1919 following year the rule was amended to permit of the examin- Harvey, C.J. ation of not only an officer but a servant of the corporation but at the same time the provision for reading the examination against the corporation was repealed. Just prior to the coming into force of our Rules of 1914. our practice was the same as that of Ontario prior to the change I have just mentioned as having been made in 1903. The Commission framing the present Rules had before it the situation presented by the facts and decisions to which I have referred. Rule 234 authorizes the examination of a party or any present or past employee of a party who has knowledge of the matter in issue. This is an immense extension of the right of the opposite party to obtain information and it applies in all cases without regard to whether the party is a natural or an artificial person. But when it comes to the use of the information so obtained as evidence, it is necessary to make restrictions and Rule 250 authorizes the use in the case of a natural person being a party of his own examination only as admissions against him. In the case of a corporation which itself cannot speak, someone must speak for it, and the Rule authorizes the corporation itself to name, in the first instance, the person whom it wishes to speak for it and by whose admissions it is willing to be bound. Leave, however, is given to a Judge to name a different officer if he considers that a proper one has not been named. The right which is given to a corporation to select its own mouthpiece for the purpose of making admissions is one which ought not lightly to be taken away as the consequences may be very serious for it. No doubt if a corporation were to select an officer whom it would be difficult and expensive to examine when it had an officer who could be conveniently examined and who could give the requisite information it might be proper to set aside its selection. In England, though that might be the only way in which the information could be obtained, it appears that the Court McDougall & Secord, Ltd. V. Merchants Bank of Canada 1919 & Secord, Ltd. Harvey, C.J. would not interfere with the company's discretion and substitute an officer to whom there could be any reasonable objecMcDougall tion; see Manchester Val de Travers Paving Co. v. Slagg [1882] W.N. 127, 47 L.T. 556. Under our present practice there is no necessity to do this for the purpose of obtaining information, the primary purpose of discovery, and there would therefore appear to be little justification for interfering with the corporation's selection when honestly and reasonably made. Merchants Canada Then more regard too, perhaps, ought to be paid to the corporation's wishes when the examination is a viva voce one and the questions depend on the answers to previous ones, than when they are formally submitted to the company which can then have some knowledge and perhaps control over the ans wers. In Pelican Oil and Gas Co., Ltd. v. Northern Alberta, etc. Co., Ltd., supra, our Court refused to substitute another officer though it was shown that the one selected by the corporation was absent and could not be examined for some time, the corporation protesting and raising a suggestion of a conflict of interest between itself and the officer proposed to be substituted. In the present case, the defendants have selected the most available local manager and the one who has had charge of the mortgage upon which the defendants rest their. claim since a few days after it was given and who, though perhaps having no personal knowledge of any negotiations or undertakings prior thereto would naturally in the course of his duties have familiarized himself with the facts, connected therewith. It appears to me that there is no room for considering that the selection by the defendants has been other than an honest and bona-fide one. There are no affidavits before me, but it is apparent that the defendants may not have the same confidence in the former manager as in the present one. It was the former who was responsible for bringing about the circumstances causing this litigation; he has been removed from the important branch of this city to that of a small town in another part of the province, which could hardly be thought to 1919 McDougall & Secord, Ltd. V. Merchants Bank of be a promotion. If he had ceased to be in the employ of the Harvey, C.J. defendants there is no doubt he could not be imposed on them, and of course if they seriously object they might consider the advisability of dismissing him, so that to order that he be substituted might be doing him a grievous injury. No objection is or could be made to his being examined and all the information in his possession obtained, the only objection being that what he says should not be taken as an admission made by his employers. When it is looked at in that way it seems that only in the most exceptional cases should the Court make an order for substitution against the corporation's will. In the Welsbach Case, supra, Collins, L.J. said: "The party who wishes to obtain the information can if he chooses subpoena the person who can give it, and if his evidence is relevant it will be admitted at the trial. But, as my brother Rigby has pointed out, it is no part of the duty of the plaintiffs to assist the defendants in getting up evidence in support of their case. When once you grasp the fundamental principle, that the answer of the company's officer is the answer of the company and not of the individual, the whole thing follows logically." When as under our practice the witness can be examined before trial so that no risk need be taken in calling him as a witness the case is much stronger. The last remark of Collins, L.J. states the principle that the only person to be selected must be one who can speak for the company. As was said by Jessel, M.R. in the Berkley Case, supra, as a member he is one of the company, and it is to be observed that only officers, who presumably are members, or other members of the company are subject to examination under the English Rule. A local manager of a bank may be an officer in one sense but in view of our Rule which says officers or persons employed there is room for doubt whether he comes within the term "officer" as used therein. Certainly there seems no reason why he should be necessarily a member or shareholder of the bank. I think it would be no answer to say that the bank itself proposes a local manager for it is putting forward a mouthpiece and I see no reason why it could not authorize anyone to speak for it that it wishes. Canada Harvey, C.J. 1919 McDougall & Secord, Moreover in offering this local manager it is showing its good faith by offering the person most available and one in whom it has confidence and one most conversant with the facts, unless possibly the other local manager whom it does not feel disposed to accept as its mouthpiece. I must therefore decline to interfere with the defendant's selection. Application dismissed. Emery, Newell, Ford & Co., solicitors for the plaintiff. ant. 1919 Jur 7 [APPELLATE DIVISION] REX EX REL SCHOEPPE 7. WEINFIELD Intoxicating Liquors-The Liquor Act, 1916, Ch. 4-Conviction of Druggist-Appeal by way of Stated Case—Jurisdiction of Appellate Division-Information and Conviction-Definiteness of Date-Charge and Trial of More Than One Offence-Necessity of Stating Particular Offence on Which Conviction Based-Right to—Evidence -Sufficiency-Admissibility of Evidence of Similar Acts -Mens Rea-Necessity of Evidence of-Burden on Accused to Prove That He Believed He Acted Lawfully in Filling Prescription-Penalty-Effect of S. 40 as Enacted by S. 55 (12), Ch. 4, 1918. An appeal by way of a stated case lies to the Appellate Division from a conviction of a druggist for a violation of The Liquor Act, 1916, ch. 4 (Reg. v. Robert Simpson Co. (1896) 26 O.R. 231, 2 C.C.C. 272, and Rex v. Oland, (1903) 8 C.C.C. 206, followed). Sec. 40 of The Liquor Act in its present form (as enacted by sec. 55 [12], ch. 4, 1918), which specifically covers offences under sec. 23 without exception, has superseded subsec. 2 of sec. 23. On the hearing on a charge against a druggist of unlawfully selling intoxicating liquor in other than bona-fide prescriptions evidence of similar acts is admissible (per Harvey, C.J., Simmons, J. concurring). Semble when it is once established that a druggist has supplied liquor on what is not a bona-fide prescription, it is incumbent on him to show that he did so honestly in the well-founded belief that the prescription was bona-fide (per Harvey, C.J., Simmons, J. concurring). A druggist was convicted on an information charging that "during the month of February, 1919, at Calgary, aforesaid, being a chemist or druggist did unlawfully sell intoxicating liquors on other than bona fide prescriptions from a registered practitioner or practitioners or dentists * *." The conviction was in the same form as the information. On a stated case it was held, per Harvey, C.J., Simmons, J. concurring, that there was no ground for objection to the information or conviction on its face, that the date of the offence was as definite as it could be made, since there was evidence of sale under 46 prescriptions under any one of which the magistrate might have been disposed to convict, and that the defendant was not prejudiced by the failure of the conviction to state in respect to which sale the conviction was made. Morcover it appeared from the evidence that the informant was prosecuting for a breach of the Act in selling on one in particular of said prescriptions and, under the circumstances shown in the evidence, there was ample evidence to support a conviction for so doing. Therefore, for said reasons and because of those referred to in the above paragraphs the conviction was affirmed. McCarthy, J., dissenting, held that the conviction should be quashed because the information charged more than one offence and because, even if this were not so, the charge coupled with the verbal particulars given at the hearing rendered the proceedings void as the magistrate really had pending before him at least four charges at the same time and convicted the defendant of "his said offence" without indicating which particular offence he convicted on. McCarthy, J. held Rex v. Aitken, II Alta. L.R. 573, [1917] 2 W.W.R. 781, 28 C.C.C. 227, to be indistinguishable and adhered to the views expressed by himself in Rex v. McManus [1918] 3 W.W.R. 3, 30 C.C.C. 122. Appeal by accused by way of stated case from a conviction by a police magistrate under The Liquor Act. Conviction affirmed, McCarthy, J. dissenting. The appeal was heard by HARVEY, C.J., BECK, SIMMONS and MCCARTHY, JJ. (Beck, J., owing to illness took no part in the judgment.) J. McKinley Cameron, for accused, appellant. Cur. adv. vult. HARVEY, C.J.-The accused was convicted by police magistrate Sanders of Calgary upon a charge described in the information as follows: "That during the month of February 1919 at Calgary aforesaid being a chemist or druggist [he] did unlawfully sell intoxicating liquors on other than bona fide prescriptions from a registered practitioner or practitioners or dentists, contrary to section 23, sub-section 1 of The Liquor Act, of Alberta." |