CASE AND COMMENT
BERGER v. CUXOFF
Promise to purchase accepted on Sunday –
Lord’s Day Act 1952
R.S.C. c. 171, s. 4 –
Sunday Observance Act 1941 R.S.Q.
c. 309, s. 2 & 3.
The case of Berger v. Cuxofff brought to notice a question which has been
controversial in Quebec jurisprudence for many years. The decision stands
alone in that it validated a transaction performed on a Sunday, upon the
authority of the Quebec Sunday Observance Act,2 as opposed to the federal
Lord’s Day Act.3
The facts of the case are as follows: the defendant listed her property for
sale with a real estate broker, to whom the plaintiff submitted an offer to
purchase the property which was, according to the evidence, accepted by the
defendant on a Sunday. Notwithstanding a notarial protest, the defendant
refused to perform. The plaintiff, concluding that the promise of sale be set
aside, prayed that the court award him damages. The defendant alleged that the
offer to purchase, being accepted on a Sunday, was null and void in virtue of
section 4 of the federal Lord’s Day Act.
The relevant statutory provisions are:
The Lord’s Day Act, section 4: .
It is not lawful for any person on the Lord’s Day, except as provided herein, or
in any provincial act or law, now or hereafter in force, to sell or to offer for
sale or purchase any goods, chattels, or other personal property, or any real estate,
or to carry on or transact any business of his ordinary calling, or in connection
with such calling, or for gain to do, or employ any person to do on that day any
work, business, or calling.
The Sunday Observance Act, section 3:
No person shall on Sunday, for gain, except in cases of necessity or inquiry, do
or cause to be done any industrial work, or pursue any business or calling, or give
or organise theatrical performances or excursions where alcoholic liquors are sold,
or to take part in or be present at such theatrical performances or excursions.
Mr. Justice Challies concluded that the special exemption contained in section
4 of the federal Act permitted the. operation of the provincial law, if there be
any such law (as there is in Quebec), to regulate the performance of certain
activities on Sundays. The Quebec Sunday Observance Act, section 2, permits
such activifies, subject to the exemptions of s. 3, as are not prohibited by other
provincial legislation. Section 3 forbids, except in certain circumstances, indus-
trial work and the pursuit of any business or calling. The acceptance of the
‘[1958] R.L. 361 (C.S.).
21941 R.S.Q. c. 309, s. 2 & 3.
31952 R.S.C. c. 171, s. 4.
McGILL LAW JOURNAL
[Vol. 5
promise to purchase, was held not to fall within the restrictions of section 3
and was, therefore, validly signified on a Sunday. Consequently, the defendant
was held liable in damages.
On March 1, 1907, the Lord’s Day Act was proclaimed. It was set up in
such a manner that past or future provincial legislation could introduce, alter,
or exclude most of the prohibitions of the federal Act,4 but there were four
kinds or “profanation” that could not be validated by a province. Even these,
however, would not be regarded as offences under the Act if any permissive
local legislation, antedating Confederation, was in force at the time of the
passage of the federal Act.
Quebec is one of the few provinces which substantially altered, within its
jurisdiction, the effect of the federal Act. On February 28, 1907, (one day
prior to the coming into force of the Dominion enactment), Quebec enacted a
statute providing that the provincial laws respecting Sunday observances were
to be in force. It further stated that the people of the province should remain
entitled to do on Sunday anything not forbidden by such laws and to enjoy
on Sunday all the liberties of action recognized by the custom of the province.5
The Sunday Observance Act is still en sigueur. The Quebec statute contains
nothing to prevent the sale of real estate on Sunday, provided that- none of the
parties may be described as exercising their business or calling. There appears
to be no authority stating that the acceptance of an offer to purchase, made
by a non-trader to another non-trader, will be outlawed by virtue of the terms
of the Lord’s Day Act. The Act explicitly states that any provincial Sunday
observance legislation antedating the federal statute should prevent its application
within that province: the Quebec statute is all-embracing as regards
the
observance of the Sabbath in the province, and its terms, not those of the Lord’s
Day Act, should be applied to regulate any activities on that day.
Mr. Justice Challies, in rendering judgment to validate the completion of
a real estate contract by private agreement on Sunday, correctly based his
decision on the terms of the Provincial Act. This decision, however, may lead
to some confusion in Quebec jurisprudence, unless the foundation of the Court’s
conclusion is understood and appreciated. No specific reference was made as
to why the Quebec statute over-ruled the prohibitions appearing
in the
Dominion Act (i.e. Lord’s Day Act, section 15). Had this been express in the
Court’s reasoning, the judgment would appear clearly justified. The importance
of its inclusion, and the seriousness of its omission, must be pointed out.
4The Lord’s Day Act, s. 15, dismembers the jurisdiction of the federal power in
to Sunday
legislative measures
respect of those provinces which bad
observances:
in regard
Nothing herein shall be construed to repeal or in any way affect any provisions
of any Act or law relating in any way to the observance of the Lord’s Day in
force in any province of Canada when this Act comes into force.
51941 R.S.Q. c. 309, s. 1.
No. 3]
CASE AND COMMENT
197
Quebec courts have had occasion to render several judgments on the same
question as that raised in Berger v. Cuxoff, namely the validity of real estate
transactions performed on Sunday. The case of Choquette v. Bourque, is part-
icularly on point. The plaintiff, owner of immoveable property, instituted an
action to compel the defendant to sign a deed of sale; the latter set up as his
defense the fact that the acceptance to purchase property, made under private
writing, had been signed on a Sunday. The matter was held to come within the
prohibitions of section 4 of the Lord’s Day Act and, consequently, was held
invalid. In a more recent case, Gershevich Realty Sales Co. v. Greenberg,7 the
question of real estate dealings on Sunday was again before the courts. Here
a sale of property had been perfected between two non-traders by avoiding the
intermediary real estate agent to whom the defendant had given an exclusive
option. The agent, claiming his commission on the sale, was met by the defense
that the option, having been signed on a Sunday, was null and void under
section 4, and it was held that he was obviously asserting his business function
in an activity prohibited under the restrictions of the Sunday Observance Act.
The provincial legislation was not mentioned in either of these cases. With
respect it is submitted that Choquette v. Bourque ought to have been reversed
and the Quebec Sunday Observance Act applied. Similarly the decision in
Gershevich v. Greenberg would have been reasoned the same way whether
or not the Lord’s Day Act had been applied. We humbly maintain, however,
that here again the Quebec statute ought to have been employed. Had the court
in Berger v. Cuxoff more clearly asserted the grounds upon which it correctly
referred to the authority of the Provificial Act, the erroneous application of the
Lord’s Day Act in prior decisions might have been more readily visible. The
holding merits clarification if it is to be followed in in subsequent decisions.
Quebec’s Sunday observance legislation should be distinguished vis-i-vis legisla-
tion respecting Sunday observance in other provinces which have not taken
advantage of the option given them by the federal parliament in the Lord’s Day
Act and in which there was no pertinent legislation on the statute books prior
to the proclamation of the Federal Act.
R. JAMES PLANT & BRAWm GELFAND*
6(1932) 70 C.S. 254.
7[1957] C.S. 265.
*Of the Board of Editors, McGill Law Journal; second year law students.
