Supreme Court Judgments

Supreme Court of Canada

Veinot v. Kerr-Addison Mines Ltd., [1975] 2 S.C.R. 311

Date: 1974-10-01

Peter Veinot (Plaintiff) Appellant;

and

Kerr-Addison Mines Limited (Defendant) Respondent.

1974: January 24, 25; 1974: October 1.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Negligence—Occupier’s liability—Snowmobiles—Injuries to Snowmobiler—concealed danger on private road—Duty of occupier to take reasonable care—Trespass—Implied licence.

The plaintiff, an experienced snowmobiler, with his wife as passenger accompanied by another couple on a second snowmobile, was out for an evening of recreation. The group eventually came upon a wide, hard packed, well ploughed road on which they were travelling at between 15 and 20 m.p.h. when the plaintiff on the leading snowmobile struck a rusty pipe stretched across the road at face height and sustained very serious injuries. Both snowmobiles had headlights and the plaintiff’s machine had spot fog lights to improve visibility.

The pipe was part of a gate, consisting of the pipe bar some 45 inches from the ground secured in 8 x 8 posts on either side of the roadway, erected in 1950 by the respondent company. The roadway led to a powder magazine and the gate was kept locked at all times.

There was evidence that there was a great deal of snowmobiling done in the area, much of it at night, after work, and that there were many tracks on the road leading to the ploughed road on which the accident occurred. The ploughed road seemed to be well travelled and looked like a public road.

The jury found that plaintiff was on defendant’s land with implied permission, that the plaintiff’s injuries were caused by a concealed or hidden danger or a trap of which defendant had knowledge, that defendant had failed to take reasonable care to avoid injury to persons traversing the area and that plaintiff did not fail to take reasonable care for his own safety. The trial judge dismissed a motion for a non-suit and held that the finding of the jury that plaintiff had

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implied permission to be on defendant’s land could be substantiated on the evidence. The Court of Appeal reached the conclusion that there was no evidence of implied licence to support the finding of the jury on that point.

Held (Martland, Judson, Ritchie and de Grandpré JJ. dissenting): The appeal should be allowed with costs.

Per Laskin C.J. and Spence and Dickson JJ.: Whether or not there is implied permission to be on the defendant’s land was a question of fact for the jury which was properly instructed and brought in a finding which should not be disturbed. The issue of the likelihood of the presence of persons being on the land and the weight of evidence of such likelihood was plainly one for the jury. Even if the appellant was a trespasser his appeal should succeed. His presence on the ploughed road could reasonably have been anticipated and the respondent owed him a duty to treat him with ordinary humanity. In permitting the continuance of what it should have recognized as a covert peril menacing the safety of anyone who came upon the road at night on a snowmobile the respondent failed in this duty.

Per Pigeon and Beetz JJ.: There was evidence to support the findings of the jury. We prefer to express no opinion on the other questions.

Per Martland, Judson, Ritchie and de Grandpré JJ., dissenting: Robert Addie & Sons (Collieries) Ltd. v. Dumbreck, [1929] A.C. 358, should not be followed since the duty owed by an occupier is broader than as defined in Addie. However the occupier does not owe to a trespasser as high a duty as that owed to persons lawfully on his land. The extension of the scope of the duty owed to a trespasser beyond the limits defined in Addie has permitted the elimination of the theory of implied licence, a legal fiction which should no longer be used to determine the rights of a trespasser as against an occupier. An occupier who knows of the existence of a danger upon his land, which he has created or for the continued existence of which he is responsible may owe a duty to persons coming on his land if he knows that there is a substantial chance of this. The duty is limited to a duty to warn. In the case of children something more may be required. The existence of a duty depends on the special circumstances of each case. The pipe which appellant struck and the gate of which it

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formed part had existed for twenty years and only became a danger because of the special use of respondent’s land by appellant viz. the operation of a motor-driven vehicle at night at a speed of 15-20 m.p.h.

[Southern Portland Cement Ltd. v. Cooper, [1974] 1 All E.R. 87; Robert Addie & Sons (Collieries) Ltd. v. Dumbreck, [1929] A.C. 358; Edwards v. Railway Executive, [1952] A.C. 737; Commissioner for Railways v. Quinlan, [1964] A.C. 1054; Commissioner for Railways (N.S.W.) v. Cardy (1960), 104 C.L.R. 274; Videan v. British Transport Commission, [1963] 2 Q.B. 650; Herrington v. British Railways Board, [1972] A.C. 877; Pannett v. McGuinness & Co. Ltd., [1972] 3 W.L.R. 387 referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario allowing an appeal from a judgment of Houlden J. with a jury. Appeal allowed with costs, judgment at trial restored, Martland, Judson, Ritchie and de Grandpré JJ. dissenting.

R.B. Tuer, Q.C., for the appellant.

C.F. McKeon, Q.C., for the respondent.

The judgment of the Chief Justice and Spence and Dickson JJ. was delivered by

DICKSON J.—This is an occupier’s liability case. That branch of the law of negligence having to do with the duty owed to a visitor or an intruder by an owner or occupier of land has long been in an unsettled state, due in part to the Procrustean and often vain attempt in an infinite variety of fact situations to fit a plaintiff neatly into the category of invitee, licensee or trespasser and then allow category to be the conclusive determinant of landowner liability. It has not been found easy to reconcile the Victorian landowner’s unbridled rights with the modern law of negligence. Nowhere are the uncertainties more apparent than when one comes to consider the position in law of a trespasser, one who enters the land of another without consent or privilege. Whether the entrant is a burglar or wandering child or irreproachable wayfarer, the general principles historically applied were those expressed in Robert

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Addie & Sons (Collieries) v. Dumbreck[1], by Lord Hailsham L.C. at p. 365:

Towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes on to the premises at his own risk. An occupier is in such a case liable only where the injury is due to some wilful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser.

These rules, of course, perpetuated the traditional nineteenth century concern for the sanctity of landed property. The general principle was that a landowner could do as he wished with his land. He owed no duty to an intruder, however accidental or inadvertent the intrusion, other than to refrain from shooting him or otherwise recklessly and wantonly doing him harm. The rigour of the rule is exemplified in such cases as Edwards v. Railway Executive[2]. As could be expected various inventions were employed from time to time to modify and ameliorate the harshness. In some of the cases the landowner’s consent was implied or imputed, particularly in “children cases”, the status of the intruder being elevated from that of trespasser, which he clearly was, to that of licensee, which he clearly was not. In other cases a generous meaning was given to the phrase “reckless disregard” or a tenuous distinction was drawn between land in a static condition and land upon which an operational activity was being conducted, productive of injury. In time, two distinct, not easy to reconcile, lines of jurisprudence emerged. One perpetuated the letter and spirit of Addie’s case

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(Commissioner for Railways v. Quinlan[3] is an example). The other gave effect to changing ideas of social responsibility and imposed upon the owner of land duties well beyond those in contemplation in Addie’s case. Commissioner for Railways (N.S.W.) v. Cardy[4] and Videan v. British Transport Commission[5], presaged the change which found expression in the leading case of Herrington v. British Railways Board[6]. That case was decided within the context of the Occupiers’ Liability Act, 1957 of England which imposed a “common duty of care” on occupiers towards all persons who might lawfully come on to their land, but left unaltered the existing law as to the trespassers. In Herrington’s case their Lordships exhaustively considered the nature of the duty owed by occupiers to trespassers. Lord Reid applied a subjective test. He said (p. 899):

So it appears to me that an occupier’s duty to trespassers must vary according to his knowledge, ability and resources. It has often been said that trespassers must take the land as they find it. I would rather say that they must take the occupier as they find him.

and later on the same page:

So the question whether an occupier is liable in respect of an accident to a trespasser on his land would depend on whether a conscientious humane man with his knowledge, skill and resources could reasonably have been expected to have done or refrained from doing before the accident something which would have avoided it. If he knew before the accident that there was a substantial probability that trespassers would come I think that most people would regard as culpable failure to give any thought to their safety. He might often reasonably think, weighing the seriousness of the danger and the degree

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of likelihood of trespassers coming against the burden he would have to incur in preventing their entry or making his premises safe, or curtailing his own activities on his land, that he could not fairly be expected to do anything. But if he could at small trouble and expense take some effective action, again I think that most people would think it inhumane and culpable not to do that. If some such principle is adopted there will no longer be any need to strive to imply a fictitious licence.

The test of common humanity was also applied by Lord Morris of Borth-y-Gest (p. 909):

In my view, while it cannot be said that the railways board owed a common duty of care to the young boy in the present case they did owe to him at least the duty of acting with common humanity towards him.

The nature of the duty of care was described by Lord Wilberforce in these words (p. 920):

Again, it must be remembered that we are concerned with trespassers, and a compromise must be reached between the demands of humanity and the necessity to avoid placing undue burdens on occupiers. What is reasonable depends on the nature and degree of the danger. It also depends on the difficulty and expense of guarding against it. The law, in this context, takes account of the means and resources of the occupier or other person in control—what is reasonable for a railway company may be very unreasonable for a farmer, or (if this is relevant) a small contractor.

and by Lord Pearson in these words (p. 922):

It does not follow that the occupier never owes any duty to the trespasser. If the presence of the trespasser is known to or reasonably to be anticipated by the occupier, then the occupier has a duty to the trespasser, but it is a lower and less onerous duty than the one which the occupier owes to a lawful visitor. Very broadly stated, it is a duty to treat the trespasser with ordinary humanity.

Herrington’s case was considered by the Court of Appeal of England in Pannett v. McGuinness

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& Co. Ltd.[7] The following excerpt from Lord Denning’s judgment aptly expresses in my opinion the more salient points a judge should have in mind when considering intrusions upon land:

The long and short of it is that you have to take into account all the circumstances of the case and see then whether the occupier ought to have done more than he did. (1) You must apply your common sense. You must take into account the gravity and likelihood of the probable injury. Ultra-hazardous activities require a man to be ultra-cautious in carrying them out. The more dangerous the activity, the more he should take steps to see that no one is injured by it. (2) You must take into account also the character of the intrusion by the trespasser. A wandering child or a straying adult stands in a different position from a poacher or a burglar. You may expect a child when you may not expect a burglar. (3) You must also have regard to the nature of the place where the trespass occurs. An electrified railway line or a warehouse being demolished may require more precautions to be taken than a private house. (4) You must also take into account the knowledge which the defendant has, or ought to have, of the likelihood of trespassers being present. The more likely they are, the more precautions may have to be taken.

In the very recent case of Southern Portland Cement Ltd. v. Cooper[8], the Privy Council considered the duty owed to a trespasser. Their Lordships rejected the argument that an occupier only comes under a duty to potential trespassers if he estimates or ought to estimate that the arrival of one or more trespassers on his land is “extremely likely”. In the course of his speech Lord Reid said: “But in their Lordship’s judgement it is now necessary to…abandon the limitation of extreme likelihood” and later:

If the occupier creates the danger when he knows that there is a chance that trespassers will come that way and will not see or realize the danger he may have to do more. There may be difficult cases where the occupier will be hampered in the conduct of his own affairs if he has to take elaborate precautions. But in the present case it would have been easy to

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prevent the development of the dangerous situation which caused the plaintiff’s injuries.

And so we come to the facts of the present case. There is no need to labour them. The plaintiff, thirty‑seven years of age, and his wife, on one snowmobile, accompanied by another married couple on another snowmobile, set out from their home for an evening of healthful recreation through woods and across lakes of northern Ontario. They went along well‑travelled snowmobile trails, from Larder Lake to Crosby Lake, along a creek to Beaver Lake, to Bear Lake, to a hydro right-of-way along which were many ski-doo trails, down an old logging road “which was well ski-doo packed”, to a wide, hard‑packed, well-ploughed road on which they travelled until the plaintiff, Mr. Veinot, on the leading snowmobile, struck a rusty pipe, stretched across the road, at face-height, and sustained very serious injuries. The accident occurred on March 16, 1970. Mr. Veinot had owned snowmobiles since 1966. He had been for three years the president of the Larder Lake Snowmobile Club, one of the purposes of which was to maintain law and control snowmobiles in the town of Larder Lake. The machine on which Mr. Veinot was riding, a Bombardier 640 Nordic, was not a racing machine. At the time of the accident, it was travelling at a moderate speed of 15 to 20 miles per hour. It was equipped with the ordinary snowmobile lights and also with spot fog lights to improve visibility. The jury found that Mr. Veinot did not fail to take reasonable care for his own safety.

The pipe which Mr. Veinot struck was two inches in diameter, supported by unpainted posts located off the road, and invisible at night due to the background of trees. The pipe had been erected some twenty years earlier to prevent the movement of unauthorized vehicular traffic to the defendant company’s powder magazine not far from the community of Virginiatown. No point can be made of the fact that

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the pipe had been there for twenty years without accident for the type of accident which occurred in this case could only have occurred after the advent of snowmobiles.

From the evidence there seems no doubt that during the winter there was a great deal of travel on snowmobiles in and around Virginia-town. The two witnesses called on behalf of the defendant, the mine manager and the security officer, each had a machine. It also emerges that much of the snowmobiling was done at night, after work. The road on which the accident happened was an extension of one of the streets of Virginiatown, which had formerly been a company town. The street and road led to and across a north-south hydro right-of-way and then continued west to the magazine. The defendant company permitted snowmobile traffic along the road as far as the iron pipe. Such traffic normally then turned to the right and continued north along the right-of-way until the intersecting east-west hydro right-of-way was reached which in turn led west to the lakes across which Mr. Veinot and his party had travelled. Generally, as I have indicated, the main ski-doo traffic was east of the iron pipe, but the defendant’s security officer conceded that on a very few occasions he had seen ski-doo tracks in the winter of 1969-70 on the powder magazine side of the pipe. He did not report these discoveries to the mine manager and he did nothing about it.

The evidence is undisputed that there were “a lot of snowmobile tracks” on the road leading south from the east-west hydro power line to the ploughed road on which the unfortunate accident occurred. The ploughed road “seemed to be well travelled”; looked like a public road; and had no markings to indicate that it was not a public road. Mr. Veinot had no idea he was on private property when he drove along the ploughed road and according to his evidence, which was not challenged, he would not have

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continued along it if he had known it was private property. Upon all of the evidence and following a charge by the trial judge to which no objection has been, or could be, taken, the jury made certain findings: (1) That Mr. Veinot on the date of the accident was on defendant’s land with the implied permission of the defendant; (2) That his injuries were caused by a concealed or hidden danger or a trap of which the defendant had knowledge, described by the jury in its answers as “a rusty pipe approximately 2” in diameter suspended across the travelled portion of the road at a height of approximately 45 inches from the road”; (3) The defendant failed to take reasonable care to avoid injury to persons traversing the area, there being no distinguishing warnings of the location of the pipe across the roadway from either the east or west approach to the pipe or on the pipe itself; (4) The finding to which I have already referred, that plaintiff did not fail to take reasonable care for his own safety. At the close of the evidence presented by the plaintiff a motion was made for a non-suit. The motion was renewed after the evidence for the defendant had been heard and again after the answers of the jury were received. The trial judge, Houlden J., dismissed the motion. He held that the finding of the jury that there was implied permission for the plaintiff to be on the land of the defendant could be substantiated on the evidence. The judge said:

The defendant knew that a number of old roads intersected its property. One of these roads was an old logging road coming from the north and this was the road which was followed by the plaintiff and his party on the night in question. There is no evidence that the defendant made any endeavour to close off this road. It knew of the existence of the road. It knew that it was possible for the road to be travelled by a truck for about a mile from the premises of the

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defendant, but nothing was done to close it off. According to the evidence which has been given to the Court, this road was being used, and used frequently, by owners of snowmobiles. This old road led directly to the ploughed road of the defendant.

In my opinion, it was a most reasonable assumption for the plaintiff and the other members of his party, when they came to this ploughed road, to assume that it was an ordinary road available for travel by the public. The evidence is that the ploughed road was well travelled and, as I have said, I think that there was ample evidence for the jury to find that there was implied permission for the plaintiff to be on the defendant’s land.

Whether or not there was an implied permission was a question of fact for the jury. The jury was properly instructed on the law and brought in its finding. I do not think that finding should be disturbed.

The Court of Appeal for Ontario, if it had been necessary to decide the point, would not have interfered with the jury finding that the pipe constituted a concealed danger. On the other point, that of whether or not there was an implied licence, Arnup J.A., for the Court, said:

Whether the test of the extent of knowledge on the part of the occupier which is required before an inference of implied license can be drawn is that the presence of trespassers was “likely”, “extremely likely”, “a substantial probability” or “as good as known”, the evidence in this case falls far short of what is required.

With greatest respect, I think the issue of likelihood, and the weight of evidence on this issue, was plainly one for the jury, and having referred the question to the jury, the answer of that body should have been accepted and that would have been the end of the matter.

Even if Mr. Veinot is regarded as a trespasser his appeal to this Court should succeed. If he was a trespasser, the enquiry must be as to whether his presence on the ploughed road could reasonably have been anticipated for, if

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so, the company owed him a duty and that duty was to treat him with ordinary humanity.

Although as a general rule a person is not bound to anticipate the presence of intruders on private property or to guard them from injury, a duty may arise if the owner of land knew of, or from all the surrounding circumstances ought reasonably to have foreseen, the presence of a trespasser. It appears to me that a person of good sense in the position of the defendant company, possessing the knowledge which its responsible officers possessed about snowmobiles and the degree of snowmobile travel in the area, the proclivity for travel by night, the ease by which the ploughed road could be reached by the several old roads leading on to it would have been alerted, on a moment’s reflection, to the probability of someone reaching the ploughed road as Mr. Veinot did. Stress was laid during argument upon the fact that the plaintiff came in by way of the back door, as it were, and that such avenue of approach could not reasonably have been anticipated. I do not agree. Snowmobiles are ubiquitous. They have an unusual and well-known capacity for travel on and off the beaten path. In an uncharted Canadian wilderness area, of forest, rivers and lakes, one could reasonably expect them to go in almost any direction, at least until such time as they reached indicia of private property. If there was a likelihood that someone would come upon the ploughed road on a snowmobile at night, and the evidence in my view supports such a likelihood, then I do not think there can be doubt that the company failed in the duty it owed Mr. Veinot to treat him with common humanity. The ploughed road gave every appearance of being a public road. Mr. Veinot had good reason to believe that he might freely use it if he wished to do so. Acting on that belief he failed to see or appreciate the abeyant danger of the rusty pipe. The defendant company in my opinion erred in permitting the continuance of what should have been recognized by it as a covert peril, menacing the safety of anyone who came upon the road at night on a snowmobile. And it would have been so easy to have averted the accident,

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by painting the pipe white or by hanging a cloth or a sign from it.

I would allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of the trial judge with costs throughout.

The judgment of Martland, Judson, Ritchie and de Grandpré JJ. was delivered by

MARTLAND J. (dissenting)—This appeal is from a judgment of the Court of Appeal for Ontario, which allowed the appeal of the present respondent (hereinafter referred to as “the company”) from the judgment at trial, pronounced upon the answers to questions put to a jury, which awarded to the appellant, Peter Veinot (hereinafter referred to as “Veinot”), damages in the amount of $29,537 for personal injuries which he had suffered.

The Company operates a mine in the area of Virginiatown and in 1950 acquired the surface rights to a parcel known as Mining Claim L25195 for the purpose of storing its high explosives. It used the property for such purpose steadily until June of 1970 when the magazines were moved from the property into the mine complex itself as a result of a requirement that high explosives be guarded. In the year 1950, when the first magazine was built, a gate was erected consisting of a 2 inch diameter pipe bar, placed some 45 inches from the ground, supported on two “U” bolts inserted in 8 x 8 posts on either side of the private road, which led west from the gate to the powder magazine, with a chain on the pipe so that it could be padlocked. The Company kept the gate locked at all times.

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The Company had allowed only two people, other than Company employees, to have access to its property. One of these, Mr. Jim Youni, was given access for logging purposes at some time in the past. Mr. Youni had used the private road with permission and had been in possession of a key to the gate. A Mr. Campbell had been allowed to use the private road for prospecting purposes and he had been required by the Company to leave his truck inside the gate for the duration of this operation.

The only access for traffic to the powder magazine property was by the private road. This road came to a dead end at the powder magazines and from this point there were three old logging roads branching off, which were impassable or almost impassable. A short distance to the east of the site of the powder magazines there was an old logging road extending to the north of the private road, which was passable by truck, with difficulty, for approximately a mile.

The Company caused a “Danger-Explosives in the Area” sign to be placed inside the gate on the north side of the private road and “Danger-Explosives, No Trespassing” signs at the powder magazines.

To the east of the gate the Company’s private road runs to Virginiatown. Proceeding from Virginiatown to the gate, the road commences from 28th Avenue, which is situated in the north-west portion of the townsite running east and west. The private road, which is owned and maintained by the Company, runs west from 28th Avenue for about 1,000 feet and then swings slightly toward the north for about 200 feet. It then reaches a right-of-way of the Hydro-Electric Power Commission of Ontario, which runs north and south. The private road crosses the right-of-way, diagonally, toward the north-west, and then runs toward the west. From the westerly boundary of the Hydro right-of-way the road runs for some 1,100 feet to the powder magazine area. The gate on the road is located where the private road leaves that boundary.

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Some distance north of the private road there is another Hydro right-of-way, which intersects the north-south Hydro line. The old logging trail, which extends north from the private road near the powder magazine area, reaches to the east-west Hydro line.

On the night of March 17, 1970, Veinot was driving his snowmobile, accompanied by his wife, as a passenger. They were accompanied by a friend and his wife on their own snowmobile. Both machines had headlights. The journey commenced at Larder Lake, where Veinot has lived for some 32 years, and which is some 6 or 7 miles, as the crow flies, south-west of Virginiatown. They drove out on to the bay adjacent to Larder Lake, returned to the land and continued north-easterly for about 5¾ miles and then northerly for 7 or 8 miles. They then returned southerly and at Crosby Lake turned south-easterly, traversing Beaver Lake, crossing the Ontario Northland Railway right-of-way and then turning more easterly, crossed Bear Lake and, at its eastern end, followed the east-west Hydro right-of-way until they came to the logging road.

Veinot was not sure where he was at that point, but travelled down this road until he came to the private roadway of the Company at the point somewhat easterly of the explosive storage locations. Veinot said that this road, i.e., the old logging road, had a lot of snowmobile tracks on it and was hard packed from previous use. He then continued easterly on the private road and, while driving at about 15 to 20 miles per hour, his head hit the pipe and he sustained serious injuries. His wife and the occupants of the other snowmobile were able to avoid injury.

The case was tried prior to the judgment of the House of Lords in British Railways Board v.

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Herrington[9]. It went to the jury on the basis that the Company’s liability was dependent upon Veinot establishing that he was on the Company’s land with the implied permission of the Company.

The questions put to the jury and their answers were as follows:

1. Was the plaintiff on the date of the accident on the land of the defendant with the implied permission of the defendant?

Answer: Yes.

2. If the answer to question 1 is “yes”, were the plaintiff’s injuries caused by a concealed or hidden danger or by a trap of which the defendant had knowledge?

Answer: Yes.

3. If your answer to question 2 is “yes”, what was the concealed or hidden danger or trap? Please specify in detail.

Answer: It was a rusty pipe approximately 2” in diameter suspended across the travelled portion of the road at a height of approx. 45 inches from the road.

4. If your answers to questions 1 and 2 are “yes”, then did the defendant fail to take reasonable care to avoid injury to such person traversing that area?

Answer: Yes.

If your answer is “yes”, please specify in detail.

There were no distinguishing warnings of the location of the pipe across the roadway from either the east or west approach to the pipe or on the pipe itself.

5. If your answers to questions 1 and 2 are “yes”, did the plaintiff fail to take reasonable care for his own safety?

Answer: No.

The Court of Appeal reached the conclusion that there was no evidence of implied licence which could support the finding of the jury on that point.

On this issue, the mine manager of the Company testified that he had no knowledge or

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information of snowmobiles coming down and going across any part of the powder magazine property. He was aware of the use for snowmobiles of the road from Virginiatown to the north‑south Hydro right-of-way and thence, via the east-west Hydro right-of-way, to Bear Lake.

The chief security officer of the Company testified that he visited the powder magazine area on an average of once or twice a week. He would unlock the gate and proceed to the powder magazine. He had never seen anyone on the site other than mining personnel. In the winter of 1969-70 he had seen, on a very few occasions, snowmobile tracks just west of the gate. He had seen none near the powder magazine. He did not report the presence of these tracks to the mine manager. He did not do anything about them because, as he said, it would have been necessary to post a guard to prevent entry or to catch somebody who was there.

On the issue of implied licence, Arnup J.A., who delivered the judgment of the Court, makes the following comments:

After careful consideration of the entire transcript it is my view that there was no evidence of implied license to go to the jury. There was a good deal of evidence that snowmobilers had been using the defendant’s private road to go westerly from the North Virginiatown townsite to the north-south Hydro right-of-way, and thence along that right‑of-way in both directions. However, as noted earlier, the only evidence of knowledge on the part of servants of the defendant of any use of the roadway west of the Hydro right-of-way is that on “very few occasions” in that same winter, the security officer had seen snowmobile tracks a short distance west of the gate in question.

...

In my view there was a physical separation, by the north-south Hydro line itself, of the two parts of the private roadway, even without regard to the gate across the roadway at the west limit of the Hydro right-of-way. I do not think that knowledge of user of the private roadway in that portion lying east of the

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Hydro right-of-way, however extensive, can be relied on so as to give rise to an implication that the occupier had good reason to expect similar trespassing on the portion west of the Hydro right-of-way.

In Edwards v. Railway Executive[10], the House of Lords had to consider the evidence requisite to create an implied licence. A nine-year-old boy, who had gone on to the defendant’s railway line on top of a railway embankment, was struck by a train. The embankment was fenced, but there was evidence that other children had been accustomed to break through the fence and had made a slide down the embankment. The fence had been kept in repair, after damage, and was in proper condition on the day of the accident. The jury found that the boy had gone on to the embankment and on to the railway line with the tacit permission of the defendant’s servants.

The House of Lords held that there was not evidence to justify these findings. At p. 747, Lord Goddard says:

Now, to find a licence there must be evidence either of express permission or that the landowner has so conducted himself that he cannot be heard to say that he did not give it.

Lord Porter, at p. 744, says:

The onus is on the appellants to establish their licence, and in my opinion they do not do so merely by showing that, in spite of a fence now accepted as complying with the Act requiring the respondents to fence, children again and again broke their way through.

The implication of a tacit permission arising from other intrusions upon an owner’s land could not be made, under the concept of an implied licence, unless it could be shown that the owner was aware of such intrusions, and, even if he was aware, it had to be shown that he permitted such intrusions on his land and not

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merely tolerated them.

Lord Porter, following the paragraph of his reasons which contains the statement above quoted, went on to say:

It will be observed that in expressing this opinion I have assumed that the servants of the Railway Executive had knowledge that children were accustomed to go there. I am not convinced that they had this knowledge, but it may have been legitimate for the jury to find that the ganger who repaired the fence must have known, although I am not prepared to accept the proposition that any inference can be drawn from the fact that trains passed up or down, or to hold that their drivers ought or must be taken to have seen the children. However that may be, and even assuming that the respondents had knowledge of the intrusion of children on to the embankment, the suggestion that that knowledge of itself constitutes the children licensees, in my opinion, carries the doctrine of implied licence much too far, though no doubt where the owner of the premises knows that the public or some portion of it is accustomed to trespass over his land he must take steps to show that he resents and will try to prevent the invasion.

As has already been noted, the Company had no knowledge that operators of snowmobiles had used its private road to drive their vehicles from the powder magazine area to the gate, or from the gate to that area. The only tracks seen by the security officer were just to the west of the gate. The persons whose vehicles created those tracks must have been aware of the presence of the gate, the very purpose of which was to indicate the resentment of the Company against trespass on its road, and to prevent such intrusion by vehicular traffic.

In my opinion there was no evidence of implied permission having been given by the Company for the use of its private road by the drivers of snowmobiles.

This conclusion, in itself, does not necessarily involve the failure of this appeal. Counsel for Veinot contends that, even if Veinot was not a licensee, none the less the Company owed a

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legal duty to him, even as a trespasser, which had, on the facts of this case, been breached. He relied chiefly upon the judgment of the House of Lords in British Railways Board v. Herrington (supra).

Before considering the reasons delivered in that case it is necessary to give attention to its facts. The plaintiff was a six-year-old boy. He had been playing with his two older brothers in a field which was National Trust property, which was freely open to the public. Adjoining this property was the defendant’s electrified railway line. Beyond that was another National Trust property. Through the field in which the boy was playing ran a path which led to the railway line. Shortly before reaching the line the path came to a four-foot-high chain link fence, which bordered the track. The path turned to the right to a footbridge over the track. Where the path turned right there was a further short stretch of trodden path leading straight up to the fence. At the point where this path reached the fence, the fence had become detached from a supporting post and it had been pressed down to within 10 inches of the ground. The evidence showed that the fence had been in that condition for some time and that people had been using the gap to take a short cut across the line. Employees of the defendant, some seven weeks before the accident, had reported the presence of children on the line, but no action had been taken. The plaintiff left the field where he had been playing, crossed the gap in the fence, and walked on to the line, where he came into contact with the electrified rail and was severely injured. No witnesses were called at the trial on behalf of the defendant.

The Railways Board contended that the boy had been a trespasser on its property and that, applying the principles enunciated in Robert Addie & Sons (Collieries) Ltd. v. Dumbreck[11], there could be no legal claim for damages in

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respect of his injuries. The principle stated by Lord Hailsham L.C. in that case, at p. 365, was as follows:

Towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes on to the premises at his own risk. An occupier is in such a case liable only where the injury is due to some wilful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the tresspasser.

In his reasons in the Herrington case, at p. 931, Lord Diplock makes the following candid statement:

If the facts in the instant appeal are compared with those in Addie’s case as stated by Lord Hailsham L.C, at pp. 359-360, I do not think it possible to say that, judged by current standards of behaviour, the conduct of those engaged in operating the appellants’ railway in the instant case was any more blameworthy than the conduct of those engaged in running the colliery of the successful appellant in Addie’s case. Yet all nine judges who have been concerned with the instant case in its various stages are convinced that the plaintiff’s claim ought to succeed; and, if I may be permitted to be candid, are determined that it shall. The problem of judicial technique is how best to surmount or to circumvent the obstacle presented by the speeches of the Lord Chancellor and Viscount Dunedin in Addie’s case, and the way in which those speeches were dealt with in the Privy Council in the comparatively recent Australian appeal of Commissioner for Railways v. Quinlan [1964] A.C. 1054.

The appeal of the Railways Board was dismissed unanimously by the five law lords constituting the Court, although Lord Wilberforce, at p. 921, said.

I feel bound to say that I have less confidence than your Lordships or the trial judge that the proved facts make the case good.

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Each of the five law lords wrote reasons and it is not easy to formulate any specific definition of the duty owed to a trespasser. As Professor Goodhart says, in his review of the case in 88 (1972) Law Quarterly Review, at p. 311:

Surprisingly the final result of all this work has been that a number of dicta stated in slightly different words concerning the duties of an occupier to a trespasser have been added to the existing collection, which Lord Pearson has summarised by saying: “Very broadly stated, it is a duty to treat the trespasser with ordinary humanity.”

What does emerge from a consideration of the five judgments is that:

1. Addie’s case should not be followed, because the duty owed by an occupier to a trespasser is broader than the duty as defined in that case.

2. The fiction of an implied licence should not be used as an aid in determining the rights of a trespasser as against an occupier.

3. The occupier does not owe to the trespasser as high a duty as that owed to persons lawfully on the land. (In England the duty owed to persons lawfully on the land was defined by statute in the Occupiers’ Liability Act, 1957. The occupier must take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is permitted by the occupier to be there.)

The House of Lords rejected the proposition that, in order to incur any liability to a trespasser, the occupier must have actual knowledge of his presence on the land. Lord Reid (p. 899) refers to the occupier knowing before the accident that “there was a substantial probability that trespassers would come”. Lord Morris of Borth-y-Gest (p. 908) said that if the Railways Board allowed their fence to be broken down at the place in question “there was a considerable risk that a small child would pass through it”.

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Lord Wilberforce quotes the phrases “as good as knows” and “extremely likely” and appears to prefer the latter. Lord Pearson (p. 924) refers to the presence of the trespasser as being “known or reasonably to be anticipated”. Lord Diplock, at p. 941, says:

My Lords, an occupier’s expectation of a trespasser’s presence, like his knowledge of a concealed danger, also involves two mental elements: actual knowledge of physical facts which indicate that trespassers are likely to come on to the land; and appreciation of the resulting likelihood. For reasons similar to those which I have indicated I think that, as the law has now developed, the test of appreciation of the likelihood of trespass is whether a reasonable man knowing only the physical facts which the occupier actually knew, would appreciate that a trespasser’s presence at the point and time of danger was so likely that in all the circumstances it would be inhumane not to give to him effective warning of the danger or, in the case of a child too young to understand a warning, not to take steps to convey to his infant intelligence that he must keep away.

Towards a trespasser whose presence on the land is known, or of whose presence the occupier should have known, the duty imposed by the Herrington case is, apparently, not to take reasonable care for his safety, but to act in a humane manner.

The law in Canada as to the duty of an occupier toward a trespasser was considered in Grand Trunk Railway Company of Canada v. Barnett[12]. The Privy Council said that the occupier is under a duty not to injure the trespasser wilfully nor to do a wilful act in reckless disregard of ordinary humanity. Otherwise, the general rule is that a man trespasses at his own risk.

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The Addie case was cited with approval in East Crest Oil Company Limited v. The King.[13]

The two most recent Privy Council decisions on the matter are Commissioner for Railways v. Quinlan[14], and Southern Portland Cement Ltd. v. Cooper[15], both being appeals from Australia.

The former case was concerned with a claim for personal injuries by the driver of a truck, which, while proceeding over a private level crossing across the defendant’s railway line, was struck by a train. It was admitted by the driver of the train that a whistle signal was given at a point too near the crossing to be of any use in averting a collision. The plaintiff was conceded to be a trespasser on the railway line. The jury were directed to the effect that, once they thought there was “a likelihood” of people using the crossing and the defendant was aware of such likelihood, the defendant owed a duty to the plaintiff, as a member of the public, to take reasonable precautions to secure his safety, and that that duty was not affected by the fact that he was a trespasser.

Viscount Radcliffe, who delivered the judgment, stated the duty toward a trespasser, at p. 1072, as follows:

The content and limits of the duty have been laid down in words that do not seem to admit of much qualification or to invite the skill of the amplifier. Hamilton L.J. stated the rule of the English common law with maximum brevity in Latham v. R. Johnson & Nephew Ltd., [1913] 1 K.B. 398, 411; 29 T.L.R. 124, C.A.: “The owner of the property is under a duty not to injure the trespasser wilfully; ‘not to do a wilful act in reckless disregard of ordinary humanity towards him’; but otherwise a man ‘trespasses at his own risk.’”

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He goes on to say that this statement of the law received the full approval of the House of Lords in the Addie case, where the Scottish rule of liability was held to be the same. He also says that the same principle was laid down as the law of Canada in Grand Trunk Railway Company of Canada v. Barnett (supra).

He goes on to say, at p. 1076:

It is true, however, that an occupier can be treated as having knowledge of a trespasser’s presence, even though the latter is not visibly before his eyes at the time when the act that causes injury is done. He can be in a position in which he “as good as” knows that the other is there.

Dealing with the knowledge of the occupier, which is necessary to impose upon him a duty of care to a trespasser, he says, at p. 1077:

It must be stressed, however, that the knowledge that is here material is knowledge in the occupier sufficient to impose upon him the duty not to be wilful or reckless towards the man to whom otherwise he would owe no duty at all; and such knowledge is something a great deal more concrete than a mere warning of likelihood. The presence, if it is to be treated as anticipated, must be “extremely likely,” to use Lord Buckmaster’s words in the Excelsior Wire Rope Co.’s case, [1930] A.C. 404, 410. There was “great likelihood, not to say certainty of boys and others coming upon the site,” per Dixon C.J. in Commissioner of Railways (N.S.W.) v. Cardy, 104 C.L.R. 274, 286: the trespasser must be one whose coming is “expected or foreseen.” In the same case Windeyer J. says (at p. 320) that “the occupier’s immunity from actions by trespassers may be qualified if he knows that they are or very probably may be present.” This is the same thing as was said by Evatt J. in Barton’s case, 49 C.L.R. 114, 135, “As a general rule the plaintiff must show that the occupier knew of the actual, or, at least, the very probable, presence of the trespasser on his land at the very time when some activity fraught with danger to the trespasser was being continued.” In their Lordships’ opinion, if an occupier is being charged with breach of duty towards a trespasser in not giving him warning of some dangerous activity that is conducted on the occupier’s premises and by which the trespasser has been injured, the law requires that the occupier’s

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knowledge of the other’s presence at the material time should be established in some such terms as those quoted above.

Reference was made in the Quinlan case, as well as in the Herrington case, to the judgment of the High Court of Australia in Commissioner for Railways v. Cardy[16]. In that case a fourteen-year-old boy, walking over the defendant’s land, in an area used as a tip for the deposit of ashes, penetrated surface crust of the tip and his feet and ankles were severely burned by the hot ashes beneath. A pathway, open to pedestrians, ran alongside the tip. This path was freely used and people, particularly children, visited the tip. There had been casual and intermittent warnings to keep off the tip.

The plaintiff succeeded at trial, before a jury, and this decision was upheld on appeal to the Full Court of the Supreme Court of New South Wales and by the High Court of Australia. Dixon C.J., with whom Fullagar J. concurred, was of the opinion that liability arose, not because, on the evidence, it was proper to imply a licence to enter the land, but because, although the plaintiff was a trespasser, a duty of care rests upon a man to safeguard others from grave danger of serious harm where, knowingly, he has created a danger, or is responsible for its continued existence, and is aware of the likelihood of others coming into the proximity of the danger, and has the means of preventing it or bringing it to their knowledge.

The Cooper case (supra) involved an injury to a thirteen-year-old boy, who was playing on a mound of dumped waste material from the defendant’s quarrying operations. This material

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had spread outwards, partially burying the poles which carried a high tension electric cable, which brought power to the defendant’s operations. Orders to cease the dumping of material had been given when the gap between the mound and the cable had, at one point, been reduced to twelve feet. The orders were not obeyed and the gap became smaller. As a matter of urgency, arrangements were made on a Thursday for the removal of the cable on the following Monday. On the Sunday, while playing on the mound, the plaintiff’s arm came into contact with the cable and he suffered severe injuries. School children played at various places not far from the working area. Children had been warned off the defendant’s land, and there was not much trespassing during working hours. There were, however, two places where children were accustomed to play, outside, but near the defendant’s land, from which the growth of the new “sandhill” was plainly visible.

The defendant’s appeal from a judgment in favour of the plaintiff was dismissed. Lord Reid, who delivered the judgment of the Privy Council, reviewed its decision in Quinlan at some length. He said, at p. 93, apparently with reference to the second passage previously cited from Viscount Radcliffe’s reasons (at p. 1077):

What is said (See [1964] 1 All E.R. at 907, [1964] A.C. at 1077) shews that the Board were prepared to hold not merely that a duty would arise as soon as the occupier knew facts which made it extremely likely that a trespasser had already arrived, but also that a duty would arise before the arrival of the trespasser as soon as it became extremely likely that he would come in future. That puts a very much greater burden on the occupier.

He went on to reject the limitation, stated in Quinlan, that, before an occupier could be made liable in respect of a trespasser of whose presence he did not have knowledge, he must have known that his presence was “extremely likely”. He stated that when an occupier himself creates a danger on his land he is bound to give consideration to the possibility of protecting

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potential trespassers if he knows of facts which show a substantial chance that they might come that way and fail to see or realize the danger.

Lord Reid expressed agreement with the summary of the matter given by Barwick C.J. in his judgment in the case in the High Court of Australia:

After verdict, bearing in mind the summing-up, it must be taken that the jury found that the respondent had created a situation of danger on its land. That situation was the proximity of the surface of the batter of the platform to the uninsulated high voltage transmission line. That situation of danger could only be regarded as highly dangerous to human life and safety. Then, the jury must be taken to have found that the respondent knew of the existence and dangerous quality of what they must have concluded as a concealed trap as far as children were concerned. Further, because the place of the danger was attractive to children seeking their amusement in the remote area where they lived, and having regard to the terms of the summing-up, the jury must have concluded that the respondent must have known that it was likely that children would be attracted to the place of danger. In my opinion, that finding in the circumstances of the case is the equivalent of a finding that the presence of the children in the area was to be expected by the respondent. On the possible view of the facts, which I have already indicated, there was, in my opinion, sufficient evidence to support such findings. They are sufficient, in my opinion, to support a verdict against the respondent on the footing that, having created a situation highly dangerous to human life, the proximate presence of children was to be expected by it, with the consequence that the respondent owed the appellant a duty to take reasonable steps to prevent the appellant suffering injury by that highly dangerous situation. If there was any duty, there can be no question that the respondent failed to perform it. Therefore, because of the findings inherent in it, and on the basis I have indicated, I would not disturb the verdict of the jury.

I have reviewed these recent cases, at perhaps unnecessary length, because we find in the Herrington and Cooper cases an extension of the scope of the duty owed by an occupier toward a trespasser beyond the limits defined in the Addle case. This extension has permitted the

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elimination of the theory of implied licence, a device which has been used in the past, especially in cases involving children, to avoid the strict application of the Addie case. I am in agreement with, and would favour the adoption of this approach, which recognizes that, in certain circumstances, the conduct of an occupier of land may require him to take steps to enable a person who has entered on his land, without his actual consent, to avoid a danger of which the occupier is aware. The question is as to what is the extent of such a duty.

The submission that the duty could be based on the “neighbour” theory enunciated in Donoghue v. Stevenson[17], was rejected in both of the above cases. Lord Pearson, in the Herrington case, at p. 924, says:

As the trespasser’s presence and movements are unpredictable, he is not within the zone of reasonable contemplation (Bourhill v. Young [1943] A.C. 92) and he is not a “neighbour” (Donoghue v. Stevenson) to the occupier, and the occupier cannot reasonably be required to take precautions for his safety.

On the same page, he goes on to say:

Even when his presence is known or reasonably to be anticipated, so that he becomes a neighbour, the trespasser is rightly to be regarded as an underprivileged neighbour. The reason for this appears, I think, most clearly from a consideration of the analogous position of a lawful visitor who exceeds his authority, going outside the scope of his licence or permission. In Hillen and Pettigrew v. I.C.I. (Alkali) Ltd. [1936] A.C. 65, 69-70 Lord Atkin said:

“...this duty to an invitee only extends so long as and so far as the invitee is making what can reasonably be contemplated as an ordinary and reasonable use of the premises by the invitee for the purposes for which he has been invited. He is not invited to use any part of the premises for purposes which he knows are wrongfully dangerous and constitute an improper use. As Scrutton L.J. has pointedly said: ‘When you invite a person into your house to use the staircase you do not invite him to slide down the banisters.’ (The Calgarth [1926] P. 93, 110.) So far as he sets foot on so much of the

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premises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly. In the present case the stevedores knew that they ought not to use the covered hatch in order to load cargo from it; for them for such a purpose it was out of bounds; they were trespassers. The defendants had no reason to contemplate such a use; they had no duty to take any care that the hatch when covered was safe for such a use; they had no duty to warn anyone that it was not fit for such use.”

Lord Reid, in the Cooper case, accepted the submission that an occupier’s duty to a trespasser could not be extended so as to make it exceed his duty to a licensee. He says (p. 97):

It was urged in argument that an occupier’s duty to a trespasser cannot be extended so as to make it exceed his duty to a licensee. Their Lordships agree. The passage in the Board’s judgment in Quinlan’s case, [1964] 1 All E.R. at 911, [1964] A.C. at 1083, to which their Lordships have already referred appears to warrant affording to trespassing children, at least in some cases, rights substantially equivalent to those of a child licensee. It was there stated that the Board were at one with Dixon C.J. in finding it unnecessary to resort to the categorisation of licensee in order to give to children the legal remedy that is felt to be their due.

Both of these cases were concerned with claims by infant trespassers who had suffered injury as a result of the existence, on the occupier’s land, of something which, in itself, constituted a grave danger, in an area proximate to places where children were known to play. This is illustrated in the remarks of Lord Wilberforce in the Herrington case at p. 920:

Just as in the 19th century the introduction of turntables, attractive to children, accessible and danger-

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ous, gave rise to a jurisprudence known by their name, so we must take account of the placing of electrical conductors above or on the ground all over our overcrowded island and see where this leads as regards foresight and care. The ingredients of such duty as may arise must stem from the inevitable proximity to places of access, including highways, from the continuous nature of the danger, from the lethal danger of contact and from the fact that to children the danger may not be apparent. There is no duty to make the place safe, but a duty does arise because of the existence, near to the public, of a dangerous situation. The greater the proximity, the greater the risk, and correspondingly the need of foresight and a duty of care.

The effect of these cases might be summarized as being that an occupier who knows of the existence of a danger upon his land which he has created, or for whose continued existence he is responsible, may owe a duty to persons coming on his land, of whose presence he is not aware, if he knows facts which show a substantial chance that they might come there. This is, in essence, the duty stated by Dixon C.J. in the Cardy case. Such duty, when it exists, is limited, in the case of adults, to a duty to warn. In the case of children something more may be required. The existence of a duty will depend on the special circumstances of each case.

I now turn to consider whether or not such a duty existed on the part of the Company towards Veinot.

The only danger which existed upon the Company’s land, which is comparable to the live electrical rail in Herrington, the electrical cable in Cooper, and the beds of hot ash in Cardy, was the presence there of high explosives. Warning notices were posted at the powder magazines, and a warning notice was posted by the road inside the gate. The gate itself was put in place as a means of excluding unauthorized access to the private road to the powder magazines and was itself a notice by the Company that entry upon its premises was unauthorized.

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It had existed, to serve this function, for nearly twenty years prior to Veinot’s accident.

It was contended on behalf of Veinot that the Company had created a danger by placing the pipe, unmarked, across its highway. This submission involves the proposition that the existence of something on the Company’s land which had been there for some twenty years, during which it was not a danger, became a danger because of the special use made of the Company’s land by Veinot in the operation of his snowmobile. In substance, it means that because he elected to make use of the Company’s land, not for walking, but to operate a motor driven vehicle, at night, at a speed of some 15 to 20 miles an hour, the Company, because of that fact, permitted the existence of a danger on its land.

I have not overlooked the finding of the jury that the pipe constituted a concealed or hidden danger or trap, but that finding was, by the terms of the question to which it was an answer, predicated upon a finding of an implied permission for Veinot to operate his snowmobile on the Company’s land and it has no force when taken out of that context.

I have already cited the passage from the judgment of Lord Atkin in the Hillen case, quoted by Lord Pearson in the Herrington case, which makes it clear that, even in respect of an invitee, the occupier’s duty does not extend to a situation where the invitee makes use of the premises for a purpose not authorized by the invitation. We were not referred to any authority which would require an occupier to take steps to warn or protect a trespasser who drives a vehicle over the occupier’s land at a speed which makes some condition existing on the premises dangerous to him, because of the speed at which he is travelling, but which, to others, does not constitute a danger at all.

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I have dealt with the question of there being a dangerous situation on the premises. Even if such a situation does exist, the duty of the occupier to a trespasser can only arise if he knew of the presence of the trespasser upon his land or, to quote Lord Reid in the Cooper case (p. 98), “when he knows facts which shew a substantial chance that they (i.e., trespassers) may come there”. I have already referred to the absence of any evidence to establish any knowledge by the Company that anyone had operated a snowmobile, as Veinot did, along the private road from the powder magazine area to the gate.

In conclusion, it is my opinion that there is no analogy between the circumstances of this case and those under consideration in Herrington and in Cooper. The former case involved injuries to a six-year‑old boy; the latter involved injuries to a boy of thirteen. Veinot is an adult.

In Herrington the defendant maintained a live electric rail on its railway line running between two public areas where children played. In Cooper the defendant had created a situation highly dangerous to human life, i.e., a high tension line in too close proximity to the ground, where the proximate presence of children was to be expected by it. In the present case the Company maintained a pipe, acting as a gate, to protect its premises, which would only prove to be a danger to a person travelling at night, at some speed, in a snowmobile, of whose potential presence there were no facts to warn the Company.

In my opinion the appeal should be dismissed with costs.

The judgment of Pigeon and Beetz JJ. was delivered by

PIGEON J.—I agree with Dickson J.’s conclusions on the basis that there was evidence to support the findings of the jury. I prefer to express no opinion on the other questions.

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Appeal allowed, judgment at trial restored, with costs, MARTLAND, JUDSON, RITCHIE and DE GRANDPRE JJ. dissenting.

Solicitors for the appellant: Fasken & Calvin, Toronto.

Solicitors for the respondent: McGarry & McKeon, Toronto.