Pickup, C.J.O. (orally) :—The Official Guardian appeals to this Court from an order made by Ferguson, J., sitting in Weekly Court at Ottawa, the order of Ferguson, J., being dated January 12, 1955. By that order it was declared that certain monies in the hands of the trustee being part of the redemption of preferred shares of G. T. Fulford Company Limited, issued by way of stock dividends out of tax-paid undistributed surplus income of the company constituted income in the hands of the trustee and not capital.
It is conceded by counsel for the appellant that the facts in the instant case are not distinguishable from the facts before this Court in the case of Re Fleck, a decision of Hoge, J.A., reported in [1952] O.R. 113; [1952] C.T.C. 196, and affirmed in this Court as reported in [1952] O.W.N. 260; [1952] C.T.C. 205. Counsel argues, however, that this Court is not bound to follow its own decision in Re Fleck, because it is said that the Court in that case misread or misinterpreted judicial decisions cited by counsel.
It is therefore argued before this Court in the instant case that the decision of the Court in Re Fleck was the result of a mere slip or inadvertence or a judgment given per incuriam.
In our opinion it cannot be said that the judgment in Re Fleck was given per incuriam or was the result of any slip or inadvertence and this Court feels that it is not at liberty to depart from that decision. Moreover, the decision of this Court in Re Fleck was approved of by this Court in Re Waters, [1955] O.R. 268; [1955] C.T.C. 130, and has been followed in several cases in courts of first instance.
It was also argued on behalf of the Official Guardian, before Mr. Justice Ferguson and in this Court, that the trustees in this case had committed a breach of trust in taking steps to come within the case of Re Fleck, Counsel argued that the trustees had taken sides and ‘‘slanted’’ things in favour of one beneficiary to the detriment of another, the trustee having control of the board of directors of the company. Mr. Justice Ferguson did not consider that problem to be before him and did not pass upon it. We are of the same opinion and do not consider that matter to be before this Court. We do not pass upon it. We are asked, however, to reserve to the Official Guardian his rights in that respect. We do not think it is necessary to do so but that it is sufficient to say, as we do, that the Official Guardian’s rights in that respect are not passed upon in this Court. As requested at the opening of the appeal, the Official Guardian will be appointed to represent unborn children and unascertained persons for the purposes of this appeal.
The appeal will therefore be dismissed, but we think it proper in all of the circumstances to allow all parties to appeal their costs out of the monies in the hands of the trustee, the costs of the trustee to be as between solicitor and client.
Appeal dismissed.