pose of enabling them to challenge, if they will, the correctness of the account. D. C. 1908 IN RE TORONTO GENERAL TRUSTS CORPORATION. Meredith, C.J. Referring to a stated account, the Master of the Rolls (Jessel) said, in Williamson v. Barbour (1877), 9 Ch.D. 529, at p. 532: "The WILSON AND practice of the Court of Chancery, which of course is the practice of the High Court of Justice, is to consider whether the account shall be opened, or whether there shall be liberty to surcharge and falsify; that is, if the Court is of opinion that errors of sufficient number and sufficient magnitude are shewn, it is not, as I understand it, necessary that the errors shewn should amount to fraud. If they are sufficient in number and importance, whether they are errors caused by mistake or errors caused by fraud, the Court has a right to open the accounts." And further on the Master of the Rolls said that a less amount of error will justify the Court in opening the account where the accounting party occupies a fiduciary position than in cases where persons do not occupy that position. The errors that have been proved are of comparatively trifling amounts, and form but a small fraction of the whole amount accounted for, or of the disbursements of the respondents, and while, as to the rebates not credited, the failure to credit them was not due to a mere accidental omission of them from the account, I do not think that the intentional retention of the small sum not credited, apparently under the mistaken idea that the respondents were entitled to it, amounts to fraud on the part of the respondents, or at all events to such fraud as entitles the appellant to the relief which she claims or to any further relief than that given to her by the order of the surrogate Judge from which the appeal is brought. I retain the opinion expressed at the close of the argument, that fraud had not been established as to the Scramble Mining stock and the charge of forty cents per share in respect of it, for the reason then given. While the jurisdiction of the Court to set aside a judgment or order which it has been led to pronounce by the fraud of the party obtaining it, is clear, it would, in my opinion, lead to grave inconveniences and add unnecessarily to the cost of litigation, if, upon proof of errors such as have been shewn to have existed in the accounts of the respondents, the whole of the accounts, it might be amounting to many thousands of dollars and consisting of hundreds of items, should be re-opened and the accounts retaken, and, apart D. C. 1908 altogether from the provisions of the statute to which I have referred, neither sound policy nor the justice of the case nor the practice of the Court, as I understand it, would justify the granting WILSON AND of any relief beyond that which has been awarded to the appellant by the order appealed from.* IN RE TORONTO GENERAL TRUSTS CORPORATION. Meredith, C.J. The appellant complains that, in any case, having regard to the errors which have been proved, she ought not to have been ordered to pay all the costs of her application to the surrogate Judge. For this complaint I think there is some ground, although, had the application been confined to these errors, the costs incurred would have been trifling compared with the costs which have been incurred, and substantial justice would, I think, be done if $40 were deducted from the costs which the appellant has been ordered to pay, and the respondents were left to pay to that extent and without being entitled to repayment out of the trust fund the costs in the Court below. I would, with that variation, affirm the order appealed from, and give no costs of the appeal to either party, without prejudice, however, to the respondents' right to claim their costs as proper disbursements in accounting hereafter to their cestui que trust in the surrogate court or elsewhere. E. B. B. [TEETZEL, J.J COLE V. LONDON MUTUAL FIRE INS. Co. Fire Insurance-Statutory Conditions-Variation Appraisement in Place of In a policy of fire insurance, it was provided, by way of variation of statutory condition No. 16 providing for reference under the Arbitration Act in case of differences, that if any difference arose as to the value of the property insured, of the property saved, or the amount of the damages or loss, the same should be submitted to and ascertained by appraisers, one to be appointed by the assured and one by the company, who were to select an umpire, and that the assured and the company should pay the appraisers respectively selected by each of them, and that each should pay one-half the expenses of the umpire: Held, that the variation was not binding upon the assured, not being "just and reasonable to be exacted by the company," inasmuch as it was more stringent and onerous than the statutory condition, both because (1) the plaintiff would be bound by the findings of the majority of the appraisers as the result of their own personal opinions only, and would be deprived from examining witnesses on oath touching the amount of his loss; and because (2) it imposed upon the insured the payment of certain of the expenses in any event, whereas the statutory condition provides that where the full amount of the claim is awarded costs shall follow the event, and in other cases be in the discretion of the arbitrators. Semble, that if the language of the variation was to deprive the insured of the benefit of the provisions of the Arbitration Act, which the statutory condition expressly made applicable to the reference, it would be manifestly unjust, as more stringent and onerous than the latter. THIS was a motion to stay proceedings, and was referred to TEETZEL, J., as trial Judge, by a Judge in Weekly Court, and argued before him, in London, on October 7th, 1907. G. C. Gibbons, K.C., for the plaintiff. W. H. Hunter, for the defendants. The following cases were referred to on the argument: McIntyre v. National Insurance Co. (1880), 5 A.R. 580; Hughes v. Handin-Hand Ins. Co. (1883), 3 C.L.T. 600, 4 C.L.T. 34, 4 O.R. 293; Eckardt v. Lancashire Ins. Co. (1900), 31 S.C.R. 72; Ulrich v. National Ins. Co. (1877), 42 U.C.R. 141, 162; Ballagh v. Royal Mutual Fire Ins. Co. (1880), 5 A.R. 87; Sands v. Standard Insurance Co. (1879), 27 Gr. 167. November 28. TEETZEL, J.-A motion was made in Weekly Court by the defendants to stay proceedings until after the appraisal required under a variation of the statutory conditions or 1907 Nov. 28. Teetzel, J. 1907 COLE V. LONDON FIRE INS. Co. until after the arbitration provided for in the 16th statutory condition, and was referred to me as trial Judge. Judgment was reserved until the disposition of the appeal in Cole v. Canadian Fire Insurance Co.* from an order staying proceedings until after arbitration. In the present case the 16th statutory condition, which provides for a reference under the Arbitration Act, is struck out by a variation endorsed on the policy in these words: "10. Condition No. 16 is hereby struck out, and the following inserted in lieu thereof: (a) In pursuance of the powers conferred by R.S.O. (1897), ch. 203, sec. 145, sub-sec. 3, it is hereby expressly provided and mutually agreed, if any difference arises as to the value of the property insured, of the property saved, or the amount of the damages or loss, such value and amount and the proportion, if any, to be paid by the company shall, whether the right to recover on the policy is disputed or not, and independently of all other questions, be submitted to and ascertained by two competent and disinterested appraisers, one to be appointed by the assured and one by the company. The said appraisers shall first select a competent and disinterested umpire, but in case of their failure to agree on such umpire within ten days, he shall be appointed by the Judge of the county court of the county wherein the loss happens. The said appraisers shall then together estimate and appraise such value and amount in detail, stating separately such value and damage and loss; and in the event of the two appraisers failing to agree thereon, shall submit their differences to the umpire so chosen, and the award, in writing, by the said umpire and at least one of the said appraisers as to the amount of said damage and loss shall be binding upon the assured and the company. The assured and the company shall pay the appraisers respectively selected by each of them, and each shall pay one-half the expenses of the umpire. (b) It is furthermore hereby expressly provided and mutually agreed, that no arbitration shall be had under said condition No. 16, and that no suit or action against the company for the recovery of any claim shall be sustainable in any court of justice until after an award shall have been made fixing the amount of such damage * Ante, p. 336. and loss in the manner above provided, in all cases where the company shall, within thirty (30) days after completion of the proofs of loss, give notice to the assured that the company requires the amount of the damage and loss to be adjusted by the said appraisers." Within thirty days after proof of loss and before action the defendants appointed an appraiser, and gave the notice provided for in the variation. No other notice of or application for arbi tration was given or made. The plaintiff refused to appoint an appraiser, and brought this action. The defendants plead the said variation as a bar to the action, and, in the alternative, they plead the 16th statutory condition, and by the statement of defence purport to appoint an arbitrator on their behalf. If the variation is held to be invalid, and the defendants are entitled to rely on the 16th statutory condition, no application having been made in compliance with sec. 6 of the Arbitration Act, R.S.O. 1897, ch. 62, the motion is now too late and must fail, on the authority of the judgment of the King's Bench Divisional Court on the appeal in Cole v. Canadian Fire Insurance Co. The only other question for determination is whether the variation is binding upon the plaintiff, and that depends upon whether it can be held to be one that is "just and reasonable to be exacted by the company." In the judicial consideration of variations of the statutory conditions, this rule for determining whether they are "just and reasonable" has been well settled, viz.: "Conditions dealing with the same subjects as those given by the statute and being variations of the statutory conditions should be tried by the standard afforded by the statute, and held not to be just and reasonable if they impose upon the insured terms more stringent or onerous or complicated than those attached by the statute to the same subject or incident': Smith v. City of London Insurance Co. (1887), 14 A.R. 328, at p. 337, and 15 S.C.R. 69; see also Ballagh v. Royal Mutual Fire Ins. Co., 5 A.R. 87, at p. 107; May v. Standard Insurance Co., 5 A.R. 605, at p. 622. Now, does the variation here "impose upon the insured terms 44-VOL. XV. O.L.B. Teetzel, J. 1907 COLE v. LONDON MUTUAL FIRE INS. CO. |