servitudes-Code of Civil Procedure, arts. 1066a et seq.
7. Indemnit6 fix6e par la R6gie des services publics-Augmentation accordde par la
Cour d'Appel-Valeur de certaines servitudes-Code de Proc6dure Civile, arts.
Promissory notes-Whether notes covered by guarantee-Knowledge of guarantor as to intent of guarantee.
1. Automobile-Judgments obtained insured-Class menced against insurance company-Action by insured against his insurer dismissed- Whether plaintiff bound by judgment in insured's action against insurer-The Saskatchewan
INSURANCE-Concluded-Fin 2. Aircraft liability insurance-Injuries received in crash of chartered aircraft- Whether unsatisfied judgment against chartered one for which indemnity provided in policy-Exclusion clause-Whether flight conducted "in accordance with licences issued to insured"-The Insurance Act, R.S.O. 1960, c. 190,
s. 95(1).
Co. et al., 3. Life-Disclosure-Application for insurance requiring insured to answer certain questions-Untrue statements respecting medical consultations for nervous condition-Whether concealment "material to the insurance" within meaning of s. 149(1) of The Insurance Act, R.S.O. 1960, c. 190 [rep. & subs. 1961-62, c. 63, s. Co. 720.
1. Dispute over pay guaranteed to emagreement-Issue referred by union and company to arbitraboard-Declaration entitlementwages-The Labour Relations Act, R.S.O. 1960, c. 202, s. 34(9)-The Rights of Labour Act, R.S.O. 1960, c. 354, s. 3(3). 2. Picketing-Stoppage of work-Strike in violation of collective agreements and in breach of statute-Injunction restraining employees from continuing illegal strikeance of contract for personal service- LABOUR-Concluded-Fin
Whether Courts below in error in continuing injunction-The
R.S.M. 1954, c. 132, ss. 2(1), 18(1),
22(1).
3. Constitutional law-Validity of provincial legislation-Labour Relations Board- Power to dissolve employees' association dominated by employer-Whether statute ultra vires in view of 96 of the B.N.A.
Act-Labour Relations Act, R.S.Q. 1941, c. 162A,
ss. 20,
50 [now R.S.Q. 1964, c. 141,
ss. 132]-Professional Syndicates Act,
R.S.Q. 1941, c. 162 [now R.S.Q.
1964, c. 146]-B.N.A. Act, 1867,
s. 96.
Lease-Lessor's covenant to pay taxes on real property-Lessee's covenant to pay taxes on personal property-Trade fixtures property lessee-Whether lessee liable to pay that part of municipal taxes levied in respect of demised premises attributable to value of fixtures-The Assessment Act,
R.S.O. 1960, 23, ss. 1(i)(iv), 4.
MECHANICS' LIENS 1. Contract to supply certain material fixed price-Whether subsequent supply of material outside contract will keep mechanic's lien alive-The Mechanics' Lien Act, 1960 (Alta.), 64.
LIFE 2. Waiver of lien rights by subcontractors- Effect-The Mechanics' Lien Act, (Alta.), 64.
C. & Co. et al. v. J. H. Co. 610. MINES AND MINING 1. Statute applying to "Mining, quarrying and other works for the extraction of minerals from the earth"-Contractor contracting to prepare shafts and drifts for mines-Whether contractor's operations within provisions of statute-The Employment Standaids Act, 1957 (Man.), c. 20, s. 25(d).
1. Damages-Whether award so inordinately large as to be wholly erroneous estimate-Mitigating circumstance negating award of punitive or exemplary damages.
1. Fatal accident-Collision between motorcycle and truck-Liability-Adopted child killed-Whether adopting parents can bring action under art. 1056 of the Civil Code-Highway Code, 8-9 Eliz. II (Que.), 67, s. 36(13), (18)-Adoption Act, R.S.Q. 2. Fatal accident-Pedestrian crossing highway at night-Pedestrian struck by car- Duties of driver and pedestrian-Whether Highway Victims Indemnity Act a bar to defence of contributory negligence- Highway
48-Highway Victims Indemnity Act, R.S.Q.
1964, c. 232,
s. 3-Civil Code, arts. 1053, 1103, 1106.
MOTOR VEHICLE-Concluded-Fin
1. Application for separate building permits foundation superstructure apartment hotel-Permit issued for foundation-Subsequent passage of amendment to zoning by-law to prevent construction of apartment hotels in area-Whether building plans approved by inspector prior to passage of amending by-law-The Planning
Act, R.S.O. 1960, c. 296, s. 30(7)(b).
et al. v. NORTH YORK et al., 172.
2. Restitution-Application to sever land- Conditions including severance fee and conveyance of lands for road widening purposes complied with-By-laws respecting fee conveyance subsequently quashed-Whether applicant entitled to recovery of money paid and property conveyed- EADIE v. 573.
3. Taxation -Business tax-Motel- Whether business tax prohibited by Quebec
Licence Act, R.S.Q. 1941, c. 76,
s. 33.
4. Sale by municipality to municipal official of part of closed highway-Failure to fix price and make offer to abutting owner- By-law and sale of land thereby authorized void-Claim for lien rejected-The Municipal Act, R.S.O. 1960, c. 249, s. 477-The
Conveyancing and Law of Property Act,
1. Collision entre deux bateaux-Chenal
6troit-Ndgligence des deux bateaux-Impossibilit6 d'4tablir le degr6 de faute de chacun-Application de l'
art. 648(2) de la
Loi sur la Marine marchande du Canada,
NAVIGATION-Concluded-Fin 2. Transport - Contrat - Dommages- Entente verbale que toute machine pesante serait d6montke de telle sorte qu'aucun article exc6derait le poids de 30 tonnes- Articles exc6dant ce poids offerts et acceptis par le capitaine du navire-Dommages caus6s A l'appareil de levage du navire- Autorit6 du capitaine de changer les termes du contrat-Degr6 6loign6 des dommages. & RooT NEGLIGENCE
1. Failure of caretaker to remove piece of apple from class room floor-Teacher injured by fall-Whether liability on part of employer.
2. Bus driver negligent in pulling away from curb with result that bus brushed against steel pole-Passenger putting arm out of window in contravention of by-law and in disregard of notice-Passenger suffering physical injury-Parties at fault in equal degrees and damages apportioned accordingly.
3. Bottle of carbonated beverage exploding-Sales clerk injured-Duty of manufacturer-Whether manufacturer liable- Civil Code, arts. 1053, 1054, 1238. 4. Rclatement d'une bouteille de liqueur gazeuse-Blessures A un ceil-Devoir du fabricant-Responsabilit6 du fabricant- Code Civil, arts. 1053, 1054, 1238. OIL AND GAS
Lease-Delay rental provision-Failure to pay rental on time-Subsequent acceptance of rental payment-Application for order declaring void and vacating registration of lease dismissed-Waiver default-The Gas and Oil Leases Act, 1962-63 (Ont.), c. 49.
1. Infringement-Chemical preparation- Patent containing three process claims- Importation of similar product-Action for infringement restricted to one process only-Whether presumption of s. 41(2)
2. Conflicting applications-Date of invention-Priority of invention-Patent Act,
R.S.C. 1952, c. 203, s. 45(8).
3. Infringem'ent-Validity-Curling broom-Reissue patent-Original patent not disclosing essential element of invention deficiency remediable by reissue patent-Patent Act, R.S.C. 1952,
4. Conflict proceedings-Rights three applicants for patents of similar invention- Whether invention-First to invent-Patent Act, R.S.C. 1952, c. 203, s.45 (8).
1. Default of defence-Proof of publication of alleged libel not required.
WooD- 2. Costs-Taxation-Provincial Attorney
General awarded costs of appeal-Attorney
104, 105-Interpretation Act, R.S.C. 1952, c. 158,
s. 15.
1. Note given by way of payment of
Action to recover balance owing on note- Counterclaim for damages for fraudulent
PROMISSORY NOTE-Concluded-Fin misrepresentations-Defendants' failure to establish that they were induced to enter contract to purchase shares by reason of fraudulent misrepresentation by plaintiff. et al. v. 88.
Application to sever land-Conditions including severance fee and conveyance of lands for road widening purposes complied with-By-laws respecting fee and conveyance subsequently quashed-Whether applicant entitled to recovery of money paid and property conveyed.
1. Imp6t sur le revenu-Montant pay6 par contribuable en garantie d'un emprunt de banque-Perte de capital ou d6pense d6ductible-Loi de l'Imp6t sur le Revenu, S.R.C. 1952, c. 148, arts. 3, 4, 12(1)(a), (b). 2. Imp6t successoral-Exemption-Donation A une association des anciens 6lbves de m6decine d'une universit6-Pour 6tablir un fonds d'emprunt pour les 6tudiants- Donation est-elle absolue et irr6vocableconstitu6e exclusivement A des fins de charit&-Les ressources de I'association sont-elles affect6es A des muvres de charit6 -Corporations
Act, R.S.O. 1960, arts. 101,
109(1), 115(1) et (5)-Loi de l'Imp6t sur les biens transmis par d6chs, (Can.),
art. 7(1)(d)(i). 3. Imp6t sur le revenu-Corporations associ6es-Contr6le-Voix pr6pondrante- Validit6 de rfglements exigeant le consentement unanime pour les motions devant les assembl6es d'actionnaires ou de directeurs- Loi de l'Impbt sur le Revenu, S.R.C. 1952, c. 148, art. 39.
LTD. et al., REVENU-Concluded-Fin
Impbt sur le revenu-Pr~t sur seconde hypothbque-Entreprise de bailleur de fonds
-Vente du portefeuille de secondes hypothbques-Vente d'inventaire-Profit sujet
A la taxe-Loi de l'Imp6t sur le Revenu,
S.R.C. 1952, c. 148, arts. 3, 4, 85E(1), 139(1)
Imp6t successoral-Cr6dit pour taxes provinciales-Situs des actions d'une compagnie-Registre de transferts ou lieu de transfert-Loi de l'Imp6t sur les biens transmis par d6chs, (Can.), 29, arts. 9(1)(a),9 (8)(d).
Imp6t sur le revenu-Compagnie publique de placements-Actions acquises au prix cofttant-Profit lors de la revente- Est-ce un gain de capital ou un revenu-Loi de l'Imp6t sur Revenu, S.R.C.
c. arts. 3, 4, 139(1)(e).
Imp6t sur le revenu-Transactions immobilibres-Compagnie de construction
-Vente de terrain cens6 avoir acquis pour des fins de placement-Intention secondaire-Admissibilit6 d'une preuve de transaction subs6quente-Gain en capital ou revenu-Loi de l'Imp6t sur le Revenu,
S.R.C. 1952, c. 148, arts. 3, 4, 139(1)(e).
Imp6t sur le revenu-D6p6ts regus de clients remboursables mais non rachetds font-ils partie du revenu de l'entreprise- Loi de l'Imp6t sur le Revenu, S.R.C. 1952, c. 148, arts. 12(1)(a), 85B.
Impbt sur le revenu-C6rant d'une entreprise hors de la oa il rside- D6duction des frais de subsistance et de d6placement-Loi de l'Imp6t sur le Revenu,
Warranty manufacturer-Sale through intermediary-Failure of equipment in respect fulfillment warranty- SALE OF GOODS-Concluded-Fin Measure of damages-Onus to establish remaining value.
1. Valuation for purposes school taxes- Valuation of immovable property on protestant and neutral panels in Montreal subLrbs-Whether machinery should be included-Act respecting valuation school purposes,
1961-62 (Que.), 10-11 Eliz. II, c. 17,
s. 7-Cities and Towns Act, R.S.Q. 1941, c. 233, s. 488-
Charter of the City of Montreal, 1959-60 (Que.), 8-9 Eliz. II, c. 102,
s. 781.
SHIP V. et al., 54. 2. Carriage-Contract-Damages-Verbal agreement to dismantle cargo heavy machinery so that no single article would be in excess of 30 tons-Heavier pieces offered and accepted by ship's captain- Damage to ship's lifting tackle-Authority of captain to vary agreement-Remoteness of damages.
Professional negligence-Solicitor retained by lender in preparation and registration of chattel mortgage on certain equipment as security for loan-Later discovery that equipment not at reported location and probably not owned by borrower-Whether solicitor negligent in failing to anticipate borrower's criminal conduct.
1.-Act respecting valuation school purposes, 1961-62 (Que.), 10-11
Eliz. II, c. 17,
s. 7...................
2.-Acte de l'Ambrique du Nord britannique, 1867, art. 125...........
3.-Acte de l'Am6rique du Nord britannique, 1867, art. 96............
4.-Adoption Act, R.S.Q. 1925, c.
5.-Assessment Act, R.S.O. 1960, c.
23, ss. 1(i)(iv), 4............
6.- Bankruptcy Act, R.S.C. 1952, c.
7.-Bankruptcy Act, R.S.C. 1952, c.
8.- B.N.A. Act, 1867,
s. 125........
9.- B.N.A. Act, 1867,
s. 96.........
10.- B.N.A. Act, 1871.............
11.-Canada Shipping Act, R.S.C.
12.-Canadian Bill of Rights, 1960
(Can.), c. 44....................
13.-Charte de la Cit6 de Quebec,
1929, (Qu6.), c. 95, art. 417...........
14.-Charte de la Ville de Montrdal,
1959-60 (Qud.), 8-9 Eliz. II, c. 102, art. 781.......................
15.-
Charter of the City of Montreal, 1959-60 (Que.), 8-9 Eliz. II, c. 102,
s. 16.-Cities and Towns Act, R.S.Q. 1941, c. 233, s. 488.................. 17.-Code criminel, 1953-54 (Can.), c. 51, arts. 659, 660, 661............. 18.-Code criminel, 1953-54 (Can.), c. 51,
art. 323(1)................ 19.- Code criminel, 1953-54 (Can.), c. 51, art. 150..................
20.-Code criminel, 1953-54 (Can.), c. 51. arts. 7, 17, 371, 372............ 21.-Code criminel, 1953-54 (Can.), c. 51, arts. 2(25), 222, 223............ 22.-Code criminel, 1953-54 (Can.), c. 51,
arts. 524(1), 597(1)(b).......... 23.-Code criminel, 1953-54 (Can.), c. 51,
arts. 292(1)(a), 597(1)(b)....... 24.-Code criminel, 1953-54 (Can ), c. 51, art. 291................... 25.-Code criminel, 1953-54 (Can.), c. 51, art. 660(1).................... 26.-Code criminel, 1953-54 (Can.), c. 51, arts. 3(4), 295(1).............. See-Voir: Dorr
26.- Code criminel, 1953-54 (Can.), c. 51,
arts. 221(4), 592(1)(b)(iii) ...... See-Voir: CRrMINEL 27.-Code criminel, 1953-54 (Can.), c. 51, arts. 21, 141, 230..............
28.-Code criminel, 1953-54 (Can.), c. 51, arts. 3(4),
21(2),
292(1)(b), 295(1) 715
29.-Code criminel, 1953-54 (Can.), c. 51, arts, 149, 659(b) [tel que d~cr6t6 par 1960-61 (Can.), c. 43, art. 32], 661 822
30.-Code de la Route, 8-9 Eliz. II
(Qu&), c. 67, art. 36(13), (18)........
31.-Code de la Route, S.R.Q. 1964, c. 231, art. 48............
32.-Conveyancing and Law of Property Act, R.S.O. 1960, c. 66,
s. 38(1)..
33.-Corporations Act, R.S.O. 1960, c. 71, s. 293....... ..............
35.-Criminal Code, 1953-54 (Can.), c. 51,
ss. 659,
660,
661..............
36.-Criminal Code, 1953-54 (Can.), c. 51,
s. 323(1).
37.-Criminal Code, 1953-54 (Can.), c. 51,
s. 150 ... ....................
38.-Criminal Code, 1953-54 (Can.), c. 51,
ss. 7,
17,
371,
372..............
39.-Criminal Code, 1953-54 (Can.), c. 51, ss. 2(25),
222,
223............
40.-Criminal Code, 1953-54 (Can.), c. 51,
ss. 524(1), 597(1)(b).......... .474 41.-Criminal Code, 1953-54 (Can.), c. 51,
ss. 292(1) (a), 597(1)(b) ......... 42.-
Criminal Code, 1953-54 (Can.), c.51,s.291.......
.............. 43.-Criminal Code, 1953-54 (Can.), c. 51,s. 660(1).................. 44.-Criminal Code, 1953-54 (Can.), c. 51, ss. 3(4), 295(1).............. 45.-Criminal Code, 1953-54 (Can.), c. 51,
ss. 221(4), 592(1)(b)((iii)....... 594 46.-Criminal Code, 1953-54 (Can.), c. 51,
ss. 21,
141,
230................ 47.-
Criminal Code, 1953-54 (Can.), c. 51, ss. 3(4),
21(2),
292(1)(b), 295(1) 715 48.-
Criminal Code, 1953-54 (Can.), c. 51,
ss. 149, 659(b) [as enacted by 1960-61 (Can.), c. 43,
s. 32], 661 ...... 49.-Crown Liability Act, 1952-53 (Can.), c. 30, s. 3(1)(b).............. 50.-D6claration canadienne des Droits, 1960 (Can.), c. 44............ 51.-Employment Standards 1957 (Man.), 20, 25(d) .......... 52.-Estate Tax Act, 1958 (Can.), c. 29,
s. 7(1)(d)(i)................... 53.-Estate Tax Act, 1958 (Can.), c. 29, ss. 9(1)(a), 9(8)(d).............
54.-Gas and Oil Leases Act, 1962-63
55.-Highway Code, 8-9 Eliz. II
(Que.), c. 67, s. 36(13), (18) ..........
56.- Highway Code, R.S.Q. 1964, c. 231,
s. 48........................
57.- Highway Traffic Act, R.S.M.
58.-Highway Victims Indemnity
Act, R.S.Q. 1964, c. 232,
s. 3........
60.-Income Tax Act, R.S.C. 1952, c. 148,
s. 39...
61.-Income Tax Act, R.S.C. 1952, c. 148,
ss. 3,
4, 85E 139(1)(e), (w). 280
62.-Income Tax Act, R.S.C. 1952, c. 148,
ss. 3,
4, 139(1)(e).............
63.-Income Tax Act, R.S.C. 1952, c. 148,
ss. 3,
4, 139(1)(e).............
64.-Income Tax Act, R.S.C. 1952, c. 148, ss. 12(1)(a), 85B..............
65.-Income Tax Act, R.S.C. 1952, c. 148, ss. 12(1)(a), (h),
139(1)........
66.-Insurance Act, R.S.O. 1960, c. 190,
s. 95(1).................... 67.-Insurance Act, R.S.O. 1960, c. 190,
s. 149(1) [rep. & subs. 1961-62, c. 63,
s. 4].......................
68.-Interpretation Act, R.S.C. c. 158, 15.......................
Delinquents R.S.C. 1952, 9............. 70.-Juvenile
Delinquents Delinquents R.S.C. c. 160, s. 33(1)(b) ....... 72.- 202, 34(9).............. 1941, c.
ss. 20,
50 R.S.Q. 1964, c. 141,
ss. 132]............. ss. 2(1), 18(1),
22(1)... 75.- Licence Act, R.S.Q. 1941, c. 76,
s. 33..........................
-Lci de l'adoption, S.R.Q. C.196.......................... 77.- Loi de I'Amdrique du Nord britannique, 1871................... 78.-Loi sur les Brevets, S.R.C. 1952, c. 203, art. 41(2)............... 79.-Loi sur les Brevets, S.R.C.
1952, c. 203, art. 45(8)...............
80.-Loi sur les Brevets, S.R.C.
1952, c. 203, art. 50.................
81.-Loi sur les Brevets, S.R.C.
1952, c. 203, art. 45(8)...............
82.-Loi des Cites et Villes, S.R.Q.
1941, c. 233, art. 488................
83.-Loi sur la Cour supreme, S.R.C.
1952, c. 259, art. 55.................
84.-Loi sur la Cour supr~me, S.R.C.
1952, c. 259, art. 55.................
1'6valuation pour fins scolaires, 1961-62 (Qub.),
10-11 Eliz. II, c. 17, art. 7.........
86.-Loi sur la Faillite, S.R.C. 1952, c. 14, art. 151...................
87.-Loi de l'Imp6t sur les biens transmis par d~chs. 1958 (Can.), c. 21,
art. 7(1)(d)(i)...................
88.-Loi de l'Imp6t sur les biens transmis par d6chs, 1958 (Can.), c. 29, arts. 9(1)(a), 9(8)(d).................
89.-Loi de l'Imp6t sur le Revenu,
S.R.C. 1952, c. 148, arts. 3, 4, 12(1)(a),
(b)................................
90.-Loi de l'Imp6t sur le Revenu,
S.R.C. 1952, c. 148, art. 39......... 223
91.-Loi de l'Imp6t sur le Revenu, S.R.C. 1952, c. 148, arts. 3, 4, 85E(1), 139(1)(e), (w)....................... 92.-Loi de l'Imp6t sur le Revenu, S.R.C. 1952, c. 148, arts. 3, 4, 139(1)(e) 295 93.-Loi de l'Imp6t sur le Revenu, S R.C. 1952, c. 148, arts. 3, 4, 139(1)(e) 302 94.-Loi de I'Imp6t sur le Revenu, S.R.C. 1952, c. 148, arts. 12(1)(a), 85B 477 95.-Loi de I'Imp6t sur le Revenu, S.R.C. 1952, c. 148, arts. 12(1)(a), (h),
139(1)........................ 96.-Loi d'indemnisation des victimes d'accidents d'automobiles, S.R.Q. 1964, c. 232, art. 3.................. 97.-Loi sur les Jeunes D6linquants, S.R.C. 1952, c. 160,
s. 9.............. 98.-Loi sur les Jeunes D61inquants, S.R.C. 1952, c. 160................. 99.-Loi sur les Jeunes D61inquants, S.R.C. 1952, c. 160, art. 33(1)(b)... 100.-Loi sur les Lib6rations conditionnelles, S.R.C. 1952, c. 264........ 101.-Loi des Licences, S.R.Q. 1941, c. 76, art. 33.................... 102.-Loi sur la Marine marchande du Canada, S.R.C. 1952, c. 29,
art. 648(2)......................... 103.-Loi sur la Mer territoriale et les zones de p~che, 1964 (Can.), c. 22 792
104.-Loi sur la Radio, S.R.C. 1952, c. 233, arts. 3, 4, 10.................
105.- Loi des Relations Ouvribres,
1941, c. 16 A, arts. 20, 50
[maintenant S.R.Q. 1964, c. 141, arts.
132].......................
106.-Loi sur la Responsabilit6 de la Couronne, 1952-53 (Can.), c. 30, art.
3(1)(b)........................
Syndicats professionnels, S.R.Q. 1941, c. 162 [maintenant S.R.Q. 1964, 146]...........
(Alta.), c. 64...........
109.-Mechanics' Lien Act, 1960
(Alta.), c. 64....................
110.-Mining Tax Act, R.S.O. 1950, c. 237,
s. 4.....................
111.-Motor Vehicle Act, R.S.B.C.
1960, c. 253....................
112.- Municipal Act, R.S.O. 1960, c. 249,
s. 477....................
113.-Patent Act, R.S.C. 1952, c.
203, s. 41(2).....................
114.-Patent Act, R.S.C. 1952, c.
203, s. 45(8)....................
115.-Patent Act, R.S.C. 1952, c. 203,
s. 50......................
116.-Patent Act, R.S.C. 1952, c. 203, s. 45(8).................... 117.-Planning Act, R.S.O. 1960, c. 296, s. 30(7)(b)................ 118.-Planning Act, R.S.O. 1960, c. 296, as amended.................. 119.-Professional Syndicates Act, R.S.Q. 1941, c. 162 [now R.S.Q. 1964, c. 146]........................
120.-Quebec City
Charter, 1929 (Que.), c. 95, s. 417.............. 121.-Queen's Bench Act, R.S.S. 1953, c. 67, s. 44(9)................. 122.-Radio Act, R.S.C. 1952, c. 233,
ss. 3,
4,
10.................
123.-Rights of Labour Act, R.S.O. 1960, c. 354,
s. 3(3)................. 124.-Saskatchewan Insurance Act, 1960 (Sask.), c. 77,
s. 219(1)......... 125.ummary Convictions R.S.B.C. 1960, c. 373................ 126.-Supreme Court Act, R.S.C. 1952, c. 259, as. 41, 44............... -Supreme Court Act, R.S.C. 1952, c. 259,
s. 55................... STATUTES-Concluded-Fin
128.-Supreme Court Act, R.S.C.
1952, c. 259, s. 36(a)................
129.--Supreme Court Act, R.S.C.
1952, c. 259, s. 41(1)..............
130.---Supreme Court Act, R.S.C.
1952, c. 259, ss. 104, 105.............
131.-Supreme Court Act, R.S.C.
1952, c. 259,
s. 55................
132.-Territorial Sea and Fishing
Zones Act, 1964 (Can.), c. 22.........
Maintenance Act, R.S.B.C. 1960, c. 378.....
134.-Ticket of Leave Act, R.S.C.
1952, c. 264........................
Contributory Negligence Act, R.S.M. 1954, c.
266,
s. 5.......................
136.-Vehicles and Highway Traffic
Act, R.S.A., 1965, c. 356, s. 131(1)....
137.--Wages Act, R.S.O. 1960, c.
421, s. 7(6) [rep. & subs. 1960-61, c. 103,
s. 1].......................
1. Income tax-Amount paid by taxpayer as guarantor of bank loan-Whether capital loss or deductible expense-Income Tax Act, R.S.C. 1952, c. 148, ss. 3,
TAXATION-Continued-Suite 2. Estate tax-Exemption-Bequest to University Medical Alumni Association- Purpose of establishing student loan fund gift absolute and indefeasible association an organization constituted exclusively for charitable purposes to charitable activities-Corporations Act, R.S.O. 1960, c. 71, as. 101, 109(1), 115(1) and (5)-Estate Tax Act, 1958 (Can.), c. 21,
s. 7(1)(d)(i).
3. Income tax-Associated corporations- What constitutes "control"-Casting vote -Validity of Articles of Association requiring unanimous consent for motions before meetings of shareholders or directors -Income Tax Act, R.S.C. 1952, c. 148, s. 4. Income Tax-Second mortgage loan- Money lending business-Sale of entire portfolio of second mortgages-Whether inventory-Whether -Income
Tax Act, R.S.C. 1952, c. 148,
ss. 3,
4, 85E(1), 139(1)(e), (w).
5. Estate tax-Provincial tax creditshares-Register transfer-Estate Tax (Can.), 29, ss. 9(1)(a), 9(8) 6. Income tax-Public investment company-Shares acquired at costs-Profit on same-Whether come-Income Tax Act, R.S.C. 1952, c. 148, ss. 4, 139(1)(e).
tax-Real estate transactions- Construction company-Sale of land allegedly acquired for investment purposes intention-Admissibility subsequent transaction-Capital income-Income
Tax R.S.C. 1952, c. 148, as. 3, 4, 139(1)(e). G. W. TAXATION-Concluded-Fin
8. Income tax-Whether unredeemed refundable deposits received from customers part of business income-Income Tax Act,
R.S.C. 1952, c. 148, ss. 12(1)(a), 85B.
Tax-Managing out-of-town business-Whether living and travelling expenses deductible-Income
R.S.C. 148, ss. 12(1)(a), (h),
Iicome tax-Land purchased for prodevelopment-Proposed ject later intention purchaser-Income or capital gain.
Droit constitutionnel-Validith d'une gislation provinciale-Commission des Relations de Travail-Pouvoir de prononcer la dissolution des associations de salarids domindes par un employeur-La loi estelle ultra vires vu les dispositions de l'art. 96 de l'Acte de I'Amdrique du Nord britannique-Loi des Relations Ouvribres, S.R.Q. 1941, c. 162A, arts. 20, 50 [maintenant S.R.Q. 1964, c. 141, arts. 132J-Loi des Syndicats professionnels, S.R.Q. 1941, c. 162 [maintenant S.R.Q. 1964, c. 146- Acte de I'Am6rique du Nord britannique, 1867, art. 96.
Testator's Family Maintenance Act, R.S.B.C. 1960, vary will-Discretion Court- Whether Court of Appeal erred in substituting its own discretion for that of trial judge.
Statutes and regulations cited
-
-
-
-
-
-
-
-
Unresolved citations
-
s. 19 of the Judicature Act
-
paragraph (a)
-
subsection (1)
-
s. 149(1) of The Insurance Act