Unreported Judgments
From time to time, judgments of interest to the legal com-
munity, for one reason or another, do not appear in the regular
reports in this province. To fill this gap, the McGill Law Journal will
publish summaries of unreported judgments which the editors feel
should be brought to the attention of members of the Bar and Bench.
In order to accomplish our goal, we would appreciate the coopera-
tion. of judges and lawyers in informing us of judgments which they
feel would merit inclusion in this section of the Law Journal.
PRIVILEGES
1866 Dorchester St. West Inc. v. Val Royal Building Materials
Limited and Larue S.C.M. 8407 ex parte, July 29, 1963, Mr. Justice
F.R. Hannen.
Privilege –
Supplier of Building Mtaterials – Petition For Cancellation by
Owner – Notice – End of Work 2013, 2013(a), 2013(e) C.C., 1088(a)
C.P. (now 805 C.P.).
Petitioner, the owner of an immoveable property upon which an
apartment house was being built, sought the cancellation of a privi-
lege registered against the property by the supplier of building ma-
terials. It was alleged that Respondent had never sent the required
written notice of its contract and that the privilege was registered
beyond the delays required by law.
Held, petition dismissed. As to the requirement of notice, Re-
spondent which entered into a contract with a co-owner and builder
of the project, was not required to notify the other co-owner of its
contract, in view of the close association between the undivided
owners of the property. Also, the supplier was under no obligation
to notify the present owner, the Petitioner herein, to whom the
property had subsequently been transferred.
Held, further, on the facts, that the end of the work had not
been reached when the privilege was registered. Substantial por-
tions of the work remained to be completed. Moreover, a city offi-
cial testified that no occupation permit had been issued as the
building had not been completed in accordance with the require-
ments of the City of Montreal Building Code. Thus, the apartment
was neither physically complete nor was it
legally available for
leasing.
McGILL LAW JOURNAL
[Vol. 13
PARTNERSHIP
Cordiano v. Desjardins, S.C.M. 453358, Dec. 2, 1963, Mr. Justice
Harry Batshaw.
Concubines –
foint business efforts –
Acknowledgement of partnership
Sui generis.
The parties lived together in concubinage during which time
they signed agreements acknowledging the existence of a partner-
ship between them and proceeded to participate in various business
enterprises. Plaintiff claimed from the Defendant a balance due
by virtue of the terms of a notarial dissolution of partnership.
Defendant argued that no partnership existed, the documents which
she signed to that effect having been simulated and entered into
only for the purpose of disguising the fact that she was making
gifts beyond the scope of aliments to the Plaintiff in contravention
of 768 c.c.
Batshaw, J. held that a partnership had in fact existed as the
evidence indicated that the parties so intended. Because of the un-
usual situation in which it came into being, it may be one that
is considered “sui generis” in its nature. It did have many of the
characteristics of a universal partnership of gains (1861 c.c.) which
comes from Roman Law. Although unusual or difficult to classify
in terms of ancient forms, it is nonetheless real.
MARRIAGE
Bartschat v. Shore, S.C.M. 591868, Feb. 13, 1964, Mr. Justice
Harry Batshaw.
Action in Annulment of Marriage – Petition For Provisional Allowance and
Custody – Petition dismissed.
Plaintiff B., petitioned for a provisional allowance and provi-
sional custody of the children during the pendency of an action in
annulment of marriage.
Held, on the basis of the Civil Code and judicial decisions, that
there was no right to the provisional remedies sought in an action
in annulment of marriage. The court distinguished an action for
separation from bed and board where the legislature has specifi-
cally provided for provisional measures from an action to annul a
marriage, where the legislature has remained silent in this respect.
To hold otherwise would require the court to legislate.
No. 2]
MARRIAGE
UNREPORTED JUDGMENTS
Roth v. Morgenstein, S.C.M. 477066, Jan. 12, 1962, Mr. Justice
C.A. Bertrand.
Action in nullity of marriage – Consorts domiciled in Quebec – Desire to
– Art. 135 c.c.
avoid religious ceremony – Civil ceremony in N.Y.
The parties, domiciled in Quebec, were married in a civil cere-
mony in New York State, as a result of Defendant’s refusal to go
through a religious ceremony in Quebec. Defendant was unaware
of the fact that the couple could have been married in Quebec by
any minister authorized to keep registers of Acts of Civil Status.
Plaintiff instituted an action in nullity of marriage alleging that
the parties left Quebec with the sole purpose of evading Quebec
law.
Held, the true object of the trip to N.Y. was not to evade Que-
bec law in the spirit of the Article 135 c.c., but to bypass a religious
ceremony. The accepted interpretation of Article 135 restricts the
exception it contains against foreign marriages to cases in which
there is an obvious intention of defeating Quebec law in its funda-
mental prescriptions and where, in addition, the effect has been
attained of violating them in their essential dispositions, if, for
example, the plan is to avoid and foil an invalidating impediment.
PRIVATE INTERNATIONAL LAW
Bussieres v. P61issier, S.C.Q. 84577, May 23, 1958, Mr. Justice
P. Lesage.
Accident in France – Parties domiciled in Quebec – Action instituted in
Lex loci delicti commissi applied.
Quebec –
The parties, domiciled in Quebec, were involved in an automobile
accident in France. An action for damages was instituted in Quebec
and Plaintiff alleged that the responsibility of the Defendant must
be determined by the law of France. Lesage, J. applied the iex loci
delicti commissi and held Defendant liable.
This judgment marks a return to the traditional Quebec rule
that extracontractual civil responsibility is determined by the lex loci
delicti commissi which the Supreme Court departed from in O’Connor
v. Wray [1930] S.C.R. 231. For a fuller description of the signifi-
cance of this decision see P.-A. Cr6peau, De La Responsabilit6 civile
extra-contractuelle [1961] Can. Bar Rev. 3.
