Majority
the judgment of the Privy Council, uses the following language:
A.G. B.C.
It is clear that the appellant's conduct was treated by the judge as Kellock j.
being contempt of a criminal kind, viz:
"any act done . . . calculated to bring a court or a judge of the court into contempt or to lower his authority"
or something "calculated to obstruct or interfere with the due course of justice or the lawful process of the courts": see R. v. Gray (2) (1900) 2 Q.B.
In in re Armstrong (2), Vaughan Wiliams, J., as he then was, indicated the distinction between the two classes of contempts at page 329 as follows:
But I do not think in the present case there is any element of personal contempt, or any offence committed for which Mr. Isaacson could be sent to prison as a punishment. I think that any imprisonment ordered in the present case would be by way of civil process, and would determine ex debito justitiae as soon as the person committed yielded obedience to the order of the Court and paid the costs.
The question arises as to the characteristics of criminal contempt of court as distinguished from mere disobedience of process.
Halsbury, Vol. 7, 2nd edition, page 2, treats the subject thus:
Contempt of court is either (1) criminal contempt, consisting of words or acts obstructing, or tending to obstruct, the administration of justice, or (2) contempt in procedure, consisting of disobedience to the judgments, orders, or other process of the Court, and involving private injury.
That this division is not, in the view of the editors, a mutually exclusive one, is clear from the following appearing on page 24:
Contempt in procedure, unaccompanied by circumstances of misconduct, . .
. is a contempt in theory only, .
. . In circumstances involving misconduct, contempt in procedure partakes to some extent of a criminal nature, and then bears a twofold character, implying as between the parties to the proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between the party in default and the State, a penal or disciplinary jurisdiction to be exercised by the Court in the public interest.
Reference is made in support of the text last quoted to the judgment of Lindley L.J. in Seaward v. Patterson (3). (1) [19531 1 All. E.R. 827 at 829.
(2) [18921 1 Q.B. 327.
(3) [18971 1 Ch. 545 at 555.
The statement in the note to the text quoted from page 2 that is, therefore, not to be read without keeping in mind that "contempt in procedure" may itself be criminal if accompanied by "circumstances involving misconduct."
It does not therefore follow from the statement in the note that, even in the view of the editors, disobedience by a party to a prohibitory order, can never be more than a civil contempt.
In Seaward v. Paterson an injunction had been granted restraining the use of certain premises in a particular manner. The appellant was not a party to the proceedings but was aware that the injunction had been granted. It was held by the Court of Appeal that although not bound by the injunction any more than any other member of the public, the appellant was, like other members of the public, bound "not to interfere with and not to obstruct, the course of justice."
In his judgment in Scott v. Scott (1), the question in that case being whether the conduct there in question amounted to criminal contempt, if so, there being no right of appeal, Lord Atkinson reiterates that mere disobedience to an order of the court, even though wilful, does not amount to criminal contempt.
In his view the conduct of the appellant in question in Seaward's case was purely civil contempt. Lord Atkinson criticized the judgment of Lindley L.J., in that case -at pages 555-6 with respect to disobedience to an injunction by a person not a party to the proceedings. He regards the language of Lindley L.J., which he quoted, as failing to "grapple with the absurdity" of considering conduct on the part of a non-party as criminal while considering the same conduct by a party as civil. He said at p. 459:
All that Lord Atkinson is insisting on is that mere disobedience, whether by a party or a stranger, is not necessarily criminal. But it may be so, depending upon the nature and quality of the conduct involved. At p. 461 he repeats (in speaking of In re Freston (1), a case involving the authority of the court to discipline its officers) that I think, however, having regard not only to the judgments in Seaward's case, but to the position taken by counsel for the appellant, that both court and counsel considered they were dealing with a case of criminal contempt.
At p. 554, Lindley L.J., points out that it was argued for the appellant that
This, of course, is not language appropriate to civil contempts, although no objection to entertainment of the appeal was raised by the respondent. A similar situation had occurred in Reg. v. Jordan (2), as Lindley L.J., himself had pointed out in O'Shea v. O'Shea (3).
The judgments in Seaward's case are relevant to the case at bar only from the point of view that conduct in the face of an injunction, while not necessarily criminal, is not necessarily purely civil either. It may be either, depending upon the nature and quality of the conduct in question in any particular case.
At page 555, Lindley L.J., said:
bound by the injunction by being a party to the cause, but because he is conducting himself so as to obstruct the course of justice, is another -I and a totally different thing. The difference is very marked. In the one case the party who is bond by the injunction is proceeded against for the purpose of enforcing the order of the Court for the benefit of the A.G. B.C. person who got it. In the other case the Court will not allow its process Kellock J to be set at naught and treated with contempt. In the one case the e person who is interested in enforcing the order enforces it for his own benefit; in the other case, if the order of the Court has been contumaciously set at naught the offender cannot square it with the person who has obtained the order and save himself from the consequences of his act. The distiiction between the two kinds of contempt is perfectly well known, although in some cases there may be a little difficulty in saying on which side of the line a case falls.
While the contrast Lord Lindley draws is between contempt proceedings as mere process against a party for the purpose of compelling obedience to an order of the court in the interests of the party obtaining it and proceedings against a person not a party who has "contumaciously set at naught" the order, and while he does not indicate that in the latter case the contemp again may be either civil or criminal, I think the apparent omission is explained by the fact, already pointed out, that the court was in fact dealing with conduct which all concerned regarded as criminal. Lord Lindley, at p. 553, said that he regarded the case as "not anywhere near the line. It seems to me a plain straight forward case."
At p. 558, Rigby L.J., said:
I will only say a few words on the argument of Mr. Seward Brice with reference to the jurisdiction of the Court in matters of contempt of Court with relation to injunctions. Unless I entirely misapprehended that argument, it went so far as this, that the Court has no jurisdiction to commit for contempt by way of punishment; but that the jurisdiction is an ancillary or subsidiary jurisdiction in order to secure that the plaintiff in a suit shall have his rights. I do not think that that can be for a moment maintained . .
. That there is jurisdiction to punish for contempt of Court is undoubted. It has been exercised for a very long time .
. . and it is a punitive jurisdiction founded upon this, that it is for the good, not of the plaintiff or of any party to the action, but of the public, that the orders of the Court should not be disregarded, and that people should not be permitted to assist in the breach of those orders in what is properly called contempt of Court.
Rigby L.J., was not speaking, and did not find it necessary to speak of civil contempt. It would appear that North J., the judge of first instance, had also regarded the appellant's contempt as criminal.
The actual committal was for a definite term. This is punishment as opposed to an order of the civil type exemplified in Avery v. Andrews The authorities make it plain that a party and a nonparty are on exactly the same footing so far as contempt of court is concerned.
In Wellesley v. The Earl of Mornington (2), the court refused to commit a servant of the defendant, who was not a defendant, for breach of an injunction but, as appears at page 181, on a motion to commit him for contempt the court did so.
Again, as pointed out by Lord Atkinson, the view taken as to the nature of the contempt does not appear from the report and that is not important from the standpoint of the case at bar. Avery v. Andrews (1), may also be referred to. In re Eede (3), the appellant had been struck off the roll of solicitors for having permitted his name to be made use of in an action by an unqualified person. The Court of Appeal held that an appeal lay as the order was not made in a criminal cause.
Lord Esher referred to the pertinent section of the Attorneys and Solicitors Act 1843, which authorized the striking off and also authorized the unqualified person to be committed to prison. He pointed out that the section recognized that in dealing with a solicior the court was merely exercising its disciplinary powers but that
In re Freston, supra, is an example of the first class of case.
In my opinion the statement in Oswald, the 3rd edition, at page 36, correctly distinguishes between civil and criminal contempts:
It is with this distinction in mind that the judgment of Chitty J., in Harvey v. Harvey (1), is, I think, to be read. The learned judge there said:
Interference with a ward of court, Wellesley v. Duke of Beaufort, supra; intimidation of witnesses, R. v. Steventon (2); ill-treating a process server, Lewis v. Owen (3); are all criminal contempts.
It should be said that the conduct in question in Scott v. Scott involved nothing in the nature of a "public" injury if it could be considered to be contempt at all. In the view of Viscount Haldane and of Lord Shaw, the order for hearing in camera was ultra vires and therefore there could be no contempt of that order at all. Earl Loreburn considered that the publication "in good faith" of the evidence by the petitioner could not be treated -as in contempt of an order she had herself obtained "for her protection". Lord Atkinson arrived at the same result as Viscount Haldane, but considered the order for hearing in camera to have been "spent when the case terminated."
In the case at bar the plaintiff's ship had arrived at the government dock in Nanaimo on the 7th of July, 1951, for 'the purpose of loading lumber then piled upon the dock. It appears that a strike of members of a union, known as The International Wood Workers of America, was then in progress but it was not the members of that union but longshoremen who were required for the purpose of loading the ship on its arrival.
It appears, however, that the woodworkers had established a "picket line" at the entrance to the bridge leading to the government dock, by reason of which the plaintiff company was unable to have the loading continued, the longshoremen refusing to cross. So far as the evidence shows, the Woodworkers Union had no interest in the actual lumber on the dock to be loaded nor in the ship nor its crew.
In this situation the plaintiff applied ex parte to Clyne J., and obtained an injunction restraining the defendants, their servants and agents, from
This order was served upon the appellant Tony Poje on the 15th of July and a copy was posted on the bridgehead in the presence of Poje and six pickets. On the following day, July 16, the Sheriff returned at noon and found at approximately 12.25 p.m., one hundred and fifty men at or near the landward end of the bridge and another thirty at its end nearest the ship. The bridge is some forty or fifty feet wide and its landward end was completely blocked. The legend "I.W.A. is on Strike for Better Wages and Conditions" was displayed on posters being carried and was also posted on the railing of the bridgehead as well as chalked on the asphalt road.
The Sheriff informed the men at the bridgehead that longshoremen would report to load the ship at approximately 12.30 p.m., and shortly before that, when the pickets showed no sign of dispersing, he announced to the men at both ends of the bridge that he was the Sheriff of the county and read the material parts of the order of Clyne J., informing them that he considered them all to be in contempt of court but the pickets paid no attention to him. Shortly after this several cars carrying longshoremen entered the area, one driving directly to the bridge.
The occupants of this car were interrogated by the appellant Tony Poje as to who they were.
On being informed that they were longshoremen and being asked if they were to load, Poje replied in the negative. Matters remained in this situation until about 2.15 when the Sheriff left, the longshoremen remaining in the area outside the picket line.
On returning at 4.30 p.m., the Sheriff found the situation the same, with the longshoremen still waiting. On returning at 7 p.m. he found no longshoremen and six pickets only. On July 18 and 19 the Sheriff went to the locality on a number of occasions and found on each occasion only six pickets patrolling the bridgehead.
He found none on Sunday, July 20. On the following day he again attended on a number of occasions throughout the day and found only six pickets at the bridgehead.
On July 22, at 8.30 a.m. the situation was the same. Later in the morning the Sheriff was instructed that longshoremen would be reporting for work at 1 p.m. At 10 a.m., on going to the area, he found sixteen pickets there, and at 12.15, he found fifty men assembled at the bridgehead and along the roads leading to it with the -appellant Tony Poje apparently in charge. At approximately 12.30 p.m. the number of men at the bridgehead increased to approximately seventy. The Sheriff again read the operative parts of the injunction order, told those present they must disperse, but that did not occur, there being some "snickers" at the Sheriff's statement.
On this occasion all of the appellants were in the group. At this time the longshoremen were present on the other side of the street opposite the bridgehead.
On July 22 the defendants served notice of motion for an order setting aside the order of Clyne J., and on the following day the plaintiff moved to commit those concerned for disobedience to the said order.
These motions were returnable on the 24th of July, but on that day the parties to the action settled their differences, it being agreed that the plaintiff would discontinue his action and the motion to commit, and that the motions would be spoken to on the 29th.
On the last mentioned day the matter came before the learned Chief Justice of British Columbia, who was informed by counsel of the position.
The learned Chief Justice indicated to counsel, however, that on the material, it appeared that there might have been a contempt of which the court should take notice. He, therefore, adjourned the matter to the 8th of September, informing counsel that the Sheriff would be asked to report and that the Court might decide to initiate contempt proceedings of its own motion.
On the 8th of September, the Sheriff was called and deposed to the facts set out above, and the learned Chief Justice then announced that he proposed to direct the issue of writs of attachment, directed to the appellants and others, under which they would be taken into custody and brought before the court on September 15, but that they would be allowed to remain in the custody of counsel for the appellant upon his undertaking that they would be brought before the court on that day, or they might be permitted to enter into their own recognizance.
Writs of attachment were accordingly issued -and the matter came before court (1) again on the 15th of September. The appellants were represented by counsel, the Sheriff repeated the evidence he had given on the previous occasion.
He was cross-examined and counsel for the appellants on this occasion admitted that the Sheriff's "evidence" as to the congregation of men on the various occasions was in accordance with the fact. The orders here in question were made on the following day.
It is plain, I think that so far as the learned Chief Justice was concerned, he considered that the facts before him amounted to a criminal contempt of court. So far as the immediate parties to the action were concerned, all matters in question between them had been adjusted. The plaintiff was no longer interested in enforcement of the injunction and had agreed to drop the proceedings for enforcement by way of committal. It was the court which at that point stepped in, the proceedings from then on being purely punitive. In my opinion the learned Chief Justice had jurisdiction so to deal with the matter.
It is idle to suggest that on the evidence the presence of these large numbers of men blocking the entrance to the bridge was intended merely for the purpose of communicating information. That had been very efficiently done for a considerable time by the six pickets with their signs or cards, and the notices at the bridgehead. The congregation of the large numbers of men at the times that the longshoremen were to arrive had no other object or effect than to present force.
The context in which these incidents occurred, the large numbers of men involved and the public nature of the defiance of the order of the court transfer the conduct here in question from the realm of a mere civil contempt, such as an ordinary breach of injunction with respect to private rights in a patent or trade-mark, for example, into the realm of a public depreciation of the authority of the court tending to bring the administration of justice into scorn. It is to be observed that the nuisance created by the incidents referred to brought the appellants within the scope of s. 501 of the Criminal Code; Reners v. The King 165 -as well as s. 573 were also infringed. There is no doubt that the appellants and those associated with them were acting in concert.
Their conduct was thus entirely criminal in character in so far as these specific offences are concerned.
Over and above these offences, however, the character of the conduct involved a public injury amounting to criminal contempt.
In these circumstances, I think the order of the learned Chief Justice was properly made, and as the proceeding was a criminal proceeding, an appeal to the Court of Appeal was not competent; Storgoff v. Attorney General (2). follows that the rules of court are inapplicable as they apply only in civil proceedings.
It is immaterial by what means the appellants were in court. The court had jurisdiction to deal with them when there; R. v. Hughes (3). Nor do I think the order of Clyne J., may be treated as in any sense a nullity. There is no application before us for leave to appeal directly to this court from the order of the learned judge of first instance under s. 41 of the Supreme Court Act, but having regard to my view as above expressed, I would not, in any event, be inclined to grant such leave.
The appeal should be dismissed.
KERWIN J.:-I am unable to discover any substance in the objections raised by the appellants to what are in my opinion mere matters of procedure so far as concerns the order of Mr. Justice Clyne granting an injunction. Furthermore, on any view of the matter, Chief Justice Farris (4) had jurisdiction, sitting in a Court of record, to hear the application for attachment or committal for the alleged nt htadInfn
OE contempt in failing to obey that injunction, and I can find merit in any of the objections raised to the procedure adopted by the Chief Justice. There was evidence sufficient to warrant the finding of contempt and I am unwilling to interfere with the orders made by him with respect to the various appellants.
Without expressing any opinion as to the other matters argued, I would dismiss the appeal without costs.
J.:-I agree the appeal should be dismissed. The learned Chief Justice (1), in my opinion, upon this record had jurisdiction to hear the motion. I am in respectful agreement with the conclusions of the majority of the learned judges in the Court of Appeal (2), both with respect to the objections taken to the order as made by Mr. Justice Clyne and the findings of the learned Chief Justice.
In view of the foregoing it is unnecessary to determine the nature and character of the contempt. Appeal dismissed with costs. Solicitor for the appellants: A. MacDonald.
Solicitor for the respondent: E. Pepler.
APPEAL-Appeal-Leave-Criminal law- Priest allowed to hear confession of jury during trial-Whether violation of s. 945
The prohibition imposed to the jury by 945 of the Criminal Code to hold communication with no one, not absolute.
Consequently, no appeal lies to the Supreme Court Canada in a murder case on the ground that priest was allowed during the trial to hear the confessions of the jurymen, if proper provisions was made by the trial judge to prevent any reference to the subject of the trial.
Whether the provisions taken are proper is a matter of discretion and not of law.
AUTOMOBILE- Automobile - Motorcyclist colliding with disabled trailer at night-Flares extinguished and not placed at distance required Statute-Failure to repair or move trailer-Damages-Deceased illegitimate-Whether award in reasonable proportion loss-Public Service Vehicles
Act, R.S.A. 1942, 276-Fatal Accidents
Act, R.S.A.
1942, 125-Trustee Act,
R.S.A.
1942, c. 215.
The respondent's minor son was killed when his motorcycle collided in a very foggy night with the appellant's disabled trailer which had been left parked on the highway well over its proper side the road. The appellant had placed three flares, two behind and one in front of the trailer, all three at less than one hundred feet from the trailer;
but these flares were extinguished at the time of the accident. The action was taken by the son's mother, as administratrix his estate, and on her own behalf and that of his father, as dependents.
The trial judge, having found negligence in the failure to set out the flares in the manner prescribed by the Public Service Vehicles
(R.S.A. 276) and in the failure to remove the trailer from the highway repair it, awarded damages in the sum
$6,000 under the provisions of the Fatal
Accidents Act (R.S.A. and the Trustee Act (R.S.A. 1942, 215). This judgment was affirmed by the Court
Appeal for Alberta.
Held: The appeal should be dismissed; Kellock and Locke
JJ., dissenting in part, would have ordered a new trial restricted to the amount damages to be awarded under the Fatal
Accidents Act.
Per Kerwin, Estey and
Fauteux JJ.: Applying City of Vancouver v.
Burchill S.C.R. 620 and Fuller v.
Nickel S.C.R. even if the appellant did put the flares out in a manner
AUTOMOBILE-Continued that did not comply with the statute, was not liable in damages unless such breach was the direct cause of the accident. The statutory requirement of putting out flares in the circumstances of this case constitutes a duty the performance which is the minimum required by law and does not relieve from exercising the care that a reasonable man would exercise in the circumstances.
The collision was directly caused by the failure to exercise such care.
reasonable man would have appreciated the danger, foreseen the possibility of injury and would have made an effort to remove or repair the trailer which, upon the evidence, would have been successful.
(Jones v. Shafer S.C.R. distinguished).
The amount of damages awarded under the Fatal Accidents Act must be determined upon the particular facts in each case and, in part, must a matter of estimate, even conjecture. Appellate Courts have, apart from sonic error in principle, interfered only where the damages were clearly excessive, that is to say where there was no reasonable proportion between the amount awarded and the loss sutained, which is not the case here even though the damages awarded were somewhat large.
Per: Locke J. (dissenting in part): The fact that the flares were not placed at the distance from the stranded vehicle requried by the regulations had no bearing on the occurrence the accident since they had been extinguished before happened. proper inference to drawn from the evidence was that the flares where in a defective condition when placed upon the highway and this, coupled with the negligence found by the trial judge failing to remove the vehicle from the highway, was sufficient to sustain the finding of liability.
No evidence was given at the trial as to the age or the financial circumstances of the parents on whose behalf the claim for damages was made under the Fatal Accidents Act in respect the death an illegitimate child and the amount awarded was so excessive as to bear no reasonable relation to any loss shown to have been sustained.
There should be a new trial restricted to the assessment of v. POLLOCK........................ Negligence -Injury to gratuitous passenger-"Gross Negligence"- AUTOMOBILE-Continued
Proof of-Res ipsa loquitur-Motor Vehicles
Act, R.S.B.C. 1948, c. 997, s. 89. By section
82 of the British Columbia Motor Vehicles
Act, R.S.B.C. 1948, c. 227, no action lies by a gratuitous passenger in a motor vehicle for injury sustained by him by reason of the operation of such vehicle unless there was gross negligence on the part of the driver that contributed to the injury. Held:
(1) it is not necessary that such gross negligence be proven conclusively as if there were a prosecution for criminal negligence; (2) very great negligence on the part of the driver must be shown
(Studer v. Cowper [1951] S.C.R. 450), and it was impossible to say in the present case that the mere happening of the occurrence gave rise to a presumption that it had been caused by very great negligence.
KERR V. CUMINGs.................
3.-Motor vehicles - Warranty - Collision - Defective brakes driver - Liability of owner - Action in warranty against used car dealer -Action by purchaser and third party - Latent defects - Arts. 1053, 1054, 1590, 1599, 1597
C.C. By a judgment from which no appeal was taken, the respondents and the driver of a truck, owned by the respondent Masoud and lent by him to the respondent corporation of which he was the president, were jointly and severally condemned to pay damages as the result of a collision between the truck and a horse drawn vehicle.
The judgment held that the accident was mainly due to the defective condition of the brakes on the truck. The driver was found liable because he had been negligent;
the respondent corporation because it was the employer of the driver; and the respondent Masoud, because he was paying the driver's salary and had allowed the use by the corporation of the defective truck.
The respondent Masoud had only a few days previous to the accident purchased the truck from the appellant.
Contemporaneously with the filing of their plea in the action, the respondents, but not the driver, took action in warranty with the customary conclusions against the appellant who did not intervene in the principal action but denied liability in warranty.
The judgment in the warranty action dismissed the corporation's action and maintained Masoud's for one half.
Appeals were entered by all the parties of the warranty action, and the majority in the
Court of Queen's Bench for Quebec maintained the appeals of the respondents.
Held, that the appeal as against the respondent Masoud should be dismissed, in view of the legal warranty against latent defects which arose on the sale of the truck (1527 C.C.). Held also (Rinfret C.J.
and Rand J. dissenting), that the appeal as to the respondent corporation should be dismissed.
MOTOR
V,
MABouD.........
..............
AUTOMOBILE-Continued
4.- Negligence - Motor Vehicle-Pedestrian run down in intersection-Driver's vision obscured by frosted windshield-Whether if pedestrian not in pedestrian crossing onus on driver discharged-The Vehicles and Highway Traffic Act, R.S.A. 1942, c. 975, ss. 59 (9), (4), 94(1). In an action for damages against the appellants for injuries suffered by the respondent, who was knocked down at a street intersection and run over by a motor truck driven by the appellant driver and owned by the appellant company, defences pleaded were negligence by the respondent in crossing the intersection diagonally and her failure, contrary to s. 59(4) of The Vehicles and Highway Traffic Act, RS.A. 1942, c. 275, to yield the right-of-way to the vehicle, and in the alternative, contributory negligence.
The evidence was that the driver's vision was obscured by frost on the windshield which prevented his seeing the respondent. No one saw the collision but from the evidence adduced the trial judge considered that it had occurred, either while the respondent was crossing from the northeast to the northwest corner of the intersection and while she was in the pedestrian right-of-way, or, after she angled that right-of-way slightly in a southwesterly direction.
He found the latter to be the case but that that was not a contributing cause of the accident, and that the entire fault was the negligence of the truck driver. The judgment was affirmed by Supreme Court of Alberta, Appellate Division, Frank Ford J.A. dissenting. Held: (Locke J. dissenting), that the appeal should be dismissed.
Upon the evidence the accident was caused by the negligence of the driver of the truck and there was no negligence on the part of the respondent contributing to the accident. Per: Rinfret C.J. and Kerwin J.:-It made no difference whether the respondent followed the unmarked crossing, or whether she deviated "very slightly" therefrom as the trial judge found, or even if she crossed at a point further to the south and near the centre of the intersection, as the majority of the Court of Appeal thought. In any event, the position of the respondent had nothing to do with the accident.
stated she looked to her left, where the traffic nearest her would be expected. As a result of the accident she remembered nothing further but that did not necessarily mean that she did not thereafter look to her right, and there was nothing to indicate that the truck would have been seen at any relevant period in sufficient time for the respondent to avoid the accident. Nance v. British Columbia Electric Ry. Ltd. [1951] A.C. 601 at 609.
In view of the finding that the position of the respondent was not a contributory cause of the accident, the onus section, s. 94(1), need not be considered. Per: Estey and Fauteux JJ.: -There was no evidence accepted by the AUTOMOBILE-Concluded trial judge that justified a finding that the respondent was not upon the pedestrian lane when struck by the appellants' truck.
Therefore, the case fell within s. 59(2)
by virtue of which the operator of the vehicle shall yield the right-of-way to the pedestrian. There was no evidence as to the manner in which the respondent conducted herself and, therefore, no evidence that she failed to exercise due care.
Per: Locke J. (dissenting):-The evidence disclosed that the respondent proceeded across the intersection diagonally from the northeast corner toward the southwest corner and was to the west of the centre of the intersection when struck by the truck.
In failing to concede the right-of-way given to the oncoming vehicle by s. 59(4), and in failing to take any precautions for her own safety, her negligence contributed to the accident.
Swartz v. Wills [1935]
S.C.R. 628. The statement in the reasons for judgment of the majority of the Court of Appeal that the evidence must prove beyond a doubt to the satisfaction of the jury that the pedestrian did by negligence contribute to the accident was error.
The evidence in the case discharged the onus placed upon the appellants by s. 94(1).
Both the driver and the respondent were guilty of negligence contributing to the accident, as found by Frank Ford J.A., and the liability should have been apportioned equally. The Volute [19221 A.C. 129,
The Contributory Negligence Act,
R.S.A. 1942, c. 116, s. 2.
JoHNsoN..........................
BARRISTERS
SOLICITORS - Barristers and Solicitors-Solicitor acting for both parties-Where neither connivance nor negligence shown, not subject to strictures
.....................
CHARITY-Charity - Charitable Trust - Income of trust fund payable to such employees and their dependents of an assurance company as determined by its Board of
Directors-Validity..................
See WILL 3.
CIVIL CODE- 1.- Article 876 (Of Immovables) ...
2.-Articles 415, 416, 417, 418, 419
(Accession)........................
3.- Article 980 (Descendants).......
See WnIs 2.
4.-Articles 1058, 1054 (Quasi-Offences..........
CIVIL CODE-Concluded
5.-Article 1478 (Promise of sale)... 164 6.-Article 1487 (Sale of things not belonging to the vendor) .......... 7.- Articles 1520, 1522, 1527 (Warranty)............................. See AuTomoniLE 3.
CODE OF CIVIL PROCEDURE- 1.-Article 509 (Decision in law upon facts admitted)...................... CONSTITUTIONAL LAW-Real Property-Ownership of Sand and Gravel-Whether reservation in Certificate of Title of mines, minerals and valuable stone, includes sand and gravel-The Land Titles Act, R.S.A., 1942, c. 205, s. 68.
Constitutional Law- Validity of The Sand and Gravel Act, S. of A., 1951, c. 77-Applicability to pending action. The appellant, Western Minerals Limited, held a certificate of title as the registered owner in fee simple under The Land Titles Act, R.S.A., 1942, c. 205, and amendments thereto, of all mines, minerals, petroleum, gas, coal and valuable stone in or under two certain quarter sections of land which the respondents Gaumont and Brown were the respective owners under the Act of the surface rights. The appellant Western Leaseholds Limited, was lessee from its co-appellant.
Both appellants sued for a declaration that they were the registered and equitable owners of all minerals and/or valuable stone including the sand and gravel within, upon or under the said lands and for certain other relief. The actions were consolidated and tried together and judgment was given in favour of the appellants.
Following the filing of notice of appeal by the respondents, The Sand and Gravel Act, S. of A., 1951, c. 77, came into force providing that as to all lands in the Province the owner of the surface of land is and shall be deemed at all times to have been the owner of and entitled to all sand and gravel on the surface of that land and obtained or otherwise recovered by surface operations. By order of the Appellate Division, Gaumont and Brown were permitted to raise the terms of the Statute as a further ground of appeal. The Appeal Court allowed the appeal and dismissed the plaintiffs' action.
On to this Court. Held: 1.-That the appeal should be dismissed.
Per Kerwin, Taschereau, Rand, Kellock, Estey and Cartwright, JJ.: appellants failed to establish that "mines, minerals, petroleum, gas, coal and valuable stone" in their Certificate of Title should be construed as including sand and gravel.
Per Locke, J.-Apart from the provisions of The Sand and Gravel CONSTITUTIONAL LAW-Concluded
Act, the only question to be determined was the meaning of the language employed in the certificate of title by reason of s. 62 of The Land Titles Act (R.S.A. 1942, c. 205) and on the proper construction of that instrument, sand and gravel were included.
The appellants should, therefore, have their costs of the trial. 2. Per
Curiam-That The Sand and Gravel Act is intra vires of the Provincial Legislature and is declaratory of what is and has always been the law of Alberta, and so applied to the present litigation and is fatal to the appellants' claim.
v. et al..............
CONTEMPT-Contempt of Court-Disobedience to ex parte labour injunction- Proceedings pursued by Court of own motion
Criminal or Civil contempt- Whether right of appeal. On a motion to commit the appellants for disobedience to an ex parte injunction obtained by a steamship company restraining a labour union and its representatives from picketing a certain vessel, the trial judge, when informed by the parties that they had settled their differences and wished to discontinue the motion, proceeded ex mero motu to find on the evidence that the appellants had been guilty of contempt.
This finding was upheld by a majority in the
Court of Appeal for British Columbia.
There was evidence to warrant the finding of contempt and there was no substance to the objections raised as to the granting of the injunction, the jurisdiction of the trial judge and the procedure adopted by him.
Per Rinfret C.J., Rand and Kellock JJ.:
The large numbers of men involved and the public nature of the defiance of the injunction rendered the conduct in question contempt of Court criminal in character.
Consequently no appeal lay to the Court of
Appeal. POJE G.
CONTRACT- Insurance - Sale of Goods-Indemnity against liability imposed by law caused by accident arising out of condition in vendor's product after possession passed to another-Defective glue causing damage to vendee's product-Whether defect an accident-Whether liability assumed b agreement or imposed by law-Sale of
The respondent sold and delivered a quantity of glue to a lumber company to be used in the manufacture of. plywood.
Owing to the respondent's ignorance that its testing appliance was out of order, the glue supplied was defective and as a result the lumber company sustained damages, which the respondent paid. It then brought this action against the appellant upon a business liability insurance policy to recover the amount of such damages. Before this
Court the only claim advanced was upon
CONTRACT-Continued
Endorsement 10(1) whereby the insurer undertook "To indemnify the Insured against the liability imposed by law upon the Insured for damage to or destruction of property of others caused by accident during the policy period and arising out of the handling or use by or the existence of any condition in merchandise products or containers manufactured, sold, or handled by the Insured after the Insured has relinquished possession of such merchandise products or containers to others and away from the premises owned by, leased to or controled by the Insured." By Exception A to this endorsement it was provided that the policy should not cover
"Damage to or destruction of property where the Insured has assumed liability therefor under the terms of any contract or agreement."
Under Endorsement 11(1) the insurer undertook "to pay on behalf of the Insured all sums which the Insured shall be obligated to pay by reason of the liability imposed by law upon the Insured or by written contract for damage to or destruction of property of others of any or every description not hereinafter excepted, resulting solely and directly from an accident due to the operations of the Insured as stated in the said Policy . . . ." Held: Reversing the judgment of the Court of Appeal for British Columbia and restoring that of the trial judge, that the action should be dismissed. Per: Kerwin and Estey JJ.: (1) The defective condition of the glue was unsuspected and undesired and therefore there was an "accident" which caused damage to the "property of others";
(2) it was not necessary that such accident should occur "after the Insured had relinquished possession of such merchandise products . . . . to others and away from the premises owned . . . . by the Insured" but it was sufficient if the damage should so arise. So held upon the construction of the endorsement but, in any event, being capable of that construction, the endorsement must be construed contra proferentem; (3) by s. 21 of the Sale of Goods Act, R.S.B.C. 1948, c. 294, there is an implied condition in certain circumstances as to the quality or fitness for any particular purpose of goods supplied under a contract of sale. Within the terms of Exception A to Endorsement
10(1)
assumed liability for the damage under the terms of the contract between it and the lumber company, particularly in view of the fact that Endorsement 11(1) includes both liability imposed by law and that imposed by written contract. The implied condition under the Sale of Goods Act is as much a term of the contract as if it had been expressly stated therein; (4) in view of Exception A it is unnecessary to consider whether the rule in Donoghue v. Stevenson 11932] A.C. 562, and Grant v Australian Knitting Mills Limited ]1936] CONTRACT-Continued
A.C. 85, applied between the immediate parties to a contract so as to raise the contention that the lumber company had a cause action against the respondent as well in tort as in contract. Per: Rand J.:
(1) There was no accident and in any event none occurred after the respondent had parted with possession of the glue;
(2) the phrase "liability imposed by law"
in Endorsement does not include liability arising under contract.
This put beyond controversy by the inclusion in Endorsement of liability "imposed by law . . . . or by written contract";
under the rule in Donoghue v. Stevenson the duty of care by the respondent in the manufacture of the glue extended to the immediate purchaser, the lumber company;
but (4) that duty did not arise out of a contract, notwithstanding 21 of the
Sale of Goods Act. Per: Kellock J.: The damage for which indemnity was given
Endorsement 10(1) was not damage arising after the respondent had relinquished possession of the glue but damage caused by the accident so arising, and the respondent failed to show any accident within the meaning of the Endorsement. Cartwright J.
concurred with those parts of the reasons of Kerwin and Rand JJ. which held that any possible liability was excluded by the terms of Exception to Endorsement
10(1).
ANDREWS..........................
2.- Specific performance - Sale of oil leases-Correspondence-Interviews-Whether agreement reached. In an action taken by the respondent for specific performance of a contract to sell and assign certain oil leases, the trial judge and the Court of Appeal for Alberta found that the parties had come to an agreement and that the Statute of Frauds had been complied with. Held (allowing the appeal and dismissing the action), that the respondent had failed to establish that a contract had been concluded between the parties.
The whole of the correspondence, interviews and conduct the parties showed that they had not agreed upon the terms of a contract and that the respondent , up to the conclusion of the negotiations, was still trying to obtain terms more satisfactory to himself.
Contract - Agreement construct machine-Work not completed-Abandonment of Contract-Right to recover.
defendant, a mechanical engineer, contracted with the plaintiff, a manufacturer of soap, to construct in the plaintiff's plant a machine for making and drying soap chips for a price of $9,800, payable
$4,000 in cash on completion and the balance to be secured by promissory notes.
When the work was nearly completed the defendant, who had been paid $1000 account, refused to do anything more
CONTRACT-Concluded until paid a further $3,000.
the view the evidence most favourable to the defendant, he deliberately abandoned the contract at a stage when the machine would not perform the work for which had been ordered and when what remained to be done required the exercise of engineering skill and knowledge.
Under such circumstances it could not be said that he had substantially completed his contract. Appelby v. Myers L.R. C.P. 651; Sumpter v. Hedges 1 Q.B. 673 at 674; Dakin v. Lee 1 K.B. 566, applied. Decision of the Court of Appeal for Ontario O.R. 860, reversed.
v. SHEPPARD...................... 4.- Vendor and Purchaser-Agreement for sale and exchange of property-Escape clause-No time mentioned- Possession exchanged-Whether withdrawal from agreement permitted-Homesteads-Dower Act, S. of 1948, 7-Whether requirements complied with-Whether agreement void- Estoppel........................... Criminal law -Murder-Drunkenness-Reasonable doubt capacity form specific intent-Objections to charge of trial judge. jury found the appellant guilty of murder with "the strongest recommendation for mercy". His appeal, mainly on grounds of misdirections on the issue of drunkenness which he raised at the trial, was dismissed by the Supreme Court of New Brunswick, Appeal Division, on the ground that, though some of the involved directions might have been objectionable or that the principles could have been more clearly worded, the evidence supported no finding other than that murder and that, in any event, no substantial wrong or miscarriage had occurred. Held (Rinfret C.J. and Locke J. dissenting): That the appeal should be allowed and a new trial ordered. instructions given to the jury were confusing, incomplete, illegal and were not corrected.
The appellant was not bound to prove beyond a reasonable doubt that drunkenness had produced a condition such as did render his mind incapable forming the pertinent specific intent essential to constitute the crime of murder. Furthermore, the jury should have been clearly instructed that the accused should only be found guilty of manslaughter if, in their view, the evidence indicated such incapacity or left them in doubt as to the matter. (Latour v. The King S.C.R. referred to). On the evidence, it cannot be safely asserted that the jury, properly instructed and acting honestly and reasonably might not have found itself in doubt as to the accused's incapacity, on account of drunkenness, to form the specific intent to murder.
The length of the jury's deliberation coupled with the fact that they CRIMINAL LAW-Continued came back for further instructions as to the effect of intoxication, support the view that drunkenness was at least considered and support the conclusion that it is impossible to say that the verdict would have necessarily been the same had they been properly instructed that any reasonable doubt had to be given to the accused)
There was substantial wrong or miscarriage.
Rinfret C.J. and Locke J. (dissenting)
agreed with the unanimous judgment of the Appeal Division of the Supreme Court of New Brunswick, and would have dismissed the appeal. v. THE QUEEN
.....................
2.- Common bettinghouse-Summary trial under Part XVI- Motion for non-suit-Criminal Code, as. 229,
778(f), 777(a), 1013(4), The appellants were jointly charged with having kept a common betting-house and were tried summarily before a magistrate pursuant to ss. 773(f) and 777(a) of the Criminal
Code. On a motion for non-suit, made at the close of the case for the Crown, the charge was dismissed as against all four accused. Pursuant to s. 1013(4) of the
Code, the Crown appealed the acquittal on the ground that there was evidence to support the case against the accused and the Court of Appeal for Ontario ordered a new trial. Held: (1) The appeal of the appellant Feeley should be dismissed;
there was evidence which, if accepted, showed circumstances from which the inference might fairly be drawn that the building in question was being used as a common betting-house; and the evidence as to the statements made by this appellant and as to his actions was such that, in the absence of explanation or denial, the tribunal of fact might properly have decided that he was guilty of being the keeper of such betting-house.
(2): The appeals of the appellants Reid, Hergel and Meechan should be allowed and a judgment of acquittal entered, there being no evidence on which a properly instructed jury, acting reasonably, could have found a verdict of guilty.
Held also, that the rules laid down in The King v. Morabito
S.C.R. 172 (i) that the judicial officer presiding at the trial of a criminal charge can not dismiss the charge at the close of the case for the Crown and before the defence has elected whether or not to give evidence unless at that stage there is no evidence upon which a jury might convict, and (ii) that whether or not there is such evidence is a question of law alone, are applicable to the conduct of a trial under Part XVI of the Criminal Code.
v. THE QUEEN.............
Theft - Evidence - Testimony of accomplice-Corroboration- Corroborative inference is question of fact- Criminal Code, s. 1025. Applying Rex v.
CRIMINAL LAW-Continued
Baskerville [1916] 2 K.B. 658, it was held that, on a charge of theft, the jury were rightly told that the evidence as to a certain cheque was capable of being corroborative of the testimony of the accomplice who was the main witness against the appellant.
Applying Hubin v. The King [1927] S.C.R. 442, it was also held that the jury should have been told that it was for them to decide if it was in fact corroborative. As it was impossible to state that no substantial wrong or miscarriage had occurred, the appeal was allowed and a new trial directed. v. ..... 4.-Criminal law - Murder - Extrajudicial admissions-Whether jury need be warned of danger of convicting solely on confession-Sufficiency of charge-Whether defence theory adequately put to the jury. On the strength of his three self incriminating declarations, the appellant was charged with a murder which had remained unsolved for more than two years. Two of his admissions were made verbally to friends of his and the third was contained in a statement to the police in his own handwriting and accepted by the Court as having been given freely and voluntarily. The appellant did not give evidence before the jury and the theory of the defence was that although he had in fact made the statements they were untrue. His conviction was affirmed by the Court of Appeal for Ontario.
Two questions of law were submitted on appeal to this Court. namely whether the jury had been adequately instructed as to the theory of the defence and whether they should have been warned as to the danger of convicting when the only evidence connecting the accused with the crime was his unsworn extra-judicial admissions. Held (Cartwright J. dissenting) that the appeal should be dismissed. Per Rinfret C.J., Rand, Kellock, Estey, Locke and Fauteux JJ.: There was no legal duty for the trial judge to warn the jury of the danger of convicting the appellant of murder even if, in their view, the only evidence to connect him with the crime consisted of his unsworn extra-judicial admissions. There was in fact independent evidence tending to support the accused's admissions of having participated in the commission of the murder; the jury were adequately instructed as to the theory of the defence, namely, that the admissions were untrue, and of the numerous points which, in the appellant's submission, should have been brought to their attention, some were actually submitted to them by the trial judge and those which were not had either no foundation on the evidence or if they had, were denuded of any real significance in the test of the truthfulness of the material admission. The allotment of any substance to an argument or of any value to a grievance resting on the omission of the trial judge from mentioning such argument CRIMINAL LAW-Continued must be conditioned on the existence in the record of some evidence or matter apt to convey a sense of reality in the argument and in the grievance. Per Cartwright J.
(dissenting): The authorities cited by the appellant do not formulate a rule of law that, in cases in which the only evidence to connect one accused of murder with the crime consists of his unsworn extrajudicial admissions, the trial judge must warn the jury that it is dangerous to convict. It was, however, the duty of the trial judge to impress upon the jury the necessity of testing the truth of the admissions made by the accused by an examination of the other facts proved, and to call their attention to the circumstances mainly relied upon by the defence as tending to cast doubt upon the truth of the admissions, and this duty he failed to perform.
QUEEN....................
Habitual Criminal an offence within meaning of the
Criminal Code-Whether right of election extends to such an allegation-Criminal Code ss. 575B, 575C, Part X (A).
An accused charged with breaking and entering elected for speedy trial under Part XVIII of the
Thereafter the Crown served notice under s. 5750 (4) (b) that at the trial he would "be charged with being a habitual criminal."
Following his conviction on the 1st charge the trial judge without giving him a further opportunity to elect, proceeded to inquire and found him to be a habitual criminal and sentenced him to a term of five years on the 1st charge, and directed that as a habitual criminal he be detained in prison, as provided by s. 575B, for an indefinite period.
The accused appealed from the sentence imposed on the charge of being a habitual criminal, on the ground that it was a charge of a criminal offence on which he had a right of election which had not been granted him and in the alternative, that if such a charge was not a charge of a criminal offence it so materially affected the punishment which might be imposed that he was entitled notice of the habitual criminal proceedings before being called upon to elect as to the mode of trial on the substantive offence.
The appeal was dismissed by the Court of Appeal,
O'Halloran J.A. dissenting.
Held: 1. By the majority of the Court (Locke and Cartwright JJ. expressing no opinion) that the allegation of being a habitual criminal is not an offence within the meaning of the
Criminal Code. Rex. v. Hunter [1921] 1 K.B.
555, followed. 2. (Cartwright J. dissenting):
That the right of election restricted by
Part XVIII to certain indictable offences, does not extend to such an allegation.
Per: Estey J. Part XVIII restricts the right to an election to certain indictable offences. The addition of a charge of being a habitual criminal, after the required
CRIMINAL LAW-Continued notice, does not become a part of the offence or crime charged in the indictment. There is therefore, no right within the meaning of the provisions of the said Part, to a further election upon the crime as charged when a charge of being a habitual criminal is added to the indictment. Rex v. Robinson [1951] S.C.R. 522, aistinguished. Locke J.-Whether the charge laid under Part X (A) is of a criminal offence or merely the first step in an enquiry as to the accused's status or condition, as suggested in Hunter's case, no question of right of election arises.
The very terms of Part X(A) exclude the provisions relating to election contained in Part XVIII. Fauteux J.-Rex v. Robinson has no application. The whole matter being one of sentence, as was decided in Hunter's case, is one beyond the field of election which is strictly related to the trial of an indictable offence as to which the right of election is given and has nothing to do with sentence. Per: Cartwright J., dissenting-It is not necessary to determine whether a charge of being a habitual criminal under Part X(A) is a charge of a criminal offence.
On the hypothesis that it is not, its addition to the charge sheet had the effect of changing the charge upon which the accused made his election to one different in substance, with the result that the appellant never elected to be tried on the charge on which he was tried. Rex v. Armitage O.R. 417, applied. No notice was conveyed to the appellant that if he elected trial by a judge on the first charge he would at the same time be giving up his right to have a jury determine the question whether or not he was a habitual criminal. BRusCn v. THE 373 Murder- -Charge of trial judge-Whether defence theory adequately put to jury-Reduction from murder to manslaughter-Criminal Code, 1024 At his second trial for murder, ordered by this Court [1951] S.C.R. 115, the appellant was again found guilty.
The crime was committed in June, 1947.
The deceased was returning home from the City of Quebec in a taxicab driven by the appellant. He was in the back seat with two other passengers, one Vallibres and one Lgar6. Another passenger was in the front seat. There was some beer drinking during the ride and at one time, the deceased, who had become noisy and quarrelsome, threatened strike Lgar6 with a bottle. The car was stopped; the appellant and the three rear passengers got out; the deceased was then hit with a bottle by both Vallibres and L6gar6 and when he was on the ground and unconscious, the appellant struck him with his fists and feet.
He was then put on the floor of the car where he remained without making a sound, except for one prolonged sigh, until the appellant, with or without the help of Vallibres and CRIMINAL LAW-Concluded
Ldgar6, is alleged to have thrown him in a river.
The theory of the Crown was that the deceased died as a result of the blows struck during the fighting and not by drowning. The appellant's conviction was affirmed by a majority in the Court of
Appeal for Quebec. Held: The trial judge, by omitting to review that part of the evidence which showed that the deceased could have died before he was thrown in the river, left the jury with the impression that the deceased died by drowning rather than as the result of the blows.
The theory of the defence was, therefore, not adequately put to the jury and the conviction should be quashed.
further: Under the exceptional circumstances of this case, and specially in view of the theory on which the case for the
Crown was based, a verdict of manslaughter should be substituted for the jury's verdict.
Criminal
Priest allowed to hear confession of jury during trial-Whether violation of s. 945 of Criminal Code...................
Drift logs in rivers mens rea ingredient of offence under s. 394 (b) of the Criminal Code- Alleged custom or practice of paying salvage.
The appellants, acquitted by the trial judge, were convicted by a majority in the Court of Appeal under s. 394 (b) of the Criminal Code for having refused to deliver up to the owners certain saw-logs which had been found adrift in a river in
British Columbia.
Held: The appeal should be allowed and the trial judgment restored.
Per: Taschereau, Rand and
Fauteux JJ.-There was an implied understanding between the appellants and the owners of the logs salvaged whereby the former were entitled to assume that they would be paid for services upon delivery of the logs and, under such circumstances, the appellants were not within s. 394 (b) of the Code. Per: Kellock J.-Considering s. 394 (b) with s. 999(2) of the Code, the appellants had lawfully taken possession of the logs on the implied basis that the owners were in accordance with past practice willing remunerate them.
Therefore no offence was disclosed. Per:
Estey and Cartwright JJ.-Mens rea is an essential ingredient of the offence created by s. 394 (b) of the Code and, in the view of the practice between the owners of these logs and the appellants, its existence was not established. Locke J.
agreed with Robertson J.A. that there was at the time an outstanding offer by the owners of these logs to pay the beachcombers for the salvaged logs, that the appellants were doing what they thought they had a right to do and that therefore there was no Mens rea.
v. TE
CROWN- Crown - Collision at sea tween foreign merchant ship and Canadian warship-Negligence in navigation-Application of s. 19 (c) of the Exchequer Court Act, R.S.C. 1927, c. 84-Governing law- Whether effective in circumstances-Whether Crown entitled to limitation of damages under s. 649 of the Canada Shipping Act, 1984. Action for damages resulting from a collision in the Irish Sea in February, 1945, between a foreign merchant ship and a Canadian warship on her way to take over escort duty for a convoy. The vessels were on crossing courses and the merchant ship was struck on her port bow. For the purpose of this case counsel for the appellant admitted that s. 1 (c) of the Exchequer Court Act was not restricted to claims based on negligence occurring within Canada. Held: That the warship was solely to blame for the collision and for the loss of the merchant ship. That at the time of the collision the warship was not engaged in warlike operations in a theatre of war so as to take it out of the operation of 19(c)
and 50A of the Exchequer Court Act.
Notwithstanding 712 the Canada Shipping Act, 1984, the Crown is entitled to limit its liability under 649 of that Act if it able to show that the damage or loss occurred without its actual fault or privity: (Locke J. dissenting).
Per Rinfret C.J. and Rand J.: The sources of law imposing regulations on merchant vessels and on naval ships are different; but the rules originating in the uniform practices of navigators for centuries have been uni-* versally followed and have become the de facto international or maritime rules the high seas. Per Kerwin and Estey JJ.: That the International Rules of the Road, as established by Canadian Order in Council P.C. 259, dated February 9, and those contained in the King's Regulations
Admiralty
Instructions (as amended to November 1943) and incorporated in the Naval Service Act (R.S.C. 1927, c. 139, s. 45(1); were the governing rules to be applied under ss. 19(c) and 50A of the Exchequer Court Act in the present case. Per Locke J.: The International rules of the Road, not being by their terms made applicable to the Crown, did not apply.
The fact, however, that that portion of the rules governing the conduct of vessels proceeding on crossing courses has been almost universally adopted by ships of seafaring nations and that an identical rule forms part of the King's Regulations and Admiralty Instructions affords evidence from which the inference may properly be drawn that failing to comply with it is negligent conduct. addition there was evidence justifying the finding that there had been no proper lookout kept on the naval vessel. Locke J. (dissenting in part): The Crown is not entitled to limit the amount of its liability under 649 of the Canada Shipping Act, 1934, since such limitation of the CROWN-Concluded liability of His Majesty qua owner excluded by 712 that Act. Furthermore, the principle that the Crown may invoke the benefit of any statute, though not named in it, has no application where as here the matter has been dealt with
Parliament.
Motorcyclist colliding with disabled trailer at night- Flares extinguished and not placed at distance required Statute-Failure to repair moved trailer-Damages-Deceased illegitimate-Whether award is reasonable proportion to loss-Public Service Vehicles Act,
R.S.A. 276-Fatal Accidents Act,
R.S.A. 1942, 125-Trustee Act, R.S.A.
1942, c.215........................
Fatal
Basis of entitlement-Reasonable expectation deriving pecuniary benefits from deceased's remaining alive-Remedy not barred because amount of loss incapable of precise ascertainment-The Fatal Accidents Act, R.S.O.
1950, 132. In an action before a judge and jury, two motorists were found liable under The Fatal Accidents Act, R.S.O. 1950, for causing the death at the age of
55 years of a prosperous farmer and dairy operator.
By consent of the parties the damages were assessed by the trial judge.
The evidence was that at the date death the deceased was in good health and that his life expectancy was 22.30 years and for the period of his life expectancy the present value of his annual savings was some $58,000, and his average annual increase in net worth some $81,000. The deceased's will conferred substantial benefits out the residue on the children hereinafter mentioned but, the net estate, although substantial, was exhausted specific devises and bequests so that they received nothing. The trial judge assessed the damages under the Act at $28,250 which he apportioned as follows: funeral expenses $250; to the widow $9,000; to a married daughter aged 30, $2,000;
two sons aged 28 and 22 respectively,
$4,000 each, and to a third son aged 20,
$6,000.
The first two items were not questioned by the Court Appeal but varied the judgment at trial by reducing the damages awarded the youngest son to
$2,000 and setting aside in toto the awards to the other children. Held: 1. To entitle a claimant to damages under The Fatal
Accidents Act, it is sufficient if it shown that the claimant had a reasonable expects tion of deriving pecuniary advantage from the deceased's remaining alive which has been disappointed by his death.
In the case at bar the chance of the claimants receiving benefits from their father's estate was not a matter of law too remote to be regarded as a reasonable expectation. Pym
DAMAGES-Concluded v. Great Northern Ry. 2 B. & 759; Goodwin v. Michigan Central Ry. Co., 29 O.L.R. 422, followed.
The trial judge was right in deciding that the claimants had a reasonable expectation receiving substantial benefits from their father's estate had he lived and should not be denied a remedy because the amount their loss was incapable of precise ascertainment. 3. There was nothing to indicate that the trial judge in fixing the amounts to be awarded the claimants had applied any wrong principle of law, or that the amounts he awarded were so inordinately high as to be wholly erroneous estimates of the damage and they should therefore stand.
Nance v. B.C. Electric Ry. Co. A.C. applied. Decision of The Court of Appeal O.R. 95 reversed and judgment of the trial judge restored. v. DYcK.................. DELEGATION- Municipal Corporation -Validity of By-law-Whether delegation powers of Municipality to City Clerk-The Factory, Shop and Building Act, R.S.O. 1937, 194 as amended......... DOWER- Homesteads - Dower Act - "Oil and Gas Mining Lease"-Whether a "contract for the sale of property" within meaning of the Act-When wife deemed to have consented to sale.
By an instrument in writing, designated as an "oil and gas mining lease", the owner of a homestead Alberta comprising a quarter section of land, leased the same to the appellant for the purpose of drilling and operating for oil and gas for a term of ten years. The owner's wife with full knowledge of the contents of the instrument and without any compulsion by her husband, signed a consent thereto and acknowledged such consent in the presence and not, as required by 7(1), of The Dower Act, R.S.A. 1942, 206, apart from her husband. Subsequently the owner entered into an oil and natural gas lease with other parties as to the same land on more advantageous terms and undertook to commence proceedings to rid the title of the lease granted to the appellant on the ground alleged non-compliance with the provisions of The Dower Act.
Held: (Kerwin J. dissenting) that the instrument was a good, valid and subsisting "contract for the sale of property".
Joggins, Coal Co. Ltd. v. The Minister of Natioanl Revenue S.C.R. 470 applying Gowan v. Christie L.R. 2 & Div. 273 at 284; Re Aldam's Settled Estate 2 Ch. 46.
construed with respect to the minerals as land, as in Gowan's case, or as a demise the surface to which is super-added a profit a prendre, the result was the same. It provided for the sale of property and, under 9(1)
The Dower Act, there being an absence fraud on the part DOWER-Concluded the purchaser, the wife was "deemed" to have consented to the sale "in accordance with the provision of this Act."
should apply in a manner other than to the homestead as a whole and used language sufficiently comprehensive include, not only a portion of its acreage, but also some interest in the land or soil constituting the homestead. The words
"a contract for the sale of property" in s. 9(1)
are sufficiently comprehensive to include contracts for the sale of property generally and to include one such as here where it was not contemplated that a transfer under The Land Titles Act would be issued.
The provisions of the lease in question constituted a sale of a profit 4 prendre, or an interest in land, and notwithstanding the consent was not acknowledged apart from the husband, a valid "contract for the sale of property" by virtue of s. 9(1).
Per: Kerwin (dissenting).
was unnecessary to determine whether the document in question was a sale of the oil and gas which might be found, or merely a lease with a grant of a profit d prendre and Lord Cairn's remarks in Gowan v.
Christie, supra, as to the nature of a mining lease, approved in Coltness Iron Co. v.
Black 6 A.C. 315 at 335 and applied in the
Joggins Coal Co. case supra, are irrelevant.
If it was a sale, then it was not a "contract", and if it was a lease, then while it might be a contract, it was not one for sale. The document was not such a one as was envisaged by the Legislature in enacting s. 9(1) and not within its terms.
2.- Vendor and Purchaser - Agreement for sale and exchange of property-Escape clause-No time mentioned-Possession exchanged-Whether withdrawal from agreement permitted-Homesteads-Dower Act
S. of A. 1948, c. 7-Whether requirements complied with-Whether agreement void- E stoppel...........................
See PURCHASER.
EASEMENT- Easement - Right of Way
-Grant silent as to dominant tenement, location and termini of wa?, nature and extent of rights conveyed-Evidence admissible for purpose of construing grant.
Circumstances existing at the time of a grant may be looked at, not only for the purpose of ascertaining the intention of the parties as to the dominant tenement, and as to the location and termini of a right of way granted, but also for the purpose of construing the conveyance as to the nature and extent of the rights conveyed. Waterpark v. Fennell 7 H.L.C. 650 at 678, 683;
Cannon v. Villars 8 Ch. D. 415; Pette v.
Parsons [1914] 2 Ch. 653 at 667; Canada
EASEMENT-Concluded
Cement Co. v. FitzGerald 53 Can. S.C.R. 263; White v. Grand Hotel [1913] Ch. 118; Todrick v. Western National Omnibus Co. [1934] 1 Ch. 191 at 206; Robinson v. Bailey [1948] 2 All E.R. 791 at 795. S owned two adjacent farms A and B. Lake Simcoe bounded A on the west and B bounded it on the east.
S subdivided A into lots. Lot 33 adjointed B and lot 17 had served as a lane whereby access was gained to the lake from 5 by passing along a line on B over lot 83 to lot 17.
S sold farm B and purport6d to grant a "perpetual right of way" over lot 33 to the purchaser "his heirs, executors and assigns" to be binding on S his "heirs, executors and assigns". B and lot 17 were later sold en bloc and the successor in title to this land subdivided B laying out a road on the site of the old farm lane and, in selling lots, purported to convey a right of way over lot 33. Held: On the construction of the grant in the light of the authorities that 1. The dominant tenement intended by the parties was the farm B and not lot 17.
2. The existence of the farm lane over lot 33 between the gates on the farm and lot 17 and the nonuser in connection with the farm of any other part of lot 33 indicated that the way granted was over the existing farm lane and the width of the way was limited to the width of the farm gate for the purpose of access from the farm gate to the gate on eastern boundary of lot 17. As it could not be said it was within the contemplation of the parties that the farm would always remain a farm, there was nothing to restrict the plain words of the grant to the use being made of the farm lane at that time, and further, that upon the severance of the dominant tenement into several parts, the easement attached to those parts. Codling v. Johnson 9 B. & C. 934; Newcomen v. Coulson 5 Ch. D. 141.
Judgment of the Court of Appeal for Ontario [1951] O.R. 504, reversed in part. v. 49 EVIDENCE- Criminal law- Theft-Evidence - Testimony of accomplice - Corroboration - Corroborative inference is question of fact- Criminal Code, s. 1025....... 2.- Physicians and Surgeons - Negligence - Evidence - Sponge lodging in patient's windpipe-Applicability of Res ipsa loquitur rule .......................
See PHYSICIANS FRAUD- Fraud - Undue Influence - Agreement for sale-Excessive price demanded by Purchaser to release Vendor- Unconscionable Bargain-Relationship of Parties-----------...........
Homesteads - Dower Act
-"Oil and Gas Mining Lease"-Whether a
"contract for the sale of property" within meaning of the Act-When wife deemed to have consented to sale................
IMMOVABLES- Immovable - Removal of building and incorporation with another- Notice of ownership-Promise of sale- Conditional-Tradition and actual possession
-Payment of purchase price-Whether Art.
416 C.C. applies-Meaning and scope of word "materials" in Art. 416 C:C-Arts.
376, 415, 416, 417, 418, 419, 1478, 1487
C.C.
The respondent agreed to sell to R under promise of sale, accompanied by tradition and actual possession, a certain lot with the buildings thereon.
The purchase price was to be paid in two instalments. There was an absolute prohibition to register the promise, and it was further stipulated that the deed of sale would not be signed until payment of the whole purchase price and that the respondent would not be obliged to avail himself of the clause which provided for the nullity of the promise for non-compliance of all the conditions thereof.
Before the first instalment on the purchase price had become due, R sold a house and shed of the buildings thereon to the appellant who, as stipulated between the latter and R, removed them to his own land where he united the house with a second building which he had purchased, and after alterations and improvements of the whole made his residence.
The respondent registered a notice of ownership of the building against the appellant's land. The latter took action to have the notice radiated. The trial judge maintained the action on the ground that, by virtue of Art. 1478 C.C., R had become the owner of the building and could, therefore, give title to the Appellant. The
Court of Appeal for Quebec reversed that judgment. Held (Taschereau and Fauteux
JJ. (dissenting)
), that the appeal should be allowed.
Held: The promise of sale given by the respondent, although accompanied by tradition and actual possession, was not in this case equivalent to a sale
(Rinfret C.J. contra and Rand J. expressing no opinion). Per Rinfret C J : The promise of sale was not dependent on any conditions which prevented the application of Art.
1478 C.C.
The respondent was not any more the owner at the time of the sale to the appellant.
Besides the fact that the respondent was not obliged to avail himself of the clause providing for the nullity of the promise, the sale of the appellant was made before any payment had become due to the respondent. There existed, therefore, at that time no condition to be discharged and the nullity clause could not operate.
There was no suspensive condition attached to the promise. What was suspended until the last payment was not the transfer of property but the signing of the deed.
A finding of good faith is a question of fact
IMMOVABLES-Continued and, in view of the trial judge's finding that the appellant was in good faith when he purchased from R there was no justification here to set aside such finding. In this case, the improvements made by the appellant were so extensive that they greatly exceeded the value of the building purchased from R and the respondent could not pretend that he was still the owner by application of Arts. 418 and 419 C.C. Per Rand J.: Assuming that ownership did not pass to the purchaser from the respondent, the inseverable incorporation of the structure in his house and land gave the appellant, by virtue of Art. 416 C.C. which embodies the general rule of accession, title thereto: the respondent has, therefore, no interest in the appellant's land which could be protected by registration. Per Estey J.: The terms contained in the promise of sale do not permit of its being classified as a sale within the meaning of Art. 1478 C.C. But by virtue of the law of accession, the appellant became the owner of the house and shed. The act of accession determines the question of ownership and if that act comes, as it did here, within the terms of Art. 416 C.C., the owner of the materials can only recover their value or damages. The construction of the word "materials" in Art. 416 C.C should not be restricted to the word "movables".
As ordinarily used and understood in such a context, the word includes everything movable or immovable, necessary or incidental to the completion of the buildings or works.
The word is used here in a broad and comprehensive sense which would include the attachment or incorporation of a small building with a larger one, when the latter is attached to the land. The question of good or bad faith does not affect the appellant's title but may be important in fixing compensation.
Per Taschereau and Fauteux J. (dissenting)
: By the terms of the promise of sale, the transfer of property was suspended until all the payments on the purchase price had been made. The seller to the appellant did not have the ownership and that sale, therefore, was null as being the sale of a thing which did not belong to the seller (Art. 1487 C.C.).
There is a presumption juris et de jure that the appellant was not in good faith, and even if it could be said that he was, his good faith could not validate his purchase as against The appellant cannot invoke the provisions of Art. 416 C.C. The word "materials" in that article must be taken in its usual sense; it does not include immovables but only those movables which can be classified as materials.
It is only by the incorporation to an immovable that the materials lose their nature of movable to acquire that of the immovable. The.respondent's house, after its removal to the appellant's land, did not constitute "materials". Moreover, that building was IMMOVABLES-Concluded clearly an immovable by nature before it was moved (Art. 376 C.C.) and its severance and re-attachment to the soil of the appellant did not affect or change its immoable character. As a privilege or hypothec can be registered against a building without affecting the land, the respondent could, as he did, validly protect his ownership by registration. v.
tax-Profit from resale of real estate individual-Whether income or capital gain realization or change of investment-Whether carrying on business-In- War Tax Act, R.S.C. 1927, 97,
3(1)-Practice-Appeal from Income Tax
Appeal Board a trial novo...........
Whether payment received was gift or remuneration- Income War Tax Act, R.S.C. 1927, 97,
8(1), (4) as amended.............
Mutual Insurance Company-Surplus arising from transactions with members transferred to reserve fund-Whether assessable- Income War Tax Act, R.S.C. 1927, 94, ss. 3(1), 6(1) (d)-New Brunswick Companies Act, R.S.N.B., 1927, 88, Part II,- Insurance Act, 1937 (N.B.), 44, ss. 2(40),
(48), 249, The Winding-Up Act, R.S.N.B.,
1927, 97........................
INSURANCE- Insurance - Sale of Goods-Indemnity against liability imposed law caused accident arising out of condition in vendor's product after possession passed to another-Defective glue causing damage to vendee's product-Whether defect an accident-Whether liability assumed agreement or imposed law-Sale
Act, R.S.B.C., 1948, 294, 21,
58 ................................
2.-- Mutual Insurance Company-Surplus arising from transactions with members transferred to reserve fund-Whether assessable- Income War Tax Act, R.S.C. 1927, 94, as. 3(1), 6(1) (d)-New Brunswick Companies Act, R.S.N.B., 1927, 58, Part II,- Insurance Act, 1937 (N.B.), 44, ss. 2(40),
(48), 249, The Winding-Up Act, R.S.N.B.,
1927, 97.........................
JUDGMENT- Judgments - Merger - Sale of goods-Prior action against three partners - Joint liability - Default judgment against one-Discontinuance as to other two-New action against the two and another-Order setting default judgment
JUDGMENT-Concluded aside-Whether merger-Rule 113 of the Supreme Court of Alberta ............
LABOUR- Contempt of Court - Disobedience ex parte labour injunction-Proceedings pursued Court of own motion- Criminal or Civil contempt- Whether right of appeal. On a motion to commit the appellants for disobedience to an ex parte injunction obtained by a steamship company restraining a labour union and its representatives from picketing a certain vessel, the trial judge, when informed by the parties that they had settled their differences and wished to discontinue the motion, proceeded ex mero motu to find on the evidence that the appellants had been guilty contempt. This finding was upheld by a majority the Court Appeal for British Columbia. Held: The appeal should be dismissed.
There was evidence to warrant the finding of contempt and there was no substance to the objections raised as to the granting of the injunction, the jurisdiction of the trial judge and the procedure adopted by him. Per Rinfret C.J., Rand and Kellock JJ.: The large numbers of men involved and the public nature of the defiance of the injunction rendered the conduct in question contempt of Court criminal in character. Consequently no appeal lay to the Court of Appeal.
v. G. COLUMBIA........................ MERGER - Judgments - Merger - Sale of goods-Prior action against three partners -Joint liability-Default judgment against one-Discontinuance as to other two-New action against the and another-Order setting default judgment aside-Whether merger -Rule
113 of the Supreme Court of Alberta. The respondent had brought an action against the appellants and one Barker, former members of a partnership and whose liability was joint, for the price of goods sold and delivered.
Judgment in default of defence was obtained against Barker and the action against the appellants discontinued.
The respondent then commenced this action for the same debt against the appellants and another. After the joinder of issue but before the action had come to trial, the judgment in the first action against Barker was, upon his application, set aside.
The appellants pleaded, inter alia, the recovery of the judgment against Barker and that the indebtedness had been merged in that judgment. The action was maintained the trial judge and by the Appellate Division of the Supreme Court of Alberta. Held (Locke J. dissenting), that the appeal should be dismissed and the action maintained. Per Kerwin, Taschereau and Estey JJ.: Where a judgment has been set aside properly and without consent, as was done in the present case, there an MERGER-Concluded exception to the general rule that a judgment against one of several persons who are jointly liable on a contract effects a merger the original cause of action.
Per Kerwin, Taschereau, Estey and Cartwright JJ.: As long as the judgment was set aside before the adjudication, it matters not that it was done after the issuance of the writ in the second action.
Per Cartwright J.: The rule in King v. Hoare
(1844) M. & W. 494, does not apply when the judgment against one of several co-contractors who are jointly liable on the same contract has been, as in the present case, validly set aside.
Having been set aside, the judgment against Barker ceased to operate as a bar to the action against the other co-contractors; it ceased to exist and therefore to have any effect thereafter, except possibly as a justification for an act done in reliance upon it during its existence.
Semble, that the same result would obtain even where the order setting such judgment aside had been made on consent and no grounds had existed for setting it aside against the opposition of the plaintiff.
Per Locke J. (dissenting)
:
The rule at common law that a cause of action against several joint debtors merged if judgment is taken against one them whose liability is admitted has been altered in Alberta only to the extent provided by Rule of the Supreme Court and upon the discontinuance the action after judgment had been signed against Barker the cause of action was extinguished:
King v. Hoare
(1844) M. & W. 494; Kendall v. Hamilton 4 A.C. 504; Odell v. Cormack
Q.B.D.
223;
Hammond v.
Schofield
1 Q.B.
453;
Price v.
Moulton
C.B. 561;
Cross v.
Matthews (1904) L.T.R. 500, followed.
Re Harper and Township of East Flamborough (1914) 32 O.L.R. 490 and Partington v. Hawthorne (1888)
J.P. 807, distinguished.
While upon the evidence should have been found that the judgment against Barker was set aside by consent, whether or not this was the case was not decisive, since Barker's liability for the debt for which judgment had been signed was expressly admitted and the cause action having been merged, could not be revived.
v. AsH- MINERALS- Real Property - Ownership of Sand and Gravel-Whether reservation in
Certificate of Title of mines, minerals and valuable stone, includes sand and gravel- The Land Titles Act, R.S.A., 1942, s.
Constitutional law-Validity of The
Sand and Gravel Act, S. of A., 77- Applicability to pending action.
appellant, Western Minerals Limited, held a certificate of title as the registered owner in fee simple under The Land Titles Act,
R.S.A., 1942, 205, and amendments thereto, of all mines, minerals, petroleum,
MINERALS-Concluded gas, coal and valuable stone in or under two certain quarter sections of land of which the respondents Gaumont and Brown were the respective owners under the Act of the surface rights. The appellant, Western Leaseholds Limited, was lessee from its co-appellant.
Both appellants sued for a declaration that they were the registered and equitable owners of all minerals and/or valuable stone including the sand and gravel within, upon or under the said lands and for certain other relief. actions were consolidated and tried together and judgment was given in favour the appellants.
Following the filing of notice of appeal by the respondents, The Sand and Gravel Act, of came into force providing that as to all lands in the Province the owner of the surface of land is and shall be deemed at all times to have been the owner of and entitled to all sand and gravel on the surface of that land and obtained or otherwise recovered by surface operations.
By order of the Appellate Division, Gaumont and Brown were permitted to raise the terms of the Statute as a further. ground of appeal.
The Appeal Court allowed the appeal and dismissed the plaintiff's action.
On appeal to this Court. Held: 1.-That the appeal should be dismissed.
Per Kerwin, Taschereau, Rand, Kellock , Estey and Cartwright, JJ.: appellants failed to establish that "mines, minerals, petroleum, gas, coal and valuable stone" in their Certificate of Title should be construed as including sand and gravel.
Per Locke, J.-Apart from the provisions The Sand and Act, the only question to be determined was the meaning of the language employed in the certificate title by reason of The Land Titles Act (R.S.A. 1942, 205) and on the proper construction of that instrument, sand and gravel were included. The appellants should, therefore, have their costs the trial.
Per Curiam- That The Sand and Gravel Act intra vires of the Provincial Legislature and is declaratory of what is and has always been the law of Alberta, and applied to the present litigation and fatal to the appellants' claim.
al......................
MORTGAGE- Mortgagor and Mortgagee -Foreclosure and Sale-Following Sale, equity of redemption extinguished and Purchaser entitled to Court's approbation as matter of right-R.S.N.S. 1993, 140, ss. 14 and 15-The Judicature N.S., 1919, c. 32, r. 8. Under the law of Nova Scotia the Court has no jurisdiction to allow a mortgagor of lands to redeem after sale under a decree but before conveyance and before a report has been made to the Court and approved. Dicta in Stubbings v. Umlah 40 N.S.R. 269 at 271; Ritchie v. Pyke 40 N.S.R. 476 at 478, disapproved. Per: Locke J. While r. 8 MORTGAGE-Concluded
The Judicature Act, R.S.N.S. 1919, c. 32, requires either the plaintiff in a foreclosure action or the sheriff after the sale to secure the approval of the Court, the Appellant in the present case was entitled as a matter of right to such approval since the sale had been conducted in the manner directed by the Court and the regularity of the proceedings was not impeached.
The equity of redemption was extinguished by the sale.
ZINCK.............................
MUNICIPAL CORPORATION- Municipal Corporation-Validity of. By-law-- Whether delegation of powers of Municipality to City Clerk-The Factory, Shop and
Building Act, R.S.O. 1937, c. 194 as amended.
By-Law 6300 of the City of
Hamilton, purporting to have been passed under the authority of ss. 82(3) and 82a of the Factory, Shop and Building
Act, R.S.O. 1937, c. 194 as amended, provides that all gasoline service stations e closed during the period between 7 p.m.
and 7 a.m. of the following day during week days and all day Sunday. The By- Law provides that the City Clerk "may, on the recommendation of the Property and Licence Committee, issue" extension permits and emergency (without defining that word) permits to authorize the service stations named therein to remain open during stated hours; it also provides that such permits be issued to stated percentages of the total number of gasoline shops
"according to the records of the City
Clerk" in rotation; it further provides that the Clerk shall omit from the list of those entitled to extension and emergency permits such occupiers as have "according to evidence satisfactory to the City Clerk"
failed to keep their shops open as authorized.
The appellant's conviction by a justice of the peace of a breach of the by-law was affirmed by a judge of the
County Court and by the Court of Appeal for Ontario. The conviction was attacked on the ground that the by-law was invalid because, inter alia, the council have delegated the legislative power conferred upon them with regard to the issue of extension permits and emergency service permits to the City Clerk and have substituted his judgment and discretion for their own.
Held (Rand J. dissenting) that the appeal should be dismissed and the conviction affirmed. Per Kerwin, Kellock, Locke and
Cartwright JJ.: The submission that as the permissive word "may" is used in s. 5 of the by-law Council have left it to the
City Clerk to decide whether permits shall be issued at all, failed; the by-law must be read and construed as a whole and it is obvious from other provisions that the Clerk must issue permits in the manner laid down in the by-law. The provisions in ss. 7(2) and 8(2), that such occupiers as "according to evidence satisfactory to
MUNICIPAL CORPORATION-Conc. the City Clerk" have failed to keep their shops open as authorized, are invalid. It is within the powers of the Council to prescribe a state of facts the existence of which shall render an occupier ineligible to receive a permit for a stated time; but express words in the enabling Statute would be necessary to give the Council power to confer on an individual the right to decide, on such evidence as he might find sufficient, whether or not the prescribed state of facts exists and there are no such words.
However, these provisions are severable. The submission that there is an unauthorized delegation to the Clerk of the discretionary right to decide as to the groups provided for in ss. 7 and 8 of the by-law and as to the order of rotation as between such groups, failed. conferring of these powers on the Clerk was within the authority given to the Council by 82a of the enabling Statute, ". . . any may the issuing of permits".
The Council has provided in the by-law with sufficient particularity for the issuing of permits and the duties imposed upon the Clerk to select the occupiers to make up the respective groups and to arrange the order of rotation, are administrative and validly imposed.
Finally, the failure to define the word "emergency" did not invalidate the by-law for uncertainty. Per Rand J. (dissenting):-With respect to the determination of membership in the percentage groups, there was an infringement of the general requirement that no part of the legislative action or discretion reposed by the Legislature in a council could be delegated to any other body or person. In view of all the factors to be considered as to the mode of selection and order, it cannot be said that.the judgment of the Council is interchangeable with that of a committee.
If under a provision of the by-law, the recommendation of the committee had been placed before the Council and approved, the objection would have been met.
(As to the other submissions, Rand J. agreed with the majority). QUEEN.......
............... Physicians and Surgeons-Negligence-Evidence-Sponge lodging in patient's windpipe-Applicability Res ipsa loquitur rule............... Injury to gratuitous passenger-"Gross negligence"- Proof of-Res ipsa loquitur-Motor Vehicles Act, R.S.B.C. 1948, 27, s. 82 ...... Motor Vehicle - Pedestrian run down in intersection-Driver's vision obscured frosted windshield- Whether if pedestrian not in pedestrian crossing, onus on driver discharged-The NEGLIGENCE-Concluded
Vehicles and Highway Traffic Act R.S.A.
c. 9275, sa. 59 (4), 94 (1)... 324
See 4.
Nuisance - Highway construction near mink farm-Loss of pregnant mink due to noise of construction equipment-Duty to use reasonable care even where nuisance authorized by Statute 459
NUISANCE- Nuisance - Highway construction near mink farm-Loss of pregnant mink due to noise of construction equipment-Duty to use reasonable care even where nuisance is authorized by Statute.
on learning extensive construction work was about to be undertaken on a provincial highway contiguous to his mink farm, notified responsible officials of the Highway Department that the whelping season had just begun and the noise from such operations would endanger the lives of the female mink and their offspring.
In consequence orders were given by the engineer in charge to leave a sufficient gap in the road by carrying on the work at a distance that would prevent disturbance of the mink. Contrary to orders the appellants operated bull dozers and tractors within the prohibited area and the noise from the equipment resulted in the loss of a number of female mink and their young. Held: 1. (Taschereau and Locke JJ. dissenting)-That in an action for damages, the plea that the raising.
of mink, particularly during the whelping season, was a delicate and sensitive business, did not necessarily conclude the matter.
A defendant seeking to avoid liability for a nuisance on the basis that he had pursued but the ordinary and normal course of conduct incident to that locality must establish that he acted with reasonable care, even where statutory authority may have authorized the creation of a nuisance.
L. & N.W. Ry. Co. v. Bradley 3 Mac. & G.
336 at 341; Geddis v. Proprietors of Bann
Reservoir 3 App. Cas. 430; Dufferin Paving
& Crushed Stone Ltd. v. Anger [1940]
S.C.R. 174 at 177.
2. That though the respondent's pleadings based the cause of action upon nuisance, it appeared that at the trial the basis of negligence was also considered. It was raised in the Notice of
Appeal to the Appeal Court and that Court in its judgment appeared to have founded liability upon negligence.
The contention that at this stage respondent's recovery must be restricted to a claim for nuisance, could not be maintained.
3. That a reasonable man in the position of the appellants would have known of the presence of the respondent's mink, forseen the possibility of damage, and taken reasonable care to avoid it. Failure to do so constituted a breach owing by them to the respondent.
Per: Taschereau and Locke JJ., dissenting.
case should be disposed of upon the
NUISANCE-Concluded only issue raised by the pleadings, which was that of nuisance.
The appellants were acting as servants of the Crown and no such action lay against them. Had the appellants been acting as servants of the Municipality rather than of the Crown the action likewise should fail: Hammerton v. Dysart [1916] 1 A.C. 57; Gaunt v. Fynney L.R. 8 Ch. 8; Eastern & South African Telegraph Co. v. Cape Town Tramways [1902] A.C. 381;
Kine v. Jolly [1905] 1 Ch. 480. As the appellants did not give evidence at the trial as they would presumably have done had the statement of claim contained a count of negligence, the question of their liability on that basis should not be considered.
PATENTS- Patents - Reasonable compensation for use of invention-Relevancy of agreement re use of improvements to patents and extension of term of licence-The Patent Act, 1935, S. of C. 1985, c. 82, s. 19- Orders in Council P.C. of 1940, P.C. 11081 of and P.C. 449 of 1944. Evidence-Jurisdiction of Exchequer Court to admit new evidence when sitting as a Court of Appeal-The Exchequer Court Act, R.S.C. c. 84, ss. 87(c), 88(2), (3), Exchequer Court Rule 30. The respondent, Aluminum Company of Canada Ltd. (Alcan) entered into an agreement in 1937 with Det Norske Aktieselskab for Elektrokemisk Industri, a Norwegian corporation, for the use until 1953, under a non-exclusive licence subject to royalty payments, of the latter's Canadian patents covering the Soderberg system for manufacturing aluminum. After the outbreak of war in 1939, due to the great increase in production, negotiations were carried on for a reduction in the royalty payments and in 1941 it was agreed that the licence should be changed from a non-exclusive to an exclusive one and that the royalty rate be reduced by one third where annual production exceeded 40,000 metric tons up to an excess of 30,000 tons and be further reduced by one-half if production exceeded that amount. Near the end of 1942 further negotiations were begun seeking a ceiling on the amount of royalties but no agreement had been reached when in March 1943 the Deputy Minister of Munitions and Supply (acting under the powers contained in Orders in Council P.C. 6982 of 1940 and 11081 of 1942) notified Alcan no further royalty payments were to be made on orders placed with it by or on behalf of the Crown but that (as provided by the said Orders) the Crown would indemnify Alcan as to any claim made against it for non-payment of royalties under the terms of any licensing agreement. On the occupation of Norway by the enemy the respondent, The Secretary of State of Canada, as Custodian under the Revised Regulations respecting Trading with the Enemy, became vested with the PATENTS-Concluded patents in question and, as provided by of the Patent Act, 1985, and the above cited Orders and P.C. 449 of 1944, petitioned the Commissioner of Patents to name a reasonable compensation for the use of. the patents by the Crown.
Commissioner found that such compensation was one-fortieth a cent for each pound of aluminum produced under the process with a limit of $100,000 for any one year.
On appeal to the Exchequer
Court the President, after hearing evidence of a witness who had not been available at the time the hearing before the Commissioner, set aside that award and compensation at the rate agreed upon between the parties in subject to a ceiling of $215,000 in any twelve-month period.
Held: that further evidence was properly admitted under the power vested in the Court by r. 40 of the Exchequer
Court rules. Held: also, that the evidence disclosed that there had been no agreement between the parties that the maximum total annual payment should be
$215,000 and that while this amount had been finally proposed by Elektrokemisk the amount suggested was in payment rights which included the right to use any improvements made or acquired by the patentee during the terms of the agreement without further payment and the right to the extension of the term of the licence during the life of any such patents. The value this right was not relevant to the inquiry which concerned only the use of the five patents. Held: further, that the principle applicable in settling compensation under the Orders in Council the same as proceedings under of the Patent Act,
1985, and a fair and reasonable compensation for such user should be such an amount as would be agreed upon between a willing licensor and a willing licensee bargaining on equal terms, but the fact that the country was at war and that accordingly practically the sole customer was the
Crown was a matter to be considered estimating what amount would be agreed upon. Such an amount here would be one-twentieth of a cent per pound aluminum produced by the Soderberg system, subject to a ceiling of $175,000 any one year.
The King v. Irving Air
Chute Inc. S.C.R. 613 referred to.
Judgment of the Exchequer Court
C.R. part.
PHYSICIANS AND SURGEONS-Physicians and Surgeons-Negligence-Evidence
-Sponge lodging in patient's windpipe
Applicability of Res ipsa loquitur rule. An action for damages was brought against the appellant, a dental surgeon, following the death of a patient. It was established that while the appelant was extracting a number of teeth under a general anaesthetic the patient collapsed and died from asphy- PHYSICIANS AND SURGEONS-Cone. xia. It was argued on behalf of the appellant that it had not been shown that one of the gauze sponges used in the operation had lodged in the windpipe during that operation, or that death was caused by that obstruction, and that even if the cause death be taken as established, no negligence on the part of the appellant had been shown. Held: That ordinary care and prudence had not been shown by the appellant overlooking the fact-especially as no count of the sponges was kept-that a sponge in the windpipe might have been the cause of the patient ceasing to breathe and in making no effort to ascertain this, other than looking into the patient's mouth, consequently making no attempt to remove the obstruction. appellant therefore must be held to have been negligent. Held: also, that sufficient was shown by the evidence to call upon the appellant for an explanation. Res ipsa loquitur not a doctrine but "The rule is a special case within the broader doctrine that courts act and are entitled to act upon the weight of the balance of probabilities".
The Sisters of St. Joseph of the Diocese of London v. Fleming S.C.R. at
The rule may apply in malpractice cases depending upon the circumstances and it applied here.
Clark v. Wansbrough O.W.N. 67 over-ruled. come tax-Profit from resale of real estate individual-Whether income or capital gain-Whether realization or change of investment-Whether carrying on business-Income War Tax Act, R.S.C. 1927, 97, s. 3(1)-Practice-Appeal from Income Tax Appeal Board a trial de novo ..... SALE- Fraud- Undue Influence-Agreement for sale-Excessive price demanded by Purchaser release Vendor-Unconscionable Bargain-Relationship of Parties. Barristers and Solicitors-Solicitor acting for parties-Where neither connivance nor negligence shown, not subject strictures. elderly couple entered into an agreement to sell a property at a price satisfactory to them at the time.
Subsequently to secure a release therefrom they paid a large amount demanded by the purchaser, to the solicitor, who in the drawing of the agreement and the release, acted for both parties. In an action to cancel the release, set aside the agreement, and recover from the purchaser and the solicitor jointly. Held: 1. In the light of the evidence since no relationship was established to make it the duty of the purchaser to take care of the vendors, a claim to aside the release and recover payment failed. Tufton v. Sperni 2 T.L.R. at 519. The trial judge rightly held that the solicitor neither by himself nor SALE-Concluded connivance with the purchaser had imposed the bargain on the vendors.
release was not an unconscionable bargain in the sense in which the term is used the cases but, if the Court had been able to arrive at the opposite conclusion, it would agree with the trial judge that the vendors could not secure any relif so long as they claimed they were entitled to set aside the original agreement.
allowed and judgment at trial [1951-52]
4 W.W.R. (N.S.) 49, restored.
SHIPPING- Crown - Collision at sea tween foreign merchant ship and Canadian warship-Negligence in navigation-Application of s. 19(c) of the Exchequer Court
Act, R.S.C. 1927, 34-Governing law- Whether effective in circumstances-Whether
Crown entitled to limitation of damages under s. 649 of the Canada Shipping Act,
1934. Action for damages resulting from a collision in the Irish Sea in February, 1945, between a foreign merchant ship and a
Canadian warship on the way to take over escort duty for a convoy. The vessels were on crossing courses and the merchant ship was struck on her port bow. For the purpose of this case counsel for the appellant admitted that 19(c) of the Exchequer
Court Act was not restricted to claims based on occurring within
Canada.
Held: That the warship was solely to blame for the collision and for the loss of the merchant ship. Held: That at the time of the collision the warship was not engaged in warlike operations in a theatre of war so as to take it out of the operation of ss. 19(c) and 50A of the- Exchequer Court Act. Held: Notwithstanding 712 of the Canada Shipping Act, 1934, the Crown entitled to limit its liability under 649 that Act if it is able to show that the damage or loss occurred without its actual fault or privity: (Locke J.
dissenting). Per Rinfret C.J. and Rand J.:
The sources of law imposing regulations on merchant vessels and on naval ships are different; but the rules originating in the uniform practices navigators for centuries have been universally followed and have become the facto international maritime rules of the high seas. Per Kerwin and Estey JJ.: That the International
Rules of the Road, as established by
Canadian Order in Council P.C. 259, dated
February 9, 1897, and those contained in the King's Regulations and Admiralty
Instructions (as amended to November and incorporated in the Naval
Service Act (R.S.C. 1927, 45(1)), were the governing rules to be applied under ss. and 50A of the Exchequer Court
Act in the present case.
Per Locke J.:
The International rules of the Road, not being by their terms made applicable to the Crown, did not apply.
The fact, however, that that portion of the rules
SHIPPING-Concluded governing the conduct of vessels proceeding on crossing courses has been almost universally adopted by ships of seafaring nations and that an identical rule forms part the King's Regulations and Admiralty Instructions affords evidence from which the inference may properly be drawn that failing to comply with it is negligent conduct. In addition there was evidence justifying the finding that there had been no proper lookout kept on the naval vessel. Per Locke J. (dissenting in part): Crown is not entitled to limit the amount its liability under 649 of the Canada Shippinq Act, 1934, since such limitation of the liability of His Majesty qua is excluded by 712 that Act. Furthermore, the principle that the Crown may invoke the benefit of any statute, though not named in it, has no application where as here the matter has been dealt with Parliament.
SPECIFIC PERFORMANCE- -Specifc performance-Sale of oil leases- Correspondence-Interviews-Whether agreement reached........................ STATUTES- Canada Shipping Act, 1934, 44, ss. 649, 712........................
Criminal Code, 1927, 86, ss. 229, 773(f), 777(1), 1013(4), 102 (2)..... 3.-Criminal Code, R.S.C. 1927, 86 394(b).......................... See 8. Criminal Code, R.S.C. 1927, 86, ss. 675B, 575C.......................
5.- Criminal Code, R.S.C. 1927, 36, 8.945............................ See 7. 6.- Criminal Code, R.S.C. 1927, 36, s.1024(1)........................
7. -Criminal
Code, R.S.C. 1927, 36, s.1025............................
8.- Dower Act, R.S.A. 1942, 206.. 9.-Dower Act, S. of 1948, 7... 399 STATUTES-Continued
10.-Exchequer Court Act, R.S.C. 1927, c. 84, ss. 87(c), 88(2), (8)........... 417
11.-Exchequer Court Act, R.S.C. 1927, c. 84, s. 19(c)......................
12.-Factory, Shop and Office Building
Act, R.S.C. 1987, c. 194.............
13.-Fatal Accidents Act, R.S.C. 1948, c.125.............................
See 1.
14.-Fatal Accidents Act, R.S.O. 1950, c.182.............................
.
15.-Income War Tax Act, R.S.C. 1927, c. 97, s. 3(1).......................
See 1.
16.-Income War Tax Act, R.S.C. 1927, c. 97, s. 8(1).......................
18.-Insurance Act, 1987 (N.B.), c. 44, es. 2(40), (48), 249................
19.-Judicature Act, S. of N.S. 919, c. 82,
0.51, R . 8..........................
20.-Land Titles Act, R.S.A. 1942, c. 205 s.62..............................
21.-Law and Transfer of Real Property,
22.-Motor Vehicles Act, R.S.B.C. 1948, c. 227, s.182........................
23.-New Brunswick Companies Act,
R.N.S.B. 1927, c. 88................
24.-Patent Act, S. of C. 1985, c. 82,
8.19..........................
25.-Public Service Vehicles Act, R.S.A.
1942, c. 276.....................
See 1.
STATUTES-Concluded
27.-Sand and Gravel Act, S. of A. 1951, c. 77..........................
30.-Winding Up Act, R.S.N.B. 1927, c.97..........................
come Tax-Profit from resale of real estate by individual-Whether income or capital gain-Whether realization or change of investment-Whether carrying on business- Income War Tax Act, R.S.C. 1927, c. 97, s. 81(1)-Practice-Appeal from Income Tax Appeal Board a trial de novo. appellant was assessed for income tax in respect of profits realized by him on the sale of three apartment blocks which he had caused to be built in the City of Vancouver between the years 1945 and 1948. The first of these had been built in 1945 and sold in 1946; the second had been commenced in 1946 and sold in the summer of 1947 and construction of the third had been commenced in 1948 and sold in that year before it was completed. The appellant appealed to the Income Tax Appeal Board contending that his purpose in building each of the apartments was as an investment in the expectation of receiving an income from the rentals and providing living accommodation for himself and his family. The Board held upon the evidence that the profits were not realized from the enhancement in value of an ordinary investment but rather from what was in fact the carrying on of a business. An appeal to the Exchequer Court from this decision was dismissed. Held: The appeal should be dismissed, there being evidence upon which the Income Tax Appeal Board and the Exchequer Court might properly hold that the appellant was carrying on the business of constructing the buildings for the purpose of resale at a profit. Californian Copper Syndicate v. Harris [1904] 5 Tax C. 159 and Commissioner of Taxes v. Melbourne Trust Ltd. [1914] A.C. 1001 referred to.
N.R............................
2.- Whether payment received was gift or remuneration- Income War Tax Act, R.S.C. 1927, c. 97, s. 8(1), (4) as amended.
The appellant TAXATION-Continued was chairman of a committee formed to protect the interest of a certain class of shareholders in the reorganization of a company which was in receivership, and had one B appointed counsel for the committee. Under the scheme of arrangement subsequently adopted, the company was to pay the costs and expenses, including counsel fees, of the several committees;
there was to be no remuneration to the members of the committees as such, but it was understood that if the fees allowed would reasonably permit it, counsel would make some allowance to the committees for the work they did. B assigned to the appellant the amount by which his taxed fees exceeded a specified amount.
In his income tax return for 1947, the appellant took the position that the amount was a gift from B and therefore not taxable.
The Minister's assessment was upheld on appeal to the Income Tax Appeal Board and subsequently to the Exchequer Court.
It is clear that both the appellant and B intended that the money paid to the appellant was to be in remuneration for the services rendered as chairman of the committee. of N.R. 211
3.- Mutual Insurance Company-Surplus arising from transactions with members transferred to reserve fund-Whether assessable- Income War Tax Act, R.S.C. 1927, c. 94,
8s. 8(1), 6(1) (d)-New Brunswick Companies Act, R.S.N.B. 1927, c. 88, Part II,- Insurance Act, 1937 (N.B.), c. 44, as. 2(40),
(48), 249, The Winding-Up Act, R.S.N B
1927, c. 97. The appellant was incorporated as a provincial mutual company under
New
Brunswick
Companies Act,
R.S.N.B., 1927, c. 88, as amended by
S. of N.B.,
1937, c. 19, to undertake contracts of insurance against loss by fire, etc., upon farm and other non-hazardous property upon the premium note plan subject to the provisions of Part II of the
Act and of The Insurance Act, 1987, c. 44.
Insurance was issued upon premium notes prior to the issuance of the policy and the notes were subject to further assessments to meet losses and expenses incurred during the term of the policy. Where the amount collected in cash exceeded the current year's losses and expenses the surplus became part of the reserve fund. In 1947 the appellant transferred, as provided by s. 249 of the
Insurance Act, a surplus of $6,103.69 to its reserve fund. This amount was assessed under s. 3(1) of The Income War Tax Act,
R.S.C., 1927, c. 97, as amended, as taxable income, constituting an annual net profit or gain. Held: The surplus was accumulated as directed by The Insurance Act,
1937, not in pursuance of a profit making enterprise but in furtherance of a mutual insurance plan carried on by the appellant
TAXATION-Concluded in the interest of its members and the fund could not be applied, except on the order of the Goverior in Council, to any purpose other than the settlement of claims or other liabilities.
On a winding-up the surplus, if any, under the provisions of The Windin -Up Act (R.S.N.B.) c. 97) and The Insurance Act, 1937, read together, would be returned to the members of the Company.
The moneys so accumulated were not income within the meaning of s. 3(1) of The Income War Tax Act. Jones v. South West Lancashire Coal Owners Association [1927] 1 K.B. 33 and Ayrshire Employees Mutual Association Ltd. v. Commissioners of Inland Revenue 1 All E.R. 637.
Decision of the Exchequer Court 1951
Ex. C.R. 341, reversed.
FIRE Co. v. N.R........... VENDOR AND PURCHASER- Vendor and Purchaser-Agreement for sale and exchange of property-Escape clause-No time mentioned-Possession exchanged- Whether withdrawal from agreement permitted-Homesteads-Dower Act, S. of A. 1948, c. 7-Whether requirements complied with-Whether agreement void-Estoppel. In September, 1949, the male respondent, as owner of a farm, and the male appellant, as owner of a property in Edmonton, agreed in writing to exchange their respective properties, each being a homestead within the meaning of the Dower Act (S. of A. 1948, c. 7).
The difference in values was to be paid in cash by the respondent who was also to loan to the appellant $800 to be secured by an agreement for sale of the farm payable November 1, 1950. The transfer of the farm was to take place when the loan was paid and the transfer of the city property, when the agreement to secure the loan was signed.
By an escape clause, each party was to deposit $500 and "forfeit the same in case he changed his mind or for other reason cannot complete contemplated deal". The agreement was also signed by the wives of the parties. Soon after the parties had exchanged possession and before the deal was completed, the male appellant gave notice of repudiation and commenced action to have the agreement declared void for misrepresentation or, alternatively, voidable under the escape clause. respondent counterclaimed for specific performance.
A second action was brought by both appellants against both respondents on the ground that the agreement was void for non-compliance with the Dower Act.
Both actions were tried together. Held: The appellants were entitled to withdraw from the agreement under the escape clause. Per Kerwin and Estey JJ.: The appellants were also entitled to succeed by virtue of the provisions of the Dower Act. The requirements of that Act were not complied with and the male appellant VENDOR AND PURCHASER-Concluded was not estopped from asserting his rights under it. Per Kellock and Locke JJ.: No question of dower rights was involved.
The male appellant undertook to put himself in a position to convey and his wife must be taken to have undertaken to do whatever was necessary on her part to enable her husband to convey. PINSKY V.
WASS.........................
WARRANTY- Motor vehicles - Warranty-Collision-Defective brakes-Negliof driver-Liability of owner-Action in warranty against used car dealer-Action purchaser and third party-Latent defects
-Arts.
1053, 1054, 1520, 1522, 1527 C.C.
....... ......
WILL- Will - Executor - Direction
Testatrix that body buried in Jewish cemetery and cost part of funeral and testamentary expenses-Amount of Executor's liability.
The appellant, a society incorporated under the Benevolent Societies
Act (R.S.B.C. 1911, c. 19) maintains at
Vancouver a synagogue and a cemetery and carries out the functions of a registered undertaker, and provides for persons of the
Jewish faith burial services in accordance with the ritual of that faith. Pursuant to a request, which was not made by the respondent executor, the appellant caused burial services to be conducted for and the body of the testatrix, a Jewess, to be buried in its cemetery. There was no communication between the appellant and the respondent until after this had been done.
appellant claimed to recover a fee for its services in an amount fixed by a committee of seven persons, members of its synagogue and in fixing such amount the committee took into account the financial circumstances of the testatrix, her mode of life and other considerations, a method it alleged to be authorized by usage and custom in respect to persons of the Jewish faith. The respondent brought an amount into Court with its defence and the trial judge gave judgment in an amount less than the sum so paid in.
An appeal to the Court of Appeal was dismissed. Held:
(Rand J. dissenting) that upon the evidence the only liability of the respondent as executor was to pay a fair and reasonable amount for the services rendered, and as such amount had been awarded at the trial, the appeal failed. The King v. Wad
5 Price 622 at 627; Tugwell v. Heyman
3 Camp. 298; Corner v. Shew 3 M. & W.
350 at 354 applied. Per Kellock J. Assuming the usage and custom pleaded could be considered either reasonable or certain, there was nothing in the evidence which established the existence of either. Neither did the will contain anything upon which the appellant could claim against the estate other than the common law basis of liability of personal representatives
WILL-Continued with respect to funeral expenses. Rand J. (dissenting)-A contractual basis is inappropriate to the claim and the obligation to pay arises by way of bequest. v. Co....... Will
Substitution
Grandchildren great-grandchildren included-Whether rule of representatjon of Article 980 C.C. applicable- Article 509 C.P. The testator's will provided that on the death or remarriage of his widow the children issue of his marriage should have the usufruct of his property and that on the extinction of the usufruct the ownership should pass to "the children issue of the lawful marriage of my children, that is to say my grandchildren". It is admitted that the will created a fiduciary substitution and that the final opening of the substitution has occurred.
The appellants, whose parents died prior to the date of distribution of the estate, claimed, as great-grandchildren of the testator, the shares which their parents, as grandchildren of the testator, would have received had they survived. Their action was dismissed by the Superior Court and by a majority in the Court of Appeal for Quebec. (Rinfret C.J. and Taschereau J. dissenting), that the appeal should be allowed. rule of representation enunciated in Article 980 C.C. applied.
The words "children" and "grandchildren" as used in the will applied to all the descendants of the testator and, therefore, to his great-grandchildren as well as to his grandchildren. Per Rand J.: The word "grandchildren" is used without qualification and, therefore, Article 980 C.C. disposes of the question. The phrase "that is to say" is introductory to a form of statement equivalent in meaning to one already made and its effect is the same as if the equivalent expression had been used alone in the first instance. Even if this were to produce tautology, it would not be sufficient to change the legal meaning of the words. The instrument leaves no doubt of the general intention that the property should pass to the direct descendants by equal division between the family lines of the children. Locke J. agreed with Barclay J. that the words "that is to say my grandchildren" following the words "the children issue of the lawful marriage of my children " should be construed as being merely explanatory and not limitative. The testator must be assumed to have known the law and the significance of the word "grandchildren"
used without qualification. Per Cartwright J.: If it was the intention of the testator to qualify or cut down the meaning ascribed to the word "children" by Article 980 C.C., it is unlikely that the notary who prepared the will would have chosen as a word of qualification a word to which the same meaning is ascribed by the same Article of the Code.
It is more reasonable to suppose WILL-Continued that an unnecessary and repetitious phrase was used. Per Rinfret C. J. (dissenting):
Since the words "children" and "grandchildren" are qualified, Article 980 C.C. cannot be invoked in favour of the appellants.
The phrase "that is to say my grandchildren" would be meaningless if it were not descriptive.
Without inquiring into the reasons of the testator but giving the fair and literal meaning to the actual language of the will, the property should go to the children issue of the lawful marriage of his children who can never be the great-grandchildren. Per Taschereau
J. (dissenting): The word "grandchildren"
is not used without qualification and the expressions accompanying it are sufficiently clear to justify the exclusion of the greatgrandchildren from the disposition.
words cannot be a meaningless repetition and must be given a meaning. The words determine the intention of the testator and indicate who should benefit.
Charity - Charitable Trust come of trust fund payable to such employees and their dependents of an assurance company as determined by its Board of Directors
-Validity.
By his will the testator directed his trustees to hold the residue of his estate upon trust as follows: "To pay the income thereof in perpetuity for charitable purposes only: the persons to benefit directly in pursuance of such charitable purposes are to be only such as shall be or shall have been employees of The Canada
Life Assurance Company; subject to the foregoing restrictions, the application of such income, including the amounts to be expended and the persons to benefit therefrom, shall be determined by the Board of
Directors of the said The Canada Life
Assurance Company, as they, the said
Board of Directors, m their absolute discretion shall from time to time decide."
Held: (Rand and Cartwright JJ. dissenting)-That on its true construction the clause did not evidence a general charitable
WILL-Concluded intent and the specific bequest to the employees did not satisfy the test of public benefit requisite to establish it as a charitable trust. Oppenheim v. Tobacco Securities Trust Co. Ld. [1951] A.C. 297; In re Compton [1945] Ch. 123; In re Hobourn Aero Components Ld's Air Raid Distress Fund [1946] Ch. 194 and In re Drummond [1942] 2 Ch. 90. Per: Rand and Cartwright JJ. (dissenting) residuary clause declares a general charitable intent and impresses upon the residue a trust for that purpose. The word "directly" restricts direct benefits to those mentioned and implies that all other benefits are to be indirect, but since the benefit to the specified class violates the rules laid down requiring that public quality in the recipients defined by the cases mentioned, it follows that only by indirect benefits to individuals as by grants to charitable agencies or objects are the funds to be dealt with by the trustees. Rand J. was of opinion that failure of the benefits to the employees of the Assurance Company did not cause the appointment of the Board of Directors as the body to determine the distribution of the funds to also fail but rather that the absolute discretionary appropriation to charity of the property generally was conferred upon the Board. Cartwright J. was of opinion that since the mode of carrying the testator's general charitable intention into effect could not be carried out, the matter should be referred back so that proper proceedings could be taken for the propounding and settlement of a scheme for the application cy-pres of the residuary estate.
WORDS AND PHRASES- 1.- "Contract for sale of property" (Dower Act, R.S.A. 1949, c. s. 9(1) ...... 2.-"Gross negligence" (Motor Vehicles Act, R.S.B.C. 1948, c. s. .....
Arrêts cités
- Freston Freston, supra
- Wellesley v. Duke of Beaufort Wellesley v. Duke of Beaufort, supra
- Studer v. Cowper scr-1951-450
- A.C. 601 A.C. 601 609
- Hubin v. The King scr-1927-442
- The King v. Robinson scr-1951-522
- Lizotte v. The King scr-1951-115
- Christie Christie, supra
- O.R. 504 O.R. 504
- 1 A.C. 57 1 A.C. 57
- A.C. 381 A.C. 381
- A.C. 1001 A.C. 1001
- A.C. 297 A.C. 297
Lois et règlements cités
-
- s. 501
- s. 573
- s. 89
- ss. 59
- s. 94(1)
- s. 59(2)
- s. 59(4)
- s. 2
- s. 68
- ss. 21
- 58
- ss. 773(f)
- 777(a)
- s. 1013(4)
- s. 1025
- s. 5750
- s. 945
- s. 394
- s. 999(2)
- s. 19
- ss. 3(1)
- 6(1)
- ss. 2(40)
- ss. 14
- 15
- s. 5
- ss. 7(2)
- 8(2)
- ss. 7
- 8
- s. 82
- s. 3(1)
- ss. 649
- 712
- ss. 229
- 773(f)
- 777(1)
- 1013(4)
- (8)
- s. 8(1)
- ss. 8(1)
- s. 21
- (4)
- 94(1)
- s. 81(1)
- (4)
- s. 249
-
Supreme Court Act
-
- s. 1
- ss. 87(c)
- 88(2)
- s. 19(c)
- ss. 19(c)
-
Citations non résolues
- s. 59(4) of The Vehicles and Highway Traffic Act
- s. 62 of The Land Titles Act
- s. 21 of the Sale of Goods Act
- s. 649 of the Canada Shipping Act, 1984
- s. 3(1) of The Income War Tax Act