R. v. Popovic and Askov, [1976] 2 SCR 308

Supreme Court of Canada

R. v. Popovic and Askov, [1976] 2 S.C.R. 308

Date: 1975-10-27

Her Majesty The Queen (Plaintiff) Appellant;

and

Nicholas Popovic and Elija Askov (Defendants) Respondents.

1975: March 20; 1975: October 27.

Present: Laskin C.J. and Martland, Judson, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Statutes—Interpretation—Ambiguities—Successive revisions in both French and English versions—Criminal Code, R.S.C. 1970, c. C-34, ss. 213, 306—Interpretation Act, R.S.C. 1970, c. 1-23, s. 36.

Criminal law—Murder—Burglary—Meaning of “burglary”—Criminal Code, R.S.C. 1970, c. C‑34, ss. 213, 306—Interpretation Act, R.S.C. 1970, c. 1-23, s. 36.

At a jury trial in Toronto the respondents, together with Radco Govedarov and Sreto Dzambas, were found guilty of murder. The Court of Appeal dismissed the appeals of Govedarov and Dzambas but ordered a new trial for the respondents, since, in the opinion of the majority, the trial judge had erred in directing the jury that breaking into the restaurant should be considered as burglary within the meaning of s. 213 of the Criminal Code whereas, in their view, burglary meant breaking into a dwelling-house only. The subsequent appeal was taken only by virtue of the dissent in the Court of Appeal which relied particularly on the expression “vol avec effraction” used in the French text of s. 213.

Held (Judson and de Grandpré JJ. dissenting): The appeal should be dismissed.

Per Laskin C.J. and Martland, Spence, Pigeon, Dickson and Beetz JJ.: The Criminal Code, 1892, in s. 228 concerning constructive murder refers to “burglary”, using in the French version the term “effraction nocturne”, and in Part XXX entitled “Burglary and housebreaking” defines “burglary”, using in the French version “effraction nocturne (burglary)”. It was clear that burglary as referred to in these sections meant not common law burglary but burglary as defined in that Code. Successive revisions of the Code introduced discrepancies making the Code seriously defective in both languages. However a review of the various revisions and of the legislation respecting the Revised Statutes indicates that the provisions with respect to burglary of

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what is now s. 213 of the Criminal Code are in substance the same as these of s. 228 of the Criminal Code, 1892, as reproduced in the revisions of 1906 and 1927, to which no change was made in the 1970 revision. “Burglary” therefore, in the absence of any indication of Parliament’s intent to alter that provision, still means the offence defined as such in s. 410 of the Criminal Code, 1892, coupled with the definitions of “dwelling-house” and “break” in s. 407.

The conclusion, based on a review of previous enactments of the Criminal Code made necessary in both languages by an ambiguity in the Code presently in force, gives full effect to the principles respecting the effect of codification as stated by Lord Herschell in Bank of England v. Vagliano Brothers, [1891] A.C. 107 at pp. 144-5.

Per Judson and de Grandpré JJ. dissenting: The dissenting reasons delivered in the Court of Appeal by Schroeder J.A. should be adopted in full, the appeal allowed and the convictions at trial affirmed.

[R.v. Lachance (1963), 39 C.R. 127; Attorney-General of Canada v. Reader’s Digest Association (Canada) Ltd., [1961] S.C.R. 775; Bank of England v. Vagliano Brothers, [1891] A.C. 107 referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario1[1] ordering a new trial on appeals by the respondents against convictions of murder. Appeal dismissed, Judson and de Grandpré JJ. dissenting.

D.A. McKenzie, for the appellant.

Patricia Peters, for the respondent, Nicholas Popovic.

Michael Lynch, for the respondent, Elija Askov.

The judgment of Laskin C.J. and Martland, Spence, Pigeon, Dickson and Beetz JJ. was delivered by

PIGEON J.—At a jury trial in Toronto the respondents, together with Radco Govedarov and

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Sreto Dzambas, were found guilty of having murdered one Trevor Poll. The Ontario Court of Appeal dismissed the appeals of Govedarov and Dzambas but ordered a new trial for the two others¹. In the opinion of the majority, the trial judge had erred in directing the jury that breaking into the restaurant where the murder was committed could be considered as burglary within the meaning of s. 213, Cr.C. In their view, burglary meant breaking into a dwelling-house only. Schroeder J.A. dissented on that point relying particularly on the expression “vol avec effraction” used in the French version of s. 213.

The appeal to this Court was taken solely by virtue of this dissent, the Attorney General for Ontario stating the ground of appeal as follows in his inscription:

That the Court of Appeal erred in law in holding that breaking and entering the restaurant with intent to commit an indictable offence therein did not constitute the offence of “burglary” as found in Section 213 of the Criminal Code.

In the circumstances of this case, I find it necessary to make a full review of the relevant legislation in both languages.

In the Criminal Code, 1892 (Can.), c. 29, the relevant part of s. 228 concerning constructive murder was as follows:

228. Culpable homicide is also murder in each of the following cases, whether the offender means or not death to ensue, or knows or not that death is likely to ensue:

(a) If he means to inflict grievous bodily injury for the purpose of facilitating the commission of any of the offences in this section mentioned, or the flight of the offender upon the commission or attempted commission thereof, and death ensues from such injury; or…

2. The following are the offences in this section referred to:- Treason and the other offences mentioned

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in. Part IV of this Act, piracy and offences deemed to be piracy, escape or rescue from prison or lawful custody, resisting lawful apprehension, murder, rape, forcible abduction, robbery, burglary, arson.

The term used for burglary in the French version was “effraction nocturne”.

Burglary was defined as such in Part XXX entitled “Burglary and housebreaking” as follows:

410. Every one is guilty of the indictable offence called burglary, and liable to imprisonment for life, who—

(a) breaks and enters a dwelling-house by night with intent to commit any indictable offence therein; or

(b) breaks out of any dwelling-house by night, either after committing an indictable offence therein, or after having entered such dwelling-house, either by day or by night with intent to commit an indictable offence therein.

In the French version, the term used to describe the offence was as in s. 228 “effraction nocturne” but followed by “(burglary)”.

Thus, it was perfectly clear that the “burglary” mentioned in the constructive murder provision was not the common law burglary but statutory burglary as defined in the Code. In this respect, I would note further that while s. 228 had no counterpart in previous Canadian statutory law, murder not being defined in the Act respecting Offences against the person, R.S.C. 1886, c. 162, burglary was defined in the Larceny Act, R.S.C. 1886, c. 164, as follows:

37. Every one who enters the dwelling-house of another with intent to commit any felony therein, or being in such dwelling-house, commits any felony therein, and, in either case, breaks out of such dwelling-house in the night, is guilty of burglary.

In the French version of the Larceny Act, the words used were as in the Code “effraction noc-

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turne (burglary)”. In that act, “night” was also defined in s. 2(k) as in the Code (9 p.m. to 6 a.m.), but “dwelling-house” and “break” were not given the extended meaning stated in s. 407 of the Code.

As I have already said, I have no doubt that in s. 228, “burglary” necessarily meant “the indictable offence called burglary” as defined in s. 410 and related provisions, in other words, statutory burglary as defined in the Code, not the common law offence. Although substantially broadened, it remained an offence that could be committed only in respect of dwelling-houses at night.

In the 1906 revision, which was not a Parliamentary revision but the work of commissioners, considerable changes in wording were effected in both versions. This was done under the authority of the Act respecting the Revised Statutes of Canada, 1903 (Can.), c. 61, where the first paragraph of s. 3 was as follows:

3. The said Commissioners in consolidating the said statutes and in incorporating therewith the Acts or parts of Acts passed subsequent thereto and selected for inclusion therein as above provided may make such alterations in their language as are requisite in order to preserve a uniform mode of expression, and may make such minor amendments as are necessary to bring out more clearly what they deem to be the intention of Parliament or to reconcile seemingly inconsistent enactments or to correct clerical or typographical errors.

The revision was not brought into force by proclamation under that act but by the Revised Statutes of Canada, 1906, Act, 1907 (Can.), c. 43, from which I shall quote the following provisions:

3. The Revised Statutes of Canada, 1906, are hereby confirmed and declared to have and to have had, on, from and after the thirty-first day of January, 1907, the force of law as if herein enacted…

7. The said Revised Statutes shall not be held to operate as new laws, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the said Acts and parts of Acts so repealed, and for which the said Revised Statutes are substituted.

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2. If upon any point the provisions of the said Revised Statutes are not in effect the same as those of the repealed Acts and parts of Acts for which they are substituted, then, as respects all transactions, matters and things subsequent to the time when the said Revised Statutes take effect, the provisions contained in them shall prevail, but, as respects all transactions, matters and things anterior to the said time, the provisions of the said repealed Acts and parts of Acts shall prevail.

10. The Governor in Council may appoint two or more competent persons to prepare the French version of the said Revised Statutes, and they shall proceed as speedily as possible to make and complete such version and report the same to the Governor in Council.

2. The Governor General shall thereupon cause a printed roll of the version so made and reported, attested under the signature of the Governor General and that of the Clerk of the Parliaments, to be deposited in the office of the said Clerk, and such roll shall be deemed to be the authentic original French version of the said statutes, and as such shall have the force of law as if herein enacted.

Thus, the 1906 revised statutes were brought into force at first in the English version only. The French version was so carelessly done that in the re-arranged s. 260, corresponding to s. 228 of the 1892 Code, four offences were omitted namely, “le meurtre, le viol, le rapt, le vol à main armée” (murder, rape, forcible abduction, robbery). While “burglary” remained unchanged in the English version, “effraction nocturne” was replaced by “effraction de nuit”. Then, under the heading “Burglary and Housebreaking”, in French, “Effractions” instead of “Des effractions et escalades”, the words “called burglary” were deleted from s. 457 (formerly s. 410) as well as the words “called housebreaking” in s. 458. Why this was done is not apparent.

As a result of all those changes, the two versions, if considered by themselves, exhibited a most serious discrepancy. In the English, the word “burglary” remained only in s. 260 and in the heading preceding ss. 455 to 465 where it was coupled with housebreaking so that there was no longer any-

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thing to indicate what was burglary and what was housebreaking. Unless one went back to the previous enactment, it could be argued that in s. 260 (constructive murder) “burglary” was now to be read in its ordinary sense, nothing showing that under the heading “Burglary and Housebreaking” the first word meant the offence described in s. 457. On the other hand, in the French version of s. 260 “effraction de nuit” clearly meant any break-in by night, “Effractions” being the heading under which shopbreaking as well as burglary and housebreaking were defined.

Thus, if the two versions of s. 260 of the 1906 Code were now read literally, the result was a major change concerning “burglary” in both versions but in opposite directions. In the English, it would be restricted to common law burglary instead of statutory burglary as defined in the Code of 1892, in the French, it would be broadened to include any break-in by night.

In my view, it is clear that neither Parliament nor the commissioners intended to effect any change of substance. Although s. 16(2) of the Revised Statutes of Canada, 1906, Act repealed the 1903 statute, it is clear enough that, in effect, the 1903 statute was not repealed but replaced by the new enactment. This is apparent from the first paragraph of s. 16 which amends the 1903 enactment; if it was intended to be wiped out, it was pointless to amend it. On account of the discrepancies between the two versions of the 1906 Criminal Code, the conclusion should be that no change of substance was intended, and there were only misguided attempts at improvements in drafting which resulted in making the Criminal Code seriously defective in both languages.

What those actually responsible for these unfortunate changes—the ill results of which persist to this day—failed to appreciate was that they could not possibly give to the changes they were making the kind of exhaustive consideration that had been given by the framers of the original Code. They

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also did not take into consideration something which the authors of the original Code had not overlooked, namely, the importance of having such statutes in readable form. By this I mean enactments that are readily understandable upon hearing them read. This is especially desirable with respect to such provisions as the definitions of crimes which must be read to the juries. For readability, it is necessary that sentences be short and unencumbered by incidentals, lists and enumerations. These requirements were substantially met in s. 228 of the original Code by listing the offences separately as ss. 2. Also, it is obvious that for readability the use of names rather than of section numbers for referring to offences is preferable, provided the names used are specific enough and their meaning is not too remote from the usual sense. These requirements were met in the original Code where, in s. 410, the words “the indictable offence called burglary” made the meaning of the word “burglary” in s. 228 perfectly clear.

The Revised Statutes of Canada 1927 were made and proclaimed pursuant to the provisions of the Act respecting the Revised Statutes of Canada, 1924 (Can.), c. 65, s. 3 of this act was the same as s. 3 of the 1903 Act, and s. 8 the same as s. 7 of the 1906 Act. The numbering of Criminal Code ss. 260 and 457 was unchanged. The wording also was unchanged in the English version. However, in the French version of s. 260, the words inadvertently omitted in 1906 were restored but the words “de nuit” after “effraction” were dropped so that, instead of “burglary” in the English, the French now meant “break-in”, no change being made in s. 457 or in the heading “Effractions” preceding s. 455.

It is perfectly obvious that the 1927 revision was never intended to alter the constructive murder provision so as to make it applicable to every break-in as the words used in the French version would have it. The fact that the English version remained entirely unchanged is a clear indication that no change was intended to be made in the

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provisions with which we are concerned. Therefore, the legal situation remained as after the 1906 revision, namely, that in spite of the unfortunate ambiguities introduced by the altered wording, the meaning of s. 260 was the same as of s. 228 of the Criminal Code, 1892, namely, burglary as there defined.

The changes effected in 1947 by c. 55, ss. 6 and 7 consisted in putting “indecent assault” among the offences mentioned in s. 260 and in adding paragraph (d). These amendments have no bearing on the question raised in this case.

In 1950, by s. 5 of c. 11, ss. 457, 458 and 459 were replaced by a single section which combined in a single offence carrying the same penalty the offences which, in the 1892 Code, were called burglary and housebreaking and the unnamed offence in s. 412 (then s. 459). The new section read:

457. (1) Every one is guilty of an indictable offence and liable to imprisonment for life who

(a) breaks and enters a dwelling-house with intent to commit any indictable offence therein; or

(b) breaks and enters any dwelling-house and commits any indictable offence therein; or

(c) breaks out of any dwelling-house either after committing any indictable offence therein, or after having entered such dwelling-house with intent to commit an indictable offence therein.

(2) Every one convicted of an offence under this section who when arrested, or when he committed such offence, had upon his person any offensive weapon, shall, in addition to the imprisonment above prescribed, be liable to be whipped.

(3) The breaking and entering of a dwelling-house or the breaking out of a dwelling‑house after having entered such dwelling-house shall be prima facie evidence of an intent to commit an indictable offence therein.

No change was made in the heading “Burglary and Housebreaking” or in s. 260.

With respect, Martin J.A. is mistaken, I think, in the view (at p. 27) that “thereafter, the offence of burglary in s. 260 referred to breaking and

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entering in a dwelling-house either by day or by night”. This conclusion is at variance with the opinion previously expressed by the Ontario Court of Appeal in Regina v. Lachance[2] in the following words (at p. 133):

By ss. 292, 295 of the present Criminal Code the distinction between burglary or breaking and entering by night and breaking and entering by day has been abolished, but since the framers of the present Criminal Code continued to use the word “burglary” in the constructive murder section, present s. 202, that word should be given the meaning assigned to it in s. 410, combined with ss. 3 (q), 407 (b) and 407 (b) (i) (ii) of the Criminal Code of 1892, 55-56 Vict., c. 29 above set out.

In s. 260 the crucial word is “burglary”. For the reasons previously given, this word meant, when the 1950 amendment was made, burglary as defined in the Code of 1892. To alter the scope of s. 260 and to make it applicable also to what was then known as “housebreaking” plus another unnamed offence, there would have to be some indication of Parliament’s intention to effect such a change. Constructive murder is a most serious offence at that time carrying the death penalty, now mandatory life imprisonment. I can find no indication of such intention.

It is true that in accordance with s. 7 of the Revised Statutes of Canada, 1906, Act and s. 8 of the Revised Statutes of Canada, 1927, Act, the provisions of s. 260 are to be read as having the same effect as s. 228 of the Code of 1892 in spite of the deletion of the words “called burglary” in what was s. 410 and became s. 457. If those words were in the new s. 457 enacted in 1950, it might be that Parliament would be deemed to have had in mind that the word “burglary” was used in s. 260 and intended that section to be read in the future as referring to the offence now described under that name. Such is not the case. The words “called burglary” were not only deleted by the 1906 revi-

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sion and left out in the 1927 revision, they were not restored in the new s. 457 enacted in 1950. That new section did not purport to define burglary; it only combined in a single offence what was formerly known as burglary, housebreaking and another offence. Moreover, it remained under the heading “Burglary and Housebreaking”. While the 1906 and 1927 revisions had to be construed not as new laws but as consolidations, effect must also be given to the subsection directing that, for the future, the new provisions shall govern although different from those that existed before. Even accepting that the offence then defined in s. 457 was still “burglary”, there was nothing to indicate that the combined offence was to be “burglary” within the meaning of s. 260. There is no such indication in the enactment itself or in the explanatory note quoted in Martin’s Criminal Code 1955 (p. 514), which explanatory note, I am afraid, may no more be considered for purposes of construction than any other portion of the parliamentary history of an enactment. (Attorney-General of Canada v. Reader’s Digest Association (Canada) Ltd.)[3].

We now come to the parliamentary revision effected by c. 51 of the Statutes of Canada 1953‑54 (Can.). In the Criminal Code thus enacted, the constructive murder provision is s. 202. Although it was completely re-arranged in one long sentence including several paragraphs and subparagraphs, no substantial change was made in the English version. There was, however, a notable change in the French version. For “burglary” the expression used now is “un vol avec effraction” instead of “effraction”. Of course, “effraction” meaning any break-in was much too wide, but the new expression is equally inappropriate.

As Schroeder J.A. noted (at p. 14), Harrap’s New Shorter French Dictionary defines “bur-

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glary” as “vol de nuit avec effraction”. From a lexicographer’s point of view, this is quite accurate because in an English dictionary, the French equivalent of English legal terminology must be expressed in terms of the vocabulary used in the law of France. But the meaning of words used to describe legal concepts is not purely a matter of common usage in any given country. It is inevitably largely dependent on the actual words used in its legislation, in France, in the Code pénal. In that Code, “effraction” is defined in art. 393 but it is not a crime by itself, only a “circonstance aggravante” (an aggravating circumstance), art. 381 to 389 prescribing varying penalties for theft according to the “circonstances”. These include not only “effraction” but also night-time, weapons, “maison habitée” (dwelling-house), etc. Thus, in order to describe the crime of burglary in the vocabulary of the French Code pénal, one would have to speak of “vol de nuit avec effraction dans une maison habitée” (theft at night by breaking into a dwelling-house). Even this would not be completely accurate because it would cover only theft, not any indictable offence as burglary does.

In section 228 of the Criminal Code, 1892, the expression “effraction nocturne” was unequivocal only because, in s. 410 defining burglary, this was said to be the name of the offence. But, the expression “vol avec effraction” in the French version of s. 202 (now s. 213) of the present Criminal Code does not describe an offence known as such anywhere in our Code. The only possible conclusion is that this expression as used in the French version is imprecise and ambiguous.

One must now turn to s. 292 (now s. 306). The words burglary and housebreaking have disappeared, the heading above ss. 292 to 295 (now ss. 306 to 311) is now “Breaking and Entering”, and s. 292 is as follows:

Breaking and Entering

292.

(1) Every one who

(a) breaks and enters a place with intent to commit an indictable offence therein;

(b) breaks and enters a place and commits an indictable offence therein; or

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(c) breaks out of a place after

(i) committing an indictable offence therein, or

(ii) entering the place with intent to commit an indictable offence therein,

is guilty of an indictable offence and is liable

(d) to imprisonment for life, if the offence is committed in relation to a dwelling house, or

(e) to imprisonment for fourteen years, if the offence is committed in relation to a place other than a dwelling house.

(2) For the purposes of proceedings under this section, evidence that an accused

(a) broke and entered a place is prima facie evidence that he broke and entered with intent to commit an indictable offence therein; or

(b) broke out of a place is prima facie evidence that he broke out after

(i) committing an indictable offence therein, or

(ii) entering with intent to commit an indictable offence therein.

(3) [Repealed, 1972, c. 13, s. 24.]

(4) For the purposes of this section, “place” means

(a) a dwelling house,

(b) a building or structure or any part thereof, other than a dwelling house,

(c) a railway vehicle, vessel, aircraft or

(d) a pen or enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes.

It will be noted that shop-breaking has been combined with burglary, housebreaking and kindred offences into a single offence covering breaking and entering a “place”. However, the punishment differs according to whether the “place” is a dwelling house or not. A “dwelling house” is defined in s. 2 (14) which is substantially to the same effect as previous enactments.

I have reviewed the dictionaries current in 1954 to see whether it might be said that, due to legislation enacted by many states defining “burglary” so as to cover all break-ins, the word might have

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acquired a new meaning. The results of this search have been so negative that I do not find it necessary to elaborate or to supply references.

Concerning the French version, I need say nothing more than that the heading has been changed to read “Introduction par effraction”, which is far from being an improvement over the single word “Effractions” that was a proper title. The word “introduction” seems to have been added merely for the purpose of not having one word in the French version where there were two in English, in my view, a wholly misconceived notion. Each version should be written in accordance with the idiom (“le génie de la langue”). If a single word is a proper expression in one language, I consider it basically wrong to use two or more because that is desirable or necessary in the other. In our present Code, this has been carried to absurdity. The heading above s. 374 (now s. 389) is Arson and Other Fires. In the French version this reads “Crime d’incendie et autres incendies” (Criminal Fire and Other Fires).

Although it is an argument by analogy, and of doubtful value at best, it was strenuously contended that “arson” in the constructive murder section no longer has its common law meaning, but extends to all those offences that are enumerated in s. 374 of the 1955 Code (now s. 389). I do not find it necessary to express an opinion on this point, but will note that in the 1906 revision, the name of this offence was not eliminated as was done for burglary. Section 511 of 1906 read as s. 482 of the Criminal Code, 1892:

511. Every one is guilty of the indictable offence of arson…

This was not changed in the 1927 revision and the equivalent words remained “l’acte criminel d’incendie”. Just what was the effect of the elimination of the word “arson” from the description of the offence in s. 374 (now s. 389) coupled with the enlargement of the definition of that offence need not be determined. However, it should be noted

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that the caption “ARSON” in Martin’s and Cartwright’s Criminal Codes is the marginal note in the statute and by virtue of s. 13 of the Interpretation Act “forms no part of the enactment”.

Consideration must however be given to the following provisions of s. 36 of the Interpretation Act:

36. Where an enactment (in this section called the “former enactment”) is repealed and another enactment (in this section called the “new enactment”) is substituted therefor,

…

(f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment;

…

It seems clear to me that with respect to burglary the provisions of what is now s. 213 of the Criminal Code are in substance the same as those of the former enactment which was s. 228 of the Criminal Code 1892 as reproduced in the two successive revisions of 1906 and 1927. No change was made in the 1970 revision and I cannot find anywhere the slightest indication of Parliament’s intent to alter that provision. This means that, in my view, “burglary” still means the offence defined as such in s. 410 of the Criminal Code 1892, coupled with the definitions of “dwelling-house” and “break” in s. 407.

This conclusion gives full effect to the principles respecting the effect of codification as stated by Lord Herschell in Bank of England v. Vagliano Brothers[4] at pp. 144-5. I am not going back to the common law meaning of burglary and see no reason for so doing. All common law offences have now disappeared. However, due to inadequacies in the successive revisions, it is unfortunately necessary to go back to the initial enactment because only thus is it possible to find the proper meaning.

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It is certainly much to be deplored that such should be the situation and I agree that the utmost should be done to ascertain the intent of Parliament by considering only the Code presently in force. However, there is here such an ambiguity that it is absolutely necessary to go back to previous enactments. It is particularly regrettable that from 1906 to this day, both versions of what is now s. 213 should have been ambiguous not to say misleading; I trust it will not be considered improper for me to express the hope that this will soon be rectified and my observations will be of some utility in this respect.

I conclude that the appeal should be dismissed.

The judgment of Judson and de Grandpré JJ. was delivered by

JUDSON J. (dissenting)—I agree with the dissenting reasons delivered in the Court of Appeal by Schroeder J.A.[5], and I adopt those reasons in full.

I would, therefore, allow this appeal and affirm the convictions at trial.

Appeal dismissed, JUDSON and DE GRANDPRÉ JJ. dissenting.

Solicitor for the appellant: F.W. Callaghan, Toronto.

Solicitor for the respondent, Popovic: J.D. Morton, Toronto.

Solicitors for the respondent, Askov: Austin, Murphy, Lewis & Proctor, Toronto.