Pickup,
C.J.O.
(orally)
:—The
Official
Guardian
appeals
to
this
Court
from
an
order
made
by
Ferguson,
J.,
sitting
in
Weekly
Court
at
Ottawa,
the
order
of
Ferguson,
J.,
being
dated
January
12,
1955.
By
that
order
it
was
declared
that
certain
monies
in
the
hands
of
the
trustee
being
part
of
the
redemption
of
preferred
shares
of
G.
T.
Fulford
Company
Limited,
issued
by
way
of
stock
dividends
out
of
tax-paid
undistributed
surplus
income
of
the
company
constituted
income
in
the
hands
of
the
trustee
and
not
capital.
It
is
conceded
by
counsel
for
the
appellant
that
the
facts
in
the
instant
case
are
not
distinguishable
from
the
facts
before
this
Court
in
the
case
of
Re
Fleck,
a
decision
of
Hoge,
J.A.,
reported
in
[1952]
O.R.
113;
[1952]
C.T.C.
196,
and
affirmed
in
this
Court
as
reported
in
[1952]
O.W.N.
260;
[1952]
C.T.C.
205.
Counsel
argues,
however,
that
this
Court
is
not
bound
to
follow
its
own
decision
in
Re
Fleck,
because
it
is
said
that
the
Court
in
that
case
misread
or
misinterpreted
judicial
decisions
cited
by
counsel.
It
is
therefore
argued
before
this
Court
in
the
instant
case
that
the
decision
of
the
Court
in
Re
Fleck
was
the
result
of
a
mere
slip
or
inadvertence
or
a
judgment
given
per
incuriam.
In
our
opinion
it
cannot
be
said
that
the
judgment
in
Re
Fleck
was
given
per
incuriam
or
was
the
result
of
any
slip
or
inadvertence
and
this
Court
feels
that
it
is
not
at
liberty
to
depart
from
that
decision.
Moreover,
the
decision
of
this
Court
in
Re
Fleck
was
approved
of
by
this
Court
in
Re
Waters,
[1955]
O.R.
268;
[1955]
C.T.C.
130,
and
has
been
followed
in
several
cases
in
courts
of
first
instance.
It
was
also
argued
on
behalf
of
the
Official
Guardian,
before
Mr.
Justice
Ferguson
and
in
this
Court,
that
the
trustees
in
this
case
had
committed
a
breach
of
trust
in
taking
steps
to
come
within
the
case
of
Re
Fleck,
Counsel
argued
that
the
trustees
had
taken
sides
and
‘‘slanted’’
things
in
favour
of
one
beneficiary
to
the
detriment
of
another,
the
trustee
having
control
of
the
board
of
directors
of
the
company.
Mr.
Justice
Ferguson
did
not
consider
that
problem
to
be
before
him
and
did
not
pass
upon
it.
We
are
of
the
same
opinion
and
do
not
consider
that
matter
to
be
before
this
Court.
We
do
not
pass
upon
it.
We
are
asked,
however,
to
reserve
to
the
Official
Guardian
his
rights
in
that
respect.
We
do
not
think
it
is
necessary
to
do
so
but
that
it
is
sufficient
to
say,
as
we
do,
that
the
Official
Guardian’s
rights
in
that
respect
are
not
passed
upon
in
this
Court.
As
requested
at
the
opening
of
the
appeal,
the
Official
Guardian
will
be
appointed
to
represent
unborn
children
and
unascertained
persons
for
the
purposes
of
this
appeal.
The
appeal
will
therefore
be
dismissed,
but
we
think
it
proper
in
all
of
the
circumstances
to
allow
all
parties
to
appeal
their
costs
out
of
the
monies
in
the
hands
of
the
trustee,
the
costs
of
the
trustee
to
be
as
between
solicitor
and
client.
Appeal
dismissed.
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