MARITIME ELECTRIC CO LTD Vs. GENERAL DAIRIES LTD

JUDGEMENT

(1.) This is an appeal by special leave from a judgment of the Supreme Court of Canada dated 28 June 1935, reversing a judgment of the Appeal Division of the Supreme Court of New Nrunswick. That Court had affirmed a judgment in the King's Bench Division whereby the appellants had recovered against the respondents the sum of $19,31.82 and costs. The appellants are a private company which sells electrical power in the City of Fredericton, New Brunswick. The company is however a "public utility" company with the meaning of the Public Utilities Act of New Brunswick (Ch. 127 of the Revised Statutes, 1927). It is accordingly under a statutory duty (S. 10) to furnish reasonably adequate service and facilities. It has annually to make to the Board of Commissioners of Public Utilities established by the Act some elaborate returns. It is strictly limited as to the rates, tolls, and charges which it can make and exact, which must be in exact accordance with filed schedules open to public inspection, and these schedules must remain unchanged until altered, reduced, or modified as provided by the Act (Ss. 14 and 15). S. 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 at the time established, or demand, collect, or receive any rates, tolls, or charges not specified in such schedules. By S. 18 it is provided that any public utility company charging or receiving a 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 S.19 no person, firm or corporation. On 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 received other than is herein specified.

(2.) A penalty is provided for the violation of this section. The respondents during the material times carried on a dairy business in the City of Fredericton and manufactured and sold butter, ice cream and other milk products. They bought electric energy from the appellants. The amount: of $1,931 claimed by the latter is the amount remaining due for electric energy supplied from the mon December, 1929 to the month of March 1932, according to the schedules in force during that period. Only $546.28 instead of $2,478.10 had been paid. The defence of the respondents is simply that of an estoppel raised on agreed facts of a some what singular nature. No viva voce evidence was given at the trial. It is important to keep closely to the principal facts as agreed and their Lordships doubt whether it is legitimate or safe to draw any further inference of fact in the existing circumstances. It will be convenient to state the important facts as agreed in a series of paragraphs: 1. The respondents carried on business in the city in buying cream from farmers and others and using the same in the manufacture of butter, ice cream and other milk products. 2. They paid to the farmers and others from whom the cream was bought a price depending amongst other things on the cost of manufacture of the butter, ice cream and other milk products. 3. The respondents used the electric energy supplied by the appellants for power and other purposes in connexion with their manufacture of butter, ice cream and other milk products, and the cost of such energy entered into the cost of such manufacture and directly affected the price which the respondents paid to the farmers and others for their cream. 4. The appellants at all material times knew that the respondents were using the electric energy in their manufacture and they rendered to the latter each month a statement purporting to show the amount of electric energy supplied to the latter, purporting to be based on the reading of the meter placed by the appellants on the respondents' premises for the purpose of registering the energy so supplied. 5. The respondents believed the statements so rendered to be true and in accordance with the reading of the meter, and they from time to time paid to the appellants the amounts shown by such statements. 6. The respondents used the 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.

(3.) 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 energy it was necessary to multiply the dial reading by ten. Through error this was not done, and as a result the respondents were charged with only one-tenth of the electric energy supplied to them. Thus the first statement rendered, that of 18 December 1929, showed 106 k.w.h. This was a correct reading of the dial, but to obtain the actual amount of energy used the reading should have been multiplied by ten, making 1,060 k.w.h. For this the correct charge according to the schedules would be $44.50 instead of the minimum fee of $15. The same error was made in compiling every one of the statements up to 16 March 1932. To the plea of estoppel two objections were raised by the appellants. First, it was contended that, apart from any other reason, estoppel was barred or precluded by the provisions of the Public Utilities Act. "A party," it was contended (citing 13 Halsbury, Edn. 2, p. 474, S. 542), "cannot by representation, any more than by any other means, raise against himself an estoppel so as to create a state of affairs which he is under a legal disability of creating." Secondly, it was contended that (apart from the statute) there could be no estoppel since the representations contained in the monthly statements were not intended to induce any course of conduct on the part of the respondents other than the payment of the amounts stated to be due. On this point great reliance was placed by the appellants on the well known and often cited propositions relating to estoppel in pais laid down in 1875 by Brett, J., (afterwards Lord Esher) in the case of 10 CP 3071at p. 316. It was urged that the representation relied on as founding the estoppel must be one intended or calculated to bring about the particular course of conduct which was the cause of detriment to the party relying on the estoppel.