The King v. Northumberland Ferries Ltd.

The King v. Northumberland Ferries Ltd.
Collection
Supreme Court Judgments
Date
1945-05-15
Report
[1945] SCR 458
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Hudson, Albert Blellock; Taschereau, Robert; Rand, Ivan Cleveland; Kellock, Roy Lindsay; Estey, James Wilfred
On appeal from
Canada
Subjects
Expropriation
Decision Content
Supreme Court of Canada
The King v. Northumberland Ferries Ltd., [1945] S.C.R. 458
Date: 1945-05-15
His Majesty the King (Respondent) Appellant;
and
Northumberland Ferries Limited (Claimant) Respondent.
1945: February 26, 27, 28; 1945: March 1; 1945: May 15.
Present: Rinfret C.J. and Kerwin, Hudson, Taschereau, Rand, Kellock and Estey JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA
Compensation—Appropriation of ships by the Crown for naval services—Reference to Exchequer Court under s. 7 of War Measures Act, R.S.C. 1927, c. 206, to determine compensation—Principles applicable in determining compensation—"Value of the vessel" in s. 5 (1) of The Compensation (Defence) Act, 1940 (c. 28).
Appeal—Jurisdiction—Award on reference to Exchequer Court under s. 7 of War Measures Act—Whether appeal lies to Supreme Court of Canada—Exchequer Court Act, R.S.C. 1927, c. 34, ss. 18, 19, 37, 82—Supreme Court Act, R.S.C. 1927, c. 35, ss. 35, 44—Contention that Exchequer Court was curia designata—Effect of provision for choice of court, etc., in making reference under s. 7 of War Measures Act.
Under s. 7 of the War Measures Act, R.S.C. 1927, c. 206, the Minister of Justice referred to the Exchequer Court respondent's claim for compensation in respect of two ships, the Seaborn and the Sankaty, appropriated and acquired for naval services by the Crown. In the Exchequer Court ([1944] Ex. C.R. 123) Angers J. awarded $100,000 for the Seaborn and $205,000 for the Sankaty. Against the amounts of such awards the Crown appealed to this Court. Respondent moved to quash the appeal for want of jurisdiction, mainly on the ground that the Exchequer Court was curia designata and, no appeal being provided by the War Measures Act, there was no right of appeal. Argument was heard both on the motion to quash and on the merits of the appeal.
Under said s. 7, if the compensation is not agreed upon, the claim shall be referred by the Minister of Justice "to the Exchequer Court, or to a superior or county court of the province within which the claim arises, or to a judge of any such court".
Under s. 5 (1) of The Compensation (Defence) Act, 1940 (c. 28), the compensation shall be "a sum equal to the value of the vessel * * * no account being taken of any appreciation due to the war".
Held: (1) This Court had jurisdiction to hear the appeal. (Cases discussed.)
Per the Chief Justice: It is to be noted that, along with the authority or jurisdiction to each of the courts enumerated in s. 7 of the War Measures Act or to a judge thereof, there is not given special and independent powers. When once the reference is made, the court or the judge is to deal with the matter in the ordinary way and according to the powers vested in the court by the general Act and the inherent powers already possessed. Parliament's intention was clearly that the Exchequer Court, in a reference to it as in the present case, should act as a court in accordance with the provisions of the Exchequer Court Act and that all the provisions of that Act should apply to the reference. The jurisdiction of the Exchequer Court, through the reference, was one "in any manner vested in the Court" within s. 82 of the Exchequer Court Act, and under said s. 82, read in connection with s. 44 of the Supreme Court Act, there was a right of appeal to the Supreme Court of Canada.
Per Kerwin J.: S. 82 (1) of the Exchequer Court Act, taken in conjunction with ss. 35 and 44 of the Supreme Court Act, conclusively gives a right of appeal in this case. The words "in virtue of any jurisdiction now or hereafter, in any manner, vested in the Court" in said s. 82(1) are broad enough to include the present reference. S. 7 of the War Measures Act provides for the very vesting required by said s. 82(1). The option given to the Minister in making the reference under said s. 7 is not a ground for holding against a right of appeal in the present case. If a reference were made to a provincial superior or county court or a judge thereof, then whether any appeal would lie from the ensuing judgment would depend upon the ordinary jurisdiction of such court and the provisions made as to appeals from judgments thereof.
Per Hudson, Taschereau and Kellock JJ.: The option given under s. 7 of the War Measures Act as to the court or judge to whom the reference shall be made, is not a ground for holding against a right of appeal in the present case (James Bay Ry. Co. v. Armstrong, [1909] A.C. 624, at 630).
Per Hudson J.: S. 44 of the Supreme Court Act, read with s. 82 of the Exchequer Court Act, is ample to vest jurisdiction in this Court in this appeal. The matters referred to the Exchequer Court fell well within those comprised in its ordinary jurisdiction; and the procedure followed in that Court was in accordance with the normal practice of a suit carried on therein.
Per Taschereau J.: The trial Judge did not exercise any special jurisdiction with an appropriate machinery for that particular purpose, but dealt with the matter as a judge of the Court in the discharge of his ordinary judicial functions.
Per Rand J.: A reference to the Exchequer Court under s. 7 of the War Measures Act is not to be taken in any other sense than a reference by a departmental head (as under s. 37 of the Exchequer Court Act) and the effect of the reference is to place the claim within the ordinary procedure of the Court. (Whether a similar reference allowed to a provincial county or superior court carries with it the ordinary rights of appeal under provincial law, it is not necessary to decide. The language "or to a judge of any such court" in said s. 7 contemplates a judge exercising the original jurisdiction of his court). The present proceeding was in the Exchequer Court as such, and therefore an appeal lies under s. 82 of the Exchequer Court Act.
Per Kellock J.: S. 7 of the War Measures Act vests jurisdiction in the Exchequer Court within the meaning of s. 82 of the Exchequer Court Act, conditional only upon the exercise by the Minister of the power of [reference given him by the War Measures Act; and the combined effect of s. 82 of the Exchequer Court Act and s. 44 of the Supreme Court Act is to authorize an appeal to this Court.
(2) On the merits of the appeal: As to the Seaborn, the compensation should be reduced to $92,764.93 (the amount tendered by the Crown) (The Chief Justice and Kerwin and Taschereau JJ., dissenting, would have affirmed the judgment at the trial, except as to the irate of interest allowed). As to the Sankaty, the case should be sent back to the Exchequer Court for re-assessment.
The meaning of "value of the vessel" within s. 5(1) of The Compensation (Defence) Act, 1940, and the principles to be applied and factors to be considered in determining that value, discussed, and cases referred to.
As to the Seaborn:
Per Hudson J.: The award below failed to give due weight to the cost of the vessel to respondent, which, though not necessarily evidence of value, was, under the circumstances, practically the only evidence of value before the Court within the prescription of s. 5 of The Compensation (Defence) Act, 1940. Also there were errors in amounts in items considered in reaching the award. It is a case where this Court is justified in modifying the award and it should be reduced as aforesaid.
Per Rand J.: The purchase by respondent of the Sankaty, admittedly much more suitable than the Seaborn for respondent's service, excludes any special value of the Seaborn to respondent as of the time of acquisition. In all the circumstances, the general market value must govern the determination of the value of the Seaborn. But the trial Judge, in reaching his award, included items irrelevant to market value; and also indicated a regard to considerations of realized special adaptability, and no such element was admissible. There was not in the evidence sufficient to bring the market value to more than the sum tendered by the Crown, which, though relatively not much less than that awarded below, was so generous as to prevent this Court from exceeding it.
Per Kellock J.: There was no evidence which enabled the trial judge, consistently with the proper principles to be applied, to assess the value of the Seaborn at any amount beyond that tendered by the Crown.
Estey J. agreed in the conclusion of Rand and Kellock JJ.
Per the Chief Justice (dissenting): There was evidence upon which the trial judge could make the award he made; and, even though this Court might, in its own view, think there was possibly a small error of valuation, this Court should not, under the circumstances, interfere.
Per Kerwin J. (dissenting): It does not appear that the trial judge failed to observe the applicable principles and it cannot be said that the sum awarded was excessive so as to justify alteration of it.
Per Taschereau J. (dissenting): The trial judge did not misdirect himself on the principles to be applied and took into account the proper elements in reaching his award, which was not clearly excessive; and therefore this Court should not interfere with his finding. As to the Sankaty: Per Curiam: The trial judge erred in applying the principle of "replacement value" or "reinstatement" in reaching his award, as that was a method not in accordance with the direction in said s. 5 (1) of The Compensation (Defence) Act, 1940, on which the award must be based; and, as the evidence was not sufficient to enable this Court to ascertain the value on the proper basis, the case must be returned to the Exchequer Court for that purpose.
APPEAL by the Crown from the judgment of Angers J. in the Exchequer Court of Canada[1] on a reference to that Court by the Minister of Justice under the provisions of s. 7 of the War Measures Act, R.S.C. 1927, c. 206, to determine the compensation payable by the Crown to the respondent in respect of the acquisition by the Crown of the title to two ships owned by the respondent and known respectively as the Seaborn and the Sankaty. The said ships were appropriated by the Crown for naval services. Angers J. determined the compensation payable to be $100,000 for the Seaborn and $205,000 for the Sankaty. The Crown appealed to this Court against the amounts of such awards.
There was a motion by the respondent to quash the appeal for want of jurisdiction, on the ground that the Exchequer Court was curia designata, and, no appeal being provided by the War Measures Act, that Court's determination was final and not appealable. Another ground taken was that it was the intention of the parties, as shown by a certain letter from the Minister of National Defence for Naval Services to the respondent's solicitor, that the determination of the amount of the respondent's claim was to be by the Exchequer Court as arbitrator and was to be final and not appealable.
Argument was heard both on the motion to quash and on the merits of the appeal.
By the judgment of this Court now reported, the motion to quash was dismissed with costs; on the merits, the appeal was allowed, with costs in this Court to the appellant; in respect of the Seaborn, the judgment of the Exchequer Court was modified and the compensation reduced to $92,764.93, the amount tendered and paid by the appellant (the Chief Justice and Kerwin and Taschereau JJ., dissenting, would have affirmed the judgment at the trial, except that interest should have been allowed at three instead of four per centum per annum); in respect of the Sankaty, the case was to be sent back to the Exchequer Court for the purpose of re-assessment; the costs of all proceedings below to be as directed by the Judge presiding at the re-assessment; such re-assessment to be made by the Exchequer Court in accordance with the principles and directions laid down in the reasons for judgment on the appeal in this Court.
J. G. Fogo K.C. and C. Stein for the appellant.
W. F. Schroeder K.C. and G. J. Tweedy K.C. for the respondent.
The Chief Justice.—The judgment now submitted to this Court was rendered by the Exchequer Court of Canada on a reference by the Honourable the Minister of Justice under section 7 of the War Measures Act (R.S.C. 1927, c. 206). It had to do with a claim of the respondent, Northumberland Ferries Limited, for compensation in respect of the ships Seaborn and Sankaty appropriated by His Majesty the King, for naval services.
Northumberland Ferries Limited is a company incorporated under the laws of the Province of Nova Scotia, and authorized to do business in the Province of Prince Edward Island. It was organized for the purpose of operating a proposed ferry service for the carriage of passengers, freight and motor cars and trucks, between Woods Island, P.E.I., and Caribou, N.S.
This ferry service was operated by the respondent in the years 1941 and 1942.
The Seaborn had been purchased by the respondent on or about July 14th, 1939. The purchase price was stated to be $80,000, made up of $30,000 in cash, $25,000 in second mortgage bonds and the remaining $25,000 by the issue of 500 shares of the company without par value, at $50 per share.
The bonds and shares were subsequently repurchased from the vendor by the group promoting the company for $25,000. It was also subsequently disclosed in the prospectus of the company that Mr. W. MacDonald, through whose agency the purchase was carried out, had made a commission of $15,000 on the transaction. The Seaborn was a pleasure yacht built in 1925, of 495 tons gross tonnage. Delivery was taken at New London, Connecticut, and certain expenses for fitting out and fuel oil were incurred in bringing the vessel to Halifax, from which she was taken to the Halifax Shipyards Limited with a view to alterations for conversion into a ferry boat.
Before, however, any alterations were commenced, the Seaborn was first requisitioned for war purposes by the Director of Marine Services on the authority of the Minister of National Defence for Naval Services, and she was finally acquired by His Majesty the King, acting through the same Minister, for war purposes. In the company's balance sheet as at December, 1939, the cost of that ship was shown as $79,500 to which there are added charges for maintenance ($6,505.14) and other expenses directly applicable ($6,759.49), or a total of $92,764.63.
By Order in Council passed on March 20th, 1941, authority was given to pay to the respondent the sum of $92,764.63, being the valuation made by the Advisory Board, Atlantic Coast, as compensation for the Seaborn.
The payment of that amount was recommended by the Minister and it was made without prejudice to any claims which the respondent might submit to the Exchequer Court for additional compensation in respect of the acquisition of the said vessel, and also without prejudice to the right of the Government to set up any defence including the terms of The Compensation (Defence) Act, 1940, against any such claims for additional compensation.
On December 12th, 1939, the respondent purchased the steamer Sankaty from Washington Trust Company, for a total of $4,500 American funds, or approximately $4,995 in Canadian money. The Sankaty was built in 1911, had a gross tonnage of 677 tons and drew 187 feet in length.
An amount of $6,342.45 had to be expended at Stamford to get the ship ready for the voyage to Halifax. The accounts of the Halifax Shipyards Limited for work done on the vessel after arrival at Halifax, amounted to $56,736.72. There were certain other expenditures charged to the account of the vessel and the learned trial judge found the cost of it to the respondent to have been then $71,226.14. In addition, it was estimated that a further sum of $20,000 would have had to be spent to complete the repairs and alterations. Before the commencement of these proceedings, the appellant paid the company as compensation in respect of the acquisition of the Sankaty, $83,900 under the same conditions as the payment made for the Seaborn.
Subsequently, the respondent submitted a claim for $475,000 for the two vessels, giving credit for the amounts already received and claiming a balance of $298,335.35.
The claim was referred to the Exchequer Court by the Minister of Justice, under section 7 of the War Measures Act, and the reference came on for hearing before the Honourable Mr. Justice Angers at Charlottetown, P.E.I., in June, 1942.
The learned trial judge in his judgment awarded the respondent in respect of the Seaborn the sum of $100,000 and in respect of the Sankaty the sum of $205,000, or a total of $305,000, from which was to be subtracted the sum of $176,664.63 already paid to the respondent.
He directed that the respondent should recover the balance, $128,335.37, with interest at four per cent. from March 1, 1941, to the date of the judgment with costs.
From the foregoing decision, the appellant now appeals.
The respondent made a motion to quash the appeal apparently based on two grounds: (1) that the Exchequer Court acted as a curia designata in this case, under the authority of section 7 of the War Measures Act, and that no right of appeal is given by that Act. (2) That there was a binding agreement between the appellant and the respondent to treat the decision of the Exchequer Court as final and conclusive.
The hearing on the motion, when it was presented, was adjourned to be disposed of at the same time as the merits of the appeal; and it was so heard. The points raised by the motion must first be disposed of.
The reference in this case was in these terms:
Under the powers conferred by section 7 of the War Measures Act, or otherwise existing in this behalf, I hereby refer to the Exchequer Court of Canada for adjudication the annexed claim of Northumberland Ferries Limited for compensation in respect of the ships Seaborn ("Charles A. Dunning") and Sankaty appropriated for naval services by His Majesty The King.
Dated at Ottawa this 7th day of June, A.D. 1941.
(Signed) ERNEST LAPOINTE,
Minister of Justice. Section 7 under which the reference is made reads as follows:
Whenever any property or the use thereof has been appropriated by His Majesty under the provisions of this Act, or any order in council, order or regulation made thereunder, and compensation is to be made therefor and has not been agreed upon, the claim shall be referred by the Minister of Justice to the Exchequer Court, or to a superior or county court of the province within which the claim arises, or to a judge of any such court.
Then The Compensation (Defence) Act, 1940, section 5, relating to the compensation payable for the acquisition of a vessel (on which the present claim is based) is as follows:—
5. (1) The compensation payable in respect of the acquisition of any vessel or air-craft shall be a sum equal to the value of the vessel or air-craft, no account being taken of any appreciation due to the war, and shall, subject to the provisions of this Act, be paid to the person who is then the registered owner of the vessel or air-craft; provided that, for the purpose of assessing any compensation under this section, no account shall be taken of any compensation under paragraph (a) or paragraph (c) of subsection one of section four hereof which may have become payable in respect of the requisition of that vessel or air-craft.
It was argued on behalf of the respondent that the Exchequer Court or the Superior or County Court, or the Judge of any such Court, acting under the provisions of section 7 above quoted, act as persona designata and that therefore there exists no right of appeal from the decision rendered by either of them.
In support of that contention, the respondent referred to a number of decided cases which are later examined; but it relied primarily on section 82 of the Exchequer Court Act and section 44 of the Supreme Court Act.
Section 44 states that the Supreme Court of Canada shall have jurisdiction as provided in any other Act confering jurisdiction.
Section 82 of the Exchequer Court Act reads as follows:—
Any party to any action, suit, cause, matter or other judicial proceeding in which the actual amount in controversy exceeds five hundred dollars, who is dissatisfied with any final judgment, or with any judgment upon any demurrer or point of law raised by the pleadings, given therein by the Exchequer Court, in virtue of any jurisdiction now or hereafter, in any manner, vested in the Court and who is desirous of appealing against such judgment, may, within thirty days from the day on which such judgment has been given, or within such further time as a judge of such Court allows, deposit with the Registrar of the Supreme Court the sum of fifty dollars by way of security for costs. The respondent laid emphasis on the word "vested" in the above section.
It contended that the jurisdiction exercised in the premises by the Exchequer Court was not "vested in the Court" under the provisions of the Exchequer Court Act; that it was conferred upon the Court by force of section 7 of the War Measures Act and as a consequence of the reference made by the Minister of Justice; that therefore the present proceedings did not come within section 82 of the Act, and that accordingly there was no right of appeal, since the Court did not decide the matter in virtue of its ordinary jurisdiction but acted as curia designata.
I do not think the argument is well founded.
When all is said and considered, the question of whether a court or judge indicated in a statute is intended as a persona designata depends upon the construction to be given to the statute wherein the said court or judge is indicated; and, in the present instance, there is a strong presumption that Parliament meant the appointed court or judge to act in its judicial capacity.
It is to be noticed that the statute giving the authority or jurisdiction to each of the courts enumerated in section 7 or to a judge thereof, does not purport to grant or to give special and independent powers either to the court or to the judge to whom the reference is made. It says that the Minister of Justice should refer the matter of compensation to the court or to a judge thereof, without more.
When once the reference is made, the court or the judge is to deal with the matter in the ordinary way and according to the powers vested in it by the general Act and the inherent powers which it already possesses. Indeed, if the court or judge chosen by the Minister of Justice were not to resort to the powers vested in them by the general Act and in the ordinary way, it would seem that the exercise of its jurisdiction would be practically unworkable.
The intention of Parliament was clearly, in this instance, that the Exchequer Court to which the reference has been made, should act as a Court in accordance with the provisions of the Exchequer Court Act and that all the provisions of that Act should apply to the reference thus made by the Minister of Justice. Now, section 82 of the Exchequer Court Act read in connection with section 44 of the Supreme Court Act, is to the effect that any final judgment given by the Exchequer Court "in virtue of any jurisdiction now or hereafter, in any manner, vested in the Court" is appealable to the Supreme Court of Canada.
Even if, as contended by the respondent, the jurisdiction herein exercised is not to be held "vested in the Court" under sections 18 and following of the Exchequer Court Act, it is not to be doubted that, upon any view of the matter, the jurisdiction here is given to the Exchequer Court by force of section 7 of the War Measures Act, through the reference made to that Court by the Minister of Justice. It is a jurisdiction "in any manner vested in the Court" at least as a result of the application of the War Measures Act and therefore "vested" within the meaning of section 82.
The consequence is unavoidable that the latter section applies to the reference and that a right of appeal is thereby given to the Supreme Court of Canada.
A great number of judgments were referred to by counsel of both parties in this case; but, as usual, very few of them have real application to the question now under discussion, because these judgments dealt with questions different from those which are raised in the motion to quash, and statutes differently worded. In the cases referred to, the courts were called upon to interpret statutes differing in language or in aim from the Acts now before this Court. (See Lord Davey in Commissioners of Taxation v. Kirk[2]).
Let us take, for example, Valin v. Langlois[3]. In that case, Parliament had conferred upon provincial judges in Dominion Controverted Elections cases an exceptional jurisdiction with a special procedure and with all powers material for exercising such jurisdiction and having nothing in common with the provincial courts. It was held that these judges and courts were merely utilized outside their respective jurisdiction to deal with this purely Dominion matter. Again in Canadian Northern Ontario Railway Company v. Smith[4] it was pointed out that the judge to whom the application was made under the Dominion Railway Act was, it is true, a judge of the Superior Court of the Province, but, for the purposes of that application, his jurisdiction was "special and peculiar, distinct from, and independent of any power or authority with which he is clothed as a judge of that court"; the Act conferring jurisdiction upon him provides all necessary material for the full and complete exercise of such jurisdiction in a very special manner, wholly independent of, and distinct from, and at variance with, the jurisdiction and procedure of the court to which he belongs.
Duff J. (as he then was), at page 480, expresses the view that the jurisdiction created by section 196 of the Railway Act (c. 37, R.S.C., 1906) was not "a jurisdiction given to the Superior Court or County Court as the case may be, but to the judge or judges of those courts"; and he added, "in other words, when acting under that section the judge does not exercise the powers of the court as such but the special powers given by the Act".
Of all the other cases relied on by the respondent, in his motion to quash, I find it necessary to refer only to the following:
Warner Quinlan Asphalt Company v. The King[5]. This was a case initiated under section 7 of the War Measures Act. The judgment of the Exchequer Court was affirmed and the decision of this Court was rendered on the merits of the case.
Idington J. questioned whether any right of appeal existed and he referred to Gosnell v. Minister of Mines[6] and Wigle v. The Corporation of the Township of Gosfield[7]. He declined, however, to dispose of the case on the question of jurisdiction and he said that, after hearing a very elaborate argument on the merits of the case, he had come to the conclusion, for the reasons assigned by the learned trial judge with which he agreed, that his judgment was right and that the appeal should be accordingly dismissed. Duff J. (as he then was), with whom Sir Louis Davies, C.J., Mignault and Malouin JJ. concurred, after stating that the question whether section 7 of the War Measures Act contemplated "a determination by the court to which the claim is referred to be final and non-appealable" was one "of some little difficulty", said that he had come to a clear opinion upon the merits of the claim advanced by the appellant and that therefore he did not propose to consider the question of jurisdiction.
The question was therefore left undecided.
Consolidated Wafer Company Limited v. International Cone Company Limited[8]. The judgment of the Exchequer Court had ordered, under section 40 of the Patent Act, on appeal from the Commissioner of Patents, the Consolidated Wafer Company Limited to grant a licence to the International Cone Company to make and use a machine covered by the Wafer Company's patent at a licence fee fixed by the judgment. It was held that the Supreme Court of Canada had jurisdiction to hear the appeal and the judgment was affirmed.
His Majesty the King v. MacKay[9]. The Crown, in April, 1918, pursuant to Order in Council passed under the War Measures Act, 1914, requisitioned the respondent's ship. The Exchequer Court of Canada fixed the compensation at $11,000 as being the ship's value at time of requisition, with interest thereon from the date of the requisition to the date of the judgment. The Crown appealed against the allowance of interest. The case was heard on its merits in this Court and the appeal allowed without any question being raised on the jurisdiction of this Court.
The Sun Life Assurance Company of Canada v. The Superintendent of Insurance[10]. This was an appeal to the Exchequer Court under the provisions of subsections 5 and 6 of section 68 of the Insurance Act from a ruling of the Superintendent of Insurance. The ruling was upheld by the Exchequer Court and then came the appeal to this Court. The appeal was dismissed on its merits, Newcombe J. agreeing with the conclusion of the judgment of Chief Justice Anglin with whom Cannon J. also concurred, while Duff and Smith JJ. dissented. Chief Justice Anglin and Cannon J. were of the opinion that the Supreme Court of Canada was without jurisdiction to entertain the appeal, as no actual amount was in controversy and no tangible property possessing a money value was at stake in the appeal, nor would the rights of shareholders be legally affected by its determination. (Sections 82 and 83 of the Exchequer Court Act). They thought that moreover, by giving under subsection 5 of section 68 of the Insurance Act a right of appeal to the Exchequer Court (in a summary manner) from the ruling of the Superintendent of Insurance, the Parliament intended to make that Court curia designata for the purpose of supervising acts of an official and the summary jurisdiction to be thus exercised by the Court so designated should be final and conclusive.
On the other hand, Duff and Smith JJ. held that an appeal lay to this Court from the judgment of the Exchequer Court. In their view, the right of appeal from that Court does not exist only when the judicial proceeding involves a pecuniary demand; the construction of section 82 of the Act should be determined by the decisions rendered by this Court under section 46 of the old Supreme Court Act; and it has been held that, when the matter in controversy was, for example, the right to pass a by-law and so to nullify a contract, there was jurisdiction if the right immediately involved amounted to $2,000. Moreover, the proceeding in the Exchequer Court was a "judicial proceeding" and the adjudication by that Court was a "judgment within the meaning of sections 82 and 83 of the Exchequer Court Act".
Thus, upon the question of jurisdiction, two of the judges of this Court were of opinion that jurisdiction lay, while two other judges held that it did not; and the case was disposed of on its merits, with Newcombe J. concurring in dismissing the appeal.
The Sun Life case went to the Judicial Committee of the Privy Council[11]. Before the Board, the question of the jurisdiction of the Supreme Court to consider the judgment of the Exchequer Court was given up and the only question argued before the Board was on the merits of the case: the ruling of the Superintendent of Insurance amending the annual company's report under the provisions of the Insurance Act; it did not afford any authority on the point we are now discussing, except to the extent that their Lordships agreed with the dissenting judges in the Courts below on the merits of the appeal and they ordered the remittance of the case to the Exchequer Court so that it may direct the Superintendent of Insurance to restore the figure of $4,000,000 in the return by the Sun Life Assurance Company as the authorized capital of the Company.
The only further case to which I care to refer, is that of The James Bay Railway Company v. Armstrong[12]. This was an appeal from a decision of the Chief Justice of the Common Pleas Division of the High Court of Justice for Ontario, increasing the award of arbitrators in proceedings for expropriation of plaintiff's land by the James Bay Railway Company.
Under section 168 of 3 Edward VII, c. 58, amending the Railway Act, 1903, if an award by arbitrators on expropriation of land by a railway company exceeded $600, any dissatisfied party could appeal therefrom to a Superior Court, which, in Ontario, meant the Court of Appeal and the High Court of Justice. It was held that if, under that section, an appeal from an award was taken to the High Court, there can be no further appeal to the Supreme Court of Canada, which cannot even give special leave.
Reference was made to Ottawa Electric Company v. Brennan[13].
The case of Birely v. Toronto, Hamilton and Buffalo Railway Company[14] was there referred to with approval, in which it was held "that no appeal lay from the judgment of the High Court to the Court of Appeal in such a case, both those courts being designated by the statute as special tribunals, to either of which the appellant might resort".
In the Privy Council[15], the appeal was dismissed. It was held that according to the true construction of section 168 of the Canada Railway Act, 1903, the appeal given to a Superior Court from an award under that Act, lies, in the province of Ontario, to either the Court of Appeal or the High Court of Justice at the option of an appellant; but that in case of appeal to the High Court, inasmuch as it is not the Court of last resort in the province within the meaning of the Supreme and Exchequer Courts Act, (R.S.C. 1886 c. 135, section 26), there was no appeal therefrom to the Supreme Court of Canada.
The ground upon which the judgment of the Privy Council was based was, therefore, that there was no right of appeal from the judgment of the High Court of Ontario because that Court is not, within the meaning of section 36 of the Supreme Court Act, "the highest court of final resort" established in the province of Ontario; and that an appeal lies to the Supreme Court of Canada only from such highest court of last resort. That is not a decision which can be of any help to the appellant in the premises.
On this point, I am of opinion that the respondent fails on his motion to quash.
So far as the letter of the Minister of National Defence for Naval Services dated March 12th, 1941, is concerned, I do not think it has the meaning ascribed to it by the respondent; and, moreover, the letter was filed only in this Court in support of the motion to quash. It was not put or invoked before the learned trial judge in the Exchequer Court and was not referred to in any way while the case was before that Court. The letter itself was by no means resorted to for the purpose of referring the matter to that Court nor can it be interpreted as intending to make the Exchequer Court a mere arbitrator between the parties.
By the very terms of the reference, the matter was brought to the Exchequer Court under section 7 of the War Measures Act, through the intervention of the Minister of Justice, and it was as a consequence of the reference so made that jurisdiction in the matter was vested in the Exchequer Court. I cannot accede to the contention of the respondent that this had the effect that the determination of the amount of the respondent's claim by the Exchequer Court was to be final and non-appealable, as that appeal is provided by the provisions of section 44 of the Supreme Court Act.
The respondent's motion to quash for want of jurisdiction ought, therefore, to be dismissed with costs.
I shall now take up the judgment on the merits of the adjudication which it has made, and for the purpose of this discussion, the award in respect of the Seaborn must be envisaged separately from that with regard to the Sankaty.
Very little need be said about the Seaborn. She was entered in the balance sheets of the respondent as representing a value of $92,764.63, as we have already seen. That figure included $79,500 for the "vessel at cost", $6,505.14 for maintenance and $6,759.49 for "expenses directly applicable". By Order in Council, the Minister was authorized to pay the sum of $196,377.55 for the acquisition and charter hire of the two vessels stated. The sum was made up as follows:—
Advisory Board valuation of Seaborn. . . . . . . . . . . .. . .
$92,764.63
Charter hire payable on Seaborn. . . . . . . . . . . . . . . . .
8,200.00
Advisory Board valuation of Sankaty. . . . . . . . . . . . . .
83,900.00
Charter hire payable on Sankaty . . . . . . . . . . . . . . . . .
11,512.92
$196,377.55
Such was the sum paid to the company and detail of the amount so paid.
Thus, disregarding the $8,200 for charter hire of the Seaborn, the actual figure tendered and paid for the acquisition of that vessel is therefore the last sum entered in the balance sheet of the respondent as at December 31, 1939. Therefore the Government paid for the cost, for the maintenance and for the expenses directly applicable as entered in the books of the company.
Then if we look at the reasons for judgment of the learned trial judge, we find the following:—
The proof shows that the cost of overhauling her [the Seaborn] and bringing her from New London, Conn., to Halifax and the cost of her maintenance until she was requisitioned totalled $16,651.94. It is also established that the structural changes, which were effected on her but were not completed on account of her being taken over by the [appellant, His Majesty the King], cost $2,181.73. These various items [including $80,000 for the purchase price of the Seaborn] form a total of $98,833.67.
And the learned judge concludes:—
After taking into consideration the various elements hereinabove referred to, I have reached the conclusion that the value of the Seaborn * * * to her owner, Northumberland Ferries Limited, during the summer of 1939, before the declaration of war, was $100,000.
Under the circumstances, I do not feel that this Court would be justified in interfering with the award made by the learned judge in respect of the Seaborn. It need only be said that there was undoubtedly evidence upon which the learned trial judge could make the award he made. It would be asking too much from an Appellate Court to nullify the judgment of the learned trial judge in expropriation matters, merely because in its own view the Court might think that, on a total award of $100,000, there might be a possible error of valuation amounting to $1,166.33.
Only in two respects could the correctness of the award be disputed.
(1) On the ground that the learned trial judge would appear to have taken the purchase price of the Seaborn to have been $80,000, of which $30,000 was paid in cash, $25,000 by shares, and $25,000 by two mortgage bonds of the Company; and it was argued by the appellant that the shares and the bonds should not be considered at their face value, because they were subsequently acquired by other interested parties for the sum of $25,000.
But the learned trial judge was perfectly justified to decide that the subsequent sale of the shares and bonds was not made at their true value. Several reasons may have prompted the vendor to accept that sum as being in exchange for the shares and bonds. So far as the respondent was concerned, he undoubtedly continued to be responsible for the full amount of $25,000 represented by the second mortgage bonds and it cannot be assumed that the shares were valueless, in the absence of any evidence to that effect.
Moreover, the purchase price of a ship does not necessarily represent the value of that ship. Such value may be either less or more than the purchase