Christie v. British American Oil Company Limited, [1947] CTC 284

CHEVRIER, J.:—The parties hereto have agreed to the following facts as set out in the statement of claim :

1. The plaintiff is a mining prospector residing at the city of Winnipeg.

2. The defendant is a company incorporated under the laws of the Dominion of Canada.

3. The plaintiff, by right of survivorship, is the owner of 2,444 shares of the defendant company, having been the owner thereof as a joint tenant with his deceased mother. The shares still stand in their joint names, and are so registered on the books of the defendant.

4. The said shares, according to printed words on the faces of the certificates thereof, are transferable either at Montreal, in the Province of Quebec, or at Toronto, in the Province of Ontario.

5. The plaintiff’s mother died on the 21st July 1943; she was then domiciled in the city of Winnipeg, in the Province of Manitoba; the said shares were at that time physically situated in the said city.

6. On or about the 15th March 1944 the plaintiff attended at the office of the defendant’s solicitors in the city of Toronto and asked for a transfer or re-registration of the said shares, as sole survivor of the joint tenancy.

7. The plaintiff had requested an Ontario succession duty release with respect to said shares, but same had been refused to him as the succession duties had not yet been paid in Ontario on said shares.

8. The succession duties due to the Dominion of Canada and to the Province of Manitoba have been paid on said shares.

9. On or about the 7th January 1946 the plaintiff presented said shares at the office of the Registrar and Transfer Co. at the city of New York, in the State of New York, one of the United States of America, for transfer to him. Said transfer was refused as the plaintiff could not produce an Ontario succession duty release.

10. On the 4th February 1947 the plaintiff presented said shares at the office of the Chartered Trust & Executor Co., the transfer agent of the defendant at the said city of Toronto, for transfer to him; but the shares were not left in the custody of the said Chartered Trust & Executor Co. for the reason that the plaintiff feared confiscation of said shares at the instance of the Province of Ontario, under sec. 31 of the Ontario Succession Duty Act, 1939.

11. The plaintiff repudiates the jurisdiction of the Treasurer.

12. The defendant has refused to effect all such requested transfers until the said application for transfer is accompanied by an Ontario succession duty release.

13. The plaintiff claims that the Provincial Legislature cannot constitutionally interfere with the operations of a company incorporated by the Dominion, and there is a conflict of authority in that respect between sec. 38 of the Companies Act, 1934 (Dom.), c. 33, and see. 8 of the Succession Duty Act, 1939 (Ont.) (2nd Sess.), €. 1.

14. The plaintiff requests the issue of a mandatory order directing the defendant to transfer or re-register the said shares in the sole name of the plaintiff without the production of a succession duty release from the Province of Ontario. He also claims damages and his costs.

To which the defendant makes this first objection:

1. That the Registrar and Transfer Co. was not appointed transfer agent until the 21st October 1943, and did not begin to act as such transfer agent until the month of January 1944. That at the date of the death of the mother of the said plaintiff, the other joint tenant with him of said shares, the said shares were transferable on the books of the defendant only in Toronto or Montreal as aforesaid, and at the offices in Toronto or Montreal of Chartered Trust & Executor Co., the transfer agent and registrar of the defendant in Toronto and Montreal. I find that such objection is well founded and sustain it.

The defendant then adds that:

2. It is prohibited from making or entering in the books of the defendant any transfer of the said shares without the consent in writing of the Treasurer of Ontario to the transfer of said shares.

3. That said consent has been refused.

4. The defendant pleads the provisions of the Succession Duty Act, 1939, as amended, and particularly see. 8.

5. The defendant denies that plaintiff has suffered damages.

6. That the statement of claim discloses no right of action. Said see. 8 is in part as follows :

^8 .(1) On the death of any person, whether he dies domiciled in Ontario or elsewhere, unless the consent in writing of the Treasurer is obtained—

(a) No bank [etc.] . . . shall deliver . . . [or] transfer . . .

(i) Any property situate in Ontario in which the deceased, at the time of his death, had any beneficial interest . .

Two questions arise:

1. One of law as put forth in para. 13 of the plaintiff’s submissions. In view of the present state of the law and decided eases it would be idle further to entertain that submission. I must find, as I do, that no such conflict as alleged exists, and that see. 8 is well within the competency of the legislative jurisdiction and authority of the Province.

2. A question of fact: Where is the situs of the shares for the purpose of the transfer ? Unfortunately, the state of the law is not in that respect as clearly established as in the preceding question :

(a) The plaintiff himself brought the shares into Ontario, and on or about the 4th February 1947 he presented them for transfer or re-issue at the office of the Chartered Trust & Executor Co., the transfer agent of the defendant at the city of Toronto.

(b) The plaintiff admits (para. 8) having been served with a statement from the Treasurer under the provisions of sub sec. 1 of see. 31 of the said Ontario Succession Duty Act, but refused to comply with it, objecting to its jurisdiction.

The state of the law:

This matter must be settled by determining the situs of the shares for the purpose of deciding what, if any, succession duties are payable thereon before the transfer of said shares can be effected in favour of the plaintiff on the books of the defendant.

The plaintiff seeks consolation in the’ case of Treasurer of Ontario v. Blonde et al.; Treasurer of Ontario v. Aberdein et al. [1947] A.C. 24, [1946] 4 D.L.R. 785, [1946] 3 W.W.R. 683.

The first sentence of the long headnote to the report of that ease in D.L.R. is in the nature of an expression of a general principle. The second sentence deals with the case where there are two places in which the shares are transferable outside the Province seeking to tax. This is not the case here, where one place is in Ontario, and the second place is in Quebec. The third sentence deâls with the case where one place of transfer is within the Province (Ontario) and one without the Province (Quebec), and that is the case here.

In that latter case, "‘a just estimation must be made of the matters relating to a transfer of the shares to see if there is sufficient reason for preferring one place of transfer as against another’’.

It is further held that : ‘‘That place is to be preferred where in the ordinary course of affairs the shares would be dealt with by the registered owner.”

The editorial note to the case contains the following:

"In [The King v. Williams, [1942] A.C. 541, [1942] 3 D.L.R. 1, [1942] 2 W.W.R. 231], Viscount Maugham, having first said that ‘the existence in Buffalo at the date of the death of certificates in the name of the testator endorsed by him in blank must be decisive’, later made the observation that ‘in a business sense the shares at the date of the death could effectively be dealt with in Buffalo and not in Ontario’.”

The editor continues:

1. "This latter remark was articulated and given a coherent elaboration by Robertson C.J.O. in The King v. Globe Indemnity Co. [1945] 2 D.L.R. 25, [1945] O.R. 190, who thus rescued the ‘multiple share transfer registries’ cases from a cul de sac into which a narrow reading of the Williams case would have driven them. That is not to say, however, that any principle of decision has been reached upon which ‘multiple share transfer registries’ situations can be uniformly resolved; we need only envisage the case where from a business standpoint it may be equally convenient to use either of two or any of three registries. ’ ’

2. The learned editor continues: ‘‘Clearly, the situs tests adumbrated in the Williams case . . .’’

3. In the Aberdein case, supra, Lord Uthwatt said: ‘‘If sufficient reason for a choice of one place appears, then the problem is Solved . . . The absence of a competitor, if not conclusive in favour of Ontario as the situs of the shares, at least tipped the scales in its favour. . . . [The] owner . . . would be little likely when desiring to deal with his shares . . .” (The italics are mine.)

This is the state of the law :

First of all, the 44 multiple share transfer registries’’ principle was rescued from a ‘‘cul de sac’’, a most decidedly disheartening place to be found in, where it was ex necessitate doomed to a slow and ignominious death by suffocation.

Secondly, the ‘‘situs tests’’ were clearly adumbrated (comme cela est clair!) in the Williams case.

Then, if it is “‘not conclusive’’, but may be ‘‘tipped’’; and again if the owner was ‘‘likely’’. All of which reminds one of Lafontaine’s fable where the operator of ‘‘la lanterne magique’’, had forgotten ‘‘d’allumer la lanterne’’. Under those circumstances, how much one would pray that some one skilled in the science should "clearly’’ pull the ‘‘situs’’ principle out of an opera hat.

Be all that as it may, and guided by my adumbrated lantern, I must search where the owner would likely have gone to see if the scales could at least be tipped in his favour. Adumbrated shades of Diogenes!

Fortunately, the conduct of the plaintiff himself, second Ulysses, in search of a port where to land his share certificates, may offer the solution! The plaintiff himself has tipped the scales, and has indicated not the likely, but the actual place where he would have had " ‘ the shares effectively dealt with’’, when he presented his share certificates to the defendant’s solicitors, at the city of Toronto, on the 15th March 1944, and to the Chartered Trust & Executor Co., the transfer agent of the defendant, at Toronto, on the 4th February 1947.

In the "adumbrated light” of the above authorities, I must find, as I do, that the situs of said shares, for the purposes of the Ontario Succession Duty Act, is in Ontario, and that the refusal of the defendant to effect the transfer in its books of the shares requested by the plaintiff, until the consent in writing to that end has been obtained from the Treasurer of Ontario, is well founded in law.

I find as a fact that the plaintiff has established no damages.

The action 1s, therefore, dismissed with costs.

Action dismissed.