court of appeal documents by gerald l. gerrand, qc

Transcription

COURT OF APPEAL DOCUMENTS
BY
GERALD L. GERRAND, Q.C.
)
INDEX
1.
Material supporting application to extend
time for serving and filing Notice of Appeal
2.
Agreement as to contents of Appeal Book
where entire evidence is being transcribed
and selected exhibits are being reproduced.
3.
Praecipe for Transcript of Shorthand Notes
where only a portion of evidence ;s required
for the hearing of the appeal
4.
Agreement as to Contents of Appeal Book
where appeal is taken from Chamber Judgment
5.
Notice of Appeal where grounds for appeal
relating to questions of fact and law are
dealt with succinctly
6.
Notice of Appeal where questions of fact and law are
dealt with at length and where Appeal Book by Order
will be in Supreme Court form
7.
Material supporting application for leave to appeal to
the Supreme Court of Canada
8.
Index for Appeal Book
9.
Factum of Appellant
10.
Factum of Respondent
11.
Citations
)
)
-IN THE COURT OF APPEAL FOR SASKATCHEI'lAN
ON APPEAL' FROM
THE COURT OF QUEEN'S BENCH
JUDICIAL CENTRE OF REGINA
:, 'IN THE MATTER OF THE ESTATE OF THOMAS A. McCUSKER, LATE OF
"
THE CITY OF REGINA, IN THE PROVINCE OF SASKATCHEWAN, FARMER,
DECEASED
,
.
,./,
'-'
.
,NOTICE OF MOTION
TAKE NOTICE that an application will be made by Ruth
,'"
, .. '
'
:'
Hel,filn McCusker, Louis,W:l.190n, Bernioe Manuel,
,
~!arion
Chase,
"
'
. " Richard Wilson, Robert Wilson,
Evelyn
Downs,
Bette' Haynes,
)
Charlotte Manuel, Virginia Manuel, Barbara Beers, Eleanor Chase,
Tom Chase, Susan Chase, Michelle Haynes, Suzanne Haynes, Robert
Haynes, Paul Haynes, Kevin Haynes and James Manuel, to His
Lordship, the presiding Judge of the Court of Appeal in chambers,
at the Court House, 2425 Victoria Avenue, Regina, Saskatchewan,
on Monday, the 10th day of September, A.D. 1979, at 1:00 o'clock
in the afternoon, for an Order extendinq the time within which
the Applicants can serve and file a Notice of Appeal from the
Fiat of His Lordship Mr. Justice J.H. Maher delivered in this
matter on the 17th day of July, A.D. 1979,
AND TAKE FURTHER NOTICE that there will be filed in
support of the said application the Affidavit of Gerald Lorne
Gerrand and the pleadings and proceedings had and taken in
this action.
DATED at the City of Regina, in the Province of
)
- 1 -
- 2 SaskCl:tch~wan"
t~"is
5th day of September, A.D. 1979.
GERRAND, GEREIN, McLELLAN
'(-
& l'IULA'l'Z
. >'
C.;.
'(-~} ??~ .. ~ ........'--' ... 1
Per:
SolIcitors for the Applicants
whose address for service is
201 , 1822 Scarth Street
Regina, Saskatchewan, S4P 2G4
To:
"', I
Mr. E.B. Stewart, Esq.,
Solicitor for the Canada Trust Company,
as Executor of the Estate of Thomas A.
McCusker, deceased
:,' ('.:
and to:' Mr. J.L.,Stamatinos,.Esq.,
representing the OfficIal Guardian
of Infants for the Province pf .
Saskatiilhewan
\,',
- 3 •
IN THE COURT OF APPEAL FOR SASKATCHENAN
ON APPEAL FROM
",I.'
THE COURT. OF QUEEN'S BENCH
.:,
IN THE MATTER OF THE ESTATE OF THOMAS A. McCUSKER, LATE OF
THE Cl'lY OF REG.INA, IN·THE PROVINCE OF.SASJ(ATCHEI'lAN, FARMER,
DECEASED •
• lj
AFFIDAVIT OF GERALD LORNE GtRRAND
'"
I, GERALD LORNE GERRAND, 'of the City of Regina, in
the P;'9v,ince of saskatchewan, Barrister and Solicitor, MAKE
OATH AND SAY AS FOLLOWS:
1."
THAT I am the solicitor and counsel for the Applicants
herein,and I carryon the practice or iaw in partnership at
)
the City of Regina, in the, Pro,,:"ince, of Saskatchewan, under thestyl~
2.
and firm name of
Gerr~nd, ~~~e~n,
McLellan & Mulatz;
THAT I'was absent from'the City of Regina from July 4,
1979 to July' '23, 1979; and upon 'my return on the last mentioned
date l I first saw the Fiat of Mr. Justice J. H. Maher delivered
in these proceedings;
3.
THAT on 'July 23, 1979, I' spoke 'With Mr. Barry Stewart,
counsel for Canada Trust Company, with a view to determining
if Canada Trust Company was prepared to execute the Agreement
as contemplated by the Fiat of Mr. Justice Maher:
4.
THAT at the suggestion of Mr. Barry Stewart I
subsequently discussed the matter directly with Mr. Arnold
Sweet, Trust Officer of Canada Trust Company, with a view to
determining whether or not Canada Trust Company would execute
the Agreement as contemplated by the said Fiat:
5.
)
THAT on or about August 20, 1979, I was advised by
the said Arnold Sweet that the canada Trust Company would not
consent to execute the said Agreement i
·4·
•
- 2 6.
,THAT herewith produced and marked as Exhibit "A"
to this my Affidavit is a copy of form of Notice of Appeal
which I'_ caused to be served on the Respondents herein on
the 24th day of August, 1979,
-THAT herewi til prbduced and marked as Exhibit "B"
7.
to this my Affidavit is a true copy of letter received from
the solicitor
for Canada Trust Company dated August 29, 1979,
indicating that he sees no necessity for the preparation of
Appeal Sooks in this appeal but that he is obtaining definite
i~structions
from. his
cl:!.en~1
THAT I make this Affidavit 1n support of an application
8.
for an Order of this Honourable Court e~tending the time for
~!'le
serving and filing of the Notice of Appeal in these
._p;-oC;eeqings.
swoim'
BEFORE ME'
at the'
City
1
1
1
of ·R~gi~a. in the provin'ce
1
of saakatqhewan, this 5th
d~y
1
1
of ,September, A.D. 1979.
1
1
~.~7iiIa"i»'"-i1i""r.;;Iffi"""'""j;£"'~n"\'f." ";:;;:-,;=-~i
..,-----'ir"
1ICOMMISSIONER FOR OATUS In and
for the Province of Saskatchewan.
My commission,e~pir~$ ,Dec. 31, 1980.
i".
)
IN THE COORT OF- APPEAL FOR SASRATCHEWAN
IN THE MATTER OF THE EXPROPRIATION PROCEDURE
ACT, STATUTES OF SASKATCHEI'lAN, 196B
BETWEEN I
'CAMPBELL & HALIBURTON (REGINA) LTD.,
APPELLANT
(CLAIMANT)
- and SASKATCHEWAN TELECOMMUNICATIONS,
RESPONDENT
AGREEMENT AS TO CONTENTS OF APPEAL BOOK
IT IS AGREBD between the parties hereto that the Appeal
BOOk in this Appeal shall consist of the following:
(1)
Index)
(2)
Pleadings;
·(3) "Reasons' for Judgment:
(4)
Judgment Rol!;
(5)
Notice of Appeal of the Appellant, Campbell &
Haliburton (Regina) Ltd.:
(6)
The following Exhibits:
Exhibit C1
, ,,'
Exhibit C2
Exhibit C3
Document entitled "Campbell &
Haliburton (Regina) Ltd.-- Common
Shareholders, October 31, 1976"
Financial Statement of Appellant,
dated December 31, 1976
Financial Statement of Appellant,
December 31, 1977
da~ed
Exhibit C,
Duplicate Certificate of Title No.
72R43758, dated December 14, 1972
Exhibit CS
Agreement for Sale, dated October 1st,
1967, between W. Norman McGillivray and
Robert Alex McGillivray, vendor, and
Campbell & Haliburton (Regina) Ltd.,
purchaser
Exhibit C6
Document entitled "Shell Building"
)
- 6 -
- 2 -
Exh~bit
Duplicate Certificate of Title No.
67R32564(1). dated October 3, 1967
C7
Exhibit C8
Lease dated March 7th, 1975 between the
APpellant and The Family Service
-'01
,BQr,eau
Exhibit C9'
Letter dated September 21, 1976 to
Appellant from Respondent
Exhibit CiO -
Copy of-Notice of Compulsory Acquisition
~ated September 27, 1976 to Appellant
from Respondent
Exhibit CII Exhibit el2 -
Carbon copy of letter dated October 14,
1976 to Respondent from Appellant
Photostatic copy of latter dated
November 10, 1976 to Appellant from
Re,spondent
Exhibit el3 -
Photostatic copy of document entitled
"Campbell
6<
Haliburton (Regina) Ltd. -
Cost of Replacement Property - 13th
Avenue & Retallack Street n
Ex~ibi t
C14 -
Photostatic copy of document entitled
"Campbell & Haliburton (Regina) Ltd. Costs re expropriation of 1744 Cornwall
,street, Regina, Saskatchewan
Exhibi:t CiS, -,' GroUp,of photostatic copies of invoices
and statement of time incurred, re
Moving Costs of Appellant
.
Exhibit ci6 " '.
Document entitled "Regina Real Es,tate
,Association--Multiple Listing Report"
'Exhibit CIS
)Appraisal Report of Ronald D. Grant,
M.A. I.
~
Exhibit Cl9 "
,
Exhibit C20 -
Document entitled "Land Value by
Development Approach" prepared by
R. D. Grant
Document entitled "Increase in Value
;Chart" prepared by R. O. Grant
Exhibit C21
photocopies of a group of invoices re
Cost of Replacement Property
Exhibit c23 -
copy of document re LOss of Sales
Revenue Due to Move, consisting of
two sheets
Exhibit C24 -
Three certified copies of Certificates
of Title
Exhibit C25 -
Copy of Declaration of Expropriation,
dated September 27, 1976
Exhibit C26 -
Appraisal of 1965 McIntyre Street
by H. H. Holstein, dated July 15, 1976
,:1;:-_'C"
Exhibit C27 -
COpy of City of Regina Downtown Core,
property value map, filed as Exhibit
R-6, with revisions
, I,,'
- 7-
-
3 -
)
:Exhibit C28 -
Certified copies of two Transfers re
property at 1792 Hamilton Street,
Regina, Saskatchewan
Exhibit.C29 -
Newspaper advertisement by S.G.I.O.
Exhibit C30 -
Certified copy of Bylaw 5925, and
Exhibit e31 -
Photocopies of pages 24, 28, 31 and 32
from Appraisal Report of H. H. Holstein
with handwritten notes of R. D. Grant
agreement between Her Majesty the Queen
in the right of the Province of Saskatchewan and the City of Regina
:., 'I
"
'
Exhibit
r,
'" .
'..
)
.,
Certified copy of Easement dated
April 11, 1911, between Annie Elizabeth
Darke and National Trust Company Limited
.Exhibit- .3
.. ' :Certified true copies of two resolutions
of Regina City Council, dated December
4, 1973, and October 29, 1974
Exhibit R4
Pages 1 and 2 and C-2 to 0-4, inclusive,
.of,' the Parnass McLaughlin Report,
dated August, 1976
Exhibit .5
Two-page list of comparables submitted
by Respondent
Exhi.bit
Copy of City of Regina, Downtown Core,
property value map
..
Option to Purchase dated July 27, 1976
between Lakeview Foods Ltd. and
Joseph. Pettick
Exhibit R7
Exhibit
••
".,'
'Exhibit R9
Agreement dated November 30, 1976
,between Sask Tel and Joseph Pettick
Certified copy of Certificate of
Title No. 59R00629
Exhibit R10 -
Certified copy of Transfer dated
January 13, 1977, with two Affidavits
attached
Exhibit Rll -
Certified copy of Certificate of
Title No. 77R01500, dated January
13, 1977
Exhibit R13 -
Certified copy of Instrument NO.
72Ri0185, Easement Agreement re
Lot 15, Block 283
Exhibit Rl6 -
Copy of letter dated September 21,
1976 to Burkay Properties Limited
from T. A. Howe
Exhibit R17 -
Photocopy of letter dated September
22, 1976 to T. A. Howe from T. M.
Drope
Exhibit Rla -
Copy of letter dated September 22,
1976 to Burkay Properties Limited
from Saskatchewan Telecommunications
)
- 3 -
- 4 -
Exhibit R19 -
·r,
"
< ...
-Exhibit R20 -
Appraisal Report of H. H. Holstein
and Brian Gaffney, dated January
19, 1978
Exhibit R21 -
Photocopy of portions of appraisal
prepared by A. Hosie, dated April
6, 1976
Exhibit R22 -
Certified copies of Certificate of
Title No. 67R32564(1) and certificate
of Title No. 72R437S8
Exhibit R23 -
Certified copy of assessment roll relating
to subject property & Royal Bank pvo~~
r
0(7)
Copy of letter dated September]A,
1976 to MacPherson, Leslie & Tyerman
from T. A. Howe
Transcription of the proceedinqs.
p,
DATED at the
~ity
of Reqina, in the Province of
Saskatchewan', this 19th day of Sept.ember, A.D. 1979.
GERRAND, GEREIN, McLELLAN & MULATZ
per:
DATED at the City of Reqina, in the Province of
. '.
"It..
Saskatchewan', this
LJ,::. (lay
of September, A.D. 1979.
BALFOUR, MOSS, MILLIKEN, LASCHUK,
KYLE, VANCISE & CAMERON
/
per:
"'"(/
( , . Y /'--J~
sollfhtors for the Respondent.
- 9 -
,
)
IN THE COURT OF APPEAL FOR SASKATCHEWAN
BETWEEN~
RICHARD I. COX, of' liebb, 1n the Province
of Saskatchewan, and SAM'S GENERAL TRUCKING
"LTO., ~ body corporate, carrying on business
'in Swift Current, in the Province of
Saskatchewan,
.I
'
APPELLANTS
- and VICTOR BRUCE HOLKER PELLEGRIN, and CATHERINE
DORO THEA PELLEGRIN and THERESA ELIZABETH
PELLEGRIN (infant) and CHRISTINA RUTH
PELLEGRIN (infant) and VICTOR MICHAEL
PELLEGRIN_, (~nfant) suing by their next
,,'ftiEmd; ,VICTOR BRUCE HOLKER PELLEGRIN, all
'of St. Norbert, in the Province of Manitoba,
RESPONDENTS
PRAECIPE FOR TRANSCIPT OF SHORTHAND NOTES
Required,
o~
behalf of the Appellants, 8 transcriptionS
-of- the" shorthand writer's notes of evidence of Victor Bruce Halker
Pellegrin and Elsie Ferguson taken at the trial.
The trial ,took place at Regina, Saskatchewan, on the
19th 'and 20th days of September, A.D. 1977, and we agree to pay
the balanoe of the cost of such transcriptions to the Registrar
when advised the same is ready for delivery.
DATED at the City of Regina, in the Province ofSaskatohiawan,"thiS 24th day of October, A.D. 1977.
GERRAND, GEREIN, McLELLAN & MULATZ
Per: SOlIcitors
",rr",""-'""-'~-'~OTT;~"
for the Appellants
whose address for service is
201 - 1822 Scarth Street
S4P lZ6
)
- 10 -
IN THE COURT OF APPEAL FOR SASKATCHEltAN
ON APPEAL
,TH~
FRml
COURT_ OF, QUEEN'S BENCH
Bji;~WEEN:
14ARK tiAIOL, KENT HAIOL, IAN HAIOL and
~EVI~ HAIOL, all infants of the City of
'Regina, in the Province of Saskatchewan,
by their next friend, HERBERT HAIOL,
APPELLANTS
(Applicants)
- and SAC~R, of the City of Winnipeg,
iri the 'Province of Manitoba;
JERRY SACHER,'of the City of Calgary,
in the Province of Alberta;
PHYLLIS HAYGARTH. of the City of Estevan,
in the Province of ,Saskatchewan;
BLAIR LUTERBACH, of Lampman, in the
Province of Saskatchewan;
FLORENCE TISOH'fNSKI, of tho City of Calgary,
ELSIE LUEDTKE, of Limerick, in the Province
of, ~askatchewanj
TILLIE ROTHWELL. of the City of Regina,
in the' Provinoe Of S;lskatchewan,
;,l"I and __
DONNIE
RAYMOND LUTERBACH" and GORDON McCURDY.
both, of Lampman, in the Province of
SaSkatchewan, as executors of the estate
of Frank Sacher, deceased,
RESPONDENTS
(Respondents)
AGREEMENT AS_ TO,CONTENTS_OF APPEAL BOOK
GRIFFIN, BEKE & THORSON
BARRISTERS & SOLICITORS
300 - BANK OF CANADA BUILDING
2220 - 12th AVENUE
REGINA, SASKATCHEWAN
S4F OH8 .
- 11 -
)
IN THE COURT OF AP?EAL fOR
SASKATCIiE\~AN
ON AP?EAL FROM
THE caUR'!' OF QUEEN'S IfEUCH
JUDICIAL Cj!:NTRE OF REGINA
,BETWEEN:
MARK HAIDL, KErlT HAIDL.
IAN HAIDL and
KEVIN HAIDL. all infants of the City of
Regina, 1n the Province of Saskatche'ilan,
by their next friend. HERBERT HAIDL t
APPELLANTS
(Applicants)
- and DONNIE SACHER, of the City of Winnipeg,
1n the Province of Manitoba;
JERRY; SACHER, of the City of Calgary,
1n the Province of Alberta;
PHYLLIS -HAYGARtH, of the City of Estevan,
in the Province of Saskatchewan;
BLAIR LUTERBACH, of Lampman, 1n the
FLORENCE TISCHYNSKI, of the City of Calgary,
1n the Province of Alberta;
ELSIE LUEDTKE, of Limerick, 1n the Province
of Saskatchewan j
TILLIE ROTH\~ELL. of the City of Regina.
in the Province of Saskatchewan,
,I'
'.,,
- and RAYMOND LUTERBACH and GORDON McCURDY.
both of Lampman, in the Province of
Saskatchewan, as executors of the estate
of Frank ~acher, deceased,
, ',r!
RESPONDENTS
(Responden'ts)
AGREEMENT AS TO CONTENTS OF APPEAL BOOK
IT IS AGREED between the Parties hereto that
the Appeal Book on this appeal to the Court of Appeal for
Saskatchewan
)
sha1~
contain the following;
1.
Authority of Next Friend - dated January 5, 1978
2.
Originating Notice - dated January 18, 1978.
3.
Affidavit of Herl:lert Haidl (with Exhibits "A" to "D"
inclusive) dated January 5, 1978.
4.
ACfidavi t of Gerald Peter ~lcLellan (with Exhil;li ts
"A" to "0" inclusive) dated !.tay 11, 1978 •
• 12 •
-----~~
- 2 -
5.
Atf1d~vit
,of Gar-aId P. HcLellan - dated May 12, 1978.
6.
Rea~ons ;fol' Judp;ment of J. Halvorson - dated
Hay 24, 1978.
7.
Formal Ol'der _ dated lofay
8.
Notice of Appeal. - dated June 21, 1978
IT IS FURTHER AGREED
26, 1978.
that the Exhibits will
be put before the Court of Appeal and may be looked at
on the hearing of the appeal •
..
,"
;
DATED at the City of Regina, in the Province
,'.
,
of Saskatch'ewan this
18th day of
September
A ,',D. '1.978.
,
!
Per:
SOlicitors for the Appellants
,.
., ,:
"
,:
';, J
v
13
~
)
IN THE COURT OF APPEAL Fon SASKATCnENAN
IN THE lolA'l''l'ER OF THE HARRIED WaHE" I S PROPER'l'Y ACT
BETm:EN,
EMILY OLIVE DILLABOUGH, of the City of
~e9ina, in the Province of Saskatohewan,
APPELLANT
- and -
JOSEPH, DltLABOUGB, of tHe city of Ragina,
in tha Province of saskatohewan,
RESPONDEN'l'
NOTICE OF APPEAL
~\KE
NOTICE that Emily Olive'Oillabough, the above-named
Appollant, hereby appeds to tha" Court of Appeal from the Judqment
, of the Honourable Mr. JUstioe"A.' L. Sirois delivered in the above
)
action the 7th day of April,
A~D.
1917;
AND Tug -FQl\'1'BER nO'l'IcE that the said appeal 1.s taken
upon the followin9' gro'unds,
(1)
,<;'f
~e
law
to
The learned trial Judge errod in the application
the MatterS in iss,ue,
(2) ,·'!'he laarned trial Judge erred in assessing th.e
,;
evidence ,that' was' adduced before' hinl J
(3)
in'a' learned trial Judge erred in direoting that the
house property owned by the Appellant and Respondent and looated
at 2839 McKay Street, Regina, saakat~hew~n, be sold and the prooeeds
be divide'd, betWeen the' parti'ea hereto for the followinq reasons,
Ca)
The said
Judqmen~
was not nadB in aocordanoe
with the provisions of The Married WOMen's
Property Aot and the amendments thereto.
(b)
The ,said Order
,WAd
oont;ary to the woight of
evidenoe and did not oorroctly reflect the
)
respeotive contributions of the parties to
the marriaga •
• 14 •
- 2 -
(c)
The said Order was made despite the faot
that" noi thor
th~ I
Appollant ncr the Respondent
asked the learned tri3l Judge fcr any suoh
remedy or reliel.
(d) 'The' said Order tailed to take into account the
rights ot the APpellant to possession at the
hbuse
property
,
'. , lor life
'
AS
set out in the
Aqreement entered" into between the Appellant
and the Respondent dated the 16th day ot Hay,
A.D. 1973.
(4)
The learned trial JudqG errod in exprosBing his
'Vie\-7B,48 to ,the d:Lviaion',of' the assots of the marriage at a point
in the CQnducting ol,tho heaxing when the Respondent had completed
,hh ov:Ldenoe '_and prior to, the Appellant having commenced to lead
;
(5) : 'l'he- learned: trial Judge errod in not ol:'derinq that
,I
the Appellant t1ae entitled. to sole ownol:'ship of tho marital house
property.
(6)" The 'learned trial Judge' erred in direoting that the
monthly_maintenance paymont of One Hundred and Twenty-five,
'($l25.0~)
Dollars, previously being paid'by the Respondent to the Appellant
nat continue
otter, tho
,
grant~ng
"
t(l
.t~a
,
0;(
the Decree Nisi having regard
,
evidence, add1:lc!!.-d }>!lfore the learned trial Judge and hav1ng
particul~
that he was
Qn~ered
regard to
~repared
~e
to
fact that the
Res~ndent
had teetified
with all provisions of the agreement
co~ly
into botween the Respondent and the Appellant on the lGth
day of May, A.D. 1973, , which said agreement provided for the payg
ment by ~le Respondent to the Appellant of One Hundred and Twentyfive ($125.00) Dollars a month,
~nd
in thG evant of the divorce
of 'the partieti,' the said payment. are to continue during the
lifetime
of
tho Appellant, or until her remarriaqe •
• 15 •
)
- 3 -
By reanon 'Of 'the' multiplioity of arron in the
(7)"
Judgment of the learnad trial Judge, ho was unable to proporly
»
: to'
(\
[
II: .
.
•
!!latter
, 'of oasts, and
tl:1e .l\pp!1114nt. ,uys '\:tja.t t:l)e learned trial Judgo
that
()
ill
,.
er.r~
in dirGC!tinq
each. of the., parties'to'tbe
aa~ion: -boar tMir: iesp'ect:lve ~o8tS.
.
!
) \I
'
I'
-:
,I
..
le~'rn.ed counsel
;
shall, advilile and this Honourable Court shnll' parmit' and allow.
, '.,1
;,1 .. _; '-,
"
.i
' ", DA'l'ED- at:' the' 'City ot- Reqina,' in the Province of'
Baskllt~he~an, this
13th'
flAY
of
Ap~i~" A~O~, l~,F.
',' ':
r,
i-' "
GE~Dr GER~I~~, Hc,~LLAij,
-"
./'/~-.
.'
Pert
f ••
L('
';
-cc.--e',..<' ',:
& MUM'l'Z
~;:.---.
(
'
~olIcltoi"s "lor the AppollD.nt
whose"addre:ss for £Iervice is
\ ,
201 - lS2~· Searth,Strest
Reqina., Sukatch~wan. S4P 2G4
t, :
"J
, 'l'CI 1,
, ".
~$ Re~pOndent and his soLioitor~1
"
BIiLf'our, Moss, UilHken, Laschuk,
t "Kyle, Vanoise" Catneron.
,ISSO,Cornwall Street
ne9in~,
S4P 2J1:3'
SaokatQhew~,
',
)
• 16 •
,"
)
. . .. . '. ' NOTICE OF APPEAL .,
,
'
, TAKE .~OTICE,that Ray ~auer, ,th~. aboY'e:-:pamed Defendant,
hereby 'appeals to the Court ot Appeal from afl of the judgment
:, a.gains't:. the said Defendant of The HO'nou:!::,'abl'e Mr. Justice A. L.
20
Si,roi~ 4elivere<;l iI\ the ~bove action on _tl:le 19th day of March,
A.D; 1973, including not only the judgment in favour of the
above-name,? Pl~intiff ag?linst the said ,Defendant, but also the
]udqrrient' dismfss'irig 'the cla1mover 0'£ the said Defendant against
the -said·, Pl'ainttlff in his pe,rsonal capacity,- the judgment dis-
missing the claimover of the said Defendant against the abovenamed, De1;end,mt, ,Alan ,Morar MacDonald, ,and the judgment dismissing
the third party claim of the s~i9- De,fen4ant .ag~inst the abovenamed Third Pl>rty, NOna H;' Maci:JOnald." .. " " .
AND FURTHER TAKE NOTICE that the said appeal is taken
upon tlie' fo'i'lbwing g'x.ounds;
1.
30
The learned trial judge misdirected himself and erred
in maki~g various incorrect findings of fact without
any ,evidence, in support thereof or against uncontradicted
",evidence to- the contrary or against the weight of evidenc e ,such incorrect findings- being as follows:
(a)
that the Defendant Hauer had express or constructive
knowledge that the shares and stocks, for the loss
of which'he has been adjudged liable, were shares
or stocks of the estate bf Ron;ald'Hugh MacDonald,
deceased~ or, :that he' was'~, constructive trustee or
that the circumstances were 'such that he should have
enquired as to whethEn~ t'hey' w,ere part of the said
estate;
.
- 17 -
,
)
v'
76a
)
(b) , that
,
acco~t
No. 11339 was set up in a secret manner;
,
that account No. 11339 was a IInotorious" account or
account ll ;
,an " in f aIDa
(c)
us
(d)" ,t'ilat' the delay in bringing this action and in bring-
ing it to trial was nobody-'s fault in particular,
. (when in fact the'del'ay in bringing'the action was
occasion,ed by the Plaintiff's negiect for many years
; to: e,l?qui'~e ,into, the affairs of'the' estate and the
chief delay' i'n its corning to trial was occasioned
by' failure
-the' "Plaintiff 'to dep'oSi't' security for
of
,0
costs in order to continue the action against the
Defendant Richardsons, with the result that after
long delays in in'terlocutory proceedings the Plaintiff
was ,unable 'to continue th\{ actiqn against Richardsons
" apd then continued against the remainin9' Defendants) 1
,
'J.
(e) , ' t.pa~ ~rthu,r Mo'Xon,' Q. C~,
could have felt that
paragraph 7
the said deceased i S' will justified
,that estate stocks could be disposed of ~d be
,"r,epl.aced by comparabl~ o-r superio~ stocks wherever
it _appeared opportune to do so and that (as the
iearried tJ:;:ial j tidge 'by implication must ~a\Te concluqeq), t;.~'ie' sa~d Arthur Moxon approved of the
tin\l'awful in\lestments of the execut6'rs 1
of
!O
)
(f)"·t~_at._~6)~.q~'lied "lb.\:j.n,s", resp:ectively',ot' $'7,500,
$3.0 r ~OO,' $27,,500, '~~" $50, 000 'were' m~de by the
,Y,--,"
10
(g)
Defendant, Alan Morar MacDonald, to the Defendant,
Ray Hauer,. or to -Allied' Securities Ltd., and were
19ans ,that the said Ray Haue:r needed (when in fact
,'they, w,ere investme'nt's'ina'de by the said Alan Morar
Ma,cDonald at his' desire, that were of no importance
or>sign~f~?~ce to Hal.:ler) 1
'th'at "Hauer approached- Alan for a loan: of $150,000
or $200,000,' <\lnd that the Bank Manager advised Hauer
( that ~he lq'an could not be arranged due to the
dir'ectiorts contained ·in the said deceased I s w~ll1
I
,,
;0
(Ii)
~hat ~he Defen,dant, Ray Hauer, khew thC!-t"the 7,000
shares of West Coas_t Tr.;:tnsmissi6n were' registered
in the names 'of the executors of the will of the
said de_ceased;
,
(.£)
'that','.i,n participating in margin -account No. 11339,
the Defendant Hauer may have'had in mind that he
was behind in financing the Prairie Fibreboard
Compariy and was perhap's reaching out for g'reater
)
- ,8 -
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,
i
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I
'm
77a
i-r'
,
I
stakes; or (as the learned trial j\idge appears in
et'fec.i;", to, have foun,d)
that the Defendant .Hauer had
need of further security in, his awn trading account
(while the undisputed fact is that na part of the
's,ecuri . ties of the sa;i,¢l estate or of the securities
in thee, ~aid mar9in, acqaunt or the 'pros:ee'dS the'tefram
or the;' r;ep).,q,cement13 ther~af eVer ,came into the
",personal' hc:miQ.s, o~ Hauer, .or were ever acquired by
,him or were ever, ~ntermiflgled, in any way with
. anything of 9r per,1;.,aining to his, personal holdings
.or .th~ heldings o;f: anY c.omp:any_ ih' which he had an
int:e:~est-;
- if
'
(j)
(k)
I'
"t:hat
_there· W&S ,a:~,y, "agreement between the Defendants,
Ray Ha,4er land Ala,-Ii. Morar McwDenald" that in respect
.of t;J;t~ ,trading. o~.;~argin ,acGount N.o. ll~~9 Hauer
would indemnify the estate of the said deceased
.?J.gaj.ns:t ,los,~es q;, restore a,ny, sh~res Dr stpcks lost
: or thG!-t; . Hauer would' parti'ci;lpat_e i~ !=-he pro'fits';
,tqa~, 1:h~ De,f.e'ndant,:, Al.3;fl M.ora_~ M~cD.on~ld, 'covld
Itot r~call"dEtt'inite).y ,whether, he 'sa,,? Haue,r write
. dqwn ,pa,r1;icular:s~,at, th~ ,top of the front page of
'Ex.l1ib~t;i l?34 (when, on the /cqn:trary he rep,eatedly
stated
in ..evidence that he .
did
" '.
,recal'1 it)';
,
" . ,
(1)
,
:uhat;,t1w :P,laintiff, did no!=-, .know t:hat;.,_~ margin
,tr~d~ng "account ,Np. 75l3,,?p~ned for h=!-:m "by the
De,fe09-ant;, Alal1_ Mprar _MacDonald, was opened with
,$10,.000, bo_rr0'1,ed ,00 the security of, estate bonds;
,
(m)
J
:
\
'"
,,'
,
,
,that' thE;l, age d,i."ffe,rential,!?,' be~~e:en' A+an MacDonald
anq., ~auer were' as ~ndic_at~d ,j.n th~ j\ldgrrtent (while
the evidence is that Hauer was born, in 1915 and
Alan MacDonald in '1'925)
In 1957 Alan 'MacDonald
,w.as., ,32: years old ,and I)ot an ,in,expexsien<;::ed 24
0
(,
0 ,
" i·'
2.
The lea.rned triai .-j ~dge mi~directed h'i'mseif ,a~ to the
;credi,b;j.l.~ty of ~h~_ witn,esses in the f.ollowing respects:",(a)
J
(b)
The ,learn~d. trial judge wrongly :eound th~t th~\
P.laintiff h_ad. na kn.owledge ;t~at his tradi:ng account
No. 7513 'wa~,"op~,Il;ed with, money harrowed' on the
security of $10,000 .of estate bonds and he ignored
the fact that the evidence showed these bonds were
lost to ,tl'\e, esta~e ,and" the Plaint~ ft: had, ,not, ac:;:counted
:therefor to. the" estC'!-te or made geod tne 1,oss;
The, ,learned ,tJ::i,a,l ,'judge, ,wrangly ,~ssWTte¢l ,from the
,
- 19 -
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,
,
••
73a
"
1
•
"
self-serving evidence of the Plaintiff and of the
Defendant!, Alan Mo.rar MacDonald, that the estate
" solici tor, Arthur Moxon, .Q. C., had approved of their
unlawful use and losses of estate assets as indicated
by the evidence and when assessing their credibility
he did not properly weigh the effect of such unlawful
acts or of. thei'r obvious interest in giving such
:,.self-serving evidence;
(c),
The ,learned trial judge failed -to give sufficient
or; any weight to the fact' that at the commencement
,of: the acquaintance of the Defendants, Hauer and
(d)
"
,
-Alan Marai: MacDonald, -the latter. had a knowledge of
stocks .:and shares and of brokerage and investing
praqtioes, whereas Hauer had no.- such knowledge and
he atta,ehed significance to Hauer's hobby of
hypnotism although Alan Morar MacDonald admitted
he had ;neve'r be,e_n 'hypnotised by'- Hauer'.;
~:- -",
" ',
',
.-The lear.ned ,tr,ial: ,judge' failed- to give sufficient
or -any weight, to_ the fact, that prior to the Defendant,
Hauer i e,vet' , having any par,t in transactions involving
,estate assets, the Defendant, Alan Morar MacDonald,
had, Wlinf.luenced in , any"way by Hauer, unlawfully
invested and misapp~opriated many of the estate assets;
,
,
,
(e) .
'( f)
The learned trial' judge 'fai·led to give sufficient
:or, any ,weight to the fact'that the Plaintiff and all
, tile: executors, 'and', trustees had, acti vely participated
',inJ:th,e ,purcha'se of unl-awful investments with estate
funds and had, for'many years', acquiesced in or
actiyely agreed with the unlawful investment of
estate funds by Alan Morar MacDonald;
The learned ,trial" judge in, his dudgmefl t found "In.
all fairness to Alan ,he shared the bonus he made
~n these several loans,;to.'Hauer, or his Company to
some extent with the Estate", which appears to be
a finding, to the credi,t,; of the Defendant~, Alan
Morar MacDonald,' ~lthough it is. submitted that this
should be to his discredit inasmuch as the bonuses
-shOUld hav,e. been paid to -the_ estate· in full, unless
,all' beneficiaries otherwise agreed and the evidence
made, it clear ,that they_,were, at. least in the case
of Alan's sister:, not even informed;,
,
"
',,-
,(g)
The learned trial judge found :that the Defendant
Hauer's- credibility suffered greatly in giving his
account of the alle-ged agreement constituted by
:,~ ,
)
i I
,
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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _. .
79a
Exhibits P29, P31, P33 and P33A, but he failed to
give proper' consideration to the circumstances of
: Hauer IS' evidence and his explanation of the position
,,
and had he'd0ne ,so, he would, have found that evidence
oredible.
He failed'to consider the"following
matters:,(i).i
Hauer t s' account in evidence was' not a sequence
of changed explanations' but a sequence of
alternative explanations that were possible
explain mat-tars' that 'at the ,time of their
occurtEmce had had little significance for
" to
10
Hauer ahd'that at the time of trial were beyond
,"
': his '_recollection; 'and' that such' explanations
in respect of such documents represented a fair
,', and- honest effort to explain documents that
. he, could not recall ha'ving signed.
Ii,
,
"
,
20
;',
."
,cii).Exhibits: P29,i>31, P33 and P33Awere put forward
by the Plaintiff as photocopies of documents
pj:epared, in-'19'58', over fourteen years' before
" : tri,3:l and' 'such lapse' of' ,t-ime would reasonably
';1
have: the 'effect of making an honest witness
, hesitant" about relating details 'of events
. -Chat occur;red So long ago i
,i,
(
I
"
"
30
'j'
I
, .
'-'
(1l1) When visited by the Plaintiff and Alan Morar
MacDonald in' Calgary' on 25th' May; 1962, Hauer
was quite',composed and,~in an-immediate and
orderly-·manner: a'ccounted for the trading he
'had:dohe- on' the said,trading'accQunt and
voluntarilY' handed o'ver :to the 'Plainti ff his
"',, I'
relevant ,file' and statements, all of which
is,'cohsisteil.t with Hauer 1 s explanation;
,(iv)-'"'No original'c"signed copy of Exhibit P33 and
P33A, ,which are di'fferent, was' ever produced
to- the Cour.t or' to the Defendant I Hauer;
: ,(h)
)',
,The learned trial' judge' found 'that the Defendant,
Al'ari'Morar'MacDonald, coUld' 'not re'call definitely
whether' he' saw: 'Hauer' write down p'!:frt-iculars at the
top of the front page of Exhibit )P'34 and evidently
did hot, appreciate" as: the transcript- of evidence
will' show,' that . Alan repeatedly gave evidence
thab he clearly recalled Hauer writing the particularS.
Such evidence plainly contradicts the evidence of
the haridwriting expert called and'ad-versely affects
t.he· credi-bili ty' of Alan Morar MacDonald.
I
"
40
ii'
(i)
The learned trial judge erred in stating IIHe conceded
21 -
)
r~
~Oa
)
'1,1
however, tha~' insofar.,as the
7,000 shares of West
Transmis'sion' were concerned, these would have
, to' b-e' replaced if the in'arket dropped ll as being
) related ,t'o the issues in this triaL
The evidence
'{s uncon:troverted thaJ:. this view was in respect of
another proposed transaction by Alan Morar MacDonald
fit ,~nqthe,r time and which the O(3;fendant Hauer I
'~e~used b? have any part' of i
Coast
10
J ",
(j ) , .By r,ea,son of th~ for,egbing matters, the learned
I ' tri'al
j u:dge should, o~, .;t" proper consideration 0 f the
evi¢len,ce, have found the Defendant, Hauer, a
,credibl'e witness and preferred his testimony to
t'hat. 'e;! the De fe'n'dant , -Alan Morar MacDonald in
'thos'e', 're,sp;ects' wh.'ere~ ~'2fi f ference arose.
T~e ,~e,ar'neci~ triaJ,~'j\l'~9",e, erred in stating as he did
(k)
"The're had been J:'elative]'y few changes in the Estate
stock. pOJ:'tfoiio 'betw'een.' October, 1949 and the early
pa,rt of 197,$'11. The ,eviderice is uncontrov~rted
that massive trades involving large sums of money ,J'
and enormous lo'sses occurred as a result of trading,
both lawful se.:).l~l).g and unlawfu;L buying, during
th,cit period by the trustees.
, "
! J'
20
I·
,
(ll ,The learneid 'tria:l judge was unduly influenced in his
asse'ssmen't of' cot-edibility' by irrelevant and inadmissibie mat.ters <;l'nd matters or hearsay evidence in the
. fol.'!-owing re,s'pects:-
,
(l)
he formed opinions as to the views and thoughts
of Arthur Moxon, Q. C. I based on speculation aind
hearsay evidence of the Plaintiffl s witnesses
'an¢!. 0'£' .cOply memoranda 4l1d correspondence from
'the' files of the estate I 5 bankers, in consequence
of which he formed an unduly favourable view of
'th~ 'Plaint;ff, and Ot Alan Morar MacDonald.
(11)
he wrong,ly attributed knowledge and invol vemen t
to Hauer in respect of loans and prepared loan
transactions between the Defendant Alan Morar
MacDonald and his bankers, with which Hauer had
no concern and of which he had no knowledge and
Which were
irre'levi:int
to the case;
:
,
,
,
,,'
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"
30
",
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'
')' 'i:
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,•
,I
40
!,
•
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r
)
"
'l
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'
(iii) he gave undue weight to the story of Hauer's
'
,"
(iv)
'business career and acti vi ties, speculating
therefrom &ithout evidence as to Hauer's motives
i,n' trading on margin acco~nt No. 11339;
he
wrongly
admitted,alleged character evidence
,
'
...
'WOS*,
ala
(),
.in"rebuttal over the objection of Hauer's couns ....... ,l
','.
'I
'"
',:
which evidence dealt with hypnotism and the
ciam'inistration cif 'drugs, and, even if it were
admissibl,e, which is clen-ted by the Defendant,
Hauer, he' gave' undue weig~t and relevance
thereto;
A's .a' 'te,sult of the undue influence upon the
'leanled 't'rial judge of the foregoing matters, he
(v)
formed an adverse view of all investments of
10.
e"stilte
ftmds
in' trading account No. 11339 and.
".
"
'I·
fO'(lItd th,ertt to be breaches of trust on which he
gave judgillent, against aauer, although he made
rio adverse' co'ritinent on similar breaches of trust
:co~itted'(~"as' th~ eviden'ge disclosed, at an
'ea'tlier t'itne' by the Plai'nt!ff and Alan Morar
,M,acp,?~aldl and h~ cons id.er~d H~uer put on
.1 ,"
(1;
I,
enq\liry', as to the terms of the estate trust,
"?h~1~,,
appa,::.::-en:t'ly not _so concluding in respect
ex~'cutors, in regard to the earlier
. J?F~.:',c"~es' b,f trust:, by the' executors own unlawful
J.nve-stments.
r '
'
• '
,
~' J
20.
of the
.,',
I"
(vi) : l1e gave: '~due;, weight to_ the alleged loss of
"/
r
,
income to 'the Es'tate, when in 1962 the Plaintiff
,13ougl}t" ~o~e form p,f income fOr:, his own use
_ whe9!. i'n', .+apt, and this fact was withheld from
th~ CO,ur't by t~e Plainti'ff and the Defendant,
'Alan Mora_r MacDonald, the shares. in the said
. account were" paying dividends beyond those sought
or q.qped, ;or by, the, Pla~n~iff from the stocks
,he, ,t~pugl1t Alazl Morar MacDonald held for the estate.
,
I
em)' - 'The tr~¢~r:tg, 'o~ "m,a,J::9'iri account No. 11339 was not w0:t;t:h,less s~ecu.1..at'i?~ P,ut; was bona fide trading in stocks
. of ,~uRst~:tial value and had not the Court, on
: R~cl;l~rd~ol'ls I application, ordered sale of the remain'"
'ing stocks by order of 14th February, 1964, the
,subseq~e~t.~nc~ease in their market value would have
rest.oreO a,11 16s$es of the estate in full and there
would h~v~' been a, gain'.
'~!_':
"T~e",'l¢~rre;d' ~ri:al. judge erred in finding that the Plaintiff lS
cC!-se ,.had- be;e:n proven against the Defendant, Hauer, in vie'"
of the following matters:,
'(a)
'
,
:'
I'
,
The' ~earn'ed trial judge has "f~urid Hauer liable for
the loss oqcas+oned by a 'breach of trust, which in
t;!1,e judgment is oescribed as "this fraudulent operation
of the' two 'defendants ll •
The proof required to
establi~,h frfll..l9 ;i.~ ,g~eater than., in the ordinary
civil case arid the onus on the Plaintiff is to prove (
- 23 -
:1
I,
)
the 'qase' :beyond reasonable doubt, which he has not done.
I
(b)
The case 'agai'nst the Defendant, Hauer 1 depends solely
on the evidence of the Defendant, Alan Morar
Ma,c,1)on,ald,. who
~s
a
~elf-interested
and suspect
., witnes's' b'ecau$e" on: :the admissions contained in his
~ file'd' statement 'of De'fence' 'and ',on his own evidence I
Aian Mo'rar, MacDonald is self-confessed as one who has
tepe'atEkdly ·~r6n.gfu'ily m,isused artd lost estate assets
even 'prior to the date' of -the alleged participation
by Hau~,:r; and furthermore, despite his cQnfession of
ml's,apprdprle!.'~ion of estate f~nds, he has made no
:t:9stituti6ri '~d '.the .estate and his best hope of
aV'oidi'n9 'the ne-ed 'toJm~ke such restitution lies in
, ju'dgmen~ b,Ed.ng '.9iven and' en'forced against Hauer •
,;
10
. (
',t'
.
~
I ,. '
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(b)
The bef'endant Hauer had no express or constructive
'tllat. (the' 'exeyut_ors ,or' trustees of the will
of 'the said' de'ceased 'were in' an'y way restricted in
their power ','6f 'investment nor was there any circumstance that should have put Hauer on his enquiry in
r~'g'ai-d "thereto~ 'bq.t o~ t:he: contrary the conduct of
the' plaintiff and 'of all the executors and trustees
both"ln' such capa,citie's and' as beneficiaries o_f the
est'at:e ~ ,had b~en such as plainly to indicate to Hauer
that, 'they were' empowered to invest as they pleased
'an'd ne-'\103.:5 justified 'in accepting and acting upon
that:; indication.
'
'khow~efdge
The, Plaintift" and all o,f, the executors and trustees
had by their 'Cq'riduct plainly apPointed the Defendant,
Alan Morar :Macbonald', their' agent to deal with the
estate assets on behalf of all the executors and
'trustees "artd':each i~' bound' by such agent's acts.
(
'(c)
)
,
-",',
'.
40
,
The above difficulties ,in proof of. this case are
iric:b~as)e'd by' the' lack o'f cert'ainty 'tha't must arise
in e'vlderice gl'ven in the Fall of' 1972 purporting
to' prove 'facts' 'and motives that 'relate to events of
1957 ~·d 1958.
.
(al
, ..
I"
" ;
'Th,e learh,~d' tri,al judge erred in not finding, as he should
ha:ve found on' 'the 'e\Tide,nce, that the' following facts were
proven;:·:.:' " , .,"
4 •.
30
'.
(
,
,'
",,"
"
,Tll,'e Defendant Halter, while knowing of the existence
'of the 'said '-deceased's_ estate and- of the fact that
the Deferi'dant Alan Morar MacDonald had an interest
therein~'aid' not in fact know which, if any, of the
assets traded in the margin account No. 11339 were
estate assets and had no concern therein, being
justified in considering himself entitled to act on
Alan's instructions and as his attorney in any event.
.!
d
ar'S
'S
II"
7
Ott
rWM"l.C
(4) : -The Defeno.ant Hauer never agreed "to indemnify the
safd estate or to res'tore its losses in any way nor
did he agree to share the profits, of ma~gin account
; ,f
110. i13.39 •.
t,
.
,
,
Th~ l?rla,i~ti.ff a'nq., ,all
I"
)' ,
.
0,£ tl).e executors did personally
,qr ,l:;>y, :t~e request of t_he,i.r 'agent, Alan Morar MacDonald,
instigate or consen~ to all_of the trading that has
(e)
pccasiqneQ the los,s 'for whj,ch' the Defendant Hauer
, qas' beel} adj,udg,eo. liable a~, 'trial.
"L'
,
,"
The Pi;;dntiff well knew Ln 1957 ari(l 1958 that Alan
s~Llli~S' estate assets to acquire
( f)
10
Morar:' M~cDonald wa,s
.
; ,I
,sec~,rH:',i,e's, n~ely
whic):1
,shares in Alberta Gas Trunk Ltd.,
a)::"~ .urilawf,ul, inv~stl}l,ents under The Trustee Act
an(l did nothing about that until 1962.
5
20
.'.,Ii, "
(a)
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1,(,
I I,'
:30
I
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" octQ~~r ,2 s. '1' 1959,
August 1.5, 1960
December 15, 1960
:May '15:, 19,91 ' ,
October 16" 1~61
Ap,ril 30, '1963
November 30, 19,63
5,000.00
4,127.50
4,127.50
4,127.50
4,127.50
4,003.67
4,003.67
$ 29,517.34
- Oi vide'nd
$
- D~V.~(lend
- D~vldend - Oividen'd - Dividend, - Di"ic:;lenq. -.Dividenq.. ,-
Cheq~es had, 'been is~,l,le,d out of th~' account payable
to the, estate as follows:
"'(
;1
.. "
trial judge erred in refusirtg a request
,ma:de',PY ~co:tmsEd for ~he ,'De_f'e'ndant:Hauer that Hauer
shou1q., be g~,ven the, opportunity to ,adduce further
evidence before the formal judgmen~ issued. The
request was made on the 12th day of April upon the
,~otion by, the P lain:!:i ff : for di.re,ctions as to the form
,
of judgment: and as ,to costs. 'fhe. further evidence in
q~estion r'elated to l.nfonnation w'h~,cl:l ',had reached coun_sp.l
for the Defendant Hauer on the 11th day of April
)
f:t;'om the,o;Efice of .-,James Ri.chard$,<;,.n in l1innipeg to the
e,f,fect, tll,<?-t r ~he Cons,olid,a,te~, peI}i$on shares in account
No. ,11339 had p+,oduce,d the, fo+lowing dividends that had
'b,een, pa.id, in,to' the aceo'un t :,,-
,
"
"
Tne,lea~ed
:1 :!'
'
1
!I ,.
'L
,
"
: 40
f.
October 19, 1960 January 3, 1961 June 9, 1961:
li!'overriber is ;'1961 ,March 75, 1963 ,~arch 28, 1963
-
,.
Cheque No. SA27800 -$4,127.50
Cheque No. SA28482 - 4,127.50
Ch~que No. SA2996 5_.4,127.50
Cheque .No. SA.31246 - '4,127.50
Cheque.~o. SA35394 - 4,003.67
Cheque N~. SA35436 - 5,000.00
$25,513.67
- 25 -
:i
an"
e=
(b)
,
"
,r
7
n
"
,The, fi,rst four cl)eques above mentioned had been
'endorsed by the!" Defehdant,' Alan Morar MacDonald and
the last two had been endorsed by him and by the
Plain,tiff as ,executors_.
(c),
10
'This eviden'ce 'qould be rel'ate'd to the affidavit of
the thi'rd party', Nona H. MacDonald, filed in court
,'I in' this" actio'n in 'support of' her motion that led to
',,)
'i' '-the o'rdei:' of the Honourable Mr.
Justice C. S. Davis in
Chamberi;' da~eci the 18th day of July. A. D. 1967. whereby
he orde'red money to be paid' to 'her out of the estate
,to make up de,ficiencies in her past income. Her
;, 'a'ff'i.davit' 'sho'wed slich"defici,encie,s, including 'payment
tb' tier in 19.63. of only' $300. a deficiency of $2100
i'n tha't: yea',r,.i
'"
,"
'(d) 'The question "therefore ari$es' as to why the P lainti ff
"and Alan Mo:t;'ar MacD,onal(1 had, n'oe paid the proper income
,
I,. 1 ,
to Norta"a ... MacDoriaid and' as 'to what happened to the
proceeds 0 f 'the di vidend cheques ..
,'j
,
"
'
'
.
'(e)"
20
)
'At'the time of makin'g't.he request cou.,nElel for'Hauer
was -sti'll awaiting' c'apies of, the chequ'e,s' and information
as to dividends lpaid into the, 'account and cheques paid
\ th,ereotit.' in' 1962. ! orhe, dividends' paid by ,Consolidated
Denison iii 196'2; ware- the same as in' 1963.
( f)
The eVlaence"'assumes 'greater s'j~gni'ficar\ce still when
related 'co the evidence Of' ,-the ~laintiff' at trial that
he 'was concertled about estate income when he went
to Calgary in May,' 1962 to see Alan and Hauer.
(g)
This eviClence would neg'ati ve the' following findings in
( the' j u<;igment, namely:-
".
tha't Ha~e,r' had' a' ben~fidiai-' interest in account
No. 113;39,
. (i).
30
"
(il)
to
that the Plaint!f'f' 5 failure
observe the termS
of "the will was
fail'ure i'n good faith on Moxon 15
\ 'advice; 'and
I
a
'(iii), that 'Alan Morar MacDonald was under the influence
of Hauer.
'(h)
40
The evidence that is"now coming to hand pursuaht to
the ;enquiries 'of coUnsel for Hauer is still not complete
and will be considered prior to the hearing of this
appeal and, if appropriate, will be sought to be
introduced at the hearing.
)
.,
- 26 -
as a
6.
,Th~ learne¢l trial,. j\l,Q.ge erred in law or in the alternative
'he,:erred on a/mixed ba$i_s, ,0,1; law and fact in the following
, ?=e'eJpecr,s:;- . <'
,
(a)
I
In order to render Hauer liabie as Alan's agent as
a constructive trustee for breach of trust as ,the
, le~rned t'rial' judge did', it was necessary that he
,snoQld-';find Ha'u_er .had' an exp+,ess or con$tructive
know-ledg'~ of the ,lim~t;ed powers of inves,tment under
I . t~el terms', of, ~h~ said ,deceased IS "fill ar;td this he did
, not find an4 could not,reasqnab~y h~ve so found.
'
The, learned ,tr1a,1' ju4ge; in"his fu'dgment'misdirected
h:lil\sel,f'by relying on -and(p~trin.g legal authorities
and cases dealing with liabili,ty for conversion I
irrespective of intention on the part of the converter
,notwit~standing t,hat the Plaint;i.ff's claim i~'lpleaded
as 'a 'claim ;t;or .. brei'lch, of trust ~nq. that fraud -is
,_pl~a~ed'. ,,sQph ,~u~hori~ies a~d c.ases h~v~ no application to th~, 9ase unde:r appeCl.L
,
(1:1)
, '
In or~er to hold Hauer ;liable fer a ~reach of trust,
which is, equitable relief;, the:Pl:aintiff must come
cou;ct"with qlean hands, which l1e does not do, since
both the Pla.t_ntif-£ and. his co-execut;ors and co-trustees
have ,e~;ther:'pe+sonalJ.y or,: by age,n,t previo~sly committed
breaches of trust in the handling of the estate assets
aJl~,: they na;ve -P-f!!FSon<?-lly ~r ,by ~heir age~t A,lan Morar
MacDonald. request;ed, .in~_~igate~ ,0'F :90nsented to the
,,', q~ying ,and, selling that constitl,lte~ the breaches of
, . 1;:rust all,~ged against ila,uex:.
I,
,
•I,
,(0),
, '
into
(eU
The learned tri,al j l,ldge ca,nnot re:ly (if in fflC,t he did
so as by inference he ap~ears t.o hp,y.e done) on the
agreement or agreements alleged to' have been made between
A,lan Mora,r ~acD,onald and~ Haue,r" whex,-eby Hauer is alleged
to have agreed
make good ~the, estate's losses, since
the Plaintiff or the estate is not a party to such
agx:~e,If\~nt ,or, ~gree~ent,s ,unless the 1?laint,iff alleges
that, Ala,r:t' Morar Mac,?onald. entered into the agreement
or agree'ments as agent of the estate, in which case
the Plaintiff cannot in any event reCover judgment by
re..;lsot;l of the point ·set, forth in sub-paragraph (f)
o-f'this paragraph.
to
( e)
,F~rthermore,
the PlaLn~iff has not pleaded or argued
for a clai~' pursuant to, quY"contract or for any
breach thereof.
I
•
,\
)
- 27 -
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nn
••
Boa
n.
=
.
-
WS;71nz~
,i
i
(f)
,01
The alleged agreement or agreements last referred to
are, if to the effect alleged by the Plaintiff, unlawful
and illegal, being agreements to commit a breach of
trust and to share the proceeds and in consequence
neither party th.ereto, nor the principals represented
by any such party who was an agent for such prinCipals,
cart' enforce 'such i agreement nor, recov~r damages for any
'breach thereof nor have a caus,e of action, thereon.
:(g) \' The' learnedi' trial ,judge, exc~sed the thl)::'d P?irty, Nona
;H.: 'MacDonald,.:lfrom personal ,liai:;lility by. :t;',~ason of
',) section' 57 of :The Trustee Act;, and it is submitted that
the section cannot in law be prope+,ly applied so as to
relieve the third party from liability under-the
" third party claim made against her by ,tJ:?e Defendant Hauer,
,
Such claim is not a" claim to '-hold her f,iduc~arily
respon~iblel'as ,a trustee, o+, personally, liabl4? for a
,
breach of tnusb " but.- ,is a claim for indemnJ ty by
reaSOfl' ,that, any ,;Liability Hauer may have to the
Plaintiff in this action is caused by his acting as
"agent for Alan Morar MacDpna1d" whicl1 c()nduct by
Hauer was occasioned and instigat~o: by, ,the conduct
of the third party and by the fact that'she allowed
"-'Alan,Morar, MacDona,ld. to rep:ces9l)t ,the estate and did
not personally ,~look into or .concern herself with the
affairs of the estate.
)
!
)
(h)- ,,,Furthermore the ,thir4 party, iin her third party defence
" ,melie1y denied the, third p~;cty claim and did not ask
for: relief under s. 57. of Tne Trustee Act either in
thel pleadings .or at t~ial, and, accordingly the relief
should not in any event be :granted.
(i)
(j )
Q'
)
7.
The learned trial judge, if correct i~' awarding j'tidgm:-EHlt
against Hauer whiqh co,rrectnes_s, is deni~d, er;ced in
setting forth the ,'principtes 6'f,,',estabiishing the quantum
of damt;!.ges on the, ,e,stat,e s,tpcks ,sold out of account
No. 11339 (other than"th~ 'stocks sold by qrder of the
Court on 14th day of Februa'ry, A.D.' 1964).
The sale of shar~s in compaJ;1ies which did not qualify
as investments for trus't funds iinder The Trustee Act
was not beyond the powers of the trustees under the
will and in fact was what was done by the court in
respect of all such unlawful investments in 1964. Ther~
can be no conversion by such sales i-f the' proceeds' remal- It
the property of the estate, which they did. The learned
trial judge's description of The Great West Life shareS
and of the income bearing capability of Westcoast Transmission stock is not in accordance with the facts.
If the learned trial judge was correct in giving judgment
against Hauer, which is denied, he erred in not ordering
J
,
•
)
"
!'
,
.
that the int'erest'-of each of the three executors as a
beneficiary in'the:estate should be impounded by way
of indemnity to the Defendant Hauer, pursuant to s. 46
of The Thistee Act ( R. S. S. 196 5, c.130) formerly be:ing
" (as -4es'6ribed in Hauer's Statement, 0f Defence '(prepared
and'tiled in 1964) as s. 40 of The Trustee Act (R.S.S.
1953, c. 12~).
.,
The'j':ldgment is"agalnst.the law, 'the, evidence and the
,weight' 'c£ evidence for all" of the foregoing' grounds of
" appe'al' and for such additional grounds 'as' counsel for
'-"the Defendant Hauer' may advise uponl 'a pelrusal of the
t;rarisbrip't.~ df 'trial, which' is not yet preparedo
o
,
,
'
.: ,>
'"
~.i\TE[j" a't"the, 'City of' Regina, in the Province of
Sask.atchewan"th;i.'s'
16th
day of April, A.D. 1973.
.
.'
,
','0
'
'
BALFOUR', MacLEOD, MOSS, LASCHUK, 'KYLE,
VANCISE • CAMERON
}
Per:
liE. J. Mass ll
Solicitors: on record -in the court!. "
belo~ for t.he Appellant, Ray ,Hauer,
91hose address for service in the
City
Regina
in 1850 "C6rO'wall Street.
,
,
-of
! "
,
"W.tCOtM fj,miHMacDONAi.D (Plaintiff),
'both as Executor' of' the las't;' Wi-Il
'an~ .Tes-"1='amen'1;.'
Ro'ttald Hugh
MacDonalq., deceas€!d and in his'
personal 'capacity,
of Dr.
ALAtl 'MORt..R MacDoNALD (De~eiidant)
and
.'
NONA H.• MacbONALD (Third Party)
"
"
,
, !
"
- 29 -
12
,. I
)
ON APPEAL FROM T1lti' 'COURT OF QUEEN'S BENCH
JUDICIAL CENTRE OF SAS,KATOON
,.',
,,
BETWEEN:
ARMADALE PUBL1SHERS LIMITED, a body
",., ~orp?ra te" ,;reg~~:t;ered in the Province
,of Saskatchewan, and STERLING KING, of
the City of Saskatoon, in the Province
of SaskatchewaIl,
10
,
, J.
\
'1
I
I
"I i
,','
',f(!"
'_I
20
APPELLANTS
(PROPOSED RESPONDENTS)
and
MORRIS T. CHERNESKEY, of the City
of Saskatoon, in the p'roviIice of
Saskatchewan,
, ':, , "RESPONDENT
" . '(PROPOSED
APPELLANT)
,
, '"
)
i ; "
",
"
,
NOTICE OF MOTION
30
TAKE NOTICE that a motion will be brought before the
Court of Appeal for the Province of Saskatchewan at the Court
House, Regina, Saskatchewan, at 10:00 o'clock in the forenoon,
on Wednesday, the 29th day of June, A.D. 1977 for an Order
pursuant to Section 38 of the Supreme Court Act, R,S'4rChapter
35 as amended, granting leave to appeal the decision of the
Court of Appeal for Saskatchewan rendered herein wherein the
said Court allowed the Appellants'
40
a~peal
and ordered a new
trial on the grounds that questions Involved in the appeal are
ones that ought to be submitted to the Supreme Court for
decision.
AND FURTHER TAKE NOTICE that in support of this
application will be read:
I)
"
The Affidavit of Morris T. Cherneskey;
)
- 30 -
i
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13
NOTICE OF MOTION (Cont.) - 24th day of June, 1977
, i
:1
'I
I'
,_.)
.'
DATED atth~ City of Sas'katoon," in the Province of
Saskatchewan, this 24th day of June, A.D. 1977.
GAU,LEY,
DIERKER
& DAHLEM
"
',;' ,,
"
• ,-,'
10
'"'
"
"
20
'
TO:
AND
, i
,
',1
'C
2nd AVenue South,
Solicitors for the Respondent
(Proposed Appellant)
The Registr~r of the
Court of Appeal" ','"
TO:,
Publishers Limited
and Shrling King and their
So'ifcltors, McKercher, McKercher,
Stack, Korchin &Laing
Armadal~
,I
30
'
•
)
241
,
..
,"
Saskatoon, Saskatchewan.
i., .
,I"
I,
Per: - "D.E. Gauley"
-,
.":
Bar:ris,ters and Solicitors,
"
'
.\
"
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,
,
,-;,
',' (,
-, ,
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- 31 -
14
I
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,
.
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'.
,,!,IN THE COURT OF APPEAL FOR SASKATCHEWAN
",I,
I
"
"
.' -, ':-
,
.
ON APPEAL FROM THE, CaUltT OF QUEEN',S,;llENCII
, , , , , i;
JUDICIAL CENTRE OF SASKATOON
,
10
, 'I'
BETWEEN: '
ARMADALE PUBLISHERS LIMITED, a body
corporate registered in the Province
of Saskatchewan, and STERLING KING, of
the City of Saskatoon, in the Province
0'£ Saskatchewan,
APPELLANTS
20
- and I
)
MORRIS T. CHERNESKEY, df the City
of Saskatoon, in the Province of
Saskatchewan,
RESPONDENT
(PROPOSED APPELLANT)
30
IN THE COURT OF APPEAL
FOR THE PROVINCE OF SASKATCHEWAN
BEFORE THE HONOURABLE CHIEF
JUSTICE E. M. CULLITON, THE
HONOURABLE MR. JUSTICE R. L.
BROWNRIDGE, THE HONOURABLE MR.
JUSTICE R. N. HALL
40
o
,
50, )
)
)
)
)
)
)
)
)
)
ON' WEDNESDAY,
THE 29tTH DAY OF
JUNE, A.D. 1971
AT REGINA, SASKATCHEWAN
R D B R
UPON THE APPLICATION of the Respondent (Proposed
Appellant) and upon reading the Affidavit of Morris T.
Cherneskey and the materials filed and upon hearing counsel
herein;
- 32 -
15
ORDER GRANTING LEAVE (Cant.) . 29th day of June, 1977
IT IS HEREBY ORDERED that the Respondent, Morris
T. Cherneskey, is hereby granted"leaire'to appeal to the"Supreme
Court of Canada.
DATED at the City of Regina, in the Province of
Saskatchewan, this 29th' ilare! June, 'A.D' ,1977. , '",
'j,
"R. B. Horner"
REGISTRAR OF THE COURT OF APPEAL
"i
,
,
"
'-,
, ,.
,
, "J
'
"
,
li'l
. I
r
"
,)
, "
'" :
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",
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,,
33 , i;
.
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, ,
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I
"
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)
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,
"
J.' ,',
16
IN THE SUPREME COURT OF CANADA
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
BETWEEN:
~
"
,
MORRIS T. CHERNESKEY, of the City
of Saskatoon, in the Province of
Saskatchewan,
10
,:
, t,
APPELLANT .
(PLAINTIFF)
and
ARMADALE PUBLISHERS LIMITED, a
body corporate registered in the
, .,,.
Province of Saskatchewan, and
STERLING KING, of the City of
Saskatoon, in the· Piovince of
20
Saska,tFhew;an"
RESPONDENTS
(DEFENDANTS)
,';
1
NOTICE OF APPEAL
TAKE NOTICE that the Appellant (Plaintiff) having been
granted leave to appeal by the Court of Appeal for Saskatchewan .
on the 29th day.of June, A.D. 1977, hereby appeals to the
Supreme Court of Canada from the Judgment of the Court of Appeal
for Saskatchewan given on the 7th day of June, A.D. 1977, whereby
30
that Honourable Court ordered a new trial.
','
DATED at the City of Saskatoon, in the Province of
Saskatchewan, this 12th day of July, A.D. 1977.
GAULEY, DIERKER &DAHLEM
Per: "P. Foley"
~o
Barr-isters and,Solicitors,
~300, 241 - 2nd AVenue south,
Saskatoon; Saskatchewan.
Solicitors for the Appellant
(Pldnti£f) .
50
)
TO: '
The Registtat ·of the
Supreme Court of Canada.
AND TO:
McKercher, McK,ercher,
Stack, KOrchin &Laing,
I '
.
.
Solicitors for the
Respondents (Defendants) .
• 34 -
SASKATCHE\~AN
IN THE COURT OF APPEAL FOR
,
.,'
ON APPEAL FROM THE COURT OF QUEEN'S BENCH
BETWEEN:
ARMADALE PUBLISHERS LIMITED, a bOdy
~,corporate)
registered in the Province
of Saskatchewan, and STERLING KING, of
the City of Saska tecn, in the Provinceof Saskatchewan,
APPELLANTS
(PROPOSED- RESPONDENTS)
.
.- .
- ,md -
I.
MORRIS T. CHERNESKEY. 6f the ci\:.y
of SasKatoon, in the Province of
. Sas:kat.chewan,
RESPONDENT
(PROPOSED APPELLfu~T)
\
.-
,,'
-,
':"
'(
,
(I
\
:1'
,
.-
.
(',I
,i
AFFIDAVIT OF MOAAIS T. CHERNESKEY
-
"
.
,.) !
MCKERCHER,' McKERCHER, S-TACK,
GAULEY, DIERKER & DAHLEM,
KORCHIN & LAING."
Barristers and Solicitors',
Barristers and Solicitors,
241 - 2nd Avenue South,
1202 eN Towers,
Saskatoon) Saskatchewan.
Saskatoon'l 'Saskatchewan., :
solicitors for the RESPONDENT
Soliei tors -for the APPELLANTS
(PROPOSED APPELLAI.\lT), whose
(PROPOSED RESPONDENTS) I whose
ad4rT~s ~~~ service in t~e ·City
address - for service in the -City:,
"of i ~~9",~n~, i~ ,~t the office of
Messrs. Wimmer - Toews,
of Regina is at the office of
Messrs. Balfour, MOSS, Millikan,
2042 - Cornwall Street,
.
Laschuk, Kyle,' V~mcise & camerson, . REGINA;
.
. SASKATCHEWAN:
.
1850 Cornwall Street, Regina",
Saskatchewan.
,
(
•
,.35 -
(;
)
Ol, APPEAL FROM THE COURT OF QUEEN'S BENCH
. ",:
,
BjlTWEEN:
"
,
."
, "I
P~LISHERS
LIMITED, a body
registered in the \Province '
of ,Saskatchewan, and STERLING KING, of
the City of Saskatoon; in 'the Province
ARMADALE
corporate'
of Saskatchewan,
'r
<,
APPELLANTS
'"
MORRIS T,
CHE~ESl<EY,
of
the
City'
,
..
.,'
of Saskatoo~, ,in the ,Prqvince ,of
Saskatchewan, ,~
,,
\ RESPONDENT,'
(PROPOSED , APPELLANT)
)
'"
,.
AFFIDAVIT OF MORRIS T. CHERNESKEL,
I, MORRIS T.
CHEru~BSKEY,
of the City of Saskatoon,
in the Province of Saskatchewan, Solicitor,
MAKE OATH AND SAY,
1.
THAT I am the Respondent (Proposed Appellant) herein
and as such have a personal knowledge of the matters and facts
herein deposed to.
2.
THAT I have been advised by Mr. D. E. Gauley, Q.C.
of the law firm of_Gauley, Dierker & Dahlem and verily believe
)
it to be true that the points of law rendered in the Majority
Judgment are such that a Ifinal decision should be rendered by
.
""
-
the Supreme Court of
2 -
I
C~nada.
J !,
"
THAT I have given my said solicitor instructions to
3.
file for leave to appeal to the Supreme Court of' Canida and
leB;Y~"\s gra:nt~d 'to ,app'eal to:'the ~atd Court.
if such
4 . " . "rHl\'r
I' take 'this Affidairi t in support of the
"
'
Application for Leave to Appeal.
" )'
SWORN BEFORE ME at the City , Of, )
)
Saskatoon, in ,the Province of
Saskatchewan,
June,
A,.J~.
'~hiS
24th day Of'
)
~
)
+977.
,r
.. ..
.;.~
•
•
-
r.. ...
)
)
for the Province of sa~atchewan,
and being _a solicitor
-or,
'my' ':,
"Commission expires---BeG. 31. 19
<'(
"J
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"
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)
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"
"
, "
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- 37
)
INDEX
~,
VOLUME I
)
Pleadings
Statement of Claim
1
Statement of Defence
5
Statement of Defence of the Defendant.
Eli Lilly And Company
,
Demand for Particulars
6
'
9
Reply to Demand 'fot ;Particulars
9
, I;
Ame-nded- Pleading'
11
!: (
Notice to Co-Defendant. Eli Lilly li Company
11
Judgment .. '
13
Judgment dated
,-
,,'
\
A~gust
,"
.10th.
1977
34
Notice of, A,J)peal,
35
Notice of Intention to Vary
36
Agre,~ment.
38
Se,tt,ling Appeal Book
Transcript of Trial Evidence
.Janyary 24th, 1977
1 - 133
VOLUMB II
)
TRANSCRIPT OF THE EVIDENCE -OF ALL THE IHTNESSES
TESTIFYING AT THE TRIAL:
Volume
Page in
Transcript
Witnesses £01' the Plaintiff:
Leo Labrecque
,
Examined 'by Mr. "Putdy
1
6
Bxamination- in-Chief ResUJnEld
11
5
Cross 'examined:'by Mr. Gabrielson
11
60
11
10.
11
189
Examination-in~Chief
11
191
Cross-examined
by" Nr. Gabrielson
,
,
I
11
204
11
211
'Re;.'exairiined bY' Hr. Purdy:
\,
PurthEt'r 'cros-s~examined by Mr.
Gabrielson
Garry Elwood Nisbet
Robert William Allen
Examination-in-Chief
)
- 38 -
2 •
Cross-examined by' ~1r. Gabrielson
11
237
11
243
Cross-examined by Mr. Gabrielson
11
245
Exami,na ti,on - in-Chief
III
246
Cross-examine~
111
307
III
353
111
356
111
357
111
361
111
369
111
373
111
408
IV
435
Bx~miqat~9n-in~Chief;
IV
458
Cross-e~amiIl:ed
IV
493
IV
522
IV
529
Cross· examined by Mr. Purdy
IV
583
Re-'exam'iried 'by Mr;" Gabrielson
IV
622
Tom Salisbury Phenix
VOLUME III
•
'"
Malcolm Vern RondeaQ. ':
,by, Mr. Gabrielson
, [ , ,Re- exa~iQed, by Mr., Purdy
Further cross-examined, by Mr'l
GabrielsoQ
\'
"
,'i
Examined by The 'Court
Further
examin~d by Mr. Purdy'
Leo Labrecque" Recailed
,,'
i
"
'Further exam"ined by Mr. Purdy
"
..!,"
Further cross-examined by Mr.
Gabrielson
J.It. Anderson
Examination for Discovery
by· ,Mr. Purdy
i Read·
i:.l,
VOLUME! IV
\'li tnesses for the Defendants:
"
Leo Labrecque
,
Bxamination for Discovery
Re~d Qy"Mr. Gai?rielson
Kenneth Charles Johnson
',I f
,
,
R~·examined
by-Ml', Purdy
1;>y, ~lr,_ Gabrielson
David Martin Tysdal
Bxamination-in-Chief
I,',
J
• 39 -
~
_w~~
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .- ... . . . ., . . . . . . . . . . .'0
.•••• .
_ . . . ."HF
. .--__. .'.,••• •••,.____••
.----~
3, -
vo,!.mlE J..
)
Ross Ashford
v,
627
Cross-exain'ined' by Mt. Purdy
V
658
V
680
V
721
V
141
V
745.
V
746
V
785
Jonathan:'R': Anderson.
Examipation-in~Chief
,
"
' "
Ross As'bford'R(l"sum'es Stand
Cross-exartlinadon Tes'umed by
'., '. r
Mr. Purdy
,_ie-ex~tD.ille~'
Bxamined by
by ·"h
o
•
Gabrielsori"
Court
T~e
Jonathan R. Anderson Resumes Stand
c!oss~~xami~e:~
"
"
by M;r,. PUrdy"
Re'-bx:a~i;n:ed' by Mr': Gabrielson
[."
,.
REBUtTAL, BVIDBNCB,
Fiit the, Pl'~i'Iltn£:
,
Leo .LabTecgue .
v
Ptird)i
)
,Gross-,exam~ne~
-"J'
POl" the Defendants:'
"
" ,
by Mr, Gabriels<lll
V
,
Dayid ,Martin Tlsdal
;Sxamine'd by 'Mr. Gabii'elson
-
VOLUMB VI
-'
'.
V
80S
& 806
V
806
&807
'
Cross-examined by Mr. Purdy
', .. '
• i ,;'-'
Pag'9 in Transcript
where Exhibit referred
to for first time
Page
,42
SOS
painphl~t
.. , 'on 'Tretlan'
48
828
.n
48
832
; 51
840
".,
P-4
P:'S L
, pamph~et;.
Rape, Seed
P-6
, pamphl.~~
P-7
Tw. 'Invoices'
"-'
",
P- 9
Inform'ation and Yel-lm.. card
55
843
P-IO
Farm Guide
76
845
P-ll
Report from Eli Lilly
and Company
102
847
)
.- 40 __ __ i.t'
,I,
" 4 "
I
p-17
\,
I,
I
,The Canadian Whcat Board
Permit - Book 1974-75 Crop
Year
p-19
On'il,
polO
O~(l.nge,Pilmr~let
165
aso
asl
as2
poll
"The Oilseed Advocate" of
Spring '75 Pamphlet
165
853
177
854
List of Flax Street Broadcast
Prices' for 1914-75 Crop Year,
Prep,ared. br."Pioneer Grain
Company Limited, Winnipeg
236
856
hcomes"-full Bxhi'bit
528
~~sh
56
ticket
"Leo'Labrecque 'Field Location"
similar to Exhibit D-4, but
with pencil ma'rk1ngs on- it
,\:Ihi~h were made by ,t~e Plaintiff
, \
.. c'_
P-32
',"
. !,
55
Six Cash Tickets
I
.
849
POlS
p-ll
I
41
Pi.;je Cas'il Tickets -' Pt-eviously
includod wit~ ~~,x ,Cash Tickets. and
marked as' Exnibit' P-lS
372
850
Sixth Cash Tickef ~ Previous'ly'
included with .Six, Cash. Tickets,
and marked as Exhibit p-ia
'
372
851
Two paged document, and marked
on Discovery, of._J.R. Anderson as
Exhibit P-I' ,"
382
871
'p~3r3 "" - Ph. citoc~py' of Pestidde, Registration,
P-34
P-3S
,I'-3~.
"',
'
P-37
" i:
P-38
":
and marked on Discovery of, J .R.,
Anderson as Exhibit P-2
"
383
8"
Photocopy of 'New 01- Modified Use
Cl~ims for Pe~~~cidesJ and marked
on discovery 6£ 'J .R. l\nderson as
~xl;1i~~,t P-3
385
874
Photocopy of Five· Pages' of' Material,
headed, "Apr~~, rl~74 ,(D3)", and
Marked on Discovery of J .R.- Anderson
as Bxhibit P-4
387
876
Original Literature Attachment
labelled "Tre£1an" and t-Iarked on
Discovery of J.R. Anderson as
Bxhibit P-S
388
881
Photocopy o£ Labelling from Can
an~ ~lJrked, qn Discovery of J.R.
Anaerson as' Exhibit P-6
'
389
881
Original- B~ochure; entitled
"Treflan Weed Control West"
and Marked onL'OiScovery of J .R'.
A"~erson" a.s, llxhib~t p-8
393
882
"
.
-
" 41
)
- 5 -
Original Brochure, entitled
"Rapeseed !~eed Control" and
/-I:.irkcd on Discovery of J .R. Anderson
P-39
)
as .Exhibi t P-9
394
PhotoCopy of Label Directions,
and Marked on Discovery of W. B.
Hunt as Exhibit P-2
Verification Form· Agricultural
Chemicals, signed by David H. Trsdal
.
, '
615
'97
Letter dated January 8, 1975,
Written to Mr. David'Tysdale by
Leo Labrecque, consisting of
three pages
616
89'
We,st~rn S~~tion
Report Canada l'ieed Committee
1969.
671
001
Pages' '12l' arid 129 hi '~'esearch
Report Canada Weed 'Committee
West-orin, t3ect!on ,1~70 ,.
672
903
,
Ticket', with thb I'IHtlng "Lucky
troflan
.Draw".
of PIa
ntiff
., ,
.
-
14
905
Pa'llphl,et, Entitled: ""Growing
FIllX
in"SaskatchewaTl"
I
,
,
'4
901
122
909
P-42
Pages 134 and 135 of Research
P-43
!,
0-1
,
)
O;agram, entitled: ,IILeo
. LaBrecque Field Location",
shOwing Three Check-S'trips,
Numbered 1, 2 and 3
c,
0-'
0-'
D~S
0-7
0-8
0-9
416
-'
P-41
0-'
889
Becomes Pull Exhibit
Beco'lfles ,full
,
r
""
E~hibi:t;
129
"
131
910
438
911
Letter, Dated November 24, 1976,
Written to Mr. Gabrielson by
Mr. purdy, consisting of t\iO pages 451
915
Rough Diagram. showing Furro\~ made
,bY"Oiscer Blades; 'drawn by lfitness
,K.C. Johnson
467
918
Original Affidavit. Sworn by
Henry Zilm. Director Statistics
Section, Department of Agriculture,
consisting of eleven pages
679
919
r
.
.
.:'.
:
"PhOtocopy _o,f letter and Attachments, dated May 9, 1976,
consisting of Three Pages,
and Marked on Discovery of
Leo Labrecque as Exhibit D-Z
,
,;
I
,i.' .
)
- 42
•
2£2
EJA#.:4GZZlii
t
I
I
I
!JSJAi4QCCA-. ¥£4&5.U.;;;;;;;Ii!WRtMM !XW6:<
: IN'TIIE COURT OF, APPE.<\L FOR
S.-\S:;:.nCHE'I;,\~
)
FROM TilE COURT O}-' ,QUEEN I S .BE1ICI{. FOR S,~S!\'-\'fCilEWAN
:, JUDICIAL CENTRE OF I;I.EGIX . \
BETWEEN;
,<',
' , '
MARK HAIDL, KENT HAIDL, IAN !IAIDL and
KEVIN HAIDL, all infants of the City of
~egina, in t.he ·Provinc~ of S:\skntchewan.
'.l';Y ;t:heir n~xt friend, HERBERT HAIDL,
,I
"'"
\
,"
,
" '
! ..
,"1"',
,
.'
,'J
,',
APPELLANT
(APPLICANT)
DONNiE SACHE:!\," o't the '6ity of Winnipeg,
in the Pl'ovince of .M;lnitoba;,
"
.tERlli' SACHER, ,.of t~,e, city 'of Calgary,
iri"the, Pr9vin'ce' o'f Alberta;
PHYLLIS 'HAYGMt'TH', of the Citr of Estevan,
1n the ProvinCe of, ~~skatche'~'an; ,',
BLAI,J;!. L'UTtRBACH, 01 Lampman, in the
f'L<;lRENCE TI,SCH'a~s~~, of the City,of Calgary,
in the' Pl'ov~nce of Alberta;
ELst)!: LUEOTKE', o~' Limerick, in the Province
of Saskatchewan;
, .
"
TiLLIE RorJiwtLL, 'of ~h~' City of Regina,
'ih tile Pl~ovinca 'cit ·Sa,.sk;atcheo;;an ,
I,and -
\"
.' ( !
• J .' "
RAYMONV LUTERBACH and qoRDON ~lcCURDY,
bothfof'Lampman, in ·the Province of
Saskatchewan, as executors of the, estate
of ,Frank $,a~her, decellsed,
,
.
~',j
,
RESPONDENTS
'
..
J ••
, ,1F.\CTUM OF THE APPELLA..'l"T
,
,
Barristars & Solicitors
300 - 2220 - 12th AVenue
Regina, Saskatchewan, S4P O~IS
Solicitors for the Appellallt (Applicant)
GERRi\ND, GERRIN, McLELLAN &: ;.!t"LATZ
Barristers & Solicitors
201 - 1822 Scarth Stl"eet
Solicitors fol' the Respon"~nt$
- 43 -
J
)
I N0 E X
Statement as to Facts:
Argument
,
"
4
~"
Table of,Cases
13
'-'f
.
)
""
II j
)
_. 44 .
IN TilE COURT OF APPEAL rOR SASK,\TCHE\,·,\N
rRml THE COURT OF QUEEN'S BENCH FOR S,\SK.l.TC'UEl\'i\N
JUDICIAL CENTRE OF REdl:·:A
BETWEEN:
MARK HAIDL, KENT HAIDL, IAN HAIDL and
KEVIN HAIDL, all infants of the City of
Regina, in the Province of· Saskatchewan,
by their next friend, HERBER'r HAIDl,
APPELLANT
(APPLICANT)
- and -
DONNIE SACHER, of the City of Winnipeg,
in the Province of Manitoba;
JERRY SACHER, ·o{ the'~City of Calgary,
PHYLLIS HAYGARTH, or the Ci ty of Estevan,
in the Province of Saska.tchewan;
BLAIR LUTERBACH, of Lampman, in the
Province of Saskatchewan:
FLORENCE TISCHYNSKI, of the City of Calgary,
ELSIE LUEDTKE, of Limerick, in the Province
of Saskatchewan:
TILLIE ROTHWELL, of the City of Regina,
in the Province of Saskatchewan.
- and RAYMOND LUTERBACH and GORDO~ McCURDY,
both of Lampman, in the Province of
Saskatchewan, as executors of the estate
of Frank Sacher, deceased,
RESPONDENTS
FACTUM OF THE APPELLA:>:T
PART
STATEMENT
1.
I
AS
TO
FACTS
Frank Sacher deceased by virtue of clause 3 (h)
of his Last Will a.nd Testament gave the Appellants (applicants),
~Iark
Ha.idl, Kent Haidl, Ian lIaidl and Kevin Hl1.idl certain
interest in his residuary estate.
Clause 3 (h) reacts:
"I GIVE, DE\'ISE AND BEQUEATU all mr propert~'
of evel"~' nat.ure and kind II"hatsoc\'er and
wheresoever situate to my said Trllstee upon
~
45
~
)
- 2 -
the following trusts, namelr:
(h) To deliver all the rest and residue of my
"Es'tate whatsoever and whol'Gsoever situate
including /lny property over whic.h I may have
a' gener'a!' po\\'er of appointment. to the following
persons in equal shares, share and share alike;
(i)
(H)
(iii)
( tV)
"
(v)
(vi)
".,(vi,i)
(viii)'
,
~Ap~e~l,
DONNIE SACHER
JERftY SACHER
P/iYLLIS BAYGARTH
BtAIR LUTERBACH
FLOREti'CE T)SCHYNSKI
ELSrE LUEDTKE
~~~L~~I~~~~~~~.
'HERBERT HAIDL, that
may be living at, tbe date of my death. "
8004 P" 22u, ,para. 3",p. 23a para (h»
2., ,!.
The said Frank Sacher, deceased, died on or about
6,th. 0c;:tober 1915 o~ which' d~te Herbert Haidl referred to in
Glause 3 (h) '(viii) of ,the Last Will and Testament of the
deceased and four int'ant children who are the Appellants herein.
(Appeal Book p. Ha, Para'.:6 and p. '21'a)
)
3.
Letters Pr'obate' of the a'aid La.st Will and
Testament of Frank 'Sacher, also knolVrt as Frank Sacher the
younger, Deoeased, was granted on 18th December 1975 to
Raymond Luterbach arid-Gordon" McCurdy, 'the Executors of
the Will.
(Appeal Book p. 21a)
4.
" ,
The eopy Statement of' Cash Receipts and Disbursements
made up to S~Ptember 30, 1976 submitted to the Official
Guardian witJ:i the le'tter at Oct'ober 19, 1976 of the solicitor
to-- the 'executors of the e'.state indicated a balunce cf $33,176.90
tor distribution.
(Appeal Book p. 31a)
5.
According to the letter of November 26, 1976 of the
)
. 46 .
-
3 -
)
executors' solicitors, a sum of $4,147.11 from the estate
of th'e deceased i'Jas sent to' the Official Guardian representing
1:he ~haXj~ to ,tl;l.e four childl'~>n of lIerbert Haidl under tho
said, Clause 3 (h)' (vii1),
d
~ll's.
,
Herbert Haidl was informed
this by the letter of January 5, 1977 from the Official
Tl,lis ~u'm repres'en~s a bequest of $1,036.78 to each
r
of th'e' AP~el:,lants, (i.e. \fl.n, ~qual l-4th of l-8th shar~ of
Guardlari,'
$33,176.90).
No further ,s'um: from the deceased's estate has
,be~~ r~ce~ved tlr, eithe~ _the, ~ppellants or any person on their
behalf.
(Appeal
'Book
G,
140.
para'.-'
P:;
7;
4~a','
p. "3'2a)
liAr. aqual one-eleventh share Of 833,176.90 nmounts
to $:J,q16.08 an" an eq\!.a;L one-eig;hth sharo of
"$33; 176',. 90' amou'nts' to $4',147.11 and four times an
equal one,elev,enth share _of $33,176.90 is equal to
$12,064; 32, Ivhich 'sum exceeds an equal one-eighth
sq.are by $7, ~l?:. ~l." .
J~p})~,al
14~/I~a
Boo)!: ll"
_p,ara: 8)
Solicitors for the appellant beneficiaries, claimed
paym,e,nt,9f
by, l,fll't:ter
(tn
one-,eleventh s,hare for
c,la~ed F,ebru~r~ ,l~
~ach
of the appellants
add~essed
/' W77
to the executOl'S'
so:qc+tors_., ,
". (Apll:eal Book p. ,53!1r 'I,
7.
The
q~a~
Appellant~
made an
appl~cat1on
•
by way of an
Originating
Notice for a determination as to the proper
cOMtruc;ti0n-
.~p
'"Qno1,l1'~bl,~
be :pla-ced, ?11. the Will, which was heard by the
Mr .. Jus,\:i,C,E! K.. R.
,Jus'!:ie6, K. R., HalvorsQn
Halv?r~on.
f?~nd ~ha~ __ th~
" were_, ..elltit1.ed to, share a.m.ong them,au
the residue of the est,a;te and wer,7
share each.
"i
- 47 -
The Honournble Mr.
appellant children
~me-eigl\th
~ot
interest in
enti tled to one-eleventh
)
1 -
PAnT
[I
AROW,IENT
The intention of t.be'testator
CRIl
be ascertajned
fl'om
the Will i f the \\"o\'ds are given the 'Datural and grll.!llm.at.i..c..al
meaning and accordingly i t 1s against tlla law, the evidence,
and the woight of eviaertCO to interpre't the Will otherwise.
1.
The principli9s' governing tlie interpretation of wills
can be found in the Halsbur}"s Laws of England (thh'd edition)
Vol. 39; at
p.
985' para 1492:
:"It 1s It'ganaral"rule applicable to all wills,
that, unless it appears from the context of the
_I, .
1'111016-'1'1111 that the testator intended a
different meaning to be given to the words,
ordinary"words' are to be Iirst read in their
. grammatical and' 'ordinary sense."
)
at p. 951, para.' 1439\"
"Where the will must be In'-wi-iUng, the only question
is, what is the meaning of the words used in that
writing ,- ,The expressed in-ten'tion is in all cases
taken as the actual intention, whatever the
testator in ,fact' 1'ntendEI(1.,' arid the court cannot
give effect to any intention which is not
,expressed ;01" implied in the'language of the will."
2.
The provision of the Will in question specifica-l.ly ,
, states:
3(h) " 'To deliver all the rest and l'esidue of my
Estate .. , .•... to the following persons in equal
shares, ,'shar.e and share alike:"
The word "'person"- (the plural" member of whiC'_h
being '''persons,'') is defined in Webster I s New Intel'na tional
Dictionary 1930 and in the Shorter
as an individu'al- human' being.'
01"
- 48 -
)
Oxfc-·.·~:
English Dictionary
- 3
)
'i'hat the learned Judge crrcd in law i.n allowing
himself to be influenced by ovidence of circumf'ltances
extraneous ·to- the will and by resorting to the rules of
construction when the intention or the Testator can be
ascertained by giving the ol'dinal'¥ meanings to the Iyords
used.
3..
In
th~
absence of ambiguity, absurd! ty. repugnance
or inconsistence, eVidence of circumstances extraneous to
the 1all should;not be admitted.
~
:'
4.
1n,:21 C.E.D. p. 480, tile last paragraph reads:
r !!In ;01;'d61' to justify a departure from tho natural
and ordlnary mean;i,ng of any Ivol'd or phrase there must
b\3, found in the instrtlment containtng a context
Whicb necessitates',or justifies such departure.
It
is not enough that the natul'R.l and ordinary meaning may
produoe results ,whlch to some minds appear capricious
or fail to accord with the logical scheme of
disposition,"
'I.
0"
"
t
,See also Betsh1ska
v'
cpdJt.:(l968), 62 IV.W.R. p. 581, (Sask.
,~ .. A,'.> j . R~ pat't~n :,Es ta t ~ j' , ,PO'"t"t"o"n,-,Vc.,--,T"o"r,o"n"t"o,--,G"."nL.,-,TLrcu~s'tcs,-,Cl'o""rp""n~.
.r
I'
('1930) 4 D.L.R,· 321 in, which ,it lYas manifest from the \"111
",
th~t ,it has to submit to· construction, National Trust Co, V .
Fleury
5.
(1965) S.C.R... 817
It is respectfully submitted that the learned Trial
Judge, upon f1ndlng ,that 'the ,\Vords were clear and unambiguous
_should have given them their ordinary meaning and from such
", words deriv;ed the intent of the testator and as the Will states
deli,vered ItO 'eaoh of, the 'persons listed' an equal share.
I,:
6.
It is, respectfully s\i.bmitted the 1ar,ruod Trial Judge
misdirected himself in Jaw : ".... ",,,iung the int(>cntion of the
testator fl'rom evidence extraneous to the Wi 11,
The la\\" 1s clear
that such reference is justi!iCld only where the \vol'ds require
- 49 -
- 6 -
)
i~tcrpretation.
7,
In lIalsbury's La\ys supra, Page 9513, para. 1446, it
is stated:
"Evidenoe, hOlv<\lvel', is not Mimi tte(! to enahle the
Court to construe n will where the words thenlselves
require no interpretation, but the difficulty is
only 1n the construction of the sentence in which
the words occur. Where, therefore, the matter
in d.oubt does not relate to'the persons and things
described by the will, then, even though it can
be SIlOIYIl by evidence that the intention 0:( the
testator was different from that shown by the
language ot ,the will, the language of the will,
it clear, must settle the rights of the parties."
in: NuU-onal 'rrust Co, V.
'i
at p. 82fl
}'loul'~'
(H)G5) S.C.!C fa?
'-H"
<.f
"In the construction
will~, th(l pl'ipl~ry PIIl'))(lSO
ls to d0tel'mjn<~ t.he intention of tl10 t08tntor and
1t' ,is: only whon 's'ue!"! intClnthm {'.f>.nnot be al'l'iV(~d
at W.ttll reasonablo (:('l'taintr by uivi.n!~ ~he natural
ane! ordinary monninr to lhe ~:ord$ whIch ho has m;ed
thnt l'Oi;!Ol't is to, be hnd ~('1 tIm rules 0 r cOIlf.Jt)'llct:i.on
wHich" hnv(~ boen '(!c,velopcHI br the courts in tho
in:t!3r~~'e.tati9n, .~f o~hcl' \I'.i.lls. II
)
(lIpp~:.iI
; I
8,
nciok p.,
~a,
+'in08?4 to :i2)
Evidence of surrounding circumstances would be
admissible 'to dis'cover th'e 'meaning of 'the words which will
give the Will full effect, 'where the words of the Will have
J',-'
"no reasoriable application
t'o •the circumstancE's proved as,
, : r,
for example, where the e1rcumstfln,ces discl(')se ambiguity as
to the identity of e1 ther the gi ft i tseIf or the beneficinr)'.
,- ;(Se'e Higgins V. 'Dawson (1902) A.C. 1; Doe d. lUscocks v.
Kiscocks (1835 - 42)' Ail E.R'.' p, 380; G1t\Ssington V. Follet
('1906) '2 Ch,'305'Re Sha:mas "(1967)"63 D.L.R. (2d.) p. 300,
"On't'. C.A.).
9,
The d~clsion or Canada Parm~nE'nt Tl'ust Company V.
ShlWfI et al 25 W.W.R. 638, upon which the lC':l.rned Trial Judge
)
relied, <\',PS not ju!:'ti rr tile intl'oduction of e-xtr.meOlls
- 50 -
7 _
)
evidence because the amhiguity that existed in the decisi()n in
re Birkett which set out the j)l'i'nciple relied upon by Ooj1'on,
J.
J
does not exist here.
In the Birkett decision the phrase
being interpreted was as fol1ows:
"unto and equally r.etween the chtldl'Gn of my decE!ased
sister Urs TOYIle ~nd the said Frances Holland
abso~titel'y."
10.
"The
.",'
~mblgulty'
ther'e was whether the t€!statrix
intended hal' estats to 'go to the children of Frances Holland or
to Frances Holland.
,11.,
It is respectfullr 'submitted that in -tha facts before
Doiron, J., there is no similar' ambiguity and his conclusion
c
~hould hl\v~
,
properly beenr'l'eached based on the words in the
Will :if ,'they, were ,given itlle ordinary meaning.
!:
12.
",
Ti'~e, i~a~lled Tr1a( Judge in his decision states:
"The:'wor<ls bEitfore me are clear and unambiguous and,
,==!ta,teml'lnt;s, tn, the affidavits wi th respoct
to 'extraneous circumstances,' and, especially, the
statements which waX'e meant to influence the court that
the testator intended a certain interpretation
to be placed upon the clause in question are totally
inadmissible and \vi11 be disregarded by me."
(-\PP.:;~<...I~""('I"', Sa.. .1'\1/34)
.ther~.:fore,
"
_,
13 1 ,
, I""
"
Yet he proce,eds 1,ater in his judgment to state:
_liThe p_rohibJ,.t;ion relating to extraneous considerations
does' not apply to the paragraphs in the affidavits filt'!d
which merely, ,.give, th~: cour,t ~n:lormation as to the
relationship between the testa.tor and tbe beneficiaries.
(Appeal' Book p. Gn lines 11/14)
14.
It,
i~
submit,teq tha.t
InfOrm~tion
concerning ·the
relationship ,betweep. the, t?stator and the beneficiarif:>'"
.""~ IlC~
Judge found the words to
I)f'
;::~ .... :
the trial
and unambiguous, stich
,
i.lfol'nm.tlvll should not have been referred to and used by lIis
Lordship to ascertain a, different intention.
- 51 -
- s -
)
l~j.
'fhis conclusion is substantiated by the words of His
Lordship-where he states at p. Sa line 7 of the Appeal Book,
nfter examining the relationship betwElen the testator and the
IJenefi<;iary:
"I
"
"All of thi3 leads me to the conclusion that
"it li'ns the {ntantion of the testator that ther<..;
will be a division per stirpes and not a equal
per capIta division in regard to sub paragraph
(yiU ~ ,"
,~h~ l~arned
16.
arising
11'001
Trial Judge did not find ambiguity
the contej'tt in ,which the words \\'ere used.
,
11.
Even if the learned.
Judg~
properly considered extrensic
"
evidence of relationship, it is submitted that he improperly
distinguished the present case from the case of r6 Alcock (1945)
1 All E.R. 613 in which i t was held that a bequest of residuary
estate' "upon trust to be 'divided equally between my nehpew
)
Reginald Seville a:nd 'the tree cb,lld'ren of
mr
COUSin
absolutoly"1 meant a division among thE:! five participants
in equal shares,
The learned Chamber Judge drew the distinction
on the ground that the beneficiaries in that case were of the
"
same generation I\\€re in the present case the beneficiaries are
not
.1'
dt'
'equal l'elatiorlship to the testator holding that the
Appellants ~re s6!angers'to the testator upon reliance Qf the
passage
of
Evershed, J.' at p. 615
"It might well be a most important matter that if
you take. the case of A and the Children of B, B is
. il:\"a, ait:ter~nt relationship to the testatol' Irom A,
- for e~ample if A is a stranger and B is a brother
sister~' 'or i f the result is that A and the
children of Ir hl'ing different generations into direct
connection. Then you may well sar that the intention
of the Will 'is not a division per capital but a
division in effect per stirpes."
or
(Appeal Book 7a Lines 1/21)
It is rc~p('lctI\\llY subm.i. ttod thnt tho lenrllcd
Char,ll)er Judr,e accepted ns n l'ule of const-r,lctioll
)
somp.thilll~
that is put by Evcrslmd, J. as n supposit.i.on -:n tha.t tho
words used arc:
'''.'
, "I,t m:ty,ht. \\'011 be .... T.lwlI ~'OH t·a~
• 52 •
11'011 say."
- 9 -
In fact the learned trial judge ascal'tained the
15.
intention of the testator Crom the infol'lliation extraneolls
to the Will.
(J\ppeal Book P. 8 Ca) lines 7 - 10)
The learned Trial Judge did not find ambiguity
16.
arl'Sln'g'from th~'o;:ontext in which the words were used, but
rather' only' fro,~, the \~ords used.
(Appeal Book P. 6 (a) line 36)
It is respectfully submitted that the learned
trial -'Judge' acce);)ted' as a rule of law something that is
put by Evershed, J., only as a Rule of construction, to be
used '\vhar6' the same words are being interpreted.
That the, learned jUdge ,erred in law in holding
,.that the evidence r91aUng to the relationship_of the
I. '
beqeficiaries 'SUPP01't§ the conclusion that the Testator did
not intend a per capita
17.
As
distrib~t~
pr~Vlously ,s'r;~
out, tho court need only to look
to the words ~! the W1.l:). to find the 1;estator~ intention
unless there -o;lxi$ts an_ am1?i,gUi 1;y on the face thereof.
~n ~l
C',E,Q at
Il"
480,
tq ju~hfY a departure from the natural
and"brd1nary meaning of any word or phrase there
ni~$t,_be fO,1.1l)d _~n the instrument containing a
context Ivhicb Recessi tates or justifies such
,deparil.lre. It' ~s not enough that the natural and
ordtnary, met1.ning may produce results which to
some minds appear capricious or fail to accord
with the logical scheme of disposition."
,~'In o;oder
,,
The leal'ned ,1udge i"'llnd
tl1.l.~
it is
"pc.~,:<dble,
hIlt R:>t IlCCul'ute" to arrivo at a per capita division by finding
":
.,
the appellants to the family.
It 1s submitted that the
lenrned ,ludgc, erred in referring to
the rela-Lionsllip of
the benefic:laries to tho testator, as no \'cfe,'encQ to
relationship is found on the fuce of the Will.
"'(l\ppenl BooK' p. Sn lihe'13)
- 53
- 10 -
Furtlwl', or in the alternative, it is submitted that
even if the learned Judge was correct in considering extrinsic
evidence relating to the relationship of the beneficiuries to
the
testator, then he misdirected himself as to the correct
rule.
or ,cqnstl'llction
to be applied.
The law mal<es no
prARUl)lotion about the entitlement of the testators relatives.
It is to be noted that "there is no presumption in
the case of a Will that the children of the
;testator' are intended to be provided for or to have oqual
. ".
,"
benefits.
In:-ccinstruing a Will the
onl~'
guide is the
language of the testator, and there 1s no supposition that
,i
'i
any person ,1s in,tended.;to take except those who are
described as takes."
_~.Ha:lsl)Uryls,Laws'r:'o~.
39, supra., p. 999 !)Rra. 1511.).
)
,,,
qnder cer,t,ain circumstances, Step-grandchildren
or step-children can be classiIied generally as grandchildren
or children. In the case of Re Harmer (1964) 42 D.L.R. p.
321, Onto C.A., the Court held that "grandchild" referes
to the grandchiid of the husband of the testatrix.
"Step-grandchildren are ~ot -neces~~rily strangers.
Hence,
In
He Jamieson Estate': (1959) 29 1I";k':R., Man. W.B., P. 650, i t
was'held that the"'stepdaughter \\tas, tn the special
cir"cumstan'ces,' inte'nded :to be included in the words "my
four children."
Renee," step-children or step-grandchildren
are not, by necessi'ty, to be considered as strangers and
not part of the family.
"'"
'
Further, ,if indeed the children of lierbert Huidl
are "strangers" and not family as the learned trial judge
put it, (Appenl Book p. Sa lines (1/2), on the basis of the
)
. 54 .
•
-
11 -
)
cases, In re Unll(l948)l Q1.0.4.37 and In 1'9 Birkett. (1950)
1 eh. D.
330
Le., stirpital distribution does not apply
'in tlHH i t applies only to family c\istrilmtioll and not. to
a case where there was a family on one oulr siele of the bequest.
In the ea'sa 0'[ ItI're"Hall, Harm Jr, stnted:
,
.
"Thi's cdnst.l'uction gives effect to the stirpital
basis which I should expect in family gifts."
In 1'9 Holland. Danckwerts J .• stated:
"Harman J. in 10 1'9 Hall said that cases of
stirpital distribution \Vere cases of what
,be·,called family"distribution ., ....•.•. where
there was so to speak, a family on one only, side
. of, the:bequest, the rule enunciated by
Harman J., •...•. ,. does Ilot apply."
TIl'at the learn'ed Judge erred in law in holding
that the absence- of the word "and'" at the end of sub-paragraph
(VII) of 'the-
11':1."11'
s'uI;!POl'ts' t'he' conclusion that the Testator
did not intend a per capita distribution.
'(Appeill BOOk' p'-'8a, lines 20/27)
The learned Judge refers to a prima facie rule of
per capita division (Appeal Book p. -8a Une 23). and
,
he cites What is apparently a quote from Re Alcock 1945 1
,~11
,
E.R. 613..,' ,It, 1s re~p,e'ft.f",lly :;ubmitted that the learnGd
J~~!ite
law
,misappl+ed _tha:1:
somethi~,g
that" has
of con::;JtructioFl
C,ll-se.,
,~eep
applicab~e,
He has accepted as a rule of
put by Evershed, J., only as a rule
on,ly where the same words are
.intl(lrpre1=ed., ,In National Trust Co. V. Fleury, (1965) S.C,R.
817,
R1.tc,!)~e"
J. -sa,id,
"It is to ,be ,remembered that such rules of
construction are not rules of law and that if their
application results in attributing to the testator
an intention which appears inconsistent wi th the
,scheme ot the will as a whole, then they are not to
prevail .•.
His Lordship went on to quote from 4 Law Quarterly Review
at p-. <188 ':
55
- 12 -
)
"IL rule of construction merely means that the
Court has, in a Sf!ries of cases, attachod It particular
meanjllg to a word or collocation of lVords, and
will do so again if there is lI0 reasonable ground
for distingUishing the former cases."
In the. present case, .His Lordship attempted to apply the
reasoning of He Alcocls,to find that the 1I'0rd "and" IVOllld have
,
triggered an intel'protation favouring a per capita division.
However,
Be AlCOCk lYas a case wherein an ambiguity in
discerning the testator's intention arose due to the use of
the word "between" which I the cases show, has been
judicially interpreted as manaing "among".
This required
the Court to lools to extrinsic evidence of relationship and
,I.'
rules of construction to ascertain the intention of the
testator.
In the present case there is no lVord which creates
such an ambigui ty, and resort to (',ases such as Re AJ cock
cannot be had.
Alf of which is respectfully submitted.
DATED the- 2~rd day of. November, 1978.
,,
~
A: JQH~ REKE
of Counsel for the Appellant
• 56 •
)
-
13 -
TABLE OF C;.st:S CITED
(1)
Reishishiska V. Cody (1968)
62 tQ.W.E. p'.
(2)
581,' (5as1<. C.A.)
Re Patton Bstate; Patton V.
Gen. Trusts Corpn.
(3)
(4)
(5) ,
I
(6)
(8)
(lO)
(11)
,
321
Higgins V. 'Dawson (1902) A'.C. 1
,,:coe d. HiScocks V. Hiscocks (1835
All E.R. p. 380
5
6
~
42)
Glassinqton V. Follet (1906) 2 Ch. 305
"
Re Shamas
(1967) 63 D.L.R.
6
6
(2d) p. 300
onto C'.A. -J'
6
Canada Permanent Trust compan~
Shave et al 25 W.1'I'.R. 638
6
"
(9)
Toro~to
4 D.L.R.
National Trust Co. V. Fleul-Y (l965)
'S.C.R. 817
,!I
(7)
(1930)
5
'
In Rs Birkett (1950) 1 Ch. D. 330
7, 11
Re Harmer (1964) 42 D,L.R. p. 321,
onto C.A.
10
'Re Jamieson,Estate (1959), 29
Man. 1'1.B.; P. 650
lLI~.R.
(12)
In re Hall (1948) 1 Ch. D. 437
(13)
Re Alcock (1945) 1 All B.R. 613
10
11
9,11
,"
m
57 _
)
)
ON APPEAL FROM
THE COURT, OF QUEEN'S BBNCH
JUDICIAL CENTRE OF ASSINIBOIA
BETWEEN:
SAMUEL ALLEN POPESCU, of Kayville, in the
province of Saskatchewan,
PLAINTIFF
(RESPONDENT)
- and CH.QIS L. PEDERSEN', STANLEY J. NORMAN,
DERRIL G', McLEOD, DoNALD A. TODD, E. F.
ANTHONY MERCHANT .. "C. GEORGE MORRIS and
W." ROBERT PELTON,' all of the City of
,I. .
'Regina, in the Provihce of Saskatchewan,
carrying on the practice of law under the
style and firm name of pedersen, Norman,
DEFENDANTS
(APPELLANTS 1
)
,-" '
FACTUM OF THE RESPONDENT
)
OERRAND I GERE IN, McLELLAN & MULATZ
BARRISTERS AND SOLICITORS
201-1822 SCARTH STREET
REGINA, SASKATCHEWAN
- 58 -
ON APPEAL FROM
THE COURT OF QUEEN'S BENCH
JUDICIAL CENTRE OF ASSINIBOIA
BEn/EEN:
SAMUEL ALLEN POPESCU, of Kayville, in the
Province o~ Sa~~atchewan,
- and -
PLAINTIFF
{RESPONDENT}
CHRIS L. PEDERSEN, STANLEY J. NORMAN,
DERRI~ G. McLEOD, OONALD A. TODD, E. F.
ANTHONY, MERC~T, C.- GEORGE MORRIS and
W. ROBEllT PELTON, ,all ,of the City of
Regina" in tlie Provinoe of Saskatchewan,
ca.~rying on the pr~ctice of law under the
~tyle ~nd f~rm name ~f Pedersen, Norman,
DEFENDANTS
(APPELLANTS)
FACTUM OF THE RESPONDENT
It is respectfully submitted that the appeal must
proceed on the assumption that the allegations in the
Statement of Claim are correct.
There is, therefore, appended to this Factum the
fOllowing:
(1)
A copy of the Statement of claim filed
and served hereinl
(2)
A copy of the Fiat of the learned Chamber
Judge.
,;'
,(
- 59 -
)
-
2 -
II.
ISSUES
The main issues in this appeal are:
,(l)
Whether the
lear~ed Ch~mber
in~erpreted
Rule 42 of the Rules of the
Court ,of ,Queen,'s
~ench,
Judge correctly
0.£, the Province
of Saskatchewan, 1961;
(i)
Whether the Respondent's (ilelm against the
Appellants. is solely in the alternative I and,
("
Whether the learned Chamber Judge's discretion
was exercised on correct principles of law
and whether his decision is in accord with
the 'weight
)
Rule, 42 of the
provides as
" .
'0'£ authority.
~ules
of the Court of Queen's Bench
fOll~ws:
"Where the _plaintiff, claims that the sarne
,\.,
)
traniii!l.<:ticin- or occurrence, or series of
transactions or occurrences, give hinl a causa
of action Q..~-. causes of action against one or
more persons/ or where he is in doubt as to
the 'person from whom he is entitled to redress,
he may join as defendants all persons against
whom he ciaims any right to relief, whether
jointly, severally, or in the alternative; and
judgment may be given against one or more of
the defendants according to their respective
liabilities. The' court may order separate trials
or make such other order as may be deemed
expedient, if:such joinder is deemed oppressive
or unfair."
- 60 -
)
- 3 -
III.
ARGUMENT
Joinder of the Appellant Law Firm
The Respondent adopts the reasons of the learned
Chamber
Judge
in concluding that the Respondent properly
,
joined
the Appellants and that the action was not premature
as a9ainst the Appellants.
,1.
Interpretation of Rule 42
, The Respondent 'submits that the plain meaning of
Rule 42 is sufficiently broad to allow joinder of separate
"
Defendants as well as separate causes of action.
Rule 42
permits joinder in,two instances:
'."
(a.), . J"1he:.::~. the Plaintiff claims that the
same transaction or series of transactions
9ives' him a cause; of action or causes of
action ~qai~~t' one or ~'ore persons;
(b)
WherE! the· Piain~1ff is in doubt as to the
per,son frQrn whom ,he is entitled to redress,
J;l,e' 'ilia!! j:Qin as ti~fendants all persons
al1'ai'n'st whom' he claims, whether jointly,
>,
's,everaily or alternatively.
The only
{imitations in Rule 42 are that:
(i)
thEI Plaintiff must claim the causes
of action arise from the same
transaction or series of transactions I or
(ii)
the Plaintiff must be in doubt as to
the proper Defendant I and
(iii)
the jOinder must not be oppressive or
unfair.
- 61 -
- 4 -
There are few Saskatchewan decisions on the issue of
joinder' u~der Rule 42.
Equity Fire In$urance Co. v. Coulthard
Alexander Co., Lr90~7 8 W.L.R. 74 held that there could not be
joinder idf se'parate causes o'f action against separate Defendants.
However, 'this decision' was handed down before Rule 42 came into
'existence in 1'942.
McMurchY v~ N'ewton & Holmes,
Lt94g
J W.N.R.
138' (Sask. K.B.) allowed' joinder 'of separate causes of action
against separate oefertdants.
Bigelow, J. said that joinder in
the c'ircllIlIstances was not embaz::t:lssinq to the Defendant, nor did
it. 'cause inconvenience. '(olylie,
L.M. said that
the Defendant
would be protected' by the court " . . . as to costs in connection
.'
,
,
with any issue in Wh1Ch he is not involved or in which no relief
is'sought against 'him." (p. 141).
In Midwestern Mutual
Automobiie Insura;nce Co. v. North African Reinsurance Society
'and'S.G.I.O .. (l957) 20 W.W.R. 465 (Sask. C.A.) the court was
n6t in ;!gree1n'lerit as' to the question of joinder.
Martin, C.J.
appeared to 'say that joinder of separate causes of action would
not be permitted under Rule 42 unless there were allegations
in 'the Statement: of 'Claim to the effect that there was a
connection betweeri the c'laims against the Defendants.
Gordon
and Cullit,on, J .A. ;3aid that it should be left open whether
the ,j?i,nder .l:ias
they
h~ld
~orrect
in the circ,umstances.
In any event,
the joinder would be oppressive and unfair because
. t,~e oef,endant ,dili not reside in Saskatchewan, no part of the
contra~t
was
ef~ecte4
in Saskatchewan, and the Defendant's
witnEisses we;'je ,in the East.
opinion on the issue.
McNivliln,.J.A. did not express an
Carrington v. James, (1961) 34 W.W.R.
356 (Sask. C.B.) did not deal ,with Rule 42 but with Rule 39.
The court referred to Section 44(7) of the Queen's Bench Act,
saying it is' the well established policy of the law to avoid
mul ttp'tiei ty of legal proceedings.
)
- 62 -
- 5 Rule 42 is almost iQ_entical to Ontario Rule 67.
The
ontari,o .Rule was interpreted, in, ,canadian Steel Corp. Ltd. v.
(1933) O.R. 624 [19331
Standard Lithographic Co. Ltd. at al,
3 D.:t..R. 3?4 as permitting j?,inder of separate causes of
action.
Fisher, J.A. at p,' 630 said, "The object of [Rule 67J
is to avoid, "if possible, tile e~ense and delay of the bringing
Qf two actions, if relief without inconvenience, expense or
embar;rassment can be given in.- one, action."
Latchford, C.J. said
that if there was any inconvenience to the Defendant, the trial
jU~9~"could ~ro,::j.de
for it by adjus:ting the costs of the action.
(See also Bath .at a1 v. Birnstihl. et a1,
770, (H.C.) on this point).,
(l97S) II a.R. (2d)
CheboY'i_an Camp Ltd. et al v. Dominion
Fire Insurance Co. et al, (19331 ,2 D!L.R. 499 (ont. S.C.) and
-
Thomas W. Sayle Transport Limited v. Rivers at aI, (1955] O.W.N.
.
32~ follo\o!ed Canadian Steel cO~P. Ltd., (supra).
In Rivers,
Judson, J. (as he then was,) said
now depends upon
conven~~n~E\I
question of law or .f<\c'ti-."
jo~nder ~~
324, "Joinder of Defendants
,and the existence of the common
(See Ouchak v. Boychuk and BoyChuk,
(1963) 43 W.N.R. 301 (Man. C.A.)
position on
at.p,~,
(~r
the Manitoba Court's
separate ca\lses of action.)
In Kanji Ho1din.cis Ltd.' and Springer Enterprises Ltd.
",
v. Musgrave, (1974]
i
W.N.R. 173 (B.'C.S.c.) a decision 'involving
the joinder of' a sollert-or, Hutc6;aon, '·L.J.S.C. rejected the
argument' that the British c01umbi~ equivalent of Rule 42 did
:lot 'allow joinder of separate cailses' of action.
He said at
p.'175 that there was no such limitation in the rule and no
reason to import one.
',l
In ,po;yshlack v. i)rbancie at a!. (1975) 63 D.L.R. (3d)
67 (Ont. ,H.C.) the court did not a11ol1 joinder of a solicitor
saying, among other things,
tha~ diffe~ent
against different parties cannot be joined
causes of action
in the same action.
However, the court gave no authority for this proposition.
- 63 -
)
-
6 -
'Two other Ontario -decisions did not allow joinder of solicitors:
Samuei v. Klein, at aI, (!976) 3 C.P.C. 21 and Moffat v. Filiatrault
~, (1978l 5 C.P.C. lSl~
The Respondent submits that as
Samuel and Moffat fOl'lowed Pryshlack, (supra), they are therefore
questionable 'decisions.
Furthermore, the learned Chamber Judge
in interpreting Rule 42 as allowing joinder of separate causes
of action, noted at p. 3 of the judgment that the addition of
"
• the extra words 'or causes of action' appearing 1n Rule 42
make that rule even wider than its Ontario counterpart, and
underscore an intention that several causes of action may be
joined. "
Summary
It is submitted that the learned Chamber Judge's
interpretation of Rule 42 is consistent with interpretations
)
in other jurisdic1;,ions of ,similar joinder provisions.
2.
The
It
Respond~nt'~
claim against the Appellants.
submitted that in the case at bar, the Respondent's
i~
'oauses 'of action' against the Appellants, and Adamache and Arque,
though distinct with respect to,some of the claims, arose from
the same' transaction - the sale of the lands.
As the Respondent
alleges in its Statement of Claim, Merchant was involved at the
outset, playing'.a major .role in the events that transpired.
FUrthermore, 'the Respondent's claim against the Appellants is
not :contingent upon the outcome of its ',action against Adamache.
The Respondent submits that regardless of the outcome of its
action against Adamache, it 1s entitled to look to recover from
the Appellants.
The basis for that recovery are the allegations
in the Statement of Claim, some of which are as follows;
(a)
,~h~re
was a
f~au~ulent
conspiracy between
Merchant and .Argue to defeat the interests
)
~f
,the ,Respondent as purchaser (Paragraph 19)
which act mayor may not reflect on the
partnership of the Appellants.
• 64
)
_ 7 -
(b)
M~rchant
That
failed to invest funds
depo~ited w~~h
:. ,
several
(j)
m~J?-,ths
him for a p_eriod of
,(pq.ragz.;aph 33(9) and
aryd the Rssp,ond.;mt is, _therefore
entitled to ,inte:r;:est on those amounts.
(e)'
That Merchant. improperly withheld money
from the ·Respondent (paragraphs 35 and 36) •
It is submitted that even though some of the causes
('."'
of action are distinct, the facts relating to those causes of
action ars so closely interwoven that to not allow joinder would
mesn separate trials with virtually the same evidence being
presented at each trial.
This would be highly inconvenient
for at least three of the parties as well as being expensive.
Summary' .
'It 'is respectfully submitted that the learned Chamber
Judge was correct in finding that the Respondent's claim against
t~e Appellants was not so'lely in the alternative.
3.
The learned Chamber Judge's decision and the weight
of authority;.
,The discretion of the court to ,allow joinder is
canvassed in the leading English case, Payne v. British Time
Recorder Co. Ltd. and W.W. Curtis,. Ltd. [19211 All E.R. 388
'(C.A.).
..
Scruttonl L.J. said ,at p. 393 that the test for
joinder is, whether there
is,~'
• .,', ,·a common question of law
or fact bearinq suffi'cient importanoe' in proportion to the
rest of :the, action to render it desirable that the whole of
the matters ,should be disposed of at the same time
•
This same test was applied in Samuel, (supra) but
Estey, c';J.H.C. 'held that the' factual relationship was not
proportionately important to the legal relationship between
the
parties to 'allow joinder to continue.
- 65 -
The Respondent
)
)
6 submit:;!,
~h:at
unlike Samuel, the factual relationship between
the parties in the case at bar is of paramount importance.
To 'do .justice' between the 'pard,ea r it is essential that all
issues be decided at the same time. AS is demonstrated in
, th:e" Statem~'nt
..- . of Claim,
. Merchant and the said law firm are
.
not simply,peFipherally
involve~
in,this matter.
Nor is the
Respondent's claim against the Appellants solely in the
aitEn:nati~e.
~hese tw6 ~actorl1l~ it is submitted, are sufficient
to distinguish the case at bar from. Ithe" Ontario decisions
(Pryshlack, Samuel and Moffat,' sl1pri) relied on by the Appellants.
,
Wh~tl)er
9ns looks -only to', the words of Rule 42 for
the learned Chamber Judge's discretion
-'~~tU~tonl
~r
whether one accepts
L.J.' s tesl:' for· joinder, 'it is respectfully submitted
that the ,deciSion apJ;>eal,ed from is: correct. Furthermore, joinder
.
,
of the Appellants will no't be oppressive or unfair as in
Midwestern -'Mutual Au_tomooile rnsura'nce Co., (supra).
)
As the
learned Chamber Judge pointed out at p. 7 of his judgment,
,I'ferc~nt
,'"
would be undoubtedly,
the' principal witness and it
-
would be less inconvenient for him to testify once rather
th~n: several -times ,if jOinder' were not allowed.
Sununar'l
~t.: ~S1
respectfully Sl,lbmitted that; all of the factors
hereinbefore set out
clear~y
indicate that the Appellants were
properly joined in: the witihl.n' action.
G.t,' GERAAt-m, ?l.c.,
Counsel for the Respondent.
)
- 66 -
,-
-
)
LIST OF AUTHORITIES
".,'
Bath et al v. Birnstihl et al, (1975) 11 a.R. (2d)
770 OCC.)
2.
Canadian Steel Cor
o.
, :
t. e
i _"
a,
.
\
ration Ltd. v. Standard Litho ra hie
O.R~
624,
,I I . -,
9
D.L.R.
9
C.A.)
r'I'
l.'
carrinqton v. James, (1961) 34 W.N.R. 356 (Bask. Q.B.)
4.
Chebo
an cam
~;
Ltd. et a1 v. Dominion Fire Insurance Co.
• • R.
nt. .C.)
(l963) 43 W.W.R. 301
,"
6.
E utt
Fire Ins ranee Co. v. Coulthard Alexander Co.,
W.
Bask.
7.
s.
,.
10.
i1.
12.
McMtirchy v. Newton and Holmes,
(Sask. K.B.)
[1944'] 3 W.W.R. 138
-J.
Moffat v. Filiatrault: at"d, (1.978) 5 C.P.C.
paaite
I~'
v. British Time Recorder Co., Ltd. and W.W. Curtis,
.[1921-1' All i.R" 388, (O.A •. )
1."!)'~'"h~1••"C~k':Tv".-"u,rBb.a"n"C"i"c-!,.,t-"a,,,1
(Ont.
(Ont. H.C.)
a.c.)
13.' SamUel v: Klein et al,
, (19 7 5 )
63
O. L. R. (3d)
(i.9i6) 3 C.P.C. 21 (Ont. H.C.)
14.
15.
Rule
Rule
Rl,1le
Rule
'Rule
67
42
43
50
56
57
16.
"",,","'7), The Queen's Bench Act, R.S.S. 1978,
Chapter Q-l, as amended •
• 67 •
)
CITATIONS RE:
ADVOCACY IN THE COURT OF APPEAL
(CIVIL SIDE)
Extendiilg time for serving and' filing Notice of Appeal.
A.
Cairns v. Cairns',
Geck v. Geck,
119311 3 W.W.R. 335 (Alta. C.A.)
(1944] 3 W.W.R. 607 (Sask. C.A.)
Jesske & Jesske v. Klein, (1947] 2 W.W.R. 888
(Sask. c.Ad
.' '"
Bird Construction CO'. v. Maier to S.G.I.O.,
(1949] ,1
w.w.n.
920 (S~sk. C.A.)
Shukin v. N6vakshonoff (1978 Sask. Decisions)
Sask. D.C.
Eidsvik v. Shepherd·, Bond, (19751 4 W.W.R. 105
(S.C.C.A.) ,
'University of Sask. v. C.U.P.E., et al,
2 S.C.R. 830 (s.c.c.),
[19781
,,;
)
B.
Application to the Saskatchewan Court of Appeal for leave
to appeal 'to' the Supre~e
Court; of Canada.
, ,
f
C.J.S .J
Court
dat,ed oc.toper 18, 1979
"
Lake Erie & Detroit River Ry. Co. v. Marsh,
(1904) 35 'S.C;R. _197
(1957) 21 W.W.R. 496
C. v. K. at ux,
(1960)
31 W.W.R. 45
'untere!ner'v. Oormuth, et a1,
41
W.W~R.
24s
(S~sk.
C.A.)
(1963)
, Walker v. Sharpe,' (1921] 1 W.W.R. 11"27
,(Sask.. ,C.A.J,
Halifax v. Johnson,
(1975J N.S.R.
(2d) 683 (C.A.)
Hubbuck & Sons v. Wilkinson, Heywood,
1 Q.B. 86
118991
Cherneskey v. Armada1e Publishers Ltd. (Sask.)
[1974} 3 W.W.R. 10; 119741 6 Iol.W.R. 162
)
- 88 -
- 2 -
Charneskey v. Armadale Publishers Ltd. (No.2)
(Sask.)
[1977] 5 W.W.R. 155; Can. 11978]
6 W.W.R. 618
Act oils Ltd. v. Pac. Petroleums Ltd.,
r ,W.W.R. 369 ,(Alta. C:A.),
C.
{l9761
Disturbing of findingsof fact of trial judge.
I' ;.' ,
Hal·l.Q~~9
v. CNR Company,
538 (Sask.
(1955) 16 W.W.R.
C.A.)"
Maze v', Empson, (1964J $.C.R. 576 (S.C.C.)
f.rom 'Sa~k. C .11.'._ .
Marklin v. Ewaniuk, at aI,
1
(S.c.C.,
",'
{196S] S.C:R. 776
Joseph "Brant Memorial Hospital, et al.,v.
,'Eli:: aI, tl97S) 1. S.C.R. 491 (s.c.c.)
:",-',
'!Sodor,
(1978\
5 W.W.R. 667
T. Eaton Life Assurance Company v. Mitchell,
[19771 1 W.W.R. 420 (Sask. C.A.)
Robins v •. National, 'trust_ Co.,
692 (P.c.)
,"
,0.
(1927] lW.W.R.
Interfering '':''ii:h d.i~cr~tiQp.'! ~s exercised by trial judqe.
Wood Y.
W~od; '(1931J
Evans v. Bar.t1am,
2 W.W.R. 190 (Sask. C.A.)
[f,9,S,il l ,2 All E_.R. 646 (H.L.)
'lule y-. Citr of Saskatoon, (1954) 13 W.W.R. 369
(S.ask.
C.,.. , ,
;
~',
'. :.
'.
Schneider Y. Schneider (unreported decision of
sask. C.A. of Apri~ 16" ,1979)
Birkeland
y.:
iHrk'e1~n:'d (unreported decision of
,sask~ C.~. of ' March
15,
1979)
Dufault v. Stevens, (i97S') S6 D.L.R. (3d) 671
:' (B.~.C.A.'l
89 -
)
- 3 -
E.
Principles respecting appeal from an expropriation award.
per
F.
Agreement as to Contents of Appeal Book where appeal is
taken from Chamber Judgment.
Haidl v. Sacher, at aI, (1978) 5 W.W.R. 199
(affirmed by Sask. Court of Appeal November 22,
1979 in decision presently unreported)
G.
Notica of Appeal where questions of fact and law are dealt
with at length and where Appeal Book by Order will be in
Supreme Court form.
MacDonald v. Hauer, {1973) 3 W.W.R. 484,
)
(trial Judgment)
[19771 1 W.W.R. 51; (Court of Appeal Judgment)
H.
Material supporting application far leave to appeal .to the
Supreme Court of Canada.
Chernaskey v. Armadale Publishers Ltd. (supra)
I.
Factum of Appellant.
Haidl v. Sacher, at a1 (supra)
J.
Factum of Respondent.
Popescu v. Adamache, et al, (19791 6 W.W.R.
73 (Judgment affirmed in Sask. Court of
Appeal september 26, 1979, that decision
is yet unreported)
• 90 -
)

court of appeal documents by gerald l. gerrand, qc

Transcription

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