Majority
law upon which I share his view. I am therefore in agreement with Roach and Aylesworth JJ.A. that the statements in question were properly admitted by the trial judge.
As to the other ground of dissent, I am in respectful AbbottJ. agreement with Roach J.A. that there was no misdirection and no non-direction amounting to misdirection.
There is nothing which I could usefully add to his reasons for judgment.
I would allow the appeal and restore the conviction.
Judgment of the Court
RAND J.:-This is an appeal by an anaesthetist from a judgment (1) holding him responsible for an explosion of ether-oxygen gas in the preparatory stages of a tonsillectomy in an action brought as well against the surgeon and the hospital. Smily J., at trial, dismissed the action (2), and this was affirmed by the Court of Appeal (1) except as to the anaesthetist.
The items of negligence relied on are reduced to two: the first, that a small can containing a quantity of ether into which oxygen was introduced and from which the mixed gas was conveyed to the patient had been kept on the operating-table at a distance of between 6 and 7 inches (1) [19561 O.R. 132, 1 D.L.R.
(2) [19551
O.R. 332.
[19551 3 (2d) 502.
D.L.R.
from the face of the patient; and the second, that during a suspension of anaesthetizing and while pure oxygen was being administered to counteract cyanosis, the flow of oxygen into the can and thence into the air was allowed to Rd continue, producing a condition for the explosion which followed.
With the first ground I find it unnecessary to deal. Schroeder J.A., who gave the judgment in appeal, held it to have been practicable to keep the can in some other place than on the operating-table.
During the trial the suggested place was the floor, but I would accept the opinion of Dr. Gordon that that is no place for any part of the apparatus in such a procedure. Dr. Nichols agreed that at times he had removed the can from the table, but where or under what circumstances was neither asked nor stated. The practice followed here was approved by Dr. Gordon, and it would be extremely dangerous for a Court to attempt in such a matter to proscribe a step for technicians where their general experience approves it and it is not clearly unnecessary and unduly hazardous.
The second ground, however, does not appear to be open to that stricture. It is conceded that in surgical operations there is a constant danger of a spark from static electricity and that the general means of avoiding it are known by all concerned. In particular there is a common understanding of "grounding" a charge, and of the scientific theory of differences in potential from which sparks may result. Among the means taken in the hospital to drain off or neutralize any electric condition were, a metal grid imbedded in the floor and gathered into a grounding, the, wearing of cotton outer garments and leather-soled footwear, a regulated humidity, temperature and ventilation, and a prescribed mode of separating parts of the apparatus against the effects of different potentials. It is conceded also that the ether-oxygen vapour is a highly explosive mixture.
An absolute prevention of any diffusion of ether gas or of the ether-oxygen mixture is not practically possible. In the can here, besides an aperture for the admission of the oxygen tube, there was a somewhat smaller one, about in diameter, through which the vapour from ether as well as the mixture could escape into the air, designed to prevent a pressure being built up beyond the capacity of al. the patient to accept.
In this case, the patient, a young boy about 5 years of age, had been given pentothal to induce the first stage of anaesthesia. That was at once followed by the introduction of a small tube into the trachea, called a Magill tube, to which was connected another leading from the can. Into the can the oxygen was led from an oxygen-tank about 5 feet from the operating-table. The oxygen enters the can at a much reduced pressure from that in the tank. The tube may reach below the surface of the ether or above it, but in either case the flow causes the ether to bubble and the mixed vapour to rise and through a central orifice in the top of the can to pass into a connector and tubes leading into the trachea.
Within half a minute or so of the setting up of the apparatus connecting the oxygen-tank, the can and the patient, for some part of which the ether-oxygen gas was in flow, Dr. Sylvester noticed a bluish tinge about the lips of the patient and satisfied himself that a cyanotic condition was present which had to be corrected immediately. connector on the tube-system from the can was disconnected from the tracheal tube, the oxygen-tube was withdrawn from the can, and both connector and oxygen-tube were introduced into a rubber bag for the purpose of filling it with pure oxygen.
The pressure from the tank was stepped up and the bag was filled in the course of 10 or 15 seconds. The oxygen-tube was thereupon removed from the bag, reinserted into the can and the pressure from the tank reduced-or intended to be reduced-to normal. The oxygen-bag was then -connected with the tracheal tube by means of the connector and by manual compression the oxygen was introduced into the child's lungs. In half a minute or so he was restored and respiration had become normal.
The next step was to disconnect the oxygen-bag from the tracheal tube and restore without delay the flow of the anaesthetic from the can into the lungs. To make that disconnection, Dr. Sylvester took hold firmly of the end of the tracheal tube with thumb and finger of the right hand and the metal face-piece of the bag and the connector with the left hand and in a sort of sweeping or bending motion he brought about the separation.
At that instant, with a sizzling sound, a flash of blue flame and a violent explosion followed, and the flame appeared to the doctor to be between the can and the patient's face. The effect reached to the surgeon who was standing at the foot of the operating-table and serious injuries were caused to the child.
No other cause is suggested than that of a spark of static electricity setting aflame the ether-oxygen mixture accumulated in the space between the can and the patient's head. As mentioned, from -the breaking of the pipe-connection between the can and the tracheal tube until the oxygentube was removed from the can and connected with the oxygen-bag, and, following the "bagging" of the child, from the time of restoring the oxygen-tube to the -can until the breaking of the connection between the oxygen-bag and the tracheal tube, the oxygen was flowing into the can mixing with the ether and escaping through both the small release aperture and the main opening from which led the tube to the patient. In addition to that, there was the flow of oxygen to the can before action was taken to restore respiration, and that the gas did not, in any quantity, then reach the lungs is indicated by the cyanotic development. The time, therefore, of the flow which escaped and was escaping when the final disconnection was made cannot have been less than 2 to 3 minutes. It does not require a technician's understanding to see that a dangerous volume of the gaseous mixture had built up in the immediate area in which the flash of flame appeared.
The evidence is not at all 'clear whether, when the bag was filled and the oxygen-tube restored to the tank, the pressure in the tank had been reduced by Dr. Sylvester or by a nurse. In one place his language would indicate that he had done it but in another he could not be certain that it was not by a nurse. It was suggested to him that, at that point, to have turned the oxygen-tank off completely would have entailed no material delay and would have reduced substantially the danger. This he first met with two objections, that he wanted the gas to be ready immediately upon resuscitation, and that it was just another manipulation which he thought unnecessary.
Later, he spoke of the latter as the real objection. It was obviously as easy, if not easier, to turn the oxygen pressure off completely than to turn it down to the normal. He could not say whether there was a flow-gauge on the tank, and the degree of flow was estimated. If this reduction had been made by a nurse it is impossible to say what amount was made or at what speed the flow -continued. Upon restoring the anaesthetizing-system, it would have been only a matter of a second or so for him to reach to the oxygen-tank and open the valve and the time for the oxygen to pass through the distance of 6 or 7 feet of tube into the can and the distance of 6 or 7 inches to the mouth of the patient would not have exceeded 5 to 10 seconds.
No doubt it was desirable to renew the anaesthesia without unnecessary delay, but since the respiration was back to normal and the effects of the pentothal were far from exhausted, the additional step would have been immaterial to the procedure.
The fact seems to be that Dr. Sylvester assumed that static electricity was sufficiently guarded against. Admittedly there is no absolute security against either spark or explosion. While all operations must run a risk of such an unlikely eventuality, the duty of all working in such conditions is to reduce that possibility to the practicable minimum.
Was, then, the act of allowing the ether-oxygen mixture to escape reasonably necessary?
Involved in that determination is its working out in actual practice and if it could be shown that a uniform practice throughout hospitals had found it to be one of the requirements of the procedure, then the Court is not in a position to dictate to that judgment. Was it a step approved by what is called "standard practice"?
On that there is a minimum of evidence.
An answer given by the doctor on cross-examination is said by Mr. Henderson to establish that fact.
To understand the answer, it is necessary to read a previous question and answer:
To this last language I can give only one interpretation, that "the practice" to which he refers was his practice and not standard 'or general practice. Neither Dr. Nichols nor Dr. Gordon was questioned specifically on this point; but that it was looked upon as one of importance appears from the cross-examination of Dr. Sylvester by counsel both for the hospital and for the plaintiff.
It was, therefore, an issue clearly raised by the evidence but left in the state I have indicated.
I think the evidence justified the Court of Appeal in holding that it was an improper practice because quite unnecessary. Although to turn the oxygen on again to the normal pressure was an additional act, it was one that could fit easily and habitually into the procedure, even more so than turning the pressure down-without a gauge-to the normal. It created, undoubtedly, a serious increase in the hazard; the extra time involved was insignificant; and in the proximity to the patient of such a body of explosive gas it would seem to me, in the absence of the evidence of wide and confirmed experience, to be without justification. At any rate, I am quite unable to say that the view taken by the Court of Appeal was wrong.
The appeal must, therefore, be dismissed with costs. Appeal dismissed with costs. Solicitors for the plaintiffs, respondents: Gregory, Anderson, Ehgoetz & Bell, Stratford.
Solicitors for the defendant Sylvester, appellant, and the defendant Macklin: Gowling, MacTavish, Osborne & Henderson, Ottawa.
Solicitors for the defendant corporations: Mitchell & Hockin, London.
Island in navigable and tidal river granted by the Crown-Subsequent purchaser claiming accretion-Quieting Titles Act, R.S.B.C.
1948, 282-Land Registry Act, R.S.B.C.
1948, s. 38(1), cls. (a) (j). The petitioner, as the registered owner of an island situate in the delta of a navigable and tidal river in British Columbia (the
Fraser), claimed, under the Quieting Titles
Act, the ownership certain allegedly accreted lands.
The island was granted the Crown in and purchased by the respondent and his father in
A provincial public road was constructed in leading from the village Ladner to the north-westerly limit of the island and, as the important area claimed lay to the southwest of that road, the conditions as they existed prior to its construction were those to be considered.
It was agreed that there were accretion, it had been gradual and imperceptible, and that there was nothing in the terms of the Crown grant to prevent that accretion going to the petitioner.
The trial judge allowed the claim and this judgment was affirmed by a majority in the Court of Appeal.
The appeal should be allowed and, subject to any claim the petitioner might wish to make in respect two small areas east the road, the petition dismissed.
Kerwin C.J. and Locke, Cartwright and
Nolan JJ.: The petitioner had failed to show that prior to the construction of the road, the area in question was not overflowed by the waters of the river at the medium high tide between the spring and neap tides and, consequently, had failed to established that the area had through accretion ceased to be the property of the Crown.
Per Kerwin C.J.: The evidence was not sufficient to show that in 1930 any part the area claimed was capable of ordinary cultivation or occupation.
Per Rand J.:
The essential condition for accretion a slow and imperceptible change resulting the projection outwards of the mean high water line and the correlative annexation to the land of what was formerly below that line.
The elements of a practical nature such as convenience or utility are irrelevant.
The gradual rise was not, during its progress, accretion; it was a process of widespread emergence of land owned by the Crown.
NEILSON.......
AERONAUTICS-Crash of .airplane- Death of passenger and pilot-Whether action lies against estate of tortfeasor- Limitation period-Families
AERONAUTICS-Continued
R.S.B.C. 1948, 116-Administration Act, R.S.B.C. 1948, 6-Interpretation Act, R.S.B.C. 1948, 1.
The pilot of a plane and his passenger were both killed when the plane crashed.
It was not known which of the two died first or if they both died at the same moment. The appellant, a dependant of the passenger, sued under the Families Compensation Act (R.S.B.C. 1948, 116) the administratrix the estate of the pilot pursuant to of the Administration Act (R.S.B.C. 1948, was brought after the six months after the death of the pilot (the period limited by s. of the Administration Act) but within the twelve months from the death of the passenger (the period limited by of the Compensation Act).
The trial judge held that the appellant had a cause of action against the administratrix and that the action was not statute-barred.
This judgment was reversed by a majority judgment in the Court of Appeal.
Held (Locke and Cartwright JJ. dissenting): That the appeal should be dismissed.
Per Kerwin C.J.: The definition of "person" in of the Families Compensation Act as "the person who would have been liable if death had not ensued" does not apply to the personal representative of the deceased tortfeasor notwithstanding 24 of the Interpretation Per Rand J.: If the pilot's death had occurred first, then by force of 71(3) of the Administration Act, there accrued at that moment to the then living passenger a right of action against the legal representative of the deceased pilot and that representative would, upon the death of the passenger, become liable to the beneficiaries of the passenger under 4 of the Compensation Act.
On the other hand, if the pilot survived the passenger it would be against him that the passenger, at the moment of his death, had the right action and it would also be against the pilot only that the right of the beneficiary would lie: on the death of the pilot the right would, under the well-established rule of the common law, come to an end and there nothing in which affects that result.
The governing point of time in each case is that of the passenger's death. If both had died at the same moment there no presumption of law either as to survival of the one or other or as to death of both at the same moment. As the pilot may have survived the passenger, the presumption of either of the other two possibilities excluded and with it the possibility of finding that the person liable was the legal repre- AERONAUTICS-Concluded sentative of the pilot. Per Kellock J.:
The new right of action, created by the
Families Compensation Act, abates upon the death of the tortfeasor where the latter survives the victim and there is nothing the Act which prevents that result or allows a person suing under that statute to invoke the provisions of the Administration
Act although the victim himself might have done so.
The law does not permit the context of of the Families Compensation
Act to apply so as to permit action to be taken against the personal representative the tortfeasor.
Per Locke J. (dissenting)
:
In applying 3 of the Families Compensation Act, the question is who the person wronged could have sued in respect of his injuries had he lived.
Against such person, whether the wrongdoer or his personal representative, the action lies at the suit of the personal representative of the one who was wronged on behalf of the dependents, or by the dependents on their own behalf.
Consequently, the passenger, if alive, might by virtue of 71(3) of the Administration
Act have sued the pilot if he were alive and, if dead, his personal representative, and accordingly this action lies.
The fact that there no evidence to prove when relation to the death of the passenger the death of the pilot occurred does not affect the matter.
S-s. of of the Administration Act excludes the limitation of six months of s-s. and accordingly the action was not barred (B.C. Electric v. Gentile
A.C. 1034 referred to).
Per Cartwright J. (dissenting)
: The word "person"
in 3 of the Families Compensation Act to be extended by virtue of 24(31)
the Interpretation Act to read "the heirs, executors, administrators or other legal representatives of such person".
It follows that the limitation of six months imposed
71(3) of the Administration Act has no application to the present action.
MACQUEEN......................
APPEAL-Jurisdiction-Whether finding judge accused an habitual criminal a
"judgment" and decision of Court of Appeal affirming a "final judgment"-The Supreme
Court Act, R.S.C. 1952, 259, ss. 2 (b),
(1)-Criminal Code, s.
"charge" of being an habitual criminal not a charge of an offence or crime but the assertion of the existence of a status or condition in an accused.
Brusch v. The
Queen, 1 S.C.R. 373.
The decision of a judge that an accused an habitual criminal is however a "judgment" and the decision of the Court of Appeal of a
Province affirming such judgment a "final judgment" within the meaning of 41 (1)
the Supreme Court Act and this Court has jurisdiction to grant leave to appeal therefrom.
2.-Forma pauperis-Whether test of rule
142 of the Supreme Court of Canada met.
The applicant, an unmarried man of twenty- APPEAL-Concluded eight years of age, earning $3,600 a year, contributing $70 to $75 a month to the family expenses, having a life insurance policy of $5,000 with a cash surrender value of $450, and having debts of $2,003, half for medical bills arising out of injuries which are the subject of the present litigation and the other half for monics borrowed to cover costs in the courts below, has failed to satisfy the onus that he is not worth the amount fixed by rule 142 of the Supreme Court of Canada.
Leave to appeal to this Court in forma pauperis should, therefore, be refused (Benson v. Harrison 2 S.C.R. 333 applied).
3.-Ordering new trial on grounds of misdirection, etc.-Whether substantial wrong miscarriage occasioned-Burden in this connection-The Judicature Act, R.S.O. 1950, 190, s. 28(1).
Where a new trial of a civil action is sought on the ground of misdirection of the jury it is sufficient, under 28(1) of the Ontario Judicature Act, for the appellant to show that the misdirection may have affected the verdict; he is not required to show that it actually did so. If thereafter the appellate Court is in doubt as to whether it did or not, it is then for the respondent to show that the misdirection did not in fact affect the verdict. Storry C.N.R., [194114 D.L.R. at disapproved.
PRESS........................... ASSESSMENT
See TAXATION.
AUTOMOBILE-Pedestrian injured- Onus of proof-Balance of probabilities- Presumptions--Article 1242 C.C.-Motor Vehicles Act, R.S.Q. 1941, 142, s. 58. The appellant's husband stopped his truck on the paved portion of a road and was standing behind it talking to another person when the truck, which was without a driver, started forward going down a slight grade.
The husband dashed away towards the road circling the rear of the truck order to reach the cab. At the same time, two other trucks, property of the respondent, were proceeding in the opposite direction, loaded with pulp wood. The husband was fatally injured the road after the two trucks had passed. No one saw how the accident happened. It is the contention the appellant that her husband was struck by the second of these trucks. The driver of the second truck testified that he suddenly saw a man, proceeding towards him at a fast pace, come out from the rear of the stopped truck.
He sounded his klaxon, put his brakes on and turned more towards his right. The man then retreated back, either behind or on the side of the stopped truck.
The driver said that he did not strike the man and that he proceeded until of the accident some two miles further. trial judge divided the liability equally between the respondent and the victim and maintained the action taken by the appellant on the ground that the balance probabilities indicated that the victim was struck by the second truck. The Court of
Appeal reversed this judgment on the ground that the presumptions were not strong as to exclude all other possibilities.
Held: The appeal should be allowed and the judgment at trial restored.
In cases of automobile accidents, and specially in a case like the present, it imperative to rely on what the trial judge saw and heard.
The burden of establishing the contact between the respondent's truck and the victim, which rested on the appellant, could be met by presumptions of facts, the appreciation of which to be left to the discretion of the trial judge (Art. 1242 C.C.).
There was no error in the exercise that discretion. In civil proceedings, the balance of probabilities is the decisive factor.
was reasonable for the trial judge to find that the presumptions of facts were strong enough to conclude that the victim was struck by the respondent's truck. The relation between the truck and the damage being established, the presumption of of the Motor Vehicles Act applies and since it has not been rebutted, the liability of the respondent is engaged.
Negligence-Gratuitous passenger injured-Intoxicated driver-Gross negligence- Whether assumption of risk-Whether contributory negligence.
(plaintiff) was injured through an accident while a gratuitous passenger in an automobile driven by the respondent (defendant)
who had invited the plaintiff to ride in the
The driver, to her knowledge, had started drinking intoxicating liquor at breakfast and had kept it up until the accident about an hour and a half later.
The trial judge found gross negligence against driver.
This finding was affirmed in the Court Appeal and was not questioned in this Court.
The defences volenti non fit injuria and of contributory negligence were raised.
found that the passenger had assumed the risk.
The Court of Appeal reversed this judgment but found contributory negligence.
Held: The appeal should be dismissed.
defence of volenti non fit iniuria had not been established.
However, there had been contributory negligence on the part of the passenger, and the apportionment of liability, made below, should not be disturbed.
MALONEY.........................
Collision-Negligence-Plea of guilty careless driving charge entered counsel in criminal court-Whether evidence of plea admissible in civil court-Whether trial yndge right in discharging jury and hearing case alone-Negligence Act, R.S.O. 1950, 252- Judicature Act, R.S.O. 1950, 190- Supreme Court Act, R.S.C. 1952, 259, s.44. Following a motor vehicle collision at an intersection, the appellant E. brought an action against the respondents for personal injuries and damages to his car.
A second action was brought by the appellant L. against the same respondents pursuant to the Fatal Accident Act for the death of her husband who was a passenger in the car driven by the appellant E. Both actions were tried together and were dismissed the trial judge on the ground that the sole cause of the accident had been the negligence of the appellant E.
affirmed by the Court Appeal. At the trial, the judge, in the absence the jury and without deciding as to its admissibility, heard evidence, subject to objection, a plea of guilty which had been entered counsel for the appellant E. in the latter's presence in a court criminal jurisdiction on a charge careless driving under the Highway Traffic Act.
No conviction was tendered in evidence.
Following the admission of this evidence, the trial judge, of his own motion and without hearing counsel, decided to discharge the jury and continue the trial himself.
Counsel for the appellants did not take objection to that course, and the parties agreed that the evidence taken in the absence the jury should be treated as evidence the case.
judge, in his reasons for judgement, did not find it necessary to rule on the admissibility of the evidence.
Before the Court of Appeal and this Court, the appellants contended that the jury should not have been discharged.
Held (Cartwright and Abbott JJ. dissenting): The appeals should be dismissed.
Per Kerwin C.J. and Taschereau J.: The trial judge's discretion to discharge the jury was properly exercised since the evidence of the plea guilty was admissible.
The contention that the plea inadmissible because had been entered by counsel and not by the appellant, that it was only for the purposes of the criminal proceedings and that counsel's authority did not extend to that fact being treated as an admission in the present trial, is not tenable.
The appellants failed to establish that the trial judge's finding negligence, concurred in by the Court Appeal, was
Per Locke J.: There were concurrent findings as to the negligent ct which caused the accident, and no ufficient grounds have been shown nterference with that finding.
In view of he undoubted jurisdiction the trial ud by virtue the Judicature Act to discharge the jury, and in view the fact that, as was found by the Court of Appeal, it was not shown that in so doing he proceeded upon a wrong principle, no appeal lies to this Court from that discretionary order by reason of 44 the Supreme Court Act.
Furthermore, since the trial had proceeded on the footing that there was no objection by counsel for the appellants to what had been done, it was too late thereafter to raise the objection that the order dispensing with the jury had been improperly made (Scott v. Fernie Lumber
(1904) B.C.R. at 96 referred to).
The evidence of the charge and of the plea guilty was relevant and admissible.
Even if it were not so, there should not be new trial as it would be impossible to find that any wrong or miscarriage had resulted: 28 the Judicature Act.
Cartwright J. (dissenting)
: The rule that the trial judge should decide questions as to the admissibility of evidence as they arise applies not only to criminal but also to civil cases whether tried with or without a jury. In the circumstances this case, counsel should not be held to have acquiesced in the course taken at the trial simply because he did not attempt to argue against it after the trial judge had not merely stated that he proposed to follow such course but had announced his decision to do so, and consequently the rule Scott v.
Fernie Lumber ((1904) B.C.R. at has no application.
The failure of the trial judge to rule as to the admissibility of the evidence at the time when it was his duty to do so, deprived the appellants their substantial right to have the action tried a jury and there should be a new trial before a jury.
Semble, for the reasons given by Abbott J., that the evidence question was inadmissible. Per Abbott J.
(dissenting): The plea of guilty implied no more than a desire for peace, and as such was not an admission at all, had no probative value in the subsequent civil action and the evidence that it had been entered should have been rejected.
Furthermore, an admission made by counsel on behalf an accused in a criminal proceeding is not evidence in a civil matter unless the authority to make such admission was an authority to make it for the purposes a civil action as well (Potter v. Swain and
Swain O.W.N. 514 referred to).
view of the inadmissibility of that evidence, there was in fact no reason for depriving the appellants of their prima facie right to trial by jury. There was here a deprivation of a substantial right and not an exercise of discretion.
Even had the evidence been admissible, counsel should have been given full opportunity to be heard the point as to whether the trial should proceed with or without a jury.
v. 383
Negligence-Collision at night with rear of disabled truck-Flares put out truck driver-Truck lights off-Whether lighting equipment disabled-Damages for loss life-Trustee Act, R.S.M. 1940, 21- Highway Traffic Act, R.S.M. 1940, 93.
The respondent and his wife (plaintiffs)
were killed when the bus in which they were passengers collided at night with the respondent company's disabled tractor and trailer, which was stopped on the right-hand side of the pavement with a clearance for traffic sixteen and a half feet.
The administrators of the respective estates sued the owners and drivers of both the truck and the bus for damages under the Trustee Act, R.S.M.
The right rear wheels the trailer had come some hours before but the driver had been able to make the repairs and to continue his trip. Some forty miles further, the same wheels came again and the driver pulled up on the side of the road.
As the repairs could not be made at the time, the driver placed lighted flares as required by the Highway Traffic Act, turned the lights both the tractor and the trailer and went to sleep in the cab the tractor. The lision occurred some three hours later. The driver of another truck the respondent company, who had been following him and who stopped when the breakdown occurred, did not stay with him.
He continued his way, put his truck in the company's garage some fourteen miles away and went home without communicating with anyone. The trial judge found that the sole cause of the accident had been the failure of the bus driver to keep a proper lookout, that the lighting equipment the truck was disabled within the Highway Traffic Act, that the company had satisfied the onus under 82 the Act with regard to its failure to have the lights of the truck burning and with regard to the moving the truck, and awarded damages of $2,500 for each deceased.
majority in the Court Appeal affirmed this judgment but increased the general damages to $5,000 for each deceased.
Held (Kellock J. dissenting in part): That the appeal should be dismissed other than as to the quantum damages, and the award general damages made at the trial restored.
Per Curiam: The trial judge had proceeded on the proper principles in assessing the damages under the Trustee Art. Per Taschereau, Locke and Abbott JJ.: There were concurrent findings that the real and effective cause the accident had been the failure the bus driver to keep a proper lookout.
Although there had been a contravention of 17 and of the Highway Traffic Act on the part of the truck driver, in that the lights at the rear the trailer were carried at the bottom instead at the top the box and in the failure to have the lights lit since the lighting equipment was not disabled as found by the trial judge, the concurrent finding that these defaults did not cause contribute to the occurrence of the accident has not been shown to have been wrong. Per Kellock J. (dissenting in part): The truck company has not proved that the lighting equipment on its truck was disabled and that the failure to have the lights lit and to move the vehicle did not contribute to the accident.
The effect of the breach of duty on the part of both drivers continued up to the moment of impact and rendered them both equally responsible.
5.- Collision-Driver not owner-Company's truck driven without permission- Jury trial. A truck owned by the respondent company and driven by its employee,
O'D., damaged the appellant's parked car.
not disputed that the driver was negligent.
The respondent R. was an employee the company and authorized to drive the truck, to keep it at his house overnight and there was no objection to his using it for purposes of his own in the evenings.
On the night of the accident, at the conclusion of a party held at R.'s home, R.
permitted 0., another employee, to use the truck to drive home.
0. gave O'D. a lift to O.'s house, where they parted company.
0. went into his house, leaving the truck outside with the keys either on the seat above the sun-visor.
He gave no permission to O'D. to take the truck and hatt no intimation that he would do
R. at no time gave O'D. any permission to drive the truck.
In the course of the trial, the fact of insurance was voluntarily disclosed by a witness for the respondent company.
trial judge discharged the jury and gave judgment against O'D. and dismissed the action as against the. other respondents.
The Court of Appeal dismissed the appeal but granted special leave to appeal to this
Court for a decision as to whether in the circumstances it had been a proper exercise of the trial judge's discretion to try the issues without a jury against the will the
Held: The appeal should dis- Not only was the decision the trial judge on the question of liability right, but it would have been impossible for any properly instructed jury acting reasonably to have come to a different conclusion.
right to trial by jury is a substantive right of great importance of which a party ought not to be deprived except for cogent reasons.
But a new trial should not be directed reason a trial judge deciding to discharge the jury and complete the trial himself, even the appeal court were satisfied that the trial judge, was wrong in law, if the court were also satisfied that any jury acting reasonably must inevitably have reached the same result as did the trial judge.
OTHERS..........................
6.- Collision with stationary car-Sudden failure of brakes-Defence of inevitable accident. While driving a car owned by his stopped at an intersection for a traffic-light.
His service brakes worked properly. The traffic-light having changed, he proceeded and saw that the line of traffic ahead of him was at a standstill.
The appellant's car.was at the rear of this line of traffic.
At about 150 feet away from the appellant's car, 0. applied his service brakes and found that they did not work.
When his car was 50 to feet from that of the appellant, he applied his hand brakes.
This reduced his speed from m.p.h. to m.p.h. but did not stop his car. which struck the rear of the appellant's car. The trial judge accepted the defence of inevitable accident and dismissed the action.
affirmed by the Court of Appeal without written reasons.
be allowed.
The respondents have failed to prove two matters essential to the establishment of the defence of inevitable accident: (1) that the alleged failure of the service brakes could not have been prevented by the exercise of reasonable care on their part and that, assuming that such failure occurred without negligence on their part, 0. could not, by the exercise of reasonable care, have avoided the collision which he claimed was the effect such failure. On the first matter, the respondents have made no attempt to prove that the sudden failure could not have been prevented reasonable care on their part and particularly by adequate inspection.
They called no witness to explain why the service brakes which were working properly immediately before and immediately after the accident and passed satisfactorily the test prescribed by the regulations, failed momentarily at the time of the accident. Furthermore, they have made no attempt to show that the defect could not reasonably have been discovered.
As to the second matter, they have failed to show that 0. could not have avoided the accident by the exercise of reasonable care. If the hand brakes had been in the state of efficiency prescribed the regulations, 0. could have stopped his car before the collision occurred. At the least, the unexplained failure to comply with the regulations was evidence of a breach of the common law duty to take reasonable care to have the car fit for the road.
Crown-Petition right-Third party proceedings-Collision between cars-Third party's car improperly parked on road-Whether contributory negligence third party-Apportionment of liability- Highway Traffic Act, R.S.O. 1950, 167, s. 48(1). While attempting to pass a truck, belonging to the appellant third party, and parked on the travelled portion of its righthand side of the road, one evening, a Crown car, driven by an employee acting within the scope of his duties, collided with an oncoming car, belonging to the suppliant and driven at a very high speed.
The driver of the oncoming car did not dim his lights until about to pass the parked truck, or reduce his speed.
The driver of the Crown car, although so "blinded" by the lights of the oncoming car as to be unable to see the parked truck until too late, continued on without reducing his speed.
In the action AUTOMOBILE-Concluded taken by the owner of the oncoming car, the trial judge apportioned liability at 20, and per cent, respectively against the driver the Crown car, the driver the oncoming car and the driver of the parked truck. Held (Rand J. dissenting in part):
The appeal of the driver of the parked truck should
Per Taschereau,
Fauteux, Abbott and Nolan JJ.: The driver the Crown car was clearly negligent.
He could and should have seen the tail-lights the parked truck, which were plainly visible from a distance of 900 feet.
a driver sees a car in his path and has plenty opportunity to avoid it but fails to or by his own negligence, he disables himself from becoming aware of a danger and cannot therefore avoid the accident, he the only party to blame.
There was a clear line that could be drawn between the negligence of the appellant, if any, and that of the respondent, and therefore there could be no contributory negligence.
Per Rand J. (dissenting in part)
:
There was no excuse for the driver the parked truck for not placing his truck to a substantial extent the pavement, and against that failure should be charged part the responsibility for the accident.
Such a violation the law is not to be superseded by the contemporaneous negligence an oncoming driver in failing at night to see the parked car.
Otherwise, the regulations would be virtually nullified and their purpose defeated.
BANKRUPTCY-Legal services bankrupt company after petition in bankruptcy
-Continuation of services authorized by trustees after receiving order made-Adoption of services previously rendered-Preference in payment-Bankruptcy Act, R.S.C.
claim legal fees for services rendered by the late
P. was made for the period from Nov.
to Feb. in connection with 30 actions taken against various insurance companies by a company, now in bankruptcy.
A petition for a receiving order against the company was filed on Nov. 1948, but the proceedings on it were suspended while the litigation which was started some two weeks later was proceeded with. The actions were allowed and the insurance companies paid 8360,000 to the trustees who had been authorized to continue the litigation, the petition for a receiving order having been proceeded with and a receiving order made on Aug.
The inspectors of the bankrupt authorized the continuation of the services of P. at their first meeting in Sept.
The bill
822,300 for counsel fees submitted by P.
was allowed by the taxing officer, but the judge in bankruptcy taxed it at $8,000 which 81,875 was declared to be payable by preference as a debt of the estate.
Court of Appeal held that P. was entitled to the full amount claimed and to be paid
BANKRUPTCY-Concluded by preference.
dismissed.
Since under 41(4) of the Bankruptcy Act, the bankruptcy deemed to have commenced on Nov. 1948, the time of the filing of the petition, the services were rendered to the estate of the bankrupt. P. was a person "whose services have been authorized the trustee in writing" as provided by 155(4) of the Act.
trustee may the exercise his discretion adopt and pay for services rendered to a bankrupt after the filing of a petition when such services have clearly resulted, as in this case, in a benefit to the bankrupt's estate commensurate with the services rendered. acting upon the inspectors' resolution Sept. the trustees adopted the services already performed by P., and that was eminently fair.
P. was therefore entitled to be collocated and paid by preference his proper charges.
The taxing officer, the judge in bankruptcy and each member the Court Appeal are free to exercise their own discretion in fixing an amount fair and reasonable to the party whose bill is being taxed and to the client. amount allowed by the judge in bankruptcy was too low, and it cannot be said that the Court of Appeal erred in fixing the value of the services at $22,300.
BILLS OF EXCHANGE- Fraud shown -Onus on holder in due course- Bills Exchange Act, R.S.C. 1952, 15. appellant sued as the holder in due course of a cheque which the respondent had signed in blank and delivered to one H. There were concurrent findings that at the time, if the appellant did not have actual knowledge of the circumstances under which the cheque was being negotiated by H., showed a wilful disregard of the facts and must have had a suspicion that there was something wrong and refrained from investigating.
(affirming the judgment appealed from): That, fraud having been shown regarding the manner in which the respondent was induced to sign and deliver the cheque to H., the appellant has not discharged the onus placed upon him to show that he had taken the bill in good faith and without notice of any defect in the title the person negotiating it.
CERTIORARI-Disciplinary measures against member of R.C.M.P.-Whether writ available to review proceedings-R.C.M.P. Act, R.S.C. 1952, 241.
This was an application by the respondent, a former member of the R.C.M.P., for certiorari to remove into the Supreme Court of British Columbia a record of convictions under the hand of the appellant Archer, a Superintendent of the R.C.M.P., whereby the linary charges laid under 30 the R.C.M.P. Act.
The trial judge held that certiorari did not lie since the principles CERTIORARI-Continued denying review of disciplinary decisions military tribunals applied in the present case.
The Court of Appeal reversed this judgment on the ground that the military cases were not applicable.
appeal should be allowed and the judgment at trial restored.
C.J.,
Taschereau, Rand and Kellock JJ.: Parliament has specified the punishable breaches of discipline and has equipped the R.C.M.P.
with its own courts for dealing with them.
Unless the powers given those courts to deal with domestic discipline are abused to such a degree as puts action taken beyond the purview of the statute or unless the action is itself unauthorized, that internal management is not to be interfered with by any superior court.
Nothing has been alleged here and supported by evidence to show that the proceedings infringed or were outside the authority either the statute or those underlying principles judical process deemed annexed to legislation unless impliedly excluded.
Little assistance is to be received from the decisions in matters arising out of the disciplinary or other administration of other bodies.
J.: The proper determination of this matter does not depend on whether or not the decisions as to the right of certiorari courts martial proceedings are applicable.
The right the civil courts to intervene way of certiorari undoubted where it shown that there has been either a want or an excess of jurisdiction in proceedings taken under ss. 30 and of the R.C.M.P.
Act. The proceedings authorized under these two sections are of a judicial and not executive or administrative character, and the officer conducting them obligated to act judicially.
The authority to impose the penalties provided by the Act for offences defined by the Act does not rest on the agreement of the member made at the time of his enlistment, but upon the terms the statute itself, and it is only those powers authorized to be exercised by that statute that may be invoked against him.
was nothing in the material filed on the application to sustain the charges of fraud, bias or excess of or want of jurisdiction.
(In re Mansergh 1 B. & 400), Rex v.
Army Council: parte Ravenscroft (86
L.J.K.B. and Heddon v. Evans
T.L.R. 642) referred to).
Per Abbott J.:
The necessity for maintaining high standards conduct and discipline in
R.C.M.P. just as great as it for the armed forces, and in this respect there is no distinction in principle between the two bodies.
Therefore, the authorities which hold that the courts have no power to interfere with matters military conduct and military discipline generally are applicable to matters involving the conduct and discipline of a force such as the R.C.M.P.
appellant Archer was not acting as a court or judge, but was an officer dealing summarily with breaches of conduct and discipline and was administering discipline
CERTIORARI-Concluded accordance with the statute and regulations to which the respondent voluntarily submitted when he joined the Force. 2.-Effect of statutory restriction-Ineffectiveness of privative section where natural justice denied inferior tribunal-The Public Health Act, R.S.O. 1950, 306, s. 143. The power of a local board of health, under of the statutory by-law under the Ontario Public Health Act, to order premises vacated, and if necessary to eject the occupants forcibly, predicated upon the board's being "satisfied upon due examination" that the premises are either unfit for the purpose of a dwelling or (ii) a nuisance, or (iii) in some way dangerous injurious to the health of the occupants of the public.
In deciding whether or not one of the conditions exists the board must act judicially, and must give to the occupants the premises in question, or other persons whose rights may be affected, an opportunity to know which the causes alleged to exist, and to answer the allegation. If the board, instead of doing this, refuses to listen to those whose rights may be vitally affected, its action may be reviewed by the Court on certiorari, notwithstanding of the Act.
CIVIL CODE- Article 986 (Capacity contract)........................... 2.-Article 1054 (Offences and Quasi- Offences)........................... - Article 1242 (Presumptions) ... 4.-Article
(Binding of wife for husband).......................... 5.- Article 1988 (Privileges) ........ 6.-Article 2383 (Privileges upon COMPANIES-Distribution accumulated profits in form of stock dividend -Subsequent redemption of shares so issued -Effect-Whether shares, and proceeds redeemed shares, income or .capital in hands of trustee-shareholder-The Income Tax Act, 1948 (Can.) 52, 95A, enacted 1950, 40 s. 32-The Companies Act, R.S.O. 1950, 59, ss. 78, 96.
Trusts and trustees -Trust assets including shares in incorporated company-Issue of stock dividend by company as means of distributing accumulated profits-Redemption shares-Whether COMPANIES-Continued shares, and proceeds of redeemed shares, income or capital in hands of trustees
Income Tax Act, 1948 (Can.) 52, s. enacted 1950, 40, s.
A the Ontario supplementary letters patent authorizing the creation
500,000 new preference shares, redeemable by the company on notice to the shareholders, and, on redemption, to be cancelled and not reissued.
These supplementary letters were obtained pursuant to a decision by the company to avail itself of 95A of the Income Tax Act, 1948, as enacted as a means making available to the shareholders a large undistributed surplus.
After payment the tax provided for that section the company, pursuant to bylaws, issued 240,000 preference shares "as fully paid and non-assessable", and in the following two years about one-third these shares were redeemed, at various times.
A block of shares in the company was held by the trustees of an estate, and 64,000 the new shares were issued to the trustees as a stock dividend; of these about 18,000 were subsequently redeemed.
trustees received the shares so issued, and the proceeds of those that were redeemed, as capital the estate, for the benefit the remaindermen, and not as income for the benefit of the tenants.
Once shares were issued as paid-up, the portion the undistributed profits appropriated for the purpose of paying them up immediately became capitalized, and the shares were themselves an addition to the capital stock the company.
v. THE at 889
2.-Distribution of accumulated profits in form of stock dividend-Immediate redemption of shares so issued-Effect-Whether proceeds income or capital in hands of trusteeshareholder-The Income Tax Act, 1948
(Can.), c. 52, s. 95A, enacted 1950, 40,
32-The Companies Act, R.S.C.
Trusts and trustees-Trust assets including shares in incorporated company-Issue of stock dividend company as means of distributing accumulated profits- Redemption of shares-Whether proceeds inor capital in hands of trustees-The
Income Tax Act, 1948 (Can.), 52, s. 95A, enacted 1950, 40, 32.
If a company incorporated under the Dominion Companies the Tax
Act, 1948, as enacted in to pay tax its undistributed thereafter creates preference shares, issues them to the shareholders as a stock dividend, and immediately redeems them out of the undistributed profits, the proceeds of the redemption reach the shareholders not as tax-free income but as non-taxable capital.
trustee, therefore, who, holding shares the company as a trust asset, receives moneys in redemption of preference shares issued, receives them as capital of the trust rather than as income.
From the
COMPANIES-Concluded time that the trustee becomes entitled to receive a certificate for these shares their status, as between- the settlor and the remaindermen under the trust, does not differ from that the shares originally received by the trustee, and a capital asset (the shares) in the hands of a trustee will not be transformed into income merely because the company uses surplus profits to redeem the shares.
Re Fleck, O.R. (affirmed O.W.N. 260), overruled.
CONSTITUTIONAL LAW-The Moratorium Act-Constitutional validity-Insolvency legislation-The Moratorium Act, R.S.S. 1953, 98; B.N.A. Act, s. 91(21). The Moratorium Act, Revised Statutes Saskatchewan, 98, is ultra vires the C.J. and Taschereau, Locke and Cartwright JJ.): The Moratorium Act, as enacted in and as it appears as R.S.S., in pith and substance in relation to insolvency and, as those parts which might be justified as a proper exercise of provincial powers cannot be severed from those which clearly exceed those powers, the Act should be found ultra vires as a whole.
Per Rand J.: The Province acting in relation to insolvency assumed the functions of Parliament and frustrated the laws the Dominion in relation to the same subject.
Attorney General for Alberta v. Attorney General for Canada A.C. 356, followed.
Abitibi Power & Paper Co. v. Montreal Trust Co. A.C. 536; Attorney General of Ontario v. Attorney General of Canada A.C. distinguished Judgment of the Court of Appeal CHEWAN........................... 2.-Validity of ss. 4 and 5 of the Reciprocal Enforcement of Maintenance Orders Act, R.S.O. 1950, 834-Prohibition-Husband and wife-Proceedings for maintenance made elsewhere than in Ontario- Whether enforceable. The respondent applied for an order taking further the Reciprocal Enforcement of
Maintenance Orders Act (R.S.O. 1950, 334) in conmagistrate him for the maintenance of his wife and children.
Certain sums, stated in English currency, were to be paid weekly by the respondent. It was contended, inter alia, by the respondent, that the Reciprocal Enforcement of Maintenance Orders Act was ultra vires.
The trial judge dismissed the application.
The Court Appeal directed that the order of prohibition be made, holding that the Act was ultra vires because CONSTITUTIONAL LAW-Continued the legislature had, in effect, delegated its legislative authority and had exceeded its jurisdiction by allocating the issue to an inferior court.
allowed and the judgment at trial restored.
Per Kerwin C.J., . Rand, Kellock
Cartwright JJ.: province can confer on a non-resident a right to enforce a duty, incident to the marriage status, in the province accordance with provisions prescribed by the law England for the relief a deserted wife.
The legislation within head of s. 92 of the B.N.A. Act, as a local or private matter.
No other jurisdiction has any interest in the controversy and it concerns property within the province in a local sense.
The action taken in
England only an initiating proceeding to adduce a foundation in evidence.
unquestionable that a province can act upon evidence taken abroad either before or after proceedings are begun locally.
In the converse situation, where the initiating step taken within the province, there can be no conflict with Part II of the Canada Evidence
The arrangement not treaty, as there nothing binding between the parties to it; and it would be extraordinary if a province should be unable within its own boundaries to aid one its citizens to have such a duty enforced elsewhere.
The legislation a clear case adoption and not of delegation.
The action of each legislature is distinct and independent the other. From the standpoint legislative competency, there no difference between the adoption of procedure and that of substantive law.
No challenge could be made to the complementary English enactment here, and the province should be able to exercise the same power in relation to a subject of such a local and civil rights nature.
(Hodge v. The Queen,
Duties of this nature are daily enforced the inferior courts the province and the residence the complaining party cannot affect the judical jurisdiction where the case brought within the same class of legislative power.
It the same as if the wife had come to the province and there instituted the proceedings.
The court not completing an operative foreign order, it is making an original order of its own.
preliminary step taken elsewhere has no substantive efficacy until by acceptance it adopted and incorporated in the action the provincial court. The family court, having statutory jurisdiction to make maintenance orders, therefore, a court to which the reference the Attorney General may be made.
The modification from one currency to that this country not beyond provincial legislative power.
Taschereau, Fauteux and Abbott JJ.: Since maintenance orders fall within the jurisdiction of inferior courts, there no valid reason why such courts could not make a provisional order under 4 the Act make and enforce an order, under based upon proceedings initiated another
CONSTITUTIONAL LAW-Continued state.
The maintenance wives and children a matter a merely local private nature in the province falling within head of of the B.N.A. Act. clearly competent for any province to determine for the purpose of a civil action brought in such province, what evidence is to be accepted and what defences may be set up.
There not, under 5(2) of the Act, delegation legislative power to another state.
It is merely a recognition by the law of the province of rights existing from time to time under the laws another, in accordance with the principles of private international law.
is legislation relation to the administration of justice the province, including procedure in civil matters in the provincial courts, and as such, within the exclusive legislative competence of the province under head of 92 the B.N.A. Act.
Per Locke J.: It a valid exercise of provincial powers under head of 92 of the B.N.A. Act to declare that the defences which may be relied upon in proceedings under the Reciprocal Enforcement of Maintenance Act shall be those from time to time permissible under the laws England. In substance, those laws are adopted and declared to be the law in the province.
There no delegation of the authority the legislature. objection that it an attempt by the legislature to clothe an inferior provincial court with power to determine the legal rights residents the province, respect orders pronounced another territorial jurisdiction, which would therefore be repugnant to 96 of the B.N.A. Act, cannot sustained.
The order does nothing more than to afford evidence upon which the magistrate may make an order against the husband.
Any award made must depend entirely for its validity upon the order made by the magistrate under the Ontario statute. The legislation does not amount to a treaty. There no evidence to suggest that an agreement existed between the province and the reciprocating state to legislate in this manner. CANADA.......................... 3.--Prohibition-Validity of of the Combines Investigation Act, R.S.C. 1927, 26, as c. 89, 8. Section of the
Combines Investigation Act (R.S.C. c. as re-enacted by 1952, empowers the court to order in addition to any other penalty the prohibition the continuation or repetition of the offence of which the person has been convicted. The appellants pleaded guilty to a charge of conspiracy under 498(1)(d) of the Criminal Code and were fined. Upon application by the Crown, the trial judge directed that an order of prohibition issue under of the Combines Investigation The appellants appealed against that order and contended that was ultra vires the Parliament Canada in whole or CONSTITUTIONAL LAW-Concluded part. The appeals were dismissed the Court of Appeal for Ontario, with a variation the terms the order. Held:
The appeals should be dismissed.
portion invoked by the trial judge intra vires. Per Kerwin C.J., Taschereau,
Kellock, Locke and Fauteux JJ.: Even though the offence for which the prohibitory order was made prohibited by 498 the Criminal Code and penalties are provided by the Code and by the Combines
Investigation Act, the power of Parliament to deal with the matter under 91(27)
the B.N.A. Act not exhausted.
the portion giving the power to make the order of prohibition, was intended to define a new crime or to provide the means preventing the commission of the offence, it within the power of Parliament under 91(27) (Provincial Secretary
Prince Edward Island v. Egan S.C.R.
and for Ontario v. Canada Temperance Federation referred to).
The words "any other person"
should be construed in the case of corporations as meaning their directors, officers, servants and agents.
Per Rand J.: The scope and object of are to provide additional means for suppressing a public evil the order those cognizable
Parliament under 91(27) of the B.N.A.
The section not concerned with the civil aspect of the relations involved in the agreement condemned, but solely with their harmful effects upon the economic life the public.
The incidental objection that the order unlimited as to time that it aimed against "any other person", that the act seized upon one "directed towards", that it may be made at any time within three years the conviction, that it may affect intra-provincial trade and that the procedure civil courts to apply, do not to the matter jurisdiction.
The part the section dealing with mergers, trusts or monopolies has relevancy to the proceedings taken here.
In any event, the clause severable.
v. THE
CONTRACT-Agreement build house
-Interpretation-Evidence-Rectiication
Substantial performance. The appellant, who had some twenty years experience as a building contractor, signed a contract to build a house for the respondent.
During the negotiations, prior to the signing, he had been supplied with a set of plans, which were later attached to the contract, supplying the data for finishing both the main floor and the basement of a onestorey building.
The appellant testified that he quoted a price of S30,000 for the completion the ground floor and basement and a price of $18,000 for the completion of the ground floor but only structural parts of the basement, and that the latter figure was agreed upon.
denied that any other figure than
CONTRACT-Continued was ever mentioned. The appellant claimed for a balance owing upon the contract and for a lien upon the land under the Mechanic's Lien Act.
claim for rectification of the contract was later made by the appellant. The defence was that the appellant had not completed the building as required by the agreement since, as admitted, the basement had not been finished.
rejected the claim for rectification, found that the contract had not been substantially performed and dismissed the action. This judgment was affirmed by the Court of Appeal.
Held (Locke J. dissenting): The appeal should be allowed and a new trial directed.
Per Rand, Kellock and Abbott JJ.: The evidence, which the apellant attempted to make at the trial to support the case that it would have been absurd for an experienced contractor to have agreed to "finish" the entire building at the price of $18,000, that ambiguities and uncertainties in the plan demonstrated that the actual contract was for the finish of the ground floor and rough structural completion the basement only, and which would also have shown the amount of money required to finish the basement, should not have been rejected by the trial judge. That rejection was not material nor warranted. The evidence might have had a decisive influence on the mind of the trial judge coming to an opinion on the veracity the appellant, particularly in view of the fact that the reasons for judgment give indication that the anomalies and inconsistencies in the plan and the evidence were given serious consideration.
There is no doubt that its rejection operated to the serious detriment the case for the apellant.
Per Locke J. (dissenting)
: As the evidence of the respondent and the witness Hoffman had been accepted by the trial judge and the Appellate Division, the claim for rectification failed.
The proposed evidence which, it was claimed, had been rejected was not properly tendered (Penn v. Bibby L.R. Ch. As the appellant had deliberately refrained from arguing the question as to the rejection the evidence raised by his notice of appeal in the Appellate Division and the matter had accordingly not been considered in that Court, the point should be treated as abandoned or waived (Hamelin v. Bannerman S.C.R. 534; Attorney General Canada v. Ritchie Contracting Co. S.C.R. at 92).
2.-Interpretation-Agreement to provide services as "mining consultants"-Extent obligation-Acquisition of new claims. Co. carried on a business of operating managing mining properties on behalf others, advising on questions of mining and metallurgy, and supplying the services qualified mining engineers for persons who required them.
It entered into an agreement with T. Co. (a mining company) to CONTRACT-Continued provide "an engineer's services" for a stated number days in each month, in return for a monthly
"retainer".
H., a qualified mining engineer employed by G. Co., was the person most frequently consulted by T.
Co.
While the agreement was still in
H learned of a discovery made by a prospector who was not in any way connected with T. Co., and went to inspect the claims.
Before leaving he had a telephone conversation with the president T. Co., which he told him that he was going on a trip for other clients and if possible would
"get some claims staked in the same approximate area" for T. Co.
He secured an option on the claims and then returned to
Toronto, where he and the officers Co.
proceeded to raise the money to take up the option.
He offered T. Co. an opportunity to participate, but this offer was declined.
T. Co. later brought this action, claiming an accounting of the profits made by the defendants out of the transaction, on the ground that all claims and other mining interests or properties that came to
H's attention were to be submitted to T.
Co.
Held (Kerwin C.J. and Cartwright J.
dissenting), the action must fail.
The written agreement was not ambiguous in its terms, and it did not require G. Co. and its employees to bring to the plaintiff's attention any properties or prospects which they learned, or impose any of the other obligations suggested by the plaintiff.
This was a complete answer to the plaintiff's claim.
Nothing in the telephone conversation before H's trip had the effect imposing such an obligation on the defendants. Per Kerwin C.J. and Cartwright J., dissenting: In all the circumstances disclosed by the evidence, and particularly the telephone conversation, the acquisition of these claims by H on behalf himself and the other defendants constituted a breach of trust, and the plaintiff was therefore entitled to the profits made by them as a result that breach trust.
v. al 858
Validity and binding effect-Non factum-Circumstances supporting plea- Whether plea may asserted against subsequent assignee for value of other party's rights under contract. H, acting as agent for Co., persuaded to sign what was represented to be a mere grant of an option of mineral rights, but was in fact an assignment and transfer a share in those rights. Co. later assigned all its rights this nature to one of the plaintiff companies
(the other company being a bare trustee for it). In an action brought to establish the plaintiffs' rights under the agreement, the defendants and his son, the purchaser under an agreement for sale), pleaded non est factum.
Held (Cartwright J. dissenting): The defendants were entitled to succeed, and the assignment should be held void ab initio. Per Taschereau, Fauteux and Nolan JJ.: The representation having
73675-3
CONTRACT-Concluded been as to the nature and character of the document, and not merely as to its contents, the mind of the defendant did not go with his hand, although he knew that he was dealing with his mineral rights. Carlisle and Cumberland Banking Company Bragg, 1 K.B. 489, applied; Howalson 1 Ch. 537; 1 Ch. 1, distinguished.
The document was void ab initio, and any option contained therein and which, admittedly, the defendant agreed to grant and for which he received payment, could not be severed and must fall with the rest of the transaction.
Per Locke J.: The plea of non est factum would clearly have been available to the defendants the action had been brought by Co., whose behalf H was acting.
C's part would not estop him from setting up that defence as against the plaintiffs, since a person signing a document other than a negotiable instrument owed no duty to the public at large, or to other persons unknown to him who might suffer damage by acting upon the instrument on the footing that it was valid in the hands of the holder.
Carlisle and Cumberland Banking Company Bragg, supra, followed. any event the proximate cause the damage was the fraudulent act of H. Per Cartwright J. (dissenting): Even if the misrepresentation could be said to have been as to the nature the deed, the negligence (i.e. lack reasonable care) the defendant in signing and sealing it without reading prevented him from asserting the defence of non est factum as against the plaintiffs which gave valuable consideration on the strength the deed.
The rule that, generally speaking, a person who executes a document without taking the trouble to read it liable on it and cannot plead that he mistook its contents, at all events as against a person who acting in good faith in the ordinary course of business has changed his position in reliance on such document.
The defence operates in the case of a blind or illiterate person as an exception to that rule, but does not extend to a case such as the present.
Insofar the Bragg case decides that the rule that negligence excludes a plea of non est factum limited to the case of negotiable instruments and does not extend to a deed such as the one at bar, it should not be followed. CUGNET.......................... CRIMINAL LAW-Accomplice - Misdirection - Corroboration - Improper statement of Crown counsel. The appellant was convicted by a jury of having broken and entered a garage and stolen property therein. His appeal was dismissed by the Court of Appeal.
The Crown's case rested chiefly on the evidence of an accomplice whom, according to the Crown's theory, the appellant had agreed to drive to the locality the crime for the purpose, known to the appellant, of committing the crime.
It is conceded that the accomplice did himself commit the crime.
The appellant's case was that he had driven the accomplice without any knowledge of his guilty purpose, had left him at his destination and ad returned home alone.
There was some evidence which was capable of being regarded as corroboration of the evidence the accomplice.
allowed, the conviction quashed and a new trial directed.
It was misdirection the trial judge to charge the jury with words from which they would normally understand that there lay an onus on the appellant to satisfy them of his innocence.
The trial judge failed also to direct the jury adequately as to the danger of convicting on the uncorroborated evidence of an accomplice and as to what constitutes corroboration; and particularly failed to plain that facts although independently proved could not be regarded as corroborative of the accomplice's evidence if they were equally consistent with the truth the appellant's evidence.
failed also to point out to the jury what the theory of the defence and to tell them that they should acquit if, on all the evidence, they entertained a reasonable doubt of the appellant's guilt.
The statement of Crown counsel in the presence the jury that he was going to have the appellant arrested for perjury on the following morning or that afternoon, was improper and could scarcely fail to prejudice the fair trial of the appellant.
2.-Murder-Conspiracy to Rob-Minimum force to used-Death strangulation at hands of one assailant-Liability of other
-Jury, adequacy of charge-Whether furnishing jury with transcript of part of charge prejudicial to accused-Criminal Code, ss.
69(1), (2), 260(a), (c), 1014(2). The appellant with three others conspired to rob a storekeeper.
was agreed that weapons would be used and only the amount force required to overcome such resistance as might be offered.
seized the storekeeper from behind, placing a hand over his mouth and an arm around his throat and then hit him on the head with a can meat.
The victim was still struggling when the appellant handed him to an accomplice and started searching money.
The only evidence of what then happened was that of the appellant who stated his accomplice told him he had put his knee against the storekeeper's throat.
The appellant and the accomplice were both charged with murder and tried separately.
The appellant appealed his conviction.
Held by Kerwin C.J., Rand, Estey and Cartwright JJ. (Taschereau, Locke and Fauteux JJ. dissenting): 1. That the giving to the jury a transcript of only a portion of the trial judge's charge, which emphasized the Crown's case but did not set out the theory of the defence, was the circumstances such an irregularity as to justify a new trial.
That a new trial should also be directed because the judge in summarizing the law as related to the facts omitted to direct the jury that: (a) the appellant could only be a party to the offence of murder under 69 (1) of the Criminal Code if the jury thought that the accomplice had committed the murder and that the appellant had aided or abetted him; (b) that under 69 the appellant would be guilty only if the commission the murder was known or ought to have been known to him to be a probable consequence of the prosecution of robbery. Per Taschereau and Locke JJ. (dissenting): The appellant on his own testimony was ready to overcome any fight put up and 260(a) and of the Code therefore applied and, as a result their combined effect and the killing amounted to The appellant was guilty of abetting and procuring the commission of the crime if the strangulation was imputed to his accomplice and by virtue of 260 if he himself stopped the breath of the victim.
The jury was properly charged and directed and permitting it to take a portion of the judge's charge into the jury room could not vitiate the trial.
It was open to it to ask for additional oral instructions which would have had the same result and which not only would have been proper but imperative for the judge to furnish. Per Locke and Fauteux JJ. (dissenting): the appellant's own testimony the nature the agreement and the manner in which was executed are clear.
The violence to be exerted was to be measured by the resistance of the victim.
The appellant was the first to resort to violence and the injuries he inflicted, first alone and then with the assistance of his accomplice, amounted to grievous bodily injury as defined under the authorities.
At that moment, both parties were then of one mind and there is nothing to suggest that when, in order to search the premises, the appellant handed over the victim to his accomplice, this situation was changed.
The appellant left it to his accomplice to overcome their victim, and even if the blows then inflicted by the latter were ill-measured, the appellant nonetheless a party thereto.
The case comes squarely under the law as laid down in 260 and (1) and is a proper one for the application of 1014(2). Beard's case A.C. 470, followed, The King v. Hughes S.C.R. 517, distinguished. 3.-Murder-Death resulting from robbery violence at hands of accused or an accomplice -Whether proof of intent kill necessary-Criminal Code, ss. 69 (2), 260 (a), The appellant charged with three others of murder, tried separately and convicted, appealed on the ground among others that the jury as charged could titled to convict of murder under s. 260 (a)
or (c) of the Criminal Code without proof of intent to kill and apart from s. 69 (2).
(2) is invoked.
2. (Cartwright J. dissenting): That the charge upon this aspect of the matter was sufficient.
3. (By Kerwin C.J. and Taschereau,
Locke and
Fauteux JJ.): That it was not necessary that the jury be charged as to the defence of manslaughter since there was no evidence upon which such defence could be based.
Per Taschereau, Locke and Fauteux JJ.:
There was evidence from which the jury might properly infer that the appellant and his companion meant to inflict grievous bodily injury to the deceased and had aided and abetted each other in doing so for the purpose of facilitating the commission of robbery and that death had ensued.
Such an offence is murder as defined by s.
260 whether they or either of them meant or knew that death was likely to ensue.
In such circumstances it would be a matter of indifference which inflicted the fatal injury since each was liable for the other's act. The appellant might also be found guilty of murder if the jury inferred that a common intention had been formed by the appellant and his associates to rob the deceased and to assist each other in doing so and that the killing was an offence which ought to have been known to the appellant to be a probable consequence of such common purpose. Per Cartwright J. (dissenting): The jury should have been instructed, that if they concluded from the evidence that the violence was inflicted by the appellant's companion alone, they could find the appellant guilty only if they were satisfied beyond a reasonable doubt:
(i) that it was in fact a probable consequence of the prosecution of the common purpose of the appellant and his accomplice to rob the deceased that the accomplice, for the purpose of facilitating the robbery would intentionally inflict grievous bodily injury on the deceased or would wilfully stop his breath, and (ii) that it was known or ought to have been known to the appellant that such consequence was probable.
While on the evidence it was open to a properly instructed jury to so find, the jury was not adequately instructed on this vital matter. Judgment of the Court of Appeal for British Columbia (1955) 112 Can. C. C.
affirmed.
CHow
4.-Murder-Circumstantial evidence - Recent possession of stolen goods-Hearsay evidence-Witness attended cinema as guard for jury-Mixed jury-Refreshing memory of witness-Canada Evidence Act, R.S.C.
1927, c. 59, s. 9-Criminal Code, ss. 923,
944,
1014(2). The accused was found guilty of murder by a mixed jury.
His conviction was unanimously affirmed
73675-31 by the Court of Appeal.
His appeal from the dismissal by a judge of this Court of his application for leave to appeal was dismissed on the ground that this Court was without jurisdiction. Pursuant to s. 55 of the Supreme Court Act, R.S.C. 1952, c. 259, the Governor General in Council then referred the following question to this Court: "If the application made by Wilbert Coffin for leave to appeal to the Supreme Court of Canada had been granted on any of the grounds alleged on the said application, what disposition of the appeal would now be made by the Court?". Kerwin C.J., Taschereau, Rand, Kellock and Fauteux JJ. would have dismissed the appeal. Locke and Cartwright JJ. would have allowed the appeal, quashed the conviction and directed a new trial. Per Kerwin C.J. and Taschereau J.: The evidence was such that a legally instructed jury could reasonably find the accused guilty. If the possession of recently stolen goods is not explained satisfactorily, they are presumed to have been acquired illegally.
That possession may also indicate not only robbery, but a more serious crime related to robbery.
There is no doubt that the jury did not accept the accused's explanations and that they could justly conclude that he was the thief. Thus they could see therein a motive for the murder and it was a circumstance which they could legally take into account. The judge was not obliged to tell the jury that they were not entitled to convict of murder simply because they came to the conclusion that he was guilty of theft. The recent possession not only created the presumption, failing explanation, that he had stolen, but the jury had the right to conclude that it was a link in the chain of circumstances which indicated that he had committed the murder. Any possible inaccuracies in the early part of the judge's direction in regard to the nature of the evidence, was subsequently remedied. The rule in the Hodge's case was entirely respected. The evidence of the police officer that as the result of "precise information" he searched for a rifle at the accused's camp, was not hearsay evidence. The witness was not trying to prove the truth of his information but merely to establish the reason for his visit. All necessary precautions to prevent irregularities were taken to the judge's satisfaction when he allowed the jury to go to the cinema. All the constables were under oath and it is not suggested that any indiscretions were committed.
Moreover, the judge was exercising his discretion when he gave the permission after both parties had consented. It is within the judge's discretion to grant a jury composed exclusively of persons who speak the accused's language, but if he refuses, he must grant a mixed jury. He must consider what will best serve the ends of justice. The interests of society must not be disregarded.
The judge decided that the ends of justice would not be effectively served by granting the accused's request, for that would have eliminated eighty-five per cent of the population from taking part in the administration of justice. Even if there had been any irregularities concerning the list of jurors, they would be covered by
Cr. C.
There was nothing more logical, since a mixed jury was concerned, than to have the judge, counsel for the Crown and for the accused address the jury in French and in English.
Nothing in what counsel for the Crown said was such as to suggest that the jury bring in a verdict based sentiments and prejudices and not exclusively on the evidence.
the Canada
Evidence Act does not forbid refreshing the memory of a witness by means a previous testimony which he has given.
was no attempt to discredit or contradict the witness Petrie.
She admitted that her memory was better at the time of the preliminary inquiry.
Moreover, this is a question for the judge's discretion.
Even there had been some irregularities,
1014(c) Cr. would apply, as no substantial wrong or miscarriage of justice occurred.
The evidence left the jury no alternative.
It was entirely consistent with the guilt of the accused and inconsistent with any other rational conclusion. Per
Rand, Kellock and Fauteux JJ.: The court has a discretion, not open to review, to permit leading questions whenever it considered necessary in the interests justice.
Moreover, a witness may refresh his memory by reference to his earlier depositions and of the Canada Evidence
Act applies only when it is attempted to discredit or contradict a party's own witness. The contention that, because of the differences between the address counsel in one language and the other, and between the two charges delivered by the trial judge, the accused was tried by two groups jurymen, and further that 944 Cr.
requires that the jury be addressed by one counsel only on each side, cannot succeed.
The practice followed has been the invariable one in Quebec since 1892.
Neither the differences in the addresses nor in the charges were of a nature to call for the interference of this Court. The judge, in exercising his discretion under 923 Cr.
was right in his view that the ends justice would be better served with a mixed jury.
It cannot be said that the accused gave any reasonable explanation of how came to be in possession of the things to which he even attempted to make an explanation.
abundant evidence from which the jury could conclude, as they have done, that the possessor of the money and other items was the robber and murderer as well.
Per Locke J.: The evidence of the police officer that he acted on "precise information" in searching for a rifle in the vicinity of the accused's camp, was clearly hearsay evidence and, therefore, improperly admitted.
That evidence, to which much importance was attached by counsel for the Crown and by the trial judge when the matter was presented to the jury, was on a point material to the guilt innocence of the accused.
It cannot, therefore, properly be said that there has been no substantial wrong or miscarriage justice and consequently, 592 Cr. has no application.
(Makin v. A.G. for New South Wales A.C. 57 and Allen v. The King 44 S.C.R. 331 followed). Locke and Cartwright JJ.: The evidence that the police officer had information that a rifle was concealed in a precisely indicated spot near the accused's camp, was inadmissible as being hearsay evidence. Proof that an accused has suppressed endeavoured to suppress evidence is admissible, but, here, the foundation the whole incident on which the jury were invited to find that he had suppressed evidence was this inadmissible hearsay evidence. It related to a vital matter and in view of the way it was stressed at the trial, counsel for the Crown cannot now be heard to belittle its importance.
The transcript the evidence given at the preliminary inquiry by the witness Petrie was used not for the purpose of refreshing her memory but for the purpose of endeavouring to have her admit that she was mistaken untruthful in giving her evidence at the trial. The cross-examination this witness was unlawful and was attended further error in that no warning was given to the jury that any evidence what she had said at the preliminary inquiry was not evidence of the truth of the facts then stated but could be considered by them only for the purpose of testing the credibility of the testimony which she had given at the trial.
Although there is no evidence to suggest that any improper communication took place on the occasion of the visit to the cinema, this unfortunate incident falls within the principle stated Rex v. Masuda C.C.C. at and There is no escape from holding that the incident was fatal to the validity the conviction.
The judge did not direct his mind to the question whether the ends of justice would be better served empanelling a mixed jury. The reasons given for the exercise his discretion under 923 Cr. were irrelevant. the empanelling of a jury of the sort requested by the accused would be attended with difficulty or whether the language the accused was or was not that spoken by the majority of the population of the district were irrelevant considerations. The record has failed to disclose any ground sufficient in law to warrant the accused being denied his right to a jury composed entirely of persons speaking his language. The error is not cured by Cr. C. 1014(2) does not avail to support the conviction as it is impossible to affirm with certainty that if none of the above errors had occurred the jury would necessarily have convicted; furthermore, even if this could be affirmed, the error in law admitting the hearsay evidence as to the rifle was so substantial a wrong that the sub-section can have no application, as the accused was deprived of his right to a trial by jury according to law.
The errors pertaining to the episode of the cinema and to the empanelling of the mixed jury are also such as cannot be cured by the subsection.
5.- Rape-Declarations of accused made to police officers while under arrest-Introduced Crown in rebuttal-No voir dire- Whether statements admissible. The appellant was tried before a jury and convicted upon a charge of rape.
His conviction was unanimously affirmed, without written reasons, by the Court of Appeal.
The Crown, to rebut the evidence given by the accused that he had never seen the victim, called a witness who, notwithstanding the objection of counsel for the accused, was allowed to introduce incriminatory answers and declarations allegedly made by the accused to police officers while under arrest. The
Crown did not attempt to prove that these answers and declarations had been made freely and voluntarily. Held: The appeal should be allowed, the conviction quashed and a new trial directed.
The burden establishing to the satisfaction of the court that anything in the nature of a confession or statement procured from the accused while under arrest was voluntary always rests with the Crown.
The phases of trial at which the Crown seeks to introduce such statements, whether it be part of its case in chief, or upon cross-examination an accused heard in defence, or in rebuttal of evidence adduced by the defence, foreign to and in no way affects the ratio of the principle confirmed under the authorities. In the absence affirmative proof of the free and voluntary character of the statements, the impeached evidence was illegally admitted before the jury, and could not be said that the verdict would have been the same without such illegal evidence.
Retaining- Whether doctrine of recent possession of stolen goods applies to offence of retaining. The respondent was tried on three charges, (1)
theft of goods, receiving the goods knowing them to have been stolen and retaining the same knowing them to have been stolen.
The trial judge acquitted him on the charges of theft and receiving and convicted of retaining.
Court of Appeal quashed the conviction and ordered an acquittal.
appeal should be dismissed.
The presumption of recent possession does not apply to the offence of retaining.
Guilty knowledge must be acquired subsequent to the original obtaining of possession. the present case, there was no evidence that the respondent had acquired, after the goods had come into his possession, knowledge that they had been stolen. Rape-Aiding and abetting-Crown's case, that accused assisted another-Indictment charging him with carnal knowledge- Whether indictment valid-Criminal Code, ss. 69, 852.
The respondent was convicted of rape on a charge that "he did have carnal knowledge of V.B., a woman who was not his wife, without her consent". The Crown's case was that while he did not fact have sexual intercourse with the woman he had aided others to do
The Crown sought a conviction under 69(1) of the Code as an "aider and abettor". By a majority judgment, the Court of Appeal quashed the conviction and ordered an acquittal on the ground that the indictment failed to allege the facts in support the Crown's case.
Held (Cartwright J. dissenting): That the appeal should be allowed and the conviction restored. Per Kerwin C.J., Taschereau and Fauteux JJ.: Since an aider and abettor may be indicted as principal simpliciter, it follows that an indictment charging an aider, being valid in law, must therefore be construed not as exclusively charging the accused as having in fact actually committed the offence, but as having in the eyes of the law committed It also follows, since the reason for such construction being that all participants are by law principals, that the same construction obtains whether the indictment charges them jointly or each of them alone of the offence in the ordinary form, as they had actually committed it, or whether the offence stated "in popular language" or "in words of the enactment describing the offence" as authorized by s-s. and 3 of 852 of the Criminal Code. While was open to the respondent, before during the trial, to move for the different reliefs he might then have considered desirable for his defence, he, admittedly being at all times fully informed of the case against him, elected not to do so; he cannot now complain in appeal of matters which, subject to their merits, could have been corrected at trial.
Per Rand J.: The charge as laid included the offence in law attributable to the respondent through his act of aiding and abetting.
The evidence of assistance only was, after verdict, sufficient to convict (Rex v. Folkes and Ludds 168 E.R. followed).
Per Kellock J.: The indictment complied with 852(3) the Code and was a valid and appropriate indictment. Per Locke J.: When a person has abetted another to commit the offence of rape, it is a literal compliance with the requirements of 852(3) of the Code to charge him of the offence as a principal. Per Cartwright J. (dissenting): The wording of the charge not only failed to inform the respondent of the case against him but was actually misleading.
The charge should have contained at least a statement that someone had raped the complainant and that the respondent had done an act for the purpose of aiding him do to so.
The rape with which he was charged was not one committed by someone else but by himself personally and there was no evidence of any such rape.
Where the criminality of an act depends on the existence or non-existence of a particular relationship between individual personally committing the act and another person, it essential that the charge should specify whether the accused did the alleged act personally or merely aided another to commit it.
Furthermore, since there was evidence by the complainant two separate rapes, the charge was bad either for uncertainty or for charging two separate crimes in one count.
8.-Whether informant entitled appeal to Court of Appeal on stated case in summary proceedings-Public Commercial Vehicles
Act, R.S.O. 1950, 304-Summary Convictions Act, R.S.O. 1950, 379, s. 8- Criminal Code, s.
An informant has the right under 769A of the Criminal
(R.S.C. 36 as enacted by of 1947-48, 39, 34), to appeal to the Court of Appeal for Ontario from the judgment of a Justice of the Supreme Court
Ontario hearing an appeal by way of a stated case in proceedings under the
Summary Convictions Act, R.S.O. 1950, on grounds involving a question of law alone.
Transport Limited.... ..............
9.-Conspiracy commit offence-Method of proof- Ss. 471 and 573 of the
Criminal Code. The respondent was convicted of having conspired with others to commit the offences covered by (b)
(c) and of the Criminal Code. The conviction was quashed by a majority the Court of Appeal on the ground that there was no evidence to support it.
The appeal should be allowed.
In law, is not a valid objection to a conviction conspiracy to contend that the accused was obliged to meet the proof of the substantive offence of which, however, he was not charged.
Likewise, it matters little that in the description of the substantive offence, as the case for the offences created by the accused has the burden of justifying certain acts which, without that justification, are deemed criminal.
Those who conspire to commit these acts and commit them are liable to be prosecuted for conspiracy, and the theory the law on conspiracy, as well as on the methods of proof, is the same.
"Knowingly or Wilfully" contributing to juvenile delinquency-Mens rea-Whether honest belief that child was not a juvenile a defence-Juvenile Delinquents Act, R.S.C. 1952, 160.
Under 33(1)(b) of the Juvenile Delinquents Act (R.S.C. 1952, 160), the fact that an accused does not know that the girl is a juvenile and honestly and reasonably believes that she over the age limit, constitutes a good defence. respondent was convicted under 33 "knowingly or wilfully" contributing to juvenile delinquency.
He had had sexual intercourse with a girl under years age with her consent.
The girl had told him that she was although she was only a few months over and therefore a juvenile under the law of British Columbia. The juvenile court judge, stating that he was bound by the decision in Regina v. Paris C.C.C. 62), held that, as a matter of law, the fact that the respondent honestly believed that the girl was could afford no defence to the charge and made no finding as to whether the respondent did fact believe.
An appeal to a judge the Supreme Court of British Columbia was dismissed.
But the Court Appeal for British Columbia allowed a further appeal and ordered that the case be remitted to the judge of the Supreme Court. This Court granted leave to appeal on two questions of law: Whether the Court of Appeal erred in holding that the respondent could not be convicted unless he knew or was wilfully blind to the fact that the girl was under and whether it erred in law or exceeded its jurisdiction remitting the case to the judge of the Supreme Court.
Held (Fauteux J. dissenting): That the appeal should be dismissed, the order referring the case back struck out, the conviction quashed and an acquittal directed.
C.J.: The words "knowingly or wilfully" in 33(1)(b) permitted the respondent to raise the issue of mens rea.
There can be no doubt as to the general rule and that where it applies it covers every element of an offence.
Consequently, it applied not only to the act which it was alleged contributed to the delinquency, but also to the accused's state of mind as to the girl's age. open to the trial judge to register a conviction if he concluded on the evidence, either that the accused knew the girl was under the age fixed by law, or that, notwithstanding his pro forma question to her, he proceeded without a real belief her answer that she was above the age. The trial judge found neither of these facts. This Court is in a position to make the order that the Court of Appeal should have made under 1014(3) of the Criminal Code. Per Taschereau J.: There is no valid reason why the word "knowingly" in 33 should be interpreted as relating only to the quality of the act, and not to the age of the child.
Unless the contrary appears in the statute, that word 1S.C.R. applies to all the elements the actus reus.
In view of 2 the Act which defines the word "child", and in view of the conclusive evidence heard at the trial, it impossible to reasonably hold that the girl was not apparently the age of or that the respondent did not have an honest belief that she had reached that age.
Per Rand and Locke JJ.: The general principle of criminal law is that accompanying a prohibited act there must be an intent in respect of every element the act, and that ordinarily conveyed statutory offences by the word "knowingly".
As seen in 33(1)(a) and the offending act embraces the elements of something done a certain quality and by or in relation a
"child".
principle would thus extend the word "knowingly"
to the age as well as to the conduct.
language of the statute contemplates the application of the principle of mens rea.
was not shown that the respondent either knew the age of the girl to be under or was otherwise chargeable with that knowledge.
Per Cartwright and Nolan
JJ.: The words "knowingly or wilfully"
govern the whole of honest ignorance on the part of the accused of the one fact which alone renders his action criminal (in this instance the age of the girl) affords an answer to the charge.
The jurisdiction of the Court Appeal under the Act being the same as under
1014 the Criminal Code, it had no jurisdiction to refer the matter back to the judge of the Supreme Court.
Proceeding to give the judgment which the Court Appeal ought to have given, the appeal should be dismissed as no tribunal acting reasonably could have found it to be established beyond a reasonable doubt that the respondent knew, or was wilfully blind to, the fact that the girl was under age of at the time.
Per Fauteux J. (dissenting)
:
The words "knowingly or wilfully" in the section do not relate to all the constituent elements of the offence which are (1) the doing of an act; contributing to the delinquency; of a child.
They relate only to the first.
To apply them to the other two elements would permit the accused to substitute his own opinions and have them prevail over the opinion of the court as to whether the act complained would contribute to delinquency or as to whether the person involved was "appaently" over the age of
The accused assumes the risk that the opinion he forms from appearance as to the age the giri will be the same as the court's opinion.
Sexual offence against child-Evidence-Corroboration-Impotency and lack of opportunity pleaded but found not true trial judge-Whether corroboration evidence of child. The appellant was convicted of unlawful sexual intercourse with his niece, a girl under years of age.
his defence, he alleged lack of opportunity and the fact that he was impotent. rebuttal, the girl's older sister testified that the appellant had had sexual intercourse with her a number of times, and the mother of the girls testified that the appellant had admitted to her acts of intercourse with the older girl.
The trial judge held that the appellant's statement as to opportunity and impotence were false. Court of Appeal for Ontario affirmed the conviction.
Held (Cartwright and Nolan JJ. dissenting): The appeal should be dis- Per curiam: There was evidence upon which it was open to the trial judge to find that the child understood the nature and consequences of an oath and could therefore be sworn in as a witness. Taschereau, Fauteux and Abbott JJ.: There was evidence from which the trial judge could infer corroboration in law. a false statement is or not corroboration must depend upon all the circumstances in a particular case.
In the present case, both the lack of opportunity and the physical incapacity to commit the offence were material facts, either which, if true, afforded a complete defence to the charge. The nature of the false statements and the circumstances in which they were made were such as could lead to an inference support of the evidence of the child. Per Cartwright and Nolan JJ. (dissenting): In all the circumstances of the case at bar, the false statements could not in law be regarded as corroboration of the evidence the child.
Evidence in corroboration must at the least be independent evidence from which it results as a matter of inference that it more probable that the offence was committed by the accused than not. The false statements were not evidence of that nature.
12.-Murder-Plea of self-defence and drunkenness-Fist fight-Criminal Code, 201(a)(i) and (ii). The appellant was convicted of murder.
His main defences had been self-defence, drunkenness and lack of intention to kill. The evidence was that the appellant and the victim had, a deserted lane at about a.m. on a very cold night, engaged in a drunken fist fight; that the victim to the ground and was kicked by the appellant; that while the victim was lying bleeding and unconscious, in below zero weather, removed the victim's coat, placed a leather belt around his head, running it through the mouth and knotting it tightly behind the left ear, and then abandoned him. The autopsy revealed numerous cuts on the head and a depressed fracture of the skull. The lungs contained an abnormal amount of blood. The conviction was affirmed the Court of Appeal, without written reasons. Held (Rand, Cartwright and Nolan JJ. dissenting), the appeal should be dis- Per Kerwin C.J. and Taschereau [ and Fauteux JJ.: On the uncontradicted evidence of medical and law enforcement officials and the admittedly free and voluntary statements made by the appellant, the conclusion irresistible that, failing any defence that could arise from the evidence, the appellant's conduct throughout the entire transaction could only manifest an intention either to cause the death the victim or to cause the victim bodily injury known to him to be likely to cause accelerate death and being reckless whether death ensued or not.
It impossible to say with any degree of certainty to which one of the various injuries death could ultimately be attributed.
Whether the fracture of the skull was caused by the appellant, intentionally or accidentally, what he did, once his victim had become unconscious, on the medical evidence, accelerated death and there no place for any speculation as to what his intentions then were if they are to measured by his actions.
Therefore, subject to the consideration possible defences and assuming particularly that the appellant was sane and sober, as the law presumes, there could be no doubt that what he then did only reasonably consistent with either an intention to kill or to cause such bodily injury known to him to be likely, in the circumstances, to cause or accelerate death, being reckless whether death ensued or not.
Subject to the consideration of possible defences, whether such a killing by acceleration amounts to murder or manslaughter depends whether, on the evidence, the case one within (a)(i) or the
The trial judge charged the jury as to insanity, provocation, self-defence and drunkenness.
These directions are unimpeached by the appellant. Obviously, the jury reached the view that none the defences was made out. Having particularly failed to find that the appellant was drunk to the extent required to support a defence drunkenness, which was the main defence here, there was no other verdict possible but the one rendered.
no substantial wrong or miscarriage justice.
Per Locke J.: the acts of the appellant must be considered together and the matter cannot be limited to the blows which presumably felled the victim.There is no substance to the objection that the trial judge made a finding in law that the appellant's participation in the fight was an unlawful act and a crime when the facts were in dispute.
The facts were not dispute and assaulting another person a criminal offence subject to the exceptions explained in the charge.
Reading the charge as a whole, there was no misdirection for the trial judge to say that the appellant was presumed to intend all the consequences which might from the fight, even though he may not have known that the victim received a fractured skull, and that he was thus presumed to be guilty of murder, subject to possible defences.
The necessity for proof of the intent required by 201(a) of the Code was impressed on the jury.
The contention that the trial judge should have instructed the jury that the victim during the fight and fractured his skull on some object it could amount to no more than manslaughter, cannot be entertained. If the appellant struck the victim with his fists intending to kill him or cause bodily harm that he knew was likely to cause death and being reckless whether death ensued or not, it would be murder and not manslaughter. The reading by the trial judge of the Code, coupled with the reference to the condition in which the victim was left and the instructions in the charge as a whole, was sufficient to dispose of the ground that the trial judge failed to tell the jury under what circumstances it would have been manslaughter under that section.
The objection that the trial judge failed to instruct the jury, that they found that the appellant accelerated the death, under what circumstances it would amount to manslaughter, ignores the instructions as to whether the appellant had caused the death and as to his intent in assaulting and leaving the victim gagged and unconscious in the snow. The jury, finding that the appellant was capable of forming the intent necessary to constitute the offence of murder, has by its verdict found that he had formed that intent.
No other finding was open to them upon the evidence.
No substantial wrong or miscarriage of justice occurred. Per Rand J. (dissenting): The brain contusion was the vital physical fact and therefore the question of actual intent was the first importance.
The charge confused the question causing a homicide with that of attributing to the appellant an intent or state of mind.
If the appeallant knew nothing of the skull fracture existing conditions that coupled with a knockdown could cause it, it is impossible to see how anything flowing from it could be considered to be within any legal presumption of intention related to consequences, natural or unnatural. fatal to the charge to omit the vital link of knowledge actual or imputed that could produce such a natural consequence, as well as intent bring such an injury about.
As to the supplementary cause of tying the belt and abandoning the victim, which it was contended accelerated the death, the general verdict makes it impossible to say whether the jury proceeded upon the one cause the other; and any finding by a court appeal that the jury must have found guilt on the one or the other might be based on the one that the jury rejected. Furthermore, it cannot be seriously contested that the jury could have found in favour of the appellant that this supplementary conduct had not been carried out with the intent of 259 of the old Code and that the passion of the fight had not cooled. Nothing of this was contained in the charge and no Court can usurp the function the jury and make such a finding under
1014(2) of the old Code. Per Cartwright
J. (dissenting): It was misdirection, fatal to the conviction, to tell the jury not that they might but that they must find that the appellant had the intent required by
201(a)(i) or the Code unless they found that he was through drunkenness incapable of forming the intent to cause death or to cause bodily injury that he knew was likely to cause death and was reckless whether death ensued or not. It was for the jury, giving due weight to the rebuttable presumption which imputes to a man an intention to produce those consequences which are the natural result his acts, to decide as a fact whether the appellant had the guilty intent necessary to make him guilty of murder; and, in particular, it was for them to say whether the fracture of the skull was a natural consequence of any blow struck by the appellant. In the circumstances of this case, it is impossible to say that a jury properly instructed and acting reasonably must necessarily have convicted the appellant
It was open to them on the evidence to find a verdict of manslaughter.
On the other hand, it is not possible to say that there was no evidence on which the jury might find a verdict of murder, and, therefore, there should be a new trial.
Per Nolan J. (dissenting)
: It was a fatal defect in the charge of the trial judge to instruct the jury, as he did, that the appellant was presumed to have intended the consequences which flowed from the fight, even though he might not have known that the victim suffered a fractured skull, and that an intent, as required by 201(a)(i)
or of the Code, must be attributed to
It was for the jury to say whether the intent of was to be attributed to the appellant so as to justify a verdict of murder; also to say whether the fracture of the skull was caused by a blow of the appellant or by the victim falling on a pile of scrap iron nearby.
It was for the jury to determine whether, on the facts, manslaughter or murder was the appropriate verdict and there is a doubt, which must be resolved in favour the appellant, that the verdict would necessarily have been the same had no irregularity occurred.
13.-Habitual criminals - Procedure - Impropriety of judge hearing evidence as to previous record before commencing enquiry
Criminal Code, 1953-54 (Can.), ss. 660, 662. The appellant was convicted by a jury of theft. Notice had been served on him, pursuant to 662(1)
the Criminal Code, that the prosecutor would ask to have him found to be an habitual criminal.
Immediately after the jury's verdict the trial judge heard representations as to sentence, and had before him a probation officer's report setting out the appellant's previous history, including numerous convictions.
Before actually sentencing the appellant on the theft charge, the trial judge held an enquiry in respect of the allegation that the appellant was an habitual criminal, and at the end of that enquiry, having found the allegation proved, he sentenced the appellant to preventive detention, as well as to two years' imprisonment on the conviction for theft. The accused appealed against the finding that he was an habitual criminal, and the sentence preventive detention. The appeal should be allowed and the sentence of preventive detention should be quashed.
The provision in s. 662(2) that an application under Part XXI shall be heard and determined before sentence passed for the primary offence, requires that that hearing be opened immediately after the accused found guilty, which enables the trial judge to enter upon the enquiry without previous knowledge the accused's past conduct.
By considering the probation officer's report before commencing the enquiry, and then relying upon in finding that the accused was an habitual criminal, although it was not proved that hearing, the trial judge had acted contrary to the provisions of the Code, and the proceedings on the enquiry were a nullity.
In the circumstances the appeal could not be dismissed under 592(1)(b) of the Code.
14.-Trials magistrates for indictable offences-Sufficiency of information and complaint without formal indictment-The Criminal Code, 1953-54 (Can.), ss. 467, 478. Where an accused brought before a magistrate charged with an indictable offence that is within the magistrate's absolute jurisdiction to try, there no necessity for the preparation of an indictment. The magistrate's jurisdiction is absolute and does not depend upon the consent of the accused, under 467 the Criminal Code, where the accused "charged in an information", and s. 478, requiring the preparation of an indictment in Form applies only where the accused has elected under 450, 468 or 475 to tried by a judge without a jury. Ship The King (1949), 95 C.C.C. at approved.
While it is true that criminal prosecutions must be conducted the name of the Crown, and not in that the informant, this requirement sufficiently satisfied the information headed Nom 15.- Common gaming houses-Slot machines-Machine vending only amusement or "services"-The Criminal Code, 1958-54 (Can.), ss. 168, 170, 176.
A machine that vends only "services" or amusement (the terms are synonymous) is within the CRIMINAL LAW-Concluded definition of "slot machine" in the Criminal Code, if the result of one any number of operations a matter of chance or uncertainty to the operator.
The difference in wording between and 986(4) the old Code has changed the law as laid down in Laphkas The
King, S.C.R. 84. The finding such a machine therefore gives rise, under
170(1), to a conclusive presumption that the place where it found is a common gaming house, as defined in and renders the keeper of the premises liable to the penalties prescribed by v. QUEEN..............
16.-Appeals Supreme Court of Canada
-Questions of law alone-Admissibility confession-Court of Appeal holding confession inadmissible on mistaken ground law-The Criminal Code, 1958-54
598(1)(a). Where a Court
Appeal orders a new trial on the ground that a statement by the accused was wrongly admitted at the trial, and there dissent on this point, there is a right appeal by the Crown if the difference opinion between the majority and the minority was based, not on any question respect of the evidence or the inferences to be drawn from it, but on differing views the law applicable to the situation, and different interpretations of decided cases;
the question of the admissibility of the statement is in such circumstances one law alone.
Kerwin C.J. and Cartwright J.
(dissenting) were opinion that there was dissent in the Court of Appeal any question of law.
THE V.
FIrrroN...........................
17.-Trial judge's charge to jury-- Whether defence adequately put jury
The accused was charged with the murder a young girl by choking her, the theory the Crown being that the killing took place during the commission a rape.
The principal ground of defence, based on a statement made by the accused to the police, was that sexual intercourse had taken place with the full consent of the girl, and that the act that resulted in her death had taken place some time later, and was in no way connected with the act intercourse.
Held: This defence had been adequately put to the jury by the trial judge, and there was no ground interfering with the conviction.
FIrrON...................
CROWN-Crown lands-Lease-Transfer of leased land from Dominion to Province
Province entitled to alter terms lease on renewal-Whether compromise agreement enforceable-Railway Belt Re-transfer
Agreement Act, 1930 (B.C.), 60; 1930
(Can.), 37; 1930 (Imp.), 26.
the predecessors in title of the respondent obtained two renewable quarrying leases from the Dominion for
CROWN-Continued years, at a fixed rental, the lessees covenanting to observe regulations made from time to time.
There was no mention royalty. In the lands subject to the leases were, by statute, vested in the Province of British Columbia, the Province being bound to carry out the leases. When the respondent applied to the Province in for renewal, the latter claimed the right to vary the rental and to impose a royalty.
compromise agreement was made providing that the leases would be "thereafter subject to adjustment . . . both with regard to rental and to royalty".
The rental was subsequently increased and a royalty was demanded. respondent paid the increased rent only and sued the Province for a declaration that it was not liable for the royalty. The trial judge and the Court of Appeal for British Columbia held the compromise to be ultra vires the Province and maintained The agreement by way of compromise was not ultra vires the Province. &
2.-Petition of right-Goods imported into Canada from U.S.A.
Indian- Whether subject duties of customs and sales tax-Exemption claimed under the Jay Treaty-An Act to amend the Income Tax Act and Income War Tax Act, of 1949, 2nd Session, 25, s. 49-The Indian Act, R.S.C.
c. 149, ss. 2(1)(g), 86(1) (b), 87, 88, 89.
Article III of the treaty commonly known as the Jay Treaty reads in part as follows: "No duty on entry shall ever be levied by either party peltries brought by land, or inland navigation into the said territories respectively, nor shall the Indians passing or repassing with their own proper goods and effects whatever nature, pay for the same any impost or duty whatever.
But goods in bales or other large packages unusual among Indians shall not be considered as goods belonging bona fide to Indians". The appellant, an Indian within the terms of 2(1)(g) of the Indian Act, of resided on an Indian reserve in the Province Quebec adjoining an Indian reserve in the State New York, In 1948, 1950 and he brought from the United States into Canada certain articles acquired by him in the U.S.A. duties were paid in respect thereto. The articles were subsequently seized by the Crown and the appellant, under protest, paid the sum demanded.
By his petition of right, he claimed the return of this money and a declaration that no duties taxes were payable by him with respect to these goods by reason of the above part Article III the Jay Treaty. The claim was rejected by the Exchequer Court Canada.
Held: The appeal should be dis- Per Kerwin C.J., Taschereau and CROWN-Concluded
Fauteux JJ.: The Jay Treaty was not a
Treaty of Peace and it clear that
Canada such rights and privileges as were here advanced of subjects of a contracting party to a treaty are enforceable by the
Courts only where the treaty has been implemented or sanctioned by legislation.
There is no such legislation here.
86(b)
of the Indian Act does not apply because customs duties are not taxes upon the personal property an Indian situated on a
Reserve but are imposed upon the importation of goods into Canada.
of C. 1949, 25 is a complete bar in far as the articles imported in 1950 and are concerned.
Per Rand and Cartwright JJ.: To the enactment of fiscal provisions, certainly in the case of a treaty not a peace treaty such as the Jay Treaty, the prerogative that it need not be supplemented by statutory action does not extend and only by legislation can customs duties be imposed.
Legislation necessary to bring within municipal law the exemption claimed here, and for over a century there has been no statutory provision in this country giving effect to it.
There is nothing in 102 of the Indian Act,
R.S.C. 1927, 98, nor in 86(1) of the
Indian Act, R.S.C. 1952, that can assist the appellant.
Per Kellock and
Abbott JJ.: The provisions of the Indian
Act constitute a code governing the rights and privileges of Indians, and except to the extent that immunity from general legislation such as the Customs Act or the
Customs Tariff Act is to be found in the
Indian Act, the terms of such general legislation apply to Indians equally with other citizens of Canada.
No such immunity is to be found in 86(1) of the
3.-Liability of Crown agent pay interest
-Canadian
Commercial
Money awarded provincial Court as liquidated damages-Whether interest can allowed against corporation-The Canadian
Commercial Corporation Act, 1946 (Can.),
If judgment is given in a provincial Court against Canadian Commercial Corporation for damages for breach contract, interest on the damages can be allowed against the corporation pursuant to the general law the province.
By virtue of of The
Canadian Commercial Corporation Act, the obligation incurred by the corporation on behalf of the Crown is to be considered as having been incurred by the corporation itself. It is therefore in the same position as any other private corporation.
DAMAGES-Assault committed bus driver on disembarked passenger-Whether driver in the performance of his work- Whether employer ratified action of driver
-Whether employer liable-Article 1054 C.C.
The respondent and a companion boarded
DAMAGES-Concluded the appellant's bus at Montreal. Both were under the influence of alcoholic liquors. During the voyage, they spoke almost continuously in loud voices, making insulting remarks about the driver who did not speak to them during that time. At Ste- Th6rbse, the destination of the bus, all the passengers disembarked, including respondent and his companion who were the last to do so.
They crossed in front of the bus and were half-way between the left side of the bus and the opposite sidewalk when they were violently assaulted from behind by the driver.
sued the driver and the appellant for damages.
The action was maintained jointly and severally against both defendants affirmed by a majority in the Court Appeal.
The driver did not appeal in the Court of Appeal nor in this Court. The appeal should allowed and the action dismissed.
There was nothing in the alternative plea of the appellant which constituted an approbation or ratification the action of its employee, the driver (Roy v. City of Thetford Mines S.C.R. 395 applied).
delict caused "a l'occasion des fonctions" is a delict caused "pendant le temps des fonctions" and, consequently, not the one contemplated by Art. 1054 C.C. where the responsibility of the master is engaged by a delict caused in "the performance of the work for which the servant is employed".
The assault here was committed when the voyage had terminated and the contract with the passengers had come to an end.
The appellant was at that time relieved its duties towards the passengers.
There was no relation between the work and the assault. The relations between the passengers and the driver were purely personal and foreign to the driver's functions.
The latter was not, therefore, within Art.
1054 C.C. Com- DEFAMATION-Defences - Justification-Fair and accurate report of judical proceeding-Charge jury and jury's findings-Whether substantial wrong or miscarriage occasioned-The Judicature Act, R.S.O. 1950, 190, 28(1).
An action for libel was based upon the publication the defendant of a newspaper account the proceedings at a trial. The defendant pleaded both justification and that the words complained of constituted a fair and accurate report of proceedings in court. The jury found that the words were a report of judical proceedings, that they were substantially true, but they were not a fair and accurate report, and that they were "harmful without intent".
On these findings the trial judge dismissed the action. Held, the judgement should be affirmed. Per Kerwin C.J. and Fauteux, Abbott and Nolan JJ.: The trial judge's directions to the jury did not make clear the distinction DEFAMATION-Concluded between the question whether the statements contained in the article were true and the question whether the article was fair and accurate report of a judical proceeding.
But the jury by their answers had in fact distinguished between these questions, and the defendant had clearly shown that no substantial wrong or miscarriage had resulted from the misdirection;
the appeal should therefore be dismissed under 28(1) of the Ontario Judicature
Per Rand J.: Although the record the previous trial, to which the report related, did not of itself prove the truth the matters stated, and could not be resorted to for the purposes of the plea justification, the plaintiff's own evidence supplied any inadequacy there might otherwise have been in this respect.
therefore evider ce to support the jury's finding on this plea, and that finding was conclusive.
EVIDENCE-Confessions - Admissibility-Test of voluntary nature of statement
-Effect of decisions-Questioning police officers-Suggested "cross-examination"-Intimation that previous statement not believed.
The decision in Boudreau
The King,
S.C.R. 262, did not extend in any way the rule laid down in Ibrahim The
King, A.C. 599 at 609, as to the admissibility of confessions in evidence at
It is still the law that a statement is admissible in evidence if it shown to have been voluntary "in the sense that not obtained by fear of prejudice or hope of advantage exercised or held out by a person in authority", and the Crown need go no further than this, even in a case where questions have been asked by the police of a person in custody.
In particular, the Crown is not required to show that the statement was not otherwise influenced by the course conduct adopted by the police, or that it was "self-impelled" in any sense other than that it was not induced by fear hope.
The accused, having been taken to the police station early in the morning, and there given an account of his movements on the previous evening, was left there all day, not formally under arrest.
About p.m. the police officers returned and told the accused that they had been working all day on the case (one of murder)
and that they had discovered further facts indicating that what he had told them the morning was untrue.
The accused thereupon "blurted out" a damaging statement, whereupon he was stopped and given a formal warning in respect of a charge murder, after which he made a statement, obtained in the form of question and answer, that was reduced to writing and signed
Held: There was nothing in the circumstances to make either the oral statement or the written one that followed it inadmissible in evidence, and the trial
EVIDENCE-Concluded judge had rightly admitted them both. EXECUTORS AND ADMINISTRA- TORS-Right to bring action in representative capacity-Action instituted before grant of administration-Other circumstances -The Trustee Act, R.S.O. 1950, 400, s. 37. The plaintiff sued for damages arising out of the death of his infant son, claiming both personally, under The Fatal Accidents Act, and as administrator of his son's estate, under 37 of The Trustee Act. The action was commenced some two weeks before the grant of letters of administration to the plaintiff, and the Court of Appeal held that this fact was fatal to the claim under The Trustee Act, since an administrator had no status to sue until after his appointment.
Held: The judgment should be reversed in this respect. Assuming, but not deciding, that in Ontario an action under 37 of The Trustee Act could not be instituted by a person in the capacity of administrator before the grant of letters of administration to him, the writ in this action was nevertheless not void in toto, since the plaintiff admittedly asserted in a valid claim under The Fatal Accidents No period of limitation had expired when it came to the attention of the trial judge that letters of administration had not been granted until after the issue the writ, and it would therefore have been open to him at that stage to order that the plaintiff, in his capacity of administrator, be added as a party plaintiff. reason that no steps were taken at that time to regularize the matter was that counsel for the defendant made it plain that he was not raising the point that the action was improperly constituted. these circumstances he should not now be heard to object on that ground, and the plaintiff should have judgment on this branch of the case.
EXPROPRIATION-Whether proper principle applied. In 1952, the Crown propriated certain lands comprising acres which the appellant had acquired bequest in 1942.
large brick house, a barn and a garage had been erected thereon in 1910.
The appellant, an experienced gardener, had used the property for raising produce and fruit, and had cleared up and improved it as well as the buildings. Much of the evidence on behalf the appellant was directed to showing the replacement value of the house and the value the fruit trees and other improvements the property rather than estimating the value of the property as a whole. trial judge found that the fair value of the property to the appellant was $18,250, to which he added ten per cent for compulsory taking and $2,500 for disturbance. (Rand and Cartwright JJ. dissenting): That the appeal should be dismissed. EXPROPRIATION-Continued
Taschereau, Locke and Abbott JJ.: The trial judge properly applied the principle stated and applied in Woods lanufacturing
Co. v. The King S.C.R. 504. No material fact was overlooked or misapprehended by him and no ground has been shown for any interference with his judgment. Per Rand and Cartwright J.J. (dissenting):
Applying the rule stated
Diggon-Hibben Ltd. v. The King
S.C.R. 712 and referred to in Woods
Manufacturing Co. v. The King (supra)
and which the trial judge does not appear to have followed, it is impossible to say that a prudent man in the position of the appellant would not have paid a sum substantially larger than that fixed by the trial judge rather than be ejected from his property.
Determination of value-Land suitable for subdivision-Uncertainty of statutory approval-Other uncertainties. Land comprising 10.4 acres and forming part of a larger tract purchased by the respondent in 1952, were expropriated by the appellant.
plan for subdivision by the former owner submitted in was not approved the Minister of Planning and Development.
A new plan submitted by the respondent in was approved by the Planning
Board upon certain conditions.
In the interval, negotiations were carried between the parties for the purchase of the required lands for a school site. The apellant offered $100,000 in Feb. 1954 upon certain conditions and while this amount was acceptable to the respondent, one the conditions was not and the negotiations collapsed.
The expropriation was made on March 22, 1954.
new subdivision plan was approved by the Minister on May 1954.
Proceeding upon the basis that the respondent was entitled to receive the amount he would have realized if the property had been sold in building lots, the trial judge made an award
$129,708.
This judgment was affirmed the Court of Appeal.
Held (Abbott J.
dissenting): That the appeal should be allowed and the compensation reduced to
$110,000.
Per Taschereau and Cartwright
JJ.: The land should be valued on the basis that the most advantageous use to which it could be put was subdivision and sale, but the trial judge appears to have erroneously calculated as a mere matter of arithmetic the total probable net realization from the sale of the land in this manner and to have awarded this sum instead of the present value of the anticipation that in the not far distant, but still not in the immediate, future such sum would be realized.
Per Rand J.: The arbitrator failed to give effect to the fact that while what was in prospect for the owner here was a land subdivision development, the subdivision had not yet been approved and was subject to the contingencies that might affect approval or might be annexed as
EXPROPRIATION-Concluded conditions.
It was therefore facing that uncertainty in realization of the possibilities of its land that the owner must have estimated its value, a value which the circumstances would not seem to differ from market value with the same object in view.
The amount allowed by the arbitrator disregarded in toto all the eventualities foreseeable or only vaguely foreshadowable by which a prudent person, looking forward immediately before the expropriation, would be influenced. Locke J.: There was error in the principle applied by the trial judge.
He appears to have assumed in making the award that the respondent was entitled as of right to register the plan prepared and to sell the lots shown upon it as building lots. There was no basis for any such assumption. It was wrong to ignore the statutory requirement of approval to any subdivision plan under the Planning Act and to fix the compensation as if the owner were entitled to proceed to an immediate sale of the land as building lots. Per Abbott J. (dissenting): There is no reason to assume that an appropriate subdivision plan would not have been approved since it is clear that the land was admirably suited for the purpose. The value the land to the respondent at the time of the taking was the amount for which it could be disposed for residential purposes, making allowance for any expenses which might have been incurred, carrying charges and such risk as might be involved pending sale.
judge followed the proper principles and the appellant has failed to show that the unanimous judgment of the court below a question which essentially one of fact, was wrong.
HUSBAND AND WIFE-Evidence-Marriage-Foreign marriage certificate produced -Presumption as validity placed in doubt evidence of prior marriage-Criminal Conversation, Action for-Onus on plaintiff to establish strict proof of marriage relied on-Evidence Act (Imp.) 14-15 Vict. 99, R.S.O. 1897, Vol. 8, p. XXIII. In an action in damages for alienation of affection and criminal conversation the defendant pleaded that the plaintiff's marriage was bigamous by reason of a prior subsisting marriage of the plaintiff's purported wife.
At the trial the plaintiff produced a certificate of the marriage performed in England in 1949 in which his wife was described as a spinster.
On cross-examination of the plaintiff and his alleged wife, called as a witness for the plaintiff, it appeared that she had in 1946 gone through a form marriage with one M before a priest in Poland. Later they came to Germany where a prosecution was initiated against M for his subsequent marriage there. The
"wife"
had been informed by a letter written by a "Summary HUSBAND AND WIFE-Continued
Court Officer" that the Intermediate Military Government had dropped the proceedings for lack of evidence and that according to the law the Polish marriage was not valid as no civil marriage was performed and the "wife" was entitled to consider herself not married.
Held (Cartwright J. dissenting): That while the certificate of the English marriage was admissible in Evidence (Imperial Evidence Act,
14-15 Vict. c. 99; R.S.O. 1897, Vol. 3, p.
XXIII) it could have no more probative value than it would have in the English courts. Its production did not constitute
"strict" proof but at most raised a presumption as to its validity and, the presumption having been placed in doubt, the burden resting upon a plaintiff in an action for criminal conversation to establish that the "real" relation of husband and wife existed fell upon the appellant which he failed to discharge. Catherwood v. Caslon
L.J. M.C. 334 at 335; The King v.
Bailey 31 Can. S.C.R. 338; In re Stollery
[1926] 1 Ch. 284; Rex v. Naguib [1917] 1
K.B. 359.
Per Cartwright J. (dissenting)
:
The certificate of the English marriage was admissible in evidence and constituted prima facie evidence of the facts which it recorded. Bogert v. Bogert and Finlay [1955]
O.W.N. 119, approved.
The evidence of the appellant together with the English marriage certificate established a valid marriage unless at the time it was solemnized the "wife" was already married to
M. Burt v. Burt 29 L.J. N.S. (P.M. & A.)
133 and Catherwood v. Caslon 13 M. & W.
261, distinguished.
Whether the prima facie case for a valid marriage was displaced by the evidence of the marriage ceremony in Poland depended upon the evidence in the record as to that ceremony.
There being no proof therein that the latter constituted a valid marriage there was no evidence to rebut the prima facie case made by the appellant.
Rex v. Naguib
[1917] 1 K.B. 359 at 361, 362, followed.
Rex v. Wilson 3 F. & F. 119 and Re Peete
[1952] 2 All E.R. 599, distinguished.
evidence of the ceremony in Poland without any proof of its validity was not evidence to lead the court to doubt the validity of the English marriage.
Evidence of the marriage Law of Poland was equally available to both parties and it would be an anomaly to hold that evidence as to an alleged foreign marriage (which marriage if valid would be a defence to the charge or action as the case may be) which would be insufficient to afford any defence to one accused of bigamy, would yet be sufficient to furnish a defence to one sued for damages for criminal conversation.
Rex v. Christie [1914] A.C. 545 at 564.
The trial judge was right in ruling, as a matter of law, that there was no evidence in the record on which the jury could find the appellant's marriage was invalid, and in directing them to proceed on the basis that such marriage was established. Judg- HUSBAND AND WIFE-Concluded ment of the Court of Appeal for Ontario [1954] O.W.N. 402, affirmed. LEWKOWICZ v. KORZEWICH................... 2.-Separate as to property-Transfer of immoveable as security for husband's debt- Art. 1801
C.C.
To help her husband whose financial situation was bad and from whom the appellant was pressing the payment of a debt of $4,500, the respondent, separate as to property, signed a contract of sale of her immoveable property in favour of the appellant for $6,027, of which $4,500 was payable to her and the remainder to another creditor. She did not receive the money but gave receipt for it. The appellant signed a cheque for $4,500 to the order of the respondent which she endorsed and gave to her husband's solicitor who, in turn, made out a cheque of $4,500 payable to the appelant. The evidence showed that the respondent believed that the transfer of property was not in payment of her husband's debt but as security for it. Held (affirming the judgment appealed from): That the appeal should be dismissed. The Courts below were right in maintaining the action taken by the respondent to annul the transfer as what was attempted to be done was prohibited by Art. 1301 C.C. (Larocque v. Equitable Life Assurance [1942] S.C.R. 205 and Kelly v. C.P.R. [1952] 1 S.C.R. 521 referred
..... IMMIGRATION- Habeas corpus - Certiorari - Alien - Deportation order - Whether quashable - Whether order-incouncil making regulations, invalid-Delegation of authority-Jurisdiction to review case-Immigration Act, R.S.C. 1952, c. 325, ss. 89, 61-Immigration Regulation 20(4). S. 61 of the Immigration Act (R.S.C. 1952 c. 325) authorizes the Governor in Councii to make regulations respecting the prohibiting or limiting of admission of persons by reason of an enumerated list of matters. By Regulation 20(4), the Governor in Council enacted that admission is prohibited "where in the opinion of a Special Inquiry Officer such person should not be admitted by reason of" the same enumerated list of matters that are found in s. 61 of the Act.
The respondent, a citizen of the United States of America and who did not have a Canadian domicile, was ordered deported by a special immigration officer as unsuitable under this regulation. The respondent applied for a writ of habeas corpus with certiorari in aid and also for an order by way of certiorari quashing the deportation.
The judge of first instance ordered her discharged from custody. view of the decision of this Court in Masella v. Langlais ([1955] S.C.R. 263), the Court of Appeal for Ontario struck out the direction for the respondent's discharge but quashed the deportation order. Upon appeal by leave of the Court of IMMIGRATION-Concluded
Appeal its order should be confirmed.
Regulation 20(4) is invalid because there is no power, under s. 61 of the Immigration
Act, in the Governor in Council to delegate, as was done by this regulation, his authority to immigration officers.
In view of this invalidity, s. 39 of the Act does not prevent the Court from exercising its jurisdiction by way of certiorari and quashing the deportation order.
The deceased, a member of the Toronto Flying Club Ltd., crashed and was killed when flying at night in an aircraft piloted by him and owned by the club.
The respondent contested liability under the policy on the ground, inter alia, that the insured flying club had breached the warranty in the policy that "all air navigation and airworthiness orders and requirements issued by any competent authority should be complied with in every respect".
The Department of Transport had issued certificates authorizing this plane to fly by night "for instructional purposes only" and further prohibiting the club from "flying for recreational purposes by night". Held (affirming the judgment at trial and of the Court of Appeal):
That the appeal should be dismissed.
flight made at night by the deceased was not a training or instructional flight but a recreational one, and as such was prohibited as was the use of the aircraft.
2.-Automobile liability policy-Car driven third person with insured owner's consent
-Unsatisfied judgment against driver- Whether action lies against insurer-Whether prescription-Meaning of "insured"-Insurance Act, R.S.O. 1950, 188, ss. 197, 211,
214-Statutory Condition 9(8).
An automobile, insured by the appellant under a motor vehicle liability policy and driven by C. with the owner's consent, struck and injured respondent.
latter obtained judgment against the driver C.
but was unable to collect it.
The respondent then brought this action for indemnity against the appellant as insurer.
action was maintained and the appeal by the insurer dismissed by the Court of Appeal.
The appellant contended that a judgment against the owner was a condition precedent to any action against the insurer and that the driver C. was not "the insured" under s. 214 of the Insurance Act, R.S.O. 1950,
INSURANCE-Continued c. 183; and furthermore, that the action was barred by statutory condition 9(3) since it had not been started within one year after the cause of action arose. (Cartwright J. dissenting): The appeal should be dismissed. Per curiam: A judgment in favour of the respondent against the owner to whom the policy was issued was not a condition precedent to the bringing of this action by the respondent against the appellant.
C., the driver of the automobile at the time of the accident, was an "insured" under 214 of the Insurance Act. Per Kerwin C.J., Taschereau, Rand and Locke JJ.: Statutory condition 9(3) did not apply to the claim of the respondent which was a substantive right given by statute and did not arise under the contract of insurance.
Per Locke J.: Statutory condition 9(3) applied only to actions brought to enforce the insurance contract by the persons insured by it, whether named or not, and by persons claiming under them by assignment. Bourgeois v. Prudential Assurance Co., (1945) M.P.R. 334 not followed. Cartwright J. (dissenting): Statutory condition
9(3)
barred the action of the respondent.
The right of action conferred on the injured party in 214(1) of the Insurance Act a right of action under the contract. Assuming that the condition applies only in the case of actions proceedings under the contract, the respondent's action was under the contract insurance issued by the appellant to the owner
3.policy-Loss arising from "ownership, use or operation" of vehicle-Tank truck delivering gasoline at service station-Negligence of driver. General liability policy-Express exclusion of "claim arising or existing reason any vehicle"-Meaning and effect-Delivery of gasoline tank truck- Negligence resulting in damage to third persons. A company engaged in the distribution of petroleum products employed in that business tank trucks with which gasoline and other products were delivered to service stations.
While gasoline was being delivered from one these tank trucks it escaped as a result of the negligence of the driver of the truck and caught fire, and the caused extensive damage to the service station and to property other persons then on the premises. company paid the claims of the persons damaged, and then sought indemnity under two policies of insurance.
Held: The company was entitled to recover under one policy, but not under the other.
The first policy, an automobile policy, expressly insured against liability "arising from the ownership, use or operation" the vehicle, and the loss clearly arose from the "use" of the tank truck within] the INSURANCE-Concluded meaning of the insuring clause.
That term included not only the transportation of the gasoline from the company's premises to the service station but also its delivery into the tinks at the service station.
curiam). The second policy, however, was a general liability policy, and specifically excluded "any claim arising or existing motor
This must be taken to be an exclusion of liability arising in any way from the ownership, use or operation an automobile, or precisely what was covered by the other policy.
The exclusion extended even to the finding that the truck driver had been negligent in not ascertaining the quantity gasoline already in the tank before starting to deliver it, since this was merely a circumstance annexed to the act of delivery. (Per Kerwin C.J. and Taschereau,
Rand and Cartwright JJ.; Locke J. contra.)
Per Locke J. (dissenting in part)
: The loss was covered in part by the second policy as well as the first. The risk covered this policy was not defined by statute, and the policy was to be construed contra proferentem. Anderson v. Fitzgerald,
4 H.L.Cas.484 at 507, applied.
The liability for the negligent act of the driver fell squarely within the insuring clause and was not excluded by the special exclusion, construed, as it should be, in the sense which the insured person might reasonably understand it; if the insurer had intended to exclude this risk it should have done so in clear and unambiguous terms, which admitted of no doubt. Life Association of Scotland v. Foster al, 11
M. (Ct. of Sess.)351 at 371; Provincial
Insurance Company, Limited v. Morgan al, A.C. 240 at 250, referred to.
The insurer had therefore committed a breach its contract in declining to investigate the claims made against the insured, to conduct the defence of the litigation and to pay the judgments up to the limits in the policy. The action against this insurer was one for damages for breach contract, and the insurer's conduct amounted in law to a waiver of its right to insist upon compliance by the insured with the provisions of the contract as to admitting liability or settling claims. Jureidini v. National British and Irish Millers Insurance Company, Limited A.C. 499 at
507, applied.
LIMITED-RELIANCE
...............
JUDGMENT-Right of County Court
Clerk enter judgment- Liquidated demand
-Clerk was solicitor for plaintiff-County
Courts Act, R.S.N.B. 1952, 45.
Clerk of the County Court of New Brunswick, who was solicitor for the plaintiffrespondent, entered judgment in default appearance and defence in his own action for a liquidated demand.
The application the appellant to set aside the judgment
JUDGMENT-Concluded was dismissed by a judge of the County Court and by a majority in the Supreme Court of New Brunswick, Appeal Division. Held: The appeal should be dismissed. The signing of judgments by the Clerk liquidated demands authorized by Order rule of the rules the Supreme Court, which provides that in default of appearance "the plaintiff may enter final judgment" for the amount claimed, has been at least since 1915 the procedure of the County Court.
With these judgments the judge has nothing to do.
That practice has been followed throughout the province and it cannot be seriously questioned. 25 the County Coarts Act, R.S.N.B. 1952, 45, implies that the Clerk, although interested in the action, can sign judgment for the amount claimed on a liquidated demand.
There is the statute a deliberate abstention from affecting liquidated demands with the restriction imposed the case unliquidated damages. Whatever objection there may be in principle to permitting a solicitor to do such a ministerial act as clerk in his own cause must be taken to have been overridden other considerations.
Furthermore, views of the provincial courts which should be treated with the utmost respect on such a question was well founded in the case at bar: being compatible with a reasonable interpretation the statutory language given in the light the principle involved. JURISDICTION-Power of this Court to hear Reference Governor General in Council-Criminal case-Supreme Court Act, R.S.C. 1952, 259, s. 55.
In a preliminary objection to the jurisdiction of this Court to hear the Reference made by the Governor General in Council in Regina v. Coffin (1956 S.C.R. it was contended by the Attorney General of Quebec that the Order-in-Council went beyond the terms of 55 of the Supreme Court Act (R.S.C. 259), in that a judicial opinion was asked on a matter as to which there was res judicata; that it was an interference with the administration of justice in a province and that under s. 596 of the Criminal Code there was no power to refer the matter to this Court.
motion should be dismissed.
C.J., Taschereau, Locke, Cartwright and Fauteux JJ.: By the terms of 55(6) the Supreme Court Act, the opinion of the Court is a final judgment only for the purposes of appeal to Her Majesty Council.
While the opinion will be followed as a general rule, there is no lis between the parties.
55 and particularly s-s. (1)(e) is wide enough to cover this case and there precedent for such a reference. Furthermore, whether the Governor General in Council desired the opinion in order to come to a conclusion on the question of clemency or in order to assist the Minister of Justice in deciding what action JURISDICTION-Concluded he should take under 596 of the Criminal
Code, the reference was authorized by
Per Rand and Kellock JJ.: The reference falls under 55(1)(d) and the Supreme Court Act.
V. COFFIN..................
2.-Supreme Court-Amount or value matter in controversy in appeal - Supreme Court Act, R.S.C. 1952, s.
36(a), as re-enacted 1956, 48, s. 2.
The 1956 re-enactment of 36(a) of the
Supreme Court Act, increasing to $10,000 the amount that must be in controversy to give a right of appeal without leave, does not apply to a case in which the action was pending when the amendment came into force on August 1956, even though the judgment directly appealed from was not pronounced until after that date.
Hyde v. Lindsay (1898),
29 S.C.R. 99, applied.
......
JURY-Automobile - Pedestrian struck car-Finding by jury exonerating driver-Whether perverse affidavits of jurors as to intention to give verdict in favour of pedestrian, receivable. While attempting to cross a road, the appellant was struck by a car owned and driven by the respondent.
appellant sued for damages for personal injuries and the action was tried before a judge and jury. In answer to questions, the jury found that the respondent had satisfied them that there had been no negligence or improper conduct on his part.
They also assessed the damages suffered
The trial judge dismissed the action in accordance with these findings.
Before the Court of Appeal and this Court, the appellant contended that the verdict was perverse, and also sought to affidavits signed by nine members of the jury purporting to show that the findings made by the jury were not the findings intended to made by them and that they had intended to give the appellant a verdict for the amount of the damages assessed.
Held (affirming the judgment appealed from): That the appeal should be dismissed.
The jury's finding exonerating the respondent was not perverse.
This was not a case where affidavits from jurors should be received.
Under of The Ontario Judicature Act the duty of the jury was to answer questions and after answering them it could not award the appellant damages.
........................
LABOUR--Mandamus-Right of employto seek decertification of union-Union's failure to conclude collective agreement- -Whether right affected moral and financial help from employer-Duty of Labour Board
-Trade
The intervenant union was, in January, 1953, certified as bargaining agent for the employees of the respon- 73675-4
LABOUR-Continued dent company but failed to conclude a collective agreement.
In June, 1953, an application for decertification made some employees, claiming to be a majority, was dismissed as premature by the appellant, the Labour Relations Board. A second application, made in December, 1953, by out the employees the company, was also rejected on the grounds that it (1) was an application the employees in form only, being in reality made on behalf of the company and (2) was not shown to be supported by a majority of the employees.
The company joined the employees in their application before the Court Appeal for a writ mandamus which was ordered issued directing the Board to proceed to determine the application for decertification.
Board appealed to this Court.
should be dismissed.
It was conclusively established by the evidence that the application had been made and supported a majority of the employees. The rights of employees, under of the Trade Union Act, to bargin collectively through representatives of their own choosing are not forfeited if the employees receive help from their employer in asserting those rights. The evidence furthermore directly contradicted the statement that the emp;oyees had received financial help from their employer.
In view of the union's failure to negotiate an agreement with the employer, the right of the employees to choose another representative was not suspended nor affected.
Although the language in 5 the Act, by which the Board was given power to rescind or amend its orders or decisions, was permissive, it imposed a duty upon the Board to exercise this power when properly called upon to do so. (Drysdale v. Dominion Coal (34 Can. S.C.R. 336) and Julius v. Lord Bishop Oxford A.C. 243) referred to). The rejection the application was made grounds which were wholly irrelevant and amounted to a refusal on the part of the Board to perform its duties under the to deal with the statutory rights of the employees, which were not affected by any disputes between the employer and the union.
F. W. .............
2.- Workmen's compensation-Refusal by Board to entertain claim-Finding that no injury sustained-Whether conclusive and binding in subsequent action against employee for negligence-IWhether action precluded-Workmen's
R.S.N.B. 1952, 255, ss. 9, The determination by the Workmen's Compensation Board of New Brunswick that an employee sustained no injury as the result an employment accident, does not preclude that employee from suing a employee in a common law action on the grounds of negligence.
That determina- LABOUR-Concluded tion by the Board is not conclusive nor binding between two parties.
3.-Whether union bargaining committee can include employees of competitor- Whether employer need open books-Trade
Union Act, R.S.S. 1953, c. 959, s. 8(1)(c).
The framework of the Trade Union Act,
R.S.S. 1953, c. 259, shows that the representatives elected or appointed by a trade union to bargain with an employer can be employees of a competitor.
It is, therefore, an unfair labour practice under s.
8(1)(c) of the Act for an employer to refuse to bargain with a committee merely because some members thereof are employees of a competitor. There is no compulsion upon an employer to open its books at a bargaining
454 THE RELATIONS BOARD
...................
LIBEL AND SLANDER-Defamation
-Statements to reporters published in newspapers-Whether all innuendos should have been placed before jury-Whether words in relation to calling of plaintiff-No actual damage shown-Inflammatory address to jury
-Excessive damages awarded. The appellant, a taxi cab driver and owner, brought this action for damages for libel and slander against the respondent who, at the time, was the Mayor of the City of Toronto and
Chairman of its Board of Police Commissioners, a body responsible for the issuance or refusal of licences to taxi cab drivers and owners.
The appellant had appealed successfully from a refusal by the
Board to grant him a licence and had moved to commit the respondent for failing to comply with the decision of Lebel
J. that a licence should be issued.
Oral reasons given by the Chief Justice of the
High Court in disposing of this motion were published in the press and contained statements which the respondent regarded as reflecting on himself and the Board.
The respondent, in interviews with reporters from two newspapers commented on these statements and charged the appellant with, inter alia, "trafficking in licenses".
interviews were reported in these newspapers. The trial judge ruled that the statements made by the respondent were
Fublished on an occasion of qualified priviege.
The jury found that the words spoken referred to the appellant in his occupation, that in their natural and ordinary meaning they were defamatory of the appellant, that they were also defamatory of him in the sense ascribed to them in some of the innuendos pleaded, that they were published with express malice, and assessed the damages at sums totalling $40,000. In this Court the respondent contended, as was held by the Court of Appeal, (1) that all the innuendos should not have been
LIBEL AND SLANDER-Concluded placed before the jury as the words published were not capable of bearing the meaning assigned to some of them, (2) that the words spoken were not in relation to the appellant in his calling and that no actual damage was shown, (3) that the address of counsel for the appellant had been inflammatory and (4) that the damages were excessive.
should be allowed and the new trial directed should be limited to the amount of damages. If the appellant does not elect to have his damages assessed only on the basis that the words were defamatory of him in their natural and ordinary meaning, the judge presiding at the new trial will decide on each innuendo as to whether the words are reasonably capable of the meaning ascribed and will instruct the jury accordingly.
Per Kerwin C.J. and Rand J.: In view of the position taken at the trial by counsel for the respondent where he sought to use all the innuendos in order to strengthen his argument that the respondent had brought himself within his claim of privilege and was therefore entitled to comment fairly on a matter of public interest, counsel cannot now change his ground and complain that one or more innuendos were not capable of the meaning ascribed. Per Locke, Cartwright and Abbott JJ.: The course of the trial in regard to the submission of the innuendos to the jury was not satisfactory, and it has not been established that it was such as to preclude counsel for the respondent from relying on that ground of appeal. Per Curiam: Since the words "trafficking in licenses" clearly referred to the appellant in relation to his calling as a taxi cab driver and owner, they were actionable without proof of special damage. Considering the circumstances, the address of counsel for the appellant to the jury was not inflammatory. It cannot be said that the Court of Appeal was wrong in holding that the jury acting reasonably could not have awarded so large a sum. Ross v. MUNICIPAL CORPORATION-Annexation - Municipal Board - Power of Board -Failure to deal with conditions existing at time of adjudication-Municipal Act, R.S.O. 1950, c. 962-Municipality of Metropolitan Toronto Act, 1958, c. 78-Public Utilities Act, R.S.O. 1950, c. 890-Power Commission Act, R.S.O. 1950, c. 281.
In 1927, the City of Toronto expropriated certain lands in the Township of Scarborough on which it built a waterworks plant. Under legislation then in force, the City was exempt from taxation by the Township in respect of these lands, but in 1952, the exemption was removed by an amendment to the Assessment
Thereupon, the City applied to the Municipal Board for annexation of these lands under s. 20 of the Municipal Act.
While the decision of the Board on this application was pending, the Metropolitan Corporation was created. Continued
The Corporation became vested with the water plant and liable to the payment of local taxes. The Municipal Board ordered the annexation and this order was affirmed by the Court of Appeal. Held (Kerwin
C.J. and Locke J. dissenting): That the appeal should be allowed and the matter remitted to the Board for further consideration. Per Rand, Kellock and Cartwright
JJ.: The Municipal Board failed to deal with the circumstances and conditions existing at the time of its adjudication as it disregarded completely the new situation which was created when both the municipal function of water supply and the physical assets were transferred to the Metropolitan
This was a serious error in law. Per Kerwin C.J. and Locke J. (dissenting): It cannot be said that the Board proceeded on a wrong principle of law.
There is no warrant for the assumption that the Board did not consider and deal with the application on the footing that it should be determined upon the facts as they existed at the time of the making of the order. The power of the Board given by s. 20 of the Municipal Act and preserved by s. 214(2) of the Municipality of
Metropolitan Toronto Act, is not affected by ss. 117(1), 221(1) and 225(1) of the latter Act or by any of the provisions of the Public Utilities Act or the Power Commission Act. These provisions have not the effect of unalterably fixing the boundaries of the Township of Scarborough as of
January 1, 1954.
TOWNSHIP V.
CITY ....... 450
2.-Automobiles - Hole in road-Tractor overturned-Road condition known to driver-Duty of municipality- Whether breached-Municipal Districts Act,
R.S.A.
1942, c. 151.
While driving a farm tractor on a road within the appellant municipality, the respondent, in order to avoid a large hole in the centre of the road, swung to his left and ran into loose sand at the shoulder of the road. The tractor slid into a ditch, overturned and injured him. He knew there was a hole there and had been warned by his employer to be careful.
The road was a dirt road, lightly travelled, with a little natural gravel, and had been gravelled a year and one-half prior to the accident. His action for damages for injuries, alleging negligence of the municipality in failing to keep the road in repair, was dismissed by the trial judge who found that the respondent might have been driving too fast and too close to the edge of the road; that the hole was not much of a hazard and that he was the author of his own misfortune. This judgment was reversed by a majority in the
Appelate Division on the ground that the municipality should have known of the condition of the road and defaulted in the performance of the duty imposed upon it
73675-41
MUNICIPAL CORPORATION- Concluded by s. 189 of the Municipal Districts Act, R.S.A. 1942, c. 151.
Per curiam: The Appelate Division was wrong in holding tat the municipality defaulted in its statutory duty to repair the hole. That duty can only arise if it is justified on the evidence as to the character of the road and the locality in which it is situated, and if it should have known of the hole in the road. Under the circumstances here, the failure of the municipality to repair the hole did not constitute a breach of its statutory duty. Moreover, the facts do not support the finding of the Appellate Division that the municipality should have known of the disrepair of the road. Per Taschereau, Locke, Fauteux and Nolan JJ.: The accident was caused by the negligence of the respondent in the operation of the tractor; he did not have it under proper control. No. 43 v. LUND.................... 3.-Construction of road-Diversion of surface water-Whether authority required under s. 8 of The Water Rights Act, R.S.S. 1940, c. 41-The Rural Municipality Act, 1946 (Sask.), c. 82; 1950 (Sask.), c. 37. Section 8 of The Water Rights Act, R.S.S. 1940, c. 41, which provides that "no person shall divert or impound any surface water not flowing in a natural channel or contained in a natural bed . . . without having first obtained authority to do so under the provisions of this Act", applies to a rural municipality which constructs within its boundaries a road the effect of which is to turn the drainage water from its natural channel and bring about a diversion of that water onto adjacent lands, even if there was no intention on the part of the municipality to create such a diversion of water. Judgment appealed from ((1955), 15 W.W.R. 442) affirmed.
No. 257 v. NEGLIGENCE-Invitee
- Dangerous Premises property of Third Party-Liability of Invitor knowing of danger and failing to warn of hidden peril-Breach of City Bylaw. The respondent with another truck driver was instructed by a fuel company to deliver two truck loads of coal to the appellants' premises.
On arrival they were told to put the coal through a window in the east wall of the appellants' building by one of the appellants' employees who for the purpose removed a wooden covering from the window. The east wall was separated from the street curb by a sixteen foot concrete strip and a station wagon was parked near the window.
After it was moved by the appellants' employees, the respondent's companion moved his truck close to the window.
The appellants knew, but the respondent did not, that the truck was then over a part of the cellar which NEGLIGENCE-Continued extended under the strip and that the latter formed part the city sidewalk. The respondent was between the truck and the wall when the concrete collapsed causing the loaded truck to tilt and pin him against the wall.
In an action in damages for injuries sustained.
Held (Locke J. dissenting): That the appellants were liable.
Per Kerwin C.J., Estey and Cartwright
JJ.: The appellants invited the respondent to use a part the highway adjoining their premises in the course of carrying out a mercantile transaction in which both they and the respondent were interested, without warning him that such use was attended by a hidden peril of which they knew and which he was ignorant.
appellants' contention that the injuries were caused by the joint negligence of the two truck drivers in driving an overloaded truck on the sidewalk in contravention city by-law did not amount to negligence contributing to the accident.
It was at most a causa sine qua non.
effective cause of the accident was the existence of the trap, consisting of the concealed cellar and the failure to warn the respondent of its existence.
Coburn v.
Saskatoon 1 W.W.R. 392 at 396-7;
Beven on Negligence 4th Ed. Vol.
approved. Per Kellock J.: There was sufficient evidence upon which the learned
(trial) judge could make the finding invitation.
J.
(dissenting):
There was no evidence that the appellants either invited or authorized any one to invite the respondent or Day (his companion driver) to drive their loaded trucks on to the sidewalk in defiance of the bylaw, and it cannot be suggested that the act of a servant in indicating the place where the appellants stored their coal should be construed as an invitation to deliver it there in a manner offending against the by-law, or that the appellants could reasonably anticipate that persons employed by the fuel company would deliver the coal in a manner involving a breach of the by-law.
Decision of the
Ontario Court of Appeal 913, affirming the judgment of the trial judge,
Judson J., affirmed.
..........
2.-Whether licensee or trespasser-Seaman lost way while returning to ship in dense fog.
The respondent's husband, a seaman returning after shore leave to his ship moored at the appellant's pier, lost his way in the dense fog in the area and drove the wrong direction the end of a pier and was drowned.
The jury found for the respondent and that the deceased had been guilty of contributory negligence.
Court of Appeal, considering the deceased a licensee, affirmed the verdict. Held:
The appeal should be allowed.
no evidence upon which it was open to the jury to find that the deceased was a licensee the locality where he met his death.
NEGLIGENCE-Continued
His licence extended only to such reasonable area the appellant's property as was necessary for him to reach his ship. Being outside that area, he was therefore a trespasser and no evidence can be found of any breach of duty toward him on the part of the appellant.
C.P.R. v. Mc- 3.-Propane gas heater explosion in rented cabin-Absence of pilot light-Duty of cabin operator-Safety of premises. The respondent brought this action for damages for personal injuries resulting from an explosion which occurred while he was attempting to light a propane gas heater in a cabin rented from the appellant. cabin was rented at about 8.00 p.m., and the respondent remained in it only a minutes after being assigned to it. He left and did not return until about p.m., whereupon he locked the door and retired for the night.
The following morning, he awoke at 6.00 a.m., closed the windows and went back to sleep. he awoke again at 8.00 a.m., he went to the heater, struck a match to light it and there was an immediate explosion. was no pilot installed on the heater. trial judge gave judgment in favour of the respondent and a majority in the Appeal Division found contributory negligence. Held (Locke and Abbott JJ. dissenting): That the appeal should be dismissed and the cross-appeal allowed.
Per Rand J.: In the circumstances, it impossible to draw the inference as was done by the Appeal Division, that the respondent opened the valve without lighting the gas when he first got up at 6.00 a.m.
The omission duty on the part the appellant to furnish a reasonably safe heating apparatus failing to provide a pilot light was a failure in reasonable precaution which drew down That was the initial negligence, and it has not been superseded by any proven act on the part of the respondent or other third person.
Per Kellock J.: The Appeal Division was not justified drawing the inference that the respondent probably opened the valve at 6.00 a.m. and did not light the heater.
Consequently, since explosive gas was present in the premises, they were not reasonably fit for occupancy, and this was caused by the negligence of the appellant, as the preponderance of probability on all the evidence is to the effect that after demonstrating the heater to the respondent the previous evening he did not leave the valve completely shut
Although a person the position of the appellant not bound to install the most modern equipment, nevertheless when experience had taught what was demanded for the protection the public using his cabins, he was bound to adopt those means in order to make his accommodations reasonably safe. There was evidence upon which the finding of both courts below that the appellant failed NEGLIGENCE-Concluded the duty incumbent upon him to install pilots, could be found.
Per Cartwright J.:
The evidence supported the finding of the
Appeal Division that the failure to install a pilot light, which was a cause of the explosion, was a breach of the appellant's duty to make the premises as safe as reasonable care and skill could make them.
The other cause was the unexplained escape of gas, a cause for which neither party has been proved to be responsible.
The onus proving contributory negligence rested upon the appellant, and the evidence does not warrant any interference with the finding the trial judge that this onus was not discharged.
therefore, for the damage caused rested upon the appellant.
Per Locke J. (dissenting)
: It was not the absence of the pilot light that was the proximate cause the respondent's injuries but his own act in turning on the gas and failing to light it when he got up at 6.00 a.m.
Per Abbott
J. (dissenting): The escape of gas was due to the respondent himself turning on the valve between the time it was closed at
8.00 p.m. the previous night and 6.00 a.m.
the following morning when he got up the first time.
The courts below were not right in holding that the appellant failed in his duty to respondent in not having the heater equipped with a pilot light as a safety measure. An occupier not bound to adopt the most recent inventions and devices provided he has done what ordinarily and reasonably done to ensure safety.
The appellant carried out his contractual obligation to take due care that the premises would be reasonably safe persons using them in the customary manner and with reasonable care.
......................
4.- Contributory negligence-Child tender years-Rule to applied. It cannot be laid down as a general rule that a child of years never to charged with contributory negligence.
Dictum
Trueman J.A. in Eyers v. Gillis & Warren
Limited (1940),
48 Man. R. disapproved.
The proper rule that where the age is not such as to make a discussion of contributory negligence absurd, it is a question for the jury in each case whether the infant exercised the care to be expected from a child of like age, intelligence and experience.
Mercer al. Gray,
........
PARENT AND CHILD- Advancement
-Presumption of- -Whether rebutted-Father and son with same name-Shares of stock registered-Whether resulting trust.
appellant and his father had identical
Christian names, J. J. but the father, throughout his life and in all his business dealings with a few exceptions, was known as and used the name J. C.
In 1928, the father purchased shares and caused
PARENT AND CHILD-Concluded them to be registered in the name J. J. C. He used his own money for the purchase and retained physical possession of the certificates during his lifetime. At the same time he bought other shares which he registered in the names of his daughter, his other son and the name J. C. appellant sued his father's executors to recover the shares registered in the name J. J. C.
The trial judge dismissed the action and the Court of Appeal for Ontario, by a majority, affirmed this judgment. Held: (Abbott J. dissenting): The appeal Per Kerwin C.J., Rand and Cartwright JJ.: The inference from the evidence irresistible that by causing the certificates to be issued in the name J. J. the father was designating the appellant and not himself.
The respondents have failed to adduce sufficient evidence of any contemporaneous act or declaration by the father to rebut the presumption of advancement.
Furthermore, there was evidence subsequent declarations of the father to support the view that the appellant was the beneficial as well as the legal owner the shares.
There was no evidence that the appellant gave up that ownership and became a trustee for his father. Abbott J. (dissenting): The father was designating the appellant and not himself and, in consequence, a rebuttable presumption of advancement was created. The contemporaneous acts of the father dealing with the certificates are not only inconsistent with any intention on his part to convey the beneficial interest in the shares to the appellant, but they indicate clearly that he intended to retain the right to deal with them as he might see fit. These acts are in themselves sufficient to rebut the presumption of advancement; the presumption further rebutted by the acts and declarations the appellant since he first learned of the shares registered the name J. J. showing that he considered himself only a trustee.
a.........................
PENSION-Whether appellant entitled to benefits of Part V of the Militia Pension Act, S. of 1946, 59.
Section 43 of the Militia Pension Act of 1946, e. 59), provides that Part therein "applies to every member of the forces (a) who was not March and who was or is appointed to or enlisted after the before the said day and was still in the forces on the said day and who elects to contributor March 1948". Held (affirming the judgment appealed from): That the appellant, who served in the forces from to July 20, 1946, and who made his election 1947, was not entitled to the benefits Part V of the Act.
Per Rand, Kellock, Fauteux and Abbott JJ.: March PENSION-Concluded is specified as the day upon which a claimant was either not then in the forces, never having been in, but who joined subsequently, or as having enlisted on or before that day, and if before, then as having been still in on that day. Per Locke J.: Para.
(a) refers to members who were appointed or enlisted after March 31, 1946, whether or not they had, prior to that date, been members whose services had terminated, and para. (b) refers to those who were appointed or enlisted prior to March 31,
1946, were in the forces as of that date and were members when the amendment became effective.
To construe the section otherwise would make it and the Part retrospective, an interpretation which is not warranted.
PHYSICIANS
SURGEONS- Degree of skill required of practitioner-Specialist-Surgical operation-Mistaken diagnosis-Matters ofjudgment. The defendant, a highly skilled surgeon, performed an operation on the plaintiff, following a tentative diagnosis (made independently by the defendant and others) of cancer.
A growth was found in the plaintiff's stomach, and a test made by a pathologist while the plaintiff was still in the operating-room showed that it was probably malignant.
The defendant thereupon decided to proceed with the operation rather than postpone it for a further (and more positive) test, which could not be completed in less than 24 hours.
Because of his belief that the growth was malignant the defendant removed more of the plaintiff's organs than he would have done if he had known (as was later established) that it was benign.
(Kerwin C.J. and Locke J. dissenting):
The plaintiff had failed to establish even a prima facie case of negligence on the defendant's part, and the action was rightly dismissed by the trial judge. Per Rand and Nolan JJ.: A surgeon by his ordinary engagement undertakes with the patient that he possesses, and will faithfully exercise, the skill, knowledge and judgment of the average of the special class of technicians to which he belongs.
Where the only question involved is one of judgment, the only test can be whether the decision made was the result of the exercise of the surgical intelligence professed, or was such that (apart from exceptional cases) the preponderant opinion of the group would have been against it. The only evidence given on behalf of the plaintiff in the case at bar failed to establish that this test had not been met.
In particular, it was not established that any of the preliminary tests suggested in evidence would have been of any assistance in determining the nature of the growth. Per Abbott J.: The medical man must possess and use that reasonable degree of learning and skill ordinarily possessed by practitioners in similar communities in similar cases, and it is the duty
PHYSICIANS AND SURGEONS- Continued of a specialist such as the defendant, who holds himself out as possessing special skill and knowledge, to have and exercise the degree of skill of an average specialist in his field.
In making the decision to proceed with the operation, the defendant exercised his best judgment in what he considered to be the best interest of his patient. The evidence relating to certain pre-operative tests which, it was claimed, should have been made, was the only evidence which might be considered as prima facie evidence of negligence. But it fell short of meeting the test of prima facie evidence. The trial judge was right in holding not only that the plaintiff had failed to make out a prima facie case of negligence but that there had been no 2.-Negligence
Anaesthetist ency of precautions taken prevent explosion of combination of ether and oxygen- Danger from static electricity.
An anaesthetic was administered by introducing oxygen from a tank into a can containing ether, and then forcing the mixture of ether and oxygen through a tube (known as a Magill tube) into the patient's throat. Almost immediately after the start of the anaesthetizing process the patient developed a cyanotic condition, necessitating the administration of pure oxygen.
The tubes were thereupon withdrawn from the can and oxygen was drawn from the tank into a bag from which it was introduced through the Magill tube into the patient's lungs.
As soon as the bag was filled the tube from the tank was again inserted in the ether-can, but with the pressure reduced. When the patient's condition had returned to normal the Magill tube was disconnected from the oxygen-bag, with a view to restoring the flow of the anaesthetic. At that moment a violent explosion took place, causing serious injuries to the patient. It was established in evidence that the explosion had been caused by a spark of static electricity setting aflame the etheroxygen mixture that had escaped from the can while the Magill tube was disconnected, and accumulated near the patient's head. Held: The anaesthetist was liable in damages for the patient's injuries.
It amounted to negligence in the circumstances to leave the oxygen flowing into the ether-can while the Magill tube was not connected to it. It was not sufficient merely to reduce the pressure; the oxygen should have been turned off at the tank, which would have entailed no material delay and would have substantially reduced the danger. conceded that the ether-oxygen vapour was highly explosive, and that in surgical operations there was constant danger of a spark from static electricity.
Admittedly there was no absolute security against either spark or explosion, but the duty of all working in such conditions was to reduce Concluded that possibility to the practicable minimum.
There was no evidence that what was done in this case was approved as standard practice in hospitals. second alleged ground negligence was the failure to remove the ether-can from the operating-table, close to the patient's head. But the anaesthetist's conduct in this respect had been approved by other medical witnesses, and it would be dangerous for a Court to attempt such a matter to proscribe a step approved by the general experience of technicians and not shown to be clearly unnecessary or unduly hazardous.
PUBLIC HEALTH-Powers, duties and responsibilities of local boards of health- Requiring abandonment of unfit premises
-"Due examination" -Duty to act judicially
-Hearing interested persons-The Public
Health Act, R.S.O. 1950, 806, sched. B, s. 7.
Certiorari-Effect of statutory restriction-Ineffectiveness of privative section where natural justice denied inferior tribunal- The Public Health Act, R.S.O. 1950, 306, s. 14$.
The power of a local board of health, under of the statutory by-law under the Ontario Public Health Act, to order premises vacated, and if necessary to eject the occupants forcibly, is predicated upon the board's being "satisfied upon due examination" that the premises are either unfit for the purpose of a dwelling or
(ii) a nuisance, or (iii) in some way dangerous or injurious to the health of the occupants or the public.
In deciding whether or not one of these conditions exist, the board must act judicially, and must give to the occupants of the premises in question, or other persons whose rights may be affected, an opportunity to know which of the causes alleged to exist, and to answer the allegation.
If the board, instead of doing this, refuses to listen to those whose rights may be vitally affected, its action may be reviewed the Court on certiorari, notwithstanding
REAL PROPERTY-Land Titles-Mines and Minerals, title to-Tax sale lands in Croum, revested in Association statute
1940, 48, ss. 2(d),5(d)-The Real Property
Act, R.S.M. 1940, 178.
The Manitoba
Farm Loans Association (respondent)
acquiring the lands in suit in 1934 by an assignment of tax sale certificates, applied to have them brought under The Real
Property Act
Man. 38).
application was granted and a certificate of title issued to it in the usual form.
Manitoba Farm Loans Act (1917, Man.
REAL PROPERTY-Continued 33) as then amended, provided by s. 78 that lands to which the Association became so entitled should vest in the Crown the right of the Province and that the district registrar of any land titles office which such land was situate should on the request of the Provincial Treasurer issue a certificate of title in the name of the Crown. The Provincial Treasurer made the request and in Sept. 1934 a certificate of title was issued in the name of "His Majesty the King in the right of the Province of Manitoba".
In 1937 78 was repealed and a new 78 substituted which provided that land to which the Association had become entitled and was vested in the Crown was thereby revested in the Association and might be retransferred by a transfer under the hand of the Provincial Treasurer. Accordingly the Provincial Treasurer executed to the Association a transfer of all the Crown's estate and interest in the land and a certificate of title was issued to the Association in the usual form with the words added by the registrar "Subject to the reservations contained in the Crown Lands In 1945 the Association by an agreement of sale agreed to transfer its title to the appellant's father and in 1948, upon completion of the payments called for, at the father's request and upon execution a quit claim deed by the father to the son, transferred the lands direct to the appellant. The transfer recited that the Association was the registered owner of an estate in simple in possession subject to the reservations contained in the Crown Lands Act. The certificate of title issued the appellant certified him to be seized of a similar estate and subject to a similar reservation. Held (Kerwin C.J. and Locke J. dissenting): That the lands revested in the respondent Association by 78 of The Manitoba Farm Loans Act (as amended by 1937 S. of M. were not "crown lands" within the meaning of The Crown Lands Act, of M. 1934, c. 38, and there was not a disposition of crown lands within the meaning of 2(d) of that Act. The reference to reservations under The Crown Lands Act noted on the certificate of title issued to the Provincial Treasurer was unauthorized and a nullity as were the similar notations entered on the subsequent certificates of title and should be cancelled.
C.J. (dissenting): The respondent Association agreed to sell the lands "subject to the reservations contained in The Crown Lands Act" and that was what the transfer executed by it in favour of the appellant transferred,-and nothing more. The reference to the reservations contained in the Act was sufficient to bring in s. 5(d) thereof and the Association never agreed to transfer the mines and minerals and never did transfer them. Per Locke J. (dissenting): The only question to be determined was the proper construction of the language of the agreement for sale which by its terms showed clearly that the mines and minerals REAL PROPERTY-Continued were excluded from the subject matter the sale.
The question as to whether title to the mines and minerals was in the
Government Manitoba or in the Manitoba Farm Loans Association was an irrevelant consideration.
The evidence did not disclose a cause action.
Decision the Court of Appeal for Manitoba [1954]
D.L.R.
572, reversed.
2.-Tenancy in common-Agreement repair building-Moneys furnished one tenant and covenant co-tenant to repay proporti nate share-Caveat filed claiming only right of pre-emption given agreement
-Sale of interest co-tenant before paying share of repair costs-Whether title of purchaser subject lien or charge for share repair costs owed vendor-Land Titles
Act, R.S.A.
1942, 205, 189.
respondent as to a 213/332 interest and his brother, W.Z., as to a 119/332 interest were the registered owners of a property
Edmonton.
They entered into an agreement providing for the managing, renting, improving and repairing of the property;
the costs of the repairs were to be provided by the respondent, and W.Z.
covenanted to repay his proportionate share;
the agreement also provided for a semiannual accounting and division of the net rentals.
Mutual rights of pre-emption were also provided.
The respondent filed a caveat specifying as the interest which he claimed his right of pre-emption.
agreement was later amended to prohibit the sale of the interest of either party without the consent of the other.
A caveat was filed by the respondent to protect his interest under the amending agreement but after W.Z. had transferred his interest for good consideration to the appellants and they had received certificates of title. At the time of the transfer
W.Z. had not paid his proportionate share the repairs to the respondent.
respondent commenced this action after being required by the appsllants to take proceedings on the two caveats.
appellants counter-claimed for a declaration that they had acquired a good title and for an accounting.
In this Court, there was no question of fraud on the part the appellants nor of setting aside the transfer to them; but the respondent contended, as was held by the trial judge and the Appellate Division, that the appellants' title was subject to a lien or charge for the proportionate share of the repairs owed
W.Z. Held: The appeal should be allowed, and it should be declared that the appellants have a good title free from the claims asserted in the caveats and in the agreements.
The purpose of filing a caveat to give notice of what is claimed.
If an unregistered document gives a party more rights than one in a parcel of land and such party a caveat claiming one only of
REAL PROPERTY-Concluded such rights, any person proposing to deal with the land entitled to assume that the claim expressed the only one made. Even if the caveats were to be regarded as claiming every interest conferred on the respondent by the agreement, on its proper construction, the agreement gave respondent no interest in or charge W.Z.'s share in the land other than the first right to purchase, which the respondent no longer seeks to enforce.
Apart from contract the right of a tenant in common who has made repairs to the property of which his co-tenant has taken the benefit limited to an equitable right to an accounting which can be asserted only in a suit for partition; he does not acquire a lien or charge on the property itself. Even if the respondent had acquired an equitable charge on W.Z.'s interest, of the Land Titles Act provides in plain words that as purchasers from a registered owner the appellants (fraud having been negatived) would take free from such a charge unless registered, even if they had notice it.
The fact that the agreement was expressed to be binding upon the assigns of the parties does not assist the respondent, since the covenant to pay for repairs, being positive, would not run with the land and there is no question of novation.
............
SALE-Conditional sale - Agreement of sale not registered-Vendor's name affixed to cowl under engine hood- Whether "plainly attached" within 12 the Conditional Sales Act, R.S.S. 1953, of The Conditional Sales Act (R.S.S. 358) is sufficiently complied with if, at the time the conditional sale of an automobile, there is affixed to the automobile, on the cowl under the engine hood, a decal or sticker, oval shape, about four inches long by one and one-half inches wide, bearing the words "Sold by Canadian Motors Limited, Ford and Monarch Dealers, Regina".
The name of the vendor is thus "plainly attached" to the automobile within the meaning the section.
SHIPPING-Privilege - Materials fornished for construction of four ships-Conservatory attachment-Privilege claimed on ships-Arts. 1983, 2888 By a contract sale, the respondent sold to the appellant certain equipment to be installed in four ships being constructed by the appellant, for a price of $415,276.49 payable in five instalments.
Prior to the institution of this action brought by the respondent to recover a balance of $48,611.18, now reduced to $44,832.16, owing under the contract, two of the ships had been completed and delivered to the mise-en-cause.
was accompanied by a conservatory attachment on the two remaining ships to protect the privilege claimed under art. 2383 SHIPPING-Continued
C.C. The privilege was maintained the trial judge and by a majority in the
Court of Appeal.
be dismissed. Per Kerwin C.J. and Abbott
J.: There was one contract of sale for a single price and not four separate sales for four separate prices. Therefore, question of the apportionment or imputation of payments could arise.
privilege is indivisible in its nature.
The last paragraph art. 2383 C.C. refers in terms to a single ship, and where, as here, materials are sold for a single price and used in the construction more than one ship, it may well be that the privilege can only be exercised upon each ship to the extent of that portion of the price assignable to the materials used in that ship.
In the present case, it was established that the portion of the price represented by the equipment installed each ship was $103,819.12.
The claim for the much smaller amount is secured privilege upon each of the remaining ships.
Per Taschereau and Locke JJ.: There was but one contract of sale affecting the four ships, there was but one debt, and there was no imputation of payments.
Since the privilege is indivisible in its nature, if the privileged object fractioned, each part of the object guarantees the whole debt.
Consequently the privilege covered the four ships.
Since the debt is only $44,832.16, it follows that it is guaranteed by privilege on the two remaining ships and the question does not arise as to whether one or two ships could guarantee by privilege the totality of the debt of $415,276.49, if it had remained unpaid.
et at
......................
2.-Action passenger for personal injuries due to negligence of ship's servant
-Condition limiting shipowner's liability printed on back of passenger's ticket-Passenger not reading ticket-Whether reasonable attempt to bring condition to passenger's attention. The plaintiff and his family boarded a ship operated by the defendant company in the early hours of the morning.
There was no ticket-office on shore, and the plaintiff bought his ticket after he was on board.
The ticket bore a notice on its face, in red print, to the effect that it was subject to the conditions printed on the back, and on the back was a condition relieving the defendant from any liability for injury, even if it resulted from the negligence of the defendant's servants.
The plaintiff's evidence was that he knew that there was writing on the ticket, but had not read it or looked at the back.
plaintiff was seriously injured, as a result of the negligence of a steward on the ship.
Held (Rand and Cartwright JJ. dissenting):
The defendant was not liable.
There being no law that prevented the carrier from entering into an agreement with a passenger which would relieve it from liability
SHIPPING-Concluded injuries caused by the negligence of its employees, the question to be determined was whether the defendant had done what was reasonably sufficient to bring the limitative condition to the buyer's notice, and this was a question of fact. Grand Trunk Pacific Coast Steamship Company Simpson (1922), 63 S.C.R. explained and distinguished. The trial judge had found that the form of the ticket was a reasonable attempt to bring the conditions under which he would be carried to the attention the plaintiff, and this finding was conclusive.
There was no evidence to support the further finding at the trial that the plaintiff had no reasonable opportunity to read the ticket.
His acceptance of the ticket without protest, and embarking upon the voyage, precluded him from now reprobating its terms on the basis that he had not read it.
Grand Trunk Radway Company of Canada v. Robinson, A.C. 740; Hood Anchor Line, [1918] A.C. 837, quoted and applied; Nunan Southern Railway Company, K.B. 703 at 707, approved; Parker The South Eastern Railway Company (1877), C.P.D. 416 at 423, doubted.
Per Rand and Cartwright JJ. (dissenting)
: In the circumstances of this case, it could not be said that the defendant had taken reasonable steps to bring notice of the condition to the attention of the plaintiff. STATUTES-1.-Act amend the Income Tax Act and the Income War Tax Act, 1949, 2nd sess. (Can.), 25, s. 49......... Administration Act, R.S.B.C. 1948 ... ... ...........
... .. .. ... ... . Bankruptcy Act, R.S.C. 1952, ss. 41(4), 95, 155(4), (6)............... Bills of Exchange Act, R.S.C. 1952, 15 ..............................
Act, 1867, s. .... See 1. -Canaca,,Evidence
Act, R.S.C. 1927, 59,S.9...........................
Canadian Commercial Corporation Act, 1946 (Can.), 10 VI, 40, ss. 8,9, 10,15 ........................
Combines Investigation Act, R.S.C. 1927, 26, as re-enacted 1952, c. 39, s. 3 .......... STATUTES-Continued
9.-Companies Act, R.S.O. 1950, c. 59, ss.
78,96.........................
10.-Companies Act, R.S.C. 1952,
11.-Conditional Sales Act, R.S.S. 1953,
858, s. 12.......................
12.-County Courts Act, R.S.N.B. 1952,
45 ..............................
13.-Criminal Code, R.S.C. 1927,
69 (1), (2), 260 (a), (c), 1014(2)...
Criminal Code, R.S.C. 1927, as. 69(2), 260(a), (c)...............
660 .............................
Criminal Code, R.S.C. 1927, 86, ss. 923, 944, 1014 (2) ...........
17.-Criminal Code, R.S.C. 1927, 86, ss.69, 852.........................
18.-Criminal Code, R.S.C. 1927, s. ............................
See 8.
19.-Criminal Code, R.S.C. 1927, ss. 471 (c)(e), 578...............
See 9.
20.-Criminal Code, R.S.C. 1927, 86, s.201(a)(i)and (ii)................
22.-Criminal Code, 1953-54 (Can.), as. 467, 478.......................
23.-Criminal Code, 1953-54 (Can.),
170, 176....................
24.--Criminal Code, 1958-54 (Can.).
a.598(1)(a).......................
25.-Crown Lands Act, R.S.M. 1940, 48,
2(d), 5(d)......................
STATUTES-Continued
26.-Dominion Succession Duty Act, !940- (Can.), 14, 8(1)(i), 3(4), 4(1), 6(1).............................
27.--Evidence 14-15 Vict. (Imp.), 99...............................
28.--Evidence Act, R.S.O. 1897, Vol. 3, Part XXIII.......................
29.-Excise Tax Act, R.S.C. 1952, 100, s.57.............................
30.- Excise Tax Act, R.S.C. 1927, 179, 80A............................
31.- Families Compensation Act, R.S.B.C. 1948, 116.......................
33.- Highway Traffic Act, 1.S.M. 1940, c.93.............................
34.-Highway Traffic Act, R.S.O. 1950, 167, a. 43(1) ......................
35.- Immigration Act, R.S.C. 1952, 825, 89, 61......................
37.- Income Tax Act, 1948 (Can.), 52, s. 11(1)(j)........................ 38.- Income Tax Act, 1948 (Can.), 52, s. 95A, enacted 1950, 40, s. 32.... 889 39.-Income Tax Act, 1948 (Can.), c. 52, s. 95A, enacted 1950, 40, 32.... 906 40.- Income War Tax Act, R.S.C. 1927, c. 97,s.6(1)(d)................... 41.-Indian Act, R.S.C. 1952, c. 149, ss. 2(1)(g), 86(1)(b), 87, 88, 89..... STATUTES-Continued
42.-Insurance Act, R.S.O. 1950, c. 188, ss. 197, 211, 214....................
43.-Interpretation Act, R.S.B.C. 1948,
1 ...............................
44.-Judicature Act, R.S.O. 1950,
.......................
45.-Judicature Act, R.S.O. 1950, 190, s.63.............................
46.-Judicature Act, R.S.O. 1950, 190, s.28(1)...........................
47.-Juvenile Delinquents Act, R.S.C.
1952, 160........................
48.-Land Registry Act, R.S.B.C. 1948, c. 171, s. 38 (1), cls. (a) to (j) ........ 819
49.-Land Titles Act, R.S.A. 1942, 205, s.189............................
50.- Manitoba Farm Loans Act, R.S.M.
51.-Militia Pension Act, 1946 (Can.), c.59 ..............................
52.-Moratorium Act, R.S.S. 1953, 98
......
53.-Motor Vehicles Act, R.S.Q. 1941,
142, s.58..........................
54.-Municipal Act, R.S.O. 1950, 262
..................................
55.-Municipal Districts Act, R.S.A.
56.-Municipality of Metropolitan Toronto
Act, 1953 (Ont.), 73...............
57.-Negligence Act, R.S.O. 1950, 252
......................
58.-Power Commission Act, R.S.O. 1950, c.281.........................
STATUTES-Continued
59.-Public Commercial Vehicles Act, R.S.O. 1950, 304 ..................
60.-Public Health Act, R.S.O. 1950, 306, sched. B, 7...................
61.- Public Health Act, R.S.O. 1950, 806, s. 143........................
Public Utilities Act, R.S.O. 1950, 320 ...............................
Quieting Titles Act, R.S.B.C. 1948, 282 .............................
64. -Railway
Belt Re-Transfer Agreement Act, 1930 (B.C.), 60 ..............
65.- Railway Belt Re-Transfer Agreement Act, 1980 (Can.), 37 ..............
66.- Railway Belt Re-Transfer Agreement Act, 1930 (Imp.), 26.............. 67.-Real Property Act, R.S.M. 1940, 178...............................
68.- Reciprocal Enforcement of Maintenance Orders Act, R.S.O. 1950, 334, ss. 5 ...... 69.- R.C.M.P. Act, R.S.C. 1952, 241 ..................................
-Rural
Municipality
(Sask.), 32; 1950 (Sask.), 87.. . -Succession
Duty Act, 1989, 2nd sess. (Ont.), 1, ss. 1(f) (i) (iv), 2(1)
Summary Convictions Act, R.S.O. 1950, 379, 8...................
Supreme Court Act, R.S.C. 1952, 259, ss. 2(b), 41(1)................. 74.- Supreme Court Act, R.S.C. 1952, 259, s. 55.........................
Supreme Court Act, R.S.C. 1952, 259, Rule 142......................
STATUTES-Concluded
76.-Supreme Court Act, R.S.C. 1952,
44..........................
Supreme Court Act, R.S.C. 1952,
259, s. 36 (a), as re-enacted 1956, c. 48, s.2..............................
78.-Trade Union Act, R.S.S. 1958, c.
See 1.
79.-Trade Union Act, R.S.S. 1958,
259, s. 8(1)(c).....................
80.-Trustee Act, R.S.M. 1940, 221 408
81.-Trustee Act, R.S.O. 1950, 400, s.
87 ................................
Water Rights Act, R.S.S. 1940, s.8..............................
Workmen's
SUCCESSION DUTIES- TAXATION-Assessment
- Income Tax
-Dividends from taxable Canadian corporations paid Trustee of Investment Trust-Net paid Trust's beneficiaries-Whether sums so received taxable-The Income Tax Act, 1948 (Can.), ss. 27 (1), 58, 60.
Under an agreement entered into between the respondent as administrator, the Yorkshire and Canadian
Trust Ltd., as trustee, and the holders certificates a fixed investment trust known as "Trans-Canada Shares Series
'B' ", the respondent purchased a fixed number shares in fifteen Canadian companies (called a "trust unit") and delivered them to the Trustee which registered them in its own name. Pursuant to the agreement the Trustee then issued certificates representing one thousand undivided one thousandths interests in the trust unit to the beneficiaries of the trust. The Trustee, as the registered owner of the company shares received all dividends paid thereon and after deduction of certain charges paid the balance to the beneficiaries the
Trust. In the respondent purchased on its own account one thousand "Trans- Canada Shares Series 'B'
" and subsequently received from the Trustee payment of the net income earned by the trust unit.
In its income tax return it claimed this amount as a deduction under 27 (1)
The Income Tax Act (1948, of 52).
The deduction was disallowed by the An appeal by the respondent was disallowed by the Income Tax Appeal Board but on further appeal to the Exchequer Court of Canada was allowed. Held (Rand and Estey JJ. dissenting): That the dividends received by the respondent were in the words of (1) of The Income Tax Act received "from a corporation that (a) was resident in Canada in the year and was not by virtue a statutory provision, exempt from tax under this Part for the year" and the mere interposition of a trustee between the dividend-paying companies and the beneficial owner of the shares did not change the character of the sum.
Per Cartwright and Fauteux JJ.: The fact that Parliament, by of 27, added s-s (to 58 of the Act), prescribing an arithmetical formula apportioning between a trustee and an individual beneficiary the dividends from taxable corporations received in the first instance by the trustee and did not add a corresponding sub-section as to a corporate beneficiary, does not constitute a sufficient reason for construing (1) in a manner contrary to the plain meaning the words in which it expressed.
Per Rand J. (dissenting)
: By a corporation must have "received a dividend from a corporation" and on the face of it the respondent did not receive a dividend from the underlying companies.
In re Income Tax Acts, 1924-1928, St. R. Qd. 276. v. Archer-Shee A.C. 844, distinguished. In the light of the precise language of 58 and of Income Tax Act and the scheme which it embodies, the respondent could not be said to have "received" from the underlying companies the dividends which were paid to the Trustee. Per Estey J. (dissenting): trust agreement read as whole does not contain language to support a construction that either a legal or equitable right created in favour of the certificate holders in respect the dividends received the Trustee from the underlying companies. Baker v. Archer-Shee, supra, distinguished. Judgment of the Exchequer Court Ex. C.R. 292, affirmed.
2.-Assessment, municipal - Hotel - Whether assessment as hotel or lodging-house -Transient and permanent guests-Portion of building rented to tenants-Ss. 357 and 375(B) of Halifax City Charter. The appellant, who operates a hotel in Halifax, was assessed for business tax under 357 the city charter for the whole building rented tenants. were 25 permanent guests residing therein and occupying of the bedroom area. These received the same facilities and services as transient guests. although some had their own furniture. The appellant contends that it should have been assessed under 375(B) of the charter since its entire business was within its description, and alternatively that the rooms of the permanent guests should have been excepted.
By 357, a business tax payable by the occupier of a real property for the purposes of any trade, profession or other calling carried payable by such occupier, whether as owner, tenant or otherwise, and whether assessed as owner of such property real property tax or not.
375(B) deals with an occupier conducting the business of "a lodging-house or rooming-house renting rooms for living purposes or sleeping purposes only or who engaged in the business providing meals for gain in such real property and who has in any more lodgers, roomers, or boarders".
resulting tax under the latter section less than under 357.
The appeal from the assessment was dismissed by the Court of Tax Appeals and by the Supreme Court of Nova Scotia in banco. Held (Rand and
Cartwright JJ. (dissenting)
): The appeal
Per Kellock, Locke and Abbott JJ.: The business of the appellant was not that of a lodging-house rooming-house, but in so far as the words
"renting rooms for living purposes or sleeping purposes or providing meals for gain"
are concerned, they describe one the functions of a hotel, and therefore, of the
The statute to be applied distributively.
It contemplates that if any part of a building not occupied for one other of these purposes, such part would fall outside the section.
Per Rand and
Cartwright JJ. (dissenting)
: The language of 375(B) excludes the appellant's business.
neither keeps a lodging-house nor conducts the business a rooming-house nor is it the keeper either kind of house.
The words "or who is engaged in the business of providing meals for gain in such real property" cannot be taken independently.
They do not describe a restaurant. They refer back to the real property occupied by a person carrying on the business of lodging-house or rooming-house.
Except as to the rented portions, the appellant was in possession the entire building and, therefore, within
3.- Income tax-Wholesale news distributor-Whether reserve for loss on returns of periodicals deductible-Income War Tax
Act, s. 6(1)(d).
The appellant, a wholesaler, distributed magazines, periodicals and books to retailers of the same on the basis that the latter were entitled to full credit for the return unsold goods within a specified time.
On its books, it treated the deliveries as outright sales.
For income tax purposes, it set up a "reserve" for loss on returns which represented the profit element in the sale value of goods delivered during the year which it estimated would be returned to it during the three months following the end its fiscal year. The Minister disallowed the deduction this "reserve" as prohibited under 6(1)(d) of the Income War Tax Act.
It was allowed by the Income Tax Appeal Board and this decision was reversed by the Exchequer Court.
Held (Kerwin
C.J. dissenting): That the appeal should be allowed. Per Kellock J.: The deliveries made by the appellant were not "on consignment" nor were they on the basis "sale or return". The property passed to the retailers upon delivery.
But since there was a right return, the sales wera therefore subject to a condition subsequent with the result that the property would re-vest in the appellant. Accordingly, the appellant was not entitled to set up any reserve profits, but should be entitled to deduct the estimated sales value itself, subject, when the actual figure is ascertained, to adjustment when the returns are actually made.
Cartwright and Fauteux JJ.: The transactions were not outright sales or deliveries "on consignment" but were deliveries a "sale or return basis".
The property the goods did not pass to the retailers nor were they liable for the amounts covering the deliveries other than for the goods sold or not returned within the agreed period. The claim for deduction has been established although the true nature the transactions was not shown by the appellant's books.
In computing the appellant's income, there should be excluded from the total the sales any amount respect of goods delivered and in the hands of retailers at the end of the fiscal year, for the purchase price which the retailers were not then liable and, from the total purchases, any amounts as the purchase price such goods and the amounts set up in the accounts the appellant for the year as a reserve for loss on returns should deleted.
Per Kerwin C.J. (dissenting)
: The appeal should be dismissed for the reasons given by Cameron J. NEws Alimony - Maintenance of child-Monthly payments ordered by decree-Whether lump sum paid arrangement between parties in full settlement deductible-Income Tax Act, 1948, (1) (j). Under a divorce decree, the respondent was ordered to pay to his wife a month for the maintenance their daughter.
Subsequently, the wife accepted a lump sum of $4,000 in full settlement all future payments.
The Minister disallowed the deduction this lump sum from the respondent's income.
Both the Tax
Appeal
Board
Exchequer Court held the amount to be deductible.
Since the $4,000 was not an amount paid "pursuant" to the divorce decree but was paid by arrangement between the respondent and his wife, it was not deductible under s. 11(1)(j) of
Tax
5.-Sales and Excise taxes-Whether retailer of "special brand" tires made another company is a manufacturer-Jurisdiction of the Tariff Board-Excise Tax Act,
R.S.C. 1952, 100, 57.
On a reference to the Tariff Board by the Deputy Minister of National Revenue (Customs and Excise)
pursuant to 57 of the Excise Tax Act,
R.S.C. the Board declared that the T. Eaton Co. Ltd. was not the
"producer or manufacturer" two "special brand" automobile tires sold by it and manufactured exclusively for it by a rubber company, and was not therefore liable excise or sales tax on the sale of such tires.
The Exchequer Court affirmed the declaration as well as the authority of the Board to hear the reference.
should be allowed and the judgment of the Exchequer Court and the declaration of the Tariff Board set aside.
The Board had no jurisdiction to make the declaration, and the Board, as well as the Exchequer
Court and this Court, was precluded from considering the merits of the issue.
of the Excise Tax Act, which gives the
Board power to decide whether any tax is payable on an article and, if what rate of tax is payable, does not give the Board power to decide whether a particular person is a person upon whom a tax is imposed respect of an article.
That question is an issue between that person and the Crown.
To permit third parties to intervene in such an issue would be a departure from the general system the law.
T. LIMITED.........
6.- Excise tax-Sheepskin processed into
"mouton"-Whether fur or not-Excise Tax
Act, R.S.C. 1927, 179, s. 80A.
appellant purchased the raw skins of mature shearlings (a sheep that has been shorn once) of the merino type and processed them into "mouton".
The Crown claimed that "mouton" was a fur and therefore subject to excise tax under 80A the
Excise Tax Act, R.S.C. 179.
This claim was allowed by the Exchequer Court.
Held: The appeal should be allowed.
A consideration all the evidence and the authorities and dictionary definitions brings one to the conclusion that neither in technical terms nor in common speech nor that of those who deal in such products would the skin of a mature merino sheep with the wool or hair attached to it be described as a fur.
It does not appear to be possible to take an article or substance which not fur and by dressing and dyeing it to produce a dressed or dyed fur. The merino sheep wool-bearing animal and not a fur bearing one.
FUR 7.- Will of life income-Power to request payment of capital-Power never exercised-Whether competent to dispose of capital-General power appoint or dispose of property-The Dominion Succession Duty Act 1940-41 (Can.), 14 as amended, 8(1) (i), 8(4), 4(1) and 6(1). By his will the husband the deceased left the residue of his estate to his trustees to pay the net income thereof to his wife during her lifetime and "to pay to the portion of the corpus thereof as she may from time to time and at any time during her life request or desire".
Upon the death of the wife the residuary estate was to be divided equally between his children. wife never made any request or expressed any desire to be paid any of the corpus nor did she ever receive any portion of it. Following her death on March 8, 1953, the Minister, in computing the value of her estate, included therein the amount then comprising the residue of her husband's estate on the ground that by virtue of 3(4) the Dominion Succession Duty Act, since the wife had at the time of her death a general power to appoint or dispose of the corpus, there was deemed to be a succession in respect of such corpus.
contended that the wife did not have a general power of appointment but only a special restricted power to require the residue to be paid to her. The Exchequer Court held that she had a general power appointment.
be dismissed.
Per Kerwin C.J. and Taschereau and Fauteux JJ: The wife was "competent to dispose" of the residue of her husband's estate within s. 3(1)(i) of the Act, because she had a general power to dispose it, since "general power" includes under s. 4(1) of the Act "every power or authority enabling the donee . . . to appoint or dispose the property as he thinks fit".
By virtue of 3(4) there was deemed to be a succession when a deceased held such a power.
(In re Penrose, Ch. 793, referred to). Per Rand J.: When a donee can require the whole the residue to be paid to him and thereupon dispose of it as he sees fit, he has power or authority to dispose of the property as he thinks fit within the meaning of 4(1) the Act. Per Cartwright J.: Semble, the power given to the wife was not strictly speaking a general power appointment but she was "competent to dispose" of the residue of her husband's estate.
8.- Succession duties-Valuation of property-Creation of trust comprising shares in incorporated company-Subsequent redemption of shares and reinvestment of moneys TAXATION-Concluded trustee-Increase in value of shares bought on reinvestment-The Succession Duty
Act, 1989, 2nd sess. (Ont.), 1, ss. 1(f) (i),
2(1)(d)(i).
settlor conveyed a trustee a block of shares in B. Co., to be divided into equal parts for the four children of the settlor. In B. Co. redeemed the shares, and the trustee purchased shares in G.W. Co. in substitution for them.
The settlor died in 1946, at which time the shares in G.W. Co. had greatly increased in value. Held: The value of the "disposition" for succession duty purposes was the amount received by the trustee on the redemption of the shares in B. Co., rather than the value, as at the date of death, of the shares in G.W. Co. The execution of the trust agreement, coupled with the transfer the shares, constituted a "disposition" within the meaning of 1 (f)(i).
of The Succession Duty Act, and by 2(1)
(d)(i) the value of that disposition was the amount money into which the shares had been converted during the lifetime the deceased.
The subject-matter the disposition, or the "property", within the meaning of the clauses referred to, was the shares in B. Co., and not a merely equitable interest in the shares or their proceeds.
Succession Duties-Settlement of personal property for benefit of life tenant and remaindermen-Whether life tenant has "the beneficial interest"-The Succession Duty Act,
1989, 2nd sess. (Ont.), 1, s. 1(f)(iv).
The trustee under the settlement above referred to was directed to pay the income on each share to the settlor child for life, and upon the child's death to pay the capital as directed in the trust deed.
Held: Each child, during his life, had
"beneficial interest" in the shares (or their proceeds)
within the meaning of 1(f)(iv), and hence payments of income to him were excluded from income by the clause, and were not dutiable.
could not be successfully argued that because of the interests the persons (as yet unascertainable) who would become entitled on the death of the child, the latter had only "a" beneficial interest, rather than beneficial interest.
TRUSTS AND TRUSTEES - Trust assets including shares in incorporated company-Issue of stock dividend company as means of distributing accumulated profits
-Redemption of shares-Whether shares, and proceeds of redeemed shares, income capital in hands of trustees-The Income
Tax Act, 1948 (Can.), s. 95A, enacted
1950, 40, s. 32. A company incorporated under the Ontario Companies Act obtained supplementary letters patent authorizing the creation of 500,000 new preference shares, redeemable by the company on notice to the shareholders, and, on redemption, to be cancelled and not reissued.
These supplementary letters were obtained pursuant to a decision by the com- TRUSTS AND TRUSTEES-Concluded pany to avail itself of 95A of the Income Tax Act, 1948, as enacted in as a means of making available to the shareholders a large undistributed surplus. After payment of the tax provided for that section the company, pursuant to bylaws, issued 240,000 preference shares "as fully paid and non-assessable", and in the following two years about one-third these shares were redeemed, at various times. block of shares in the company was held by the trustees of an estate, and 64,000 the new shares were issued to the trustees as a stock dividend; of these about 18,000 were subsequently redeemed.
trustees received the shares so issued, and the proceeds of those that were redeemed, as capital of the estate, for the benefit of the remaindermen, and not as income for the benefit the life tenants. Once shares were issued as paid-up, the portion of the undistributed profits appropriated for the purpose of paying them up immediately became capitalized, and the shares were themselves an addition to the capital stock the company.
2.-Trust assets including shares in incorporated company-Issue of stock dividend by company as means of distributing accumulated profits-Redemption ofshares-Whether proceeds income or capital in hands of trustees -The Income Tax Act, 1948 (Can.), 62, s. 95A, enacted 1950, 40, s. If a company incorporated under the Dominion Companies Act elects under of the Income Tax Act, 1948, as enacted in 1950, to pay tax on its undistributed income, and thereafter creates preference shares, issues them to the shareholders as a stock dividend, and immediately redeems them out of the undistributed profits, the proceeds of the redemption reach the shareholders not as tax-free income but as not-taxable capital. trustee, therefore, who, holding shares the company as a trust asset, receives moneys in redemption of preference shares so issued, receives them as capital of the trust rather than as income. From the time that the trustee becomes entitled to receive a certificate for these shares their status, as between the settlor and the remaindermen under the trust, does not differ from that of the shares originally received by the trustee, and a capital asset (the shares) in the hands of a trustee will not be transformed into income merely because the company uses surplus profits to redeem the shares. Re Fleck, O.R. (affirmed O.W.N. 260), overruled.
WILLS-Donation - Validity - Mental incapacity-Raising of prima facie presumption of-Burden of proof required by Art. 986 This was an action to annul a deed WILLS-Continued donation inter vivos and a will taken by the respondent on the ground that the deceased had been of unsound mind when she executed them.
The trial judge dismissed the action and this judgment was reversed by a majority in the Court
Appeal. Held: The appeal should dis- The medical evidence to the that the deceased was in a state of extreme mental senility was sufficient to raise a prima facie presumption of mental incapacity and to cast upon those supporting the donation and the will the burden of displacing it by convincing proof that the deceased at the time was able to give the valid consent required by Art. 986 C.C.
The presumption has not been displaced
Construction-Direction to trustees permit beneficiaries have "use and enjoyment" of property "as long as either of them clause his will, directed his trustees to permit his son and his wife "as long as either them shall occupy the same to have the use and enjoyment of" a named property.
By clause he provided in identical terms for another son, and his wife, respect a different property.
At the time the will was made, both and B were in occupation the properties designated for their benefit, but before the testator's death B and his wife had left the property referred to in clause
By clause the
WILLS-Concluded testator, "subject as aforesaid", devised and bequeathed all his property to trustees on trust to convert and hold the proceeds for his children, their wives and issue.
Held, the effect of clauses and 7 was to give to the beneficiaries named a licence to occupy the properties mentioned personally, whenever and so long as they desired, but no other right to the rents profits of the properties.
B and his wife, although they were not in occupation at the time the testator's death, had a right at any time in the future, if they desired to do so, to occupy the property, and to have the use and enjoyment of it as directed by clause 7.
at WORDS AND PHRASES - "Crown Lands" (The Crown Lands Act, 1934 (Man.), 88, s. 2(d))......................
"Due Examination"
Public Health Act, R.S.O. 1950. 806, sched. B, s. 7)...............................
"Final Judgment" (Supreme Court Act, R.S.C. 1952, 959, s. (1)) .... 4.- "Insured" (The Insurance Act, R.S.O. 1950, c. 183, s. 914) .................
Cases cited
- Carlisle and Cumberland Banking Company Bragg Carlisle and Cumberland Banking Company Bragg, supra
- A.C. 545 A.C. 545 564
- Equitable Life Assurance Society of the United States v. Larocque scr-1942-205
- C.P.R. v. Kelly scr-1952-1-521
- Masella v. Langlais scr-1955-263
- 15 W.W.R. 442 15 W.W.R. 442
- A.C. 837 A.C. 837
- Baker v. Archer-Shee Baker v. Archer-Shee, supra
Statutes and regulations cited
-
- s. 7
- 79
- 5(d)
- s. 5(d)
- ss. 1(f)
-
- s. 3(1)(i)
- s. 4(1)
- s. 1(f)(iv)
-
Unresolved citations
- s. 38(1)
- ss. 4
- 5 of the Reciprocal Enforcement of Maintenance Orders Act
- s. 214 of the Insurance Act
- s. 20 of the Municipal Act
- s. 189 of the Municipal Districts Act
- s. 8 of The Water Rights Act
- Section 8 of The Water Rights Act
- Section 43 of the Militia Pension Act
- para. (b)