Anna Elisabeth Beukenkamp, Adriaan Beuken-
kamp, Johanna Alida Beukenkamp, Paul Anton
Beukenkamp, Marina Beukenkamp, Janna Nien-
huys, Louwrens Jacobus Beukenkamp, and Rad-
boud Lourens Beukenkamp (Claimants)
v.
The Minister of Consumer and Corporate Affairs
as Custodian of Enemy Property (Respondent)
Trial Division, Heald J.—Toronto, November
26, 27 and 28; Ottawa, December 10, 1973.
Practice—Evidence—Enemy alien property—Treaty of
Peace (Germany) Order, 1920—Company shares of neutral
vested in Custodian—Photocopy of purchase order—
Admissibility in evidence—Delivery of shares not proved—
General practice in Stockbroker's Society—Probability of
delivery within four days of sale—Affidavit evidence—Treaty
of Peace (Germany) Order, 1920, ss. 39, 41.
The claimants are heirs at law of Adriaan Beukenkamp,
deceased, and are entitled to continue proceedings (see
[1970] Ex.C.R. 158) commenced by the said Adriaan Beu-
kenkamp for the return of 145 shares of Canadian Pacific
Railway capital stock that were purchased by him on July
20, 1914 through the Amsterdam Stock Exchange. The
shares were purchased from German nationals and by virtue
of a general Vesting Order of the Quebec Superior Court
dated April 23, 1919, (made under Consolidated Orders
respecting trading with the Enemy dated May 2, 1916) were
vested in the Custodian of Enemy Property.
The claimants say that by virtue of the Treaty of Peace
(Germany) Order, 1920, they are entitled to have the shares
relinquished to them by the Custodian of Enemy Property,
or if the shares were sold, they are entitled to the proceeds
of such sale and all rights, dividends and interest in addition
thereto. A photocopy of the purchase note dated July 20,
1914 was submitted and, although delivery was not proved,
Commission evidence of the stockbroker, now deceased,
was tendered regarding the general practice in the Stock
broker's Society in Amsterdam of delivery within four days
of the sale of the shares. Therefore delivery would have
occurred presumably before the outbreak of the war, i.e., on
August 4, 1914. Also tendered in evidence was an affidavit
of an accountant, now deceased, of the Canadian Bank of
Commerce as to a number of share certificates received
from Mr. Beukenkamp covering the 145 shares of the
Canadian Pacific Railway Company.
The respondent attacked the credibility of the stock
broker's evidence and further submitted evidence regarding
the broker's handwriting on forms completed in 1923 to be
compared with the handwriting on the photocopy of the
purchase order.
Held, that the claimants are entitled to succeed under
section 41 of the Treaty of Peace (Germany) Order, 1920.
The photocopy of the purchase note is admissible in that the
evidence of the stockbroker proved that there was an origi
nal purchase note which he wrote out himself and signed
and that the photocopy was a true copy thereof and that a
diligent search had been conducted to find the original. Also
the evidence of the stockbroker was sufficient to prove
delivery of the shares within a few days of purchase so as to
bring the claimants squarely within the provisions of section
41 of the Treaty of Peace (Germany) Order, 1920, and
therefore entitled to succeed. The evidence tendered by the
respondent was not admissible because there was no evi
dence proving the existence of the original documents, the
identity of their maker, that a search had been made for the
originals and that the copies were in fact true copies of the
original.
ACTION.
COUNSEL:
P. Genest, Q.C., and K. Crompton for
claimants.
D. H. Aylen, Q.C., and P. T. Mclnenly for
respondent.
SOLICITORS:
Cassels and Brock, Toronto, for claimants.
Deputy Attorney General of Canada for
respondent.
HEALD J.—The claimants, Janna Nienhuys,
Louwrens Jacobus Beukenkamp and Radboud
Lourens Beukenkamp, are the children, heirs
and next-of-kin of Adriaan Beukenkamp, late of
the City of Bloomendaal, in the Kingdom of the
Netherlands, who died on or about December 4.
1953, intestate, after having commenced these
proceedings. These claimants together with
Marinus Gerhardus Beukenkamp, the other
child of Adriaan Beukenkamp were substituted
as claimants herein for the said Adriaan Beu-
kenkamp, pursuant to the Order of Mr. Justice
Thurlow dated February 3, 1970.
The claimant, Anna Elisabeth Beukenkamp, is
the widow of Marinus Gerhardus Beukenkamp
above referred to, late of the City of Amster-
dam, in the Kingdom of the Netherlands, who
died on or about September 10, 1971. The
claimants, Adriaan Beukenkamp, Johanna Alida
Beukenkamp, Paul Anton Beukenkamp and
Marina Beukenkamp, are the only children of
Marinus Gerhardus Beukenkamp, deceased.
The widow and the children are substituted as
claimants herein for the said Marinus Gerhardus
Beukenkamp pursuant to the Order of Associate
Chief Justice Noël on February 12, 1973.
The claimants allege that, on or about July 20,
1914, Adriaan Beukenkamp, now deceased,
purchased 145 shares of Canadian Pacific Rail
way capital stock through the Amsterdam Stock
Exchange; that 15 share certificates covering
the said 145 shares were, in the ordinary course
of business, subsequent to July 20, 1914 and
prior to August 4, 1914 (the date of the out
break of World War I) delivered to the said
Adriaan Beukenkamp, said certificates being in
street form endorsed in blank by the previous
registered owners of said shares. There is the
further allegation that although the previous reg
istered owners were German institutions, they
had no title, interest or property in said shares
after July 20, 1914, the day on which all prop
erty in said shares passed to Adriaan Beuken-
kamp. The statement of claim goes on to relate
that because the shares were registered in the
name of German institutions, and by virtue of
the provisions of a general Vesting Order of the
Quebec Superior Court dated April 23, 1919
(said Order being made under the provisions of
the Consolidated Orders Respecting Trading
With The Enemy dated May 2, 1916), the prop
erty in said shares vested in the Custodian of
Enemy Property. The statement of claim further
alleges that the said Adriaan Beukenkamp was,
at all relevant times, a citizen of the Nether-
lands and at no relevant time was he an enemy
or a German national within the meaning of the
Treaty of Peace (Germany) Order, 1920. The
claimants say that by the terms of said Order,
the said Adriaan Beukenkamp was entitled to
have said shares relinquished to him by the
Custodian of Enemy Property. In their prayer
for relief, the claimants ask for a declaration
pursuant to section 41 of the aforesaid Treaty
of Peace (Germany) Order, 1920, that the prop
erty right or interest in the aforesaid shares did
not belong to any enemy as provided in the said
Order. The claimants also ask for an order
requiring the respondent as Custodian of Enemy
Property to relinquish the said 145 shares, all
accruals thereunder and all dividends or, in the
alternative, if such shares or rights have been
sold, an order requiring the respondent to relin
quish all proceeds of the sale of such shares,
rights, dividends, interest, etc.
At the trial, there was filed the evidence of
one Johannes Scholtz, taken on commission in
Amsterdam on February 19, 1970. Mr. Scholtz
has since died. At the time he gave his evidence,
he was over 90 years of age. He said that he and
his brother Daniel J. Scholtz were carrying on
the business of stockbrokers in Amsterdam in
1914 under the firm name of D. J. Scholtz, that
he remained a member of the said firm until
1920. He testified that he remembered a pur
chase of Canadian Pacific Railway shares by
Adriaan Beukenkamp in 1914. He said that they
had been good friends since their childhood
days, that Beukenkamp came to him with some
money to invest, that he felt "things are going
wrong" in Europe. Then Scholtz related their
further conversation as follows:
I asked him in what he wanted to invest his money. He
said: Not in Europe, not in America, the only country I
choose is Canada, because that is far away and they will
never come as far as there.
Scholtz says that he then recommended Canadi-
an Pacific Railway shares.
Mr. Scholtz then identified a photocopy of
the original purchase note evidencing the trans
action. He testified that he had signed the name
D. J. Scholtz, the name of his firm, to the
original purchase note and that the body of said
purchase note was in his handwriting. The pur
chase note is dated July 20, 1914 and indicates
quite clearly in the body thereof that the broker
age firm of D. J. Scholtz purchased for Adriaan
Beukenkamp 145 common shares of Canadian
Pacific Railway on that date. The transaction
and the date thereof is confirmed by Mr. Beu-
kenkamp's evidence.
However, when the Commission evidence
was being taken, and also at the trial, respond
ent's counsel strenuously objected to the
admissibility of the photocopy of the purchase
note. I heard extensive argument by both coun-
sel on this question and reserved the matter for
further consideration. Upon reflection, I have
concluded that the photocopy of the purchase
note is admissible in the circumstances of this
case. The law applicable to a situation of this
kind is clearly stated in Phipson on Evidence,
10th ed., paragraph 1709. Phipson states that
the party tendering secondary evidence must
prove the existence and execution of the docu
ment. In the case at bar, Scholtz very clearly
states that there was an original purchase note
which he wrote out himself and signed and that
the photostatic copy seeking to be introduced
into evidence is a true copy thereof. Then Phip-
son further states that the party tendering the
secondary evidence must also prove the origi
nal's destruction or establish its loss by proof
that it cannot be found after diligent search. In
this case, the evidence of search is contained in
the evidence of Mr. Wilhelm Poolman, a
Toronto solicitor retained in 1963 to act for the
claimants. Mr. Poolman testified that he con
tacted each and every solicitor that had acted
for Mr. Beukenkamp down through the years,
that he had interviewed Mr. Maurice Robitaille
in Ottawa (employed as the Assistant Deputy
Custodian of Enemy Property at the time) in
whose office, he saw a copy of the original
purchase note. Without going into Mr. Pool-
man's evidence in detail, I am satisfied that this
evidence does prove a diligent search for the
original purchase note. I have accordingly
decided to admit into evidence the two photoco
pies of the original purchase note which were
tendered at the trial, the one being marked as
Exhibit 1 for identification to the evidence of
Johannes Scholtz and the other, a more legible
photocopy, being marked as Exhibit 8 to the
said examination of Johannes Scholtz.
Mr. Scholtz further testified that Beuken-
kamp paid for the shares at the time of pur
chase. He also said that subject shares were
delivered by hand a few days after the pur
chase. He observed that there was a rule in the
Stockbrokers Society to the effect that the
shares have to be delivered within 4 days after
the purchase. He said he assumed that the
shares were delivered within said four day
period because there had been no question or
complaint to his firm about delivery. Respond-
ent's counsel argued that on this evidence,
delivery of the shares had not been proven and
that this is fatal to the claimant's case in view of
the provisions of section 39 of the Treaty of
Peace (Germany) Order, 1920, (S.C. 1919-20, p.
xxxvii) which reads as follows:
39. No transfer, whether for valuable consideration or
not, made after the sixth day of May, 1916 without the leave
of some competent authority in Canada, by or on behalf of
an enemy as defined in paragraphs (a) and (b) of section 32
of any securities shall confer on the transferee any rights or
remedies in respect thereof and no company or municipality
or other body by whom the securities were issued or are
managed shall take any cognizance of or otherwise act upon
any notice of such transfer.
I think respondent's counsel is correct when
he says that the effect of section 39 is to invali
date any transaction not completed on or before
May 6, 1916. However, in this case, I am satis
fied, on a balance of probabilities, that delivery
of the subject share certificates occurred within
a few days after July 20, 1914.
'The doing of an act may sometimes be
inferred from the existence of a general course
of business according to which it would ordinar
ily be done, there being a probability that the
general practice will be followed in the particu
lar case. (See: 15 Halsbury, 3rd ed., p. 284,
paragraph 515. See also: Phipson on Evidence,
10th ed., paragraphs 297-299.) I am satisfied on
the evidence here that there was a general
course of business being followed on the
Amsterdam Stock Exchange pursuant to a rule
of that Exchange requiring delivery of shares
purchased through the Exchange within four
days of purchase. I am also satisfied that there
is a probability that the general practice was
followed in this case, as is evidenced by the fact
that Scholtz, who handled the transaction,
received no complaint of non-delivery from
Beukenkamp.
Counsel for the claimants tendered in evi
dence at the trial, an affidavit of John Shaw,
sworn on March 25, 1938. Mr. Shaw was
employed as an accountant in the Ottawa
Branch of the Canadian Bank of Commerce
from September 16, 1933 until August of 1938.
He died on December 6, 1968. Counsel for the
respondent objected to the admissibility of said
affidavit. After extensive argument on its
admissibility, I admitted said affidavit into evi
dence as being a statement made in the course
of duty by a deceased party. I was satisfied on
the evidence of Dennis Carptenter, the Assist
ant Secretary of the Bank, who testified at the
trial, that Mr. Shaw, had a duty to make the
kind of statements and provide the kind of
information which Shaw in fact provided in the
impugned affidavit. I accordingly held that the
affidavit of Shaw was admissible as an excep
tion to the hearsay rule. (For a similar view see:
Dominion Telegraph Securities Ltd. v. M.N.R.
[1946] 4 D.L.R. 449.)
Mr. Shaw deposed that on June 7, 1937, the
Ottawa Branch of the Bank of Commerce
received from Adriaan Beukenkamp, for his
account, a number of share certificates covering
145 shares in the Canadian Pacific Railway
Company. Particulars of said share certificates
are attached as a Schedule to Shaw's affidavit.
Shaw also attaches a photocopy of one of the
share certificates received by his Bank and says
that the others are identical to the share certifi
cate attached except as to number, date, number
of shares and name of the original holder. The
information about the shares and share certifi
cates correspond with and corroborate the
accuracy of the original purchase note prepared
by Johannes Scholtz.
Respondent's main ground of defence was an
attack on the credibility of the witness,
Johannes Scholtz. Respondent's counsel sought
to point out a number of places in the transcript
where, in his submission, Scholtz hesitated in
giving answers or exhibited a faulty recollection
of past events. I have carefully examined the
transcript, and considering his advanced age,
the fact that he was being asked in 1970 to
recall events which transpired in 1914 and the
further fact of the language barrier and the use
of an interpreter, I am of the view that Scholtz's
evidence is quite credible and should be accept
ed. His crucial evidence as to the purchase of
the shares on July 20, 1914 and his completion
of the purchase note was not shaken on cross-
examination in any way. There was a suggestion
of bias because of his friendship for Mr. Beu-
kenkamp. However, Mr. Scholtz quite readily
admitted his friendship for Beukenkamp. He
also said he felt a duty to see that Mr. Beuken-
kamp got what he paid for—i.e.,—the Canadian
Pacific Railway shares. This is an understand
able and logical reaction for an honourable man
to have. The evidence was also to the effect that
Scholtz had no personal financial interest in said
shares. There was no evidence before me from
which I could possibly impute to Scholtz any
motive for perjury. Nor is there any inherent
improbability in his evidence. I thought his
recollection of his conversation with Beuken-
kamp at the time of the share purchase was
logical and reasonable in the light of the general
situation existing in Europe in the summer of
1914. His recollection of the essential events
was clear, and not impugned on cross-examina
tion or by any other evidence. He quite freely
admitted that he was not able to fix precisely
the date of delivery of the shares. To me, this is
an indication that he was endeavouring to be
truthful and honest in his evidence and, in my
view, enhances his credibility.
The respondent sought to further throw some
doubt upon the evidence of Scholtz by calling a
handwriting expert in the person of Sergeant
Hilton Sadowsky, the Senior N.C.O. in the
Royal Canadian Mounted Police Crime Detec
tion Laboratory in Vancouver. Sgt. Sadowsky
said that he had compared a photocopy of the
broker's note with photocopies of forms pur
ported to be forms completed in 1923 in con
nection with the claim of Adriaan Beukenkamp.
At the trial, claimant's counsel objected to the
admissibility of the photocopies of the forms
said to be completed in 1923. I heard argument
from both counsel on this objection and
reserved my decision on the question of admis
sibility. I have concluded that said photocopies
are inadmissible because there was no evidence
proving the existence of the original documents,
the identity of their maker, their loss and that a
diligent search had been made for the originals
and that the purported photocopies were in fact
true copies of the originals. The only evidence
before me on this point is contained on page 26,
questions 71 and 72 of the evidence of
Johannes Scholtz, where respondent's counsel
asked Mr. Scholtz to compare the photocopy of
the broker's note with the forms said to be
completed in 1923. Scholtz's answers clearly
indicate his positive identification of the
broker's note as being in his handwriting and
that the other documents were not in his hand
writing, and he was not sure who wrote them.
There is nothing in this evidence to warrant
acceptance of the photocopies of the so-called
1923 evidence. Accordingly, the evidence of
Sgt. Sadowsky is inadmissible.
To summarize, on the evidence adduced
before me, I find that Adriaan Beukenkamp
was, at all relevant times, a Dutch national, that
he was at no relevant time a German national
and was therefore never an "enemy" within the
meaning of section 32 of the Treaty of Peace
(Germany) Order, 1920. I find further that the
said Adriaan Beukenkamp purchased 145
shares of the common stock of the Canadian
Pacific Railway through the Amsterdam broker
age firm of D. J. Scholtz on July 20, 1914 and
that the share certificates covering said pur
chase were delivered to the said Adriaan Beu-
kenkamp a few days thereafter, but in any event
prior to August 4, 1914. I also find that the
shares purchased by Beukenkamp were regis
tered in the names of National Bank fur
Deutschland as to 85 shares and C. Schlesinger,
Trier & Co. as to 60 shares, both German
nationals and were endorsed and transferred in
blank by the said firms, thus being in bearer
form so that title thereto passed to the said
Beukenkamp upon delivery.
I further find that the present claimants are
the ones legally entitled to all the rights which
the said Adriaan Beukenkamp may have pos
sessed against the respondent (this was admitted
at the trial by respondent's counsel).
On the basis of the above facts, it seems clear
that the claimants are entitled to succeed under
the authority of section 41 of the Treaty of
Peace (Germany) Order, 1920 which reads as
follows:
41. The Custodian may bring or take any action or other
proceeding which he may think proper to enforce the provi
sions of this Order, and to get in any property, right or
interest vested in him.
(2) In case of dispute or question whether any property,
right or interest belonged on the tenth day of January, 1920,
or theretofore to an enemy, the Custodian or, with the
consent of the Custodian, the claimant may proceed in the
Exchequer Court of Canada for a declaration as to the
ownership thereof, notwithstanding that the property, right
or interest has been vested in the Custodian by an order
heretofore made, or that the Custodian has disposed or
agreed to dispose thereof. The consent of the Custodian to
proceedings by a claimant shall be in writing and may be
subject to such terms and conditions as the Custodian thinks
proper.
(3) If the Exchequer Court declares that the property,
right or interest did not belong to an enemy as in the last
preceding subsection mentioned, the Custodian shall relin
quish the same, or, if the Custodian has before such declara
tion disposed or agreed to dispose of the property, right or
interest, he shall relinquish the proceeds of such disposition.
(4) No such declaration shall affect the title or right of
any person to whom the Custodian has before such declara
tion disposed or agreed to dispose of any property, right or
interest.
Mr. Justice Thurlow commented on the effect
of section 41 on the motion heard by him in this
action referred to earlier herein as follows (Beu-
kenkamp v. Secretary of State (1970) Ex.C.R.
158 at 162 and 164):
In my opinion so far from sweeping away the rights of a
person in the position in which the claimant alleged himself
to be the effect of the Treaty of Peace (Germany) Order,
1920, was to continue and preserve the property rights of
persons other than those German nationals whose property
was confiscated. As I view it, the cause of action of such a
claimant in a proceeding of the kind contemplated by sec
tion 41(2) consisted of the facts which, when established,
would entitle him to have the shares relinquished, that is to
say, as applied to this case, the fact of the claimant having
bought the shares before the commencement of the war and
having continued to hold them until they became vested in
the Custodian, coupled with the fact of his never having
been an enemy within the meaning of the Treaty of Peace
(Germany) Order, 1920... .
I have the view that these claimants have
brought themselves squarely within the provi
sions of section 41 referred to supra and are
entitled to succeed.
They have also complied with the procedural
requirements of section 41 by filing a Consent
of the Custodian of Enemy Property to the
proceeding in this Court (said Consent is dated
July 10, 1934 and was filed at the trial as
Exhibit P-2).
The claimants herein will accordingly have
judgment against the respondent in the terms of
paragraphs 16(a), (b) and (c) of the amended
statement of claim dated October 2, 1973. Pur
suant to Rule 337(2)(b), counsel for the claim
ants may prepare a draft of an appropriate judg
ment to implement the Court's conclusions and
move for judgment accordingly.
The claimants are also entitled to their costs
of the action against the respondent, to be
taxed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.