THE

CANADIAN LAW TIMES.

VOL. VI.

AUGUST, 1886.

No. 10.

TA

ONTARIO LEGISLATION, 1886.

AXATION of Algoma Lands-Exemptions.-By chapter 6 of the Acts of last session, section 3 (1), "all lands within the Provisional Judicial Districts of Algoma and Thunder Bay, which are occupied as farming lands and bona fide used for farm purposes, shall be exempt from the said tax --a tax of one cent per acre. A similar Act was passed by the Legislature of Manitoba and was held by Chief Justice Wood to be invalid by reason of its discrimination. In Hudson Bay Co. v. Attorney-General (a), His Lordship says, "The exemption of 640 acres of land to residents is open to observation. Looked at in the light that all lands are to be taxed on an equal and uniform scale, basis or rule, even and universal in its application to the acreage of land, it is, I must confess, a little difficult on principle to justify this exemption. If every owner of lands were resident in the Province, the rule of equality and uniformity would not be violated; for all would be exempted alike. But the fact is, and was well known to the Legislature, that a large number of land owners were non-residents; and, as the proposition of the Legislature is to tax lands, not individuals, the result is that one person, because he happens to be a resident of Manitoba,

(a) Man. Rep. temp. Wood, at p. 220.

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26

although he owns 640 acres of land, is not taxed at all, while another person who owns 640 acres, but who happens to reside in Ontario or elsewhere out of Manitoba is taxed five cents an acre. This discrimination is irreconcilable with the plainest principles applicable to the exercise of the legislative powers of taxation by any enlightened and responsible Legislature, and affects injuriously, unjustly, and inequitably every non-resident land owner in Manitoba.

It was simply monstrous, while the property is, as a whole, treated as of one uniform value in the system of taxation proposed, to divide the owners into classes, and tax the property of the one class at one rate and that of another at a different rate, not on account of the difference in value, but simply because one owner happens to reside in the Province, and another without the Province, one in one latitude and meridian, and another in another latitude and meridian. In a legal and constitutional point of view, it would be just as sensible to make the discrimination rest upon the nationalty, the age or the colour of the owner, as on his residence or non-residence in Manitoba."

In the same spirit is the decision of Mr. Justice Crease of British Columbia (b), who held the "Chinese Regulation Act, 1884," to be invalid on several grounds, one of which was that it imposed a poll tax upon every Chinese and was therefore unequal in its operation.

The defence of the Act in question undoubtedly is—that the Legislature desires to encourage farming and the influx of a farming population. But we know of no sound reason for directly throwing the expense of public or municipal government upon one or more classes in order to benefit another class. Of a similar indefensible nature is the exemption from taxation of, and granting of bonuses to, manufacturers, who have no other inducement to commence business than the terms so offered to them.

Division Courts.-As usual, The Division Courts Act is largely amended. The jurisdiction is extended by section 6 of chapter 15 of the Acts of last session, by allowing a

(b) 2 B. C. L. R. 150.

combination of causes of action in tort with causes of action in contract, provided that the sum of $100 in the aggregate is not exceeded. A cause or causes of action under the jurisdiction limited to $60 (called class (a)) may be combined with a cause or causes of action under the jurisdiction. limited to $100 (called class (b)), and they may be disposed of in one action on two conditions. The first condition is that "the whole amount claimed in any such action in respect of class (a) shall not exceed $60. That is, as we understand it, that a plaintiff may sue for as many causes of action in tort as he pleases, as long as the amounts. claimed do not aggregate more than $60. The second condition is that the whole amount claimed in the action in respect of both classes (a) and (b) shall not exceed $100. If the action in tort, then, is for an amount equal to $60 the jurisdiction of the court is limited in contract to the amount of $40. The very peculiar proviso is added that in such an action, if nothing is claimed for tort the jurisdiction is limited to $100. The Act in this respect reads. as follows:-(4) "claims combining [classes (a) and (b)] may be tried and disposed of in one action

*

*

provided

*

in

that the whole amount claimed in any such action respect to class (b) where no claim is made in respect of class (a) shall not exceed $100." This is equivalent to saying that where a plaintiff sues in respect of a claim on which the Court has jurisdiction up to $100 the amount claimed shall not exceed $100.

The finding of the Court upon claims so joined is to be separate. That being the case it is difficult to see why the jurisdiction was not extended to $60 in respect of tort and $100 in respect of contract, making in all $160. The separate findings in such a case would be equivalent to trying separate actions, one immediately after the other. The only difference under the amendment in question is that both are endorsed upon one summons. The effect is to give the place of honour, so to speak, to that part of the action which relates to tort, the jurisdiction as to the balance of the amount claimed being entirely dependent upon the amount claimed for the tort.

In Meek v.

Scobell (c), the plaintiff joined a claim in tort of $69.33 with a claim on contract which made the total more than $100. Prohibition was ordered because the abandonment at the trial of enough to bring the claim under $100 was general and not in respect of the claim in tort, the Court holding that the abandonment should have been specifically as to the claim for damages so as to reduce it to the limit of Division Court jurisdiction. The whole case proceeds upon the assumption, though that was not decided, that the two claims might have been properly joined, provided that the amount claimed in tort did not exceed $60, and that the aggregate did not exceed $100. If, however, there was any doubt upon it before, the new Act makes the law plain.

In Re Drinkwater v. Clarridge (d), it was held that a plaintiff who sued upon a promissory note or other negoti able instrument, and specially endorsed his summons therefor, was entitled to have judgment entered for the amount of his claim without filing the instrument, in case the defendant did not appear. It was traditionary with some clerks, and with the clerk of the County Court of the County of York, that the plaintiff must file the instrument; and various were the reasons given. The matter had previously been decided on a motion to compel the County Court Clerk aforesaid to sign judgment on a special endorsement. The Division Court Clerks, however, had still to be educated up to the refinements of High Court law, and so Drinkwater's case came up on a motion to compel the clerk to sign judgment. The Legislature being wiser than the Courts have now enacted (chapter 15, section 7) as follows:-"In any action brought to recover a sum of money due on any promissory note or notes, such note or notes shall be filed with the clerk before judgment unless otherwise ordered, or unless the loss of the note be shown, or that it cannot for some other satisfactory reason be produced." The law as to bills of exchange and other negotiable instruments, we presume,

(c) 4 Ont. R. 553.

(d) 8 P. R. 504.

remains as before this enactment, as promissory notes. only are mentioned.

By section 9 of the same Act subpoenas are now to run into the whole Province. By the old law they issued only for witnesses found within the county; and application had to be made to a Superior Court for a subpœna to a witness without the county. The clause which allowed subpoenas to issue from the Superior Courts for witnesses out of the county is now repealed.

By section 125 of The Division Courts Act no debt due to a mechanic, etc., shall be liable to attachment unless it exceeds the sum of $25, and then only to the extent of such excess. By 47 Vict. cap. 9, sec. 1, this is not to apply to any case where the debt has been contracted for board or lodging, and in the opinion of the Judge, the exemption is not necessary for the support and maintenance of the debtor's family. Chapter 15, section 11, of the Acts of last session enacts that in all cases where the debt sought to be garnished is for wages or salary, there is to be served. with the summons upon the garnishee a memorandum showing amongst other things whether the debt alleged to be due by the primary debtor to the primary creditor was or was not incurred for board or lodging, and in the absence of such a memorandum respecting the nature of the debt, it may be presumed by the garnishee not to have been incurred for board and lodging.

Provision is also made in garnishee proceedings for a species of pleading by filing notices of defences and admissions to save the expense of attending at the trial.

By sections 18 and 19 of the same Act provision is made. for taking the evidence of (i) persons who are sick, aged or infirm, (ii) persons about to leave the Province, (iii) witnesses who reside in a remote part of the Province and at a great distance from the place of trial whose attendance cannot be procured, or where the expense of procuring their attendance would be out of proportion to the amount involved in the action. And the following section allows a defendant to withdraw his defence and allow judgment

to go.