TMI Blog1937 (2) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... ct accordance with filed schedules open to public inspection, and these schedules must remain unchanged until altered, reduced, or modified as provided by the Act (Sections 14 and 15). Section 16 is in the following terms: No public utility shall charge, demand, collect or receive a greater or less compensation for any service than is prescribed in such schedules as are alt the time established, or demand, collect, or receive any rates, tolls, or charges not specified in such schedules. 2. By Section 18 it is provided that any public utility company charging or receiving a greater or less compensation for any service rendered than that prescribed as provided by the Act is guilty of unjust discrimination ; which is thereby prohibited, and is made liable to a penalty. By Section 19 no person, firm or corporation shall knowingly solicit, accept or receive any rebate, concession or discrimination in respect to any service in, or affecting or relating to, any public utility whereby any such service is by any device whatsoever, or otherwise, rendered free or at a less rate than that named in the schedules in force, as provided herein, or whereby any service or advantage is rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amounts so . paid as part of their cost of manufacture of butter, ice cream and other milk products in determining the cost of manufacture for the purpose of fixing the price so to be paid for the said cream, and the respondents did base thereon the amount which they paid to the farmers and others for the said cream. 7. The mistake in rendering the said statements showing incorrect amounts to be due was the mistake of the appellants. 8. The respondents acted upon the said statements so rendered believing the same to be true. 9. By reason of such belief the respondents paid to the farmers and others large sums of money more than they would or could have paid for the said cream if the amounts now claimed for electric energy had been rendered to and claimed from the respondents at the several times when the said statements were rendered by the appellants. 4. These remarkable facts, involving as they do the long-continued undercharging of the appellants to so serious an extent, are to some extent explained by the following admitted circumstance. The meter was accurate and conformed with the statutory requirements; but in order to arrive at the correct amount of electric en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been different if negligence on the part of the present appellants (which had not been pleaded) had been alleged. When the matter came on appeal before the Supreme Court of Canada another view was taken, and Dysart, J. delivered the judgment of the Court (concurred in by Duff, C. J. and Lamont, Cannon and Davis, JJ.) deciding both the contentions in favour of the present respondents and therefore accepting the plea of estoppel, with the result that the appeal was allowed and the judgment reversed and set aside with costs in all the Courts. In the view of their Lordships, assisted by able and exhaustive arguments by counsel on both sides, the two points are of considerable difficulty and importance. It will be convenient to deal in the first place with the contention based on the statute. The problem cannot; be more admirably stated than Dysart, J. He said: Applied to the present case, the Act imposes a duty on the electric company to charge, and on the dairy company to pay, at scheduled rates, for all the electric current supplied by the one and used by the other, during the twenty-nine months in question. The specific question for determination here is: Can the duty so cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result of absolving the appellants from their duty of collecting and receiving payment in accordance with the law. To collect the money due will, in one sense, cause loss or injury to the respondents, to the extent of $1,931.82. Their Lordships do not know, because the admission (No. 9 above) does not cover the point, whether to allow the estoppel will not leave the respondents with an advantage consisting of the difference between the sum of $1,931.82 and the total amount by which the respondents were led to increase their payments of cream to farmers and others. It is however clear that to disallow the estoppel will leave the respondents out of pocket to the extent of the increased amounts just referred to. It is an unfortunate result; but the obligation to obey a positive law is more compelling than a duty not to cause injury to another by inadvertence. In the present case it may be observed that the injury is not a cause of action. Their Lordships are unable to see how the Court can admit an estoppel which would have the effect pro tanto and in the particular case of repealing the statute. 8. If we now turn to the authorities it must be admitted that reported cases in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to a contention as regards approbation and reprobation), it appears to me that it does not apply to this case, for it seems to me well established that . it is impossible in law for a person to allege any kind of principle which precludes him from alleging the invalidity of that which the statute has, on grounds of general public policy, enacted shall be invalid. 10. A statement made by Lord Shaw of Dunfermline in a case, Bradshaw v. M'Mullan (1920) 2 IR 412 at p. 425, supports the same view. It should be added that as regards estoppel by deed it was long ago held that if the deed were executed in contravention of a statute there could be no estoppel. The leading case is Doe d. Chandler v. Ford (1835) 3 Ad Ell 649. The Supreme Court appears to have attached great, if not decisive, weight to the decisions of English Courts in relation to the Companies Acts and in particular in relation to the effect of Section 25, Companies Act, 1867. That unfortunate section led to much injustice and was finally repealed in 1900; but it was not so worded as to cause the disastrous results which would have followed from a decision that the section precluded a purchaser in the market of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of electric energy who is bound by such a statute as the Public Utilities Act of New Brunswick; 12. Their Lordships having thus arrived at the conclusion that estoppel is not open to the respondents for these reasons, which are in effect the same reasons as those given by Richards, J. in the King's Bench Division on this part of the case, it becomes unnecessary for them to express an opinion as to the other ground on which the appellants have challenged the estoppel. As above pointed out, the agreed facts are of a very unusual character and the diligence of counsel was unable to find any authority in which the invalidity of an estoppel was held to turn on the circumstance that the course of conduct induced by the representation was not that intended to be caused by the person making the representation. The question must to a great extent turn on a consideration of the numerous authorities referred to in the Canadian Courts. On the whole it seems to their Lordships that the wiser course will be to leave this part of the case undecided so far as they are concerned, and they propose to express no opinion on it. For the reasons above given their Lordships are of opinion that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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