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226 MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1
defendant (or otherwise opposing) parties “shall and may be compelled to make,
or suffer partition or sale,” it said. But by 1877, the words “shall and” had been
erased, and the reading now declared that the affected parties “may be
compelled”, 38 language of an incontrovertibly permissive and non-mandatory
character. But s 28 of that same revised statute was in the old “shall and may”
language. In short, the 1877 statute was internally self-contradictory. Not until
1913 was a new Act, 39 introduced, and the repugnancy eliminated. Ever since
1913, the Ontario Partition Acts have consistently stated that the Court “may”
order partition. And while for decades there were contrary views expressed by
some distinguished Ontario judges 40 , professing that they had no discretion to
deny partition or sale when petitioned for such remedies, the whole matter was
finally put to rest by an elaborate and careful judgment of the Ontario Court of
Appeal in Re Hutcheson and Hutcheson in 1950 41 . The Court’s discretion in matters
of partition and sale was finally and emphatically confirmed, and has been a lively
source and focus of disputation and litigation ever since.
In Manitoba, too, this issue of discretion was long in doubt. Manitoba’s first
“home-grown” Partition Act, in 1878 42 used the old “shall and may” language, like
its Ontario original and counterpart, and was certainly mandatory in character.
And it is curious to note how the legislative and judicial history of this issue
“tracks” the experience in Ontario. Just as the “shall and may” language of
Ontario quietly shifted to the permissive “may” in the Revised Statutes of 1877, and
just as the Ontario judiciary long clung to their posture of “no discretion”
nonetheless, so in Manitoba we find McPherson CJK.B. in Szmando v Szmando 43
still refusing to acknowledge that he has any discretion to refuse partition, even
though nine years previously, (during the “migration” of the province’s partition
statute into the Law of Property Act), 44 the “shall and may” formula had been
covertly transmuted into “may”. “Partition”, said the learned Chief Justice, “is a
matter of right” to which one might fairly add the caveat “Provided that he who
seeks it has locus standi to do so.” That standing was not established on the facts in
the later case of Wimmer v Wimmer, 45 but the “discretion” point was touched
upon. Major J at first instance seemed inclined to follow Szmando, and the Court
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RSO 1877, c 101, s 4.
RSO 1914, c 114.
See Byall v Byall, [1942] 3 DLR 594 (Ont H Ct J); Morrison v Morrison (1917) 39 OLR 163, 34
DLR 677 at 686 (Ont SC, AD); Dickson v Dickson [1948] OWN 325 (Ont H Ct J).
[1950] OR 265, [1950] 2 DLR 751 (Ont CA).
Supra note 29.
[1940] 47 Man R 397, [1940] 1 DLR 222 (Man KB).
As mentioned supra note 31.
35 Man R 232, [1947] 1 WWR 734 (affirmed 55 Man R 232 at 240, [1947] 2 WWR 249).