Cairns Construction Ltd. v. Government of Saskatchewan, [1960] SCR 619

Supreme Court of Canada

Cairns Construction Ltd. v. Government of Saskatchewan, [1960] S.C.R. 619

Date: 1960-06-13

Cairns Construction Limited (Plaintiff) Appellant;

and

The Government Of Saskatchewan (Defendant) Respondent.

1960: February 10, 11, 12, 15, 16; 1960: June 13.

Present: Kerwin C.J. and Taschereau, Locke, Cartwright, Fauteux, Abbott, Martland, Judson and Ritchie JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN.

Constitutional law—Provincial sales tax on consumers and users of tangible personal property—Materials incorporated into houses and sold as complete units—Whether builder user or consumer—Validity of Act— Applicability to durable goods—The Education and Hospitalization Tax Act, R.S.S. 1953, c. 61, ss. 35—The B.N.A. Act, 1867, ss. 121, 122.

[Page 620]

The Education and Hospitalization Tax Act, R.S.S. 1953, c. 61, as amended, imposes a tax on consumers and users of tangible personal property purchased at retail sale in the Province for consumption and use and not for resale. The Act requires licensed vendors to collect the tax at the time of the retail sale.

The plaintiff, a building contractor, purchased component or prefabricated parts for use or incorporation in the construction of houses built by it for sale on its own lands or on lands of others at a fixed-price contract or on a cost-plus basis. The plaintiff contended that the Act was ultra vires and, alternatively, that it was not obligated to pay this tax. The trial judge found that the Act was valid but that it did not apply to the plaintiff. The Court of Appeal unanimously held the Act to be valid and by a majority held that it applied to the plaintiff.

Held: The Act was intra vires and was applicable to the plaintiff in this case.

Considering the general tendency of the impost, the Act was valid in respect of both durable and non-durable goods as imposing a direct tax within the Province.

There was no attempt to tax in disregard of ss. 121 and 122 of the B.N.A. Act, in respect of goods brought into the Province or of which delivery was received therein.

The plaintiff, in this case, was the final user of the personal property incorporated in the houses, and the fact that he would attempt to recoup the tax in fixing the price could not change the nature of the tax and make it an indirect one.

APPEAL from a judgment of the Court of Appeal for Saskatchewan1, reversing in part a judgment of Davis J. Appeal dismissed.

M. C. Shumiatcher, Q.C., E. J. Moss and B. O. Archibald, for the plaintiff, appellant.

E. D. Noonan, Q.C., and R. S. Meldrum, Q.C., for the defendant, respondent.

G. V. LaForest and L. D. D'Arcy, for the Attorney-General of New Brunswick.

E. R. Pepper, for the Attorney-General of Ontario.

M. M. McFarlane, Q.C., for the Attorney-General of British Columbia.

L. Tremblay, Q.C., for the Attorney-General of Quebec.

The judgment of the Court was delivered by

Martland J.:—These proceedings were commenced by the appellant under The Proceedings Against the Crown

[Page 621]

Act, R.S.S. 1953, c. 79, for the return of the sum of $6,688.84 received by the respondent, which had been paid by the appellant under protest.

The appellant is a company incorporated under the laws of the Province of Saskatchewan and carries on, in that province, the business of constructing buildings. A considerable part of its business was the erection of dwelling houses. During the time material to these proceedings, 1953 to 1955 inclusive, most of the dwellings constructed by the appellant were built on the appellant's own lands for sale to the public; some were constructed on lands owned by others, under fixed-price contracts; and a few on lands owned by others, on a cost-plus contract basis.

The appellant purchased component or prefabricated parts for these houses from another company, Engineered Buildings (Regina) Limited, which manufactured and sold such parts. These parts would then be assembled and fitted together in the construction of houses by the appellant's employees. Certain portions of the other construction work were done by subcontractors under contract with the appellant.

In respect of the component parts sold by the manufacturer to the appellant, the respondent claimed that tax was payable by the appellant under the provisions of The Education and Hospitalization Tax Act, R.S.S. 1953, c. 61. Engineered Buildings (Regina) Limited was a licensed vendor under that statute, the terms of which required it, as an agent of the Crown, to collect the tax. The respondent called upon that company to collect such tax in respect of the sales made to the appellant. The manufacturer, in turn, demanded payment of the tax from the appellant under threat of discontinuing future deliveries in the event of non-payment by the appellant. The appellant thereupon paid the $6,688.84 to its supplier, under protest, which company in turn paid that amount to the respondent. The appellant then sued the respondent for the return of these moneys.

The appellant bases its claim upon two grounds: first, that the Act in question is ultra vires of the Saskatchewan Legislature and, second, that even if it is valid, the appellant is not, under the terms of the Act, obligated to pay this tax.

[Page 622]

Both the learned trial judge and all the members of the Court of Appeal of Saskatchewan2 decided the first issue in favour of the respondent. A majority of the Court of Appeal also decided the second issue in its favour. The learned trial judge and Gordon J.A., who dissented on this point in the Court of Appeal, held in favour of the appellant in respect of the second issue.

The main contention of the appellant in respect of the first point is that the statute imposed taxation which is not direct taxation within the province and so is beyond the powers of the Legislature under s. 92(2) of the British North America Act. The following provisions of The Education and Hospitalization Tax Act, as amended prior to judgment, are relevant to the consideration of this issue:

3. In this Act:

1. "consumer" means any person who within the province purchases from a vendor tangible personal property at a retail sale in the province for his own consumption or for the consumption of other persons at his expense, or on behalf of, or as the agent for, a principal who desires to acquire such property for consumption by such principal or other persons at the expense of such principal;

* * *

4. "purchaser" means any person who within the province purchases a vendor tangible personal property at a retail sale in the province;

5. "retail sale" means a sale to a consumer or user for purposes of consumption or use, and not for resale as tangible personal property and includes such a sale by auction;

6. "sale" means any transfer, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a consideration, and includes any agreement of sale whether absolute or conditional;

7. "tangible personal property" means personal property which can be seen or touched, and includes gas used for heating or illumination, and electricity;

8. "user" means any person who within the province purchases from a vendor tangible personal property at a retail sale in the province for his own use or for the use of other persons at his expense, or on behalf of, or as the agent for a principal who desires to acquire such property for use by such principal or other persons at the expense of such principals;

9. "vendor" means any person who, within the province, and in the course of his business, or of continuous or successive acts, sells tangible personal property to a consumer or user at a retail sale in the province for purposes of consumption or use, and not for resale.

* * *

4. (1) No vendor shall sell any tangible personal property in the province at a retail sale unless he holds a licence to do so issued to him by the minister and such licence is in force at the time of the sale.

[Page 623]

(2) The licence shall be issued without fee and shall be signed by the minister, or such person as the minister appoints for the purpose, and, if required by the regulations, shall be kept posted up, in the manner prescribed thereby, in the place where the vendor carries on his business.

(3) The minister may cancel or suspend the licence of a vendor for his failure to comply with any of the provisions of this Act or the regulation, and thereupon any other licence of the vendor issued by any authority in the province authorizing him to carry on his business shall become and be cancelled and of no effect.

* * *

5. (1) Every consumer of tangible personal property purchased at a retail sale in the province shall pay to Her Majesty the Queen for the raising of a revenue for educational and hospitalization purposes, at the time of making his purchase, a tax in respect of the consumption of such property, and such tax shall be computed at the rate of three per cent of the value of the property to be consumed.

(2) Every user of tangible personal property purchased at a retail sale in the province shall pay to Her Majesty the Queen for the raising of a revenue for educational and hospitalization purposes, at the time of making his purchase, a tax in respect of the use of such property, and such tax shall be computed at the rate of three per cent of the value of the property to be used.

(2a) A person who consumes or uses tangible personal property acquired by him for resale or who consumes or uses tangible personal property manufactured, processed or produced by him shall be deemed to have purchased such property from a vendor at a retail sale in the province.

(3) If a vendor in the ordinary course of his business sells any tangible personal property to a person who alleges that he is not purchasing it for consumption or use, the vendor shall nevertheless require such person to deposit with him an amount equal to the tax which would be payable under this Act if the property were sold to a consumer or user as herein defined, but the minister shall refund the deposit on receipt of evidence satisfactory to him that the property was purchased for the purpose of resale by a licensed vendor.

(4) Every person residing or ordinarily resident or carrying on business in Saskatchewan who brings into the province or who receives delivery in the province of tangible personal property for his own consumption or use, or for the consumption or use of other persons at his expense, or on behalf of or as agent for a principal who desires to acquire such property for consumption or use by such principal or other persons at his expense, shall immediately report the matter to the minister or his appointee and forward or produce to him the invoice, if any in respect of such property and any other information required by him with respect to the property and shall pay the same tax in respect of the consumption or use of such property as would have been payable if the property had been purchased at retail in the province at the price which would have been paid in Saskatchewan if such tangible personal property had been purchased at retail in the province.

* * *

7. Every vendor at the time of a retail sale of tangible personal property to a consumer or user shall levy and collect the tax imposed by this Act upon the consumer or user.

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8. Every vendor and every person authorized to collect or receive taxes from a vendor shall be a revenue officer within the meaning of The Treasury Department Act and shall be subject to the duties and liabilities of a revenue officer under that Act.

9. The minister may make an allowance to the vendor for his services in collecting and forwarding the tax to the minister, which allowance shall be determined by the Lieutenant Governor in Council.

* * *

29. The consumer or user shall be and remain liable for the tax imposed by this Act until the same has been collected and, in the event of failure on the part of the vendor to collect the tax, the consumer or user may be sued therefor in any court of competent jurisdiction.

Reference was made, during argument, to the many decisions, both of the Privy Council and of this Court, which have had to determine whether the various taxing statutes, under consideration in those cases, imposed direct or indirect taxation and which have established the tests which are to be applied in determining that issue. However, the judgment of the Privy Council in Atlantic Smoke Shops, Limited v. Conlon3 is so closely in point that, in my view, unless it can be distinguished successfully, it must determine the issue here in favour of the respondent.

The statute under consideration in that case was The Tobacco Tax Act, 1940, enacted by the Legislature of the Province of New Brunswick, which imposed a tax in respect of tobacco purchased at a retail sale in the province for consumption. The definitions of the words "consumer", "purchaser", "retail sale", and "retail vendor" in that Act are practically the same as the definitions of the words "consumer", "purchaser", "retail sale" and "vendor" in the Saskatchewan Act. The provisions for the licensing of vendors are similar. Section 4 of the New Brunswick Act, which imposed the tax, is, in terms, practically identical with s. 5(1) of the Saskatchewan Act. The same similarity exists between s. 5 of the New Brunswick Act and subs. (4) of s. 5 of the Saskatchewan Act regarding the imposition of tax where goods are brought into the province and not purchased by retail in the province.

In that case, as in the present one, counsel for the appellant urged that the tax was a sales tax, that a sales tax is an excise tax and, therefore, an indirect tax.

[Page 625]

Viscount Simon, who delivered the judgment of the Privy Council, said at p. 563:

… It has been long and firmly established that, in interpreting the phrase "direct taxation" in head 2 of s. 92 of the Act of 1867, the guide to be followed is that provided by the distinction between direct and indirect taxes which is to be found in the treatise of John Stuart Mill. The question, of course, as Lord Herschell said in Brewers and Malsters' Association of Ontario v. Attorney-General for Ontario, 1897 A.C. 231, 236, is not what is the distinction drawn by writers on political economy, but in what sense the words were employed in the British North America Act. Mill's Political Economy was first published in 1848, and appeared in a popular edition in 1865. Its author became a member of parliament in this latter year and commanded much attention in the British House of Commons. Having regard to his eminence as a political economist in the epoch when the Quebec Resolutions were being discussed and the Act of 1867 was being framed, the use of Mill's analysis and classification of taxes for the purpose of construing the expression now under review is fully justified. In addition to the definition from Mill's Political Economy already quoted, citation may be made of two other passages as follows: "Direct taxes are either on income or on expenditure. Most taxes on expenditure are indirect, but some are direct, being imposed not on the producer or seller of an article, but immediately on the consumer" (bk. V. Ch. 3). And again, in ch. 6, in discussing the comparative merits of the two types of tax, he takes as the essential feature of direct taxation that "under it everyone knows how much he really pays." Their Lordships, therefore, consider that this tobacco tax in the form they have called (a) would fall within the conception of a "direct" tax, and ought so to be treated in applying the British North America Act. It is a tax which is to be paid by the last purchaser of the article, and, since there is no question of further re-sale, the tax cannot be passed on to any other person by subsequent dealing. The money for the tax is found by the individual who finally bears the burden of it. It is unnecessary to consider the refinement which might arise if the taxpayer who has purchased the tobacco for his own consumption subsequently changes his mind and in fact resells it. If so, he would, for one thing, require a retail vendor's licence. But the instance is exceptional and farfetched, while for the purpose of classifying the tax, it is the general tendency of the impost which has to be considered. So regarded, it completely satisfies Mill's test for direct taxation. Indeed, the present instance is a clearer case of direct taxation than the tax on the consumer of fuel oil in Attorney-General for British Columbia v. Kingcome Navigation Co., 1934 A.C. 45, for fuel oil may be consumed for the purpose of manufacture and transport, and the tax on the consumption of fuel oil might, as one would suppose, be sometimes passed on in the price of the article manufactured or transported. Yet the Privy Council held that the tax was direct. In the case of tobacco, on the other hand, the consumer produces nothing but smoke. Mr. Pritt argued that the tax is a sales tax, and that a sales tax is indirect because it can be passed on. The ordinary forms of sales taxes are, undoubtedly, of this character, but it would be more accurate to say that a sales tax is indirect when in the normal course it can be passed on. If a tax is so devised that (as Mill expresses it) the taxing authority is not indifferent as to which of the parties to the transaction ultimately bears the burden, but intends it as a "peculiar contribution" on the particular party selected to pay the tax, such a tax is not proved

[Page 626]

to be indirect by calling it a sales tax. Previous observations by this Board as to the general character of sales taxes, or of taxes on commercial dealings, ought not to be understood as denying the possibility of this exception.

The appellant seeks to distinguish the Conlon decision and that of the Privy Council in Attorney-General for British Columbia v. Kingcome Navigation Company Limited4, on the grounds that the taxes in question in those cases related to goods purchased for the purpose of consumption by the buyer, tobacco in the Conlon case, fuel oil in the Kingcome case. The Act in question in the present case relates not only to personal property purchased for consumption, which were referred to in argument as non-durable goods, but also to personal property purchased for use, referred to in argument as durable goods. It was contended that the major incidence of the tax imposed by the Act would be upon durable goods. Such goods, it was argued, would, by their nature, continue, after their purchase, to be capable of being the subject-matter of subsequent trading. If they were subsequently traded, the purchaser of them, who had paid the tax, would seek to pass it on to a subsequent purchaser. Consequently it was submitted that a tax upon durable goods is an indirect tax. The trading in of second-hand automobiles was cited as an example.

As was pointed out in the judgment of Lord Herschell in Brewers and Maltsters' Association of Ontario v. Attorney-General for Ontario5, referring to Bank of Toronto v. Lambe6:

The question was not what was direct or indirect taxation according to the classification of political economists, but in what sense the words were employed by the Legislature in the British North America Act.

Lord Hobhouse, in Bank of Toronto v. Lambe, at p. 581, says:

Probably it is true of every indirect tax that some persons are both the first and the final payers of it; and of every direct tax that it affects persons other than the first payers; and the excellence of an economist's definition will be measured by the accuracy with which it contemplates and embraces every incident of the thing defined. But that very excellence impairs its value for the purposes of the lawyer. The legislature cannot possibly have meant to give a power of taxation valid or invalid according to its actual results in particular cases. It must have contemplated some tangible dividing line referable to and ascertainable by the general tendencies of the tax and the common understanding of men as to those tendencies.

[Page 627]

In my opinion, the same reasoning which led the Privy Council to conclude, in the Kingcome and Conlon cases, that the respective statutes there under consideration imposed direct taxation is properly applicable to the Act now under consideration and is not rendered inapplicable because the present statute applies to durable as well as to consumable goods. It is true that the number of cases in which there might be a resale, as second-hand goods, by the taxpayer, of personal property which he has purchased for his own use and on which he has paid tax is greater in relation to durable goods than consumable goods. Our task, however, is to consider the general tendency of the impost for the purpose of classifying the tax. In my view, the sale by the taxpayer, as second-hand goods, after using it, of personal property which he has purchased for his own use, is exceptional when considering the general tendency of the tax as a whole. I cannot reach the conclusion that the Legislature, in imposing the tax, must have had the expectation and intention that it would be passed on.

It was also contended for the appellant that the Act is invalid as amounting to an attempt to tax in disregard of ss. 121 and 122 of the British North America Act, which provide:

121. All articles of the growth, produce, or manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.

122. The customs and excise laws of each Province shall, subject to the provisions of this Act, continue in force until altered by the Parliament of Canada.

This argument relates to the provisions of subs. (4) of s. 5 of the Act which imposed the same taxation in relation to goods brought into Saskatchewan, or delivery of which is received there, as would have been payable if the goods had been purchased at a retail sale in Saskatchewan.

Exactly the same argument was raised in the Conlon case respecting s. 5 of the New Brunswick Act, which is almost identical in terms with s. 5(4) of the Saskatchewan Act. The argument was unsuccessful and the Privy Council held that the New Brunswick Act did not attempt to tax in disregard of these two sections of the British North America Act. No valid basis has been suggested whereby that decision can be distinguished on this point, and for that reason I think that this argument also fails.

[Page 628]

In my opinion, therefore, The Education and Hospitalization Tax Act is intra vires of the Legislature of the Province of Saskatchewan.

I turn now to the second point of the appellant's argument, namely, that even if the Act is valid legislation, it did not impose a legal obligation upon the appellant to pay the taxes which are in dispute.

It was contended that in order to be taxable it must be established that the appellant was a user of personal property purchased at a retail sale, within subs. (2) of s. 5 of the Act. It was then contended that the appellant did not purchase at a retail sale and was not a user of the goods within the meaning of the subsection.

A "retail sale" is defined in the Act as meaning a "sale to a consumer or user for purposes of consumption or use, and not for resale as tangible personal property". If the appellant was a user of the goods within the meaning of the Act, I am of the opinion that there was a retail sale to him within the meaning of the definition.

This brings me to the main submission, that the appellant was not a user of the goods in question within s. 5(2) of the Act. The contention on this point was that the appellant did not purchase the component parts for its own use but that they were acquired for incorporation into houses being built for the purpose of sale. If, it was argued, the use made of the goods by the appellant was to be construed as the "use" contemplated by the Act, it would result in the statute being clearly unconstitutional because the tax would certainly be passed on to the house purchaser. Consequently, it was suggested, the "use" which would involve the payment of tax under the Act must be restricted in its meaning so as to exclude use in the process of production or manufacture and be limited to ultimate or final use.

This contention was accepted by the learned trial judge and also by Gordon J.A., in the Court of Appeal, who summed up the argument of the appellant in this way:

The legal advisers of the provincial legislature knew perfectly well that if the tax were to be valid it would have to fall on the "ultimate" consumer or user. That is why a "consumer" was defined as one who purchases property at a retail sale "for his own consumption". The word "user" was defined in a similar way. The phrase "retail sale" was also defined as a sale to a consumer or user and not for resale. It is true that by the amendment of 1957 the words "as tangible personal property" were added, but, with every

[Page 629]

deference, I do not think this amendment helps the defendant. If the plaintiff used the personal property to build a house for resale and had to pay the tax it would be an indirect tax and ultra vires. Most definitely the personal property involved in these proceedings was bought for resale in houses. If this was just an isolated transaction in which the law had an indirect application it could still be valid but such is not the case. I can take judicial notice of the fact that companies like the plaintiff are carrying on extensive operations and the tax collected may run into a large sum.

The contrary view may be summed up in the words of Culliton J.A., who said:

Here the respondent purchased certain building materials which were admittedly tangible personal property as defined in the Act. This material was purchased not for the purpose of resale as tangible personal property but for the purpose of constructing houses to be sold as real property. By the incorporation of these building materials in these houses such building materials lost their character as tangible personal property and became an integrated part of the real property. The respondent therefore was the ultimate user or consumer of such tangible personal property and thus liable for the tax imposed upon it by the legislation. That liability in my opinion arises under the provisions of the Act without recourse to either the regulations or rulings.

In my opinion, the appellant was a "user" of the goods in question here and was made liable for payment of tax under s. 5(2) of the Act. I would agree that the intention of the Act is to impose the tax upon the final consumer or user of the personal property purchased. It was upon that basis that the Privy Council upheld the New Brunswick legislation under consideration in the Conlon case. But it also appears to me that a person who purchases personal property and incorporates it into something else, in the process of which it loses its own identity as personal property, is the final user of that personal property so incorporated. The nails which were hammered into the structure, the paint placed on the walls, or the shingles on the roof were finally used for the purposes for which they were created when they became a part of the building. Equally, the prefabricated parts were finally used when they were incorporated into the houses which the appellant constructed. The purchaser of a house would not thereafter use them as component parts. He would make use of the completed house.

Is the general character of the tax altered because a house-builder, such as the appellant, would seek, as he undoubtedly would seek, in fixing the price of the house, to recoup the

[Page 630]

tax which he was required to pay in respect of the component parts? I do not think that it is. In my view, this attempt to recoup the tax in such cases is no different from the attempt which, in argument in the Kingcome case, it was suggested would be made by the manufacturer or the transporter to pass on the fuel oil tax there in question in the price of the article manufactured or transported. The appellant would undoubtedy seek, when selling the house which he constructed, to recoup himself for municipal land taxes which he had been required to pay on the land on which the house is situated, yet, clearly, a tax of this general character does not cease to be direct because cases may occur in which the taxpayer may be able to pass it on, as was established in City of Halifax v. Fairbanks Estate7. If the general tendency of the tax imposed is such that it may be classified as a direct tax, the authorities establish that its nature is not changed because, in some instances, it may be passed on. This point is stated by Lord Greene in Attorney-General for British Columbia v. Esquimalt and Nanaimo Railway Company8:

It is argued, however, that the tax, whatever name be given to it, is an indirect tax because the natural tendency for the person who is to be assessed to it will be to pass it to others and thus indemnify himself against it. This operation of passing, it is said, would take one or other or both of two forms—a "passing back" to the railway company by means of a lowering of the purchase price, and a "passing on" to purchasers of the cut timber. It is probably true of many forms of tax which are indisputably direct that the assessee will desire, if he can, to pass the burden of the tax on to the shoulders of another. But this is only an economic tendency. The assessee's efforts may be conscious or unconscious, successful or unsuccessful; they may be defeated in whole or in part by other economic forces. This type of tendency appears to their Lordships to be something fundamentally different from the "passing on" which is regarded as the hallmark of an indirect tax.

My conclusion on this point is, therefore, that, as the general tendency of this tax is such as to make it a direct tax, and, as the appellant is a final user of the personal property here in question, the appellant is not relieved from liability for payment of the tax because he might be able, in his own case, to pass it on. Nor do I think that the words of the statute must be construed in each individual case in

[Page 631]

a manner which ensures that the tax shall never apply to a taxpayer who could establish the likelihood of his being able to pass it on.

The appellant further contended that the wording of the Act is incomprehensible and should not be construed as imposing any valid tax. The basis of this argument is that the taxing provisions, such as s. 5(1), when read in the light of the definitions contained in the interpretation section, have no meaning because in various instances a definition paragraph, in defining a word, has, in the definition, made use of other words, also having a defined meaning, the definitions of which, in turn, relate back to the word defined. For example, the definition of "consumer" commences with the words "any person who within the province purchases from a vendor", while the definition of "vendor" is "any person … who, within the province … sells … to a consumer …." Applying these definitions, therefore, s. 5(1) would apply to "every person who purchases from any person who sells to any person who purchases from any person who sells to … etc. etc."

This argument may constitute a valid criticism of the draftsmanship of the interpretation section, but it pays attention only to the words of each definition which are themselves defined and overlooks the other limiting parts of the definition of each word; for example, that a consumer is one who purchases for his own consumption and that a vendor is one who sells in the course of his business. I think the intent and object of the taxing provisions can be determined satisfactorily with the assistance of the definition paragraphs. The Privy Council was apparently able to interpret the like clauses in the New Brunswick Act in the Conlon case with like definitions. Furthermore, to the extent that the strict definition of any of the words used would be inconsistent with the intent or object of the Act or give an interpretation inconsistent with the word's context, the situation is provided for by subss. (2) and (1) of s. 3 of the Interpretation Act, R.S.S. 1953, c. 1.

[Page 632]

In my opinion, therefore, the appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the plaintiff, appellant: Shumiatcher, Moss & Laverry, Regina.

Solicitor for the defendant, respondent: E. D. Noonan, Regina.