decision of the Court of Appeal of Saskatchewan in Canadian Bank of Commerce v. Cudworth Rural Telephone Company, Ltd., reversing the Court below.1 The respondent company was incorporated under the Rural Telephone Act (c. 96 of the Revised Statutes of Saskatchewan) which requires companies formed under it to be incorporated and registered under the Companies Act (c. 76) and provides (s. 46) that "except in so far as varied by this Act the provisions of the Companies Act shall apply to every company organized under" the Telephone Act. S. 14 of the Companies Act confers on every Saskatchewan company the same capacity as if the company had been incorporated under the Great Seal. On the strength of this enactment the company issued promissory notes, although s. 3 of the Telephone Act, which enumerates at length the powers of companies formed under it, gives no authority to do so. The Court below, following the Ontario case of Edwards v. Blackmore, held that the general capacity given by the Companies Act remedied the silence of the Telephone Act, but the Court of Appeal reversed the judgment, holding that s. 14 of the Companies Act did not apply, or, even if it did, the provisions of the Companies Act must be held to be subject to the special limitations of the Telephone Act. If so, it may easily be held that the Companies Act would give capacity to act outside the Province, while the special Act would still subject the company to the doctrine of ultra vires regarding the nature of its transactions as opposed to the place of operation.

Dominion Control of Provincial Companies.-The precise extent of Dominion powers over provincial companies is a matter of difficulty. Obviously in the exercise of any of its specific powers the Dominion has full legislative power to prohibit their operations, to regulate their conduct and impose taxation on them. But there is inevitably doubt as to the powers of the Dominion under the specific heads of regulation of trade and commerce, and criminal law, and on both heads the Judicial Committee has shown the tendency to restrict closely the field of Dominion power. The question arose in a concrete form on the issue whether s. 4 of the Insurance Act, 1910, of the Dominion was intra vires. That section in effect prohibited the transaction of insurance business by any company or person unless under licence from the Dominion Minister of Finance, and was pronounced invalid because it operated to

2

1 (1922) I W.W.R. 287; B. Thompson, Can. Law Times, vol. xlii, pp. 497 ff. 'Attorney-General for Canada v. Attorney-General for Alberta, [1916] 1 A.C. 588./

deprive individuals of civil rights within the Provinces, and as regards provincial companies attempted to destroy their status-the counterpart to the decision in The John Deere Plow Company case as regards provincial power to affect the status of Dominion companies. Further, it asserted an authority to regulate by a licensing system a particular trade in which Canadians would otherwise have been at liberty to engage within the Province and such powers could not be treated as regulation of trade and commerce. It was also impossible to secure the same result by use of s. 70 of the act which imposed a penalty on persons carrying on insurance without a licence, since this was not true criminal legislation, but an effort to effect indirectly what directly was pronounced invalid.'

Provincial Powers over Companies of other Provinces.-If, as seems to be clearly the case, a provincial company has no more at most than capacity to accept authority ab extra to act outside the provincial limits, then it follows that by refusing such authority any Province may prevent a company formed in another Province from carrying on operations within it, although, of course, such refusal in no way affects the status of the company."

Foreign Companies.-The question of Dominion and provincial control over foreign companies, not being alien companies, has not raised so much controversy as that of the position regarding alien foreign companies. The constitution ascribes to the Dominion exclusive power regarding naturalization and aliens, and this authority was invoked in the controversy over the Insurance Act, 1910. The question was there asked whether s. 4 of the Act operated to prevent an insurance company incorporated in a foreign State from carrying on business in Canada without a licence from the Minister of Finance, if such carrying on of the business was confined to a single Province. The Judicial Committee replied that the Dominion Parliament had the power to require a licence in such a case if the legislation were properly framed, and gave as the heads authorizing such legislation the Dominion powers regarding the regulation of trade and commerce and of aliens. It is instructive to note this

3

1 The attempt of the Dominion to secure control over insurance by an amendment of the Criminal Code by c. 26 of the statutes of 1917, provincial companies being exempt, must be deemed of dubious validity in view of the decision In re Board of Commerce Act, [1922] 1 A.C. 191. Cf. Garrett, Can. L.T. vol. xxxviii, pp. 469 ff. a Bonanza Creek Gold Mining Co. v. The King, [1916] 1 A.C. 566, at pp. 578, 583, 585.

• Attorney-General for Canada v. Attorney-General for Alberta, [1916] 1 A.C. at P. 595.

!

coupling of heads; it definitely disposes, taken in conjunction with Cunningham v. Tomey Homma,1 of the wide language of the Union Colliery Co. v. Bryden, which in terms ascribed to the Dominion exclusive authority in all matters directly concerned with the rights, privileges and disabilities of aliens resident in the Canadian Provinces. The Insurance Act, 1917, of the Dominion based on the judgment, requires alien companies to take out a licence, incorporates them as Dominion companies, and regulates their contracts. Would such legislative enactments override provincial laws contrary to their provisions? The answer must surely be in the negative, since an affirmative reply involves the absurdity that the Dominion can thus enable aliens to escape rules binding even on ordinary Dominion companies. As against the Provinces it seems that the most the Dominion can do is to give alien companies the status of Dominion companies, and thus ensure them all advantages which such companies have.

1 [1903] A.C. 151, at p. 157.

[1899] A.C. 580, at p. 587.

TRIAL BY JURY.

[Contributed by MISS MONICA M. GEIKIE COBB.]

THERE is a tacit assumption in the familiar phrase "right to trial by jury," which is greatly at variance with the facts so far as civil actions are concerned. For this reason it is of interest to examine the true position at the present day, and the changes by which it has been brought about.

Such an assumption is based, as indeed most generalizations may be said to be, upon a foundation of fact, and in this case perhaps upon a wider, deeper and more solid foundation than usual. For it is eight centuries and more since the first introduction of the system into England, and not much short of that period since the method was established as a matter of right in the provisions of Magna Carta. Since then there has been no question, so far as the common law courts are concerned, as to trial by jury being an integral part of procedure. Variations there have been, and perhaps there must continue to be, in the jury's precise function, whether as protector of the weak, upholder of peace and order, or opponent of unjust and oppressive laws; but as to its existence there has been no question. Actions at Chancery, it is true, are and have throughout the history of equity been heard by a judge alone, whatever the nature of the case, be it the construction of the terms of a deed, or an action alleging fraud (for the difference has been one as to the procedure of the Court, not of the nature of the action to be tried). But whether it be from the technical nature of the cases, or from whatever cause, the lay litigant has been more familiar with the common law courts, and hence perhaps has grown the somewhat possessive feeling towards the jury.

Be this as it may, such was the position until the Common Law Procedure Act of 1854. By that Act, the introduction of which was preceded by a Royal Commission, an innovation was brought about in that it was provided that, where both parties consented to such a course, an action might be tried by a judge sitting alone, and further rendering reference to arbitration compulsory in cer

tain matters of account. But the Act went no further (and this for reasons to be stated hereafter) than to provide for these two classes of actions, leaving trial by jury as the normal procedure. The introduction, however, of even these two exceptions was the first step in a line of development leading to far-reaching results, such results being in the main brought about through the agency of rules of procedure rather than through legislative enactments as such.

The next step is to be found in the Judicature Act of 1873. By ss. 56 and 57 of that Act provision was made for the reference of matters for inquiry and report, and also of matters requiring prolonged examination of documents or accounts, or scientific or local investigation. But still, nothing in this Act or in the rules scheduled to the Acts of 1873 or 1875 altered the main rule.

The critical change came with the Rules of the Supreme Court, published in 1883 (rules 2-7 of Order XXXVI). By rule 2 it was provided that either party should be entitled to a jury in actions for slander, libel, false imprisonment, malicious prosecution, seduction or breach of promise of marriage; by rule 3 that cases assigned to the Chancery Division should be tried by a judge sitting alone unless otherwise ordered; by rule 4 trial by a judge alone might be directed in cases which, previous to the passing of the Judicature Act, 1873, could be so tried without the consent of the parties; by rule 5 a similar method of trial was provided for cases within s. 57 of the Act of 1873; by rule 6 that in any other cause or matter upon the application of any party for a trial with a jury an order should be made for a trial by a jury; and by rule 7, that unless rules 2 or 6 apply, the mode of trial should be by a judge alone.

When these rules are considered corporately it is clear that a complete reversal of the former position has been brought about. In the first place, the cases in which a party is entitled to a jury as of right and upon mere notice are limited to those enumerated in rule 2, and, secondly, there is to be trial by a judge alone unless some special reason exists for a jury; in other words, trial by a judge alone is the rule, by a jury the exception.

A further limitation crept in during the redrafting of the rules from time to time. Rule 2 was abolished and a new rule substituted by which, unless an application is made for a jury within the time prescribed by (new) rule 6, the hearing will be by a judge alone. This means that even where a jury is still of right, that right will be lost unless an active step is taken for its exercise.