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Criminal law—Summary conviction—Criminal negligence in operation of motor vehicle—Conviction of dangerous driving—Appeal by accused by way of trial de novo—Conviction for criminal negligence in operation of motor vehicle—Conviction not proper—Criminal Code, 1953-54 (Can.), c. 51, ss. 221(1), (4), 569(4), 720(a), 727(1).

The appellant was charged with criminal negligence in the operation of a motor vehicle, contrary to s. 221(1) of the Criminal Code, and was tried by way of summary conviction. He was convicted of the included offence of driving in a manner that was dangerous to the public, contrary to s. 221(4) of the Code. On appeal by way of a trial de novo pursuant to s. 720 of the Code, the County Court judge convicted him of the offence of criminal negligence as originally charged. The main argument raised in the Court of Appeal, as well as in this Court, is that the appeal by way of a trial de novo was concerned only with the lesser offence of which he was convicted and not with the major offence of criminal negligence with which he was charged. The Court of Appeal dismissed the appeal and held that the Court, on an appeal by way of a trial de novo is required to try the accused on the charge as originally laid. The accused appealed to this Court.

Held (Fauteux and Judson JJ. dissenting): The appeal should be allowed.

Per Cartwright C.J. and Abbott, Martland, Ritchie, Hall, Spence and Pigeon JJ.: The only issue which the County Court judge was authorized and required to hear and determine on the holding of a trial de novo in the present case was the issue of the guilt or innocence of the accused on the charge of which he was convicted and from which he had appealed. The trial de novo for which provision is made under s. 727(1) takes the form of an entirely new trial of

[Page 1023]

any issue raised by the notice of appeal. The County Court judge purported to register a conviction against the appellant under s. 221(1) in the absence of any appeal whatever from the magistrate’s finding that the evidence did not prove that offence. Any construction of s. 727(1) which would result in a retrial of the charge alleged in the original information when that charge has been dismissed by the magistrate and there is no appeal from his dismissal, would be inconsistent with the appeal provisions of Part XXIV. Sections 720(a)(i) and 727(1) make provision for an appeal by the defendant on his “conviction” as distinct from the “charge” described in the information upon which he was arraigned before the magistrate.

Section 569(4) applies to the charges either in an information or an indictment and therefore authorized the magistrate to convict as he did under s. 221(4).

Per Fauteux and Judson JJ., dissenting: The appeal by way of a trial de novo is not a new trial ordered by the Court as may be the case in an appeal under Part XVIII, but a statutory right given to a defendant to have his trial recommenced before another judge and another jurisdiction. Once an appeal is taken by an accused under s. 720, the Court appealed to is required by s. 727(1) to try the accused on the charge as laid. This was the law prior to the coming into force of the new Code in 1955. The law has not been changed in this respect under the new Code. The argument that ss. 720(a)(i) and 727(1) make provision for an appeal by the defendant on a “conviction” as distinct from the “charge” described in the information upon which he was arraigned before the magistrate and that these provisions have been invoked by the appellant in the present case through filing and service of notice of appeal in accordance with s. 722, must be rejected. The word “conviction” in ss. 720(a)(i), 722(1)(a)(i) and 727(1) is not used “as distinct from the charge” but as distinct from an order made or the sentence passed upon a defendant.

The provisions of s. 569(4) of the Code are applicable to summary conviction proceedings.

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APPEAL from a judgment of the Court of Appeal for Ontario[1], affirming the appellant’s conviction for criminal negligence in the operation of a motor vehicle. Appeal allowed, Fauteux and Judson JJ. dissenting.

Austin M. Cooper, Q.C., and G.H. Marsden, Q.C., for the appellant.

Ian Cartwright, for the respondent.

The judgment of Cartwright C.J. and of Abbott, Martland, Ritchie, Hall, Spence and Pigeon JJ. was delivered by

RITCHIE J.—The appellant was initially charged before Magistrate Andrews by way of Information with criminal negligence in the operation of his motor vehicle contrary to s. 221(1) of the Criminal Code, but at trial the Magistrate convicted him only of the lesser offence of driving in a manner that was dangerous to the public contrary to s. 221(4). In making this conviction the learned Magistrate was, in my opinion, acting under the authority of s. 569(4) of the Code which reads as follows:

569. (4) Where a count charges an offence…under subsection (1) of section 221, and the evidence does not prove such offence but does prove an offence under subsection (4) of section 221 or subsection (1) of section 226A, the accused may be convicted of an offence under subsection (4) of section 221 or subsection (1) of section 226A, as the case may be.

It is thus apparent that the conviction entered by the Magistrate under s. 221(4) involved a finding that the evidence did not prove an offence under s. 221(1) and there was no appeal from that finding.

It has been suggested that the provisions of s. 569(4) do not apply to summary conviction offences and that although the offences defined in ss. 221(1) and 221(4) are punishable both as indictable offences and as offences punishable on summary conviction, the reference to these sec-

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tions in s. 569(4) must be taken to refer exclusively to charges by way of indictment and can therefore have no application in the present case.

This argument is based on the fact that s. 569 occurs in Part XVII of the Code which Part bears the heading “Procedure by Indictment”. If this argument were valid it would mean that a great many sections which are to be found in Part XVII and which are universally applied in the trial of summary conviction offences, have no application at all at such trials. I refer by way of example to the provisions for the accused being present in Court during his trial, (s. 557), the requirement for the corroboration of the evidence of children (s. 566), and the procedure whereby an accused may be convicted of an attempt to commit the offence charged (s. 567).

It will be noted that the cases in which the provisions of Part XVII are made referable to indictable offences only and where this does not plainly appear from the context, the relevant provisions of the Code specifically state that they are referable only to indictable offences by using such words as “An accused who is charged with an indictable offence...” (s. 525) or “Where an indictment charges...” (s. 519(1)) or “Where an accused is on trial for an indictable offence...” (s. 562).

In the case of s. 569(4), the opening words of the section are “Where a count charges an offence…”. In this regard reference may usefully be had to s. 2 (8) of the Code which provides:

2. In this Act,

(8) ‘count’ means a charge in an information or indictment;…

In my opinion s. 569(4) applies to charges either in an Information or an indictment and therefore applies to the present case so as to authorize the Magistrate to convict as he did under subs. (4) of s. 221.

In the present case the only appeal was that of the appellant from his conviction for dangerous driving and this appeal was taken to the County

[Page 1026]

Court of the County of Peel in accordance with the provisions of s. 720(a) of the Criminal Code.

After hearing a trial de novo held pursuant to s. 727(1) of the Code, His Honour Judge E.W. Grant convicted the appellant of the offence of criminal negligence contrary to s. 221(1) and from that conviction the appellant appealed to the Court of Appeal of Ontario alleging that the County Court Judge had exceeded his jurisdiction which was limited to the determination of the appellant’s guilt or innocence of the offence of which he was convicted and that the issue to be determined at the trial de novo was limited by the terms of the Notice of Appeal to the County Court. In a unanimous judgment delivered by Gale C.J.O., the Court of Appeal[2] dismissed this appeal and it is from this decision that the appellant now appeals.

At all times material hereto, the relevant portions of the Criminal Code applicable to appeals under Part XXIV as they relate to this case read as follows:

720. Except where otherwise provided by law,

(a) the defendant in proceedings under this Part may appeal to the appeal court

(i) from a conviction or order made against him, or

(ii) against a sentence passed upon him; and

(b) the informant, the Attorney General or his agent in proceedings under this Part may appeal to the appeal court

(i) from an order dismissing an information or

(ii) against a sentence passed upon a defendant.

722. (1) Where an appeal is taken under section 720, the appellant shall

(a) prepare a notice of appeal in writing setting forth

(i) with reasonable certainty the conviction or order appealed from or the sentence appealed against, and

(ii) the grounds of appeal;

(b) cause the notice of appeal to be served upon

(i) the summary conviction court that made the conviction or order or imposed the sentence or

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such other person as a judge of the appeal court directs, and

(ii) the respondent or, where the respondent is the informant or complainant, such other person as a judge of the appeal court directs,

within thirty days after the conviction or order was made or the sentence was imposed, whichever is the later; and

(c) file in the office of the clerk of the appeal court

(i) the notice of appeal referred to in paragraph (a), and

(ii) an affidavit of service of the notice of appeal,

not later than seven days after the last day for service of the notice of appeal upon the respondent and the summary conviction court.

Section 723 reads:

723. (1) Where an appellant has complied with section 722, the appeal court or a judge thereof shall set down the appeal for hearing at a regular or special sittings thereof and the clerk of the appeal…

Section 726(1) provides that:

726. (1) Where a summary conviction court is served with a copy of the notice referred to in paragraph (b) of subsection (1) of section 722, that court shall transmit the conviction, order or order of dismissal and all other material in its possession in connection with the proceedings to the appeal court before the time when the appeal is to be heard, or within such further time as the appeal court may direct, and the material shall be kept by the clerk of the court with the records of the appeal court.

Section 727 contains the general provisions providing for the hearing of the appeals in such cases. That section reads, in part:

727. (1) Where an appeal has been lodged in accordance with this Part from a conviction or order made against a defendant, or from an order dismissing an information, the appeal court shall hear and determine the appeal by holding a trial de novo, and for this purpose the provisions of sections 701 to 716, insofar as they are not inconsistent with sections 720 to 732, apply, mutatis mutandis.

[Page 1028]

It has been held more than once in this Court, (Dennis v. The Queen[3]), (The Queen v. Dennis[4]), that the existence of a valid Notice of Appeal filed and served in accordance with s. 722 is a condition precedent to the exercise of the jurisdiction vested in the Court of Appeal under s. 727(1) and it follows, in my opinion, that a County Court Judge acting under the latter section is only authorized and required “to hear and determine the appeal by holding a trial de novo” in respect of the issues raised in a Notice of Appeal which has been so filed and served. In the present case the learned County Court Judge purported to register a conviction against the appellant under s. 221(1) in the absence of any appeal whatever from the Magistrate’s finding that the evidence did not prove that offence. I do not find it necessary to decide whether an appeal in fact lies by the informant or the Attorney General from such a finding because I take the view that the controlling factor in this case is that no such appeal was taken.

In my view the trial de novo for which provision is made under s. 727(1) takes the form of an entirely new trial of any issue raised by the Notice of Appeal. At the hearing under that section the issue is to be determined without any reference, except for the purpose of cross-examination, to the evidence called in the court appealed from and upon a fresh determination based upon evidence called anew and perhaps accompanied by entirely new evidence (See The Queen v. Dennis, supra).

In my opinion, the only issue which the County Court Judge was authorized and required to hear and determine on the holding of a trial de novo in the present case was the issue of the guilt or innocence of the accused on the charge of which he was convicted and from which he had appealed.

Counsel for the respondent stressed the fact that in the last two lines of s. 727(1) it is provided that for the purpose of a trial de novo “the provisions of sections 701 to 716 insofar as they are not inconsistent with sections 720 to 732,

[Page 1029]

apply mutatis mutandis”, and it was argued that these words have the effect of making s. 711 of the Code apply in the case of a trial de novo.

Section 711 reads as follows:

711. When the summary conviction court has heard the prosecutor, defendant and witnesses it shall, after considering the matter, convict the defendant or make an order against him or dismiss the information, as the case may be.

It was contended that applying this section, mutatis mutandis to a trial de novo under s. 727(1) necessarily involves placing the original information in issue at such a trial. It is to be remembered, however, that the provisions of s. 711 are only made applicable to appeals under Part XXIV of the Code “insofar as they are not inconsistent with sections 720 to 732...”, and in my view any construction of s. 727(1) which would result in a retrial of the charge alleged in the original information when that charge has been dismissed by the Magistrate and there is no appeal from his dismissal, would be inconsistent with the appeal provisions of Part XXIV.

The words “mutatis mutandis” as they occur in s. 727(1) are, in my opinion, to be taken as meaning “with the necessary changes in points of detail” (see Regina v. Ferris[5], per Williams C.J.), and I do not think that they in any way assist the matter when the application of the provisions of one of the sections to which they relate is “inconsistent with sections 720 to 732...”.

The argument has been advanced in support of the position taken by the respondent that the trial de novo for which provision is made in s. 727(1) is intended to be the same as the appeal described in s. 754 of the old Criminal Code. That section read, in part, as follows:

In every case of appeal from any summary conviction or order had or made before any justice, the court to which such appeal is made shall, notwithstanding any defect in such conviction or order, and notwithstanding that the punishment imposed or the order made may be in excess of that which might

[Page 1030]

lawfully have been imposed or made, hear and determine the charge or complaint on which such conviction or order has been had or made, upon the merits, and may confirm, reverse or modify the decision of such justice, or may make such other conviction or order in the matter as the court thinks just, and may by such order exercise any power which the justice whose decision is appealed from might have exercised, and may make such order as to costs to be paid by either party as it thinks fit.

In commenting on this section the Courts, in a substantial number of cases, have referred to the appeal therein described as “a hearing de novo” and it is contended that when the words “trial de novo” were adopted in drafting s. 727(1) it was against the background of legal decisions which interpreted these words as meaning the appeal for which provision was made in s. 754. On this basis it is suggested that the trial de novo described in s. 721(1) gives the County Court Judge the power to “hear and determine the charge or complaint on which” a “conviction or order had been had or made upon the merits...”. (The italics are my own). If this were the case the County Court Judge would have jurisdiction to hear and determine the charge as originally laid before the magistrate and would thus have had authority to convict the accused under s. 221(1) of the Code.

I am, however, of opinion that ss. 720(a)(i) and 727(1) make provision for an appeal by the defendant on his “conviction” as distinct from the “charge” described in the information upon which he was arraigned before the magistrate and that these provisions have been invoked by the appellant in the present case through the filing and service of a Notice of Appeal in accordance with s. 722. With the greatest respect for those who hold a different opinion, I take the view that the meaning of the provisions for appeal under Part XXIV of the Code, which was in force at the relevant times, carry this meaning.

It should perhaps be observed that these reasons are limited to a case in which a magistrate has found that the charge alleged in the

[Page 1031]

original information has not been proved and has therefore entered a conviction for an included offence, and where there has been no appeal from the dismissal of the more serious charge.

In a case where an accused is appealing from a conviction of the charge as laid in an information, I have no doubt that the County Court Judge would have jurisdiction to convict of an included offence, but the situation here is that it has been found that the evidence called before the magistrate does not prove the offence of criminal negligence and there is no appeal from this finding.

For all these reasons I would allow this appeal, set aside the conviction under s. 221(1) made by His Honour Judge Grant and restore the conviction under s. 221(4) which was made by Magistrate Andrews.

The judgment of Fauteux and Judson JJ. was delivered by

FAUTEUX J. (dissenting)—This is an appeal from a unanimous judgment of the Court of Appeal for Ontario[6].

Originally charged with criminal negligence, (s. 221(1) Cr. C.) in the operation of a motor vehicle on September 10, 1967, the appellant was tried by way of summary conviction and found guilty by Magistrate H.T.J. Andrews of the included offence of dangerous driving (s. 221(4) Cr. C), pursuant to s. 569(4) of the Code. He then appealed by way of a trial de novo to the County Court pursuant to s. 720 of the Criminal Code. At the end of the trial de novo, Judge E.W. Grant who had heard and considered anew all the evidence and argument, convicted the accused of criminal negligence as charged. Hence the appeals of Rickard to the Court of Appeal for Ontario and, thereafter, to this Court.

The main argument raised in the Court of Appeal, as well as in this Court, is that the appellant having been found guilty, by the Magistrate, of the lesser offence, under s. 221(4), his appeal by way of a trial de novo before the County

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Court Judge was concerned only with that offence and not with the major offence of criminal negligence under s. 221(1) with which he was charged. The Court of Appeal rejected that submission as ill-founded and stated that once an appeal is taken by an accused under s. 720, the Court appealed to is required by s. 727(1) to try the accused on the charge as laid.

That such was the law, prior to the coming into force of the new Code on the 1st of April 1955, is made clear by ss. 752 and 754 of the former Code. Indeed, s. 752 provided that “the Court appealed to shall try and shall be the absolute judge of the facts in respect to such conviction or order”; and s. 754 provided that the Court to which the appeal was made “shall hear and determine the charge or complaint on which such conviction or order has been had or made, upon the merits” and could confirm, revise or modify the decision appealed from. In these provisions of ss. 752 and 754, setting out the special manner in which such appeals were to be heard and determined, the term trial de novo did not appear. Nevertheless, such mode of appeal was consistently referred to by the provincial courts of appeal, in an abridged form, as trial de novo. In borrowing this term from judicial decisions, made under the former Code, and in using it in the provisions of s. 727 of the new Code, Parliament, in my view, manifested an intention not to alter but to maintain this previous state of the law in the matter. The words of a statute are generally understood in the sense which they bore when it was passed (Maxwell on Interpretation of Statutes, 9th ed., p. 62) and it is not to be presumed that a legislature would depart from the general system of the law without expressing its intention with irresistible clearness (Maxwell, supra, pp. 85 and 86).

That under the new Code, the law has not been changed in this respect, has been decided, not only in the present case by the Court of Appeal for Ontario, but by other courts.

In Regina v. Hieland[7], Mr. Justice Sheppard, delivering the judgment for the Court of Appeal of British Columbia, had this to say at page 138:

The appeal to the County Court is from the conviction—sec. 72(a)(i) of the Summary Convictions

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Act, 1955, ch. 71. Moreover the procedure on the appeal is by a trial de novo (sec. 79(1)) on the original information (sec. 43 made applicable by sec. 79(1); to which information the accused is to plead (sec. 43(1) made applicable by sec. 79(1)). The intention is manifest that the appeal to the County Court is not a mere review of the previous conviction but is a new trial on the original information and consequently the accused on that appeal may be found to have committed the offence charged in the information in any manner capable of being raised on that information and to the same extent as if there had been no previous adjudication.

It will be noted that ss. 72(a)(i) and (ii), 74(1)(a) and 79(1) of the British Columbia Summary Convictions Act, 1955, ch. 71, are respectively in terms similar to ss. 720(a) (i) and (ii), 722(1) (a) and 727(1) of the Criminal Code, except that in the latter section, the sections referred to bear numbers different than those referred to in s. 79(1) of the British Columbia Summary Convictions Act. Section 79(1) reads as follows:

79. (1) Where an appeal has been lodged in accordance with this Act from a conviction or order made against a defendant, or from an order dismissing an information, the Appeal Court shall hear and determine the appeal by holding a trial de novo, and for this purpose the provisions of section 7 of sections 41 to 45, 49 to 54, and 66 to 69, in so far as they are not inconsistent with sections 72 to 84, apply mutatis mutandis.

In Connolly v. The Queen[8], Chief Justice Campbell, Supreme Court of Prince Edward Island, said, at page 244:

The appellant, by appealing, has asked for, and obtained, a trial de novo. There is no provision, and apparently no necessity, for a cross-appeal by the Crown. If the Crown did cross-appeal, the order would be the same—a trial de novo. At the beginning of the trial de novo, the appellant “stands...in exactly the same position procedurally as he stood before the magistrate after having made his plea” (subject to his being allowed to change his plea, e.g. from guilty to not guilty, upon showing proper grounds)—per Ritchie J., for the Supreme Court of

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Canada in Regina v. Dennis, (1960) S.C.R. 286, 32 C.R. 210, 30 W.W.R. 545, 125 C.C.C. 321 at 327.

It would be anomalous if an appellate court, being obliged by s. 727(1) to hear and determine the appeal by holding an untrammelled trial de novo, were precluded from pronouncing that decision which the evidence warrants in respect of the offence or offences charged. In fact, if the appellant’s preliminary contentions were both correct, the Court would be powerless to pronounce any conviction at the conclusion of the new trial, no matter how convincing the evidence.

It may be noted that while Chief Justice Campbell refers, in his reasons, to the decision of the Court of Appeal for Ontario in Regina v. Fischer[9], this decision is explained by the Court of Appeal for Ontario in the present case.

In Droit pénal canadien, I. Lagarde expressed, in the following terms, at page 1283, the opinion that an appeal by way of a trial de novo is an appeal based on the information:

[TRANSLATION] Section 727(1) states that sections 701 to 716 are applicable, mutatis mutandis, to the extent that they are not inconsistent with the provisions governing appeals (720-732); but because the appeal is brought by way of a trial de novo, it must not be forgotten that in fact it is an appeal based on the information. Consequently, the defendant must not be called on to plead on this appeal (R. v. Dennis, 1960, S.C.R. 286, 32 C.R. 210, 125 C.C.C. 321).

As I understand it, the essence of the argument made in the present case on behalf of the appellant, is that ss. 720(a)(i) and 727(1) make provision for an appeal by the defendant “on a ‘conviction’ as distinct from the ‘charge’ described in the information upon which he was arraigned before the magistrate and that these provisions have been invoked by the appellant in the present case through filing and service of notice of appeal in accordance with section 722”. With the greatest respect for those who hold a different opinion, I am unable to agree with this view.

[Page 1035]

The relevant parts of s. 720, i.e. 720(a)(i) and (ii), and of s. 727(1) respectively read as follows:

720. Except where otherwise provided by law,

(a) the defendant in proceedings under this Part may appeal to the appeal court

(i) from a conviction or order made against him, or

(ii) against a sentence passed upon him; and

727. (1) Where an appeal has been lodged in a accordance with this Part from a conviction or order made against a defendant, or from an order dismissing an information, the appeal court shall hear and determine the appeal by holding a trial de novo, and for this purpose the provisions of sections 701 to 716, insofar as they are not inconsistent with sections 720 to 732, apply mutatis mutandis.

It will be observed that in both sections, Parliament does not refer to an appeal “on a conviction” but “from a conviction”. The same remark applies to an appeal by way of a stated case where, under s. 734(1), the appeal may be “against a conviction, order, determination or other proceedings of a Summary Conviction Court...”. Whether an appeal is taken under Part XXIV dealing with summary convictions or under Part XVIII dealing with indictable offences, an appeal is either against a conviction or a sentence. What differs, however, is the mode or the manner in which the appeal is heard and determined. In my view, the word ‘conviction’ in ss. 720(a)(i), 722(1)(a)(i) and 727(1) is not used “as distinct from the charge” but as distinct from an order made or the sentence passed upon a defendant. One may also note that s. 727(1) provides that the provisions of ss. 701 to 716,—thus including s. 711—insofar as they are not inconsistent with ss. 720 to 732, apply mutatis mutandis in the case of a trial de novo. Section 711 enacts that:

711. When the summary conviction court has heard the prosecutor, defendant and witnesses it shall, after considering the matter, convict the defendant or make an order against him or dismiss the information, as the case may be. (The italics are mine.)

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I can, for my part, find no inconsistency between the provisions of that section and the provisions of ss. 720 to 732.

In my opinion, the appeal by way of a trial de novo is not a new trial ordered by the Court as may be the case in an appeal under Part XVIII, but a statutory right given to a defendant to have his trial recommenced before another judge and another jurisdiction. The judge seized with this special form of appeal begins the hearing as if he was at the stage immediately following a plea of not guilty. Such a plea, already registered in first instance against the charge as laid, need not be repeated.

It was also argued by appellant that Magistrate Andrews had no jurisdiction to convict him of the offence of dangerous driving at his trial for criminal negligence on the ground that the Crown having elected to try the said offence as an offence punishable on summary conviction as provided in s. 221(1)(b) Cr. C, the provision of s. 569(4) of the Code was not applicable to summary conviction proceedings. In Connolly v. The Queen, supra, a similar argument was made by the appellant but was rejected by Chief Justice Campbell who concluded that the provisions of s. 569(4) amount to a declaratory statement of fundamental law. With this conclusion, I am in respectful agreement.

For all these reasons, I would dismiss the appeal.

Appeal allowed, FAUTEUX and JUDSON JJ. dissenting.

Solicitor for the appellant: A.M. Cooper, Toronto.

Solicitor for the respondent: The Attorney General of Ontario, Toronto.



[1] [1970] 1 O.R. 421, [1970] 3 C.C.C. 284.

[2] [1970] 1 O.R. 421, [1970] 3 C.C.C. 284.

[3] [1958] S.C.R. 473 at 482, 28 C.R. 173, 121 C.C.C. 129.

[4] [1960] S.C.R. 286 at 289, 32 C.R. 210, 30 W.W.R. 545, 125 C.C.C. 321.

[5] (1958), 27 C.R. 292 at 298, 24 W.W.R. 255, 120 C.C.C. 271.

[6] [1970] 1 O.R. 421, [1970] 3 C.C.C. 284.

[7] (1957), 21 W.W.R. 134, 25 C.R. 255, 117 C.C.C. 193.

[8] (1969), 6 C.R.N.S. 239.

[9] [1968] 1 O.R. 67.

 

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