Riley v. Curtis's and Harvey Ltd. and Apedaile

*MO , 28. *Q at14. AND

THE WEYBURN TOWNSITE COM-)

PANY (PLAINTIFF)...............JRESPONDENT. ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.

Item 11 of see. 92 "B.N.A. Act," 1867, empowering the legislature of any province to make laws in relation to "the incorporation of companies with provincial objects" does not preclude a legislature from creating a company with capacity to accept extraprovincial powers and rights. Bonanza Creek Gold Mining Co. v. The King, [1916] 1 A.C. 566, 26 D.L.R. 273, followed.

Such capacity need not be expressly conferred.

It is sufficient if the intention of the legislature to confer it can be gathered from the instruments creating the company.

A Saskatchewan Company may, on obtaining a license under the "Extra-provincial Corporations Act,"

(R.S.O. [1914] ch. 179), carry on business in Ontario.

It may enforce in the Ontario Courts the performance of a contract entered into with a resident of that province and the action may be maintained though the license was not granted until after it was instituted.

Judgment of the Appellate Division (45 Ont. L.R. 176), reversing that on the trial (43 Ont. L.R. 451), affirmed.

APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario(1), reversing the judgment on the trial(2), in favour of the defendant. The questions raised on the appeal were whether or not the respondent company, incorporated under the " Companies Act " of Saskatchewan for the purpose of buying and selling land, could enforce in the *PRESENT:--Sir Louis Davies C.J. and Idington, Duff, Anglin and Brodeur JJ.

Ontario Courts, an agreement for sale of its land in Saskatchewan to a purchaser in Ontario; and whether or not license to resort to the courts of the latter Province had b6en validly granted by the authorities there.

The trial judge held that the company could not carry on its business outside of Saskatchewan and dismissed the action. His judgment was reversed by the Appellate Division.

appeal must, in my opinion, be decided in accordance with the law as laid down by the Judicial Committee of the Privy Council in the Bonanza Ca8e(1), as to the powers and capacities of companies incorporated by provincial legislatures. I think the head-note of the case correctly defines what their Lordships in that case determined. It is as follows:- LordHalane n dliveingthe easned nd on-The Lord Haldane delivering the reasoned and sidered judgment of their Lordships overrules the judgment of the majority of this court, of which I was one, when the Bonanza Case(2), was before us, as to the meaning of sub-section 11 of section 92 of our Constitutional Act empowering legislatures exclusively to make laws in relation to the

Our judgment placed a territorial limitation upon the powers which the provincial legislatures were authorized to confer upon the companies created or incorporated by them, and this limitation was, Lord Haldane says, at page 577, so complete

Whether His Lordship stated with accuracy the real meaning and effect of the decision of this court I do not stop to discuss.

We are concerned alone with the proper construction of the judgment of the Judicial Comnmittee for whom His Lordship was speaking, as to the meaning of this 11th sub-section.

I think, as I have said, the head-note of the Bonanza judgment correctly epitomizes the gist of that judgment, namely, that while the "powers and rights" which a provincial legislature can bestow are confined to those exercisable within the province, that does not preclude such legislature from legislating so as to create by statute a corporation with the megeneral capacity to acquire in another province of the Dominion power to operate in that province with respect to the carrying out of its corporate powers Co.

granted by the province incorporating the company. The question in this case, in my opinion, under the construction I put upon the Privy Council judgment in the Bonanza Case(1) was confined to two points, first, whether the company had the capacity given to it by the legislature to obtain power ab extra to carry on in another province its authorized business of buying and selling real estate in Saskatchewan, and secondly, whether it had obtained such power from the Province of Ontario, assuming that its contract in question was made there.

I am, as I have said, of the opinion that its corporate powers "to carry on real estate loan and general brokerage business" in the Province of Saskatchewan, under the Bonanza Case(1), decision of the Judicial Committee, conferred on it the capacity to obtain such power from Ontario under what is known as the law of comity.

Of course, such a statutory corporation as the respondent could not obtain ab extra power to carry on any business not strictly within its corporate powers, but within these powers it had such capacity. My construction of the powers conferred upon the company "of real estate loan and general brokerage business" is that they referred to real estate in the Province of Saskatchewan alone, and not to real estate elsewhere.

The lands in question in this case were, of course, situate in the Province of Saskatchewan The question is then raised whether it did obtain such powers ab extra or not.

On that point I cannot think there can be any