MUNICIPAL CORPORATIONS. | plication to sec. 129, sub-sec. 3 (a), 1. Quo Warranto Proceedings and the statutory declaration Cross-examination on Affidavits- Master in Chambers-Powers of.] Semble, that sec. 93 of the Con- -In proceedings instituted under solidated Municipal Act, 1903, to the Con. Mun. Act, 1903, 3 Edw. the effect that when joint owners VII. ch. 19 (0.), to unseat a or occupants are rated at an member of a municipal council, amount sufficient, if equally. the cross-examination of affiants divided between them, to give a on their affidavits can only be qualification to each, then each had on leave obtained therefor shall be deemed rated within the from the Judge or Master in Act, otherwise none of them shall Chambers or the officer before be deemed so rated, does not whom the proceedings are being apply to the qualification of carried on, who must take such candidates. cross-examination himself, no authority being conferred on him to direct any one else to do so. Rex ex rel. Beck v. Sharp, 267.
Where persons elected as con- trollers of a municipality, when purporting to make the declara- tion required by sec. 311 of the 2. Controllers Qualification Consolidated Municipal Act, 1903, for Office Declaration of Quali as to their property qualification, for Office Declaration of Quali omitted the statement as to en- fication Commissioner for Taking omitted the statement as to en- Oaths and Affidavits-Consolidated cumbrances contained in the form Municipal Act and Amendments- embodied in the section, and in Canada Evidence Act. The place of it stated that they were Act.]-The statutory declaration as to the "in the actual occupation of the possession of the necessary quali- advantage of the provisions of said premises," intending to take fication for office required by sec. 129, sub-sec. 3 (a), of the Con- sec. 76, sub-sec. 1, by which the solidated Municipal Act, 1903, 3 value of the property, if occupied, Edw. VII. ch. 19 (O.), as amended if otherwise sufficient, shall not be by 4 Edw. VII. ch. 22, sec. 4 (O.), affected or reduced by the in- from every candidate for the cumbrances:- office of mayor, reeve, etc., in Held, that this was a sufficient cities, etc., may be made before a compliance with the provisions commissioner for taking affidavits, of the Act, and the declarants and need not be expressed in the were not to be prejudiced by the form of a statutory declaration fact that the Legislature had under the Canada Evidence Act, failed to alter the form of declara- R.S.C. 1906, ch. 145, sec. 36. tion in sec. 311, suitably for such Section 315 of the first mentioned a case. Act, which requires the head and Held, also, that the fact that other members of the council and in the declaration in referring to the subordinate officers of every their qualification, the declarants municipality to make their de- had used the present tense in- claration of office and qualifica- stead of referring to the time of tion "before some Court, Judge, the election, was not a fatal police magistrate, or other justice objection, and an opportunity of the peace, having jurisdiction should be given to them to file a in the municipality." has no ap- declaration in the proper form.
Rex ex rel. Milligan v. Harrison VII. ch. 4, sec. 24 (0.).]—In et al., 475. voting on a local option by-law, 3. Negligence "Lock-up"-Lack under the Liquor License Act, of Proper Heating-Duties of Con- which requires the assent of the stable Caretaker Acting in electors before the final passing Governmental Capacity-Consoli- thereof, the voters' lists, when dated Municipal Act, 1903-3 revised and certified by the Judge, Edw. VII. ch. 19, secs. 493, 495, under the Ontario Voters' Lists 520, 578, (0.).1-A municipality Act, 7 Edw. VII. ch. 4, sec. 24, which maintains a "lock-up" is are (with certain exceptions speci- not liable in relation to prisoners fied in the section) final and con- who complain of negligence on the clusive evidence that all persons part of those in charge thereof, named therein, and no others, are as, for example, in this case, of qualified to vote on the by-law. causing illness through lack of Voting on such a by-law is an proper heating. In maintaining "election," and a motion to quash such a "lock-up," a municipality the by-law is a "scrutiny," within is not exercising its corporate the meaning of the 24th section. powers for the benefit of the Re Cleary and the Township of inhabitants in their local and Nepean (1907), 14 O.L.R. 392, particular interests, but is per- not followed. In re Mitchell and forming a public service entrusted Corporation of Campbellford, 578. Election-Declaration
to it in the interests of general 5. A constable in
charge of such a a lock-up." Qualification - Invalidity though appointed by the munici- Property Qualification Assessment Fixed Assessment- pality, is not to be regarded as the servant or agent of the corpora- Including School Taxes-Invali- tion, but as a public official, for dity of By-law Conflicting decisions civil Interest-Contract with Corpora- responsibility does not attach to tion Corrupt Practices-Evi- the municipality.
Per MABEE, J.:-In this case the negligence complained of was that of one who, though a constable, was acting entirely as servant of the corporation, employed in tak- ing care of the municipal buildings of which the "lock-up" was a part, and the defendants were therefore liable.
dence-Powers of Master in Cham- ch. 19, secs. 129 (3a), 204, 311, bers-Con. Mun. Act, 3 Edw. VII. The Consolidated Municipal Act, 93, 591 a (g), 219 (2), 232, 248.]- 1903, 3 Edw. VII. ch. 19, sec. 129 (3a), as amended by 4 Edw. VII. ch. 22, sec. 4, requires every can- didate for the office of mayor or councillor in a town to file in the office of the clerk of the muni-
An answer of a jury to a ques- cipality a statutory declaration tion submitted may be rejected of qualification in accordance with as insensible or at unreasonable the form contained in sec. 311 of variance with the other answers. the Act or to the like effect, in Nettleton v. Town of Prescott, 538. default of which such candidate 4. Local Option By-law-Motion shall be deemed to have resigned to Quash-Adoption by Electors- and his name shall be removed Voters' Lists-Finality of from the list of candidates. By Meaning of "Scrutiny"-7 Edw. 6 Edw. VII. ch. 34, sec. 10, sub-
Regina ex rel. Macnamara v. Heffernan (1904), 7 O.L.R. 289, followed.
secs. 1 and 2, the form of declara- proper school rates levied upon tion is amended by adding to it the true assessable value of the statements that the candidate is property, and that the councillor's "not a citizen or subject of any qualification was insufficient. foreign country," and that the estate in respect of which he qualifies is assessed in his name, or in the name of his wife, on the last revised assessment roll of the A councillor had done work for municipality, to the value speci- the school board which had to be fied in the declaration. Neither done to the satisfaction of the of these requirements was com- town engineer, the account for plied with in the declarations filed which was not passed and paid by the persons elected as mayor until February, 1908:- and councillors of a town:-
Semble, that the declaration of qualification is invalid if made
before the town clerk.
A councillor was jointly as- sessed with five other persons as tenant of a property assessed at $6,780, so that his one-sixth share was less than $1,200, being the amount required by sec. 76, sub- sec. 1 (b), read in connection with sec. 93 of the Act:-
Held, that the qualification was nsufficient.
Principle of Regina ex rel. Hard- ing v. Bennett (1896), 27 O.R. 314, applied.
A councillor was a member of partnership to which the town had assumed to grant by by-law a fixed assessment "for all purposes, including school taxes":-
Held, that as a member of the council he was in a position where his duty might conflict with his interest, and must therefore be disqualified.
The mayor, as a member of the Citizens' League, had entered into a contract with the corporation, under an indemnity given by the league as to certain costs, by which he was apparently liable for the sum of $19.66:-
Held, that he was thereby dis- qualified, and that to such a case the principle "de minimis non curat lex" does not apply.
Nell v. Longbottom, [1894] 1 Q.B. 767, followed.
In proceedings instituted under the Municipal Act to unseat a member of the municipal council, the Master in Chambers has power under sec. 248, as interpreted by sec. 219, sub-sec. 2 of the Act, to direct evidence as to the alleged corrupt practices to be taken before a county Judge.
Regina ex rel. Whyte v. McClay (1889), 13 P.R. 96, followed. Held, that such agreement was ultra vires of the corporation Rex ex rel. Beck v. Sharp (1908), under sec. 591 a, clause (g), of the ante 267, distinguished. Rex ex Municipal Act, that the partner- rel. O'Shea v. Letherby, 581.
ship firm was liable to an action See INTOXICATING LIQUORS, 1, by the corporation to have the 2, 3, 4, 6.-STREET RAILWAYS, 4.
the foreman of the defendants'
fendants, to prove the fact that the defendants were indemnified
1. Infant-Dangerous Machine -Duty to Warn-Superintendence against any verdict that might be -Workman's Compensation for In- given in favour of the plaintiff by juries Act-R.S.O. 1897, ch. 160, a policy of insurance with an acci- juries Act-R.S.O. 1897, ch. 160, dent and guarantee company. sec. 3, sub-sec. 2.]-The plaintiff, a The trial Judge warned the plain- boy under fifteen, was engaged by tiff that he must be prepared to factory to help any one who take the risk of submitting the needed help on a certain floor, evidence, and, in charging the except one man who was doing jury, told them that it should form piecework. He had been helping no element whatever in their de- a man who was operating a stamp- ing machine, to put plates through Held, that the evidence was im- the machine, and the former properly admitted. leaving for a few minutes, he took Held, also (ANGLIN, J., dissent- hold of the press and endeavoured ing), that, by reason of the ad- to get a plate out, and, apparently mission of the evidence, a “sub- through his inadvertently touch-stantial wrong or miscarriage" ing the foot press, the die came had been occasioned within the down upon his hand, and he lost meaning of Con. Rule 785, and three fingers. It was admitted that the defendants were entitled that the machine was a dangerous to a new trial. Loughead v. Collingwood Shipbuilding Co. 64.
Held (CLUTE, J., dissenting), that the defendants were liable 3. Independent Contractor-Li- under sec.. 3, sub-sec. 2, of the ability-Natural Gas Company- Workmen's Compensation for In- Exercise of Statutory Powers-Ex- juries Act, R.S.Ö. 1897, ch. 160, plosion-Collateral Negligence.]— inasmuch as the foreman, whilst The defendant company, acting exercising superintendence, was within their corporate powers and negligent in not pointing out to under the statutory powers con- the plaintiff which of the machines ferred by R.S.O. 1897, ch. 200, were dangerous, and cautioning sec. 3, and ch. 199, sec. 22, on and instructing him as to them, such companies, instructed a con- and, if it was intended that he tractor with whom they had a should not attempt to operate any contract to do such work for them, of them, expressly forbidding him to make connection with the place to do so. Lawson v. Packard Elec-of business of the plaintiff's tenant tric Co., Limited, 1. for the supply of natural gas The contractor's em- 2. Action for Indemnity Held thereto. by Defendants-Evidence as to-ployees negligently allowed gas to Improper Admission of New escape while constructing a trench Trial "Substantial Wrong or for the service pipe from the de- Miscarriage"-Con. Rule 785.]- fendants' main line, which had In an action by a workman under been laid along a public street, the Workmen's Compensation for thus damaging the plaintiff's pro- Injuries Act, the plaintiff's coun-perty:-
sel was allowed, against the strong Held, that the defendants were objection of counsel for the de- liable.
The statutory power to break up and dig trenches in streets im- plied the duty of seeing that the gas was not allowed negligently to escape in dangerous quantities, which duty the defendants could not rid themselves of by delegat- ing it to another. Such negligence was not merely collateral, but was negligence in the very act the contractor was engaged to per- form for the defendants. Ballen- tine v. Ontario Pipe Line Co., 654.
See BANKS AND BANKING, 3- COMPANY, 2-COSTS - SALE OF LAND, 3.
PAROL EVIDENCE. See INSURANCE, 2-SALE OF LAND, 4.
PARTNERSHIP.
Assignment of Assets to Com-
See MOTOR VEHICLES-MUNI- CIPAL CORPORATIONS, 3-RAIL- pany.]-SEE BANKS AND BANK- WAYS, 2-STREET RAILWAYS, 1, 3. ING, 3.
Fares of School Children.]-See
See NEGLIGENCE, 2-STREET STREET RAILWAYS, 4. RAILWAYS, 3-WILL, 4.
POLL CLERKS.
See INTOXICATING LIQUORS, 1-ING LIQUORS, 3, 4. MUNICIPAL CORPORATIONS, 2.
Right to Vote.]-See INTOXICAT-
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