Cablevision (Montreal) Inc. v. Deputy Minister of Revenue (Que.), [1978] 2 SCR 64

Supreme Court of Canada

Cablevision (Montreal) Inc. v. Deputy Minister of Revenue (Que.), [1978] 2 S.C.R. 64

Date: 1977-09-30

Cablevision (Montreal) Inc. (Plaintiff) Appellant;

and

Deputy Minister of Revenue of the Province of Quebec (Defendant) Respondent.

1976: October 25; 1977: September 30.

Present: Ritchie, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Taxation—Retail sales tax—Cable distribution network—Movable property subject to tax—Retail Sales Tax Act, R.S.Q. 1964, c. 71, ss. 2(3), 6.

Property—Distinction between movable and immovable property—Immovable by destination—Immovable by nature—Civil Code, arts. 374 et seq.

The issue is whether a cable distribution network attached to other networks that are immovable by nature is movable or immovable. The question arose when respondent sent appellant a notice of assessment claiming sales tax on the purchase price of a cablevision network. This network is composed of two antennas, one anchored to the ground at the corner of Sherbrooke and Atwater Streets, the other on the roof of the Place Ville Marie building in Montreal, along with wires, cables and other equipment necessary for transmitting waves and signals to users. These conductors follow the same routes as those of Hydro‑Quebec and Bell Canada, from which appellant rents poles, ducts, conduits and so on. The assessment was based on the Retail Sales Tax Act, which provides that any purchase of “moveable property” is subject to a tax. Appellant objected to the assessment on the grounds of the immovable nature of the network. The Provincial Court allowed this claim and vacated the assessment. In a majority decision, the Court of Appeal reversed this judgment and held that, with the exception of the antenna anchored to the ground, the network was movable. Hence the appeal to this Court.

Held: The appeal should be allowed.

When the Retail Sales Tax Act defines “moveable property” as all property that is not considered immovable “by the laws of this Province”, it is referring to the general civil laws, not to laws regarding municipalities or education. Reference must therefore be made to arts. 374 et seq. of the Civil Code.

[Page 65]

In the case at bar, the cablevision network cannot be immovable by its destination because appellant owns only the antennas, wires and cables, while the poles and the land to which they are attached belong to others. The network can therefore be immovable only by its nature. In determining whether or not this is the case the Court bases its decision on the legal consequences of the network being attached to the ground. In the case of electricity, telephone or cablevision networks, this attachment can be examined either horizontally or vertically. For the purposes of the case at bar it is enough that the courts have recognized that the vertical attachment of a network of wires to the ground is in itself enough to make these wires immovable. The general principle is that a construction that adheres to the land is immovable, even if it is not fixed for a permanency. Since this Court held electric and telephone wires to be immovable on the basis of this rule, appellant’s wires, cables and amplifiers would certainly be immovable by nature if they were attached to poles owned by appellant. There is, however, no reason to conclude otherwise simply because the poles belong to Hydro-Quebec or Bell Canada. This separation of ownership is not a physical characteristic but a legal characteristic, which is irrelevant to whether a thing is immovable by nature. The criterion for being immovable by nature is met when a structure that may be described as a building adheres to something that is immovable by nature, whether land or a building. The fact that there are three networks, whereas in previous cases there had been only one, does not mean that we can conclude otherwise, as did the majority on the Court of Appeal. The fact that the three networks are not complementary is of no importance: where the three follow the same route, they form three superimposed constructions, which are attached to each other and each of which is immovable by nature because one of them, it is unimportant which one, is attached to the ground.

As for the antenna on the roof of Place Ville Marie, it is mounted on a tower and must therefore be regarded as a structure that is attached to the roof as securely as the wires are attached to the poles. It is therefore immovable by nature and consequently the entire network is immovable by nature, particularly in view of the fact mentioned by the dissenting judge in the Court of Appeal that “the component parts of [the] network cannot be removed without being deteriorated”.

Montreal Light, Heat and Power Consolidated v. The City of Westmount, [1926] S.C.R. 515; Lower St. Lawrence Power Co. v. L’Immeuble Landry Ltée, [1926] S.C.R. 655, applied; La Banque d’Hochelaga v. Water-

[Page 66]

ous Engine Works Co. (1897), 27 S.C.R. 406; Bell Telephone Company of Canada v. Ville Saint-Laurent (1935), 60 Que. K.B. 101, [1936] AC. 73; Montreal Light, Heat and Power Consolidated v. City of Outremont (1932), 53 Que. K.B. 133, [1932] A.C. 423; La Cité de Sherbrooke v. Le Bureau des Commissaires d’écoles catholiques romains de la Cité de Sherbrooke, [1957] S.C.R. 476; Belair v. The City of Ste-Rose (1922), 63 S.C.R. 526; Aluminium du Canada Ltée v. La Corporation municipale du village de Melocheville, [1973] S.C.R. 792, referred to.

APPEAL from a decision of the Court of Appeal of Quebec[1] reversing a judgment of the Provincial Court. Appeal allowed.

André Brossard, Q.C., and Michel Gagnon, for the appellant.

Gaétan Ouellet, Pierre Fortin and Paul Veillette, for the respondent.

The judgment of the Court was delivered by

BEETZ J.—The issue is whether a cable distribution network attached to other networks that are immovable by nature is movable of immovable.

In 1965 appellant, (“Cablevision”), bought the assets of a company called Dupont Television Corporation and three of its subsidiaries. These assets included the cablevision network concerned in this dispute. In 1969, respondent sent Cablevision a notice of assessment claiming $50,719.93 in taxes on the purchase of the network, plus $6,093.59 in interest. The assessment was based on s. 6 of the Retail Sales Tax Act, (R.S.Q. 1964, c. 71):

In order to provide for the exigencies of the public service of the Province., every purchaser shall pay to Her Majesty in the rights of the Province, at the time of making a purchase at a retail sale in the Province, a tax equal to 6% of the purchase price of any moveable property.

Section 2(3) of the same Act gives the meaning of the phrase “moveable property”.

“moveable property” means all property which is not considered immoveable by the laws of this Province, and includes gas and electricity, and also telephone service.

[Page 67]

Cablevision objected to the assessment on various grounds, including the immovable nature of the network. Respondent dismissed this objection and confirmed the assessment. Cablevision then submitted a petition to the Provincial Court requesting that the assessment be vacated. Counsel for the parties placed the following statement in the record:

[TRANSLATION] The parties, through their undersigned counsel, state that the only question at issue is whether the cable network sold to petitioner by the intervenor and valued at $845,332.01 constitutes movable property subject to the provincial sales tax, or immovable property exempt from such a tax.

(Dupont Television Corporation was the intervenor. The dismissal of its intervention by the Provincial Court has not been appealed.)

The Provincial Court (Judge Halpin) concluded that the network was immovable and therefore granted Cablevision’s petition and vacated the assessment. Respondent appealed. In a majority decision (Lajoie and Bélanger JJ.A.), the Court of Appeal held that, with the exception of one of its two antennas, the network was movable; it quashed the judgment of the Provincial Court, allowing Cablevision’s petition only to the extent of reducing the tax assessment from $50,719.93 to $49,451.93 and reducing the interest by $164.84 in view of the antenna that was regarded as immovable. Crête J.A., dissenting, held that the entire network was immovable.

The following is the trial judge’s description of the cable network purchased by Cablevision:

[TRANSLATION] The only evidence presented was that of petitioner, which showed that this network is composed of two receiving antennas, one anchored to the ground and located at the corner of Sherbrooke and Atwater and the other on the roof of the Place Ville Marie building, in Montreal. The waves and electrical signals are picked up by the devices attached to these antennas and then carried by cables and wires to the buildings of users where they are transmitted to receiving sets. Getting the waves to the receivers in this way requires amplifiers, transformers and other equipment. These are located along the same route and are attached to the wires and are all permanently installed.

These conductors follow the same routes as those of Hydro-Quebec and Bell Canada, since petitioner has

[Page 68]

contracts with these corporations to rent the use of their poles, ducts, conduits and so on, to the point where the layman can see no distinction between the three networks.

Finally, it was established that if any part of this network were removed, that part would no longer have any value or usefulness and would have to be discarded. The main reason advanced was based on both obsolescence and the new techniques which are greatly preferable and much more profitable.

The description summarizes the testimony of the only witness heard and it was accepted by the Court of Appeal. Bélanger J.A. did not find the evidence that the two antennas were included in the sale to be clear. Lajoie J.A. noted, however, that this fact was taken for granted by the trial judge and by both parties. Crête J.A. held the trial judge’s description of the network to be accurate since respondent neither alleged nor showed that it was manifestly incorrect. The matter must be seen from this point of view. The following points, established by uncontradicted evidence, may, however, be added to this description: the Cablevision wires follow the same routes as those of Hydro-Quebec and sometimes those of Bell Canada, and in some places the wires belonging to the three networks—Cablevision, Hydro-Quebec and Bell Canada—are attached to the same poles, which belong to either Hydro-Quebec or Bell Canada; in some places also the Cablevision and Bell Canada wires are both attached to the same messenger cable; the ducts and conduits mentioned by the trial judge make up an overhead rather than an underground distribution network: the burying of certain branches of the network, which is mentioned in the evidence, apparently took place after the circumstances involved in the dispute; finally, although the evidence does not reveal the exact size of the area served by the Cablevision network, the photographs of various poles located at Notre-Dame de Grâce and Candiac, as well as the distance between the Place Ville Marie building and the intersection of Sherbrooke and Atwater, leave no doubt that it is a large one.

The trial judge based his finding regarding the immovable nature of the cablevision network on,

[Page 69]

inter alia, the Charter of the City of Montreal, the Cities and Towns Act, the Municipal Code and the Education Act. This was an error as was unanimously decided by the three judges of the Court of Appeal: when the legislator, in defining movable property, refers to the “laws of this Province”, he is referring to the general civil laws, not to laws regarding municipalities or education, which may, for taxation or other special purposes, define as immovable property that is not necessarily so. The determination of whether the Cablevision network is movable or immovable must therefore be based on arts. 374 et seq. of the Civil Code.

The trial judge also expressed the opinion that if the cablevision network is not immovable by nature, it is at least immovable by its destination. This is also an error, as the two parties acknowledged in the Court of Appeal. One cannot make movable property immovable by its destination unless one owns both the movable property and the land: La Banque d’Hochelaga v. Waterous Engine Works Co.[2]. Cablevision owns only its antennas, wires or coaxial cables and amplifiers. The poles to which its cables are attached and the land belong to others. The network can therefore be immovable only by its nature.

Finally, the fact that the antenna located at the corner of Sherbrooke and Atwater is immovable by its nature is no longer disputed: this antenna is bolted to a tower that rests on cement plinths set in the ground. It is this antenna only that the Court of Appeal finds to be immovable and the sale of which is exempted from tax.

Cablevision objects to this method of proceeding, which breaks the network down into its constituent parts and thereby destroys the functional integrity of the whole. Cablevision maintains that the network as a whole must be regarded as an integrated system. Removal of a single part renders the entire system inoperative. Cablevision further argues that the assessment is based on the sale of the entire network and that the joint statement which the parties placed in the record, and

[Page 70]

which defines the issue, speaks of the network as a whole.

There is no need for me to express an opinion on this argument. I prefer to limit my analysis to the legal consequences of the network being attached to the ground.

This attachment can be examined both horizontally and vertically. For example, the wires of an electric power distribution network are linked horizontally to the generating station, dam or electric plant, which may themselves be immovable by nature. If this form of attachment is sufficient to make the wires immovable, then Cablevision’s wires would be immovable because they are attached to at least one antenna that is immovable by nature. The wires in a network may also be attached, all along their route, to poles fixed in the ground: this is vertical attachment.

In Montreal Light, Heat and Power Consolidated v. The City of Westmount[3], Anglin C.J., delivering the judgment of the majority, referred to these two kinds of attachment (at p. 521):

Nor does it appear to matter for the present purpose whether the immobilization of the pipes, poles and wires be attributed to their physical connection with the land in or upon which they are placed, or with the buildings from which they radiate as parts of a distribution system. In either view they are immovables actually (in the sense of physically) situated in the municipality and thus “come within the letter of the law” which confers the power to tax. Partington’s Case. The immobilization of the transformers may not be so clear. But they are usually attached to the company’s poles and form an integral part of the system quite as much as the wires strung on the poles to carry the current.

Is horizontal attachment different from the concept of an integrated network stressed by Cablevision or from that of an undertaking or industry, which are more intellectual forms of attachment? One might so argue, since horizontal attachment is a material link that ensures physical continuity. One thing is certain at least, and it is enough for the purposes of the case at bar: the vertical attach-

[Page 71]

ment of a network of wires to the ground is in itself enough to make these wires immovable. This is the conclusion that emerges from Lower St. Lawrence Power Company v. L’Immeuble Landry, Limitée[4], decided on the same day as Montreal Light, Heat and Power Consolidated v. The City of West mount (supra). In that judgment, this Court held an electric lighting network comprising poles, wires and transformers to be immovable by nature. This network had to be detached from a generator belonging to the seller in order to be attached to appellant’s generator, but this did not prevent its being immovable. Rinfret J., as he then was, speaking for the Court, said the following on this point (at p. 670):

[TRANSLATION] The network of installations for distributing electric light in the village of Mont-Joli, which was sold by Landry to Rouleau, Limitée, was therefore an immovable at the time of that sale, and since it has always continued to be attached to the ground, it has remained an immovable until the present time. It did not cease to be an immovable because the poles, wires, transformers and attachments located on the streets of Mont‑Joli have since been separated from the machines used to produce electricity… located… in and on the property of Rouleau, Limitée and connected to the electric power generators belonging to appellant. From the point of view of the principles established above, this change could have no effect on the immovable nature of the network. According to the most widely held opinion, this network is an immovable in itself, as a construction attached to the ground, and not only as forming an integral part of the electric generating plant. (The emphasis is mine.)

In an earlier passage, Rinfret J. states the rule that should guide us (at p. 668):

[TRANSLATION] The overwhelming majority of commentators maintain that in order for the construction to be regarded as an immovable it is not necessary that it be fixed to the ground for a permanency. It is enough that the attachment is not purely transitory and accidental. It is the fact of attachment to the ground that the law considers. The absolutely necessary condition is that “the construction, whatever it may be, is an integral part of the land”; that it is “cohérente” (coherent) with the land, to use Pothier’s expression, or “adhérente” (adherent) to it, to use that of Laurent. The rule is always: Quod solo inaedificatur solo cedit.

[Page 72]

This passage, as well as the underlined portion of the preceding passage, were approved by the Judicial Committee in Bell Telephone Company of Canada v. Ville Saint-Laurent[5], at p. 110. Similarly, Montreal Light, Heat and Power Consolidated v. The City of Westmount (supra) was approved by the Judicial Committee in Montreal Light, Heat and Power Consolidated v. City of Outremont[6] (at p. 142).

It was also specified in a subsequent decision of this Court that the wires and poles in question in L’Immeuble Landry Limitée (supra) must be regarded as immovable by nature, and that the wires are not immovable by destination while the poles are immovable by nature: La Cité de Sherbrooke v. Le Bureau des Commissaires d’écoles catholiques romains de la Cité de Sherbrooke[7] (at p. 491).

In the case at bar, Cablevision’s wires and amplifiers are attached to Hydro-Quebec poles, which are immovable by nature, or to poles or cables belonging to Bell Canada, which are also immovable, in the same way as the electric and telephone wires. In some places, the telephone wires and the Cablevision wires were put up at the same time and are joined together. As the trial judge pointed out, a layman would be unable to tell them apart since there is no apparent distinction between one network and the other. In view of the decisions of this Court in The City of West-mount (supra) and L’Immeuble Landry Limitée (supra), Cablevision’s wires and amplifiers would certainly be immovable by nature if they were attached to poles owned by that company. Should it be otherwise because the poles to which they are attached belong to Hydro-Quebec or Bell Canada? I think not: this separation of the ownership of the poles and the wires is not a physical characteristic, the only thing that can be taken into account, but a legal characteristic, which is irrelevant to whether a thing is immovable by nature.

[Page 73]

In Bélair v. The City of Ste-Rose[8], it was held that a bridge incorporated in a riverbed is immovable by nature, even though it does not belong to the owner of the land. Anglin J., as he then was, also expressed the opinion that the word “building” in art. 376 C.C. should be given a broad interpretation, and that it includes a structure such as a bridge. This interpretation of the word “building” and the possible separation of the ownership of the land from the ownership of structures attached to the land were reafirmed in The City of Westmount (supra at p. 520) and L’Immeuble Landry Limitée (supra at pp. 665 to 669).

These three decisions undoubtedly stress the incorporation of the structures into the land as a condition for their becoming immovable by nature. We must, however, remember the principle that requires this condition: the structures, such as those involved in these cases, must participate in the fixity or immobility of the land, which is the ultimate measure of whether a thing is immovable by nature. The principle is observed as long as a structure participates in the immovable nature of the land, by adhering directly to it or to another structure, which in turn adheres to the land. In either case the structure is immovable by nature because it is naturally immobile. Most legal writers point out that land is the only tangible property that is really immovable. Nevertheless, according to art. 376 C.C. buildings are immovable by nature just as land is. In my view, the criterion for being immovable by nature is met when a structure that may be described as a building adheres to something that is immovable by nature, whether land or a building, and thereby acquires a fixed foundation. The possibility that the structure adhering to the land and the structure adhering to that structure may not be owned by the same person is of no consequence. An example will illustrate my point: an aviation firm obtains permission from the owner of a skyscraper to build a helicopter landing platform on the roof; the platform is firmly anchored or attached to the roof: it is immovable by nature even though it is distinct from the skyscraper and of no use to it; nevertheless, the plat-

[Page 74]

form is joined to the land through the skyscraper and shares in its stability. Similarly, if the electric or telephone cables of a distribution network are attached to the homes of users rather than to poles belonging to the company, as in fact they are in some places, they are nonetheless structures that are immovable by nature.

I am therefore unable to find a relevant difference, in so far as being immovable is concerned, between Cablevision’s network of cables and the two networks of electrical wires held to be immovable by this Court in 1926 in La Cité de West-mount (supra) and L’Immeuble Landry Limitée (supra).

This difference was seen by the majority of the Court of Appeal as the following: each of the two 1926 cases concerned only one network, whereas the case at bar involves several; the Cablevision network is not part of the Hydro-Quebec or Bell Canada networks, which are complete immovables without it. Lajoie J.A. expressed the following opinion (at p. 85):

[TRANSLATION] It is my opinion that, with the exception of one of the antennas, which I will discuss later, the network with its constituent parts is not immovable by nature, even though the electricity and telephone distribution systems to which it is attached are immovable by nature because they are incorporated with the land. The cable distribution network is not so incorporated and does not constitute an integral or essential part of the other two systems, or form, with them, an indivisible whole.

Bélanger J.A., after summarizing the case law to which I have also referred, cited passages from the reasons of Fauteux C.J. in Aluminium du Canada Ltée v. La Corporation municipale du village de Melocheville[9], including the following (at p. 795):

If we refer to the provisions of the Civil Code on the distinction of things in order to determine the legal nature of appellant’s transformers, there can be no doubt, in my opinion, that those transformers do not fall into the category of corporeal property immoveable by nature described in art. 375 to 378 of the Code. A thing moveable by nature may become an immoveable by

[Page 75]

nature if it is incorporated in the land or the building, so as to remain an integral or component part thereof and lose its independent existence as recently stated by Mr. Justice Mayrand in a judgment which is unpublished but substantially reproduced and confirmed on appeal (see Cloutier v. Choinière, [1970] Que. A.C. 438). That is not the situation in the present case. Doubtless we have here, as the Court of Appeal observed, a large installation for transforming electric current, and doubtless it must be added, as did the trial judge, that these transformers are essential to the conduct of appellant’s industrial operations. It does not follow, in my opinion, that these transformers are thereby incorporated in the land, in the factory or in the frame, so as to remain integral or component parts thereof, and lose their independent existence.

Bélanger J.A. concludes as follows (at p. 84):

[TRANSLATION] Applying these principles to the case at bar after reviewing the evidence, I conclude that it has not been established that the cable distribution network in question is an immovable by nature. However strongly the cables, wires and attachments of the network are fastened to the poles and to the cables of the previously existing networks, they do not form an integral or constituent part of those networks: if they were removed, each of the previously existing networks would be no less complete as a stationary structure incorporated with the land.

With all due respect, it appears to me that by citing the fact that the three networks are not complementary the Court of Appeal reintroduces into the analysis a factor which it at first properly sought to exclude: without actually saying so, it is regarding the Cablevision network as a movable that may become immovable by destination, on the assumption that either Hydro-Quebec or Bell Canada, being the owners thereof, had attached it to their primary network in order to complete the latter.

Since the Hydro-Quebec and Bell Canada networks do not appear to complement each other either, the reasoning of the Court of Appeal leads logically to the conclusion that where these two networks are attached to the same poles, one of the two must be movable property (aside from the possibility of being made immovable by horizontal attachment, as discussed above); only the first of the two networks to be installed would be immov-

[Page 76]

able by nature since it was complete in itself and incorporated with the land without the aid of the other.

However, the immovable nature of a network clearly does not depend on the time of its installation but on its physical links, direct or indirect, with the fixed foundation of the land.

In my view, each of the three networks of wires is a collection of movables forming a coherent whole, a construction or work; where the three follow the same route, they form three superimposed constructions, which are attached to each other and each of which is immovable by nature because one of them, it is unimportant which one, is attached to the ground.

In Aluminium du Canada Liée (supra), to which Bélanger J.A. refers, movable transformers used in an aluminum manufacturing plant, and absolutely necessary to appellant’s industrial activities, were held to be immovable by destination rather than by nature. They were not attached to buildings, however. In this case Fauteux C.J. refers to a test, according to which an object is immovable by nature when it is incorporated into a building to the point of becoming an integral part thereof and of losing its independent existence because the building would be incomplete without it. This test is useful mainly in distinguishing objects that are immovable by nature because they are indispensable complements of a building, such as the staircases and flooring of a house, from those that become immovable by destination as adjuncts or secondary embellishments of a building: Migneault, Droit civil canadien, Vol. 2, at pp. 401, 402 and 419 to 423. I do not think the same test is applicable when the question is, not to what extent an object is part of a building, but rather, as in Bélair (supra), whether a structured collection of materials forms a building incorporated with the land: a house or a building which adheres to the land and therefore participates in its immobility is not so completely merged with it that it may be said to lose its independent existence, like the rocks and soil that make up the land. It is nevertheless immovable by nature. If a new structure is added to a building, for example in order to give

[Page 77]

effect to a superficies, a servitude or a lease, in principle nothing prevents this structure from being immovable by nature even though it is distinct from the building, which is immovable without the new structure though the latter is not immovable without the building.

It is therefore of no importance whether or not the Cablevision network is part of the Hydro‑Quebec and Bell Canada networks. The issue is not whether it is an indispensable complement or accessory of a building, but whether it is itself a building within the meaning given by the courts to this expression, taken from art. 375 C.C. This Court has already held on two occasions that a similar network was comparable to a building and immovable by nature. I see no reason to reconsider those decisions or to distinguish the case at bar from them.

Another way of resolving the problem is to ask, as did Mignault J. with regard to the bridge in Bélair (supra, at p. 540), what would be the nature of the Cablevision network if it were not immovable, since it must be either movable or immovable. Is it possible to regard a construction that extends over several kilometres, following a specific path, securely attached to one or more other structures which are themselves anchored to the ground, as a transitory structure that can be disassembled, like a movable construction or an object which is designed to be moved in the course of normal use? It begs the question.

There remains the antenna erected on the roof of the Place Ville Marie building. Lajoie J.A. said it was not immovable. I agree that it is not immovable by its destination but, as my foregoing observations adequately demonstrate, I do not see what prevents it from being immovable by nature. The evidence shows that this antenna is also mounted on a tower. It is therefore a structure distinct from the building, but built on it and capable through the latter of being immovable by nature. The evidence does not show how the tower is attached to the building. However, the balance of probabilities is that a tower erected at that altitude and capable of resisting wind and weather is unlikely

[Page 78]

to be attached to the roof of the building less securely than Cablevision’s wires are attached to the Hydro-Quebec and Bell Canada poles.

For these reasons I believe the entire Cablevision network to be immovable by nature. I also concur in the following dissenting reasons of Crête J.A. of the Court of Appeal, which summarize the issue.

[TRANSLATION] …whereas respondent’s network is attached to structures that are immovable by nature and the component parts of this network cannot be removed without being deteriorated and in view of the great similarity between respondent’s network and distribution networks for electricity, gas and telephone service, which are regarded by case law and legal doctrine as immovable by nature, I conclude that the network involved in the case at bar is also immovable by nature…

I would allow the appeal, set aside the decision of the Court of Appeal and restore the judgment of the Provincial Court, with costs in all courts.

Appeal allowed with costs.

Solicitors for the appellant: Stikeman, Elliot, Tamaki, Mercier & Robb, Montreal.

Solicitor for the respondent: Gaétan Ouellet Montreal.