Recent Cases
NEGLIGENCE – MOTOR VEHICLES –
FAILURE TO USE AVAILABLE
SEAT BELTS AS CONTRIBUTORY NEGLIGENCE. Yuan V. Farstad,
(1967), 66 D.L.R.
(2d) 295, 62 W.W.R. 645; MacDonald v.
Kaiser, (1968), 68 D.L.R. (2d) 104.
The advent of the seat-belt as a regular accessory in automobiles
and the considerable publicity regarding safety generated by Ralph
Nader in the United States and former M.P. Hewart Grafftey in
Canada has, perhaps not unexpectedly, led to a significant amount
of jurisprudence in connection with the non-use of this safety
feature by plaintiffs seeking damages for personal injuries and death.
In Yuan V. Farstad, Munroe, J.,1 found that “the collision was
caused solely by reason of the negligence of the defendant driver…-2
but this was not an end of the matter. Based on the evidence of a
retired police captain and a physician
(both, incidentally, were
Americans), Munroe, J., found that “lap seat belts are effective in
reducing fatalities and minimizing injuries resulting from automobile
accidents.” 3 Accordingly, Munroe, J., determined that
the deceased, even if he had been wearing a seat belt, may and probably
would have suffered injury to his chest and internal organs, correctible
by surgery, but he would probably not have been ejected from the car
and would probably not have suffered fatal injuries. 4
On this basis he concluded that
where a motorist fails to use an available seat belt and where it
is shown
that the injuries sustained by him would probably have been avoided or
of less severity had he been wearing a seat belt, then the provisions of
s. 2 of the Contributory Negligence Act are applicable. 6
The judge’s general conclusion was that a person must reasonably
anticipate that he might be involved in a collision if driving in a
city and that a reasonable and prudent driver of a car in a city should
make use of available seat belts. More specifically, the judge only
apportioned 25% of the fault which related to the damages upon
.’Of the British Columbia Supreme Court.
2 At p. 300.
3At p. 301.
4 Ibid.
5 R.S.B.C. 1960, c. 74.
6At p. 302.
No. 2]
RECENT CASES
the plaintiff and 75% upon the defendant driver who had been held
100% responsible for the accident itself.
Mr. Justice Dubinsky, 7 who delivered the opinion in MaoDonnell
v. Kaiser, strongly disapproved of the opinion of Mr. Justice Munroe.
Convinced that “the effectiveness of seat belts is still in the realm
of speculation and controversy” and influenced favorably by the
view of J. Murray Kleist that no doctor can say exactly which
damages would be suffered if the victim were to wear a seat belt
against the situation where he would not,8 he refused to hold
that a motorist who drives carefully and lawfully
has not discharged his ‘duty as a reasonable man, simply because he has
not fastened to his person the seat belt.9
The argument of Dubinsky, J., is sorely reminiscent of the argu-
ment advanced by some civilians that “moral” damages should not be
awarded because of the difficulty of assessing them in terms of
dollars and cents. The argument is unconvincing –
difficulties of
assessment or apportionment should not be permitted to deny the
availability of the right or the defence itself. The stronger argument
against the “non-use of seat belts as contributory negligence” position
is surely that there is neither a statutory nor a common law duty
to use seat belts since, as can be readily proved, most motorists do
not in fact wear available belts or harnesses ; o however, at least
one American court has concluded that
there is a duty, based on the common law standard of ordinary care, to
use available seat belts independent of any statutory mandate.”1
It will be interesting to see whether the Quebec courts determine
that a bon pare de famille wears his seat belt or not. There is clearly
room for such a defence in a jurisdiction where contributory negli-
gence is a natural phenomenon, requiring no statutory basis for its
existence. The argument that the fault goes to the damages and
not to the delict itself is immaterial.
R.I.C.
7 Of The Nova Scotia Supreme Court.
8 Seat Belt Defense – An Exercise in Sophistry, (1967), 18 Hastings L.J. 613.
o At p. 108.
10 See the article by John P. Blackburn, Seat Belts and Contributory Negligence,
(1967), 12 So. Dak. L.R. 130, particularly at pp. 140-141.
11 Bentzler v. Brown, (1967), S4 Wis. (2d) 362, 149 N.W. 2d 626. See also
Mortensen v. Southern Pacific Co., (1966), 53 Cal. Rptr. 851; Kavanagh v.
Butorac, (1966), 221 N.E. 2d 824 (Ind. App.); and Brown V. Kendrick, (1966),
192 So. 2d 49 (Fla. App.).
McGILL LAW JOURNAL
[Vol. 14
PUBLIC INTERNATIONAL LAW: SOVEREIGN
IMMUNITY: DIS-
TINCTION BETWEEN PUBLIC AND PRIVATE ACTS; Allan Construction
Ltd. V. Le Gouvernement du Vgndzuela, [1968] R.P. 145; Venne
v. Le Gouvernement de la Rdpublique Dgmocratique du Congo,
[1968] R.P. 6.*
One of the more interesting by-products of Expo ’67 was the
opportunity it gave to the Quebec Superior Court to decide on two
separate occasions a controversial question of public international
law which has never been properly answered by Canadian courts:
to what degree should foreign states be allowed to claim immunity
with respect to their commercial activity?
The view that sovereign immunity is absolute finds its origin
in the nineteenth century economic policy of laissez-faire which
established a clear differentiation between private enterprise and
the state’s sphere of activity. As governmental functions gradually
expanded
into the economic realm and “socialist” governments
established state trading companies, however, many countries adopted
instead a theory of qualified immunity which distinguished between
private acts of state (jure gestionis) and public or political acts
(lure imperii),: only the later received the benefit of immunity.
Proponents of this more modern view felt that immunities should
depend on function rather than status; as well, additional remedies
were opened up in the national courts for those plaintiffs with
claims against a sovereign state. Acceptance of this view was far
from unanimous, however. It was not until 1952, for example, that
the United States government in the Tate letter 2 took the position
that immunity should be restricted to jure imperii, and the question
is still not regarded as settled by the American courts.3 In Great
Britain, moreover, the theory that absolute immunity extends to
commercial operations is still the almost unchallenged jurisprudence
* On appeal, the decision of the Superior Court was confirmed by the Court
of Queen’s Bench, Montreal, No. 10601, October 18, 1968.
‘As early as 1903 the Belgian Cour de Cassation adopted this view in S.A.
do chemins de fer Liageois-Luxembourgeois v. Etat Neerlandais [1903]
Pasicrisie belge I. 294. For a recent survey see Schmitthoff, The Claim of
Sovereign Immunity in the Law of International Trade, (1958), 7 Int. Comp.
L.Q. 452.
226 Dep’t. of State Bull. (1952), p. 984.
3K.R. Simmonds, The Limits of Sovereign Jurisdictional Immunity: the
Petrol Shipping Corporation and Victory Transport Cases, (1965), 11 McGill
L.J. 291. See also R.A. Falk, The Role of Domestic Courts in the International
Legal Order, (Syracuse, N.Y., 1964), pp. 139 et seq.; Sigmund Timberg,
“Sovereign Immunity, State Trading, Socialism and Self-Deception” in Essays
on International Jurisdiction, (Ohio, 1961), pp. 40 et seq.
No. 2]
RECENT CASES
of the courts.4 Finally, in two recent decisions of Canadian federal
courts,5 the question was raised but was left undecided.
After a lengthy review of the leading doctrinal authorities, both
of the Quebec Superior Court judges in the cases under discussion
unequivocally adopted the theory of restricted sovereign immunity.
In the V6n6zuela case, Mr. Justice Reid further diminished the scope
of the immuity by classifying it as a derogation from the normal
exercise of a court’s jurisdiction and hence only to be applied in
very clear circumstances; 11 he thus had little difficulty in holding
that, by entering into a contract for the construction of a pavilion
where restaurant and other concessions were to be exploited, the
Venezuelan government was engaging in acts of a private nature.
le principe que tout gouvernement 6tranger puisse venir au
Accepter
Canada pour y faire affaires et encaisser des centaines de milliers de
dollars des Canadiens ou des visiteurs temporaires sous la protection de
l’immunit6 de la souverain6t6 des pays 6trangers devant les Cours de justice
canadienne serait certainement aller au-delh du respect politique et diplo-
matique qui actuellement devrait faire la seule base de l’application d’une
th~orie d’innunit6 pour les pays 6trangers devant nos tribunaux, eu 6gard
aux activit6s directement commerciales de diff6rents pays dans les activit~s
mondiales.7
Similarly, in the Congo case, Leduc, J., described the contract
between a local architect and the Congolese sovereign as a purely
private act,8 the rationale being that, by appointing an accredited
chargg d’affaires with specific instructions to have someone design
a pavilion, the sovereign freely and implicitly accepted the exercise
of its rights and obligations in the local jurisdiction.
The distinction between the public and private acts of a sovereign
accepted by the Quebec courts is undoubtedly an artificial one;
“public” acts have come to include only those which used to be
done in the laissez-faire era, while all others are classified as “private”.
Yet, in the absence of the abolition of sovereign immunity as a general
4 Simmonds, loc. cit, pp. 291-292; E.J. Cohn, Waiver of Immunity, (1958), 34
B.Y.B.I.L. 260; Rahimtoola v. Nizam of Hyderabad, [1958] A.C. 379, [1957]
3 All E.R. 441.
5 Flota Maritima Browning de Cuba S.A. v. The Steamship Canadian
Conqueror and The Republic of Cuba, [1962] S.C.R. 598, 34 D.L.R.
628; Chateau-Gai Wines Limited v. Le Gouvernement de la Rdpublique Fran-
Vaise, (1967), 61 D.L.R. (2d) 709 (Exch.).
(2d)
6 At p. 175.
7 [1968] R.P. 145, at p. 177.
8At p. 8.
McGILL LAW JOURNAL
[Vol. 14
rule of international law, 9 the restricted sovereignty view at least
has the merit of making litigation between individuals and foreign
states a little less one-sided; the equity can perhaps be better ap-
preciated in a delictual situation where the plaintiff has had no
advance warning that he may eventually be claiming from an immune
sovereign. It is of course well to remember that even if the plaintiff
has been accorded the right to sue the foreign sovereign, this is a
far cry from being permitted to execute the judgment on the property
of the sovereign.1 0
D.H.T.
LABOUR RELATIONS –
CERTIFICATION PROCEEDINGS – WHETHER
EMPLOYER ENTITLED TO HEARING – Komo Construction Inc. V.
Commission des Relations de Travail du Quebec, [1968] S.C.R. 172.
Among the large and increasing number of labour law decisions
rendered in Quebec courts during the past few years have been
several which dealt with the character of the hearing an employer
must be afforded in certification proceedings. With the decision of
the Supreme Court in Komo Construction Inc. V. Commission des
Relations de Travail du Qugbec,’ it would appear to be settled that
in such circumstances a full-scale hearing need not be held in order
to comply with the rules of natural justice and particularly the
principle of audi alteram partem. As long as an employer has been
given the opportunity to put forward his position to the Board there
can be no complaint by him for the reason that his argument was
not oral and that he was not physically present for all certification
proceedings.
In Komo Construction the employer had sought a writ of prohi-
bition against the Labour Relations Board, complaining that in the
certification proceedings before that body the association of employees
9Advocated by Judge Lauterpacht for one: The Problem of Jurisdictional
Immunities of Foreign States, (1951), 28 B.Y.B.I.L. 220.
10 See, for example
loc. cit., pp. 53 et seq.
1 [1968J S.C.R. 172.
the United States experience outlined
in Timburg,
No. 2]
RECENT CASES
had failed to produce with its petition the documents required
by the Labour Code2 and that, as it (the employer) had been granted
no opportunity to be heard, the principle audi alteram partem had
been violated. The Superior Court ordered the issuance of a writ
of prohibition but the Court of Queen’s Bench, Appeal Side, annulled
the writ for the reason that the decision on certification was one
within the sole jurisdiction of the Board.
A unanimous Supreme Court dismissed the appeal from the Court
of Queen’s Bench. Mr. Justice Pigeon, who wrote the notes for the
entire Bench, held, first, that as long as the Board is within the
area of its jurisdiction its decision on a matter of law was final, no
matter how erroneous that decision might have been. Relying on
the decisions of the Supreme Court in the White Lunch3 and Galloway
Lumber 4 cases, His Lordship stated:
l6gislatives A l’adresse
A moins de voir dans chacune des prescriptions
de la Commission des relations de travail une restriction A sa juridiction,
on ne saurait pr6tendre qu’elle a outrepass6 sa competence en d6cidant
qu’une disposition legislative a 4tR6 observ~e. Une pareille” interpretation
irait h l’encontre d’un principe fondamental du Code du travail qui est
de confier exclusivement A la Commission le soin de statuer sur les demandes
d’accr~ditation ce qui implique que c’est A elle qu’il appartient de juger
dans chaque cas si l’on s’est conform6 aux prescriptions du Code du travail
a cet 6gard. 5
With respect to the audi alteram partem issue His Lordship held
that this principle does not mean that a hearing need always be
granted, but that the only requirement is to give a party “l’occasion
de faire valoir ses moyens.” In this case the Board had not proceeded
improperly in deciding that, on the point of law raised by the
employer, it did not require to hear any more from the latter before
rendering its decision. Mr. Justice Pigeon relied here on the judgment
of the Supreme Court in Forest Industrial Relations Ltd. v. Inter-
national Union of Operating Engineers, Local 882,6 a case different
from Komo Construction on the facts as in Forest Industrial there
2 R.S.Q. 1964, c. 141, as amended by 13-14 Eliz. II, S.Q. 1965, c. 50 and the
Civil Service Act, 13-14 Eliz. II, S.Q. 1965, c. 14.
3 Bakery and Confectionery Workers V. White Lunch Limited, [1966] S.C.R.
282, 55 W.W.R. 129, 56 D.L.R. (2d) 193.
4 Galloway Lumber Co. Ltd. V. The Labour Relations Board of British
Columbia, [1965] S.C.R. 222, 51 W.W.R. 90, 48 D.L.R. (2d) 587.
G At pp. 174-175. On this proposition that when the Board is within its
jurisdiction it is alone competent to act, Komo Construction was most recently
cited with approval in Fraternitg Unie des Charpentiers et Menuisiers d’Am-
rique, Local 2894 v. Commission des Relations de Travail du Quebec, C.S.M.
755,927 (unreported), September 5, 1968. (Mr. Justice W.A. Johnson.)
6 [1962] S.C.R. 80, 37 W.W.R. 43, 31 D.L.R. (2d) 319.
McGILL LAW JOURNAL
[Vol. 14
had been a physical hearing in which the employer had participated,
but which nevertheless held that “it is not a departure from the
rules of natural justice for the Board to hold that the debate had
gone on long enough and that it was time to stop.” 7
The audi alteram partem debate on certification proceedings
was recently reviewed by Associate Chief Justice Alan B. Gold of
the Quebec Provincial Court.8 Judge Gold allowed that where the
Board exercised purely administrative functions there need be no
hearing and, conversely, when the function exercised is judicial a
hearing must be held but referred to two opposing schools of thought
on the matter of certification proceedings. The first school argues
that certification is a purely administrative matter and that as
there is no litigation involving the employer and the Board or the
employer and the association, in an adversary sense, no hearing need
be held. The other school takes the view that certification proceedings
involve judicial or at least quasi-judicial functions on the part of
the Board and that the employer, who is affected by its decision, is
an interested party and must be heard.
Those who argue in favour of the requirement of a full-scale
hearing find support in the Court of Queen’s Bench decision in
Beacon Plastic Ltd. v. C.R.O., 9 particularly in the notes of Mr.
Justice Choquette, who based his view on the proposition that the
employer is actually a party to the certification proceedings.’ 0 This
view was opposite to that expressed by Montpetit, J., in the Superior
Court decision in Beacon Plastic.1 Mr. Justice Montpetit, in deciding
that a hearing need not be held in such circumstances, stated that
no provision of Quebec positive labour law required a hearing on
certification proceedings 12 and also warned that in considering
7 Ibid., at p. 83 (Judson, J.).
s See Regards sur l’Evolution Jurisprudentielle et la C.R.T., [1967] R.D.T. 222.
9 [19641 R.D.T. 25.
10 Ibid., at p. 33. See also Hougho Products Ltd. V. C.R.T., [1965] R.D.T. 252,
[1965] B.R. 561; Quebec Labour Relations Board v. J. Pascal Hardware
Compcny Ltd., [1965] B.R. 791 and B. Starck, Aspects Juridiques du Syndi-
calisme Qudbecois: L’Accrdditation, (1966), 44 Can. Bar Rev. 173 at pp. 203
et seq.
11 [1964] R.D.T. 14 at pp. 22-23.
12 See Donatelli Shoes Limited v. Labour Relations Board, [1964] C.S. 193
at pp. 200 and 201 (Brossard, J.) approving the judgment of Montpetit, J.,
in Beacon Plastic. In Donatelli Shoes, Brossard, J., at page 202, goes further
than Mr. Justice Montpetit and suggests that the law not only does not require
a hearing but actually absolves the Board from- holding one. Compare Star
Glass Limited ,v. Labour Relations Board, [1963] R.D.T. 372 at pp. 875-376
(Puddicombe, J.).
No. 2]
RECENT CASES
whether, notwithstanding this, a hearing was necessary, one should
to the maxim audi alteram
not give “une port~e d~raisonnable”
partem.13
Proponents of the school which maintains that on certification
proceedings a hearing need not be held formulate their position by
employing, in addition to the view expressed by Montpetit, J., in
Beacon Plastic, arguments based on the nature of the Board’s
functions and the status of the employer on certification proceedings,
and the criterion of sufficient knowledge which includes the question
as to whether any prejudice might or did result from the failure
to hold a hearing.
In L’Union International des Journaliers (617) v. La Laiterie
Dallaire Limitge,14 Judge Gold stated the case from the viewpoint
of the nature of the functions performed by the Board and the
role of the employer in certification proceedings when he stated
obiter:
it
In proceedings on a demand for certification, we sit as an administrative
tribunal exercising at most quasi-judicial functions and the hearing,
which we conduct in this connection, if we choose to call one, and we
are not obliged to do so, is our hearing and no one else’s. Furthermore,
in certification proceedings, we may or may not call the employer to our
hearing but, if we do so, it is only to assist us in conducting our inquiry.
He is not there as a party en cause against whom a decision will be
is true that the employer will be affected by the
rendered. While
if one is issued, the fact remains that, at the
issue of the certificate
time of our hearing and prior to the issue of the certificate, he has no
relationship with the Union, the issue before the Board being solely whether
or not the Union in its demand has complied with all legal requirements
for certification and this is an issue solely between the Board and the
applicant. On certification proceedings, there is no lis between the Union
and the employer in the sense of the civil law. To allow an employer, of
right, to contest an application, considering himself a party en litige,
is contrary to the intent and purposes of the act would have the effect
of nullifying the value and effect of the certification proceeding.15
The argument based on “sufficient knowledge” and the matter
of prejudice is built on the premise that the dictates of justice are
13 See also Doric Textile Mills Limited v. Commission de Relations Ouvriares
de Qudbec, [1964] R.D.T. 377 at p. 381 (0uimet, J.). Compare Broadway
Paving Co. Ltd. v. Syndicat de la Construction de Montrial, [1967] R.D.T.
506 at p. 508.
14 [1964] R.D.T. 449.
15 Ibid., at p. 470. See also United Steelworkers of America v. Continental
Can Company of Canada, [1964] R.D.T. 65 at pp. 85 et seq. (obiter) and
Commission des Relations de Travail de Quebec v. Civic Parking Centre Ltd.,
[1965] B.R. 657 at p. 662, per Casey, J.
McGILL LAW JOURNAL
[Vol. 14t
satisfied if a party has had his position made known to the Board
which, although it convened no hearing of the various parties,
was sufficiently aware of their attitudes and views. In Commission
des Relations de Travail du Quebec v. Civic Parking Centre Ltd.'(
Mr. Justice Casey expressed such an opinion:
Audi alteram partem does not necessarily entitle the person claiming its
benefits to a physical appearance with all that that implies. In some instance
the rule will be satisfied the moment the Board has knowledge of the
protesting party’s point of view.
Here the employer stated its objections very clearly in writing and the
contrary not having been alleged it must be assumed that the Board honestly
and fairly investigated the charges and then, as the result of its investigation,
held them unfounded. On the whole I am satisfied that the facts alleged
by the employer disclose adequate compliance with the rule.
In the light of Komo Construction, therefore, it would appear
that this certification issue has been settled and the first school,
in favour of a restrictive view of audi alteram partem, has been
vindicated. The precise reason for the Supreme Court view combines
some of the elements set forth above but is expressed by Mr. Justice
Pigeon in the following manner:
Il ne faut pas oublier que la Commission exerce sa juridiction dans une
mati~re oiL gfn6ralement tout retard est susceptible de causer un pr6judice
grave et irrfm~diable. Tout en maintenant le principe que les rfgles fonda-
mentales de justice doivent Atre respect~es, il faut se garder d’imposer un
code de proc6dure A un organisme que la loi a voulu rendre maitre de sa
procfdure. 17
R.L.
16 [1965] B.R. 657 at p. 662. See also MacDonald Drum Manufacturing
Corp. v. Commission des Relations de Travail de Qudbec, [1967] R.D.T. 94 at
pp. 98-99 (Johnson, J.); Canadian Ingersoll Rand Company Limited v. C.R.T.,
[1966] R.D.T. 513 at p. 526 (Dorion, C.J.) and Donatelli Shoes Limited v.
Labour Relations Board, [1964] C.S. 193 at pp. 202-203.
17 At p. 176.
No. 2]
RECENT CASES
CRIMINAL LAW
–
INDECENT ASSAULT
–
ACCUSED FALSELY
REPRESENTING HIMSELF AS A DOCTOR
COMPLAINANTS CON-
– WHETHER CONSENT OB-
SENTING TO INTIMATE TREATMENT
TAINED BY FRAUD AS TO THE NATURE AND QUALITY OF THE ACT
Cr. Code, ss. 141, 230, 562, R. v. Maurantonio, (1968), 65 D.L.R.
2d) 674.
–
Problems of consent in sexual cases often have a tendency
toward the abstract and metaphysical,
lending themselves to a
number of equally logical although not totally satisfactory answers.
In the recent case of R. v. Maurantonio,1 the Ontario Court of
of Appeal once again wrestled with the issue of what exactly sec.
141(2) of the Crimal Code envisages when it speaks of consent
“obtained by false and fraudulent representations as to the nature
and quality of the act.”
The accused had represented himself to the general public,
including the complainants, as a licensed physicians duly qualified
to practice medicine. His conduct toward the complainants was to
intimately examine the “patients” and, in certain cases, administer
“treatment”.
It appears that there was nothing lewd or sexual
per se about the examinations and that a similar type would be
given if they were carried out by a physician, in the light of the
medical problems of the complainants. The Crown Attorney in
fact admitted “that if the accused had been a qualified doctor,
there was nothing in his conduct toward and his ministrations to
the women in respect of whom he was charged and convicted to
make him guilty of indecent assault.”‘2
The issued stated in its simplest terms is whether fraud as to
a collateral matter such as identity can taint the “act” sufficiently
to become fraud as to its nature and quality, thereby vitiating the
consent. In other words, wherein lies the distinction between the
type of fraud which induces a consent that would not have other-
wise been obtained but which is none the less a valid consent
(fraud in the inducement), and the type of fraud which prevents
any real consent from existing (fraud in the factum) ?
On appeal, the court upheld the conviction (Laskin, J.A., dis-
senting). Mr. Justice Hartt stated:
1 (1968), 65 D.L.R. (2d) 674.
2Ibid., at p. 675. It is worthy of note that indecent assault of a female ‘by
definition involves the necessity of circumstances of indecency. Quaere: if the
accused “acted in an entirely professional manner” (p. 678), can this element
be said to be present?
3 See Papadimitropoulos v. R., (1957), 98 C.L.R. 249.
McGILL LAW JOURNAL
[Vol. 14
In my opinion, the words “nature and quality of the act” as used in s.
141(2) should not be so narrowly construed as to include only the physical
action but rather must be interpreted to encompass those concomitant cir-
cumstances which give meaning to the particular physical activity in
question … The false representation which led to consent was that what
the appellant was about to do was to conduct a medical examination or
administer treatment. Since the representation went to the nature and
quality of the act to be performed the consent of each of the complainants,
even if given in the full understanding of what physical acts the appellant
was about to perform, was “obtained by false and fraudulent representa-
tions as to the nature and quality of the act.”4
Mr. Justice Laskin was of an entirely contrary opinion:
In this state of the matter, it was incumbent on the Crown to prove
deceit by the accused as to the “nature and quality” of the very acts
charged against him; whether or not they constituted medical treatment
in the abstract would merely be a refined way of challenging professional
qualification, and to raise this in the context of s. 141(2) would, in my
opinion, be begging the question to be decided. 5
The decision would appear to be in conformity with inferences
that might be drawn from obiter statement of the Supreme Court
in Bolduc and Bird v. The Queen.6 Nevertheless, the broad inter-
pretation of “nature and quality of the act” to include its extrinsic
as well as intrinsic character is a development which further blurs
the distinction between it and fraud in the inducement.
H.S.
4 (1968), 65 D.L.R. (2d) 674 at p. 682.
5 Ibid., at p. 679.
6 [1967] 3 C.C.C. 294, 2 C.R. (N.S.) 40, 63 D.L.R. (2d) 82. This decision is
cited by Laskin, J., as authority for his findings, but not mentioned by the
majority.
