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                            THE BRITIS COLUMBIA REPORTS BEING REPORTS OF CASES
TABLE OF CASES REPORTED
	A
		Advent, Rex v.
		Aitken, Stave Falls Lumber Co. Ltd. and v. Westminster Trust Co. et al.
		Aitken, Stave Falls Lumber Co. Ltd. and v. Westminster Trust Co. et al.
		Anderson v. Caledonian Insurance Co.
		Anglo-Canadian Shipping Co. Ltd., Australian Dispatch Line (Incorporated) v.
		Anglo-Canadian Shipping Co. Ltd., Australian Dispatch Line (Incorporated) v.
		Attorney-General for British Columbia v. Kandahar Consolidated Gold Mines Ltd. (N.P.L.)
		Attorney-General for British Columbia ex rel. the College of Dental Surgeons of British Columbia v. Cowen
		Attorney-General for British Columbia ex rel. the College of Dental Surgeons of British Columbia v. Cowen
		Attorney-General of British Columbia et al., Home Oil Distributors Ltd. et al. v.
		Attorney-General of British v. Salter
		Attorney-General of BritishColumbia v. Union Trust Co .Ltd. and Hugh Herbert Beck. Re Herbert Henry Beck,Deceased and The Succession Duty Act
		Attorney-General of BritishColumbia v. Union Trust Co .Ltd. and Hugh Herbert Beck. Re Herbert Henry Beck,Deceased and The Succession Duty Act
		Australian Dispatch Line (Incorporated) v. Anglo-Canadian Shipping Co. Ltd.
		Australian Dispatch Line (Incorporated) v. Anglo-Canadian Shipping Co. Ltd.
	B
		Batchelor and Hanes. Robertson v.
		Beck (HerbertHenry), De-Advent,  and The Succession Duty Act, Re. Attorney-General of British Columbia v.Union Trust Co. Ltd. and Hugh Herbert Beck
		Beck (HerbertHenry), De-Advent,  and The Succession Duty Act, Re. Attorney-General of British Columbia v.Union Trust Co. Ltd. and Hugh Herbert Beck
		Belt, Rex v.
		Berry, Vandepitte v.
		Bilan et al. v. Canadian Fishing Co. Ltd.
		Blakeney v. Seed
		Bowen, McDermid v.: The General Accident Assurance Co. of Canada, Third Party
		British Columbia Electric Ry. Co. Ltd., Harbour and, Mackenzie v.
		British Columbia Electric Ry. Co. Ltd., Scott v.
		Bull v. Sloan
		Burt, Frederickson et al. v.
		Bush, Rex v.
	C
		Caledonian Insurance Co.,  Anderson v. 41
		Canada Rice Mills Ltd. v. The Union Marine and General Insurance Co. Ltd.
		Canadian Bank of Commerce, The, Keech v.
		Canadian Bank of Commerce, The v. The Yorkshire & Canadian Trust Co.
		Canadian Fishing Co.Ltd., Bilan et al. v.
		Canadian Government Merchant Marine Ltd. and Canadian National Steamship Co. Ltd., Des Brisay et al. v.
		Canadian National Steamship Co. Ltd., Canadian Govern ment Merchant Marine Ltd. and, Des Brisay et al. v.
		Canadian Northern Pacific Ry. Co., Chesworth v.
		Cariboo Gold Quartz Mining Co. Ltd., The v. Island Mountain Mines Co. Ltd.
		Chapman, Vintners Ltd. and Pearson v.
		Chatenay v. Chatenay
		Chesworth v. Canadian Northern Pacific Ry. Co.
		City of North Vancouver, Corporation of the, Whitehead v.
		City of Vancouver, Lammers v.
		City of Victoria, The Corporation of The, McGavin and McMullen, Day v.
		City of Victoria, Victoria Cold Storage and Terminal Warehouse Co. Ltd. and Porter v.
		Clark (R.P.) & Co. (Vancouver) Ltd., In re. Jukes's Case
		College of Dental Surgeons of British Columbia, The, Attorney-General for British Columbia ex rel. v. Cowen
		College of Dental Surgeons of British Columbia, The, Attorney-General for British Columbia ex rel. v. Cowen
		Corporation of the City of North Vancouver, Whitehead v.
		Corporation of The City of Victoria, The, McGavin and McMullen, Day v.
		Cowen, Attorney-General for British Columbia ex rel. the College of Dental Surgeons of British Columbia v.
		Cowen, Attorney-General for British Columbia ex rel. the College of Dental Surgeons of British Columbia v.
		Coy, Rex v.
		Crowe, Rex v.
		Crowe, Rex v.
		Crowe, Rex v.
		Crystal Dairy Ltd., Rex v.
	D
		Davies, Hook v.
		Day v. The Corporation of The City of Victoria, McGavin and McMullen
		Deane, Spencer v.
		Des Brisay et al. v. Canadian Government Merchant Marine Ltd. and Canadian National Steamship Co. Ltd.
		Dobroski v. Mackay
		Dockrill Estate, In re
		Dominion Construction Co. Ltd., Rex ex rel. Gardiner v.
		Drysdale (Gordon), Deceased, In re Executors of
	E
		Estate of A .M. Kaime, Deceased, In re
		Estate of H.O. Kirkham and Co., Ltd., In re
		Executors of Gordon Drysdale, Deceased, In re
	F
		Fire Association of Philadelphia, College of Dental Surgeons of Sokolowsky v.
		Fraser, Wood and v. Paget
		Frederickson et al. v. Burt
	G
		Gardiner, Rex ex rel. v. Dominion Construction Co. Ltd.
		General Accident Assurance Co. of Canada, The, Third Party, McDermid v. Bowen
	H
		Hanes, Batchelor and, Robertson v.
		Harbour and British Columbia Electric Ry. Co. Ltd., Mackenzie v.
		Hartin et at., May et al. v.
		Hollenbeck, Smith & Osberg Ltd. v.
		Hollywood Theatres Ltd. v. Tenney et al.
		Hollywood Theatres Ltd. v. Tenney et al.
		Home Oil Distributors Ltd. et al. v. Attorney-General of British Columbia et al.
		Hook v. Davies
		Hoy's Crescent Dairy, Ltd., Rex v.
		Hughes, Power and Power v.
	I
		Inecto Rapid (Canada) Ltd., W.T. Pember Stores Ltd. and Pacific Drug Stores Ltd., O'Fallon v.
		Inecto Rapid (Canada) Ltd., W.T. Pember Stores Ltd. and Pacific Drug Stores Ltd., O'Fallon v.
		Island Mountain Mines Co. Ltd., The Cariboo Gold Quartz Minng Co. Ltd. v.
	J
		Jamieson, Kyle v.
		Jawala Singh, The King v.
		Jukes's Case. In re R.P. Clark & Co. (Vancouver) Ltd.
	K
		Kaime (A.M.), Deceased, In re Estate of
		Kandahar Consolidated Gold Mines Ltd. (N.P.L.), Attorney-General for British Columbia v.
		Keech v. The Canadian Bank of Commerce
		King, The v. Jawala Singh
		Kirkham (H.O.) and Co., Ltd., In re Estate of
		Kyle v. Jamieson
	L
		Lammers v. City of Vancouver
	M
		Macchione, Rex v. (No. 2)
		McDermid v. Bowen: The General Accident Assurance Co. of Canada, Third Party
		McDonald v. Neary
		McDonald v. United Air Transport, Ltd.
		Macdonald & Wilson Ltd., Renewo Products Ltd. v.
		McGavin and McMullen, The Corporation of The City of Victoria, Day v.
		Mackay, Dobroski v.
		Mackenzie v. Harbour and B.C. Electric Ry. Co. Ltd.
		McMullen, The Corporation of The City of Victoria, McGavin and, Day v.
		McTavish, Roche and, Schofield v.
		Mali Chee, Rex v.
		May et al. v. Hartin et al.
		Mercer v. The Moler System of Barber Schools
		Miket, Rex v.
		Moler System of Barber Schools, The Mercer v.
		Mosher v. Parker
	N
		Neary, McDonald v.
		North Vancouver, Corporation of the City of, Whitehead v.
		North West Terminals Ltd. et al. v. Westminster Trust Co. et al.
		Notaries Act and Hercules Worsoe, In re
		Nychuk, R. v.
	0
		O'Fallon v. Inecto Rapid (Canada) Ltd., W.T. Pember Stores Ltd. and Pacific Drug Stores Ltd.
		O'Fallon v. Inecto Rapid (Canada) Ltd., W.T. Pember Stores Ltd. and Pacific Drug Stores Ltd.
	P
		Pacific Drug Stores Ltd., Inecto Rapid (Canada) Ltd., W.T. Pember Stores Ltd.and, O'Failon v.
		Pacific Drug Stores Ltd., Inecto Rapid (Canada) Ltd., W.T. Pember Stores Ltd.and, O'Failon v.
		Paget, Wood and Fraser v.
		Parker, Mosher v.
		Pavich et al. v. Tulameen Coal Mines Ltd. et al., In re (No. 2)
		Pawson, Trapp Motors Ltd. v.
		Pearson v. Vintners Ltd. and Chapman
		Pember (W.T.) Stores Ltd. and Pacific Drug Stores Ltd., Inecto Rapid (Canada) Ltd., O'Fallon v.
		Pember (W.T.) Stores Ltd. and Pacific Drug Stores Ltd., Inecto Rapid (Canada) Ltd., O'Fallon v.
		Porter, Victoria Cold Storage and Terminal Warehouse Co. Ltd. and v. City of Victoria
		Power and Power v. Hughes
	R
		Rankine, Rex v.
		Renewo Products Ltd. v. Maedonald & Wilson Ltd.
		Rex v. Advent
		Rex v. Belt
		Rex v. Bush
		Rex v. Coy
		Rex v. Crowe
		Rex v. Crowe
		Rex v. Crowe
		Rex v. Crystal Dairy Ltd.
		Rex ex rel. Gardiner v. Dominion Construction Co. Ltd.
		Rex v. Hoy's Crescent Dairy, Ltd.
		Rex v. Macchione (No. 2)
		Rex v. Mah Chee
		Rex v. Miket
		Rex v. Nychuk
		Rex v. Rankine
		Rex v. Zelky
		Robertson v. Batchelor and Hanes
		Roche and McTavish, Schofield v.
	S
		Salter, Attorney-General of British Columbia v.
		Schofield v. Roche and McTavish
		Schulte, Winter v.
		Scott v. British Columbia Electric Ry. Co. Ltd.
		Seed, Blakeney v.
		Sloan, Bull v.
		Smith & Osberg Ltd. v. Hollenbeck
		Sokolowsky v. Fire Association of Philadelphia
		Spencer v. Deane
		Stave Falls Lumber Co. Ltd. and Aitken v. Westminster Trust Co. et al.
		Stave Falls Lumber Co. Ltd. and Aitken v. Westminster Trust Co. et al.
		Stromme v. Woodward Stores Ltd. and Sweet Sixteen Ltd.
		Succession Duty Act, The, Re Herbert Henry Beck, Deceased and. Attorney-General of British Columbia v. Union Trust Co. Ltd. and Hugh Herbert Beck
		Succession Duty Act, The, Re Herbert Henry Beck, Deceased and. Attorney-General of British Columbia v. Union Trust Co. Ltd. and Hugh Herbert Beck
		Sweet Sixteen Ltd., Woodward Stores Ltd. and, Stromme v.
	T
		Tenney et al., Hollywood Theatres Ltd. v.
		Tenney et al., Hollywood Theatres Ltd. v.
		Trapp Motors Ltd. v. Pawson
		Trewin v. Wawanesa Mutual Insurance Co.
		Tulameen Coal Mines Ltd. et al., In re Pavich et al. v. (No. 2)
	U
		Union Marine and General Insurance Co. Ltd., The, Canada Rice Mills Ltd. v.
		Union Trust Co. Ltd. and Hugh Herbert Beck, Attorney-General of British Columbia v. Re Herbert Henry Beck, Deceased, and The Succession Duty Act
		Union Trust Co. Ltd. and Hugh Herbert Beck, Attorney-General of British Columbia v. Re Herbert Henry Beck, Deceased, and The Succession Duty Act
		United Air Transport, Ltd., McDonald v.
	V
		Vancouver, City of, Lammers v.
		Vandepitte v. Berry
		Victoria Cold Storage and Terminal Warehouse Co. Ltd. and Porter v. City of Victoria
		Victoria, The Corporation of The City of, McGavin and McMullen, Day v.
		Vintners Ltd. and Chapman, Pearson v.
	W
		Wawanesa Mutual Insurance Co., Trewin v.
		Weber, Worth v.
		Westminster Trust Co. et al., North West Terminals Ltd. et al. v.
		Westminster Trust Co. et al., Stave Falls Lumber Co. Ltd. and Aitken v.
		Westminster Trust Co. et al., Stave Falls Lumber Co. Ltd. and Aitken v.
		Whitehead v. Corporation of the City of North Vancouver
		Winter v. Schulte
		Wood and Fraser v. Paget
		Woodward Stores Ltd. and Sweet Sixteen Ltd., Stromme v.
		Worsoe (Hercules), In re Notaries Act and
		Worth v. Weber
	Y
		Yorkshire & Canadian Trust Co., The, The Canadian Bank of Commerce v.
	Z
		Zelky, R. v.
TABLE OF CASES CITED
	A
	B
	C
	D
	E
	F
	G
	H
	I
	J
	K
	L
	M
	N
	0
	P
	Q
	R
	S
	T
	U
	V
	W
	X
	Z
REPORTS OF CASES
INDEX
APPENDIX
                        
Document Text Contents
Page 1

TH E

BRITIShI COLUMBIA REPORT S
BEING

REPORTS OF CASE S
DETERMINED IN THE

COURT OF APPEAL, SUPREME AND COUNTY COURTS,
AND IN ADMIRALTY,

WITH

A TABLE OF THE CASES ARGUE D
A TABLE OF THE CASES CITE D

AND

A DIGEST OF THE PRINCIPAL MATTER S

REPORTED UNDER THE AUTHORITY OF

THE LAW SOCIETY OF BRITISH COLUMBIA
BY

E. C. SENKLER, K. C .

VOLUME LIII .

VICTORIA, B. C .

Printed by The Colonist Printing & Publishing Company, Limited .

1939 .

Page 2

Entered according to Act of the Parliament of Canada in the year one thousan d

nine hundred and thirty-nine by The Law Society of British Columbia.

Page 318

276



BRITISH COLUMBIA REPORTS .



[ Vol-

S .C .
In Chambers

193 8

ILE X
v.

1YCUUIti

S .C .

193 8

Dec . 6, 13 .

Section 2 (a) of the by-law being invalid, the conviction i s
invalid and must be quashed .

Conviction quashed.

O'FALLON v. INECTO RAPID (CANADA) LIMITED ,

W. T. PEMBER STORES LIMITED AND PACIFI C

DRUG STORES LIMITED. (No. 2) .

Practice—Costs—Sale of dangerous goods—Injury to purchaser—Action
for damages—Finding against two defendants—Action dismissed agains t
third defendant—Liability of unsuccessful defendants for costs o f
successful defendant—Order LXV ., r . 32 .

The plaintiff sustained injuries from the use of a hair dye known to th e

trade as "Inecto Rapid" which she purchased from a retailer, the Pacific

Drug Stores Limited. She brought action for damages against th e

manufacturer, the wholesale distributor and the retailer . She recov-

ered judgment against the manufacturer and wholesale distributor bu t

the action was dismissed as against the retailer . An application by

the plaintiff and Pacific Drug Stores Limited for an order directing

that the costs of the defendant Pacific Drug Stores Limited be taxed as

against the other two defendants under Order LXV ., r. 32, was dismissed .

APPLICATION by plaintiff and the successful defendan t

Pacific Drug Stores Limited for an order directing that the
costs of the successful defendant be taxed as against the unsuc -

cessful defendants, namely Inecto Rapid (Canada) Limite d

and W. T. Pember Stores Limited, manufacturers and distribu-
tors respectively of the hair dye in question in the action .

Heard by MAtisox, J. at Vancouver on the 6th of December ,

1938 .

,llarsden, for plaintiff .

G. Roy Long, for defendant Pacific Drug Stores Limited .

Burnett, for defendants Inecto Rapid (Canada) Limited and

W. T. Pember Stores Limited .
Cur. adv. vutt .

13th December, 1938 .

MANsoN, J . : Application by plaintiff and defendant Pacifi c
Drug Stores Limited for an order directing that the costs of the

Page 319

LIII.]



BRITISH COLUMBIA REPORTS .



27 7

defendant Pacific Drug Stores Limited be taxed as against th e
other two defendants under Order LXV ., r . 32, which rule reads

as follows :
32. Where the costs of one defendant ought to be paid by anothe r

defendant, the Court may order payment to be made by one defendant to

the other directly : and it is not to be necessary to order payment throug h

the plaintiff .

The above rule has been considered in the following cases : Green

v . B.C. Electric Ry. Co. (1915), 9 W.W.R. 75 ; Goodell v.
Marriott (1929), 44 B .C . 239 ; Molt v . Holmes di Wilson Ltd.
(1930), 42 B .C. 545 ; Rhys v . IPrighl and Lambert (1931), 4 3
B.C . 558 ; Jarvis v . Southard Motors Ltd . (1932), 45 B .C. 144 ;
Smith v. Kennedy and Thomas (1936), 51 B .C. 52 ; Hampton

v . Park (1937), 52 B.C . 294. In considering a similar situa-

tion in Sanderson v . Blyth Theatre Company, [1903] 2 I .B .

533, Romer, L.J ., observed at p . 539 :
Of course, in exercising the jurisdiction, a judge should have regard to

the circumstances of the case, and be satisfied that it is just that th e

unsuccessful defendant should, either directly or indirectly, have to pa y

the costs of the successful defendant .

And Vaughan Williams, L . T., at p. 544 gave expression to a
similar warning .

The cases in our own Courts on the point were all collision
cases and in all of them question arose as to whether or not th e
plaintiff was justified in bringing action against all of th e

several defendants in the uncertainty of just which of th e
defendants was guilty of the negligence which resulted in th e

damages. Speaking generally, the submission was, in each case ,

that the several defendants were all involved and it was not t o
be expected that the injured plaintiff could know before tria l
that all of the several defendants did not contribute to the negli-

gence . Furthermore, in several of the cases the defendants by
their pleadings blamed each other .

This case does not fall within the class of eases above referre d
to. Here, the successful defendant was a retailer. The plaintiff

bought from the successful defendant a specific article under it s
trade name. I found that the plaintiff (lid not rely on th e
seller's skill or judgment and that she was barred from recover y
from Pacific Drug Stores Limited by section 21 of the Sale o f
Goods Act, R .S.B.C. 1936, Cap. 250. The Drug Stores' defence

s . C .
193 3

O'FALLON
v .

INECTO.
RAPI D

(CANADA )
LTD .

Manson, J.

Page 636

594



INDEX .



{Vol..

THIRD PARTIES .



-



-



-



35
See PRACTICE . 11 .

TIMBER CUT AND SOLD—Right to pro-
ceeds—Assignment of part of pro-
ceeds to bank—Bank's rights .
-



-



300
See LUMBER COMPANY .

TIMBER LICENCES .



-



-



338
See CROWN LANDS .

TIME—Extension of for notice of appeal t o
Supreme Court of Canada—Section
65 of Supreme Court Act, R .S .C.
1927, Cap . 35 — "Special circum-
stances"—Costs. - - 7'
See PRACTICE . 8.

TRADE FIXTURES. - - - 463
See MORTGAGE.

TRADE UNIONS— Contract between theatr e
owners and union—Dispute as to interpreta-
tion of—Watching and besetting theatre—
Object to compel acceptance of union's inter-
pretation of contract—NuisanceRight to
injunction and damages .] Mrs . Fairleigh
acted as manager, and her husband as a
qualified projectionist, of the Hollywoo d
Theatre in Vancouver, of which they wer e
the owners . The regulations under the Fir e
Marshal Act require the presence of tw o
projectionists in a booth . In October, 1937 ,
Mrs . Fairleigh entered into an agreement
with the British Columbia Projectionists '
Union whereby she agreed to employ onl y
projectionists supplied by the union, "except
and only when members of her family are
not available ." At this time Mrs . Fairleigh's
son was studying to become a projectionist ,
and on March 26th, 1938, he became quali-
fied and took out a projectionist's certificate .
The union projectionist who was employed
as second projectionist in the theatre wa s
then dismissed and the son took his place.
The union protested that it was understood
that only one member of the family would
act at a time, and that one union man woul d
always be employed . The union picketed the
theatre and carried on a system of watching
and besetting before the entrance. In an
action for damages and an injunction : —
Held, that the defendants acted in concer t
on a prearranged plan and in pursuanc e
thereof, without lawful jurisdiction, wer e
attempting to compel the plaintiff to do
what it was not legally obligated to do in
conducting its business . The plaintiff i s
entitled to an injunction and damages .
HOLLYWOOD THEATRES LIMITED V . TENNEY
et al . No . 2) .



-



-



-



-



389

TRADE UNIONS—Continued .

2 . Employment of its members —
Operation of theatre—Projectionist—Picket-
ing, watching and besetting—Discretion of
trial judge—Appeal.



-



-



385
See INJUNCTION . 3 .

ULTIMATE NEGLIGENCE.



512
See NEGLIGENCE . 2 .

VENTILATORS AND HATCHES—Lack o f
ventilation owing to closing of—
Weather conditions—"Perils of th e
sea"—Construction of . - 441
See INSURANCE, MARINE .

WAREHOUSEMEN—Extent of duty of.
-



-



-



-



207
See NEGLIGENCE. 5 .

WARNING—Sale of dangerous goods—Lia-
bility of manufacturer, wholesale r
or retailer to purchaser . - 266
See NEGLIGENCE . 11 . ,

WATCHING AND BESETTING . - 389
See TRADE UNIONS. 1 .

WIDOW—Actions by under Administratio n
Act and Families' Compensation
Act . 88
See DAMAGES . 10 .

WHIPPING.



-



-



498
See CRIMINAL LAw. 8 .

WILL—Construction—Annuity part of resi-
due of estate—Gift of income of residue—
Annuity part of capital .] P. directed by
his will that $200 per mnoth be paid to hi s
daughter D . out of the income arising fro m
his residuary estate, during the life of hi s
wife, who survived D . D. died in 1935, an d
by will bequeathed her residuary estate (1 )
in payment of the annual premium upon a
policy upon the life of her granddaughter
P . L. ; (2) to pay her daughter F . M . during
her life the annual sum of $420 ; (3') to pa y
the balance of her income arising from he r
residuary estate to her daughter C. G., and
upon the death of said two daughters, the
whole of the residuary estate to be divide d
between the two grandchildren of the testa-
trix . On a contest as to whether the monthly
payments of $200 are to be invested by th e
trustees and the income thereof be paid t o
the daughter C. G., or whether the whol e
amount of $200 is payable to C. G. as
income :—Held, that the trustees shoul d
invest the $200 monthly payments and pa y
the income from it to C . G. In re DocxRILL
ESTATE .



-



-



-



-



319

Page 637

LIIL]



INDEX .

WILL— Continued.



WORDS AND PHRASES—Continued.

2.—Construction—Child en ventre sa



7 .—"Volenti non fit injuria"—Inter-
mere—Beneficiaries named in will—Inten- pretation .



-



-



-



-



478
tion of testator—Right of posthumous child



See NEGLIGENCE. 13 .
to share in estate .] A testator by his wil l
gave all his property "unto my wife Monica
Alexandria Sloan and three infant children ,
David Alexander Sloan, John Kenneth Sloa n
and Monica Marjorie Sloan, or such of my
said children as shall attain the age of
twenty-one years, in equal shares with
power to my executors to pay over to my
said wife as guardian of my infant children,
the income of the expectant share of any
such child or such part thereof as my said
wife shall think necessary for the mainten-
ance and education of such child during
minority ." Five months after testator' s
death a fourth child was born . Upon orig-
inating summons an order was made declar-
ing that the posthumous child was entitle d
to share equally in the estate with the othe r
three children . Held, on appeal, reversing
the decision of MANSON, J ., that the bene-
ficiaries under the will were described as
personce designatce and not as a class and
therefore the child born after testator' s
death is not entitled to share in the estate .
Buhr, C . SLOAN .



-



-



-



-



81

595



3 . Foreign probate—Three euecutors—
Applieation for ancillary probate in Britis h
Columbia—Grant to one of the foreign
executors . 190

See PRACTICE . 12 .

WORDS AND PHRASES—"A person carry-
ing on a business"—Meaning of . 3
See MUNICIPAL LAW .

2.--"Lay" contract—Meaning of. 24 1
See WORKMEN ' S COMPENSATION ACT.



3.



"Owner's police./"—Interpretation .
485

See INSURANCE, AUTOMOBILE . 2.

4.--"Perils of the sea"—Interpretation.
440

See INSURANCE, MARINE .



5 . "Person"—Includes corporation .
-



-



- 557
See ARCHITECT .

6 .



"Special circumstances ."



7
See PRACTICE. 8 .

WORKMEN'S COMPENSATION ACT—
Plaintiffs working on a "lay" contract as
fishermen with defendant—Remuneration a
share of proceeds after deducting expenses—
Deduction by defendant to meet assessment s
of Board—Right of action to recover—Em-
ployer and employee—R .S .B .C. 1936, Cap .
312, Secs. 13 and 11t.] The plaintiffs wer e
engaged from 1927 until 1937 in fishing
operations, working on what is called a
"lay" under which the workmen received as
remuneration a certain share of the proceeds
of the operations after certain expenses ha d
been deducted . Boats and nets were pro-
vided by the defendant company, and durin g
said period the defendant company deducte d
from the remuneration payable by it to th e
plaintiffs the workmen's compensation
assessments calculated upon the basic rat e
for each year fixed by the Board, the exact
amount deducted from each plaintiff depend-
ing on what his gross earnings were. The
full amount deducted was not paid to th e
Board at one time, but the money was pai d
according to assessments or calls made by
the Board from time to time, with an
adjustment according to the final pay-roll .
For at least eight years of the period the
Board collected less than the basic rate .
The plaintiffs, alleging contracts of employ-
ment, claimed thereunder the total amoun t
of moneys so deducted and relied on section s
13 and 14 of the Workmen's Compensation
Act . Held, that the relationship between
the parties was that of employer and em-
ployee, and the moneys paid to the Boar d
should be distinguished from those retaine d
by the defendant, and time was no bar t o
the plaintiffs' action in respect to the
moneys retained . The relationship between
the parties was created by the contract and
not the statute. The plaintiffs are therefore
entitled to recover from the defendant th e
unpaid balance, namely, the total amount s
which have been deducted from them durin g
the period in question less the amounts pai d
to the Board and deducted from earnings
payable to plaintiffs more than six years
before the action was brought and less any
sums which have been paid to them by th e
defendant with respect to the total amount s
deducted from them. The claim for interest
is disallowed. BILAN et al . v. CANADIAN
FISHING COMPANY LIMITED .



-



241

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