Supreme Court of Canada
City of Montreal v. Layton & Co.,  S.C.R. 514
The City of Montreal (Dependant) Appellant;
John Layton & Co., Limited (Plaintiffs) Respondents.
1912: October 29, 30, 31; 1913: February 18.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Anglin and Brodeur JJ.
ON APPEAL FROM THE COURT OF KING’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Construction of statute—“Quebec Public Health Act”—R.S.Q., 1909, art. 3913—Inspection of food—Duty of health officers—Quality of food—Condemnation—Seizure—Notice—Effect of action by health officers — Controlling power of courts—Evidence—Injunction — Appeal—Jurisdiction—Question in controversy.
Per Fitzpatrick C.J.—In the Province of Quebec, in order to constitute a valid seizure of movable property there must be something done by competent authority which has the effect of dispossessing the person proceeded against of the property; notice thereof must be given; an inventory made and a guardian appointed. Where these formalities have not been observed there can be no valid seizure. Brook v. Booker (41 Can. S.C.R. 331), referred to.
Per Fitzpatrick C.J.—Extraordinary powers, conferred by statute, authorizing interference with private property must be exercised in such a manner that the rights of the owners may not be disregarded. Bonanza Creek Hydraulic Concession v. The King (40 Can S.C.R. 281), and Riopelle v. City of Montreal (44 Can. S.C.R. 579), referred to.
Per Fitzpatrick C.J. and Davies and Idington J J.—The authority conferred upon health officers by the “Quebec Public Health Act” respecting the condemnation, seizure and disposal of food, as being deleterious to the public health, is not final and conclusive in its effect, but it is to be exercised subject to the superintending power, orders and control of the Superior Court and the judges thereof.
Per Anglin and Brodeur JJ.—The protection afforded by the Quebec “Public Health Act” to an executive officer of a local board of health cannot be invoked when the officer has apparently not acted under its provisions, but has condemned food, not as the result of his own independent judgment upon its quality, but in carrying out instructions given him by municipal officials purporting to act under other statutory provisions.
In the result the finding of the trial judge that the food in question was fit for human consumption (Q.R. 39 S.C. 520), being supported by evidence, was not disturbed, and the effect of the judgment appealed from (1 D.L.R. 160) was affirmed with a variation of the order making absolute the injunction against the defendant interfering therewith.
APPEAL from the judgment of the Court of King’s Bench, appeal side, affirming, with some variation, the judgment of Weir J., at the trial in the Superior Court, District of Montreal, in favour of the respondents.
The respondents, plaintiffs, commenced the present action by a petition for an interim injunction to restrain the appellant, defendant, from interference with a quantity of frozen canned eggs, the property of the respondents, which the municipal health officials were about to destroy, after an alleged condemnation of the eggs as deleterious to the public health and unfit for human food and an alleged seizure thereof by some of said officials. The petition also asked that the appellant should be summoned before the Superior Court, at Montreal, to shew cause why the injunction should not be declared absolute, and also that their right to recover damages sustained in consequence of the action of the municipal officials with regard to the eggs might be expressly reserved for consideration and adjudication in such other suit or action as they might be advised to institute in that respect. An interim injunction
issued and the respondent’s petition was contested by the appellant. The principal grounds of the contestation were that the eggs in question were unfit for human food, of a nature generally detrimental to the public health, and that they had been duly condemned, after inspection and analysis by the provincial and municipal health authorities, under the provisions of the “Quebec Public Health Act,” K.S.Q., 1909, arts. 3867 et seq., and duly placed under seizure and ordered by them to be disposed of in the manner necessary to prevent them being sold or delivered for consumption as human food.
At the trial, Weir J. found that the proceedings taken by the municipal health officials in regard to the eggs were illegal and irregular; that the alleged seizure was invalid and should be set aside, and that the eggs were the property of the respondents and both wholesome and suitable for human food. It was, therefore, ordered, that the Gould Cold Storage Company, the mis-en-cause, in whose warehouse the eggs were stored, should deliver them up to the respondents and that the injunction should be made absolute against the defendant corporation interfering with the eggs in so far as might relate to acts or proceedings theretofore taken or conditions theretofore existing with respect to such eggs. On an appeal to the Court of King’s Bench, this judgment was affirmed on the ground that the alleged seizure was illegal and ineffective, and the injunction was declared absolute against interference with the eggs by the defendant “otherwise than by due process of law.”
Upon the 25th March, 1912, pursuant to notice, a motion was made on behalf of the respondent to quash
the appeal on the grounds that there was no pecuniary amount in controversy, as shewn by the pleadings, which involved a sum or value of $2,000 as provided by the “Supreme Court Act”; that the appeal had not, been entered within sixty days from the date of the decision appealed from, as provided by the Act; and that, as there was lis pendens in regard to another appeal from the same judgment taken de plano to the Judicial Committee of the Privy Council, there was no jurisdiction in any of the judges of the Court of King’s Bench to extend the time for appealing to the Supreme Court of Canada.
It was shewn that, upon the delivery of the judgment now appealed from, the defendant had given security, in the court below, for an appeal to the Judicial Committee of the Privy Council and obtained the approval thereof by a judge of the Court of King’s Bench; that, within the sixty days limited for appeals to the Supreme Court of Canada, the defendant had filed in the office of the Court of King’s Bench a notice that the proceedings on the proposed appeal to the Privy Council had been discontinued, and, within the time so limited, had obtained an order from a judge of the Court of King’s Bench extending the time and approving security filed for an appeal to the Supreme Court of Canada. In these circumstances it was contended that the Supreme Court of Canada had no jurisdiction to entertain the appeal and that no such appeal could lie.
Mr. S. L. Dale-Harris, on behalf of the respondents, contended that it did not appear from the record that there was a pecuniary amount of the value of $2,000 in issue on the controversy involved on
the present appeal; that there was lis pendens in regard to the proceedings instituted for an appeal to the Privy Council, and that, therefore, the judge of the Court of King’s Bench had erred in acting upon the désistement filed in that court, that, in the circumstances, no appeal could lie to the Supreme Court of Canada, and that it was not now competent to the latter court to entertain the present appeal.
Hon. A. W. Atwater K.C., on behalf of the appellant, shewed cause to the motion. He contended that the injunction, made absolute by the judgment appealed from, was merely an incident in a cause, matter or proceeding for the recovery of goods which were shewn, in the record, to be valued at about $100,000, and that the usual practice of the courts in the Province of Quebec had been followed in regard to the abandonment of the proposed appeal to the Privy Council. He consequently argued that the effect of the filing of the désistement was to restore jurisdiction in the Court of King’s Bench, and that the order made by the judge of that court approving the security filed for the appeal to the Supreme Court of Canada had been validly made.
It was then suggested by the court that the appellant should now be allowed to give the notice of the withdrawal of the appeal to the Privy Council, under P.C. Rule 32, and this was done accordingly. In reply to the notice the registrar of the Judicial Committee of the Privy Council intimated that, as nothing had been received in his office indicating that such an appeal was pending, it could not properly be considered as a case requiring a notice to be given in accordance with that rule.
The court, having been informed of these
circumstances, reserved judgment upon the motion to quash the appeal and, on the 1st of April, 1912, there being an equal division of opinion in regard to jurisdiction among the judges, the motion stood dismissed, without costs.*
The questions argued on the merits of the appeal are stated in the judgments now reported.
Hon, A. W. Atwater K.C. and Aimé Geoffrion K.C. for the appellant.
S. L. Dale-Harris for the respondents.
The Chief Justice.—It appeared to me at the argument that this appeal was without merit and that impression has developed into a conviction by a careful examination of the very voluminous record. It is difficult, on the evidence, to say whether the moving spirit in all the proceedings which led to this action— Doctor Lachapelle — acted as “President of the Provincial Board of Health,” or as one of the Board of Commissioners. He is a prominent member of both bodies. But in whatever capacity he acted, it is abundantly clear to me that the objection taken by the appellant to the jurisdiction of the Superior Court cannot prevail. It is said that the finding of the Board of Health is final and definitive, and this notwithstanding the very wide terms of article 50 of the Quebec Code of Civil Procedure, which, with the exception
of the Court of King’s Bench, makes all courts, circuit judges and magistrates, and all other persons and bodies politic and corporate, within the province, subject to the superintending and reforming power, order and control of the Superior Court and of the judges thereof. This article has been time and again construed to mean that the Superior Court is invested with all discretionary power to grant relief against arbitrary and unauthorized acts of public officials or public corporations. See also The Queen v. Local Government Board, at p. 321; Hartlepool Electric Tramways Co. v. West Hartlepool Corporations.
On the facts, I agree in the conclusion reached by the trial judge. The report by Dr. Bernier and Mc-Crady, on the strength of which the commissioners ordered the destruction of the eggs, is not supported by the evidence, the overwhelming effect of which leads one to the conclusion that they were not “unfit to serve as food for men.” Dr. Grüner does not say they were unfit, and, in answer to a question put by the court, Dr. Hersey, the city analyst, says that he would not condemn the eggs. Assuming, therefore, that the eggs were offered for sale, a fact not proved, although that is the condition upon which the right of the municipal sanitary authority to interfere depended, I would hold that a case has not been made out justifying such interference. It has been recently said that the finding of a judge in the first instance is not on the same footing as the verdict of a jury, notwithstanding the dictum of Lord Loreburn that the one is scarcely distinguishable from the other. But it must, at least, be admitted that the judge who tries
a case like this has advantages, and, in dubio, there is a strong presumption in favour of his judgment; the onus is, in any event, on the party attacking to shew that it is wrong. In this, the appellant has failed.
On the question of law: Admitting for the purposes of the appellant’s argument that the inspectors are clothed with very large statutory powers and that they were not bound to proceed with strict form and regularity in all they did, they were certainly bound to proceed according to the substantial rules of justice, and these, in my opinion, they failed entirely to observe. Nearly three months intervened between the so-called seizure by the fish, fruit and vegetable inspector (who does not pretend to have exercised anything like an independent judgment as to their condition, or in fact any judgment whatever) and the trial; and, with the exception of Dr. Hersey, not a single witness is examined by the appellant who can speak with any authority on the subject of the examination of food stuffs.
The eggs in question are said to have been seized on the 24th December, and it was not until the 26th January following that the owners were informed that they were free to remove them from the province, the opportunity to have a proper independent examination of their edible quality by a competent official in the interval being denied them, most unjustifiably in my opinion. The corporation appellant is vested under the laws of Quebec with exorbitant powers for the protection of public health and very properly so, but those powers must not be exercised in total disregard of the rights of private individuals. All that I can usefully say on this branch of the case will be
To those of us who are familiar with the elaborate provisions of the Quebec Code of Civil Procedure for the protection of those whose property has been taken in execution, it seems almost ridiculous to suggest that there was any proceeding here which bears the faintest resemblance to a seizure as that word is understood in that province. On this point I agree with the court of appeal. To seize is to dispossess the party proceeded against, “Mettre sous main de justice,” and the law requires at least notice—inventory and a guardian. See Brook v. Booker. Here, beyond a notice to the warehouse keeper, no steps whatever were ever taken to attach the property or to in any way protect or safeguard the rights of the owner.
In view of the great importance of the subject, I venture to add this observation: a careful examination of its provisions leads me to the conclusion that in many cases the “Quebec Public Health Act” will be found to be unworkable. Some provision for, amongst other things, the condemnation of articles of food seized by judicial authority such as is to be found in the English Act (“Public Health Act, 1891”) would be useful. Chapter 133 of the Revised Statutes of Canada, 1906, might also be consulted with advantage.
I can see no useful purpose to be served by changing the form of the order as settled by the court of appeal.
I would dismiss with costs.
Davies J.—The substantial question of fact in controversy between the parties to this action was
whether the canned eggs seized and confiscated as being held by the plaintiffs for sale, were or were not unwholesome and unfit for human food.
A vast mass of scientific and expert testimony on this question was given before the trial judge. Much of it was conflicting. The experts and scientists differed greatly in their opinions and conclusions.
In the result, the trial judge found in favour of the plaintiffs that the eggs, when seized, were not unwholesome or unfit for human food or otherwise injurious to health.
While I might not, upon the evidence given, had I tried the case, have reached the same conclusion as the trial judge, I am not able to say that his finding of fact is so clearly erroneous as would justify me in reversing it.
This finding goes to the very root of the controversy, and apart from any question as to the legality of the seizure in form or substance, would be sufficient to dispose of this appeal unless the contention of the appellant’s counsel that the bonâ fide exercise of the discretionary power conferred on the executive officer of a local Board of Health by the Quebec “Public Health Act,” with respect to the seizure and confiscation of food offered for sale and suspected to be impure and unfit for human food, is not subject to be overruled, controlled or interfered with by the courts, but is conclusive in itself.
I am not able to accept this contention. Article 3913 of the Revised Statutes of Quebec (1909), on which the appellants rely in justification of the seizure and confiscation of the eggs, is as follows:—
Every executive officer of the municipal sanitary authority or any other officer appointed by it for that purpose, may inspect all animals,
dead or alive, meat, fowl, game, fish, fruit, vegetables, grease, bread, flour, milk or other liquids and food intended for human, consumption and offered for sale, or deposited in a place or transported in a vehicle for the purpose of being afterwards sold or offered for sale, or delivered after being sold; and, if upon inspection such animals, liquids or food appear to be unwholesome, putrid, damaged, or infected with the germs of disease, or otherwise injurious to health, he may seize the same, carry them off, and dispose of them so that they shall not be offered for sale or serve as food for man.
The burden of proof that the animals, liquid or food are not intended to be sold, or to be delivered after having been sold, or to serve as food for man, lies upon the owner or person who had possession thereof.
The proprietor of the articles, or the person in whose possession they were seized, is further liable to a fine not exceeding fifty dollars.
I may say that there were two seizures made of these canned eggs, one of the 24th of December, 1910, by Grenier, who was the health officer of the City of Montreal, acting under the by-law of the city, and the other on the 24th January, 1911, by Dr. McCarrey, who was the chief food inspector of the city and an officer entitled to act under art. 3913, R.S.Q., above cited.
Counsel for the appellants disclaimed, at bar, justifying the seizure made by Grenier on the 24th of December, 1910. They relied entirely upon that made by Dr. McCarrey on 24th of January.
In view of the finding of the trial judge that the seized goods were not unwholesome or unfit for human food, and of my inability owing to the conflicting character of the evidence to reverse that finding, the question for me is reduced simply to this: Assuming the seizure to have been bonâ fide made, is the inspector’s finding, if he did so find, that the eggs were unwholesome and unfit for human food, final and conclusive, or is it subject to review by the courts?
The clause empowers the officers to inspect enumerated kinds of food and drink intended for sale and
human consumption, and declares that if upon inspection such liquids or foods “appear to be unwholesome,” etc., “or otherwise injurious to health,” the officer may seize and dispose of them “so that they shall not be offered for sale as food for man.”
Now the position of the appellants was, and I think it a tenable one, that the “inspection” referred to is not necessarily limited to the ocular inspection of the officer. If such a limited construction was placed upon the section it would be almost, if not entirely useless. I think it extends to such an inspection as the conditions of the suspected articles may call for in order to enable a proper conclusion to be reached as to their wholesomeness or otherwise. Such inspection may, in the case of canned or sealed food, require merely an opening of the cans or of reasonable samples, or it may call for a scientific analysis of the contents of the cans or samples and necessitate chemical and bacteriological analyses to enable a conclusion to be reached whether they are unfit for human food.
If the former or limited ocular inspection was the only one intended, and the section only covered goods respecting which such an inspection would enable the officer to reach a conclusion, I could appreciate an argument that the conclusion of the inspector might be held to be final and conclusive. But if the contention of the appellant, the City of Montreal, as to the broad meaning of the inspection referred to is accepted, as I accept it, then I am quite unable to appreciate the finality argument. In this latter case the result is to be determined not from the exercise of the senses, of feeling, smell, or sight, knowledge and experience possessed by the inspector, but from the reports of one or more scientific analysts. In such a
case, to confer such an arbitrary, uncontrolled power upon the inspector would require the use of clear language expressing that to be the intention of the legislature.
No language even implying such an intention is used, and from the fact that the burden of proof with respect to the food not being intended for sale, or its not being intended to serve as food for man, is thrown upon the owner or possessor, I think the intention would have been clearly expressed if it was intended to invest the inspector with uncontrolled arbitrary power of deciding the crucial point of the wholesomeness of the food in cases where it could only be determined after and upon scientific analyses.
In the view I take of the case, it is not necessary for me to express any opinion as to the form or substance of the seizure itself. The canned eggs seized were held by the trial judge not to be unwholesome or unfit for human food. I find myself unable to reverse that finding because I cannot say in the face of the conflicting testimony, that it is clearly wrong. The seizure, therefore, cannot be sustained.
On a question so vitally important as the health of the inhabitants of a large city like Montreal, I would not hold the officer bonâ fide exercising his power of preventing the sale of unwholesome food to be a wrongdoer for mere technical defaults of procedure. If substantially and practically he complied with the statutory requirements so that no real injustice was done, I would hold his seizure sufficient, if in the ultimate result the food seized was found to be unfit for human food. I am unable, in matters of this kind, to exalt the rights of the individual over those of the community. I would go a long way to prevent the vender
of unwholesome food profiting, through technical defects merely, by his nefarious traffic.
In this case, however, the merits are found for the respondents and the trial judge’s findings on them are not reversed by the appeal court which decided the appeal on questions relating to the legality of the seizure irrespective of the quality or character of the eggs. I, therefore, do not find it necessary to express any opinion upon the legality of the seizure.
I agree to the modification of the injunction proposed by my brother Anglin, and concur in dismissing the appeal.
Idington J.—In any view I can take of this appeal it must turn upon the determination of whether or not the goods in question have been proved unfit for human food within the description given in the statutes appellant relies upon. This question of fact has been fully and fairly tried out, and the pleadings must be held as if conformable to the constitution of such an issue for if not so already are in such case amendable and must be considered as if amended.
This is not an action for damages against the officer for his wrongdoing and, therefore, I respectfully submit objections relative to his mode of procedure are misplaced.
The appellant certainly had an interest in seeing the law enforced and the respondents by founding their action for an injunction upon the alleged assertion of the appellant’s intention and threats to confiscate the goods in question because unfit for food raises the broad issue of the quality of the goods and nothing else save the right on the part of the respondents to sell the goods for purposes of food.
If they are unfit for food then the respondents have no right they can maintain save the property in so much manure, but this latter is not the question.
If the goods were in fact unfit for food no court could properly enjoin appellant or its officers from so asserting or threatening to discharge, or discharging, the duties resting upon them in such case by virtue of the statutes in question.
The chief of these statutory provisions are first part of article 3913 of the Revised Statutes of Quebec, which reads as follows:—
3913. Every executive officer of the municipal sanitary authority or any other officer appointed by it for that purpose, may inspect all animals, dead or alive, meat, fowl, game, fish, fruit, vegetables, grease, bread, flour, milk or other liquids and food intended for human consumption and offered for sale, or deposited in a place or transported in a vehicle for the purpose of being afterwards sold or offered for sale, or delivered after being sold; and, if upon inspection, such animals, liquids or food appear to be unwholesome, putrid, damaged or infected with the germs of disease, or otherwise injurious to health, he may seize the same, carry them off, and dispose of them so that, they shall not be offered for sale or serve as food for man.
And the appellant’s charter, 62 Vict. eh. 68, art. 300, sec. 40, as follows, enabling by-laws to be passed by it.
40. To provide for and regulate the inspection of meats, poultry, fish, game, butter, cheese, lard, eggs, vegetables, flour, meal, milk, dairy products, fruit and other food products; to provide for the seizure, confiscation and summary destruction of any such products as are unsound, spoiled or unwholesome; to prohibit the bringing into the city and the having or keeping such unsound, spoiled or unwholesome products, and to define the duties, powers and attributions of the inspectors appointed for that purpose.
The amendment to this last by section 122 of 4 Edw. VII. eh. 49, art. 7, though important, does not help much here.
In my view I need not trouble with the question of
the validity of the appellant’s by-laws and will assume for the present that they extend as far as these statutes enable by-laws relative to the officers and matters in question to be passed.
I cannot assent to the appellant’s contention that the decision or acts of its officers or of any other officer resting upon either of these statutes is to be held as binding and
final unless it can be shewn that they have acted illegally or in a grossly improper manner.
The statute, to which I am about to refer and analyze as basis alleged for this contention, is above quoted, article 3913, and, for the sake of clearness in expressing my meaning, I will treat it singly, but nearly all I will say anent same can be applied to the other statute above quoted.
Now the first thing the article 3913 does is to enable the officers to inspect. I think they are thereby impliedly empowered to exercise such degree of control over the object to be inspected as will enable an efficient discharge of this duty.
It may not in some cases be necessary for an officer to lay a hand upon it, but if in other cases it is necessary to enable him to discharge his duty to take possession of the goods and lock them up, till he has been enabled to determine the fact, then he is entitled to do so. In all this the greatest care and sound sense has to be exercised, so that no unnecessary inconvenience or damage be caused either to the goods, or the owner’s profitable handling of them, or to his reputation; in short that due dispatch be had and everything be done in a due and orderly manner.
I conceive the officer need not rely only upon his own eyes or sense or skill or knowledge or experience, but
can call in to his aid others possessing these qualifications or some one or more of them, in order to advise and assist him.
If he act unreasonably in any one of these several things I have indicated as within the scope of his power and duty, then he may be amenable to an action of damages at the suit of any one unjustly suffering thereby. In such an action the good faith of the officer and the facts to justify his conduct may constitute a defence.
The question of whether or not in fact the goods were in any such case unfit for human food may be found of little consequence; if he can justify by his good faith and the facts which would lead a man reasonably competent for such an office to have reasonably done, under the like circumstances, as he may be charged with having done.
An honest judgment so formed cannot be lightly set aside and may in that sense answer any action brought against the officer.
Nay more, I am disposed to think due weight should be given not only to that judgment of procedure from hour to hour, but also to the ultimate finding of such an officer when he has duly inspected and declared the goods obnoxious to the statute.
It may form a primâ facie defence in a case in which the owner may have brought an action. He may have to rebut such a finding in taking steps to recover possession of the goods in case the officer has possessed himself of them.
I am not expressing herein any final opinion in regard to all that which may in many conceivable cases concern the officer. I am only illustrating how far I think this judgment of its officer now set up by appellant
as conclusive defence may in an honest case reach, and having due regard to ordinary principles of law protecting officers discharging a duty the law has cast upon them, may justify them personally.
But when we are asked to go further and say that on such a primâ facie finding of fact by a health officer, no matter how unfounded in fact when appearances have been dispelled and thorough investigation has shewn them absolutely without foundation, an owner can be thus and needlessly despoiled of his goods and his legal rights to the enjoyment thereof and profits in selling same, is a thing that ordinary sense of right revolts at.
The language of the statute does not give colour to such a claim.
I admit that the phrase “if upon inspection such * * * food appears,” etc., might under certain circumstances be read as if intended to convey the meaning the appellant contends for.
When the word “appears” is used conditionally in an Act to confer jurisdiction on a court or judge, no doubt the usual legal consequence of a judgment may follow something so appearing to the eyes of the court or judge, and subject to appeal, the appearance thus made in the eyes of the tribunal may be final and the consequence absolute.
But all that is predicated upon the implication that due proof shall have been made. In fact the use of the word there implies what cannot be implied here without attributing to the legislature such a degree of rashness as I will not readily impute.
We know that the conditions of fact it had to deal with did not really render it prudent to entrust
such an absolute ex parte power to men in the ordinary course of events sure to fill the position designated.
If we read the word “appears” as exacting the actual foundation thereof to be the fact and nothing else, we give effect to the purview of the entire Act, do no harm to any one and run no risks of doing so.
Now what must be our decision on the issue of fact?
With the single exception of his intimating to Dr. Grüner, who had expressed a doubt on one point, that experts were not in court to doubt, but to tell what they knew, the learned trial judge seems to have conducted the trial with patience and an intelligent understanding of this issue and of the bearing of the evidence and principles involved in its application thereto and has reached the conclusion of fact that the goods were fit for food. Such finding unreversed must stand here unless there can be shewn demonstrable error in the foundation on which it rests or in the mode of thought adopted by the court conducting the investigation. The extreme importance which I attach to seeing just what shade of meaning an expert giving evidence may have in his mind prevents me passing this incident unnoticed.
With great respect, I think experts who have conducted an elaborate experiment and are relating the result, are not only entitled to give their own actual deductions therefrom, but also bound to express their doubt if there should happen to be a chance of the general bearing of their evidence being taken as affirming or denying a something respecting which they in fact are in doubt. I do not think this was departed from more than accidentally and, therefore, do not
purpose analyzing in detail the evidence adduced on the main issue, but merely to point out in a general way the bearing of what I have said and of the evidence in leading me to come to practically the same result, on this issue of fact, as the learned trial judge.
I have already intimated that in carrying out either of the statutes in question the inspecting officer responsible for the determination of the result of the inspection, need not be that remarkable man possessed of all the knowledge possible to he had on the subject of health and food, but a reasonably competent man who has the right to inquire from others, and thus aided, become possessed as occasion arises of the knowledge necessary to enable him to reach a satisfactory determination in any particular case brought under his notice.
In this case I assume Mr. McCarrey, and not his messenger or assistant Grenier, was as chief food inspector the officer to determine.
There were nearly five thousand cans of the material in question. The goods had been put up in three different classes, of egg yolks, of white of egg, and of egg yolks and white of egg. The food inspector had apparently without informing himself as to the nature or classification of this large collection of canned goods got Grenier to bring four cans thereof. Parts of these were given to the city analyst and part to the provincial bacteriologist.
I am unable to understand how any one could honestly and fairly determine (even if these gentlemen had made reasonably fair reports in respect of what these four cans contained) as the result of such inspection, the quality of the entire goods in question.
It might have been worth his while to know something of the history and ownership and classification of the material, but he ignored such things.
He might have ascertained from the owners their views and had a selection made that was mutually agreeable. It is said the owners’ names were refused, but I do not observe any persistent effort in this direction.
At all events in the absence of any such agreement or more reasonable mode of determining the quality of goods in such a large number of separate cans, I do not think this could be called an inspection such as the Act contemplates.
But let us pass that with the remark that it seems rather a striking illustration of the dangerous consequence apt to flow from a judicial holding that the judgment of such an officer under such circumstances must be taken as final. For my part it is utterly worthless in this case as entitled to any weight of the kind which I have above suggested might be given in a proper case to the finding of the officer. I cannot understand how it came about that the city authorities refused (as at one stage they did) the respondents a chance of further examination.
As further examination was in fact got later on and selections were made of cans to be subjected thereto as fair tests of the average quality of the goods, this misconduct (shall I call it?) or strange misapprehension of duty is only of value now when we come to estimate the evidence of those liable to be influenced by such a bad example.
The case is thus left to us with the evidence adduced on each side in respect of the character of this material as a food.
The appellant’s case rests chiefly on the evidence of the city chemical analyst and the provincial bacteriologist and his assistant, and such indirect support as other witnesses give it. The provincial bacteriologist and his assistant made two reports, of which the first was that acted upon in making the seizure, and the later one was relied upon as furnishing for the trial alleged justifying facts.
The city chemical analyst cannot say the sample he got was, when it came to his hands, unfit for food. And the result he gives of that and a later investigation is that the utmost he can say is, one might have suspicion of the fitness of those frozen eggs for food.
The provincial bacteriologist had as an assistant a young man twenty-five years of age.
The evidence of the latter betrays the errors or weaknesses of youth and thus its value in our present inquiry is so impaired as to be an unsafe guide.
The first report the bacteriologist and his assistant made, though addressed to the Provincial Board, was so clearly intended to instruct the appellant’s inspector that I think he might, if it had been properly founded, have used it and relied thereupon.
This report, however, contains radical error in several particulars. It states “a fresh egg is sterile; it contains no bacteria.” This has been so demonstrated to be erroneous that the provincial bacteriologist has been constrained to admit his error. Creditable as his acknowledgment is, yet the error must detract from the weight one should, but for it, feel inclined to give his later investigations and evidence. And when we find that accuracy of observations of time, temperature and other conditions bearing upon any experiment in attempting to reach a scientific conclusion
regarding such subjects as now in hand are of the highest importance, how can we attach importance to experiments made when these elements necessary to success have not been strictly observed?
As to due regard therefor the experiments on which the first report was based seem to have been made recklessly, and borne the natural result thereof. The basis of the second report is much improved in this respect, but far from being what one should desire.
Then the experiment with a guinea pig was so conducted that every one competent to speak thereon has condemned the method.
When we find a sensational and misleading paragraph founded on that experiment is inserted in this first report for the obvious edification of an officer standing sorely in need of assistance founded on scientific observation, how can we safely rely on what he responsible therefor tells the court?
It is not in the ordinary sense of the term that I suggest the witness is untrustworthy, for I am far, very far, from supposing he wilfully misstates anything, but he seems not to have been sufficiently imbued with the absolute need of anticipating so far as possible all contingencies and adopting in regard thereto every possible effort to exclude error in the result.
I am not oblivious of the use that might be properly made of such an experiment, if and when properly conducted.
Then again in this first report he says he
found masses and clots of material some of which appear to be embryos of chickens in an advanced stage of development. At least such material would not be found in an egg fit to be eaten. Egg shells, hair and other foreign material were also found.
When we find numerous other experiments made by competent men and there appears in their results not only no verification by them of such a picture save as to egg shells, but also decidedly negative evidence in that regard as to the material in question, can we feel sure this officer has dealt fairly by those concerned?
Assuming the absolute truth is told regarding this specific result from two samples blended together, are we to suppose this officer did not know that the question to be solved related to thousands of other cans? Or that an accident might produce such a result in one and could not be fairly made to condemn so great a quantity?
One should have expected as result of such a single finding an inquiry for more material and a suggestion in the report tending to bring about such an inquiry.
I observe that the evidence of this provincial bacteriologist adds to the kind of foreign material found, other specimens than those above enumerated.
And again we have in the same report the following:—
A small part of the eggs from samples A and B were taken and placed in a warm temperature. Putrefaction of a violent nature resulted in about 24 hours, shewing the presence of large numbers of bacteria. Such bacteria were probably introduced at the time of packing, subsequent freezing checking their action.
These are not the same samples as the alleged embryo remains were found in.
We are not told how warm the temperature was which these samples were subjected to —and what of such a phrase as “about 24 hours” duration?
No one can quarrel with the observation made by counsel for the city on the possible weight to be attached
to the evidence of “professional” experts; for no one can in the administration of justice overlook the fact that too often such experts lay themselves open to adverse criticism. I may add, however, that the only witness herein who may properly be spoken of as of that class seems to have given his evidence fairly, and I see no reason why honour and truth should not bind such men just as it does the lawyer in court, for in each of these two classes the man disregarding such obligations fails in the end.
But when we find men, who are in fact experts, make, as is done in this report, the grave mistake of attaching undue importance to one or more isolated facts, it is not safe to rely too far upon them in same case. The situation they have thereby created tends to prejudice their own minds as well as those of others supporting the cause they have espoused.
Thus outlined is the appellant’s case as I see its strength and weakness.
On the other hand men, who seem above reproach, conducted experiments with a degree of accuracy desirable in all such cases, and proved as the result thereof that exposure of the samples which they had got from the goods in question would develop a bad odor or other signs of evil taint, at the end of forty-eight hours, though the product of fresh eggs under similar conditions of exposure would not develop the like odor or taint under sixty hours.
Others, again, speak of samples of the material developing, in a warm room, odor or evil taint in some cases at the end of thirty-six hours, and in others at the end of forty hours.
No one else than the parties to this report has ventured to vouch for so low a record as twenty-four
hours for such like tests to develop such results. The chemical assistant seems willing to indicate as low as “around twenty hours.” I, not they, have used the word “taint;” I have not tried to improve their language, but merely use a general term to cover the many specific ones used by different witnesses.
As these kind of tests by way of taste, smell and appearances and development thereof, seem to be the crucial tests which a number of witnesses qualified to speak would apply, we must ask which set speaking thereto are entitled to credit.
It seems to me the evidence of respondent’s witnesses on this point overbears, in every way we can weigh the evidence, that of these two signing said report and speaking as witnesses for appellant.
Dr. Grüner does not in this regard help appellant much, for his mind seems to have been turned in another direction. He is asked and answers as follows:—
Q. You did not make any comparisons as to the time of decomposition in these eggs?
A. No, sir.
Mr, Vanderleck does not found any evidence he gives in this respect upon any satisfactory data. The surrounding conditions of the material he tested before making any test does not warrant any one in feeling much confidence in the results he got.
The bacteriological views which Dr. Grüner and Dr. Laberge present, I pass for the present.
The result, leaving that phase out of the reckoning is that these frozen eggs seemed to be good when the cans were opened, that the thawing would take some time before the process of decomposition arrested by freezing could begin again to operate, and that in
an ordinary room of seventy to seventy-two degrees Fahrenheit, it would require at least thirty-six hours and probably forty-eight hours to so develop the process as to reach the stage when the material might become unfit for food.
Can we thus say that frozen eggs in such state as found here were, therefore, within any of the terms applied by either of above statutes, unfit for food when seized?
It is what they were then and not what they might become that must be the test applied under these statutes to entitle authorities acting thereunder to confiscate and destroy them.
It is said that in the ordinary course of housekeeping they might within a less period than thirty-six hours become unfit for food, without the true condition becoming noticed.
So may fish, in summer, for example, and many other articles of daily consumption. Doubtless much food goes to waste for want of proper care, and some of it is improperly used, perhaps with detrimental effect. But what has that to do with enforcing the rigorous terms of a law which can only be put in operation when the article has become and is found unwholesome in the hands of those holding it for sale?
The proof adduced relative to bacteria raises problems of an entirely different character. And if science has so developed that there are tests based on bacteriology which can be usefully applied to this problem before us, I must say its application in the hands of the witnesses for appellant in this case has not been so made that a satisfactory conclusion can be reached, much less a conclusion that could justify the confiscation of respondents’ property now in question.
If I understand aright the argument put forward in support of such a conclusion, it is that though there may be bacteria in the egg, they do not exist in such profusion as found in these goods; that the normal effect of freezing is not only to prevent the multiplication of bacteria, but to destroy a very large percentage of such as did exist originally at the freezing; that on the contention of the respondents these goods were continuously frozen from the time of their first packing till opened in Montreal, and yet that when opened and thawed and then submitted to bacteriological tests, they were found to produce an abnormal number of bacteria as compared with those found either in fresh eggs, or eggs not quite fresh, or of such eggs when submitted to a test of freezing and thawing, and hence of necessity the conclusion must be reached that these frozen eggs are unwholesome and unfit for food.
However plausible this contention may be, it is founded upon such purely theoretical assumptions of fact and ill-conducted experiments that, not only the evidence of those competent to speak on the subject, but also, a profound respect for the methods of the men whose genius and patient investigations founded and developed that branch of science named bacteriology, forbid the acceptance of such conclusion.
The mere presence of bacteria in these eggs before being frozen, proves nothing relative to their fitness or unfitness for food at the time when frozen.
The number of bacteria then existent therein must on the evidence have depended on the temperature they have been previously subjected to, and other conditions under which they were handled before being frozen. Of all these conditions we are left in
absolute ignorance. The prevalence of bacteria of the same kind in that part of the world where the eggs were produced and handled, as in the City of Montreal, is an assumption of fact without anything in the evidence to found it upon as scientific fact.
The evidence herein varíes as to the effect upon bacteria of freezing the material in which they may be found. According to some evidence herein the consequential effect thereof also varies.
Then, again, variation is found in the resistant power of bacteria not only in those of the same kind, but also by a comparison of the effect of freezing on different kinds.
There is apparently also great variation of result according to the degree of cold and duration thereof. I imagine also a serious result in the way of variation might be found produced by sudden and unusual changes of temperature though continued below freezing point.
There is no proof of what degree of cold was applied from the time of freezing till the tests made in Montreal; nor of the variations therein; nor of the effect of such variations upon bacteria of any kind, much less a varied assortment; nor of the effect thereon of such long continued freezing as is assumed to have existed; nor of the possible results in case of the freezing having ceased for a few hours, for example, or on more than one occasion.
Thus it seems to me that the assumption of fact, as to freezing being destructive of bacteria, which is the foundation of the argument, vanishes.
There are many other conceivable possibilities needless to dwell upon which might have to be reckoned with before accepting as proven the theory that
of necessity there must have been a diminution of numbers or of vitality in the bacteria to be found immediately before the samples tested were taken for experimental purposes.
Then from the moment these samples were taken charge of for such purposes did any single one of those making the tests therewith now relied upon take such precautions, by so anticipating all possible contingencies, as to ensure that there could not be a rapid multiplying of bacteria resulting from even the reduced numbers, if we are to assume the reduction in numbers had taken place as claimed?
Neither the temperature of the rooms were kept, nor the exact length of time taken in thawing, nor the mode of thawing, nor the surrounding conditions during all that time, are so accurately given as to lay a proper foundation by means of the results reached for any scientific deduction, relative to the quality of this material.
It was not, I venture to say, by such methods of observation that the science of bacteriology was founded and has been to the present time developed.
I need not dwell on details when I find the methods in these regards so unsatisfactory, for without scientific treatment of the subject no scientific knowledge can be furnished us.
I may remark that Mr. Vanderleck, one of the appellant’s own witnesses, ventured the opinion that though freezing destroyed many bacteria yet they afterwards increased in numbers in the frozen material. If I understand him aright the increase was going on, but such additional crop was of a weakened vitality. The same witness told the learned trial judge that the increase under other conditions might be a
doubling every twelve or twenty-four hours. Whether he meant a continuous geometrical progression of this kind was to be expected I know not. The rapidity of possible production manifestly is great. But the degree of heat applied thereto in any event must affect the result, and in absence of knowledge on that vital point, how can any proper estimate be made, or comparison be founded on such data?
Guesses about room-heat during night and day are poor substitutes for such knowledge.
Again as to the kind of bacteria, is it on such a basis worth while estimating the effect of a finding of and comparison of the numbers of bacilli of colon variety, when on the evidence before us it is doubtful whether or not such may not be found in fresh eggs?
Indeed, the surprising truth seems to be that knowledge on the subject of eggs seems to have been beyond the ordinary range of a great many expert bacteriologists, shocking as such a discovery may be to people dependent on officers of that class for protection.
We get back to the practical tests of smell, taste and appearance upon which the weight of evidence seems against appellant.
Whether or not a food which is liable to become unwholesome within so brief a period after being thawed out, should or should not be sold without being subject to regulation designed to protect the consumer is a something with which we have in a strictly judicial sense no concern; especially as it is beyond the contemplation of the statutes in question.
In view of the many suspicions aroused by the inquiry, it may be that further inquiry of a more searching and scientific kind may be desirable and the dangers, if any, guarded against, from such food being
improvidently used, but that is for others than we to enter upon. It does not fall within our province.
It may be that the injunction is too wide in restraining statements which fall within the province of those having on behalf of the city to deal with such problems. They ought to be allowed the utmost freedom to state the actual facts even if arousing a suspicion. A just and reasonable suspicion may exist relative to all canned or frozen foods and the subject of use thereof may well bear re-examination in order to avert the results of carelessness on the part of the producer or merchant, or rashness begotten of ignorance on the part of the consumer or his servants. All we can say is the defence is not proven.
The assumption I have made that the health officer, because filling such office as the by-law designates, falls within the Acts, may be found, if one had the whole by-laws and legal history thereof before him (as I am not sure I have), in fact not legally correct. My assumption, however, cannot affect the result on the main point on which I think it desirable the case should turn and be decided.
The appeal should be dismissed with costs.
Since writing the foregoing I have assented to the memo, substituted by my brother Anglin amending formal judgment below.
Anglin J.—In order to succeed in this appeal the defendant must satisfy us either that its action in attempting to seize and destroy property of the respondents as unfit for human food was justifiable, or that it is not subject to review and control by the courts. It takes both positions. It alleges that the plaintiffs’ eggs were in fact unwholesome and unfit for
human food and that their seizure and confiscation was justified under the provisions of the Montreal City Charter and by-laws and also under the Quebec “Public Health Act,” and it maintains that its health officer acted under the latter statute and that it clothes him with a discretionary power of such a nature that its bonâ fide exercise either may not, or should not be interfered with by the courts.
Without so deciding, because that seems to be unnecessary for the determination of this appeal, which may be more satisfactorily disposed of on broader grounds, but assuming in favour of the appellant:—
1. That there was a seizure of the plaintiffs’ eggs sufficient in substance and in form;
2. That food such as that here in question, put up in sealed cans and of such a character that its fitness for human consumption can be determined only by expert analysis, falls within the purview of the legislation invoked;
3. That the objections taken to the inspection by the health authorities, on the grounds that it was made by the testing of samples, that the samples taken were too few, and that the analyses of them were not made by the health officer in person, are ill-founded;
4. That the discretionary power conferred by the “Public Health Act” on the executive officer of a local Board of Health cannot, or should not, be controlled or interfered with by the courts, unless attempted to be exercised malâ fide; and
5. That the defendant’s plea was not demurrable because it omitted to allege that the plaintiffs’ eggs “were held or offered for sale for food,” I am of opinion that this appeal must fail.
By art. 300, sec. 40, of its charter (62 Vict. eh. 58), the City of Montreal is authorized:—
To provide for the inspection of meats, poultry, fish, game, butter, cheese, lard, eggs, vegetables, flour, meal, milk, dairy products, fruit and other food products; to provide for the seizure and summary destruction of any such products as are unsound, spoilt or unwholesome; to prohibit the bringing into the city of unsound, spoilt or unwholesome products and to define the duties, powers and attributions of the inspectors appointed for that purpose; and to prevent any animals or meat brought into the city from being sold within its limits for consumption before it has been inspected and stamped in the manner prescribed by the council at the cost of the city.
By sec. 122 (4 Edw. VII. ch. 49, art. 7), the municipal corporation is empowered
in the interests of public health, to prohibit the adulteration of any substances intended for food; to prohibit the sale of any adulterated or unwholesome food and order the confiscation, or the confiscation and destruction thereof, as the case may be; to define what constitutes food for the purpose of this paragraph; what shall be considered an adulteration thereof; to enact that a third offence against any by-law passed in virtue of this paragraph shall render the offender liable to imprisonment not exceeding two months at the discretion of the recorder, in addition to the usual penalty.
In the exercise of the authority thus conferred, the city council passed its by-law No. 105, creating a Board of Health. This by-law contains the following clause:—
Sec. 8.—The said Board of Health is hereby empowered to appoint such health officers as may be deemed necessary for superintending or carrying out the orders of the board.
Sec. 17.—:No person shall sell or have in his possession for sale any unwholesome meat, poultry, game, eggs, fish, unripe or decayed fruit or vegetable that might in any way be injurious to health; and any member or officer of the Board of Health is hereby authorized to seize and confiscate all such meat, poultry, game, eggs, fish, fruit or vegetable; the entire cost of removing any of such deleterious articles as may be found in any premises; to be paid by the delinquent in addition to the penalty provided in section 56 of this by-law.
Under this legislation the jurisdiction of the Board of Health and its officers to seize and confiscate the articles of food with which it deals depends upon their being “unsound, spoilt or unwholesome.” It is
only in respect of food which is in fact unwholesome that the statute confers any authority; it is only for the seizure and confiscation of food which is in fact deleterious to health that the civic by-law provides. In order to justify the action of the local Board of Health and its officers under these provisions, the defendant must prove to the satisfaction of the court that the eggs in question were unwholesome and unfit for food. The burden of doing so is upon it. After exhaustive inquiry the learned trial judge found that that burden had not been discharged—that
the preponderance of evidence received in this case demonstrates that the frozen eggs in question were not unwholesome, putrid, damaged, or affected with germs of disease or otherwise injurious to health.
Because they dismissed the defendant’s appeal on other grounds, the majority of the learned judges of the Court of King’s Bench found it unnecessary to pass upon this question of fact.
Careful attention to the evidence during the argument and subsequent study of it with the aid of the supplementary factum furnished by counsel for the appellant have not convinced me that the conclusion of the learned trial judge in regard to the quality of the eggs was erroneous. If the testimony does not clearly establish that when seized the eggs were wholesome and sound, it certainly falls short of what would be necessary to justify an appellate court in deciding that their unsoundness and unwholesomeness had been so clearly demonstrated that the finding of the trial judge should be reversed. In so far, therefore, as the defendant attempted to justify the action of its health authorities under the provisions of its charter and by-law No. 105, it has failed to do so.
Article 3913 of the Revised Statutes of Quebec,
“Public Health Act,” which the defendant also invokes, reads as follows:—
Art. 3913.—Every executive officer of the municipal sanitary authority or any other officer appointed by it for that purpose, may inspect all animals, dead or alive, meat, fowl, game, fish, fruit, vegetables, grease, bread, flour, milk or other liquids and food intended for human consumption and offered for sale, or deposited in a place or transported in a vehicle for the purpose of being afterwards sold or offered for sale, or delivered after being sold; and, if upon inspection, such animals, liquids or food appear to be unwholesome, putrid, damaged or infected with the germs of disease, or otherwise injurious to health, he may seize the same, carry them off, and dispose of them so that they shall not be offered for sale or serve as food for man.
It is contended for the appellant that the discretionary power with which the legislature has by this enactment clothed the executive officer of the municipal sanitary authority, or any officer appointed by it for the purpose, if exercised bonâ fide, is not subject to curial control; that the method and sufficiency of the inspection is entrusted to the officer’s judgment; and that the courts should interfere only if mala fides is alleged and proved, or if it is shewn that there has not been any real inspection. I assume in the defendant’s favour that this is the correct view of this statute, notwithstanding the arbitrary and drastic character of the power which it confers and the absence from it of any provision for compensation, in case of mistake, to the unfortunate owner who loses his property. But the seizure and confiscation must be the act of the executive or other designated officer himself, as the result of his own adverse judgment upon the character of the condemned food; it must be undertaken and carried out upon his responsibility; it must in fact and reality be an exercise by him of the power entrusted to him. That is the sole safeguard which, upon this interpretation of the statute,
the legislature has provided for the protection of the owner whose property is subjected to the risk of summary confiscation. To that protection at least he is entitled; and the burden of shewing that he had the benefit of it rests upon the defendant which has assumed responsibility in this case for all that Dr. McCarrey did.
A study of the record has satisfied me that, in directing the seizure and destruction of the plaintiffs’ eggs, Dr. McCarrey, “the executive officer of the municipal sanitary authority,” did not act on his own judgment or responsibility, but merely carried out the instructions of the Board of Control. He consulted that Board at every step in his proceedings. He did nothing except under its immediate direction. In his notices to the storage company, prepared under the direction of the legal advisers of the city by instructions of the Board of Control, he refers to the inspection as having been made “by the sanitary authorities of the City of Montreal,” and he indicates that “further action (is to) be taken by the health authorities,” In his testimony he refrains from stating that he acted in any way on his own judgment or responsibility; on the contrary he emphasizes his constant submission to the directions of the Board and the steps taken by it which resulted in his action. Indeed, had it not been that counsel for the plaintiffs in the course of cross-examination put to him an incautious question, we would have been left in ignorance of what Dr. McCarrey’s personal opinion as to the quality of the eggs had been. In its plea the defendant makes no allusion to art, 3913 (R.S.Q.) of the “Public Health Act.” It is not suggested that the seizure and condemnation were made under the authority of that
provision. The proceedings are there justified under the provisions of the city charter and by-laws. The seizure is spoken of as the act not of the executive officer of the Board, but as that of the city itself. Throughout the defendant accepts responsibility for everything that was done. In my opinion it is not possible on the evidence before us to contend successfully that Dr. McCarrey exercised or intended to exercise the powers conferred on him by art. 3913 (R.S.Q.) of the “Public Health Act.” The attempted seizure and confiscation of the plaintiffs’ eggs was undertaken and proceeded with by the order and on the responsibility of the Board of Control acting under the authority of the city charter and by-law. There never was any condemnation of them or direction for their seizure and destruction by Dr. McCarrey as his own act, on his own responsibility, or as the result of his own conviction that they were unwholesome and unfit for food. Assuming that the courts should not review or interfere with the conduct of a competent officer proceeding bonâ fide under art. 3913 (R.S.Q.) of the “Public Health Act,” the defendant cannot in this case invoke that provision to oust the jurisdiction of the courts to prevent the seizure and destruction of the plaintiffs’ eggs which it has failed to shew were unwholesome or unfit for human food.
Neither can it uphold the legality of the action of its officers by appealing to the order of the provincial Board of Health, which purports to be made under art. 3875 (R.S.Q.) of the “Public Health Act.” That order directs the municipal corporation
d’appliquer, dans un delai de trente-six heures, l’article 3913 de la dite loi, c’est-à-dire prendre les mesures voulues pour que les dits œufs ne puissent être délivrés à la consommation, non seulement dans Montréal
mais de même dans tout la territoire de la province, que le conseil d’hygiène doit également protéger.
The power conferred on the provincial Board of Health by sub-section 3 of article 3875 (R.S.Q.) of the “Public Health Act” is
in the interests of public health to compel municipal councils to exercise and enforce such of their powers as in the opinion of the Board of Health the urgency of the case demands.
Article 3913 (R.S.Q.) of the “Public Health Act” does not confer any power on municipal councils. It empowers an officer as persona designata to take a certain course of action. The provincial board is not given jurisdiction to order that official to exercise his powers. Moreover, if the provincial board had authority to direct the executive officer of a local board to act under art. 3913 (R.S.Q.), in order to carry out such a direction, there must have been a condemnation of the food by him on his own responsibility and as his own act before it could legally be seized and destroyed under that article. Treating the order, which is addressed to the municipal corporation, notwithstanding the distinct reference in it to art. 3913 (R.S.Q.) of the “Public Health Act,” as a mandate requiring the corporation to act under the provisions of its charter and by-law, which it would be within the power of the provincial board to direct, the appellant again encounters the insuperable difficulty that that power is exercisable only in respect of food which is in fact bad and unfit for use. The burden of establishing the existence of that condition precedent to the jurisdiction of the local Board of Health is upon the defendant and, as already pointed out, it has failed to make the requisite proof.
For these reasons I would dismiss this appeal with costs.
The injunction granted by the Superior Court contained the limiting words
so far as may relate to any acts or proceedings heretofore had or begun or to any condition or conditions heretofore existing in connection with the said goods.
By its judgment the court of appeal excised these words from the injunction. This might lead to the conclusion that the court of appeal forbade the municipal authorities to discuss the present condition of the plaintiffs’ eggs or to institute new proceedings for their seizure and condemnation. That cannot, I think, have been intended in view of the facts that the court of appeal maintained the plaintiffs’ action on the grounds that the seizure by the municipal officers had been defective and that the defendant’s plea was technically insufficient, and that there was before it no evidence as to the condition of the eggs when the appeal was heard and disposed of. The evidence bore only upon the condition of the eggs up to the time of the trial — now some two years ago. We know nothing as to their present condition. In order to make it clear that the injunction does not extend to present or future conditions, or to any future proceedings which may be lawfully instituted, I would restore the limitation placed by the learned trial judge upon its terms. The injunction also restrains
the defendant, its officers, agents and servants from making any threats or statements respecting the state of the said merchandise.
In connection with any further proceedings which the civic health authorities may be advised to institute it may become necessary for them to discuss the history of the plaintiffs’ eggs and their condition from
time to time. Such discussion may also be necessary and proper should the plaintiffs bring an action for damages against the defendant by reason of the proceedings taken by it of which further prosecution has been enjoined. Under these circumstances it would seem to be advisable to omit from the injunction the provision lastly above quoted. I would, therefore, modify the judgment in appeal by substituting for the paragraph in which the injunction is declared permanent, the following:—
Doth declare the injunction permanent; doth accordingly enjoin and restrain the defendant, its officers, agents and servants from seizing, destroying, taking possession of or in any way interfering with the plaintiffs’ eggs under or in pursuance of any acts or proceedings begun or had before the 7th day of April, 1911, or otherwise than by due process of law; doth order that the mise-en-cause do take notice hereof and govern itself accordingly.
Brodeur J.—L’intimée prétend dans son factum que la Cour Suprême n’a pas le pouvoir d’entendre cette cause parce qu’elle est pendante devant le Conseil Privé.
Cette question de jurisdiction avait déjà été soulevée par motion mais la cour étant également partagée la motion avait été renvoyée.
Il appert que l’appelante aurait obtenu de la Cour du Banc du Roi la permission de porter cette cause devant le Conseil Privé, et aurait fourni le cautionnement nécessaire. Rien cependant n’aurait été fait pour poursuivre cet appel au Conseil Privé. La copie du dossier ne fut pas préparée ni transmise, la requête en appel ne fut pas déposée au Conseil Privé et l’intimée n’y produisit de comparution.
L’appelante aurait alors le 4 mars, 1912, fait signifier à l’intimée un désistement de son appel au Conseil
Privé et l’aurait produit au greffe de la Cour du Banc du Roi. Elle aurait ensuite fait les procédures nécessaires pour porter son appel devant cette cour.
J’ai été d’opinion quand la requête en cassation est venu devant nous que le désistement avait mis fin à l’appel au Conseil Privé et qu’il n’était pas nécessaire, comme le prétendait l’intimée qu’il fût produit au bureau du Conseil Privé vu que le dossier n’y avait pas été transmis (Practice, Cameron (2 ed.), p. 430). Je vois que le régistraire du Conseil Privé en est arrivé à la même conclusion.
Agissant sur une suggestion qui lui avait été faite lors des plaidoiries sur la requête en cassation l’appelante a transmis au régistraire du Conseil Privé l’avis suivant en date du 12 mars, 1912:—
17, Victoria Street,
19th April, 1912.
City of Montreal v. John Layton & Co., Ltd., and The Gould Cold Storage Company.
This is an appeal by the City of Montreal from a judgment of the Court of King’s Bench (Appeal Side), for the Province of Quebec.
We beg to enclose a formal notice addressed by the solicitors for our client, the City of Montreal, to yourself advising that the city has desisted from, and wishes to withdraw, this appeal.
According to our instructions, the city has desisted from the appeal to His Majesty in Council and has taken steps to appeal to the Supreme Court of Canada. It appears that, notwithstanding the filing of a notice of desistment in the Court of King’s Bench, and the allowance by that court of the security on appeal to the Supreme Court of Canada, a motion to quash the appeal in the Supreme Court has been made by the respondents, one of the grounds being that, once security had been given and allowed in an appeal to His Majesty in Council, the appeal cannot be withdrawn except in accordance with the Privy Council Rules.
We are instructed to request that you will, under Rule 32, notify the Clerk of the Court of King’s Bench (Appeal Side), by letter of
the lodging of the enclosed notice of withdrawal. We trust that the non-arrival of the Record will not be considered to prevent the application of Rule 32.
We are, Sir,
(Sgd.) Blake & Redden.
Judicial Committee of
The Privy Council.
Le régistraire du Conseil Privé a alors envoyé la lettre suivante au Greffier de la cour d’appel:—
Privy Council Office.
Downing Street, London, S.W.
19 April, 1912.
City of Montreal v. John Layton & Co., Ltd., and another.
I enclose a copy of a letter received from Messrs. Blake and Redden, the London agents of the appellants, with a copy of the document referred to in that letter. I have informed them that I do not see my way, under the Privy Council Rule 32, to which they refer, to notify you formally that the above appeal has been withdrawn, because the Record not having arrived, I have no official notice that it has been admitted. With a view to assist them, however, I enclose these documents, which will shew you that it is not the intention of the appellants to proceed further with the appeal to His Majesty in Council and I think this will probably attain the object that they have in view.
I am, Sir,
Your obedient servant,
Registrar of the Privy Council.
The Clerk of Appeals,
Court of King’s Bench,
Cette correspondance me confirme dans l’opinion que le désistement d’un appel au Conseil Privé peut être produit devant la Cour du Banc du Roi aussi longtemps que le dossier n’est pas transmis en Angleterre. Il ne peut pas y avoir de doute alors que cette cause n’est plus pendante devant le Conseil Privé et
que nous avons jurisdiction pour en disposer au mérite.
Au mérite je trouve, après avoir étudié soigneusement la cause, que l’appel ne peut pas être maintenu. Je dois ajouter cependant que c’est avec la plus grande hésitation que j’en suis venu à cette conclusion et le fait est que si le juge instructeur qui a eu l’avantage d’entendre les témoins, de peser les contradictions nombreuses que nous relevons dans la preuve en était arrivé à une autre conclusion que celle qu’il a adoptée cela aurait été plus conforme à mon opinion, mais du moment qu’il trouve que les œufs en question étaient propres à l’alimentation je ne peux pas facilement renverser son jugement. La législature a donné à l’officier exécutif de l’autorité sanitaire municipale des pouvoirs bien étendus sous les dispositions de l’article 3913 des Status Refondus de Québec. Il peut après inspection saisir et confisquer des aliments qui paraissent préjudiciables à la santé. Il parait avoir une très grande discrétion à ce sujet, mais dans le cas actuel l’inspecteur, le Dr. McCarry, n’a pas lui-même exercé cette discrétion et il n’y a aucun document au dossier établissant qu’il a agi de sa propre autorité et sous les pouvoirs qui lui sont accordés par la loi. La cité parait plutôt avoir procédé suivant les dispositions de son règlement municipal. Or pour qu’elle puisse réussir il faut que les aliments saisis soient de fait impropres à l’alimentation. Comme je l’ai dit plus haut dans le cas actuel le tribunal de première instance en est venu à la conclusion que les aliments en question dans cette cause sont propres à l’alimentation.
Un mot maintenant quant à l’injonction. Il est évident que les termes dans lesquels elle a été émise
pourraient donner lieu à une interprétation erronée. Alors afin de faire disparaître tout doute à ce sujet je concours dans la rédaction qui est suggérée par mon collègue M. le Juge Anglin.
L’intimée a donc gain de cause et l’appelante doit être condamnée à payer les frais du présent appel.
Appeal dismissed with costs.
Solicitors for the appellant: Ethier & Co.
Solicitor for the respondents: S. L. Dale Harris.
 1 D.L.R. 160.
 Q.R. 39 S.C. 520.
* Note.—The notes of reasons delivered on the motion are reported at pages 424-430 in Cameron’s “Supreme Court Practice” (2 ed.). See also the note (ib. p. 436) as to the effect of the order by the judge of the court below extending the time for appealing to the Supreme Court of Canada after the expiration of the time limited.
 10 Q.B.D. 309.
 9 L.G.R. 1098.
 40 Can. S.C.R. 281.
 44 Can. S.C.R. 579.
 41 Can. S.C.R. 331.