Majority
C.J.-I entirely agree in the conclusions of my brother Crocket as well as in the reasons by which those conclusions are supported.
My purpose in adding what I am now saying is merely to note that the law is well established and well known and that, as applicable to this appeal, it is best, as well as completely, stated in this passage from the judgment of Lord Davey (then Davey L.J.) in his judgment in Tyrrell v. Painton (1):
J. (Duff C.J., and Rinfret, Lamont, Cannon and Hughes JJ. concurring)-This appeal arises out of a petition presented by the respondent Ferris in the Surrogate Court of the County of Essex, Ontario, for the granting to him, as the sole executor named therein, of probate of the alleged last will and testament of William E. Wright, deceased, late of the city of Windsor.
Wright died on April 8, 1932, without issue, leaving surviving him as his nearest of kin his brother George Wright and the latter's daughter Wilda, who had been legally adopted a few weeks C after her birth by the testator and his wife but had left the testator's home in the autumn of 1930, seven or eight months after her adopted mother's death, to pursue a nurse's training course when sixteen or seventeen years of age, and later-in January, 1932--:while employed as a domestic servant, married a young man named Yager in the State of Michigan. The will, of which the respondent sought probate, was executed on March 1, 1932, presumably when Wright was unaware of Wilda's marriage, and left or purported to leave all his real and personal estate, valued by the executor at $6,000 real and $330 personal property, to one Barbara Brown, of the City of Detroit, in the State of Michigan, described therein as the testator's cousin, subject to the payment of a legacy of $500 to his " adopted daughter Wilda Norena Wright, of Windsor, Ontario."
On February 20, 1930, a few weeks after his wife's death, Wright executed a will leaving a duplex house and lot on Hall Ave., which was subject to a mortgage for $5,820, to two of his deceased wife's sisters, Leah Riach and Etha Riach, share and share alike, and the entire residue of his estate, real and personal, to his said adopted daughter, Wilda Norena Wright, provided she should live to attain the age of twenty-one years, and, in the event of her not doing so, leaving all to the said Leach Riach and Etha Riach in equal shares.
On July 27, 1931, he made a second will, revoking that of February 20, 1930, and leaving his whole estate to Leah Riach and Etha Riach in equal shares, subject to the payment of a legacy to his adopted daughter of $200.
The Misses Riach entered a caveat objecting to the probate of the will of March 1, 1932, on the ground of mental incapacity on the part of the testator and undue influence and fraud on the part of Barbara Brown. usual citations having been issued, the proceedings were removed, on the respondent's application, from the Surrogate Court to the Supreme Court for trial. The removal order directed that the respondent be made plaintiff and the four appellants defendants in the action, but Miss Brown, the principal beneficiary, was omitted as a party. The action was tried before the late Mr. Justice Raney, who refused to order the will to probate and dismissed the action with costs.
At the opening of the hearing before the Court of Appeal for Ontario of the plaintiff's appeal from the trial judgment, attention having been called to the omission of the principal beneficiary as a party to the action, the plaintiff's counsel stated that he appeared for her as well as for the executor, and consented that an order should be made adding Miss Brown as a party defendant as though she had originally been made a party by the removal order. The appeal was then argued, and, though the argument seems to have occupied three days, judgment was pronounced instanter at its conclusion, so that we have before us only the formal order of the court without any of the reasons therefor.
By the formal order Miss Brown was directed to be added a party defendant as though she had been declared to be one originally in the removal order; the costs of the trial and of the appeal were directed to be taxed and upon payment thereof by the defendants, other than Miss Brown, to the plaintiff within ten days after taxation, the trial judgment was ordered to be set aside and a new trial held; otherwise the plaintiff's appeal was to be allowed and the will of March 1, 1932, declared to be well proved, with a direction to the proper court to grant probate thereof to the plaintiff as the executor named therein, with costs of the trial and of the appeal to be paid by the defendants, other than Miss Brown, to the plaintiff forthwith. From this judgment the appellants now appeal to this Court.
It is quite apparent from his written opinion that the learned trial judge's refusal to admit the impugned will to probate was entirely grounded upon the fact that the evidence for the defence had raised in his mind some suspicion as to the genuineness of the will and that the plaintiff had failed to discharge the onus which His Lordship held rested upon him to remove such suspicion under the authority of the two rules laid down by Baron Parke in Barry v. Butlin as expounded in Fulton v. Andrew (1), and in Tyrrell v. Painton (2).
Though he does not precisely state what this suspicion was, the last two paragraphs of his reasons for judgment clearly indicate that it entirely concerned the conduct of the beneficiary, Miss - Brown, and the question of the exercise of undue influence and fraud by her, as alleged in the statement of defence. Notwithstanding His Lordship's statement that the question he was discussing was not the question of the proof of undue influence but the question of judicial suspicion, within the language of Lord Lindley, as quoted by him from Tyrrell v. Painton (3), he immediately adds:- Not only does His Lordship here distinctly state that the suspicion he entertained had been raised by the evidence for the defence, but he quite as distinctly says that had Miss Brown taken the witness stand she might have admitted the truth of all the items in that evidence which went to raise that suspicion and yet have convinced him that everything she did was within the limits of legitimate persuasion, but that the plaintiff and Miss Brown had chosen to leave that suspicion where the evidence for the defence left it and that they must therefore take the consequences.
No finding is made one way or the other, either upon the issue as to Wright's testamentary capacity at the time of the execution of the will or as to the question of his having actually comprehended what he was doing when he did execute it. Neither is any finding made one way or the other as to the question of the testator having executed the will with full knowledge and appreciation of its contents and effect but as the result of the exercise upon him of undue influence or fraud by or in RiAcH behalf of Miss Brown.
FERS.
The soundness, therefore, of the trial judgment turns en- tirely upon the question of the onus probandi and the k Jvalidity of the learned trial judge's obvious assumption that under the three cases above cited the burden lay upon the plaintiff, not only to prove that Wright was of sound and disposing mind and memory and actually comprehended what he was doing when he executed the will, but to prove, as well, that he was not induced to execute it by undue influence or fraud.
After reviewing what he regarded as the salient facts of the case and stating that the facts as found by him brought the case within the principle of the rules laid down by Baron Parke in Barry v. Butlin (1), His Lordship quotes these rules as follows:- (1) The onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator, and (2) If a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. Then he quotes the dictum of Lord Hatherley, regarding Baron Parke's second rule, from Fulton v. Andrew (2) as follows:- There is one rule which has always been laid down by the Courts having to deal with wills, and that is, that a person who is instrumental in the framing of a will, * * * and who obtains a bounty by that will, is placed in a different position from other ordinary legatees who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. * * * But there is a farther onus upon those who take for their own benefit, after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of shewing the righteousness of the transaction.
and adds that these rules of law have since been observed in a line of cases of the highest authority. And under later cases there has been a further expansion, so that, as pointed out by Lord Justice Lindley in Tyrrell v. Painton (3), "The rule in Barry v. Butlin (4) is not confined to the single case in which a will is prepared by or on the instructions of the person taking large (1) (1838) 2 Moore P.C. 480.
(3) L.R. [18941 P. at 157. (2) (1875)
L.R. 7 H.1. 448, at
(4) (1838) 2 Moore P.C. 480. 471-2.
It will be observed that in neither of Baron Parke's two rules nor in neither of the respective dicta of Lord Hatherley and Lindley, L.J., as quoted, is there any specific mention of the question of procuring the execution of a will by fraud or misrepresentation or undue influence of any kind, and that, apart from Lord Hatherley's statement regarding the throwing upon those who take for their own benefit, after having been instrumental in preparing or obtaining a will, the onus of shewing the righteousness of the transaction, the only expressions which can be relied upon to support the proposition that the onus resting upon a party propounding a will includes the negativing of undue influence, in a case where circumstances exist which create suspicion, are the expressions ".that the instrument so propounded is the last will of a free and capable testator," and " that the paper propounded does express the true will of the deceased." Both these expressions no doubt imply, not only that the testator was of sound and disposing mind and memory at the time he executed the will, but that he actually comprehended what he was doing when he executed it. Though it may be that they on their face comprise freedom from fraud and duress, we do not think that the three cases from which His Lordship quoted can properly be said to establish the principle that the onus probandi resting upon a party propounding a will for probate extends in all cases, where circumstances of suspicion are disclosed, to the disproof or negativing of an allegation or suspicion of undue influence or fraud. For instance, Baron Parke himself says in Barry v. Butlin (1):
every case and under all circumstances to create a contrary presumption and to call upon the Court to pronounce against the will unless additional RiAcn evidence is produced to prove the knowledge of its contents by the deceased.
Crocket J. And, again:- All that can be truly said is, that if a person, whether attorney or not, prepares a will with a legacy to himself, it is, at most, a suspicious circumstance, of more or less weight, according to the facts of each particular case; in some of no weight at all, as in the case suggested, varying according to circumstances; for instance, the quantum of the legacy, and the proportion it bears to the property disposed of, and numerous other contingencies; but in no case amounting to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the Court in investigating the case, and calling upon it not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased.
And, after reviewing the salient facts:- We think, therefore, on the whole, that the evidence of the factum, coupled with the strong probabilities of the case, is sufficient to remove the suspicions which naturally belong to the case of all wills prepared by persons in their own favour, especially when made by persons of weak capacity. The undue influence and the importunity which, if they are to defeat a will, must be of the nature of fraud or duress, exercised on a mind in a state of debility, are insinuated but not proved.
Whitehead's [one of the beneficiaries] authority and power over his master [the testator] is, no doubt, sufficiently established; but that such authority and power were in any way exercised to procure this will to be made is only conjecture; and there is nothing like proof of authority or control of any kind on the part of Butlin or Percy [the other two beneficiaries].
Fulton v. Andrew (1), notwithstanding the oft quoted dictum of Lord Hatherley, will be found to be of practically the same effect when the complete exposition of that case by Lord Chancellor Cairns and the other law lords taking part is closely examined.
That was a case, where a jury had found that the testator knew and approved of the contents of the will generally, but that he did not know and approve of the contents of the residuary clause, by which, after a number of bequests to relatives and friends, the residue was left to the two executors, both of whom had been instrumental in the framing of the will, and with reference to which there was a discrepancy between the instructions for the will and the will itself. It was contended that the learned trial judge misdirected the jury upon the latter issue in telling them that they were to take this discrepancy into consideration and, (1) (1875) L.R. 7 HL. 448.
having done so, to determine whether the testator had known and understood the residuary clause; that he ought to have told them that they ought to consider simply . whether the testator at the time of executing his will was unconscious of and did not approve of the residuary clause owing to mental prostration as alleged in the defendant's particulars. The Judge of the Court of Probate, who had directed that the two questions of fact indicated and others, which are not now relevant, should be tried by a jury at the Assizes, made absolute a rule to enter the verdict for the propounders of the will, and granted probate of the whole will. It was ordered, on appeal to the House of Lords, that probate of the will should be recalled and another order made granting fresh probate of the will, omitting the residuary clause. The decision turned entirely on two questions: 1st, whether, where a will is read over to or by a testator of sound and disposing mind and memory, and he duly executes it, it must be taken that he knew and approved of its contents; and, 2nd, whether with respect to the finding on the residuary clause it was contrary to the evidence. It had been contended that an absolute and fixed rule of law had been established by a series of cases that proof of the reading of a will by or to a competent testator and his execution thereof was always conclusive of knowledge and approval of its contents, and that no evidence against that presumption could be received. Lord Cairns said, as to this, that he thought After citing Baron Parke's dictum containing the two rules above set forth, he quoted from Lord Penzance's charges to the jury in Atter v. Atkinson (1), and Guardhouse v. Blackburn (2).
In the first of these cases Lord Penzance said to the jury:- Commenting upon Lord Penzance's qualification that there must be no fraud, Lord Cairns says:- If Your Lordships find a case in which persons who are strangers to the testator, who have no claim upon his bounty, have themselves pre- CrocketJ. pared, for their own benefit, a will disposing in their favour of a large portion of the -property of the testator; and if you submit that case to a jury, it may well be that the jury -may consider that there was a want, on the part of those who propounded the will, of the execution of the duty which lay upon them, to bring home to the mind of the testator the effect of his testamentary act; and that that failure in performing the duty which lay upon them, amounted to a greater or less degree of fraud on their part. The qualification of Lord Penzance in the charge I have read may entirely apply to such a case.
Among the statements quoted from the charge in Guardhouse v. Blackburn (1) are the following:- Although the testator knew and approved the contents, the paper may still be rejected on proof establishing beyond all possibility of mistake that he did not intend the paper to operate as a will.
Although the testator did know and approve the contents, the paper may be refused probate if it be proved that any fraud has been purposely practised on the testator in obtaining his execution thereof.
Subject to this last preceding proposition, the fact that the will has been duly read over to a capable testator on the occasion of its execution, or that its contents have been brought to his notice in any other way, should, when coupled with his execution thereof, be held conclusive evidence that he approved as well as knew the contents thereof.
Regarding these directions Lord Cairns says:- It appears to me that, consistently with the rules mentioned by Lord Penzance, the jurors here may not have been satisfied that there was a proper reading of the will to the testator, or may have been satisfied, after hearing all the facts submitted to him by Mr. Justice Mellor, that there was on the part of those who propounded the will such a dereliction of duty, such a failure of duty on their part, as amounted to that degree of fraud to which Lord Penzance refers in the rules I have mentioned. Lords Chelmsford, Hatherley and O'Hagan all entirely agreed with the Lord Chancellor's observations. Nothing, apart from the dictum of Lord Hatherley, is to be found in the entire report of this case to support the proposition that any further onus lies upon a party propounding a will for probate, than to satisfy the court that the testator was of sound and disposing mind and memory and that he knew and approved of its contents when executing it. There is no suggestion anywhere in the Lord Chancellor's speech that, once it appears that a competent testator formally executed a will with full knowledge of its con- (1) (1866) L.R. 1 P. & D. 109, at 116.
tents, the party propounding it must also prove that he was not induced to execute it by any undue influence or fraud. The whole report of the case points quite the other way.
Lord Hatherley himself, who fully concurred, as stated, in all the Lord Chancellor had said, added the following observation:- That portion of Lord Justice Lindley's dictum in Tyrrell v. Painton (1), which is above quoted, may perhaps well bear the construction, which the learned trial judge has placed upon it. When, however, it is considered in the light of the language immediately following, it will be seen that what this eminent Lord Justice of Appeal had in his mind, when he spoke of the onus lying upon those who propounded the will "to remove such suspicion," was the suspicion that the testator did not know and approve the contents of the will. His words are:- Clearly there is no suggestion in this dictum, when considered in its entirety, that any further onus lies upon a party propounding a will than to prove the testamentary capacity of the deceased and that when the testator executed the instrument he fully realized what he was doing. The dictum, of course, assumes that all the formalities required by law have been duly complied with. Indeed, it is as positively stated as it could well be that, once it is affirmatively proved that the testator, being, of course, of sound and disposing mind and memory, did know and approve of the contents of the will, the onus is placed on those who oppose its admission to probate to prove that, notwithstanding the fact that the testator fully knew and appreciated what he was doing when he executed the will, he was induced to do so by some fraud or undue influence having been practised upon him. Moreover, in another passage of his reported opinion he says:- The President, he pointed out, had only addressed himself to the question of fraud and held that the burden of proving that lay on the plaintiff (the party opposing the will) and that he had not discharged himself of that burden, so that in that case, as in the case at bar, there was no finding as to whether the testatrix knew what she was doing when she executed the will, though in the case cited the trial judge held that fraud had not been proved, while in the present case the trial judge, as already pointed out, makes no finding one way or the other upon either question. Had the Tyrrell case been tried by a jury, Lord Justice Lindley adds:- Assuming that in the case in behalf of a plaintiff seeking to establish the validity of a will, there may be such circumstances of apparent coercion or fraud disclosed as, coupled with the testator's physical and mental debility, raise a well-grounded suspicion in the mind of the court that the testator did not really comprehend what he was doing when he executed the will, and that in such a case it is for the plaintiff to remove that suspicion by affirmatively proving that the testator did in truth appreciate the effect of what he was doing, there is no question that, once this latter fact is proved, the onus entirely lies upon those impugning the will to affirmatively prove that its execution was procured by the practice of some undue influence or fraud upon the testator. This, it seems to me, is the real effect of the three cases upon which the learned trial judge relied, and is precisely the principle stated by Lord Chancellor Cranworth in Boyse v. Rosborough (1), and distinctly approved by the Judicial Committee of the Privy Council in Craig v. Lamoureux (2), in which latter case the judgment of the majority of this Court (Fitzpatrick, C.J., dissenting ) (3), in which Barry v. Butlin (4), Co tJ. Fulton v. Andrew (5) and Tyrrell v. Painton (6) were all considered, was reversed. The exact language of the Lord Chancellor in stating this principle in Boyse v. Rosborough (1) is set out in the syllabus of the Privy Council's decision in Craig v. Lamoureux (2) as follows:- This point Lord Cranworth, in Boyse v. Rosborough (1), said was beyond dispute, notwithstanding he had suggested that a will, which had been executed under coercion or the influence of fear or in consequence of impressions created in the testator's mind by fraudulent representations, could not in contemplation of law, though it might with strict metaphysical accuracy, be properly described as a true expression of the testator's will. It should perhaps be added that, in that case as in the present, undue influence was the point on which the defendants really relied on the trial and on the appeal, and that the deceased's alleged mental infirmity was put forward rather as tending to shew the probability that such influence might have been successfully exercised than as being such as would of itself invalidate the will.
While the trial judge in the present case, as pointed out, made no specific finding that the testator did know what he was doing when he executed the will, it is perfectly clear from his review of the facts that he accepted without question the testimony of both the subscribing witnesses to the will-Miss Burns and Mr. Taylor. Miss-Burns was a stenographer who had been employed for 15 years in the office of Mr. Baker, a Windsor conveyancer, who did Wright's conveyancing business and who, it seems, had prepared his previous wills of February 20, 1930, and July 27, Wright, who had suffered for some months from high blood pressure and Bright's disease, became seriously ill late in December, 1931, and was confined to bed and under the care of Mrs. McLaughlin, a practical nurse, for five or six weeks until February 8.
According to Mrs. McLaughlin's testimony, which the trial judge accepted, he had experienced frequent and various illusions during this period, and the learned trial judge found that his mental condition, when he was under Mrs. McLaughlin's care, was one of intermittent dementia. He recovered, however, from this acute illness and was able to be up and about more or less from the time Mrs. McLaughlin left until a day or two before his death.
It appears that some time before Mrs. McLaughlin's employment Wright had consulted Baker about changing his will and communicated to him some instructions therefor, but that Baker had himself died while Wright was confined to bed. After his recovery from the illness referred to, some time in February, he went to Baker's office where Miss Burns was still employed, and requested her to draw a new will. Although after some hesitation she promised to do so, she decided, apparently after Wright had left her, to have the will drawn by a barrister, and arranged with Mr. Taylor, a practising barrister in Windsor, to draw it for him. She sent to him a written memorandum with the instructions she had taken from Wright. Mr. Taylor accordingly drafted the will for her and when it was ready brought it to her office for execution by Wright. He swore that he read the will over to Wright, whom he had not previously known, and that he seemed to understand it thoroughly-as thoroughly as any testator that he ever drew a will for, and that he had not any idea at all that the man was ill; that he shewed no appearance whatever of any mental incapacity; that he was standing up all the time he was in the office and seemed absolutely intelligent; and that he had no hesitation whatever in saying he knew exactly what he was talking about. Miss Burns corroborated Mr. Taylor's statement as to the reading over of the will and as to the filling in by Mr. Taylor in her and Wright's presence of a blank which had been left in the typewritten copy as prepared by Mr. Taylor for the name of the executor.
An examination of the original will itself confirms Miss Burns' testimony as to the latter fact.
In addition to the evidence of the two subscribing witnesses to the will, two physicians, who had attended Wright at different times, not only during the period when he was confined to bed in January and the early part of February, but afterwards, testified in the plaintiff's case that in their opinion Wright at all times when they saw him was of sound and disposing mind and memory-fully capable of making a will. A local alienist, who had been called in to examine Wright at Mrs. McLaughlin's suggestion, after consultation with his attending physician and with a brother of the Misses Riach, and who had talked with Wright for over an hour, also testified that in his opinion Wright was perfectly sane.
The evidence of both attesting witnesses to the will and of these physicians having been accepted without question by the learned trial judge and there being nothing discoverable in the entire case to cast any well-grounded suspicion upon it, we are of opinion that it must be taken that Wright was of sound and disposing mind and memory when he executed the will of March 1st, and that he was fully aware of what he was doing when he did execute it, and that that will was consequently entitled to be admitted to probate, failing affirmative proof of the defendants' allegation that he was prevailed upon by fraud and undue influence on the part of Miss Brown to execute it.
As to this allegation we think that the evidence upon which the defendants relied to establish it is wholly insufficient to warrant an affirmative finding.
For these reasons the appeal from the judgment of the Court of Appeal reversing the judgment of the learned trial judge must be dismissed with costs.
Appeal dismissed with costs. Solicitor for the appellants: Benjamin H. Yuffy.
The Official Guardian, representing the infant, Wilda Yager.
Solicitor for the respondent: J. E. Taylor.
Jurisdiction - Judgment dismissing petition in revocation of judgment- "Final judgment"-"Amount in controversy"-Appeal per saltum-Application to adduce new evidence before Supreme Court of Canada-Negligence-Liability-Money offered and paid to injured-Acknowledgment of liability-Supreme Court Act, ss. 2
37, Section 68, as amended by 18-19
Geo. V, c. 9, s. 3-Art. 1184 C.C. P.
A judgment of the Court of King's Bench, affirming a judgment of the Superior
Court which had dismissed a petition in revocation of judgment, is a "final judgment" within the provisions of section 2
(e) of the Supreme Court Act.
Hudon v.
Tremblay ([1931] S.C.R. 624) discussed.- On an appeal from a judgment dismissing a petition in revocation of judgment and merely refusing leave to reopen the case and to "replace the parties in the same position as they were in before the fact which gave rise to the petition" (art. 1184
C.C.P.), there is no "amount or value
*
*
* in controversy in the appeal";
and the appellate court lacks in jurisdiction to grant special leave of appeal to this Court per saltum. (Section 37 of the
Supreme Court Act).-The provision whereby the Supreme Court of Canada may "receive further evidence ppon any question of fact" (section 68, Supreme
Court Act, as amended by 18-19 Geo. V, c. 9, s. 3), while leaving the matter to the discretion of the Court, may be taken advantage of only "on special grounds and by special leave."
An application to adduce further evidence directed solely to affect the credibility of witnesses is clearly not an application of the nature contemplated by the provision of the Act.
Moreover, in this case, the question whether the evidence brought out in the petition in revocation could be relied on by the appellant had been finally decided and had become res judicata between the parties.-The mere fact that the respondent had offered and paid to the appellant a sum of money (a cheque of $500 not cashed by the latter and offered back by him in his action for $15,000) to compensate for the damages he may have suffered on the condition he would abandon all right of action he may have, does not constitute in itself an acknowledgment of liability on the part of the respondent.
In this case, the appellant cannot succeed on that ground raised in his statement of claim, when all the surrounding circumstances are taken into consideration.
(Q.R. 53 K.B. 568) aff.
KowAL. v. NEw
YORK CENTRAL RAILROAD Co ......
APPEAL-Continued
2 - Jurisdiction - "Final judgment" (Supreme Court Act, R.S.C., 1927, c. 35, 8s. 2 36)-Appeal from judgment referring the record back to the trial court in order that some historical evidence, refused by the trial judge, might be received.]-The Supreme Court of Canada is without jurisdiction to hear an appeal from a judgment of an appellate court maintaining an appeal because of the refusal of the trial judge to admit some historical evidence and referring the record back to the trial court in order that such proof might be received in the record. Such judgment is not a final judgment within the meaning of s. 2 (b) of the Supreme Court Act, as it does not, in whole or in part, determine or put an end to the issue raised and in respect to which the judgment was rendered: it determined nothing with regard to the titles or the rights relied on by the parties and it is purely provisional. Such judgment is even not one in the nature of a judgment "directing a new trial" contemplated by s. 36 of the Supreme Court Act. ST. FRANcIs HYDRO Co. THE KING.... 566 3--Jurisdiction-Action in revendication of a cheque-No value in controversy- Bank and banking-Insurance company- Cheques drawn by insured for premiums to order of the company-Endorsed by company's agent and credited to latter's account by the bank-Moneys not refunded by agent to company-Action by company to recover amount of cheques from the bank.]-The appellant brought an action in revendication, directed against the respondent bank, of a post-dated cheque for $7,788.02 drawn by the city of Chicoutimi. The cheque had been handed to the appellant company's agent at Chicoutimi in error as to the amount and the city countermanded payment. The appellant's purpose in taking its action was merely to get the cheque from the respondent bank in order to remit or tender it back to the city of Chicoutimi.-Held that the appeal should be quashed, as the value in controversy from the point of view of the appellant company is insufficient to bring the appeal within the jurisdiction of this court.-The other action concerns three cheques amounting to $7,380.14 interest drawn by the mis-en-cause, the city of Chicoutimi, payable, in payment of insurance premiums, to the company appellant, with whom the city mis-encause had fire and workmen's compensation insurance.
Those cheques were delivered by the city mis-en-cause to one V6zina who, at the material times, was APPEAL-Concluded acting as agent for the appellant compiany, and was also mayor of the city of
Chicoutimi.
All these cheques delivered to the latter by the city before the premiums, for which they were severally intended to be iven in payment, were due. This was done on the instructions of the mayor, (Vdzina), himself.
They were all, either cashed by him at the respondent bank's branch in Chicoutimi, or discounted by him when post-dated, and the proceeds were all deposited by him in his own account at the respondent bank. The agent Vdzina having failed to remit the amount of these cheques to the appellant company, the latter, by its second action, claimed the amounts from the respondent bank.-Held, that the appellant company, under the circumstances disclosed by the evidence, was not entitled, on the form of action as taken by it, to recover from the respondent bank the amount of the above mentioned cheques. The appellant company might have a claim for damages against the respondent bank on the ground that through the latter a negligence, it deprived the appellant of the advantage resulting from the possession of the cheques, but, at this stage of the case, the appellant company is not entitled to obtain from this Court the right to amend its action and convert it into a claim for damages;
per Rinfret J. especially when the appellant still possesses its right against the city of Chicoutimi for the recovery of the premiums.-Per Rinfret J.-The question whether these cheques were properly paid by the respondent bank is a matter between the bank and the city of Chicoutimi. It was not the appellant company's funds that the respondent bank appropriated towards the payment so made: the cheques were the city's cheques and the moneys out of which they were paid were the city's moneys; and the matter resolves itself into one of accounting between the bank and the city.-Per Cannon J.-Under the circumstances disclosed by the evidence, the authority vested in Vdzina to collect premiums due to the appellant company and grant discharges, included the right to endorse cheques for the purpose of making the collection of his commission and of the moneys to be remitted to the appellant sixty days after the issue of the policies or when the amount due for workmen's compensation premiums would be finally adjusted.-Appeal from the
Court of King's Bench (Q.R. 55 K.B. 538)
aff.
FIRE INs. SocrETY
4---Juriediction-Right of appeal from dismissal, by court of appeal, of appealfrom judgment dismissing appeal from Master's report............................
See WILL 4.
APPEAL PER SALTUM.......... ASSESSMENT AND TAXATION-Constitutional law-Income received by trustee tn Ontario and paid over to persons out of Ontario--Trustee assessed by municipalty in 1932 for income so received and paid over in 1931-Assessment Act, R.S.O., 1927, c. 238 (as amended in 1930, c. 46), 8s. 4, 10, 13 (1) (4) (5) (6)-Nature and validity of the taxation-Direct taxation.-Appellant, a resident of Toronto, Ontario, was a trustee under the will of G. who had died in 1905, a resident of Toronto, Ontario. In 1932 appellant made a return to the assessment commissioner of Toronto shewing income received (in Ontario) during 1931 on a certain trust under G.'s will, which income had been paid over in 1931 to the persons entitled under the trust, who were domiciled and resident in the United States.
The city assessor, in the assessment roll prepared in 1932 upon which taxes for 1933 would be levied assessed appellant for the amount of said income.-Held: The assessment was legal under the provisions of as. 4, 10 and 13 1) (4) (5) (6) of the Assessment Act, R.S.O. 1927, c. 238 (as amended in 1930, c. 46); which provisions are intra vire.-The legislation discussed with regard to its purpose, construction and effect. It does not offend against the requirement that provincial taxation be "direct taxation". or
2- Land used as race course-Potential value as subdivision-Basis of assessment- Assessment of buildings-Business assessment-Assessment Act, R.S.O. 1927, c. 238, as. 4, 40 (1) (2) (3), 9 (1) (j) The land in question was owned by respondent, the "Ontario Jockey Club', an incorporated company, and it used the land as a race course, carrying on and managing race meetings thereon. Under the Assessment Act, R.S.O., 1927, c. 238, the appellant city assessed the land on the basis of its potential value as a subdivision, and also assessed for the value of the buildings thereon and for business assessment. The assessments were upheld (with variations in amounts) by the Ontario Railway and Municipal Board. The Court of Appeal for Ontario confirmed the assessment of the land alone at the amount fixed by the Board, but struck off the amounts for buildings and for business assessment.
The city appealed. (1) The buildings should be assessed only at their value for the purpose of being wrecked and removed, as, except to that extent, they added nothing to the potential value of the land as a subdivision.
It was improper to value the land as for purpose of a subdivision and then value the buildings on the basis of their being used for purposes of a race track.
4, 40 (1) (2) (3), of the Act particularly considered).-2. The fact that s. 9 (2) of the Act deals with clubs, and makes liable to a business assessment
"every proprietory or other club in which meals are furnished
*
*
*" does not necessarily exclude all clubs from the operation of s. 9 (1) (j), making liable for business assessment every person carrying on any of certain specified businesses
"or any business not before
*
*
* specially mentioned".
The question of whether or not respondent came within a. 9 (1) (J) could only be determined by investigating the facts concerning its organization and its operations; and there was evidence on which the Board could properly arrive at its conclusion that respondent was occupying or using the land for the purpose of a business within the meaning of s. 9 (1) (J), in view of s. 9
(12) which excludes the application of the ejusdem generia rule.-A corporation's liability to business assessment in connection with its lands on which it carries on its affairs does not depend on whether or not a profit is being made.-In the result, the judgment of the Court of
Appeal, [1932] O.R. 637, was varied, by increasing the valuation for assessment purposes by a sum for the value of the buildings for wreckage purposes, and by declaring respondent liable for business assessment (based on the valuation of the property as fixed by this Court).
CITY OF
ToRONTo v. ONTARIo CLUB..
3 - Municipal law - Exemptions - Lands used in connection with and for purposes of a college-Assessment together of exempt and non-exempt land-Taxing statute-Construction of-The Edmonton
Charter, 1913, c. 23, 8. 320 (5).-In 1924 the appellant corporation, the "Synod", purchased for the purposes of a college certain blocks of land in the city of
Edmonton, containing a little over eight acres, and erected college buildings on a portion thereof, and these have since been used by the Synod for the purposes of the college.
In 1930 the Synod acquired six other lots, now in question, which were not contiguous to the lands on which the college buildings were situated, and erected thereon four residences, or dwelling houses, for the use of the professors of the college.
No rent was charged or collected from the professors occupying these residences by the Synod, but the professors were entitled to occupy these residences only while engaged as professors of the college in the service of the
Synod, and a condition of their engagement was that residence accommodation would be furnished them rent free. The professors had some duties to perform in the college at night, such, for instance, as
ASSESSMENT AND TAXATIONsuperintendence and assistance to the students in their studies, and inspection of dormitories, and meetings of the faculty of the college.
The six lots in question had an area of .572 acres and with 3.428 acres comprising the sites of the college and buildings, formed just 4 acres. Section 320 of the Edmonton Charter provides that "All lands in the city shall be liable to assessments and taxation for both municipal and school purposes, subject to the following exceptions: * * (5) The land not exceeding four acres of and attached to or otherwise bona fide used in connection with and for the purposes of any
*
*
* college, * * * so long as such land is actually used and occupied by such institutions but not if otherwise occupied."-Held, Cannon and Crocket JJ. dissenting, that the appellant was not exempted from taxation as to the lots upon which the residence of its professors were situated.-Per Duff C.J. and Lamont and Hughes JJ.-Assuming in the appellant's favour that the professor's residences were "bona fide used in connection with and for the purpose of" the college, it has not been established from the facts as disclosed in the special stated case, (and the onus was on the appellant to bring itself strictly within the provision of the statute granting immunity) that these residences were "actually used and occupied by" the appellant institution, and "not otherwise occupied".-Per Duff C.J. and Lamont and Hughes JJ.-Section 320 does not give to an institution to which an exemption is granted the right to select the various pieces of property up to four acres to which the exemption would apply; under the Act, in the absence of any statutory provision indicating that the selection of the exemptions under the section may be made by the donee thereof and for giving notice of the same to the assessor, it is the assessor's duty to select the exemptions.-The other portion of the appellant's land, i.e., the site of the college buildings and the land immediately surrounding them, was assessed as a block described as 8.107 acres with the added words "4.107 taxable, 4 acres exempt".-Per Duff C.J. and Lamont and Hughes JJ.-Such an assessment invalid as it is impossible to ascertain from that description which particular piece of land is assessed and which is exempt.- Per Cannon J. dissenting.-According to the facts disclosed in the special stated case, the land and the professors' residences erected thereon were exempted from taxation under section 320 of the Edmonton charter. These facts and the plans fyled in the case established that the residence of the principal of the institution was a building used and occupied by him in connection and for the purposes of the college; and there is no difference in the present case, between the nature of the occupation of the principal's residence and that of the professors'.
Their presence was required and their residence in close proximity was necessary for the due carrying out of the purposes for which the appellant institution has been established.-Per Crocket
J. dissenting (concurring with Cannon
J.)-Whatever may be the meaning of the words "attached to," the alternative words "or otherwise bona fule used in connection with and for the purposes of"
point to other lots and buildings than those which may be contiguous to, or to use the words of the enactment, "attached to"
one another, and whether the lots and buildings are contiguous or not, the alternative words above quoted extend the statutory exemption to them if they are in fact bona fide used in connection with and for the purposes of any of the institutions designated.-Judgment of the
Appellate Division ([1933] 2 W.W.R. 310)
aff.
LUTHERAN
MIssoURI, CITY
EDMONTON........................
BANKRUPTCY - Bankruptcy of tenant
-Right of landlord to priority for three months' rent-Bankruptcy Act,
R.S.C.,
1927, c. 11, s. 126-Landlord and Tenant
Act, RS. ,Sask., 1930, c. 199, s. 42 to 48.]
The effect of section 126, of the Bankruptcy Act, R.S.C. 1927, c 11 is that in
Saskatchewan the rights of a andlord on the bankruptcy of a tenant are governed by sections 42 to 48 of the Landlord and
Tenant Act, R.S.S., 1930, c. 199.-Under the circumstances of this case the appellant, as landlord, was not entitled on the distribution of the property of his tenant, bankrupt, to a prior claim for money equal to three months' rent at the rate prescribed in the lease under the provisions of the above provincial Act.
TE
NEW Co.
MEN'S AssociAroN
....
............
2--Application to judge of Supreme
Court of Canadafor special leave to appeal- Judgment declaring a person to be a contributory-Liability of the latter being over
$2,000-No order for immediate payment of any sum of money-Winding-up Act
R.S.C., 1927, c. 213, s. 58, 59 1081
A judge of the Supreme Court of Canada has jurisdiction to grant leave of appeal to this Court, under section 108 of the
Winding Up Act, from a judgment ordering that the name of a person should be put on the list of contributories, its effect being to fix his liability at an amount over
$2,000, although such judgment does not condemn him to pay immediately a definite sum of money. As a direct result
BANKRUPTCY-Concluded of that judgment, such person may at any time be ordered by the bankruptcy court to make payments to the extent of the liability so fixed (ss. 58 and 59) and, therefore, the amount to which that liability extends is truly the amount involved in the appeal within the meaning of section 108.
3-Property divisible among creditors- Bankruptcy Act, R.S.C. 1927, c. 11, 8. 23 (a)-Future unearned salary of debtor - Allowance for maintenance-Competency to make, and form of, order.] Where a debtor in banktuptcy is in receipt of a yearly salary payable in weekly sums, his future weekly payments of salary, as they fall due, vest in the trustee in bankruptcy, under s. 23 (a) of the Bankruptcy Act, R.S.C. 1927, c. but (under a rule long recognized by the courts) subject to a fair and reasonable allowance to the debtor for maintenance of himself and his family according to their condition in life; and it is competent for the court to make an order, declaring that such future payments, to the extent that they exceed the allowance for maintenance fixed by the court, vest in the trustee from the time or times that they are received by or become owing to the debtor, and ordering the debtor, as he receives such payments, to pay the same (to the extent aforesaid) to the trustee, until creditors' claims and trustee's costs are satisfied.-Review of cases.-Judgment of the Court of Appeal for Ontario, [1933] O.R. 519, reversed, and order of Sedgewick J [1931] O.R. 147, restored.
CLARKSON V. ....... 4----Companie'
Creditors Arrangement See CoNsurrTrIONAL LAW 5. BANKS AND BANKINGS-Insurance company-Cheques drawn insured for premiums to order of the company- Endorsed by company's agent and credited to latter's account by the bank-Moneys not refunded by agent to company-Action by company to recover amount of cheques from the bank-Appeal-Jurisdiction - Action in revendication of a cheque-No value in controversy.] The appellant brought an action in revendication, directed against the respondent bank, of a post-dated cheque for $7,788.02 drawn by the city of Chicoutimi.
The cheque had been handed to the appellant company's agent at Chicoutimi in error as to the amount and the city countermanded pay- The appellant's purpose in taking its action was merely to get the cheque from the respondent bank in order to remit or tender it back to the city of Chicoutimi.- Held that the appeal should be quashed, as the value in controversy from the point of view of the appellant BANKS AND BANKING-Continued company is insufficient to bring the appeal within the jurisdiction of this court.-The other action concerns three cheques amounting to $7,380.14 and interest drawn by the mis-en-cause, the city of
Chicoutimi, payable, in payment of insurance premiums, to the company appellant, with whom the city mis-encause had fire and workmen's compensation insurance.
Those cheques delivered by the city mis-en-cause to one
Vzina, who, at the material times, was acting as agent for the appellant company, and was also mayor of the city of Chicoutimi. All these cheques were delivered to the latter by the city before the premiums, for which they were severally intended to be given in payment, were due. This was done on the instructions of the mayor, (Vzina), himself. They were all, either cashed by him at the respondent bank's branch in Chicoutimi, or discounted by him when post-dated, and the proceeds were all deposited by him in his own account at the respondent bank. The agent Vzina having failed to remit the amount of these cheques to the appellant company, the latter, by its second action, claimed the amounts from the respondent bank.-Held that the appellant company, under the circumstances disclosed by the evidence, was not entitled, on the form of action as taken by it, to recover from the respondent bank the amount of the above mentioned cheques. The appellant company might have a claim for damages against the respondent bank, on the ground that through the latter's negligence, it deprived the appellant of the advantage resulting from the possession of the cheques, but, at this stage of the case, the appellant company is not entitled to obtain from this Court the right to amend its action and convert it into a claim for damages;
e Rinfret J. especially when the appelt still possesses its right against the city of Chicoutimi for the recovery of the premiums.-Per Rinfret J.-The question whether these cheques were properly paid by the respondent bank is a matter between the bank and the city of Chicoutimi.
It was not the appellant company's funds that the respondent bank appropriated towards the payment so made: the cheques were the city's cheques and the moneys out of which they were paid were the city's moneys; and the matter resolves itself into one of accounting between the bank and the city.- Per Cannon J.-Under the circumstances disclosed by the evidence, the authority vested in V~zina to collect premiums due to the appellant company and grant discharges, included the right to endorse cheques for the purpose of making the collection of his commission and of the moneys to be remitted to the appellant
BANKS AND BANKING-Concluded sixty days after the issue of the policies or when the amount due for workmen's compensation premiums would be finally adjusted.-Appeal from the Court of King's Bench (Q.R. 55 K.B. 538) aff. FIRE INSURANCE Co. CHURCHES
See WILL 7
CIVIL CODE-Art. 610 (Of the qualities requisite to inherit)................. 2-Arts. 755, 758, 762, 776, 777 (Gifts inter vivos)........................ See NOTE. 3- Art. 868 (Legacies)............ See WILL 3.
4-Arts. 893, 900, 901, 904 (Revocation and lapse of wills and legacies) ....... 5- Arts. 925, 926 (Substitutions) ... 6- Art. 982 (Obligations) .......... See PoMIsSORY NOTE.
7- Arts. 984, 989 (Contracts)...... 249 8-Arts. 1053, 1054 (Offences and quasioffences)...................... 9-Art.
1065 (Effect of obligations). 528 10--Art. 1140 (Payment) ......... 11- Art. 1233 (7) (Testimony).... 550 12- Art. 1243 (Admissions) ....... 13-Art. 1488 (Things which may be sold)............................. 121 See Stran 1.
Art. 1508 (Warranty against evic- 15--Art. 1670 (Lease and hire of work) ............ ....
..
... 16- Art. 2103
(e) (Privilege upon immovables)....................... 16--Art. 2268 (Prescription) ... 121, 249 CODE OF CIVIL PROCEDURE-Art.
1114 (Habeas corpus)..............
See CORPUS
2-Art.
1184 (Petition in revocation of judgment).........................
COMPANIES-Constitutional validity of s. 110 of the Companies Act..........
See CONsTruTioNAL LAw 4.
2...........................
CREDITORS
AR- RANGEMENT ACT..............
CONSTITUTIONAL LAW - Marriage
-Action for declaration that marriage ceremony null and void-Want of parent's consent-Marriage Act, R.S.O. 1927, c.
181, ss. 17, 34-Validity of legislation- Jurisdiction of Supreme Court of Ontario- The Divorce Act (Ontario), 1930 (Dom.)- B.N.A. Act, s. 91 (26), 92 (12) (14).]
Plaintiff, aged 20, and defendant, aged 17, went through a form of marriage in
Ontario on December 2, 1930.
To obtain the marriage licence, defendant swore
(falsely, as known to both parties) that she was 18 ydars of age.
No parent's consent, as required by s. 17 of the Marriage Act, R.S.O.
1927,
181, was obtained.
Carnal intercourse had previously taken place between the parties.
The marriage was not consummated nor did the parties since the ceremony cohabit or live together as man and wife.
Plaintiff sued for a declaration that the marriage ceremony was null and void.- Held:
The action should be dismissed, as the
Supreme Court of Ontario had no jurisdiction to grant the decree sued for.- 8. 17 (requiring in certain cases parental consent as a condition precedent to a valid marriage) and s. 34 (providing that a form of marriage gone through without the required consent should be void; and giving the Supreme Court of Ontario power to entertain an action and declare the marriage void, but limited with regard to circumstances or conditions, such limitation excluding jurisdiction in the present case) of the Marriage Act (as it stood in
1930 and when the judgment at trial was pronounced) were intra of the Ontario legislature (Crocket J. dissenting as to the jurisdictional enactment in a. 34).-The construction and effect of es. 17 and 34 discussed.-In the exercise of its jurisdiction in relation to "the solemnization of marriage in the province" (B.N.A.
Act, s. 92 (12)), a provincial legislature may require parental consent to the marriage of a minor as a condition precedent to a valid marriage.-The Dominion statute, The Divorce Act (Ontario),
1930 (c. 14) (the construction and effect
CONSTITUTIONAL LAW-Continued of it discussed) did not affect the Ontario legislation in question, nor do the facts in the present case afford any ground for annulment of marriage under the Dominion statute.-The obtaining of the marriage licence by defendant's false affidavit as to age did not afford plaintiff a ground for annulment of the marriage (Plummer v. Plummer, [1917] P. 163, cited by Lamont J.).-Per Duff C.J.: The province's authority as to "solemnization of marriage" is plenary (Liquidators of the Maritime Bank of Can v. Receiver- General of New Brunswick, [1892] A.C. 437, at 442) and extends (inter alia) to attaching the consequence of invalidity absolutely or conditionally.
The province has power to prescribe rules governing its courts in exercising the jurisdiction conferred upon them by s. 34 (for giving effect by remedial process to rules of substantive law relating to "solemnization of marriage") because that power (1) prima facie affects matters falling within "solemnization of marriage" or "administration of justice" (in B. N.A. Act, s. 92 (12) (14)), and (2) could not be brought under any jurisdiction appertaining to the Dominion Parliament under any of the enumerated heads of s. 91 of the B. N .A. Act; as regards process designed to give effect to substantive rules of law competently enacted by a province-in execution of its exclusive authority under s. 92 (12) (solemnization of marriage), the Dominion could not intervene in any way with a view to sanctioning or contro ling any jurisdiction or procedure established for that purpose by a province (and therefore the power must be vested in the province -Att.
Gen. for Ontario v. Att. Gen. for Canada, A.C. 571, at 581).-Per Rinfret, Smith and Cannon JJ.: The provincial legislature had power to provide that the stipulated consent must be had under certain circumstances but should not be necessary under certain other circumstances.
But irrespective question of the validity of the marriage under (and on construction of) as. 17 and 34 (2), the plaintiff could not succeed in his action; the Ontario court had no inherent jurisdiction to entertain itits jurisdiction rested entirely upon the provisions of the Act, and s. 34 (2) excluded jurisdiction under the circumstances of this case.-Per Lamont J.: The provincial legislature had full power, under s. 92 (14) (administrative of justice in the province) of the B. N.A. Act, to enact s. 34; to give jurisdiction to the CONSTITUTIONAL LAW-Continued court in some cases and conditions and withhold it in others; and without s. 34 the court had no jurisdiction to declare null and void the going through of a form of marriage.-Per Crocket J.: The limitations in s. 34 upon the court's jurisdiction to declare a marriage void for want of consent, in effect prescribed conditions to the jurisdiction depending on matters which did not pertain in any way to "solemnization of marriage," but went beyond that subject and invaded the exclusive legislative authority of the
Dominion Parliament in relation to all other matters pertaining to the larger subject of "marriage and divorce" (B. N.A
Act, s. 91 (26)), and therefore the jurisdictional enactment in s. 34 (which, however, was severable from the substantive enactment therein) was ultra vires. But, apart from s. 34 (purporting to give jurisdiction only under conditions which did not exist in the present case) there was no enactment authorizing the court to pronounce the decree asked for; (the jurisdiction conferred by the Dominion
Act, 1930, c. 14, did not cover any jurisdiction to grant a decree of annulment for any cause which the provincial legislature has validly declared as a cause of annulment in exercise of its exclusive legislative authority upon the subject of
Solemnization of Marriage); nor (with some doubt -reference to Board v. Board
[1919] A.C. 956; also to the reasons in
Vamvakidis v. Kirkoff, 64 Ont. L.R. 585)
has the Supreme Court of Ontario inherent jurisdiction to do so.-Judgment of the
Court of Appeal, Ont
[1932] O.R. 601, affirmed in the result.
vKRR v. KERR 72
2- Waters and Watercourses-Real Property-Title to island claimed by Dominion and by Province-"Public Harbour"- "River Improvement"-B. N.A. Act, 1867, s. 108, and third schedule.j
Held that
Goderich Harbour, located at the mouth of the river Maitland, in Ontario, was
(applying the test stated in Atty. Gen. for
Canada v. Ritchie Contracting & Supply
Co., [1919] A.C. 999, at 1004, and upon the evidence), at the time of Confederation, a "public harbour" within the meaning of the 3rd schedule to the B. N.A. Act.
(Duff C.J. refrained from deciding whether, in view of a certain lease, the harbour was, at Confederation, part of the
"public works" or "public property" of the province, within s. 108 of the Act;
consideration of this question being unnecessary in view of the ground of decision of the appeal).-But held that, on the evidence, it was not established that
Ship Island (the land in question), was, at the time of Confederation, a part of the harbour, or a "river improvement" within said schedule; and therefore it could not be said that the island became the pro- CONSTITUTIONAL LAW-Continued perty of Canada under s. 108 of the Act.- Certain questions discussed, as to what forms part of a "public harbour" (and as to circumstances to be considered), and as to what would come under the designation of "river improvement," and authorities referred to. (Per Duff C.J.: The several descriptions in the schedule are not to be narrowly construed or applied-citing Atty. Gen. of Ontario v. Mercer, 8 App. Cas. 767, at 778.
Where there is a "river improvement" in the form of a definite physical structure consisting of a principal part and auxiliary or subsidiary works, the whole would pass and with it a title, at least, to so much of the site and of the subsoil as might be regarded as reasonably necessary to give the Dominion free scope for the complete discharge of the responsibilities it was expected to assume touching such works).-And held further, that a certain patent of lease made in 1862, under which the Crown in right of the Dominion of Canada claimed title by reason of a conveyance to it in 1927 of the lessee's rights, did not, on the description in the lease, include Ship Island.-The judgment of the Exchequer Court of Canada (Maclean j.-[1933j Ex. C.R. 44), that the title to the island was vested in the Crown in right of the Province of Ontario, subject to its lease (made in 1929) to respondent Forrest, affirmed. THE KING v. FORREST............. 3--Solemnization of Marriage Act, Alta., 1925, c. 39, a. 20, as amended in 1931, c. 16-Requirement of parental consent in certain cases as condition precedent to valid marriage-Constitutional validity-"Solemnization of Marriage in the Province (N.B.A. Act, s. 92 (12) ).] Sec. 20 of The Solemnization of Marriage Act, Alberta, 1925, c. 39, (requiring parental consent to marriage under a certain age), as amended in 1931, c. 16, (making the consent a condition precedent to a valid marriage except inWeertain circumstances) is intra virea., (Kerr v. Kerr, [1 1 Can. B.C.R. 72).-"Solemnization of Marriage" is not confined to the ceremony itself. It legitimately includes the various steps or preliminaries leading to it. The said statute, in its essence, deals with those steps or preliminaries in the province. The requirement, in the statute, of parental consent is one similar in quality to the other requirements therein concerning the banns or the marriage licences. It is one of the forms to be complied with for the marriage ceremony, and it does not relate to capacity.
it is a requirement which a provincial legislature may competently prescribe in the exercise of its jurisdiction in relation to "the solemnization of marriage in the province" (N.B.A. Act, s. 92 (12)) and to which it CONSTITUTIONAL LAW-Concluded may "attach the consequence of invalidity absolutely or conditionally"
(Kerr v.
Kerr, supra, at 75; Marriage Reference,
(1912] A.C. 880).-It was pointed out that the judgment does not express any view as to the competency of the Dominion, in the exercise of its proper authority, to legislate in relation to the capacity to marry of persons domiciled in Canada, that question not arising in this case.
Dominion legislation, as it stands, does not affect the present case.-Judgment of the Appellate
Division, Alta., [1933j 2 W.W.R. 609;
(1933] 4 D.L.R. 154, reversed. ArroR- NEY
V. UNDERWOOD.................
4--Companies--Companies Act, R.S.C.,
1927, c. 27, a. 110-Constitutional validity
-"Incorporation of companies"
(with objects not provincial)-B. N.A. Act,
91, 92.]
Sec. 110 of the Dominion Companies Act, R.S.C., 1927, c. 27, (as to directors' liability for declaring paying dividend when company is insolvent, or when payment of the dividend renders company insolvent or impairs capital), is intra vires of the Parliament of
The enactment is of a character that brings it within the class of topics that must be supposed to have been contemplated, in the light of existing experience, as falling within the subject of "incorporation of companies" within the meaning thereof as used in the
B.N.A. Act (and "incorporation of companies" with objects not provincial is within Dominion jurisdiction under the terms of ss. 91 and 92 of the B.N.A. Act).
110 DomiNioN Com- 5-The Companies' Creditors Arrangement Act, 1933, 23-24 Geo. V, c. 36 (Dom.)
-Constitutional validity-"Bankruptcy and
Insolvency" (B.N.A. Act, s. 91 (21) ).]
The Companies' Creditors Arrangement
Act, 1933, 23-24 Geo. V, c. 36, is intra vires of the Parliament of Canada. The matters dealt with come within the domain of
"bankruptcy and insolvency" within the intendment of s. 91 (21) of the B.N.A.
Act.-The Act discussed with regard to its aim, its features, its comparison with existing bankruptcy or insolvency legislation and the history of bankruptcy and insolvency law.
CONCERNING
CONSTI- Acr......
6-Assessment and Taxation-Income received by trustee in Ontario and paid over to persons out of Ontario............
See 7.
-Customshipping.......... 197
See CusToms.
CONTRACT-Dispute as to nature of agreement-Documents-Course of dealing -Evidence-Reversal of findings of trial judge-Trust-Moneys impressed tith trust-Implication-Repudiation-Failure of object of trust-Responsibility-Resulting trust.j Under an arrangement, the nature of which in certain respects was in dispute, respondent delivered to appellants certain certificates of shares belonging to him in G. Co. Under the arrangement, appellants sold the shares and, after the sale of them, remained accountable for $2,250 as part of the proceeds.
Respondent sued appellants for said sum.
His action was dismissed at trial, on the ground that the certificates of shares were delivered by respondent, who was president of G. Co., to appellants as the property of G. Co., having been lent by respondent to G. Co. for that purpose, to carry out a G. Co. transaction, and that appellants were accountable to G. Co. only (against which company they had an alleged, but disputed, counterclaim, not connected with the transaction now in question). Manitoba Court of Appeal reversed the judgment, holding that respondent personally held the shares, personally dealt with appellants, and was entitled to recover from them.- Held: The judgment of the Court of Appeal should be affirmed. the documents, the course of dealing, and the broad features of the situation as disclosed by the evidence (to which matters, it was held, in view of his reasons, the trial judge had failed, in respect of the cardinal issues of the case, to give sufficient weight), the dealings between respondent and appellants were with respondent personally.-Even assuming (as appellants contended) that the moneys for which appellants were accountable were to be paid to respondent as president of G. Co., in other words, to G. Co., to be applied by it in payment of shares to be issued to respondent to replace respondent's shares delivered to appellants, then such moneys, being moneys to be devoted to the payment of the purchase price of shares to be issued to respondent,. were impressed with a trust in favour of respondent; and the implication arose (applying the principles enunicated in The Moorcock, 14 P.D. 64, at 68, and Hamlyn v. Wood, [1891j 2 Q.B. 488, at 491) that it would be a violation of respondent's rights, a breach of the trust under which the moneys were held, to apply them in payment of any claim of appellants against G. Co., arising, at all events, out of matters not connected with the transaction in question. Appellants, by their long retentioi of these moneys under a claim of right to apply them against their alleged counterclaim, had repudiated the trust. Also, by reason of appellants' wrongful retention the trust had become impossible of fulfilment because, before the trial, G. Co. 18.C.R. CONTRACT-Continued went into liquidation.
moneys which, under the arrangement, were to be paid to respondent, whether as president of G. Co., or not, could no longer be applied in execution of the trust. The legal result was that, the object of the original trust having failed in consequence of repudiation by appellants and present impossibility of performance, a resulting trust attached to these proceeds of the sale of respondent's property, in favour of
IrD. v. KicKLEY...................
2---Construction of ice pier for Crown- Alleged delay of contractor-Work and contractor's plant, etc., taken over by Crown for completion of work-Claim by contractor for damages-Proposed change in plan of work-Lack of instructions in writing-Alleged conduct of Crown's engineers as excuse for contractor's delay-Petition of Right-Parties-Non-joinder of co-contractor.j Appellant and one
(who was not a party to the action)
contracted with the Crown to build an ice pier, and did some of the work. In the foundation work, the contract required excavating the bottom to bed rock by dredging. Dredges chartered by appellant abandoned the work because of difficulties encountered and appellant complained to the
Crown's District
Engineer that the dredging was impossible of performance.
The District Engineer changed the plan of the work so as to eliminate the dredging and secure the foundation by other means, and directed appellant to proceed on the plan as changed.
The District Engineer and appellant differed in their estimates of the nature of the change made and of the extra cost involved, and appellant asked for written instructions, which were not given.
A deadlock ensued and the time within which, under the contract, the work was to be completed, expired.
Crown's Chief Engineer gave notice to the contractors, in pursuance of a clause in the contract, to put an end to their "default and delay" and that, if within a certain time satisfactory progress was not made, the Crown would take the work out of their hands and complete it; and, the work not being proceeded with, the
Crown, on further notice, and purporting to act under said clause, took over the work and appellant's materials and plant and proceeded to complete the work according to the plan as changed. Appellant sued (on petition of right) for damages.-Held, reversing judgment of Maclean J., President of the Exchequer Court,
[1 1 Ex. C.R. 33, Lamont and Hughes
JJ. (dissenting)
, that, upon all the facts and circumstances and the proper construction of the contract the appellant was entitled to succeed.-Per curiam: The nature of
CONTRACT-Continued the change made in the plan was such as required, under the contract, written instructions from the Chief Engineeralso, in the absence thereof, the Chief Engineer's said notice requiring satisfactory progress to be made, must be taken to mean to proceed under the original plan.-Per Rinfret and Crocket JJ.: Previous to the change of plan there was no delay of which the Crown could now complain; and the delay after the change of plan was directly attributable to the Crown itself, because, while its District Engineer (a recognized departmental representative and the real controlling spirit in all that pertained to the contract and its execution throughout) had directed to proceed on the new plan, it failed to give written instructions, in accordance with the contract, to do so; therefore the taking over by the Crown of the work and materials and plant was not justified (Roberts v. Bury Improvement Commissioners, 39 L.J.C.P. 129, Lodder v. Slowey, 73 L.J. P.C. 82, cited). Further, the Crown did not bring itself within the clause under which it purported to act, as that clause, fairly construed, contemplated that the contractors should be made aware of the specific default or delay with which the engineer was dissatisfied, and, to justify under it, the Crown must show that the contractors were guilty of some default or delay in diligently executing some part of the contract work to the engineer's satisfaction (the intention being that the engineer in the exercise of his judgment should act justly and reasonably); and the facts failed to discharge that onus and, further, absolutely negatived justification of the Crown's act. The case should be sent back to the Exchequer Court for assessment of damages, with right to appellant to join V. in the petition (though quaere whether this was necessary, in view of the terms of the partnership agreement between the appellant and V. Atkinson v. Laing, 171 E.R. 901, referred to).-Per Smith J.: There was actually little delay on the contractors' part that counted, except what was caused by the miscalculation that it was practicable to do the dredging in the manner attempted. This was a miscalculation of the engineers that was relied on by the contractors, though they were not warranted in doing so by the terms of the contract. But, when the District Engineer directed the change of plan, the contractors were justified in insisting upon approval thereof by the Chief Engineer in writing before proceeding further. Although the notice by the Chief Engineer to proceed could mean only, in the absence of written instructions to the contrary, to proceed on the original plan, yet, as the Crown subsequently 74g CONTRACT-Continued proceeded on the changed plan the latter was the one clearly contemplated, and there was never any intention of resorting to the original plan.
The contractors were never in default as to the changes, and appellant should succeed on his claim.
The case should be sent back for assessment of damages in the manner directed by Rinfret and Crocket JJ.-Per Lamont
J. (dissenting): There was unreasonable delay by the contractors in engaging dredges.
It was not established that the dredging was impossible of performance;
on the evidence, it could have been done, though probably at considerable expense.
Moreover, in view] rof provisions the contract, appellant was not entitled to recover from the Crown his expense in connection with the attempt to operate the dredges on the footing of impossibility of performance.
contractors, with the contract before them, must be held to have known of the lack of authority to make the proposed change in the plan of the work in the absence of written instructions from the
Chief Engineer.
The trouble arose by reason of their failure to examine the bottom, though a certificate in their tender indicated they had done so.
They should have known beforehand whether dredges such as were employed were sufficient for the work. The Crown could not be mulcted in damages for alterations made by an official who had no authority to make them. The judgment
Exchequer Court should be affirmed, with the variation suggested by Hughes J.- Per Hughes J. (dissenting): The District
Engineer had no power to make the proposed alteration in the work, and, in the absence of written instructions from the
Chief Engineer, the contract, plan, and specifications remained as they were originally. The contractors must have been aware of said lack of power in the
District Engineer. The contractors were in default on the date limit set by the contract for completion; and the difficulty in dredging was not a valid excuse for such default (Thom v. The Mayor and
Commonalty of London, 1 App. Cas. 120, at 132; Connolly v. City Of Saint John, 35
Can. S.C.R. 186, referred to). Under the terms of the contract the Crown was entitled to take over and use appellant's materials and plant to complete the work, even with changes in plan. The appeal should be dismissed, but the judgment should be without prejudice to any proceedings in proper form which appellant might, if so advised, subsequently take against the Crown for the return of, or damages in respect of, any materials or plant not used up by the Crown in accordance with the contract and improperly withheld. BooN v. THE KING..... 457
CONTRACT-Continued
3--Sale---Quarry-Stipulation that vendor be hired for 10 years as superintendent of the business sold-Right of the purchaser to dismiss vendor before the expiration oJ that period-Misconduct of the vendor- Claim by the latter for salary after dismissal -Proper remedy to claim for damages- No case for specific performance-Purchaser not bound to first ask the courts to resiliate contract before dismissal of vendor- Whether sale annulled with the annulment of the contract of hire-Arts. 1065, 1670 C.C. The respondent, by a notarial deed passed November 6, 1929, sold to the appellant as a going concern, all the business carried by him as a quarry operator for the sum of $55,000; and it was stipulated in the deed that "in consideration of the present sale, the purchaser has present!y engaged the vendor as superintendent of the quarry purchased by the purchaser from the vendor, for ten years from the first day of October, 1929, at a salary of five hundred dollars ($500) a month, but it is clearly understood that the vendor will give his time, energy and capacity to the service of the said purchaser to run the said quarry." On the 10th of April, 1930, the appellant, not being satisfied with the services rendered by the respondent, dismissed him and paid his salary up to the 15th of April.
The respondent then brought the present action for $250, balance of his salary for that month, reserving his rights to claim the balance of his salary for the balance of the ten years.-Held that, on the facts, outside of the questions of law raised by the respondent, the record contains evidence of grave misconduct which gave ample justification for the dismissal of the respondent.-Held, also, that the respondent's recourse, if he had been as a fact dismissed without cause or valid reason, could only have been a claim for damages and he could not ask the court for an order compelling the appellant company to keep him in its employ. contract of lease or hire of personal service, owing to the personal character of the obligations which it contains, is not susceptible of a condemnation for specific performance: the appellant cannot physically be forced to keep the respondent in its employ, nor could the respondent be physically constrained to remain in the appellant's service.-Held, further, that the appellant was not bound to take legal proceedings before the courts to obtain the resiliation of the contract of hire before dismissing the respondent.-On the ground raised by the respondent that the contract of the 10th of October, 1929, was a single one and not susceptible of partial resiliation, i.e., that if the contract of hire was rescinded the sale also should be annulled, held that the agreement between the parties did not constitute an IND
CONTRACT-Concluded indivisible thing, each contract in the deed having its distinct individuality, and, therefore, the appellant had the right to resiliate the contract of hire without affecting the sale made in the same docu- QuARrEs v. DUPRA
4-Consideration-Subscription to fund to help college-Whether binding.
In the course of a canvass for raising a fund to increase the general resources and usefulness of a college, B. signed a subscription as follows: "For the purpose of enabling
Dalhousie
College maintain improve the efficiency of its teaching, to construct new buildings and otherwise to keep pace with the growing need of its constituency and in consideration of the subscription of others, I promise to pay"
$5,000 to the treasurer of the college.
B. died without making any payment, and the college claimed against his estate.
The subscription was not binding. The only basis for sustaining it as a binding promise could be as a contract supported by a good and sufficient consideration; and such a consideration could not be found in the subscription paper itself, or in the circumstances as disclosed by the evidence.-The words "in consideration of the subscription of others" in the subscription were insufficient to support the promise if, in point of law, the subscriptions of others could not provide a valid consideration therefor; and the fact that others had signed separate subscription papers for the same common object or were expected to do so did not of itself constitute a legal consideration.- The statement in the subscription of the purpose for which it was made, and the acceptance of the subscription by the college, did not afford a ground based on the doctrine of mutual promises for holding B.'s promise binding.
A reciprocal promise on the part of the college to do the thing for which the subscription was promised could not be implied from the mere fact of the acceptance by the college of such a subscription paper from B.'s hands.
And the fact, even if established, that the college made increased expenditures or incurred liabilities on the strength of the subscriptions obtained in the canvass, would not constitute a consideration so as to make B.'s subscription binding, in the absence of anything further indicating a request on B.'s part resulting in expenditures made or liabilities incurred.-Cases reviewed and discussed.-Judgment of the Supreme
Court of Nova Scotia en banc, 6 M.P.R.
229, affirmed.
DAMIOusIE COILoE
BovumER ESTATE.................
COSTS-Joinder of defendants ......
CRIMINAL LAW - Conspiracy-Evidence-Proof of unlawful agreement-Instances when evidence is relevant-Whether irrelevant evidence, prejudicial to accused, should be merely ruled out, or a new trial ordered, is a matter primarily to be decided by trial judge.] On a charge of conspiracy, the agreement itself, no doubt, is the gist of the offence; but the actual agreement need not be proven by direct evidence.
It may be gathered from several isolated doings, having possibly little or no evidentiary value taken by themselves, but the bearing of which one upon the other must be interpreted; and their cumulative effect, properly estimated in the light of all surrounding circumstances, may raise a presumption of concerted purpose entitling the jury to find the existence of the unlawful agreement.- Admissions directly from the mouth of the accused of a nature to elucidate the true meaning and the character of his relations with an alleged co-conspirator constitute relevant evidence.-On a charge of conspiracy to set fire to a building, evidence of a recent attempt on the part of the accused to induce another person (not connected with the present charge) to commit the offence, is relevant as tending to establish criminal intent and guilty design, if the defence is trying to assign an innocent purpose to the acts directly charged as establishing the conspiracy.-It is not error for a trial judge to permit proof of acts of the alleged conspiracy to be given in evidence before the agreement to conspire has been established, provided the latter is in fact proved during the course of the trial.-There may be extreme cases where an unexpected and irrelevant reference made by a witness to a statement alleged to have been made by an accused is so prejudicial, that merely ruling out the evidence is insufficient fully to protect the accused, and the jury should be discharged and the prisoner tried before a fresh jury. But it is primarily for the trial judge to decide whether such a course ought to be followed under the circumstances of the particular case; and a court of appeal will always approach with great caution a question as to the propriety of that decision. PAnAis v. TnE KiNG 165 2---Smuggling-When offence completed -Whether the master of a vessel had an opportunity of complying with the provisions of the law-Customs Act, R.S.C., 1927, c. 42, s. s. 203 (4) and s. 262.j Section 203, paragraph 4 of the Customs Act, which applies only to vessels arriving within three miles of the coast of Canada and section of the same Act, which impliedly allows the master of a vessel opportunity of complying with its conditions before being deemed to have committed the offence of smuggling, have no application under the following circumstances of this case: a vessel, on board of CRIMINAL LAW-Continued which were both appellants, having cleared from Levis, opposite Quebec, for
Gasp6, stopped somewhere below Rimouski to take over from a schooner a cargo of liquor and then turned back to try and land these smuggled goods at some point on the shores of the St. Lawrence, and then, to avoid capture by the Government patrol, the vessel was deliberately stranded and abandoned by its crew on the shores of Beaumont, within the limits of the harbour of Quebec, several hundred miles inland.-There is no conflict between the judgment appealed from and the decision in Rex v.Langille (57 Can. Cr. Cas. 151).- (Q.R. 56 K.B. 88) aff.
CHESNEL u.
TEiE KING .......
3-Wounding with intent to commit murder-Sufficiency of charge to jury- Criminal intent-Self defence-Defence of alibi-Inconsistency with other defences- Legal consequenccs from story of complainant being different from that of witnesses.]
On the trial for wounding with intent to commit murder, the complainant stated that at about a quarter to 6 o'clock on the evening of November 6, 1932, after turning south on Jackson avenue
Hastings street, in Vancouver, he turned and saw accused following him.
He then walked faster but as accused was catching up to him he ran diagonally across the road in a southeasterly direction.
When he reached the curb on the east side of the road the accused caught up to him and fired a shot at him with a revolver.
Accused then took $90 from his pocket and after firing two more shots at him ran across a vacant lot in a northeasterly direction, and on emerging on Hastings street he was recognized by two witnesses with a revolver in his hand. Two other
Crown witnesses, Irwin and Brodner, were standing on the southwest corner of
Hastings street and Jackson avenue, when they saw two Chinamen run from the northwest corner of Pender street and
Jackson avenue (Pender street being one street south and parallel with Hastings street) across Jackson avenue in a northeasterly direction, followed by a third
Chinaman who was calling to them in
Chinese and gesticulating with his arms, and when the two men reached the curb on the east side of Jackson avenue the rearmost of the two men turned and fired a shot at the man following, who fell.
He then "paused," stooped down and fired two more shots at him and he and his companion then ran northeasterly across the vacant lot.
The accused attempted to prove an alibi by several
Chinese witnesses who swore he was in
Victoria from the 2nd until the 12th of
November, 1932.
The accused was convicted. On appeal the conviction of
CRIMINAL LAW-Continued
McDonald J. was affirmed by an equal division of the Court.
Counsel for the accused contended before this Court that the trial judge should have instructed the jury that the accused was entitled to have them consider any alternative defence the supporting facts of which appear in the record and that, as the record shewed that the complainant was chasing the accused waving his arms and shouting in Orientaf, such conduct was sufficient, if the jury believed the evidence, to bring into play the sections of the Criminal Code relating to provocation and self defence.
He contended that the failure of the trial judge to adequately instruct the jury on the issue of self defence, was a misdirection which entitled the accused to a new trial. Counsel for the accused also contended that the trial judge failed to properly instruct the jury on the question of intent, and erred in his charge in not explicitly and fully instructing the jury as to the legal consequences flowing from the two contradictory stories, in respect to the conduct of the parties prior to the shooting, as related by the complainant on one side, and Irwin and Bodner on the other.-Held that, under the circumstances of this case, there was no duty on the trial judge to instruct the jury on the issues of provocation or self defence.
If it were material to the accused to prove that the words shouted in Oriental by the complainant amounted to provocation the onus was upon him to prove what the words were. In any event provocation, which would reduce murder to manslaughter, is not a defence to the charge as laid. Shooting in self defence would constitute a valid defence provided the accused brings himself within sections 53 and 54 of the Code. It is justifiable to repel an unprovoked attack if the force used by the accused is not meant to cause death or grievous bodily harm and is not more than is necessary for the purpose of self defence. It is justified, even if it does cause death or grievous bodily harm, if it is done under reasonable apprehension of death or grievous bodily harm to himself, and if he believes, on reasonable grounds, that it is necessary for his own preserva- There is no evidence in the record from which a jury could reasonably infer. that the accused when he shot the complainant did so under a reasonable apprehension of death or bodily harm to himself, or that he reasonably believed that he could not otherwise save himself from bodily injury. Such evidence is not in the record. The rule, therefore that an accused person at trial is entitled to have the jury pass upon all his alternative defences is limited to the defences of which a foundation of fact appears in the record. Even then the rule is not without IS.C.R. CRIMINAL LAW-Concluded exception, and one exception is, that it has no application where the accused, by his defence (alibi) which he sets up at the trial, has negatived the alternative defence for which he afterwards seeks a new trial.-The trial judge instructed the jury as follows: "If you believe that the accused did what the witnesses say was done by the man who assailed the complainant then he would be guilty of the charge laid."
Counsel for the accused contended that there was misdirection, because the trial judge's statement meant that the accused would be guilty of the crime charged irrespective of his intent, if the jury accepted the evidence of Irwin and Bodner that the complainant was pursuing the other two.-Held that the language used by the trial judge is not open to the meaning sought to be put upon it. It was intended to mean, and would be understood by the jury to mean, that if the accused shot and wounded the complainant, with a revolver, in the manner described by the three persons who witnessed the shooting, the accused would be guilty of wounding with intent to murder; or, in other words, if the shooting took place in the manner detailed by the witnesses, the intent was obvious and would be implied.
More than that if, under the circumstances of this case, the jury had, without any explanation from the accused as to his intent, reached the conclusion that intent to murder was not established, the verdict would have been perverse.-Held also that, as to the inconsistencies between the evidence of the witnesses, Irwin and
Bodner, and that of the complainant as to the actions of the parties before the shooting took place, it was for the jury to consider those inconsistencies if they thought they were material; and the jury must have given them full consideration and rejected them because they did not throw any light upon the shooting or the intent of the accused.
Judgment of the
Court of Appeal (48 B.C. Rep. 24) aff.
Wu KNa..................
CROWN - Tariff Board - Authority to determine questions of law-Authority as to orders of the Minister of National Revenue
-Whether its decisions, as to the value of goods for duty purposes, are subject to the approval of the Minister-British Preferential Tariff-Customs Act, R.S.C. 1927, c.
47, 48, 54-Customs Act, 8. 43 as enacted by c. 2 of 1930, 2nd session, 21 Geo. V;
subs. (1) of s. 43 as substituted by 23-24
Geo. V c. 7 of 1932-33-Tarif Board Act,
21-22 eo. V, c. 55.j The Tarif Board, as constituted under chapter 55 of the statutes of 1931, has no authority to determine questions of law as distinct from questions of fact.-The Tariff Board
CROWN-Concluded has no authority under that Act to determine that the orders of the Minister of National Revenue, fixing the values for duty of goods, under the authority of s. 3 of the Customs Act (c. 2 of 1930, 2nd sess.), prior to the enactment of c. 7 of 1932-33, were annulled and ceased to be effective from the date of the last mentioned enactment in respect of goods entitled to entry under the British Preferential Tariff.-The decisions of the Tariff Board, when acting under the provisions of part II of its constitutory Act, as to the value of goods for duty purposes, are subject to the approval of the Minister of National Revenue.
TARIFF 2---Contract .....................
CUSTOMS - Shipping - Constitutional law--Regulations under ss. 13 and 125 (3) of Customs Act of 1877 (40 Vict., c. 10)- Effectiveness- Nature of Legislation - Requirement, by s. 4 (1) of Merchant Shipping (Colonial) Act, 1869, Imp. (32 Vict., c. 11), of suspending clause in Act or Ordinance of legislature ofBritish possession "regulating (its) coasting trade"-Construction of regulations-Effect of nonpublication of later substituted regulation in Canada Gazette (Customs Act, R.S.C. 1927, c. 42, s. 301).1
Regulations 4 and 12 of those brought into force by Order in Council of April 17, 1883, which regulations 4 and 12 were made under ss. 13 and 125 (3) of the Customs Act, (1877) (40 Vict., c. 10, Dom.), and provided, inter alia, that an officer of customs might go on board a coasting vessel and if any goods had been unladen therefrom before the master had reported to a customs officer, the goods and vessel should be forfeited, etc., and that no goods should be put out of any coasting vessel while on her voyage by river, lake or sea, were legally operative, notwithstanding that the procedure described by s. 4 (1) of The Merchant Shipping (Colonial) Act, 1869, Imp. (32 Vict., c. 11), requiring that an Act or Ordinance of the legislature of a British possession regulating its coasting trade should contain a suspending clause providing that the Act or Ordinance should not come into operation until Her Majesty's pleasure thereon had been publicly signified in the British possession, was not observed. The matters dealt with in said ss. 13 and 125 (3) of the Customs Act, 1877, and said regulations 4 and 12 were not "regulation of the coasting trade" within the meaning of said s. 4 (1) of the Imperial Act of 1869.- That s. 4 (1) of the Imperial Act of 1869 was not intended to apply to matters such as those dealt with in ss. 13 and 125 CUSTOMS-Concluded
(3) of the Dominion Customs Act, 1877, or in said regulations, is indicated by its context, the effects and unreasonableness of a contrary construction, and especially from the circumstances in which it was passed. The Imperial Act of 1869 should be construed as an enabling statute creating legislative powers which did not previously exist, powers subject to prescribed conditions and exercisable according to a prescribed procedure.
A statute of such a character, or even fairly capable of being so construed, should not be applied in such a way as to impose conditions upon the exercise of the plenary authority which had been conferred by the B.N.A. Act, 1867, upon the Dominion to legislate in respect of customs.-The word "goods" in the phrase "or if any goods had been unladen therefrom" in said regulation 4 should not be construed as limited to dutiable goods or goods prohibited or smuggled (mentioned previously in said regulation).-By Order in
Council of May 31, 1901, the regulations of April 17, 1883, were amended by rescinding regulation 12 and substituting a new regulation 12, which new regulation was not published in the Canada Gazette as required by what is now s. 301 of the
Customs Act (R.S.C. 1927, c. 42).
that the part of the Order in Council rescinding the old regulation could not be severed from that part enacting the new one; the Order in Council was, in substance, an amendment of the existing regulations and, as such, fell within s.
301; if any part of the amendment did not take effect by reason of non-publication, then the whole was inoperative; the present case stood to be decided on regulations 4 and 12 as they stood under the
Order in Council of 1883.-Judgment of
Maclean J., President of the Exchequer
Court of Canada, [1 3 j Ex. C.R. 1, holding that the regulations in question, and the statutory provisions authorizing them, never became effective, and that the seizure of the vessel in question could not be maintained, reversed.
THE KING v. 197
DON MANUEL
See Nom.
DONATIO MORTIS CAUSA
See PRoMIssonY NoT.
EVIDENCE-Parol evidence-Commencement of proof in writing-What constitutes it-Facts which render alleged fact probable
-Arts. 1233 (7), 1243 C.C.j
At the time of his death, the late Hugh Quinlan had been engaged in business in partnership with the appellant, as general contractor since over thirty years.
In 1897 they had formed a commercial partnership during about 10 years, when they converted it into an incorporated company under the
EVIDENCE--Continued name "Quinlan, Robertson, Ltd." In 1929, they took a third associate, one Alban Janin and reorganized their company under the name of "Quinlan, Robertson & Janin Limited". The capital stock of the new company was equally divided between the three associates. About 1925, the late Hugh Quinlan jointly with the appellant and Janin agreed upon the principle that, in the event of the death of one of them, the survivors would buy the shares owned by the predeceased partner in the various companies organized for the carrying on of their joint undertakings.
Hugh Quinlan died on the 26th of June, 1927, leaving his last will and testament in notarial form, dated 14th April, 1926, by which he bequeathed all his property, apart from a few particular legacies, to his wife, but in trust jointly to the appellant and the Capital Trust Corporation, Limited, appointing them his testamentary executors.
A year or so before his death, Mr. Quinlan, on account of failing health, gradually withdrew from active participation in the conduct and control of the various enterprises in which he was interested, leaving the management of them to his associates and especially to the appellant.
As the improbability of his recovering his health became apparent, what he ought to do with his shares in the companies in which he and the appellant were interested became of increasing concern to Mr. Quinlan.
He discussed the matter from time to time with the appellant and eventually decided that the shares should be sold at minimum fixed prices. The appellant testified that, at his request, the legal advisor of the company ana Mr. Quinlan fixed the value of the shares at $250,000 and that, at Mr. Quinlan's demand, he put that decision in the form of a letter from himself to Mr. Quinlan and, three or four days before the latter's death, took it to Mr. Quinlan's house and read it to him before a witness and again discussed with him its subjectmatter. The letter, dated 20th of June, 1927, reads partly as follows." This will acknowledge your transfer of the following stocks to me: (1,601 shares of different companies), which stock represented all your holdings in the above I have agreed to obtain for you the sum of two hundred and fifty thousand dollars ($250,000) for the above mentioned securities, payable one-half cash on the day of the sale, and one-half within one year from this date, which latter half will bear interest at 6%. Should your health permit you to attend to business within one year from this date, I agree to return all of the above mentioned stocks to you on the return to me of the moneys I have paid you thereon including interest at 6%." IES.C.R. EVIDENCE-Continued appellant also testified that, having been unable to find a buyer for those shares, at the price agreed upon of $250,000, he had been obliged to keep them and had effectively paid to the estate that amount.
The evidence also shows that the appellant had in his custody or under his control certificates endorsed in blank by Mr.
Quinlan, on the 21st of May, 1927, when the appellant visited the latter, for the greater part if not for all of these shares, and that he before the death of Mr.
Quinlan, had the shares transferred on the registers of the companies respectively in his own name as owner.
On that same day, Mr. Quinlan dictated to his son a memo. specifying all the certificates of shares he owned in those companies with the following note: "Dep. in A. W.
Robertson's box," with the date of the.
endorsements, to wit: 21st of May, 1927.
The respondents are two of the children of the late Hugh Quinlan; and the material conclusions of their action are that the
Capital Trust Corporation, Limited, and the appellant, be dismissed as trustees and executors of the estate (destituds de leurs fonctions) for misfeasance in office and be ordered to render account of their administration of the estate; that the sale and transfer of the shares mentioned in the said letter of the 20th of June, 1927, be annulled and that the appellant be ordered to return them to the estate of the late Hugh Quinlan or to pay to it their value, which the respondents estimate at
$1,350,000.
At the hearing of the trial, the appellant proved, by his own testimony and by that of the witnesss there present that he had communicated the etter of June the 20th, 1927 to the late
Hugh Quinlan, at the latter s house, by reading it aloud; but when he proceeded to prove that the late Hugh Quinlan had acquiesced to the contents of the letter and accepted the agreement therein contained, the trial judge refused to allow this evidence and held that the acquiescence and consent of the late Hugh
Quinlan could not be proved by parol evidence.
The trial judge dismissed the two first claims of the respondent as to the
.dismissal of the executors and as to the order to render account; he annulled the transfer of the shares by the late Hugh
Quinlan to the appellant and he condemned the appellant to retrocede to the estate these various shares, with the profits made and the dividends paid since the death of the late Hugh Quinlan, or to pay their value as determined by him to be $408,728, but, in either case, the respondents were obliged to reimburse the appellant the sum of $270,000 paid by him, $20,000 being an amount mentioned in another transaction.
And this judgment, with certain modifications, was affirmed by the appellate court.-Held
EVIDENCE-Concluded
(reversing the judgment appealed from) that, upon the evidence and upon consideration of many other facts stated in the judgment, the transfer of the shares to the appellant bearing the signature of the late Hugh Quinlan, their possession by the appellant, the memo. dictated by Mr. Quinlan to his son and the understanding between the partners in case of death of one of them, were all facts constituting a commencement of proof by writing, and, consequently, parol evidence should have been admitted by the trial judge to prove that the late Hugh Quinland had acquiesced to the contents of the letter of the 20th of June, 1927. All these facts do not establish the assent of the late Hugh Quinlan to accept the sum of $250,000 for his shares; but they are facts which render probable the fact which the appellant wanted to prove. It is not necessary that facts or writings establish one of the elements of the fact to be proved; it is sufficient that they may constitute a starting point of a reasoning by the trial judge. The probability of an alleged fact is the criterion of the commencement of proof in writing. QUINLAN................... 2-Negligence-Motor vehicles-New trial.........................
3-Application to adduce new evidence before Supreme Court of Canada ...... 4-Contract-Course of dealing .... 5-Onus of proof ....... 431, 717, 725 WILL 8.
EXEMPTION
See AssEssmENT 3 EXPROPRIATION ............... FARM MACHINERY............ FRAUD.......................... See WILL 8.
GUARANTEE-Action against guarantor of account-Alleged extension of time by creditor to debtor-Alleged misdirection in charge to jury-Alleged insufficiency in direction, and in submission of questions, to jury-Failure to object at trial, as precluding objecting on appeal.j Appellants sued respondent as guarantor of an account of R. At trial, after answers b the jury to certain questions submitted, judgment was given dismissing the action GUARANTEE-Concluded
(the ground being that appellants had agreed with R. without respondent's consent to extend the time for payment), which was affirmed by the Supreme
Court of Nova Scotia en banc, 7 M.P.R.
On appeal to this Court:-Held:
The appeal should be dismissed.-On the evidence it could not be said that there was no reasonable basis for the jury's findings attacked by appellants.-Certain objections by appellants, claiming misdirection, insufficient presentation their case, and failure to direct in certain respects, in the trial judge's charge to the jury, were held to be not justified.- Held, further, that, had there been any nondirection or insufficient direction, or if there should have been, as contended, a further question submitted to the jury, the appellants, having failed on the trial to make objection or to request the submission of any further question to the jury, were precluded in the circumstances of this case from raising objection on appeal.
Nevill v. Fine Art & General Ins.
Co., A.C. 68, at 76, Seaton v. Burnand, [1900] A.C. 135, at 143, cited.
& V. MCCARTNEY..
HABEAS CORPUS-Minor child in care of third person-Action by parent to regain possession-Proper remedy-Child over 15 years of age-Right to choose where to live- Proper care by person in charge-Parent acting as if heedless or indifferent to child's future-Judicial discretion-Art.
C.C.P.j
The writ of habeas corpus is the proper remedy, as recognized by law and jurisprudence, of a parent who wishes to regain possession of a child alleged to be illegally kept or detained from him, as already decided in Stevenson v. Florant
([19251 S.C.R. 532).
Marshall v. Fournelle ([1927] S.C.R. 48) and Kivenko v.
Yagod ([1928j S.C.R. 421) also discussed followed. The meaning expression "restrained of his liberty" in article 1114 C.C.P., has been extended so as to include the case of a young child being kept in the custory of a person other than the one legally possessiong authority and control upon that child; but the main question to be decided in such cases is whether the child, according to the evidence, has been "confined or restrained of his liberty" within the meaning of that article.-The circumstances of this case are as follows: The child is almost 151 years old; he possessed a sufficient degree of intelligence and gave expression to his wishes to stay with appellant in a "categorical manner" which the trial judge found "reasonable", in the light of the circumstances of the case. After the mother's death when the child was one month old, the respondent (the father)
voluntarily placed him in the care of his maternal grandmother and of his aunt,
HABEAS CORPUS-Concluded his mother's sister (the appellant's wife), the latter bringing him up with her own resources and always taking care of him with true maternal love. On the other hand the respondent acted as if he was heedless or indifferent to his child's welfare; although living in the same city, he never went to see him and it was the appellant's wife who had to bring the child to him so that he could see his father. The appellant, although wishing to keep the child, added in the pleadings that the latter remained with him of his own free will, that he was not deprived of his liberty and that he was free to go back to the respondent if he so desired.- Held that, in the circumstances of this case, this court ought not to interfere with the judicial discretion exercised by the trial judge in dismissing the writ of habeas corpus; although the child will always be free to go back to his father, the respondent, this court cannot declare that he is "confined" or "restrained of his liberty." -Per Cannon J.-The question to be decided is not simply whether the minor child "is confined or restrained of his liberty", but rather if his stay elsewhere than with his father or mother is contrary to law.
The existence of illegal detention must be declared when paternal authority, which exists mainly for the benefit of the child and not for the exclusive advantage of the father, is unduly interfered with. Therefore that authority must always be upheld whenever a change in his present conditions would obviously be advantageous to the child. On the other hand, when the child is old enough to be capable of a judicious choice and further, when the circumstances show that his moral, religious, intellectual and physical interests would be safeguarded by the ratification of his choice, the Court may find that there is no ground for the habeas corpus. But, in such a case the legality of the child's stay elsewhere than with his parent must be established. It must be said, that in the light of all the circumstances, "parental" authority has to give way to the authority of the Court, representative of the Sovereign "parens patriae", whenever it is in the child's interest.-Judgment of.the Court of King's Bench (.R. 54 K.B. 82) reversed.
FEBVRE........................... HIGH WAYS
INFANT
INSURANCE, ACCIDENT - Cause of death-Combination of injury and disease -Misrepresentation in the application as to age- Not a warranty and not promissory INSURANCE, ACCIDENT-Continued
-Whether an election by insurance company to treat policy as valid-Whether provision as to age limit should be printed in red ink-The Alberta Insurance Act, 1926, c. 31, sections 266, 267 and statutory condition 2-The Accident and Sickness Policy
Act, Alta., 1923, c. 48, e. 8-Alberta
Insurance Act Amendment Act, 1929, c. 62, a. 10.-The action was brought by the respondent, the daughter of the assured and named beneficiary, against the insurer, the appellant com pany, on a policy of insurance commonly called an accident policy.
On the 11th day of
December, 1931, the assured fell from a platform, was seriously injured his leg being broken, and was removed to hospital; later on, a condition of uraemia ensued which resulted in his death on the 23rd of December, 1931.
At the time of the accident, the assured was 70 years of age.
The application for the insurance was made six years before and his age was stated then to be 54. One of the "miscellaneous provisions" (No. 5) at the end of the policy provided: "The insurance under this policy shall not cover any person under the age of 18 years or over the age of 65 years."
The trial judge dismissed the action, which judgment was reversed by a majority judgment of the
Appellate Division, which awarded to the respondent the sum of $7,675, interests and costs.-Held, reversing the judgment of the Appellate Division ([1933j 1 W.W.
R. 282), that the appeal should be allowed and the respondent's action dismissed; miscellaneous provision No. 5 of the policy is, under the circumstances of the case, a bar to the claim of the respondent.-Per Duff C.J. and Lamont
Smith and Hughes JJ.-The assured had made a material misrepresentation as to his age in the application for insurance as found by the trial judge, which finding was not disturbed by the Appellate
Court but under the circumstances of this case, this material misrepresentation made by the assured was not available to the appellant company as a defence to the action-Statutory provision 2 printed in the policy and section 267 and statutory condition 2, schedule E of the Alberta
Insurance Act, 1926. The misrepresentation by the assured was not a warranty
.and was not promissory.-Under the cir- -cumstances of this case and the documents and letters filed at the trial, there was no election by the appellant company to treat the insurance policy as vaid- (Scarf v. Jardine, 7 App. Cas. 345); and therefore the appellant did not waive by election miscellaneous provision 5 of the policy.-As to the ground raised by the respondent that miscellaneous provision 5 came within section 8 of the
Accident and Sickness Policy Act, Alberta,
1923, c. 48, and therefore "shall be
INSURANCE, ACCIDENT-Concluded printed ; in conspicuous type * * * and in red ink," held that miscellaneous provision 5 is a clause limiting and defining the risk rather than a variation of the statutory conditions.-The enactment of section 4 of the Accident and Sickness Policy Act, Alberta, 1923, does not preclude the parties to an insurance contract from exercising the right they otherwise would have possessed to define or limit the risk in the manner set out in miscellaneous provision 5; in other words, this section 4 does not curtail the contracting powers of the parties in such a way as to prevent them from defining or limiting the risk, "the event insured against," by providing that it shall not include events happening, after a fixed date or after the insured shall have reached a certain age.-However, the cause of death must be held to have been within the wording of the policy; but even if it was not so the loss would probably be covered by the wide wording of section 4 of the 1923 Act already referred to.- Cannon J., concurring in the conclusion that the respondent's action should be dismissed, was of the opinion that the assured, being 70 years old when the accident happened, was outside the scope of the contract on which the action was based.
CASEY...................... INSURANCE, AUTOMOBILE - Statutory condition No. 5 (Alberta Insurance Act)-Exception of liability when driver intoxicated - Applicability to insured Action by injured person, a passenger against insurer under section 180 Alberta Insurance Act
Whether public policy prevents injured person recovering when insured driver was intoxicated Contract - Illegality - Public policy - Contract of indemnity against criminal act-Effect of estoppel of insurer-Alberta Insurance Act, 1926, c. 31, s8. 179, 180, 254-Criminal Code, a. 285 (4)-Alberta Vehicles and Highway Traffic Act, 1924, c. 31, 8. 59.-The respondent Lindal, who was injured in an accident while being driven by the respondent Beattie in his motor car, sued him for damages. respondent Beattie was insured under a "combination policy" issued by the two appellant companies, under which he was insured by one company with respect to legal liability for bodily injuries or death and by the other with respect to damage to his car. The respondent Beattie had given notice of the accident to the appellant companies, which made a full investigation and, after unsuccessful efforts to reach a settlement with the respondent Lindal, undertook the defence of the action against the respondent Beattie, which action was maintained for $1,636.05 and $353.40 costs. After a return of nulla bona, the respondent Lindal brought an action against the appellant companies under section 180 of The Alberta Insurance
Act, 1926, c. 31.
The respondent Beattie also brought action against the appellant companies, claiming to be indemnified from the Lindal judgment and also for the damage suffered to his automobile.
both, actions the appellant companies alleged that the respondent Beattie was intoxicated and contended therefore that, under statutory condition No. 5 of the
Alberta Insurance Act, they were relieved from liability.
The trial judge, Ives J before whom both actions were tried together, found that the respondent
Beattie was intoxicated and he dismissed both actions; but that judgment was reversed by a majority of the Appellate
Division.-Held, Crocket J. dissenting that this appeal should be allowed and the, respondents' actions dismissed--Statutory condition 5 of schedule d. of the
Alberta Insurance Act, 1926, c. 31, provides that the insurer under an automobile insurance policy shall not be liable under the policy "while the automobile
*
*
* is being driven by
*
*
*an intoxicated person."-Held, that this condition, as to intoxication, does not apply to the insured himself.-Held, also that the fact, that respondent
Beattie's act occurred while be was
"manifestly"
intoxicated when driving his automobile at the time of the accident, as found by the trial judge, constituted a violation of section 285 (4) of the Criminal Code sufficient to prevent him from recovering on ground of public policy.
Crocket
Y. dissenting.- Held also, Crocket J. dissenting, that section
179 of the Insurance Act of Alberta has no application to contracts for indemnity in respect of losses occasioned by violating some provisions of a Dominion statute
(in this case, respondent- Beattie violated section 285 (4) of the Criminal Code providing penalties for driving an automobile when intoxicated).
The Alberta legislation does not directly validate a contract of indemnity which would otherwise be invalid because the insurer has proposed to insure against an act or the consequences of an act that would be a criminal offence under the Criminal Code, or under the criminal law of the Dominion prevailing throughout Canada as distinguished from the penal laws of the province.-Held, also, that the appellant companies, by undertaking the defence of the action brought by the respondent
Lindal against the respondent Beattie were not estopped from denying liability on the policies although they had full knowledge of the circumstances surrounding the accident. The real foundation of the appellants' defence was not,
INSURANCE, AUTOMOBILEthat the policy was not in full force and effect, but that they never contemplated indemnifying the respondent Beattie for liability arising through his own criminal Crocket J. expressi no o inion. HoME CO. N.Y. V. BEATrIE...................... JUDGMENT-Power of court to amend judgment..........................186 JURY - Negligence-Motor vehicles- Misdirection---Objedion not taken at trial- New trial......................... 2 - Findings - Excessive damages awarded by jury-New trial as to amount .33 .. 3-Conduct of case at trial-Nondirection-Right on appeal.......... 4-Alleged misdirection and insufficiency in direction-Failing to object at trial.. 494 LANDLORD AND TENANT -Lease - Transfer-Right of renewal-Exercise by transferee- Notice to landlord-Liability of principal lessee for rent for the period of the lease renewed.-The Selby estate (respond ents) leased to the Delco Appliance Corporation (referred to in the judgment as Delco Company) (appellant) a store on St. Catherine Street West, Montreal. The lease was dated the 6th day of April, 1927, and made for the term of five years, from the first day of May, 1927, subject, however, to the right of renewing the lease for a further period of five years from the expiration thereof. The material parts of the lease are as follows: "5. The lessee shall have the right to transfer its right in the present lease or sublet any part or portion of the above leased premises, subject however to the lessee continuing at all times responsible for the due fulfilment of all its obligations under the present lease.
*
*
* Right of Renewal.
The lessee will have the right of renewing the present lease for a further period of five years from the expiration hereof, for the rental of sixteen thousand dollars per annum during the said additional period of five years, and subject otherwise to all the other terms and conditions of the present lease, provided it gives the lessors notice in writing not later than the first of November nineteen hundred and thirty-one that the lease is so renewed."
On the 12th day of November, 1930, the Delco Light Com- Joseph Ostro "all the unexpired term to LANDLORD AND TENANT-Continued be accounted and reckoned as and from the first day of January (1931) of that certain lease"
*
*
* and specifically the right "of renewing the said lease for a further period of five years on giving to the lep.or notice in writing prior to the first day of November, nineteen hundred and thirty-one."
On March 12, 1931, Ostro wrote to the appellant company, giving it notice that he intended "to exercise the option mentioned in the lease and to remain in possession
*
* premises
*
*
* for a further period of five years from the 1st of May, 1932."
On April 13, 1931, Ostro, by notarial deed, which he caused to be signified upon the respondents, declared and notified them that he exercised the right of renewal.
On April 18, 1931, the appellant company evidently unaware that
Ostro had already done it wrote to him acknowledging receipt of his letter of the
12th of March, 1931, and advising him of the necessity of giving himself notice to the respondents as to the exercise of the right 9f renewal.
On the 30th of
October, 1931, the appellant company, being aware of some financial embarrassment of Ostro, had a notarial document served on the respondents to the effect that the appellant "disavowed the action of Ostro in renewing the lease for a further period of five years."
The respondents on November 6, 1931, advised the appellant that they held it responsible for the fulfilment of its obligations under the lease for the renewal period of five years.
On August 5, 1932, the Selby estate brought action, both by principal and incidental demands, against the Delco company, claiming rental for the premises for the months of May, June, July and August, 1932, altogether a sum of
$5,333.32, which was contested by the
Delco company, but the Superior Court and the Court of King's Bench unanimously maintained the action.-Held, affirming the judgment of the Court of
King's Bench (Q.R. 56 K.B. 263), that, under the circumstances of this case contained in the headnote and more fully stated in the judgment now reported, the respondents' action should be maintained. Among the rights, derived from the contract which the Delco company was expressly authorized to transfer, was comprised the right of renewal. To the right of renewal was attached the condition that it shall be "subject otherwise to all the other terms and conditions of the present lease."
And among the other terms and conditions to which the right of renewal was so made subject, there was the condition that, if the right of transfer is exercised by the Delco company, it shall be "subject, however, to (the company) continuing at all times responsible
D EX
LANDLORD AND TENANT-Concluded for the due fulfilment of all its obligations under the present lease" (or contract); one of the obligations being, of course, the payment of the rent. From the moment that the Delco company assigned to Ostro its right of renewal, the assignment necessarily carried with it, on the part of the company, the liability for the rent during the last period of five years, if the renewal was duly effected by Ostro.
Now, the notice of renewal given by Ostro to the respondents, which did not require to be accepted by them, was sufficient to bind them and to effect a renewal of the lease ipso facto.-Under the terms of the original contract, in order to renew the lease, the Delco company had to give the Selby estate a notice in writing not later than the 1st of November, 1931.
The right of renewal was expressly transferred
Ostro. The transfer carried with it the right by Ostro to request the Delco company itself to give the notice in writing if that were required to insure the renewal. Ostro, in due time, notified the Delco company of his intention to exercise the option. The legal result was that, by force of the terms of the transfer, the Delco company was bound to carry out its obligation to have the lease extended and to give the notice itself if it were necessary.-The question whether the transfer of the lease and the rights thereunder is the transfer of "droit de cr~ance" requiring service upon the Selby estate before Ostro could acquire possession available against the estate, is a question solely for the Selby estate itself. It might have been raised by that estate, but it was not open to the Delco company, who was bound to make ood the transfer to Ostro (Arts. 1570 .C.& seq.)
Con- SELBY................. 2- Landlord and Tenant Act, R. S. Sask. 1980, c. 199, ss. 42 to 48.
LEASE
MARRIAGE ACT OF ALBERTA. 635 MARRIAGE ACT OF ONTARIO- Sections 17, 34-Validity ........... MECHANICS' LIENS - Mortgages - Priority as between lien and mortgage- Priority as between lien and mortgagee's expenditure in completing building-Lien chargeable as general lien against several building8-Mechanics' Lien Act, R.S.O., 1927, c. 173, s. 5, 32 (2), 7 (3), 13 (1).- Respondent, who had a contract "to do the brickwork and supply the bricks for five" adjoining detached duplex houses at MECHANICS' LIENS-Continued a price of "$4,080 per building or a total of $20,400 for the complete contract,"
performed it and registered a lien, under the Mechanics' Lien Act, R.S.O., 1927, c.
173, for the balance due him. Subsequently, one of the houses, hereinafter called the "corner house" being in an unfinished state, appellant, who held a mortgage, originally made to one R., on the property, started foreclosure proceedings and, under a writ of possession went into possession of it and completed it, a covenant in his mortgage entitling him to complete it and to add the cost thereof to his mortgage debt. A question arose as to priority between his cost of completion and respondent's lien.
Also a question arose as to priority between respondent's lien and a certain mortgage on the corner house lot, made and registered prior to commencement of the building, to one W assigned to one A., and, after the trial herein, assigned to appellant.
This mortgage, while held by A., was, on the making of the mortgage to R. above mentioned, postponed, under an agreement by A., to the mortgage to
R., which mortgage to R. (assigned to appellant) was that on which appellant, as aforesaid, took proceedings and went into possession of, and completed, the corner house.-Held (1) On construction of respondent's contract, as a whole, it showed the intention of the parties thereto to treat it as one entire contract covering all the buildings.-(2) Respondent's lien was chargeable against all the land, irrespective of the work and materials which went into each building.
In applying the
Act the court may and should have regard to the contract under which the work or materials claimed for were provided; and where the parties by their contract have treated several buildings upon contiguous lots belonging to the same owner as upon one property, the lien claimant is entitled to have the lien applied as a genera lien upon all the land. However difficult it may be to find a satisfactory basis for this principle in the words of the Act itself (i.e., in s. 5, the controlling section, which creates the right of lien; if the lien were for supply of material only, the right to maintain it as a general lien upon all the buildings would exist under s. 32 (2)), the principle has been so long and so generally recognized that it must now be taken as settled law. (Ontario Lime Accn.
v. G rinwood, 22 Ont. L.R. 17; Polson v
Thomaon, 29 D.L.R. 395, at 401 and other cases, cited and discussed.)-(3)
Respondent's lien
(extending to the amount owing him for work and material on all the buildings) had priority over ellant's claim for cost of said comption. The intention of the Act, as isclosed by ss. 7 (3) and 13 was clearly to limit the security of a registered
MECHANICS' LIENS-Concluded mortgage, as against lien claims, to the actual value of the property as at the time the first lien arose, and to exclude from the operation of that security all payments and advances made thereunder y the mortgagee after such lien claims have been registered.
And the payments and advances so excluded would include the cost of completion in question.though not having brought an action to enforce his own lien, could, to hold his lien in its priority, rely upon the statement of claim of another lien claimant whose claim was dismissed.-(5) The said mortgage to W assigned to A. and later to appellant, had priority over respondent's lien; such priority was not lost by the said agreement of postponement of it to the mortgage to R. (On this point, the judgment of the Court of Appeal was reversed; Crocket J. dissenting).-Except as above stated, the judgment of the Court of Appeal, Ont.
O.R.
617, was affirmed.
v. HART........ MINING.................... MINOR CHILD - Custody - Parental right-Religious faith.- Appellants applied in the Supreme Court of Ontario for the custody of their infant child who, for about ten years from early infancy, had been in the care of respondents. Appellants were Roman Catholics and respondents were Protestants and the child had become identified with respondents' church. The application was dismissed, an appeal to the Court of Appeal for Ontario was dismissed, and an appeal was brought to this Court.-Held: In view of all the circumstances and the considerations in making the orders dismissing the application, those orders should not be disturbed.-Per Duff C.J. and Smith and Crocket JJ.: The father's authority as to the religious faith in which his child is to be educated, however wide it may have been at common law, must now be measured by the rules of equity, which, by express provision in the Judicature Act, prevail in Ontario, and which, on an issue like the present one, recognize the welfare of the child as the predominant consideration.
If the child's general welfare requires that the father's rights as to the religious faith in which his child is to be reared be suspended or superseded, the courts in the exercise of their equitable jurisdiction have power to override them, though in doing so they must act cautiously.
Due consideration must be given to the father's wishes, but if the court is satisfied, upon consideration of all the facts and circumstances though no serious misconduct of the father is proved), that those wishes con- MINOR CHILD-Concluded flict with the child's own best interests, viewed from all angles-material, physical moral, emotional and intellectual as well as religious, then those wishes must yield to the child's welfare.
(In re
O'Hara, [19001 2 I.R 232 at 239, 241;
Ward v. Laverty [1925j A.6. 101, at 110, cited).
The orders made in the present case were justified.-Per Rinfret J.: The rules of equity must prevail and a very great discretion is vested in the judge hearing the application. Having regard to all the circumstances, it cannot be said that the discretion has been wrongly exercised in this case.-Per Hughes J.:
It is an equitable principle that the court may control or ignore the parental right but in so doing should act cautiously, and should act in opposition to the parent only when judicially satisfied that the child's welfare requires that the parental right be suspended or superseded.
As the orders herein were in their nature discretionary, and were affirmed by the
Court of Appeal, there was no principle on which this court could interfere.
DE
JACKSON...............
2-In care of third person
Habeas corpus............................
See CORPUS.
MORTGAGE
See MECHANICS' LIEN
MOTOR VEHICLES - Negligence - Highway Traffic Act, P.E.I., 1930, c. 1, e. 65-Construction-Onus of proof-Contributory negligence-Conduct of case at trial as affecting right on appeal to complain of non-direction to jury-Liability of owner of motor car- Nature of presumption under s. 65 (2).j
The judgment of the
Supreme Court of Prince Edward Island en banc, 7 M.P.R. 346, affirming (on equal division of the court) judgment against appellant, as owner of a motor car, for damages for injury to plaintiff, who, it was alleged, was struck by the car through negligent driving thereof by one S., was affirmed.-It was held that there was sufficient evidence to warrant the jury's finding that the said car was the one which struck the plaintiff.- Appellant contended that there was evidence of contributory negligence as to which the trial judge should have instructed the jury.
Held: (1) A conclusive answer was found in the terms of s. 65 (1) of the Prince Edward Island
Highway Traftic Act (placing the onus of proof that the damage "did not arise through" the negligence of the owner or driver upon the owner or driver); the submission of the question to the jury would have been irrelevant and futile; the most a finding of contributory negligence could have proved would be that the
(2) On the evidence such finding could not reasonably have been made.
(3) Although contributory negligence had been pleaded, yet, at the trial, the whole defence was that said car was not the one which struck the plaintiff, that it was elsewhere at the time of the accident, and there was no suggestion of reliance upon the question of contributory negligence nor any request to direct the jury upon it; therefore appellant could not now complain of non-direction to the jury upon it.-In s. 65 (2) of said Act (providing that, in an action for damage sustained by reason of a motor vehicle upon a highway, a person driving it with the consent, expressed or implied, of the owner, "shall be deemed to be" the agent or servant of the owner and to be employed as such and "shall be deemed to e* driving it in the course of his employment) the words "shall be deemed to be" must be construed as creating a conclusive, not a rebuttable, presumption. & 2- Negligence-Evidence.......... 128 Negligence-Failure of firemen to prevent spread of fire-Dangerous situation - Alleged negligent delay by local Public Utilities Commission in shutting off electric current-Liability of municipality.] Appellants' mill in the city of Chatham Ont., was destroyed by fire, which started by lightning striking the electric wires by which power was supplied to the mill by the Chatham Public Utilities Commission (established under the Public Utilities Act, R.S.O. 1914, c. 204), and setting up an electric are or short circuit at a point where the wires entered the conduit pipe running down the outside corrugated iron covered wall. The fire brigade of respondent, the City of Chatham, came to the fire but feared to cut the wires (for which they had certain appliances), or to fight the - fire until the electric current was shut off.
Telephone calls were sent to the operator at the Commission's sub-station, who refused to switch off the current without the Commission manager's instructions, and by the time the manager arrived and the current was shut off and the wires cut, the fire had spread and the mill could not be saved. Appellants claimed damages from the respondent City alleging that the destruction of the mil was owing to negligence of it or its servants or agents.- Held, Crocket J. dissenting, that the
City was not liable.
Judgment of the
Court of Appeal for Ontario, [1933] O.R.
305, affirmed.-Per Duff C.J., Rinfret
Lamont and Smith JJ.: There appeared no adequate reason for rejecting the findings of the trial judge and the majority of the Court of Appeal that, in the circumstances, the Commission's officials or servants had not acted unreasonably or negligently.
(As to the governing rule in regard to the questions of fact in the appeal, Johnston v. O'Neill, [1911] A.C.
552, at 578, was cited).
(The questions, whether the Commission, and whether the City, would have been liable for negligence of the Commission's servants, were not decided, decision thereon being unnecessary).
As to the complaint that the firemen failed to take proper measures to stop the fire-the City was not liable in damages for what was merely inactivity on the part of the firemen.
(Duff C.J.
and Smith J. agreed with the reasons of
Davis J.A. in the Court of Appeal who so held and who was further of opinion that in any case the firemen were not negligent under the circumstances.
&
WILLSON V. ....... 353
2---City by-law expropriating land for park purposes-Action against city for amount of compensation on an alleged agreement-Requirements to create binding contractual obligation on city-Necessity further by-law-Municipal Act, R.S.O.
351, 396 (45).]
The appellant City, by its Council, passed a by-law, on November
2, enacting that certain described lands, which included land owned by P., respondent, of which the other respondent was tenant, "are hereby expropriated and taken for park purposes". The city assessment commissioner wrote P. enclosing a copy of the by-law, and a correspondence ensued between the assessment commissioner and respondents' solicitors as to compensation. The City Council, on December
14, 1931, passed a resolution adopting a report of the Board of Control recommending the adoption of a report submitted by the assessment commissioner as to agreement with P. as to compensation and possession and conveyance of the land; and this fact was communicated assessment commissioner respondents' solicitors.
Early in 1932 the by-law of November 2, 1931, was repealed. Respondents sued the City for the amount of compensation as having been agreed upon and as owing by the
City under a valid and binding contract.
(1) Upon the actions of the City
Council and the communications which tS.C.R. took place, and even apart from the point of law next mentioned, the respondents had failed to prove that an agreement was concluded in fact.-(2) Assuming, contrary to this Court's finding, that the Council acting on the City's behalf did profess to assent to an agreement having the effect (alleged respondents) that the City was to pay $25,000 as compensation for the expropriation of respondents' part of the property described in said by-law, and that respondents were to execute and deliver a conveyance to the City together with vacant possession, a resolution of the Council, authorizing and embodying the terms of such an agreement, was not sufficient to bind the City in the circumstances; a by-law under the seal of the City was essential. Secs. 5, 9, 258 (1) 267 (1) 342 (1), (2), 351 (1), (2), 396 (45), of the Municipal Act, R.S.O. 1927, c. 233, particularly considered.
Mackay v. City of Toronto, [1920j A.C. 208, at 210, 213 214, cited.-The "expropriating by-law' of November 2, 1931, did not constitute in itself a sufficient compliance with the enactments of ss. 396 (45), 5, and 258 (1), so as to commit the City to take the property or to pay compensation. Reading s. 5 with s. 351, it sufficiently appears that, where the municipality is proceeding under its compulsory powers alone, the distinction between an "expropriating by-law" and a by-law which, in addition to being an "expropriating by-law," authorizes entry upon the property or the making use of the property to be taken, is a practical distinction of great importance; where the initiating by-law is an "expropriating by-law" simply (and on its proper construction, the said by-law of November 2 was such), no act or proceeding on the part of the persons interested in the property can ave the effect of binding the municipality to acquire the land (such a by-law has not the effect of a notice to treat under other systems of expropriation, e.g., under the provisions of the English Lands Clauses Consolidation Act, 1845); there must, in addition, be an "entry on" or use made of the property, as contemplated by s. 351, under the authority of by-law, or a further by-law adopting an award, or an agreement between the municipality and the parties interested settling the amount of compensation.- The "expropriating by-law" of November 2 did not operate to empower the Council to fasten upon the City an obligation to acquire the land, or to effect an acquisition thereof, by resolution alone, because (1) the magnitude of the compensation to be paid is so radical a matter and the settlement of it so important a step in the process of acquiring land under s. 396 (45) as to justify the conclusion that the authority to assent to such an agreement must proceed from a by-law enacted under that clause; to hold that a simple
"expropriating by-law," where there is no express or implied authority by by-law to settle the compensation, creates such authority by force of the statute, would postulate an intention out of harmony with that manifested by the enactments of s. 351; and (2) the power to settle compensation by agreement is one of those powers contemplated by s. 258 (1);
the power to create a binding contractual obligation fixing the amount of compensation to be paid in circumstances such as in the present case, is clearly ejusdem generis with the power to acquire by purchase; a power which (ss. 396 (45), 5, 258 of the Act; Mackay v. City of Toronto, supra) can only be executed by by-law.- Judgment of the Court of Appeal for
Ontario, (1933] O.R. 442, reversed.
CITY TORONTO
PRINCE.........................
3-Taxes - Exemption - By-law imposing taxes passed within period of exemption-Collection roll adopted after its expiry-Cities and Towns Act, R.S.Q.
538, 540, 542, 546, 548, 572, 589-Art.
C.C.j
The city respondent claimed from the respondent company municipal taxes due for the year 1927, payment of which was disputed on ground of exemp- On the 2nd of March, 1903 a resolution was adopted by a municipailty later on annexed to the city respondent declaring the lands of the appellant company and all their existing and future buildings and machinery exempt from ordinary annual municipal and business taxes "during the twenty-five years which commenced to run on the first of September last, 1902," accordingly until the first of September, 1927.
On the 11th
August, 1927 the city respondent adopted a by-law which is captioned " By-law imposing a tax on the immoveable property of the City for the year 1927".
After reciting the amount required for the purposes of the municipality for the
"current year", the total valuation of all taxable immoveable property of the city subject to the general property tax, the amount of exemptions, and the balance required after taking into account the revenues derived from other sources, the by-law imposed a general property tax of
1 36-100 of 1% on all the taxable immoveables of the city of Lachine (une taxe est par le pr6sent impose et sera pr6lev6e
* * *) according to their real value as set forth on the valuation roll in force,"
"in order to provide for the general administration expenses of the city for the current year, and for the amortization of its funded debt". The by-law likewise provided that as soon as possible after the coming into force thereof the secretarytreasurer of the city shall prepare the collection roll of the general and special taxes imposed by the city and shall give public notice of its preparation and deposit as required by law. This by-law was published on the 12th day of August, 1927, and came into force on the 27th of the same month, at a time when the twenty-five year period of exemption, from September 1, 1902, had not yet expired.
The collection roll under the said by-law however was not prepared and published until the 10th day of September, 1927, and the taxes became exigible on the 30th of September, 1927, after the expiry of the period of exemption. The city respondent urged that it was the collection roll which created the tax, while the appellant company alleged that it was the by-law imposing it.-Held, reversing the judgment of the Court of King's Bench (Q.R. 54 K.B. 414), that the appellant company was entitled to claim exemption from taxes so imposed. A municipal tax is formally created at the date the by-law imposing it is adopted and not at the time of the entry into force of the collection roll. The by-law of the 11th of August, 1927, imposing taxes for that year did not affect the property of the appellant company, as it had been adopted before the expiry of the exemption. Consequently the collection roll could not validly impose taxes which were unauthorized by the by-law; and the act of the secretary-treasurer in including in the collection roll the property of the appellant company as subject to taxation was therefore illegal and ultra vires.
LACHINE................ - Notice of action- Negligence - Accident-Claim for damages-Notice given after the delay prescribed by statute- Exception clause providing valid excuse- Irresistible force (force majeure) or analogous reasons-Knowledge of the accident by officers or employees of the municipality--Section 535 of the Charter of the City Of Quebec, 19 Geo. V, c. 95.] The respondent's action for bodily injuries, sustained by him on the 28th of August 1931, while giving a hand to the appellant city's employees, on their invitation, was maintained by the trial judge, which judgment was affirmed by the appellate court. Counsel for the appellant betore this Court, in view of these unanimous judgments on question of facts, admitted the appellant city's liability; and the controversy was limited to the validity of the notice of action which the respondent was bound to give to the cityprior to the institution of his action. The need of such notice is prescribed by article 535 of the Charter of the City of Quebec the important part of it being as follows:
"Notwithstanding any law to the contrary, no right of action shall exist against the city for damages resulting from bodily injury, caused by an accident
*
* * unless, within thirty days from the date of such accident or damages
*
* * a written notice has been received by the city, containing the particulars damages sustained.
*
* * The default of such notice, however shall not deprive the victims of an accident of their right of. action, if they prove that they were prevented from giving such notice by irresistible force (force majeure), or for any other similar (analogous) reasons deemed valid by the judge of the Court."
The appellant city received a written notice of action, contained in a letter from the respondent's solicitors, dated 9th of
January, 1932, four months and ten days after the date of the accident; but the respondent alleged that he had been prevented from giving the notice by irresistible force or by circumstances over which he had no control amounting to irresistible force, or an analogous cause.
principal facts, more fully stated in the judgment, are as follows: Immediately after the accident, the respondent was conveyed to a hospital, where he remained until the 6th of September
1931; he was unconscious, delirious and apparently suffering from mental trouble so that he was removed to a clinic hospitai for mental diseases where he remained, until the 30th of September; he left the hospital notwithstanding the adverse opinion of the attending physicians; but he returned to the hospital on two different occasions, from the 15th to the 20th of November and from the 14th to the
21st of December; during the intervals, he was under the care of physicians; one doctor testified that, before the beginning of the year 1932, the respondent was not able to attend properly to his business;
the respondent himself declared that he had not a complete knowledge of what he was doing during these periods.- Held, affirming the judgment of the Court of
King's Bench (Q.R. 55 K.B. 255), that, under the circumstances of this case, the respondent bad not been able to give notice of action to the appellant sooner than he did and that his case was falling within the exception clause provided by art. 535 of the appellant's charter. The condition of the respondent's mental powers constituted, if not a case of irresistible force (force majeure) in the strict sense of the word, at least precisely
MUNICIPAL COPPORATIONSone of the analogous causes (raisons analogues) which the legislature intended to foresee and which entitled the trial judge to hold that it was a valid excuse for not having given notice of action within the delay rovided by Art. 535.- Held also that the knowledge, by some officers or employees of a municipal corporation, of the circumstances of an accident or of a claim made by the injured party, does not exempt the latter from giving notice of action in the manner and within the delays prescribed by the civil code or by statute (Jobin v. City of Thetford Mines, S.C.R. 686 cited); though such knowledge may have some weight in deciding whether the details or particulars contained in a notice given within the delays are sufficient. LA Crrt QUBEC 5- Taxes-Exemption............ 280 See AssBssMENT 3. NEGLIGENCE - Motor vehicles - Evidence-Midirection in charge to jury- Objection not taken at trial, to the charge- Miscarriage of justice-New trial.j M., while driving appellant's motor car on a city street at night (3.30 a.m.) in a heavy rainstorm and very poor visibility, ran into a steel post which was four inches inside the curb off the travelled highway. The impact rendered M. unconscious and injured W., an occupant, and damaged the car. M. testified that he was driving that night at 15 to 18 miles per hour. W. sued appellant and M. for damages. The trial judge, in charging the jury, said: "There is no suggestion, apparently, that he was going too fast, that is, that he was exceeding any speed limit; and there is no evidence as to just bow fast he was going when he went down Bathurst St. So that I think, on the whole, you may take it safely for granted that there is no evidence that he was going too fast, either in exceeding the definite speed limit, or under the circumstances." jury found that the accident was not caused by negligence of M., and the action was dismissed. The Court of Appeal ordered a new trial. Appellant appealed. The above facts in evidence constituted evidence that should have been considered by the jury as to whether or not M. was driving too fast under the circumstances (Tart v. Chitty, 102 L.J. K.B. 568; Baker v. Longhurst, 102 L.J. K.B. 573), and should have been directed to their attention; and the above quoted part of the charge amounted to a withdrawal of those facts from their consideration, a misdirection, involving a mistrial and a miscarriage of justice in the sense that the plaintiff's case was not properly submitted to the jury; NEGLIGENCE-Continued therefore it was proper to order a new trial, notwithstanding that no objection was taken at the trial to the charge.
2--Injury to employee-Cause of the accident-Liability of employer-Circumstances when he is exonerated-"Reasonable precautions"-Articles 1053 and 1054
C.C.]
Under the terms of article 1054
C.C., an employer is exonerated from his responsibility for the damage caused to his employee "by things he has under his care" if he can establish that the accident has occurred in such circumstances that no reasonable precautions on his part could have prevented it. Quebec R.L. H.
& P. Co. v. Vandry ([1920] A.C. 662) and
City of Montreal v. Watt & Scott Ltd.
([1922] 2 A.C. 555) foll.-In order to ascertain if such "reasonable precautions"
had been taken, the court must, in a case between employer and employee, ask itself whether the facts in evidence, in themselves or in the inferences properly arising from them, establish that the occurrences which caused the damage complained of would not fall within the risks reasonably forseeable by an employer applying himself to the matter of the safety of his employees, under a p roper sense of his duty in that respect.
f the facts in evidence are such as properly to satisfy the tribunal of fact that this proposition has been established, then the exonerating paragraph
(art. 1054 C.C., par. 6) applies and the employer has brought himself within its terms.-Per Rinfret, Lamont, Cannon and Crocket JJ.-Upon the evidence in the record, it is impossible to find any reasonable means which the respondent might have employed to prevent the abnormal fact which caused the damage.
v. CANAIAN
3-Defective condition of elevator in building-Injury to person using it while cleaning out tenant's premises in building- Liability of owner of building-Licensee with an interest-Contributory negligence, whether bar to recovery-Joinder of defendants-Costs.] G. had leased a floor in his building to S. H. Co. The lease required the lessees to keep the premises clean.
On the last day of the lease plaintiff was cleaning up for S.
While taking refuse on to as he thought, a freight elevator, he fell down the elevator shaft and was injured. The elevator had previously been standing there with the safety gate up, in which case mechanical devices supposed to lock machinery so that the elevator could not be moved until the gate was lowered, but in some way the elevator had been moved up to the next floor, the gate remaining
NEGLIGENCE-Continued raised. Plaintiff sued for damages. jury found that the elevator (its interlocking safety device on that floor) was in a defective condition, causing the accident; that this condition could have been discovered by the exercise of reasonable care prior to the accident, by G., but not by S. H. Co.; that plaintiff could by the exercise of reasonable care have avoided the accident, his degree of fault being 10% of the whole fault. The trial judge gave judgment against G. for 90% of plaintiff's damages as found by the jury, with costs, dismissed the action as against S. H. Co. without costs, and dismissed the action as against certain other defendants whom plaintiff had alternatively alleged that he was employed) with costs, but directed that plaintiff should recover these costs from G.
The Court of Appeal for Ontario affirmed the judgment, subject to disallowing plaintiff recovery of the costs last mentioned, and subject to a deduction in an item of damages.-Held: The judgment of the Court of Appeal aforesaid O.R. 543) should be affirmed. -Plaintiff was a licensee with an interest; the work at which he was employed was in pursuance of the lease which required removal of the refuse.- Holmes v. North Eastern Ry. Co., L.R. 4 Ex. 254; Wright v. London & North Western Ry. Co., 1 Q.B.D. 252; Mersey Docks & Harbour Board v. Proctor, [1923] A.C. 253, at 259, 272; Sutcliffe v. Clients Investment Co., [1924J 2 K.B. 746, and other cases, cited. -There was ample evidence to support the jury's findings that the elevator vas in a defective condition and that such condition could have been discovered by the exernise of reasonable care.-Plaintiff's contributory negligence was not a bar to his right to recover, under the law in Ontario.-As the Court of Appeal varied the judgment at trial, this Court should not interfere with its disposition of costs (Donald Campbell & Co. v. Pollak, [1927] A.C. 732).-The costs (in the appeals) payable by plaintiff
S.
H. should not be added to his judgment against G.
v. 375 4-Liability-Money offered and paid to injured-Acknowledgment of liability. 214 5--Janitor cleaning outside part of windows in office building .......... 6--Municipal corporation - Failure of firemen to prevent spread of fire-Dangerous situation-Alleged negligent delay by local. Putlic Utilities Commission in shutting off electric current - Liability of municipality ...... DEX
NEGLIGENCE-Concluded
7-Municipal corporation-Notice of action........................
8- Motor vehicles.......... . ... .717
NEW TRIAL
NOTICE OF ACTION-Municipal corporation- Negligence...............
PATENT - Validity - Infringement - Subject matter-Combination-Anticipation-Claims of Specification (sufficiency of)-Patent Act, R.S.C., 1927, c. 150, s.
The judgment
Maclean
J.,
President of the Exchequer Court of
Canada, [1933] Ex. C.R. 13, holding that plaintiffs' patent for a certain
"improvement in acoustic devices"
the type commonly known as loud speakers) was valid and had been infringed by defendant, was affirmed; the court holding against the defendant's contentions that there was lack of subject matter, that there was anticipation, no infringement, and (a ground not urged in the Exchequer Court) that the two claims of the specification which plaintiffs relied on were insufficient and failed to meet the requirements of s. 14 (c) of the
Patent Act (R.S.C. 1927, c. 150) because they did not distinguish between what was already old and what the applicant for patent "regarded as new" in the invention claimed.-To decide an objection grounded upon anticipation, one must look at the description in the specification, so as to ascertain what the invention really is.
The claims may add light to it, but they are not meant for that purpose, and their object is mainly to define the extent of the monopoly to which protection granted.
description in the present patent clearly showed that the invention consisted in a certain combination, not a mere aggregation or a juxtaposition of known contrivances, but a group of co-acting parts achieving a combined result, which satisfies the definition of a combination for the purposes of the patent law. In such case, it matters not whether some or all of the elements were old and already known in the art as separate entities; the only point (on the question of anticipation) is whether the actual combination was new.-The claims relied on plaintiffs (and attacked as aforesaid)
must be read with reference to the entire specification; and it was sufficient if it appeared from the claims so read what the applicant regarded as his invention;
and, so read, the claims left no doubt of the exact nature of the invention claimed
PATENT-Continued as new; and there existed no difficulty in ascertaining and defining what were the exact parts of the new combination and what the monopoly covered.
Where the combination itself is the only thing regarded and described as the invention, the fact that the claiming clause does not distinguish old from new is not a ground for objection (British United Shoe Machinery Co. Ltd. v. A. Fussell & Sons, Ltd., 25 R.P.C. 631, and other cases cited; Patent Act, s. 14, considered).
It is only if the applicant desires to claim invention for a subordinate element per se that it is necessary for him to claim the element 2-Validity-Sufficiency of advance upon prior art and of inventive ingenuity- Infringement.] The judgment of Maclean J., President of the Exchequer Court of Canada [1933] Ex. C.R. 141, holding that plaintif's patent (relating to improvements in coffin handles) was valid and had been infringed by defendant, was affirmed.-It was held that the construction invented, whereby a certain method of locking was made possible, was novel and ingenious; that the advance upon the prior art, and the inventive ingenuity in the discovery, were sufficient to make it good subject matter of a patent.-As to infringement, it was held (distinguishing P. & M. Company v. Machinery
Corporation Ltd., Can. S.C.R. 105, and Gillette Safety Razor Co. of Canada Ltd. v. Pal Blade Corporation Ltd., [1933] Can. S.C.R. 142) that, even assuming that the pivoting means used by defendant were not precisely and exactly covered by the claims of the patent, the article placed on the market by defendant embodied the principle itself of the invention in questtion; defendant had taken that which constituted the patentable article in the inventor's disclosure; at best defendant had borrowed the essence of the patented structure with a small variation in its unimportant features or its non-essential elements.
Co. v.
3 - Infringement - Specification - What it should disclose---Construction of- Within province of court, and not of jury or experts-Also question of law-Matters on which experts may give evidence-Devices for amplifying electric signal waves- Audions.] In an action for infringement of a patent, not only is the construction of the specification exclusively within the province of the Court, and not within that of the jury or expert witnesses, but it is also for the Court a question of law. PATENT-Concluded
To quote the words of Lindley, L.J. in
Brooks v. Steele (14 R.P.C. 9), "the judge may, and indeed generally must, be assisted by expert evidence to explain technical terms, to show the practical working of machinery described or drawn, and to point out what is old and what is new in the specification. Expert evidence is also admissible, and is often required, to show the particulars in which an alleged invention has been used by an alleged infringer, and the real importance of whatever differences there may be between the plaintiff's invention and whatever is done by the defendant.
But, after all, the nature of theinvention for which a patent is granted must be ascertained from the specification, and has to be determined by the judge and not by a jury, nor by any expert or other witness."--On the merits of the appellant's action for infringement of letters patent relating to devices for amphyfing electric signal waves, upon the evidence adduced in the case, the trial judge was right in holding that the language of the claims must be construed by reference to the disclosure of the nature of the invention in the body of the specification and that, so construed, the thing done by the respondent did not constitute an infringe- RADIO CANADA
...................
PRACTICE AND
PROCEDURE - Judgments-Power of court to amend judgment.] The court has no power to amend a judgment which has been drawn up and entered, except (1) where there has been a slip in drawing it up, or (2) where there has been error in expressing the manifest intention of the court.
(In re Swire, 30
Ch. D. 239; Ainsworth v. Wilding, [1896]
1 Ch. 673; MacCarthy v. Agard, [1933]
2 K.B. 417, and other cases, cited.)
Ross
PROBATE ....................
See WILL 8.
PROMISSORY NOTE - Consideration
-Note given by mother to daughter- Mother critically ill-Died soon after- Obligation "naturelle" to make provision for daughter without means-Donatio mortis causa-Don manuel-Delivery and acceptance-Articles 755, 758, 762 776,
appellant's and respondents' mother, suffering since many years from tuberculosis and diabetes, made her will on the
11th of February, 1930, by which she made legacies, by particular title, of
$10,000 and $5,000 to each of her children except the appellant, the latter to inherit only of an equal division of the residue of
PROMISSORY NOTE-Continued the estate: such partition to take place only "when the youngest of the children in the first degree shall have attained the age of majority", which condition, according to the evidence, was postponing for a number of years the time of the division. The appellant was a widow having four young children and without any means; and, since the death of her husband, was provided for her living entirely through the care of her mother.
But at the time of the will the appellant had expressed her intention to re-marry and the mother did not quite agree with her on that point being of opinion that the wedding had better be postponed, at least for some time; this being the apparent reason for the exclusion of the appellant from the will, it happened that her fianc6 died, and the mother, being informed of the fact, changed her sentiments towards the appellant.
On the 5th of December, 1930, the mother, although gravely ill and aware of her critical condition but with a perfectly sound mind, signed a promissory note in the usual form "for value received" and payable on demand to the appellant or to her order for $10,000 with interest at 7 per cent; and she delivered the note to the appellant on the same day, with a verbal agreement that the latter would not claim payment before the expiration of four months from the date of the note. The appellant, in her evidence accepted by the trial judge, stated that her mother told her that the note was given to her in order "to provide for her living (and that of her children) after she, herself, had passed away."
The mother died on the 25th of December, 1930, and, four months later, the appellant claimed from the estate the payment of the note which was refused, and then took the present action. The trial judge maintained the action on two grounds, holding that the mother had signed the promissory note in recognition of her legal obligation to provide for her daughter and therefore there was valid consideration; and that the note was also valid as constituting a manual gift. The appellate court dismissed the appellant's claim on the ground that the transaction evidenced by the promissory note was in truth a donation d cause de mort, and, consequently null and void by force of article 762 C.C.-Held, that, under the circumstances of this case, the appellant was entitled to recover from the estate of her mother the amount of the promissory note sued upon.-Held, also, that it is unnecessary to consider whether there was an "antecedent liability," within the meaning of s. 53 of the Bills of Exchange Act, which would constitute a valid consideration for the document as a promissory note; or whether the document was enforceable as a promissory PROMISSORY NOTE-Continued note. Rinfret J. expressing no opinion;
Cannon J. contra.-Held, further, that the document given to the appellant by her mother is sufficient evidence of a contract to pay the sum mentioned according to the terms of it; and, upon the whole of the evidence, this was the true character of the transaction and there was sufficient "cause"
or "considdration" within the meaning of arts.
984 and 989 C.C. to support the legal obligation assumed by the promissor in the obligation naturelle to make a proper provision for her daughter.
Rinfret J.
expressing no opinion.-Per Rinfret J.- The gift which the Civil Code (art. 758)
declares invalid and void is the "gift made so as to take effect only after death."
It follows that the gift forbidden by the article is that gift which will become effective only in the case of the death of the donor, which has no effect before such death, and whereby the donee acquires no right until such death.
In fact, article 758 C.C. contains a definition.
Under the circumstances of this case, the gift in question does not fall within that definition and was not a donatio mortis causa.-The provision in article 762 C.C., whereby gifts made during the supposed mortal illness of the donor are presumed to be made in contemplation of death, creates a presumption which may be rebutted by the proof of circumstances tending to render the gifts valid.
It does not mean that a real donatio mortis causa may be validated. It means that the donee is entitled to establish that, under the circumstances surrounding it, the gift is not one made in contemplation of death. The consequence is, therefore, that the presumption completely rebutted when the gift is shewn to have the characteristics of a gift inter vivos.- The circumstance that a gift is made payable only after death does not necessarily imply that the gift is made in contemplation of death.
Confusion should not be made between the date of payment of a crdance and the present right of a donee which became vested immediately upon his acceptance of the gift. C.C., arts. 755 and 777, first and last paragraphs.-The mother's promissory note, given as it was for a lawful consideration,
"accompanied by delivery" and accepted by the daughter, was sufficient to meet the requirements of the second paragraph of article 776 C.C. and to constitute a valid manual gift.-The mother's promissory note was "moveable property"
within the meaning of that paragraph.
The "moveable property" which may become the subject of a manual gift comprises, of course, corporeal moveables, but also titres de crdance, the delivery of which is capable of effectually operating
PROMISSORY NOTE-Concluded the transfer of ownership therein. (Judgment of the Privy Council in O'Meara v. Bennett ([1932] 1 A.C. 80) discussed and applied.
In such case, the negotiable document and the cr&nce which it represents are identified with one another to such an extent that the creance itself is transferred by the sole delivery of the document from hand to hand, which is the characteristic of the manual gift ("don manuel").-In that respect, no distinction ought to be made between the promissory note of a third party and the promissory note of the donor himself.- Per Cannon J.-There was valid consideration for the note given by the mother to the appellant, and such note was not a gift inter vivos and mortis causa made by gratuitous title and was enforceable. The mother intended first to fulfill towards her daughter her "obligation naturelle" to make a proper provision for her daughter, which obligation was binding upon the mother during her lifetime, and, further, to discharge a duty of justice or fairness by making such provision immediately, knowing that the partition of the estate would be delayed at least for six years after her death.- (Q.R. 54 K.B. 38) reversed.
PEsANT PEBANT.......................... PUBLIC UTILITIES COMMISSION REVENUE-Sales tax-Dyers and dressers
Actual selling price Current market value-Special War Revenue Act, R.S.C 1927, c. 179, 8. 86 (a), (b), (c), s. 87.]
company engaged in the business of wholesale dealers in, and dyers and dressers of, raw furs; it purchased raw furs or skins dressed and dyed them and then sold them to other furriers or to retailers. The respondent paid the tax computed on the actual selling price; but, claiming that it should have been computed on the current market value of the dressed furs, under the regulation quoted below, the respondent sued to recover the amount alleged to have been overpaid, i.e., it urged that it should have only paid the tax imposed on dyers and dressers who were performing that work for others.- Held that the sales made by the respondent were sales within the scope of section 86 of the Special War Revenue Act; and that the tax payable by the respondent should be computed on the actual selling price of the dressed furs and not on its current market value.-Judgment of the Exchequer Court of Canada ([1933] Ex. C.R. 59) rev. THE KING v. wEoHE r1D......................
REVENUE-Continued
2--Sale8 tax-Playing cards-Bxcise tax
-Whether included in sale price-Special
War Revenue Act, R.S.C., 1927, c. 179, a.
82, 85 (a) 86 (i).] The respondent, a licensed manufacturer under Part XIII of the Special War Revenue Act (R.S C
1927, c. 179), manufactured and sold playing cards.
It paid the sales tax on all cards sold, said tax being computed on the sale price of the cards exclusive of the excise tax imposed by section 82 of the Act. The Crown contended that the sales tax should have been computed on the sale price including the excise tax.- Held, Crocket J. dissenting, reversing the judgment of the Exchequer Court of
Canada ([1933] Ex. C.R. 204), that the excise tax should have been included in the sale price of such cards for the purpose of calculating the sales tax. The definition of "sale price" in the Act (s. 85, ss. (a)) is very comprehensive: "sale price"
is inclusive of every item entering into the price just before the consumption or sales tax is added and must therefore include the excise tax.-Per Crocket J.
(dissenting).-A taxing statute is always to be construed strictly against the taxing authorities and a tax upon a tax ought not to be held to be imposed in the absence of language which leaves no doubt whatever as to the intention to impose it. The omission definition which the statute gives of the term "sale price" of any mention of excise taxes, together with its inclusion of excise duties when goods are sold in bond and its express provision making the excise tax Part of the duty paid value and of the sale price in the case of imported playing cards leaves the intention of
Parliament in such doubt that the trial judge was fully warranted in resolving the question against the taxing authorities. THE
Co. 298
3-Special War Revenue Act-Sale of stock or bonds by broker-Omission to affix revenue stamps-Whether broker liable in action for debt-R.S.C., c. 179, es. 58, 59,
61, 63, 108.]
Under the Special War
Revenue Act, R.S.C
1927, c. 179, the omission to affix tie revenue stamps required by section 58 of Part VII to be affixed on stocks or bonds on a sale or transfer thereof does not, when a sale is made by a broker as an agent, render him liable to pay the money value of such stamps as a debt due to the Dominion of
Canada.-Persons falling within the incidence of the prohibition enacted by section 58 are, by reason of the penalty created by section 63, affected by a motive of considerable weight not to disregard the prohibition; in other words, to see that the documents mentioned in section 58 are duly stamped.
It does not
REVENUE-Concluded follow, however, that the statute creates a civil obligation on the part of such persons to pay the value of the necessary stamps, or indeed, any sum, to the Crown. These sections do not profess to create such an obligation. They enact a prohibition and impose a penalty upon the person who acts in contravention of the prohibition.
Nor does the statute in terms penalize the failure to purchase or pay for stamps. The settled principles, as indicated in the passages, quoted in the judgment, of the highest courts touching the interpretation of taxing statutes do not permit this Court to read those sections as constituting such an obligation.-Judgment of the Court of Appeal (47 B.C. Rep. 293) aff.
KING v. RAILWAYS-Municipal and Public Utility Board Act, Man., 1926, c. 33, e. 119- Board's order requiring street railway company to pay certain costs in connection with construction of new bridges-Jurisdiction of Board to make the order-Company's obligations under agreements with municipalities.] Appellant company operated in the cities of Winnipeg and St. Boniface a street railway system which had crossed the two bridges in question, but service across them had been discontinued as one of them was considered unequal to the strain of increasing general traffic over it, and appellant had provided (with consent of the municipalities) a substituted service. The municipalities replaced the bridges by new and stronger ones, the change involving construction on alignments different from those of the old bridges and the substitution of two lines of track for the former single track. On application by the municipalities, the Manitoba Municipal and Public Utility Board made an order requiring appellant to pay the cost of placing rails, ties and foundations therefor on the bridges and one-half the cost of such work in connection with the approaches.-Held: The order was unauthorized.
Board's memorandum of judgment, its line of consideration of the application, and its finding in former proceedings, the order must be taken as one grounded on s. 119 (a) of the Municipal and Public Utility Board Act, Man., 1926, c. 33; and to justify it under s. 119 (a) it must be an order requiring appellant to perform some duty or obligation imposed upon it by statute or municipal by-law or provisions of its own charter or by agreement with either of the municipalities or other owner; and no such obligation as the Board had ordered was so imposed. Having regard to the respective obligations of appellant and of the municipalities, under the agreements with respect to the old bridges, and it not appearing RAILWAYS-Continued that the stoppage of service over the bridges was due to any default of appellant, and as no responsibility rested on appellant for the taking down and replacement of the old bridges, the Board had no authority to require the payments ordered from appellant, either as a statutory or contractual liability, or as payments necessitated by renewal of the former service.
The taking down of the bridges, without any new agreement with appellant, relieved appellant from further obligation in respect of its agreements.
See. 15 of by-law 543 (by-law granting franchise to appellant) of the City of
Winnipeg, as to the city council's right to demand construction of new lines, had no application, as no such demand was shown to have been made, there was no obligation on appellant under the by-law to share in the cost of a new bridge, and appellant had its track on the bridge when it was taken down.-Judgment of the Court of Appeal for Manitoba, 41
Man. R. 1 affirming the Board's order, reversed.
CO. V.
CITY
ST. BONIFACE.....................
2-Agreement between Canadian Pacific
Ry. Co. and Canadian National By. Co. of
January 29,1929 (schedule "C" to Northern
Alberta Railways Act, c. 48 of Statutes of
Canada, 1929)-Construction--Comparison of freight traffic for purpose of equal division between the parties to said agreement-Grain shipped from stations on
Northern Alberta Railways for export- "Outbound freight traffic destined to competitive points on or beyond the lines of the parties" (article 7 of agreement).] Upon the agreement made between the Canadian Pacific Ry. Co. and the Canadian
National Ry. Co. dated January 29, 1929, being schedule
"C" to the Northern
Alberta Railways Act, Statutes of Canada,
1929, c. 48, and upon the facts and circumstances existing with regard to traffic rates and carriage, grain shipped from stations on the Northern Alberta Railways to Prince Rupert (reached by the
Canadian National alone) or to Victoria
(reached by the Canadian National by transporting loaded cars of grain on barges, but not so reached by the Canadian Pacific) for export, and exported from either of those ports (to say, the
United Kingdom), is "outbound freight traffic destined to competitive points on or beyond the lines of the parties"
within the meaning of article 7 of said agreement, and is not to be excluded from the comparison of freight traffic for the purpose of the equal division to be made under said article 7. In the light of the objects of the agreement as ascertained from it as a whole, and the conditions'the parties must necessarily have had in
RAILWAYS-Concluded view, the words "competitive points on or beyond the lines of the parties" should not be construed as limited to points on the lines of the parties or their connecting rail carriers to which the parties are prepared to handle traffic offered at equal rates.-Judgment of the Board of Railway Commissioners for Canada, 41 Can. Ry. Cas. 214, reversed.-Crocket J. dissented.
PAcIc Ry. Co. v. Ry. Co ....... SALE - Cooling apparatus - Conditional sale to contractor-Building contract- Apartment house-Material furnished by contractor-Commercial sale-Purchase price unpaid-Revendication, not from the buyer, but from the owner of the building- Arts. 1488, 2013e, 2268 C.C.] The appellant company sold and delivered to the Standard Construction Company certain mechanical cooling devices and apparatus under the ordinary conditional sale terms that it would remain owner until full payment of the purchase price,which included the costs of installation. The conditions of payment were 25% cash when installation completed and the balance in twenty-four monthly instalments.
The respondent was owner of certain property in Montreal and proposed to make over the building erected thereon into an apartment house. For this purpose, the respondent entered into a contract with the Standard Construction Company, which undertook to do the work and provide the materials for a fixed price based upon cost plus 20% for profit. The respondent was not aware of the existence of that contract with the appellant. The work, including the installation of the cooling apparatus, having been completed, the respondent paid in full the Standard Construction Company, which later on went into liquidation. As only the said cash payment of 25% had been made by the construction company, the appellant, alleging its ownership of the cooling apparatus in accordance with the terms of the contract, took an action to revendicate them, not from the buyer, the Standard Construction Company, but from the respondent, the owner of the building where they had been installed.-Held that, assuming that the cooling apparatus were still moveable things although "incorporated"
into the building (art. 2013e C.C.), the appellant had no right to revendicate them from the respondent who was in possession bona fde, in view o the terms of article 2268 of the civil code, especially the third paragraph, interpreted in the light of the circumstances of this case.-Held, further, that the words "nor in commercial matters generally" in article 2268 C.C. indicate, on the part of the Legislature, an intention to protect SALE-Continued against the possibility of revendication the person possessing in good faith as proprietor not only a thing acquired through purchase, but any moveable thing acquired by "acte translatif" of ownership in commercial matters. The provision was enacted having regard to the superior interest of commerce.-Judgment of the Court of King's Bench (Q.R.
54 K.B. 462) aff.
CORPORA- TIoN v. MALONE...................
2-Farm machinery-Tractor---Damages or breach of warranty-Measure of damages-nus.] In determining the damages to the purchaser of a tractor against the vendor, for what was held to be a complete failure of the tractor in respect of the fulfilment of certain warranties as to its performance, it was held that, prima facie, the loss incurred by the purchaser amounted to the full purchase price; and that it was incumbent upon the vendor to adduce evidence in support of its contention that the damages so measured should be reduced by reason of the possession of the tractor or some merchantable value
(establishment of the amount of that merchantable value not being upon the purchaser). The judgment of the Appellate Division, Alta., [1933] 2 W.W.R. 567;
[1933] 4 D.L.R. 303, holding that the purchaser by his use of the tractor had lost his right to return it, but allowing him damages for the amount of the full purchase price, was affirmed in the result.- The judgment of this Court in Nolan v. Emerson-Brantingham Implement Co.
([1921] 2 W.W.R. 416; 60 Can. S.C.R. 662)
explained (this Court not agreeing with the interpretation of it by the Appellate
Division in the present case).
HARnIs Co. ITD. .......
3---Quarry-Stipulation that vendor be hired for 10 years as superintendent of the business sold-Right of the purchaser to dismiss vendor before the expiration of that period-Misconduct of the vendor-Claim by the latter for salary after dismissal- Proper remedy is claim for damages- No case for specific performance-Purchaser not bound to first ask the courts to resiliate contract before dismissal of vendor-Whether sale annulled with the annulment of the contract of hire-Arts. 1065 1670 C.C.]
The respondent, by a notarial deed passed
November 6, 1929, sold to the appellant as a going concern, all the business carried by him as a quarry operator for the sum of $55,000; and it was stipulated in the deed that "in consideration of the present sale, the purchaser has presently engaged the vendor as superintendent of the q uarry purchased by the purchaser from e vendor, for ten years from the first day of October, 1929, at a salary of five hundred dollars ($500) a month, but it is
SALE-Concluded clearly understood that the vendor will give his time, energy and capacity to the service of the said purchaser to run the said quarry."
On the 10th of April, 1930, the appellant, not being satisfied with the services rendered by the respondent, dismissed him and paid his salary up to the 15th of April. The respondent then brought the present action for $250, balance of his salary for that month, reserving his rights to claim the balance of his salary for the balance of the ten years.-Held that, on the facts, outside of the questions of law raised by the respondent, the record contains evidence of grave misconduct which gave ample justification for the dismissal of the respondent.- Held, also that the respondent's recourse, if he had been as a fact dismissed without cause or valid reason, could only have been a claim for damages and he could not ask the court for an order compelling the appellant company to keep him in its employ. The contract of lease or hire of personal service, owing to the personal character of the obligations which it contains, is not susceptible of a condemnation for specific performance; the appellant cannot physically be forced to keep the respondent 'in its employ, nor could the respondent be physically constrained to remain in the appellant's service.-Held, further, that the appellant was not bound to take legal proceedings before the courts to obtain the resiliation of the contract of hire before dismissing the respondent.-On the ground raised by the respondent that the contract of the 10th of October, 1929, was a single one and not susceptible of partial resiliation, i.e., that if the contract of hire was rescinded the sale also should be annulled, held that the agreement between the parties did not constitute an indivisible thing, each contract in the deed having its distinct individuality, and, therefore, the appellant had the right to resiliate the contract of hire without affecting the sale made in the same document. DuPRA QuAIiEs v. DuPRA......................... SALES TAX
SHIPPING................... See Cusos.
SMUGGLING................... See CnmiNAL LAw 2.
STATUTE - Interpretation - Mining- Forfeiture of leases ections 110 and of the Placer-mining Act, R.S.B.C., 1924, c. 169-Whether irreconcilable.] Sections 110 and 114 of the Placer-mining Act, R.S.B.C., 1924, c. 169, are not irreconcilable and there is no conflict between them. Each one of these sections has STATUTE-Continued its respective application according to the circumstances of each case. Section imparts a statutory declaration of forfeiture in certain well defined cases of breach therein specified; while section 114 covers all other cases of non-performance or nonobservance.
In cases of forfeiture specifically mentioned in section 110, the lease is ipso facto void: the necessity of a declaration by the Gold Commissioner approved by the Minister of Mines is excluded, as absolute forfeiture operates
LTD................
STATUTES-(Imp.) B.N.A. Act, 1867,
91, 92.....................
2-(Imp.) B.N.A. Act, 1867, 8. 91 (21)
................
See CONSTITUTIONAL 5.
3- (Imp.) B.N.A. Act, 1867, 91
(26), 92 (12) (14).................
4- (Imp.) B. N.A. Act, 1867, 8. 92 (12)
................
5-(Imp.) B. N.A. Act, 1867, s. 108 and third schedule ....................
6- (Imp.) 1869, 32 Vict., c. 11, a. 4 (1),
((Colonial) Merchant Shipping Act). . 197
7-R.S.C. [1927] c. 11, s. 23 (a), (Bankruptcy Act).......................
8-R.S.C. [1927] c. 11, a. 126, (Bankruptcy Act).......................
9- R.S.C. [1927] c. 16, as. 53, 58, 186,
(Bills of Exchange Act).............
10- R.S.C. [1927] c. 27, 8. 110 (Companies Act).......................
11-R.S.C. [1927] c. 35, as. 2 (b), 36
(Supreme Court Act).............
12-R.S.C. [1927] c. 35, as. 2 (e), 37, 68
(Supreme Court Act)................
13-R.S.C. [1927] c. 42, es. 203 (4),
262, (Customs Act).................
R.S.C. [1927] c. 42, as. 3, 4, 6 35,
36, 37, 38, 41, 42, 43, 46, 47, 48, 54 (Cuastoms Act)........................
STATUTE-Continued
15-R.S.C. [19271 c. 42, 8. 301 (Customs Act).......................... 16- R..C. [1927] c. 150, 8. 14, (Patent 17-R.S.C. [1927] c. 179, as. 58, 59, 61, 63, 108 (Special War Revenue Act)... 18- R.S.C. [1927] c. 179, as. 82, 85 (a) (b) 86 (1) (Special War Revenue Act). 298 19- R.S.C. [1927] c. 179, as. 86 (a) (b) (c), 87, (Special War Revenue Act). 244 20-R.S.C. [1927] c. 213, as. 58, 59, 108 (Winding up Act)................. 21-(D.) 40 Vict., c. 10 as. 13, 125 (3) (Customs Act)..................... 22- (D.) 14 Geo. V., c. 100 (The United Church of Canada Act)............. See 7.
23-(D.) 18-19 Geo. V., c. 9, 8. 3, (Supreme Court Act)................... 24- (D.) 19-20 Geo. V., c. 48 (Northern Alberta Railways Act).............. 25-(D.) 20-21 Geo. V., c. 40 (Divorce See CONSTITUTIONAL 26- (D.) 21 Geo. V., (2nd Session), c. 2, (Customs Act)..................... 27-(D.) 21-22 Geo. V., c. 55, (Tariff Board Act)........................ 538 28-(D.) 23-24 Geo. V., c. 7 (Customs See CRown 1.
29- (D.) 23-24 Geo. V., c. 36, (The Companies' Creditors Arrangement Act)... . See 5. 30- R.S.O. [1927] c. 94, e. 65 (1) (3) (Surrogate Courts Act) ... .......... 31- R.S.O. (1927] c. 173, as. 5 32 (2) 7 (3) 13 (11) (Mechanics' Lien ActS.. 10, See IlEN. 32- R.S.O. [1927] c. 179, s. 119, 121 (Workmen's Compensation Act) ...... STATUTE-Continued
33-R.S.O.
34,
(M arriage Act)....................
See LAW 1.
(1), 067 342, 351, 396 (45) (Municipal
35--R.S.O. [1927] c. 238, (as amended in
1930, 46) 4, (1) (4) (5) (6)
(Assessment Ad)...................
36- R.S.O. 238, 4, 40 (1)
(2) (3), 9 (1) (J), (2) (12) (Assessment
520, 521, 534, 538, 540, 542, 546, 548,
572, 589 (Cities and Towns Act) ......
38-(Que.) 19 Geo. V., c. 95 (Charter of the City of Quebec)..................622
39- (Alta.) 4 Geo. V., 23, 320 (5)
(Edmonton Charter) ................
40-(Alta.) 13 Geo. V., c. 48, s. 8 (Accident and Sickness Policy Act). . . . ... .
41-(Alta.) 14 Geo. V., c. 31, s. 59,
(Vehicles and Highway Traffic Act)..
42-(Alta.) 15 V., 39, s. 20,
(Solemnization of Marriage Act) .....
Se
43-(Alta.) 31, ss. 179,
180, 254 (Insurance Act)...........
Act)...e......................... 54
45---(Alta.) 19 Geo. V., c. 62, s. 10
(Insurance Ad Amendment Act) ......
(Alta.) 21 Geo. V., c. 16 (Solemnization of Marriage Act) ...............
47-.S.B.C.
169, 110,
(Placer Mining Act)...............
48- (Man. 16 Geo. V., c. 33, 8. 119
(Municipal and Public Utility Board Act)
...........
49- (N.B.) 22 Geo. V., c. 36, s. 2 (m),
3 (1), 7 (Workmen's Compensation Act)
..........
.. .
STATUTE-Concluded
50- (P.E.1.) 20 Geo. V., c. 1, e. 65 (Highway TrafiAct)............. 51-R.S.
Sask. 199, 42 to 48 (Landlord and Tenant Act) ........ TARIFF BOARD................. TAXES-Exemption-By-law ....... 2- Exemption-By-law ........... TRIAL
See MOTOR VEHICLES 1. TRUST AND TRUSTEES-Liabiliy for interest on uninvested balances in trustee's hands-Passing accounts-Res judicata- Surrogate Courts Act, R.S.O., 1927, c. 94, s. 65 (1) (3).] The judgment of the Court Appeal for Ontario, [1932] O.R. 641, holding that the defendant was liable to pay interest on certain uninvested balances of trust funds held by him for the late Lady E., and directing a reference to take an account of the sum properly chargeable for interest, was affirmed. It was held that the plaintiff's claim for interest had not become res judicata by the judgment of the Judicial Committee of the Privy Council in Campbell v. Hogg, [1930] 3 D.L.R. 673 (on an appeal in former proceedings which began by petition filed by the present defendant in the proper Surrogate Court in Ontario for the passing of his accounts), as that judgment (as interpreted in the present judgment) did not dispose of the matter of interest now in question except to hold that in the proceedings then before the court there was no jurisdiction to charge interest on uninvested balances in the hands of such a trustee as was the defendant. (In this connection, s. 65 (3), of the Surrogate Courts Act, R.S.O.,
1927, c. 94, considered).
2-Income received by trustee in Ontario and paid over to persons out of Ontario-- Trustee assessed by municipality in 1932 for income so received and paid over in 3- Moneys impressed with trust-Implication-Repudiation--Failure of object of trust-Responsibility-Resulting trust 388 4- ............... Question as to existence of watercourse- Right of proprietor to prevent surface water from draining on to his land.
Scorr
2--Real property - Constitutional law- Title to island claimed by Dominion and by Province - "Public hRarbour"- 'River
Improvement".
.................
Construction - Vesting.]
clause 5 of her will the testatrix directed that a fund invested in a certain way for her by W. should continue to be so invested by W. during the lifetime of the testatrix' son and the income therefrom be paid to the son during his lifetime, and, in the event of W.'s death during the son's lifetime, the fund be invested by the testatrix' executors and the income therefrom paid to the son during his lifetime; and "on the death of my said son", that the fund "is to be divided as follows":
one half to her grand-daughter,
E.
(daughter of the son), and the remainder
"to be divided equally between" three named daughters of the testatrix.
clause 6 the residue of the estate was given equally amongst E. and the said three daughters. Clause 7 read: "In the event of [E.1 or.any of my said daughters predeceasing me or predeceasing my said son, leaving issue, I direct that the child or children of the person so dying shall take the interest to which their mother would have been entitled had she survived."
All said beneficiaries survived the testatrix.- Held: The legacies directed under clause 5 to be paid to E. and said three daughters upon the death of the son, did not become vested upon the testatrix' death. The fair and literal meaning of the words used in clause 5 in giving the capital of the fund is that the testatrix gives when she dividesthat the operation of the gift is postponed until the period of distribution; and this meaning found support in the form and nature of the prior directions in clause 5, in contrasting the wording of the gift in question with that of other gifts in the will where immediate vesting was indicated, and in the wording of clause 7
("would have been entitled had she survived" indicating that the "mother"i.e., any one of E. and said three daughters hould take no title to the interest conferred in clause 5 unless she survived both the testatrix and her son).-The fundamental principle to guide in interpreting wills is that effect must be given to the testator's intention ascertainable from the expressed language of the will. So far as possible the will itself must speak. If, after careful consideration of the language used, in the particular passage in question and consistently with the context of the document, the intention remains doubtful, then resort may be had to certain rules which have been generally adopted, upon the strength of which courts are enabled to draw a certain conclusion as "more nearly corresponding" with the testator's intention.
(Busch v. Eastern Trust Co., 11928] Can. S.C.R. 479, explained. That case should not be "cited as deciding more than was actually determined"; there was no intention of laying down a rule of general application, far less of "effecting a radical change in the law and creating some new principle governing the question of vesting.").
2- Construction - Vesting - Time payment.] A testator's will, after some specific bequests, gave the residue of his estate to his executors in trust for purposes defined in the will. Then, after certain directions and gifts of annuities, the will provided, par. 14, that "on the death of my said wife or when my youngest son shall or would have attained the age of 25 years whichever event shall first happen" the trustees should divide the net residue into two equal parts, and one part (subject to a charge) "shall be equally divided between my said two sons" (with provisions for gifts over in events which did not happen); then, par. 15, that the "other half" of the said residuary estate (subject to charges) "upon the death of my said wife
*
*
* shall subject as hereinafter be distributed in equal shares amongst" certain named beneficiaries, including B., with provisions that should any of them "predecease my said wife or die before the period of distribution with reference to this half of my residuary estate leaving a child or children surviving, such child or children living at the date of such distribution
*
* * shall take the share which the parent * * * would have received if living at the time of such distribution" and that the share of any of said named beneficiaries "who shall die before the period of distribution aforesaid without leaving any child or children who shall be living at the date of distribution shall belong to my said two sons in equal shares"; and that, in the event (which did not happen) of the wife dying before the youngest son "shall or would have attained the age of 25 years", then the period of distribution with regard to this half of the residuary estate should be delayed until the latter event.- The testator died in 1909, leaving his widow and two sons.
The widow is still living. The younger son attained the age of 25 years in 1912, and conformably to (and subject to) par. 14 of the will, the trustee then divided the net residue of the estate into two equal parts and divided one part between the two sons. The older son died in 1915 and the younger son in In 1922, B., one of the said named beneficiaries in par. 15 of the will, died without issue. The present question was concerned with her share.-Held: Upon the words in par. 15 (a construction supported by comparison of language in other parts of the will) both sons took, on the testator's death, a vested interest, in equal shares in the "other half" (of the residuary estate) disposed of in par. 15
(subject to charges there mentioned), subject to partial defeasance in favour of any of the said named beneficiaries (or, alternatively, their issue) who might be living at the time fixed for distribution;
and therefore the sons' estates took the benefit of the aliquot part of the residuary estate which B. would have received under par. 15 had she lived until the time therein fixed for distribution; but that aliquot part was not payable until the testator's wife's death. Busch v. Eastern
Trust Co., [1928] Can. S.C.R. 479, distinguished. IN ......
3-Whole estate left by mother to children as universal legatees-Clause providing for the case of decease of legatee without children
-Whether fiduciary or vulgar substitution created.-Arts. 610, 868, 893, 900, 901,
904, 925, 926, C.C.]
The mother of both appellant and respondent died on the
7th of December,. 1912, leaving a will made in notarial form on the 13th of
September, 1905, by which she left all her property, subject to certain conditions, to er six children therein named, as universal legatees, namely: Emma Bourgeau,
Louisa Bourgeau, Rose de Lima Bourgeau, Lda Bourgeau, Joseph Bourgeau and Wilfrid Bourgeau.
Emma (who was a sick person and could not have children)
died unmarried, in 1930.
Louisa died without children, in 1925, leaving all her property to her two sisters, Rose de Lima and La, with substitution as to the share of L6a in favour of Rose de Lima. Joseph also died in 1925, but his estate is not involved in the present case.
Lda died unmarried in 1930, leaving all her property to Rose de Lima. The only children of the testatrix living at the time of the institution of this action were the appellant and the respondent. The latter claimed that, under the will, she was entitled to the whole of the interests of both Louisa and L6a in the estate of her mother, including what both had received from Emma's share. The appellant, on the other hand, claimed that the will created a compendious substitution, i.e., both vulgar and fiduciary (Arts. 925-926
C.C.) in favour of the surviving children of the testatrix when one of these children died after the testatrix, without leaving any children, and that accordingly he was entitled to share equally with the respondent in the shares of Louisa and Lea. The material clauses of the will are quoted in the judgment; but the clause, which is to be interpreted and upon which the appellant mainly relied, was in the following words: "dans le cas de d6cs sans enfants, la part du d6c6d6 accroitra A mes autres 16gataires universels survivants" (in case of decease without children the share of the deceased will be added to the shares of my other universal legatees surviving). The respondent's claim was maintained by the trial judge, whose judgment was unanimously affirmed by the appellate court.- Held: That the respondent, was alone entitled to the whole of the interests of her sisters Louisa and La in the estate of her mother, including what both had received from Emma's share, thus affirming the decisions of the trial and the appellate courts, and that the above quoted clause did not create a fiduciary substitution as claimed by the appellant. BOURGEAU........... 4- Trust-Accountas-Testator's widow appointed executrix and given "the right to use such part of the income and principal of my estate as may reasonably be necessary for her support and maintenance"-Action by residuary legatee for accounting as to widow's use of estate-Extent of widow's right to encroach upon corpus-Reference to Master to take an account-Widow's dealing with the property-Method of fixing income of estate and of fixing allowance for support and maintenance-Authority of Master- Whether right on appeal to object to method adopted by Master in view of conduct at hearing-Right of appeal to Supreme Court of Canada from dismissal by Court of Appeal from judgment dismissing appeal from Master's report.] By his will W. appointed his widow to be executrix and left her "the right to use such part of the income and principal of my estate as may reasonably be necessary for her support and maintenance."
W. died in 1919 and his widow died in 1931. W.'s residuary legatee sued widow's executrix for an accounting of W.'s estate. The trial judge held that it was for the court to determine what was reasonably necessary for the widow's support and maintenance and her right to encroach upon the corpus of the estatew as limited in amount to what the court deemed reasonably necessary; and he made a reference to the Master to take an account and to ascertain what amount of W.'s estate remained or ought to be in the hands of the widow's executrix.
Accounts were filed before the Master but vouchers were lacking; also the Master was of opinion that the widow had brought herself within the law as to liability and onus for mixing trust property with one's own (Lupton v. White, 15 Ves. 432); and he did not go through the accounts, though he referred to them on occasions during the hearing. He held that a certain passing of accounts by the widow on February 16,
1922, was binding upon the parties, found the amount in her hands when she came to
Toronto in September, 1922, and, in view of the investments at the latter date, fixed
6% as a fair rate at which to fix her income from the property, and, on evidence, fixed amounts per year (with certain items added) to be allowed her for reasonable support and maintenance, and made his report on that basis. The widow's executrix appealed from his report to a
Judge, and then to the Court of Appeal for Ontario, the appeals being dismissed, and she then appealed to this Court.- Held that, while it is not for the Master, as a rule, without further direction, to apply the principle as to liability and onus for mixing trust property with one's own
(Lupton v. White, supra, at 436), appellant must, on the record of the hearing, be taken, to the extent stated infra, to have agreed on the method of procedure adopted by the Master, and, to such extent, could not now object thereto
(In re Pratt, 12 Q.B.D. 334, at 341); but this agreement applied only to the period after the widow came to Toronto in
September, 1922, and only to the method in calculating a reasonable allowance for support and maintenance; the receipts, therefore, should be taken from the accounts (not by fixing a percentage as aforesaid); and the widow should have received credit for all sums shown by the accounts to have been expended for her reasonable support maintenance from February 16, 1922, aforesaid, until she arrived in Toronto in September
1922; from that time appellant was bound by the method adopted by the Master of ascertaining reasonable annual amounts for support and maintenance regardless of the accounts.-Held, further, that it was proper for the widow to purchase and maintain a property in Toronto as a home, and it was not necessary for her to live alone in it or to live in an apartment; but this real property (purchased in the widow's name), and certain furniture, were purchased with funds of W.'s estate and were assets of that estate passing to W.'s residuary legatee.- Held, further, that there was jurisdiction to entertain this appeal.
Hendrickson v.
Kallio, 11932] O.R. 675; Supreme Court
Act (R.S.C. 1927, c. 36; s. 2 (b) defining
"final judgment"); and Ontario Cons.
Rule 506, referred to.-In the result, the ap eal was allowed and the matter referred back to the Master to take the accounts in accordance with the judgment of this Court.
BAKnt
5-Construction-Description of devised property-Falsa demonstratio.]
A testator's real estate consisted of a farm at Cape John upon which he and his family resided and a wood lot about 50 miles therefrom.
He had a wife and four children. By his will he gave his wife the third part of his real estate and personal property for her life; then, by clause 2 (the construction of which was in question, he gave to his younger son, W., "all my real estate consisting of the farm on which I now reside, situated at Cape John and also all my personal property subject to his mother's claim and also to" arrangements for building a house and for carrying on the work of the farm for the maintenance of the family until W. reached 21 years of age, but "in the event of his dying before he comes to that age, then all my real estate and personal property shall go to my oldest son L., he at the same time assuming all the responsibilities and liabilities involved in these arrangements."
subsequent clauses the testator gave to his son L. and to his daughter M. each a sum to be paid by W. "after he comes into possession of the property" and to the testator's daughter N. a sum to be paid by W. after N. reached the age of 21.-Held: The words in clause 2 giving to W. "all my real estate consisting of the farm on which I now reside, situated at Cape John" should, in view of their context and the other provisions of the will, be construed as a gift of all the testator's real estate, including the wood lot as well as the farm; the words "consisting of the farm," etc., being rejected as a mere falsa demonstratio.-Slingsby v. Grainger, 7 H.L. Cas. 273, discussed and distinguished.-Judgment of the Supreme Court of Nova Scotia en bane, 7 M.P.R. 255, affirmed. J. LEwis SoNs v. DAwsoN ..... 6-Administration and distribution of estate-Postponement of conversion into money of testator's shares of stock in company-Shares apparently unsaleable and no dividends received- Ultimate realization on shares on liquidation of company-Rights as between tenants for life and remaindermen as to moneys realized-Manner of distribution among shareholders of moneys received by company for its assets-Directions of will.] K. died in 1912.
In his will, after certain bequests, he devised and bequeathed the remainder of his property to his trustee to carry out the trusts of the will, which included conversion into money "in such manner and at such times as he may deem proper," direction to invest and power to change investments, direction for payments to K.'s widow out of income for maintenance, direction for division, after the widow's death (which occurred in 1916), of the balance of the net income of the estate among his children, and, by par. 14, direction that the capital of the estate be kept intact until at least one year after the death of
K.'s last surviving child or of K.'s last surviving grand-child which might be living at K.'s death, whichever event should last happen, and then that the whole estate be distributed in a manner set out.-The estate left by K. included
250 ordinary shares of the capital stock of a company, of the par value of £10 each.
No dividends were paid and the shares were apparently unsaleable, until an expropriation of the company's property which was followed in 1920 by a voluntary liquidation of the company for the purpose of distributing its assets, which apparently consisted wholly of the sum awarded for the expropriation and interest thereon. This interest was distributed on account of the arrears of dividends accumulated on the company's preference shares. The principal sum awarded was distributed "by way of return of capital" pro rata among the preference and ordinary shareholders pursuant to a direction of the court in ngland. In the years 1920-1922 the trustee of K.'s estate received from the company's liquidator sums aggregating
$20,212.78.-Appellant, one of If.'s children, contended that the said sum of
$20,212.78 received by the trustees should be apportioned between capital and income in accordance with the rule laid down in In re Earl of Chesterfield's Trusts,
24 Ch. D. 643; that the postponement of conversion of the shares was for the benefit of the estate-for the benefit both of the remaindermen and of the life tenants; and the said rule should be applied, so as to do justice as between life tenants and remaindermen, by dividing the funds received in such a way that they would respectively be in the same position as if it had been possible to convert the shares to advantage on the testator's death or within one year thereafter; that even if the sums when received by the trustee were capital realizations, that fact would not exclude the application of the equitable principle invoked.- Held: (1) The adjudication of the English court that the principal sum of the award should be distributed "by way of return of capital," etc., was not conclusive upon the parties to this appeal, as that direction was made on an originating proceeding to determine the respective rights of the preference and ordinary shareholders upon the winding up of the company, and was not also a determination of the respective rights of the life tenant and reversioner under the will of any shareholder.-(2) The sums when received by the trustee were clearly capital realizations re Armitage,
11893] 3 Ch. 337; Inland Revenue Commissioner v. Burrell, [1924] 2 K.B. 52; Hill v.
Permanent Trustee Co. of New South Wales, Ltd., [1930] A.C. 720).
The will itself excluded the application of the rule invoked.
The application thereof asked for by appellant would effect a reduction of capital and be contrary to the said express direction in par. 14 of the will. The sums in question must remain in their entirety as part of the capital of the estate.-Judgment of the Court of Appeal for Ontario, [1934] O.R. 71, affirmed in the result.
7-Identity of object of gift-Gift to certain funds "of the Presbyterian Church in Canada"-Will made before, but testatrix dying after, the passing and coming into force of The United Church of Canada Act (Dom., 1924, c. 100).-By her will, made in 1921, G. gave a sum to "the Home Mission Fund of the Presbyterian Church in Canada" and a sum to "the Foreign Mission Fund of the Presbyterian Church in When she made her will she was a member of a congregation of the Presbyterian
Church in Canada, at Hopewell, Nova Scotia. That congregation entered the United Church of Canada in 1925, when The United Church of Canada Act (Dom., 1924, c. 100) came into force.
G. remained a member of the congregation until her death in 1929. The Supreme Court of Nova Scotia en banc held (6 M.P.R. 465, affirming judgment of Graham J., ibid), that the gifts should be paid to the Home and Foreign Mission Funds respectively, of the Presbyterian Church in Canada (that is, the continuing Presbyterian Church in Canada, so called, not merged in nor associated with the United Church of Canada) (hereinafter called the "Continuing Presbyterian Church").
The United Church of Canada (but no other parties interested) appealed to this Court. It claimed that the Presbyterian Church in Canada, as it existed before the said Act, became a constituent part of the United Church of Canada without the loss of its identity, and that the gifts in question should pass to the United Church of Canada.-Held: The United Church of Canada was not entitled to the gifts (Fraser v. McLellan, [1930] Can. S.C.R. 344); and its appeal failed.-This Court expressed no opinion on the question of the right of the Continuing Presbyterian Church to the gifts as against other parties interested, as residuary legatees or as next of kin; that question (which the appellant church had no status to raise) not being before it.- Therefore the said decision of the Supreme Court of Nova Scotia en banc, in the result remained undisturbed.
UNI- WILL-Concluded
8- Propounding for probate-Facts to be established-Allegation of fraud and undue influence-Onus of proof.] If a party propounding a will for probate has satisfled the court that the testator executed it with due formalities, and that when he did so he was of sound and disposing mind and memory, had full knowledge and appreciation of its contents, and actually comprehended what he was doing, the party propounding has fulfilled the onus upon him; he does not have to go farther and disprove or negative the alleged exercise of undue influence or fraud; it is for the party impugning the will to satisfy the court of the exercise of undue influence or fraud.-Barry v. Butlin 2 Moore
P.C. 480, Fulton v. Andrew, L.R. 7 H.L.
448, Tyrrell v. Painton, [1894] P. 151, and other cases, reviewed and discussed.-As to the will in question, held, that, in view of the evidence of the attesting witnesses to the will and of certain physicians, which evidence appeared clearly to have been accepted without question by the trial judge, and there being nothing to cast any well-grounded suspicion upon that evidence, it must be taken that the testator was of sound and disposing mind and memory, and was fully aware of what he was doing, when he executed the will, and that the will was consequently entitled to probate, failing affirmative proof of the allegation that he was prevailed upon to execute it by fraud and undue influence; and that the evidence relied on to establish that allegation was wholly insufficient to warrant an affirmative finding.-Per Duff C.J.: Wherever a is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator, the court ought not to pronounce in favour of it unless that suspicion is removed (Tyrrell v. Painton, [1894] P. 151, at 159-160.)
v. FERRIS ......
WORDS AND PHRASES - " Accident arising out of and in the course of his employment.......................
2- "Amount in controversy"...... 214
3- "Final judgment" ............
4- "Mine rescue work" ............
5- "Mining"................. 107
6-"
Naturelle (obligation)" .......
See NOTE.
7- "Public harbour".............. 133
WORDS AND PHRASES-Concluded 8- "Reasonable precautions" ...... 9- "Regulating coasting trade".... 197 10-"River improvement".......... 133 See LAW 2. - New Brunswick Act, 1932, c. 36, 8s. 7, 3 2 -"Mining"-"Mine rescue work"-"Accident arising out of and in the course of his employment."] The appellants' husbands, miners in the employ of M. Co., lost their lives when they went down a disused mine shaft on M. Co.'s property in an attempt to rescue fellow employees who were overcome by gas in attempting to rescue children who while playing had gone into the shaft and been overcome by gas. The Workmen's Compensation Board disallowed appellants claims for compensation under the Workmen's Compensation Act, N.B., 1932, c. 36, and its decision was affirmed by the Appeal Division of the Supreme Court of New Brunswick (6 M.P.R. 120).-Held: "Mine rescue work," included (by s. 2 (m)) under the term "Mining" in the Act, should not be construed as applying only to the occurrence of a peril which places in jeopardy the lives of miners in a mine which is in actual operation. There is no warrant for limiting the meaning of the words so as to exclude rescue in a mine shaft in which actual operations have ceased or been suspended, if circumstances arise to create a peril there; or so as to apply only to the rescue of miners.- "Employment" in s. 7 of the Act is not to be restricted to the actual particular work the workman is engaged to do. An accident is one "arising out of and in the course of his employment," within the meaning of s. 7, which arises out of and in the course of anything the workman does which is reasonably incidental to such work. Also, a workman may be impliedly authorized in an emergency to do something which does not fall within the scope of his ordinary duties under his contract of service (Culpeck v. Orient Steam Nay. Co., 15 B.W.C.C. 187, at 189, and other cases cited).
This principle, in its application, is not limited to emergencies in which the employer's property is involved. It applies to any emergency in which the interests of the employer are in any manner involved. - The scope of employment, as indicated in the contract of service, may be impliedly enlarged by the occurrence of an emergency, and without any intervention on the part of the employer, and, if the employment is thus enlarged, anything which the workman does in such an emergency is to be deemed quite as much a part of his employment as if it were comprehended in the contract of service itself.-The Act should not be narrowly construed against workmen, but should be given a large and liberal construction in their interest (Gibbs v. Great
Western Ry. Co., 12 Q.B.D. 208, at 211, cited).-In the present case, the vital question was, not whether the descending into the mine shaft was a duty which the appellants' husbands' contracts of service as coal miners imposed upon them, but whether, in going to and participating in the work of rescue which the mine manager had undertaken at the shaft, they were doing something which they were, expressly or impliedly, authorized to do.
This question demanded consideration of the entire evidence regarding the employing company's responsibility for the condition of the idle shaft and the presence in it of noxious gas as well as its responsibility for the protection of that shaft as a source of danger, the giving of the alarm, the mine manager's participation in the work of rescue, his bringing employees to the scene of peril, and especially his directions as to summoning other employees from the neighbouring shafts.
The question as to the appellants' husbands going to and participating in the rescue in consequence of orders or directions expressly given by the mine manager was entirely one of fact, upon which the
Board had not made, and this Court was
(under said Act) precluded from making, a finding. As the Board had misconstrued provisions of the Act and (in consequence) had ignored evidence that should have been considered, the case should be sent back to it for reconsideration in the light of this Court's holdings as to the true construction of s. 7 of the Act.
BETTS v. THE
BOARD.............
2- R.S.O. 1927, c. 179, s. 119-121- Janitor cleaning outside part of windows in office building---Reaching from one window to clean another-Decayed condition of window-sill-Fall and injury-Whether injury "caused" by "defect" in condition of sill, within s. 119 (1)-Manner of use of sill-Jury's findings-Evidence-Excessive damages awarded by jury and new trial as to amount.] L., as part of his work as janitor and caretaker of respondent's office building, was cleaning two upper windows, which were separated by a pillar 12 inches wide.
He had finished one window on the outside, sitting on the sill and facing towards the inside of the building. He then proceeded to clean the other window on the outside by reaching over from the sill of the finished window, and, in doing so, changing from his former posture when the outside sill of the finished winaow, from which he was reaching, gave way and he fell and was injured.
Respondent was sued for damages, and the claim was treated, in the questions put to the jury, as one under ss. 119-121 in Part II of the Workmen's Compensation Act, R.S.O. 1927, c. 179. The jury found that the accident was caused by defect in the window sill, being owing to its "decayed condition"; that at the time of the accident L. was acting within the scope of his employment; and that he was not guilty of contributory negligence; and judgment was entered for the damages found.
The Court of Appeal for Ontario (11933] O.R. 595) set aside the judgment and dismissed the action, on the ground that the case was not brought within the statute, L. being the author of his own injury by exposing himself to an unnecessary risk (Lancashire & Yorkshire Ry. Co. v. Highley, [1917] A.C. 352). On appeal to this Court: Held: The judgment of the Court of Appeal should be set aside; and the jury's findings sustained (as being not unwarranted on the evidence) in all respects except as to the amount of damages awarded, which were excessive, and as to which there should be a new trial. On the facts in evidence and the jury's findings, the injury "caused' by a "defect" in the sill's condition, within s. 119 (1) of the Act.- Per Duff C.J.: The exposition of "defect" (within such a statute) in Walsh v. Whiteley, 21 Q.B.D. 371 at 378, and Nimmo v. Connell, [19241 A.C. 595, at 606, is (subject tQ exclusion, under the Ontario Act of negligence as an essential element of te cause of action) reasonably applicable to the present case.
"It is the use to which a thing is intended to be put and is being put which must be considered when the question whether or not there is a defect in its condition has to be determined" (Nimmo v. Connell, supra, at 606).
When the employer permits a particular use, that shews conclusively that such is the intended use of the thing to which "defect" is imputed within the meaning of this principle (Jones v. Burford, 1 T.L.R.
The jury's findings established that the sill was being used in a reasonable way for a purpose for which its use was permitted, when, owing to its condition, it gave way and so caused the fall. These facts brought the case within s. 119 (1) of the Act.-Per Lamont J.: As respondent permitted, and therefore intended, that the sill be used as a base of operations for window washing, it was within the meaning of the Act, "intended for or used in the business of his employer",
If it was, in its condition, uNtted for such use, or if its condition made it dangerous when reasonably so used, that condition constituted a "defect" within the Act; and the jury had, by their findings, said that L.'s manner of use was reasonable.-Per Cannon, Crocket and Hughes JJ.: Having regard to the object of s. 119 (1) (reading it with the enactments following it in the Act), as a special enactment to extend the employer's liability in the workman's favour, and one, therefore, not to be narrowly construed against the workman, it cannot be said, if the workman is in fact injured by reason of a defect in the condition or arrangement of any portion of the building
(the building being "connected with, intended for or used in" the employer's business), that he is not to recover unless the defect be one which concerns the particular duties which his contract of service requires him to perform. That consideration may bear upon the question of the causation of the injury, but does not justify annexing to the ordinary meaning of "defect" in its context, as applicable to a building or any of its parts, a condition or meaning which the language of the enactment does not express or necessarily imply. No significance to the contrary can be safely taken (in construing the Ontario Act) from the words in Walsh v. Whiteley, 21 Q.B.D. 371, at 378 (and supported in the dictum in Nimmo v.
Connell, [19241 A.C. 595, at 606), that "it must be a defect in the condition of the machine, having regard to the use to which it is to be applied or to the mode in which it is to be used", as those words proceeded rather from the consideration of the negligence of the employer as a necessary element in the existence of the defect causing the injury. Under the enactment now in question, all that is necessary is that the workman is injured by any defect in the building in which he is employed.-Under s. 119 (1) (and reading ss. 120 and 121 in connection therewith) it is sufficient to entitle the workman to recover, if the injury be in part directly attributable to the defect (and though the defect has arisen without negligence of the employer or his servants or agents); the fact that some negligence of the workman may have operated with the existence of the defect to produce the injury makes no difference as to the employer's liability, except (s. 121) as to assessment of the quantum of damages. The jury's finding that the accident was caused by defect in the sill (its decayed condition) was conclusive as to respondent's liability.-The question as to whether L. voluntarily and unnecessarily assumed a new and added risk independently of that attaching to his employment as janitor and caretaker and different in kind therefrom or whether he was simply doing something within the sphere of his employment in an improper or negligent manner, does not arise upon the special provisions of s. 119 principle, or test, affirmed in Lancashire & Yorkshire Ry. Co. v. Highley, [19171 A.C. 352, has no application to that enactment. LEwIs v. &
Cases cited
- Hudon v. Tremblay scr-1931-624
- O.R. 637 O.R. 637
- 2 W.W.R. 310 2 W.W.R. 310
- O.R. 519 O.R. 519
- O.R. 147 O.R. 147
- Liquidators of the Maritime Bank of Can v. Receiver- General of New Brunswick A.C. 437 442
- A.C. 956 A.C. 956
- O.R. 601 O.R. 601
- A.C. 999 A.C. 999 1004
- Kerr Kerr, supra, at 75 75
- Seaton v. Burnand A.C. 135 143
- Marshall v. Fournelle scr-1927-48
- Mackay v. City of Toronto Mackay v. City of Toronto, supra
- A.C. 662 A.C. 662
- 2 A.C. 555 2 A.C. 555
- Mersey Docks & Harbour Board v. Proctor A.C. 253 259
- Donald Campbell & Co. v. Pollak A.C. 732
- 1 A.C. 80 1 A.C. 80
- 2 W.W.R. 567 2 W.W.R. 567
- 4 D.L.R. 303 4 D.L.R. 303
- 2 W.W.R. 416 2 W.W.R. 416
- O.R. 641 O.R. 641
- Campbell v. Hogg 3 D.L.R. 673
- Lupton v. White Lupton v. White, supra, at 436 436
- A.C. 720 A.C. 720
- O.R. 71 O.R. 71
- Lancashire & Yorkshire Ry. Co. v. Highley A.C. 352
- Nimmo v. Connell Nimmo v. Connell, supra, at 606 606
Statutes and regulations cited
-
- s. 91
- s. 92
- ss. 91
- 92
-
- 121
- s. 121
-
Unresolved citations
- ss. 2
- Section 68
- s. 3
- section 2
- s. 110 of the Companies Act
- s. 17 of the Marriage Act
- subs. (1)
- section 4 of the Accident and Sickness Policy Act
- section 86 of the Special War Revenue Act
- Sections 110
- 114 of the Placer-mining Act