The Ontario Law Reports: Cases Determined in the Court of Appeal and in the ...

696

therein referred to.

MUNICIPAL CORPORATIONS. | plication to sec. 129, sub-sec. 3 (a),
1. Quo Warranto Proceedings and the statutory declaration
Cross-examination on Affidavits-
Master in Chambers-Powers of.]
Semble, that sec. 93 of the Con-
-In proceedings instituted under solidated Municipal Act, 1903, to
the Con. Mun. Act, 1903, 3 Edw. the effect that when joint owners
VII. ch. 19 (0.), to unseat a or occupants are rated at an
member of a municipal council, amount sufficient, if equally.
the cross-examination of affiants divided between them, to give a
on their affidavits can only be qualification to each, then each
had on leave obtained therefor shall be deemed rated within the
from the Judge or Master in Act, otherwise none of them shall
Chambers or the officer before be deemed so rated, does not
whom the proceedings are being apply to the qualification of
carried on, who must take such candidates.
cross-examination himself, no
authority being conferred on him
to direct any one else to do so.
Rex ex rel. Beck v. Sharp, 267.

Where persons elected as con-
trollers of a municipality, when
purporting to make the declara-
tion required by sec. 311 of the
2. Controllers Qualification
Consolidated Municipal Act, 1903,
for Office Declaration of Quali as to their property qualification,
for Office Declaration of Quali omitted the statement as to en-
fication Commissioner for Taking omitted the statement as to en-
Oaths and Affidavits-Consolidated cumbrances contained in the form
Municipal Act and Amendments- embodied in the section, and in
Canada Evidence Act. The place of it stated that they were
Act.]-The
statutory declaration as to the "in the actual occupation of the
possession of the necessary quali- advantage of the provisions of
said premises," intending to take
fication for office required by sec.
129, sub-sec. 3 (a), of the Con- sec. 76, sub-sec. 1, by which the
solidated Municipal Act, 1903, 3
value of the property, if occupied,
Edw. VII. ch. 19 (O.), as amended if otherwise sufficient, shall not be
by 4 Edw. VII. ch. 22, sec. 4 (O.),
affected or reduced by the in-
from every candidate for the
cumbrances:-
office of mayor, reeve, etc., in
Held, that this was a sufficient
cities, etc., may be made before a compliance with the provisions
commissioner for taking affidavits, of the Act, and the declarants
and need not be expressed in the were not to be prejudiced by the
form of a statutory declaration fact that the Legislature had
under the Canada Evidence Act, failed to alter the form of declara-
R.S.C. 1906, ch. 145, sec. 36. tion in sec. 311, suitably for such
Section 315 of the first mentioned a case.
Act, which requires the head and Held, also, that the fact that
other members of the council and in the declaration in referring to
the subordinate officers of every their qualification, the declarants
municipality to make their de- had used the present tense in-
claration of office and qualifica- stead of referring to the time of
tion "before some Court, Judge, the election, was not a fatal
police magistrate, or other justice objection, and an opportunity
of the peace, having jurisdiction should be given to them to file a
in the municipality." has no ap- declaration in the proper form.

Rex ex rel. Milligan v. Harrison VII. ch. 4, sec. 24 (0.).]—In
et al., 475.
voting on a local option by-law,
3. Negligence "Lock-up"-Lack under the Liquor License Act,
of Proper Heating-Duties of Con- which requires the assent of the
stable Caretaker Acting in electors before the final passing
Governmental Capacity-Consoli- thereof, the voters' lists, when
dated Municipal Act, 1903-3 revised and certified by the Judge,
Edw. VII. ch. 19, secs. 493, 495, under the Ontario Voters' Lists
520, 578, (0.).1-A municipality Act, 7 Edw. VII. ch. 4, sec. 24,
which maintains a "lock-up" is are (with certain exceptions speci-
not liable in relation to prisoners fied in the section) final and con-
who complain of negligence on the clusive evidence that all persons
part of those in charge thereof, named therein, and no others, are
as, for example, in this case, of qualified to vote on the by-law.
causing illness through lack of Voting on such a by-law is an
proper heating. In maintaining "election," and a motion to quash
such a "lock-up," a municipality the by-law is a "scrutiny," within
is not exercising its corporate the meaning of the 24th section.
powers for the benefit of the
Re Cleary and the Township of
inhabitants in their local and Nepean (1907), 14 O.L.R. 392,
particular interests, but is per- not followed. In re Mitchell and
forming a public service entrusted Corporation of Campbellford, 578.
Election-Declaration

to it in the interests of general 5.
A constable in

government.

Joint

charge of such a a lock-up." Qualification - Invalidity
though appointed by the munici- Property Qualification
Assessment Fixed Assessment-
pality, is not to be regarded as the
servant or agent of the corpora- Including School Taxes-Invali-
tion, but as a public official, for dity of By-law Conflicting
decisions civil Interest-Contract with Corpora-
responsibility does not attach to tion Corrupt Practices-Evi-
the municipality.

whose acts or

Per MABEE, J.:-In this case the
negligence complained of was that
of one who, though a constable,
was acting entirely as servant of
the corporation, employed in tak-
ing care of the municipal buildings
of which the "lock-up" was a
part, and the defendants were
therefore liable.

dence-Powers of Master in Cham-
ch. 19, secs. 129 (3a), 204, 311,
bers-Con. Mun. Act, 3 Edw. VII.
The Consolidated Municipal Act,
93, 591 a (g), 219 (2), 232, 248.]-
1903, 3 Edw. VII. ch. 19, sec. 129
(3a), as amended by 4 Edw. VII.
ch. 22, sec. 4, requires every can-
didate for the office of mayor or
councillor in a town to file in the
office of the clerk of the muni-

An answer of a jury to a ques- cipality a statutory declaration
tion submitted may be rejected of qualification in accordance with
as insensible or at unreasonable the form contained in sec. 311 of
variance with the other answers. the Act or to the like effect, in
Nettleton v. Town of Prescott, 538. default of which such candidate
4. Local Option By-law-Motion shall be deemed to have resigned
to Quash-Adoption by Electors- and his name shall be removed
Voters' Lists-Finality of from the list of candidates. By
Meaning of "Scrutiny"-7 Edw. 6 Edw. VII. ch. 34, sec. 10, sub-

47-VOL. XVI. O.L.B.

Regina ex rel. Macnamara v.
Heffernan (1904), 7 O.L.R. 289,
followed.

secs. 1 and 2, the form of declara- proper school rates levied upon
tion is amended by adding to it the true assessable value of the
statements that the candidate is property, and that the councillor's
"not a citizen or subject of any qualification was insufficient.
foreign country," and that the
estate in respect of which he
qualifies is assessed in his name,
or in the name of his wife, on the
last revised assessment roll of the
A councillor had done work for
municipality, to the value speci- the school board which had to be
fied in the declaration. Neither done to the satisfaction of the
of these requirements was com- town engineer, the account for
plied with in the declarations filed which was not passed and paid
by the persons elected as mayor
until February, 1908:-
and councillors of a town:-

Semble, that the declaration of
qualification is invalid if made

before the town clerk.

A councillor was jointly as-
sessed with five other persons as
tenant of a property assessed at
$6,780, so that his one-sixth share
was less than $1,200, being the
amount required by sec. 76, sub-
sec. 1 (b), read in connection with
sec. 93 of the Act:-

Held, that the qualification was
nsufficient.

Principle of Regina ex rel. Hard-
ing v. Bennett (1896), 27 O.R.
314, applied.

A councillor was a member of
partnership to which the town had
assumed to grant by by-law a
fixed assessment "for all purposes,
including school taxes":-

Held, that as a member of the
council he was in a position where
his duty might conflict with his
interest, and must therefore be
disqualified.

The mayor, as a member of the
Citizens' League, had entered into
a contract with the corporation,
under an indemnity given by the
league as to certain costs, by
which he was apparently liable
for the sum of $19.66:-

Held, that he was thereby dis-
qualified, and that to such a case
the principle "de minimis non
curat lex" does not apply.

Nell v. Longbottom, [1894] 1
Q.B. 767, followed.

In proceedings instituted under
the Municipal Act to unseat a
member of the municipal council,
the Master in Chambers has power
under sec. 248, as interpreted
by sec. 219, sub-sec. 2 of the Act,
to direct evidence as to the
alleged corrupt practices to be
taken before a county Judge.

Regina ex rel. Whyte v. McClay
(1889), 13 P.R. 96, followed.
Held, that such agreement was
ultra vires of the corporation
Rex ex rel. Beck v. Sharp (1908),
under sec. 591 a, clause (g), of the ante 267, distinguished. Rex ex
Municipal Act, that the partner- rel. O'Shea v. Letherby, 581.

ship firm was liable to an action See INTOXICATING LIQUORS, 1,
by the corporation to have the 2, 3, 4, 6.-STREET RAILWAYS, 4.

NEGLIGENCE.

the foreman of the defendants'

fendants, to prove the fact that
the defendants were indemnified

cision:-

1. Infant-Dangerous Machine
-Duty to Warn-Superintendence against any verdict that might be
-Workman's Compensation for In- given in favour of the plaintiff by
juries Act-R.S.O. 1897, ch. 160, a policy of insurance with an acci-
juries Act-R.S.O. 1897, ch. 160, dent and guarantee company.
sec. 3, sub-sec. 2.]-The plaintiff, a The trial Judge warned the plain-
boy under fifteen, was engaged by tiff that he must be prepared to
factory to help any one who take the risk of submitting the
needed help on a certain floor, evidence, and, in charging the
except one man who was doing jury, told them that it should form
piecework. He had been helping no element whatever in their de-
a man who was operating a stamp-
ing machine, to put plates through Held, that the evidence was im-
the machine, and the former properly admitted.
leaving for a few minutes, he took Held, also (ANGLIN, J., dissent-
hold of the press and endeavoured ing), that, by reason of the ad-
to get a plate out, and, apparently mission of the evidence, a “sub-
through his inadvertently touch-stantial wrong or miscarriage"
ing the foot press, the die came had been occasioned within the
down upon his hand, and he lost meaning of Con. Rule 785, and
three fingers. It was admitted that the defendants were entitled
that the machine was a dangerous to a new trial. Loughead v.
Collingwood Shipbuilding Co. 64.

machine:-

Held (CLUTE, J., dissenting),
that the defendants were liable 3. Independent Contractor-Li-
under sec.. 3, sub-sec. 2, of the ability-Natural Gas Company-
Workmen's Compensation for In- Exercise of Statutory Powers-Ex-
juries Act, R.S.Ö. 1897, ch. 160, plosion-Collateral Negligence.]—
inasmuch as the foreman, whilst The defendant company, acting
exercising superintendence, was within their corporate powers and
negligent in not pointing out to under the statutory powers con-
the plaintiff which of the machines ferred by R.S.O. 1897, ch. 200,
were dangerous, and cautioning sec. 3, and ch. 199, sec. 22, on
and instructing him as to them, such companies, instructed a con-
and, if it was intended that he tractor with whom they had a
should not attempt to operate any contract to do such work for them,
of them, expressly forbidding him to make connection with the place
to do so. Lawson v. Packard Elec-of business of the plaintiff's tenant
tric Co., Limited, 1.
for the supply of natural gas
The contractor's em-
2. Action for Indemnity Held thereto.
by Defendants-Evidence as to-ployees negligently allowed gas to
Improper Admission of New escape while constructing a trench
Trial "Substantial Wrong or for the service pipe from the de-
Miscarriage"-Con. Rule 785.]- fendants' main line, which had
In an action by a workman under been laid along a public street,
the Workmen's Compensation for thus damaging the plaintiff's pro-
Injuries Act, the plaintiff's coun-perty:-

sel was allowed, against the strong Held, that the defendants were
objection of counsel for the de- liable.

The statutory power to break
up and dig trenches in streets im-
plied the duty of seeing that the
gas was not allowed negligently to
escape in dangerous quantities,
which duty the defendants could
not rid themselves of by delegat-
ing it to another. Such negligence
was not merely collateral, but was
negligence in the very act the
contractor was engaged to per-
form for the defendants. Ballen-
tine v. Ontario Pipe Line Co., 654.

PARTIES.

See BANKS AND BANKING, 3-
COMPANY, 2-COSTS - SALE OF
LAND, 3.

PAROL EVIDENCE.
See INSURANCE, 2-SALE OF
LAND, 4.

PARTNERSHIP.

Assignment of Assets to Com-

See MOTOR VEHICLES-MUNI-
CIPAL CORPORATIONS, 3-RAIL- pany.]-SEE BANKS AND BANK-
WAYS, 2-STREET RAILWAYS, 1, 3. ING, 3.

PASSENGERS.

NEW TRIAL.

Fares of School Children.]-See

See NEGLIGENCE, 2-STREET STREET RAILWAYS, 4.
RAILWAYS, 3-WILL, 4.