English and American Bankruptcy Acts contain sufficiently ample measuring rods to enable a satisfactory Act to be framed. The particular points to be observed are: 1. Every debtor must be compelled to submit to a public examination before a judicial tribunal respecting his conduct, and he must be compelled to explain the reasonable and probable causes of his failure in business. 2. No man whose failure has not been brought about by misfortune should be entitled to a discharge. 3. All undischarged bankrupts should be incapable of obtaining credit and should be incapable of holding public office and positions of trust. I would, therefore, suggest: 1. That there should be enacted in Canada a uniform law, governing all matters coming within the ambit of bankruptcy legislation. Creditors in Toronto or Montreal should be able to know that the remedies against a defaulting debtor resident in Halifax are equally as good and as readily available as the remedies against a debtor in Vancouver. 2. The administration of the bankruptcy laws should be committed to the Superior Courts of the various provinces, and the Judges of the various County and other local Courts should be Referees in bankruptcy. 3. Upon the commission of an Act of bankruptcy the creditors should have a summary and speedy remedy against the entire estate of a debtor. 4. The creditors should have the entire control of the administration of assets and should be at liberty to say whether the assets should be administered under the supervision of the Courts or by a trustee of their own choosing. 5. No composition should be effective or should entitle the debtor to a discharge unless first confirmed by the Court after full enquiry into: (a) the conduct of the debtor; (b) the claims of the creditors; (c) the objections of dissentients, or the expenses attendant thereon. 6. Inasmuch as the state is entitled to the benefit of the services of all its subjects, no creditor should be allowed to hold in bondage the soul, body or talents of any of its subjects, merely because he has been unfortunate. 7. If a debtor is not able to give an adequate reasonable and satisfactory account of the transactions causing his failure, his future earnings should be impounded for the benefit of his past creditors until they have been sufficient to pay a 8. Dishonest and incompetent traders should be stigmatized as undischarged bankrupts, and should be incapable of engaging in trade or contracting debts without reasonable prospects of paying them. 9. There should be an official supervision over the accounts of all trustees. 10. A central bureau should be established in each province, presided over by a superior Court Judge by whom all bankruptcies would be supervised, thus ensuring both uniformity and honesty of administration. 11. The guiding principle should be "the estate for the creditors." The procedure should be so simple and expeditious as to produce the speediest and best results. 12. Every debtor should be compelled to submit a full statement of his assets and liabilities and the reasons for his failure at the first meeting of his creditors and should thereafter be examined in open Court before a Judge in the presence of his creditors, and should thereupon be called upon to answer all questions which might be put to him by counsel or any of his creditors with regard to his affairs, and any prevaracation or failure to make a satisfactory explanation should be punishable as contempt. 13. The bankruptcy law should be available to all debtors both traders and non-traders. 14. The be enabled to have their estates administered in bankruptcy who perhaps have fallen into the hands of loan sharks, should wage earner and the possessors of small estates at a minimum of expense. found in the main to work satisfactorily and subject to the 15. The present system of appointing assignees has been control of creditors, should be permitted to continue, but for the administration of small estates and estates over which be appointed in each province, who would officially supervise both to the creditor and the debtor without undue expense. all such small bankruptcies and enable justice to be done I should like to conclude this paper by an extract from the report of the committee appointed in 1906, by the English Board of Trade, which report was published in 1908. The committee in its report says: "The evidence and documents placed before us do not disclose any dissatisfaction on the part of the commercial community with the main features of the existing law and procedure; while evidence and statistics from official sources shew that there has been a large reduction in the amount of insolvency throughout the country since the present system came into force. The matters of complaint and suggestions for reform of the law which we have had to deal with have principally related to special incidents of the law and branches of its administration." MUNICIPALITIES AND HIGHWAYS. The rapid advance in certain lines of development in Canada is sometimes strikingly illustrated by provincial anl Dominion statutes. Legislatures usually move slowly, but occasionally in seeking to fulfil their regulating powers hysterical efforts are made to keep pace with the advancing tide of progress or perhaps to satisfy clamorous constituents, by passing rather startling restrictive measures. A good example of this is seen in the amendment to the Ontario Motor Vehicles Act, whereby the owner or driver of a motor vehicle, simply by reason of his being on a highway with his motor, is by statute held guilty of wrongdoing in case of an accident until he proves his innocence. This, of course, is a subversion of all ideas of British justice, but no doubt the Legislature recognizing its helplessness to regulate properly the rapidly growing traffic, sought to pacify a section of the community by such an unfair piece of class legislation. Ten years ago very few of the general public outside of the most skilled electricians and consequently very few members of Parliament would have dreamed of the very extensive development shortly to be made in the application and transmission of electrical energy, or the part that the great waterways of Canada were and are yet to play in the industrial development of the country. Consequently when in 1902, a syndicate composed of Mr. James Ross, of Montreal; Mr. William Mackenzie, Mr. Henry M. Pellatt, Mr. Frederick Nicholls, and Mr. S. G. Beatty, all of Toronto, made application to the Canadian Parliament for the incorporation of a company for the purposes among others to carry wires for electric power over any bridge across the Niagara river and connect with the wires of any similar company in the United States, and further to conduct electricity along or across any public highway as fully set forth in the act of incorporation, one can well understand the dazzling picture that the prospect of such a pioneer company in full operation would present. The act, it is true, contained many restrictive clauses of a more or less mild nature, sufficient, as it was no doubt thought, to regulate in the interest of the public the operations of a company so strikingly and manifestly philanthropic in its intentions. One side of the shield, however, seems not to have been turned, and while the country as a whole was undoubtedly to receive a great impetus from this private enterprise, the danger and inconvenience involved was so obscured as to call for the subsequent judicial comment that "the like safeguards (contained in other charters) are conspicuously omitted from the Act of 1902. It cannot be because the danger of electrical transmission is being lessened by efflux of time, but perhaps there was not sufficient vigilance exercised during the passage of this Act in the interests of public safety." This comment is also the gist of the judgment of the Court of last resort in the same case, The Toronto and Niagara Power Company v. North Toronto. The Judicial Committee of the Privy Council merely interpreted the text of the existing Dominion legislation as they found it. This legislation, like most legislation, was passed in an effort to meet two conflicting interests, the encouragement of private enterprise to result in a certain public benefit, on the one hand, and the protection of municipal rights in municipal property on the other. The growing list of decisions from the Privy Council adverse to municipalities where there rights come into conflict with the claims of private corporations, can be traced in almost every case to the tender regard entertained by Parliament for the incorporators of companies, or as above expressed "insufficient vigilance for public safety." Various amendments and circuitous clauses are incorporated in many of these charters, which upon their face look sufficiently protective, only to be found on more exhaustive examination to be annulled or so modified by other sections as to lose entirely their apparent effect. Even skilled Judges and interpreters of the law are sometimes misled. For such a condition of things the only hope is in better legislation more clearly expressed. There can be no doubt that public sentiment as represented by members of Parliament will find a means of holding the scales fairly and evenly, so as not unduly to discourage private enterprise, and at the same time fully protect all existing rights. The judgment in the case referred to is significant only in so far as it raises the presumption that there may be other companies in existence with similar sweeping powers, who will not hesitate to use them if challenged. There is also the feature which is sure to be realized at almost any moment, of the tremendous danger to life involved in the use of crowded thoroughfares for placing poles and wires for conveying heavy loads of electric power. That any private company, no matter how capable or how good its intentions, should be absolutely empowered without restraint of any sort in the conduct of works attended with such risks, apart altogether from the inconvenience occasioned to the highways, is hardly to be accepted by a public so watchful of its rights as the Canadian people usually are. It is safe to assume that the people of Canada, who are the final judges in cases depending on Dominion legislation, when dissatisfied with Privy Council decisions, will insist on their views being so clearly expressed on the statute books, that there will be no difficulty in interpretation. Parliament will, no doubt, in dealing with the matter, endeavour without hysteria, to find the proper remedy. T. A. GIBSON. |