Cameron et al. v. Excelsior Life Insurance Co., 1981 CanLII 168 (SCC), [1981] 1 SCR 138

Supreme Court of Canada

Cameron et al. v. Excelsior Life Insurance Co., 1981 CanLII 168 (SCC), [1981] 1 SCR 138

Date: 1981-02-03

Kathleen Cameron and Kimberly Cameron and Gordon H. Cameron, by their Guardian ad litem, the said Kathleen Cameron (Plaintiffs) Appellants;

and

The Excelsior Life Insurance Company (Defendant) Respondent.

1980: October 22, 23; 1981: February 3.

Present: Laskin C.J. and Ritchie, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NOVA SCOTIA

Trial—Jury—Jury’s verdict set aside as perverse and unreasonable—Whether or not trial judge had exceeded his authority in rendering judgment inconsistent with the jury’s verdict—Judicature Act, 1972 (N.S.), c. 2, s. 31(6)(c)—Rules of Court, Rule 34.09(4).

Appellants’ action to enforce the “Double Indemnity Accident Rider” provision of a life insurance policy was dismissed by the trial judge despite the jury’s finding. The insurance company had alleged that the insured, who died in a traffic accident, had been driving while legally impaired and therefore while committing a criminal offence contrary to the insurance policy’s provision providing for double indemnity. The trial judge accepted the jury’s finding that the death was accidental but set aside as perverse and unreasonable the conclusion that death had not occurred, in whole or in part, from the commission of a criminal offence. Notwithstanding changes effected in the Rules of Court, a majority of the Court of Appeal found the jury’s verdict to have been properly set aside and rejected the argument that the trial judge had exceeded his authority in rendering judgment inconsistent with that verdict.

Held (Ritchie J. dissenting): The appeal should be allowed.

Per Laskin C.J. and Estey, McIntyre and Chouinard JJ.: Under the current Judicature Act and Rules, a trial judge sitting with a jury was required to enter judgment not inconsistent with the jury’s findings. By relying on the trial judge’s assessment of the evidence and endorsing his verdict, the Court of Appeal veered away from its proper function in reviewing a jury verdict—determining whether there was evidence upon which a jury

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could have properly reached its conclusion, unembarrassed by the contrary position of the trial judge. While not bound to yield automatic obedience to the jury’s findings, the Court of Appeal, nevertheless owed them a degree of respect. The jury had not been unresponsive to the questions put to it and did not refuse to answer questions requiring an answer. It was open to the jury to conclude the evidence of impairment was not satisfactory, and to reject it. This was not a case calling for the Court of Appeal’s interference with the jury’s findings.

Of equal importance was causation: whether or not there was impairment, and if so, whether or not it resulted in the ensuing accident and death. Although both issues were “wrapped up” in the same question put to the jury, the jury’s answer could be taken to cover either or both issues and was entitled to be regarded in as favourable a light as the evidence supporting it.

Per Ritchie J., dissenting: The trial judge was required to “give a judgment in the proceedings not inconsistent with the answers of the jury”. The Court of Appeal, however, was not bound by any such rule and, in making the order appealed from, was exercising its power to make the order which it considered the appeal to require having regard to the evidence. The correct principles were applied in that Court’s review both of the actions taken by the trial judge and of the jury’s finding. The conclusion that Cameron was committing a criminal offence at the time of his death was not improbable and the evidence was overwhelmingly in favour of the defendant (respondent). In the absence of satisfactory reasons justifying the adoption of the extraordinary course of ignoring concurrent findings in reaching the result, no jury properly instructed and acting judicially could have given the answers given.

APPEAL from a judgment of the Court of Appeal for Nova Scotia¹, dismissing an appeal from a judgment of Hallett J. Appeal allowed.

Harold F. Jackson, Q.C., for the plaintiffs, appellants.

John M. Barker, for the defendant, respondent.

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Majority Judgment

The judgment of Laskin C.J. and Estey, McIntyre and Chouinard JJ. was delivered by

THE CHIEF JUSTICE—I have had the advantage of reading the reasons prepared by my brother Ritchie and I agree with him that the changes in the Nova Scotia Judicature Act, 1972 (N.S.), c. 2 and in the Rules of Court, especially as reflected in s. 31(6)(c) of the Act and New Rule 34.09(4) which is in conformity with s. 31(6)(c), had the effect of limiting the power of a trial judge to enter judgment as he thinks right, notwithstanding the findings of a jury. As I read the present Judicature Act and the present Rules, and approving as I do the dissenting opinions of Hart and Jones JJ.A., a trial judge sitting with a jury is now required to enter judgment not inconsistent with the jury’s findings.

This is not what the trial judge, Hallett J., did in the present case. He entered judgment in direct opposition to the jury’s finding on the critical issues in the case. The jury was asked the following questions, numbered 1 and 2(a) and 2(b) and gave its answers as indicated under the questions:

1. Did the death of the late Gordon Herman Cameron result directly and independently of all other causes, from bodily injury caused solely by external, violent and accidental means? Answer Yes or No.

Answer: Yes.

2. (a) Did the death of the late Gordon Herman Cameron result, either directly or indirectly, in whole or part, from committing or attempting to commit a criminal offence? Answer Yes or No.

Answer: No.

2. (b) If your answer to questions number 2(a) is ‘Yes’ state what criminal offence or offences the late Gordon Herman Cameron was committing or attempting to commit.

Answer: N/A.

The majority of the Nova Scotia Court of Appeal, speaking through MacKeigan C.J.N.S., took the view, wrongly as I have said, that a trial judge sitting with a jury was still entitled, despite changes in the Judicature Act and in the Rules, to

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enter such judgment as he thinks right although it results in setting aside the findings of the jury. In taking this position, in endorsement of what Hallett J. decided, the Court of Appeal veered away from its proper function when called upon to review a jury verdict, namely, to see whether there was evidence upon which a jury could reasonably have reached its conclusion and to do so unembarrassed by the contrary position of the trial judge in entering a judgment which sweeps aside the jury’s findings.

I agree, of course, that the changes in the Judicature Act and in the Rules did not affect the powers of the Court of Appeal. It certainly was not bound to yield automatic obedience to the jury’s findings but, at the same time, the jury’s findings were entitled to respect. As Jones J.A. noted in his dissenting reasons, there was no motion to dismiss the action for want of evidence. By leaving the case to the jury, the trial judge must have been of the opinion that there was evidence upon which it could come to a reasonable conclusion on the two central issues in the case, namely, did the deceased commit or attempt to commit a criminal offence and, second, did his death result directly or indirectly, in whole or in part, from such conduct. This is not a case where the jury’s answers were not responsive to the questions put to it nor is it a case where it refused to answer questions that required an answer. Had that situation arisen, the judge would have been warranted in discharging the jury and might have obtained consent to proceed alone.

The Court of Appeal majority considered the evidence but it did not review it in the detail exhibited in the dissenting reasons of Hart J.A. Detailed consideration is not an invariable requirement, but what is obvious here is that MacKeigan C.J.N.S. accepted the appraisal of Hallett J. Since it was not for the trial judge to veer from the findings of the jury, the reliance of the Court of Appeal on his assessment of the evidence was unfortunate.

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I do not propose to enter upon any extended consideration of the evidence because that has been adequately done by Hart J.A. I do wish, however, to refer to what seems to have been the decisive factor in the conclusion that the deceased Cameron was guilty of a criminal offence, namely, the alcohol content in his blood. There was evidence that the blood sample offered in evidence as his blood showed a reading of 370 which, if true, would, as a probability, have meant that he could not possibly be fit to drive. There was also some evidence to indicate a mix-up of that sample, said to be of the blood of the deceased Cameron, with another sample which showed a reading of 70, that is, within the allowable limit. Furthermore, there was evidence that Cameron’s driving, minutes before the accident, appeared normal, and that in conversation he appeared to be in good shape. As a result, it was open to the jury to conclude that the evidence of impairment was not satisfactory and to reject it.

Of equal importance was causation. If there was impairment, did it result in the ensuing accident and the deaths that occurred? The burden on both of these issues was on the insurer which was resisting the double indemnity coverage of the deceased Cameron’s life insurance policy by relying on a limitation which would apply if death resulted, directly or indirectly, in whole or in part from committing, attempting or provoking an assault or criminal offence. Both the issue of impairment and the issue of causation were wrapped up in question 2(a), and I agree with Hart J.A. that it would have been better to have separated them for answer by the jury. As it was, the jury’s answer “No” to question 2(a) could be taken to cover either or both issues. Jury’s findings are, however, entitled to rational appreciation and to be regarded in as favourable a light as the evidence supporting it.

That there was evidence supporting a “No” answer to the question whether the accident resulted from alleged impairment is disclosed in the following summary in the reasons of Hart J.A.:

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Secondly, the jury could properly have reached the conclusion that the accident happened as a result of the sudden veering to the left of the truck rather than the theory of the defendant that placed the Cameron vehicle entirely on its wrong side of the road before the accident and required it to be returning to its own side of the road when it collided with the truck. The only thing certain about the evidence appears to be the slight angle at which the vehicles came in contact, which would be equally consistent with both theories as to how the accident could have happened. The jury had before them the evidence of several witnesses who all indicated that the accident scene was on the Cameron side of the road, and against this only the evidence of Constable Grimmer who said that the truck had not crossed the centre line before the impact. The jury had the opportunity of observing all of these witnesses and deciding which part of the evidence they would accept. In my opinion it is not for this Court to disagree with their findings when there is some evidence upon which they could have reached the conclusion that they did.

I agree with him that this was not a case that called for interference by a Court of Appeal with the findings of the jury.

In the result, I would allow the appeal, set aside the judgment of the Nova Scotia Court of Appeal and the judgment of Hallett J. and direct that judgment be entered for the appellants in accordance with the findings of the jury. The appellants are entitled to their costs throughout.

The following are the reasons delivered by

Dissenting Judgment

RITCHIE J. (dissenting)—This is an appeal brought with leave of the Appeal Division of the Supreme Court of Nova Scotia from a judgment of that Court dismissing an appeal from the judgment given at trial by Mr. Justice Hallett sitting with a jury, whereby he had dismissed the action brought by the appellants to enforce the “Double Indemnity Accident Rider” provision of a $100,000 life insurance policy issued by the respondent on the life of Gordon H. Cameron, the husband of the appellant, Kathleen Cameron and father of the other appellants, who was killed in a head-on collision between his motor vehicle which was operated by him and an approaching truck.

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The respondent insurer paid the first $100,000 under the main provisions of the insurance policy but denied liability in respect of the double indemnity accident rider which was attached thereto on the dual grounds that:

(i) the death of the life insured was not caused as the result of an accident, and

(ii) that the death resulted either directly or indirectly from ‘his driving a motor vehicle… having consumed alcohol in excess of the limitations provided by s. 236(1) of the Criminal Code and that he had therefore committed a criminal offence contrary to the provisions of that subsection at the time of the collision which resulted in his death’.

By the “Double Indemnity Accident Rider” the insurer agreed to pay an additional $100,000 upon receipt of satisfactory proof that the death of the life insured was caused solely by accident and which provided also that:

The benefit provided by this rider will not apply if the life insured’s death shall result either directly or indirectly, in whole or part from any of the following:

1. Suicide or self-inflicted injuries while sane or insane.

2. Committing, attempting or provoking an assault or criminal offense.

In due course, after a lengthy trial before Mr. Justice Hallett sitting with a jury, the following questions were put to the jury:

1. Did the death of the late Gordon Herman Cameron result directly and independently of all other causes, from bodily injury caused solely by external, violent and accidental means? Answer Yes or No.

Answer: Yes.

2. (a) Did the death of the late Gordon Herman Cameron result, either directly or indirectly, in whole or part, from committing or attempting to commit a criminal offence? Answer Yes or No.

Answer: No.

Following the jury’s findings the appellants’ counsel moved for judgment for $100,000 and costs to be taxed and the defendant’s counsel

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moved that the finding of the jury on question 2(a) be set aside as being perverse. After reserving his decision on this motion, the learned trial judge prepared and delivered written reasons for judgment in which he concluded that the finding on question 2(a) was so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have reached it and he accordingly set that finding aside saying:

On a review of the whole of the evidence, I find that the death of Mr. Cameron resulted, either directly or indirectly, in whole or part from the commission of a criminal offence; namely, the offence of driving his motor vehicle with an alcohol content in his blood in excess of 80 milligrams of alcohol per 100 milliliters of blood, being an offence against s. 236(1) of the Criminal Code of Canada.

In conformity with this judgment the appellants’ action was dismissed but in asserting an appeal to the Appeal Division it was argued that under the Rules of Court in the Province of Nova Scotia the trial judge was required to “give judgment in the action not inconsistent with the answers of the jury” and that Mr. Justice Hallett exceeded his authority in rendering a judgment which was clearly inconsistent with the answer to question 2(a).

It is clear that prior to the enactment of the Judicature Act, 1972 (N.S.), c. 2, a trial judge sitting with a jury was free to give judgment “as he thinks right” notwithstanding a contrary verdict having been rendered by the jury. This is made clear from the very comprehensive judgment of Cooper J.A., in Silver’s Garage Limited v. The Town of Bridgewater which was affirmed in this Court² and also in the case of Manuge v. Dominion Atlantic Railway³. The ratio decidendi of the Silver’s Garage⁴ case is to be found in a judgment of Mr. Justice Cooper, where he said, at p. 164:

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I am of the opinion that the trial Judge could review the findings of the jury and give judgment for the Town if upon such review he came to the conclusion, as in fact he did, that the findings were such that no jury reviewing the evidence as a whole and acting reasonably could have reached.

Order XXXIV, rule 32 of the rules of the Supreme Court reads:

“The judge shall, at or after trial, direct judgment to be entered as he thinks right, and no motion for judgment shall be necessary.”

The trial Judge also referred to s. 42(6) of the Judicature Act, 1950. It provides, in part, that the judge, except in certain actions of which this is not one, may direct the jury to answer any questions of fact raised by the issues instead of directing the jury to give either a general or special verdict, that such questions may be stated to them by the judge and counsel may require the judge to direct the jury to answer any other questions raised by the issues or necessary to be answered by the jury to obtain a complete determination of all matters involved in the action. Clause (c) of s. 42(6) reads:

“(c) The jury shall answer such questions, and shall not give any verdict, and the judge shall give a judgment in the action not inconsistent with the answers of the jury to such questions.”

But the opening words of s. 42 are “Subject to rules of court”. It is my view therefore that rule 32 of Order XXXIV and the relevant authorities cited by the trial Judge enabled him to take the course which he did.

This reasoning was adopted by the majority of the Appeal Division in finding that the verdict of the jury was properly set aside and therefore dismissing the appeal notwithstanding the changes effected in the Rules of Court at the time of the enactment of the Judicature Act on March 1, 1972.

I take it to be established that under The Judicature Act, 1950, which was in force at the time of the Silver’s Garage case, a trial judge was free to direct “judgment to be entered as he thinks right”, but the accident with which we are here concerned occurred in 1977 and the question raised by the present circumstances is whether the amendments effected by the 1972 statute so altered the rules applicable to trials with a jury

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that the trial judge is now required to “give a judgment in the action not inconsistent with the answers of the jury”.

Under the new Act the provisions of what was previously clause (c) of s. 42(6), which is referred to by Mr. Justice Cooper were continued unchanged as s. 31(6)(c) and have also been repeated in Rule 34.09(4) and the former Order XXXIV, Rule 32, cited above finds its counterpart in Rule 30.09 which is referrable to trials generally and which provides:

30.09 The court may, at or after the trial, direct judgment to be entered as it thinks right.

At the time of the Silver’s Garage judgment it was correct to state that the phrase “subject to the Rules of Court” as it occurs in s. 42 was enough to support the argument that Order XXXIV, Rule 32, was paramount to the provisions of s. 42(6)(c) and that the trial judge was accordingly free to enter such judgment as he thought right notwithstanding the jury’s findings, but under the new statute a new rule has been added to Rule 34 and as Rule 34.09(4) it reads, in part, as follows:

34.09 …

(4) The jury shall answer any question of fact without giving a verdict, and the court shall give a judgment in the proceeding not inconsistent with the answers of the jury.

The provisions of s. 43(2) of the 1972 Judicature Act provide that:

…the Civil Procedure Rules made by the Judges of the Supreme Court on the second day of December, 1971, a copy of which is deposited in the office of the Provincial Secretary are hereby ratified and confirmed and are declared to be the Civil Procedure Rules of the Supreme Court and shall have the force of law on and after the first of March, 1972…

It thus appears to me that while the requirement for a judge to give judgment “not inconsistent with the answers of the jury” was subject to the Rules of Court and therefore to Order XXXIV, Rule 32, prior to 1972 that rule can no longer be accorded precedence because new Rule 34.09 is given the force of law by s. 43 of the new Judicature Act

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and being a Rule of Court itself it can no longer be treated as subject to Rule 30.09.

I am accordingly in agreement with the dissenting view expressed by Mr. Justice Hart and Mr. Justice Jones that the trial judge in the present case was required by Rule 34.09 to “give a judgment in the proceedings not inconsistent with the answers of the jury”. I am however of opinion that the Appeal Division was not bound by any such rule. If it were otherwise it would mean that the jury’s answers were immutable and immune from review in any court whereas all the judges in the Appeal Division in the present case engaged in an extensive review of the evidence and of the jury’s conclusions notwithstanding the dissenting view that Rule 34.09 was binding on the trial judge. The authority to exercise this appellate jurisdiction does not appear to have been seriously questioned.

Provision is made for appeals to the Appellate Division by s. 35(1) of the Judicature Act of Nova Scotia (1972) in the following terms:

35 (1) Except where it is otherwise provided by any enactment, an appeal lies to the Appeal Division from any decision, verdict, judgment or order of the Trial Division or a Judge thereof whether in Court or in Chambers.

In the course of his dissenting reasons for judgment in the Appeal Division, Mr. Justice Hart observed:

It is further contended in this appeal that if the trial judge did not have the authority to set aside the findings of the jury as being perverse that this Court should do so. By Rule 62.23(1)(b) the Appeal Division has power to ‘draw inferences of fact and give any judgment, allow any amendment, or make any order which might have been made by the court appealed from or which the appeal may require’. [The italics are my own.]

I agree with this contention and conclude that in making the order appealed from in this case the Appeal Division was exercising its power to make

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the order which it considered the appeal to “require” having regard to the evidence.

I think it must be recognized that this is not in the true sense an appeal from the verdict of a jury, but rather an appeal from the conclusions reached by a trial judge and expressed in lengthy reasons for judgment. We are thus concerned with different findings of fact on almost all the vital elements of this case; the one made by the jury and the other by the learned trial judge.

The parties to this appeal are agreed that the following are the issues before this Court:

1. Did the Learned Trial Judge under the new Civil Procedure Rules of Nova Scotia have power to give judgment inconsistent with the answers of the Jury and set aside the Jury finding?

2. If a Trial Judge has power to give judgment inconsistent with the answers of the Jury did the Learned Trial Judge in the case at bar apply correct principles in his review of the Jury finding and in turn did the Court of Appeal apply correct principles in its review of both the action taken by the Learned Trial Judge and its review of the jury finding?

3. Apart from 1 and 2 herein was there evidence upon which the Jury finding can be supported?

As I have indicated, I take the view that the learned trial judge did not have power to give judgment inconsistent with the findings of the jury, that no such restriction was binding on the Appeal Division and that it therefore becomes necessary to consider whether that Court applied “correct principles in its review of both the action taken by the learned trial judge and its review of the jury’s finding”.

The principles to be applied by the Appeal Division are described by Mr. Justice de Grandpré in Vancouver-Fraser Park District v. Olmstead⁵, at pp. 836-9 where he says at p. 838:

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Of course, the principle has been repeated in many judgments of this Court and it is sufficient at this time to refer to one other case, namely the classic decision of McCannell v. McLean, [1937] S.C.R. 341, where Duff C.J. stated the rule that “the verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it”.

The approach adopted by the Appeal Division in this case is well summarized in the reasons for judgment of Chief Justice MacKeigan where he said:

We as an appeal court must review the entire evidence and Mr. Justice Hallett’s decision, with proper respect for any findings of specific fact or credibility made by him, and with careful regard to the many points advanced by counsel for the appellant. We must consider whether we also are compelled to the same overall inference and conclusion, namely, that the verdict was, using Chief Justice Duffs words, ‘so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it’.

I have reviewed this case with care. I am unable to detect any reversible error in Mr. Justice Hallett’s comprehensive decision. I agree with him that the evidence ‘was overwhelmingly in favour of the defendant’, that the verdict was plainly unreasonable and unjust, and that the jury did not act judicially in reaching it.

As to the third question, I think it must be accepted that if the finding of the jury is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it, then it cannot be said that there was evidence upon which the jury finding could be supported.

The burden resting on the respondent in the present case was to satisfy the Court on the balance of probabilities that Cameron’s death resulted from his committing a criminal offence. It is true that there were some items in the evidence which if believed by the jury might sustain a verdict in the appellants’ favour, but it is the

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evidence as a whole which has to be considered here and the uncontradicted evidence that Cameron’s alcoholic blood count was 370 while operating his motor vehicle, whereas 80 is the maximum permitted under s.236(1) of the Criminal Code, when taken in conjunction with the evidence of two witnesses who described his condition as consistent with his having been consuming alcohol immediately before he entered his car, which evidence is also uncontradicted, cast such a dark shadow over the whole of the proceedings as to satisfy me that it is more than probable that he was in breach of s. 236(1) of the Criminal Code and therefore committing a criminal offence when he came to his death. It certainly cannot be said in my view that such a conclusion is improbable and having regard to the standard of proof required under the present circumstances, I am, like the Appeal Division, satisfied that the evidence “was overwhelmingly in favour of the defendant” (respondent).

As will be seen, I am of opinion that the Appeal Division applied the correct principle in its review of both the action taken by the trial judge and of the jury’s finding.

Moreover, as I have said, it is to be borne in mind that this appeal to the Appeal Division was from the reasons for judgment of the trial judge rather than from the answers or verdict of the jury and it will be seen that in reaching his conclusion Chief Justice MacKeigan, on behalf of the Appeal Division, gave “proper respect to any specific findings of fact or credibility” made by Hallett J. at the trial.

The conclusion reached by the Appeal Division rested upon a pure finding of fact and indeed having regard to the fact that that Court based its determination in such large degree upon its concurrence with the judge who presided at the trial, I think it can be said that, in a very real sense, there were concurrent findings of fact supporting the conclusion reached by Chief Justice MacKeigan. No reason has been advanced to satisfy me that there is any justification for adopting the extraordinary course of ignoring such concurrent findings in reaching the result which they so clearly

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indicated and I am accordingly of opinion that no jury properly instructed and acting judicially could have given the answer which was given in the present case to question 2(a) and I would accordingly dismiss this appeal with costs.

The reasons for judgment of Mr. Justice Hallett are now conveniently reported in (1978), 88 D.L.R. (3d) 39, and those of the Appeal Division similarly reported in (1979), 32 N.S.R. (2d) 668.

Appeal allowed with costs.

Solicitor for the plaintiffs, appellants: Harold F. Jackson, Halifax.

Solicitor for the defendant, respondent: Michael S. Ryan, Halifax.

Footnotes

1. 1(1979), 104 D.L.R. (3d) 706, (1979), 32 N.S.R. (2d) 668, (1979), 54 A.P.R. 668.
2. 2[1971] S.C.R. 577.
3. 3[1973] S.C.R. 232.
4. 4(1969), 1 N.S.R. (2d) 161.
5. 5[1975] 2 S.C.R. 831.