The Queen v. Doutre

The Queen v. Doutre
Collection
Supreme Court Judgments
Date
1882-05-13
Report
(1882) 6 SCR 342
Judges
Fournier, Télesphore; Henry, William Alexander; Gwynne, John Wellington; Strong, Samuel Henry; Taschereau, Henri-Elzéar; Ritchie, William Johnstone
On appeal from
Federal Court of Appeal
Subjects
Civil procedure
Decision Content
Supreme Court of Canada
The Queen v. Doutre, (1882) 6 SCR 342
Date: 1882-05-13
The Queen
Appellant
And
Joseph Doutre
Respondent
1881: Nov. 17; 1882: May 13
Present—Sir William J. Ritchie, Knight, C. J., and Strong, Fournier, Henry, Taschereau and Gwynne, J. J.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA;
Petition of right—Counsel fees, Action for—Retainer for services before Fishery Commission—Jurisdiction.
The suppliant, an advocate of the Province of Quebec, and one of Her Majesty's counsel, was retained by the Government of Canada as one of the counsel for Great Britain before the Fishery Commission which sat at Halifax pursuant to the Treaty of Washington, There was contradictory evidence as to the terms of the retainer, but the learned judge in the Exchequer Court found "That each of the counsel engaged was to receive a refresher equal to the retaining fee of $1,000, that they were to be at liberty to draw on a bank at Halifax for $1,000 a month during the sittings of the commission, that the expenses of the suppliant and his family were to be paid, and that the final amount of fees was to remain unsettled until after the award." The amount awarded by the Commissioners was $5,500,000. The suppliant claimed $10,000 as his remuneration, in addition to $8,000 already received by him.
Held 1. Per Fournier, Henry and Taschereau, J. J.: that the suppliant, under the agreement entered into with the Crown, was entitled to sue by petition of right for a reasonable sum in addition to the amount paid him, and that $8,000 awarded him in the Exchequer Court was a reasonable sum.
2. Per Fournier, Henry, Taschereau and Gwynne, J. J: By the law of the Province of Quebec, counsel and advocates can recover for fees stipulated for by an express agreement. 3. Per Fournier and Henry, J. J.: By the law also of the Province of Ontario, counsel can recover for such fees.
4. Per Strong, J.: The terms of the agreement, as established by the evidence, shewed (in addition to an express agreement to pay the suppliant's expenses) only an honorary and gratuitous undertaking on the part of the Crown to give additional renumeration for fees beyond the amount of fees paid, which undertaking is not only no foundation for an action but excludes any right of action as upon an implied contract to pay the reasonable value of the services rendered; and the suppliant could therefore recover only his expenses in addition to the amount so paid.
5. Per Ritchie, C. J.: As the agreement between the suppliant and the Minister of Marine and Fisheries, on behalf of Her Majesty, was made at Ottawa, in Ontario, for services to be performed at Halifax, in Nova Scotia, it was not subject to the law of Quebec: that in neither Ontario nor Nova Scotia could a barrister maintain an action for fees, and therefore that the petition would not lie.
6. Per Gwynne, J.: By the Petition of Right Act, sec. 8, the subject is denied any remedy against the Crown in any case in which he would not have been entitled to such remedy in England, under similar circumstances. By the laws in force there prior to 23 and 24 Vic. cap. 34 (Imp.) counsel could not, at that time, in England, have enforced payment of counsel fees by the Crown, and therefore the suppliant should not recover.
Appeal from of the Exchequer Court of Canada.
The respondent filed a petition of right claiming from Her Majesty a sum of $10,000 as being the balance of the value of his work and labor, care, diligence and attendance in and about the preparation of and conducting Her Majesty's claim before the Halifax Commission, which sat under the Treaty of Washington, in the summer of 1877, at Halifax, to arbitrate upon the differences between Great Britain and the United States in connection with the value of the inshore fisheries, etc, and for money by respondent paid, laid out and expended in travelling and remaining at divers places on Her Majesty's business connected with the said claim. The respondent had been paid the sum of $8,000, and the Crown defended on the ground that the amount paid was accepted in full by the suppliant.
That if not accepted in full by the suppliant, the amount paid was a sufficient remuneration for his services, and that a petition of right did not lie to enforce a claim for counsel fees under the circumstances of this case.
The other facts and pleadings are fully stated in the judgments. The cause was tried before Mr. Justice Fournier, Mr. Lash, Q.C., and Mr. Hogg appearing on behalf of the Crown and Mr. Haliburton, Q.C., and Mr. Ferguson for the suppliant.
On the 13th January, 1881, Mr. Justice Fournier delivered the following judgment in favor of the suppliant:
"On the 1st day of October, 1875, the suppliant, an advocate and a Queen's counsel, residing in the city of Montreal, was retained by the then Minister of Justice, to act as counsel for the Government of Canada before the Fishery Commission, charged by the treaty of Washington between Her Majesty and the United States of America (8th May, 1871,) with the duty of deciding the amount to be paid by the Government of the United States for the privilege given to their citizens of using the fisheries of British North America in accordance with the XVIII Art of the treaty. The letter retaining the services of the suppliant as counsel in the matter is as follows:—
DEPARTMENT OF JUSTICE, CANADA,
OTTAWA, 1st October, 1875.
Sir,—The Minister of Justice desires me to state that the Government being desirous to retain counsel to act for them upon the proceedings in connection with the Fishery Commission to sit at Halifax under the Treaty of Washington, he will be glad to avail himself of your services as one of such counsel in conjunction with Messrs. Samuel R. Thomson, Q.C., of St John, N.B., and Robert L. Weatherbe, Barrister, of Halifax. The Minister will be glad to know whether you are willing to act in that capacity, and in that case to place you in communication with the Department of Marine and Fisheries upon the subject.
Your obedient servant,
(Signed) H. BERNARD,
D. M. J.
Jos. Doutre, Esq., Q.C.
Montreal.
"The suppliant alleges that from that time (1st October 1875) he held himself at the disposal of the officers of the Crown, and was thereafter in correspondence with the Department of Marine and Fisheries, to whom the management of the Fishery Commission and the carrying out of the fishery clauses of the said treaty had been delegated. That he received most voluminous communications at different times, with request to make himself familiar with the contents thereof, and that in order to fulfil his duties he was obliged to freqnently travel from Montreal to Ottawa, &c. That when the commission was organized, he was requested to repair to Halifax to attend the sittings of the commission, commencing on the 15th June, 1877, and lasting until 23rd November following.
"That the sittings of the commission having been considered to last about six months he removed to Halifax with his family, and was there during the whole of that period attending day by day to the duties of his office.
"That by the award rendered by the commissioners the 23rd November, 1877, an indemnity of $5,500,000 was granted to Her Majesty's Government in return for the privileges accorded to the citizens of the United States under article XVIII of the said Treaty. That for more than two years he was employed in preparing and supporting the claim of Her Majesty. "That the expenses incurred by him in the performance of his duties exceeded eight thousand dollars and that he had not received anything as remuneration for his services.
"That considering the magnitude of the case, involving a claim of over fourteen millions of dollars, and resulting in an award of five millions and one half, and considering also the importance of the questions in dispute, which engaged the policy of the empire on most delicate subjects of international law, the moral responsibility of the petitioner, his prolonged studies and anxiety of mind were taxed to the extent of bringing heavy and lasting loss in his professional affairs, and to disarrange and entirely alter his family and domestic arrangements, the whole at heavy consequential expense and cost.
"That on the eve of leaving his home for Halifax, to wit: in May (1877), the petitioner made with the Department of Marine and Fisheries a temporary and provisional arrangement under which the petitioner should be paid one thousand dollars a month for current expenses while in Halifax, leaving the final settlement of fees and expenses to be arranged after the closing of the commission.
"That soon after the closing of the commission the suppliant, with the view of facilitating an immediate and amicable adjustment, limited his claims to $8,000, over and above the amount previously paid to him.
"That he was entitled to a much larger sum, and that in consequence of the expenses and loss of time incurred in travelling, corresponding, and otherwise endeavoring to obtain a settlement of his claim, with interest upon the amount thereof, he was entitled now to demand and receive $10,000 over and above the amount provisionally paid to him. Then follows two other allegations, one claiming the same amount as a quantum meruit for his services, and the other that Her Majesty's representatives had recognized his rights to the indemnity claimed.
"The answer of the Attorney General admits that the suppliant acted as one of the counsel for the Crown, but denies all other statements, and concludes as follows:
"'I submit that the suppliant as such counsel cannot enforce a claim for counsel fees, and that no action lies for the recovery thereof, and I claim the same benefit from said objection as if I had demurred to the said petition.'
"The suppliant then joined issue on all the paragraphs of the defendant's statement of defence, and as to paragraph 6 he specially replied that he is an advocate of the province of Quebec and as such fulfils the duties of solicitor, barrister, &c., and that it was as such advocate that he was retained by the Crown by the letter from the Department of Justice dated the 1st October, received by him at Montreal, from whence he wrote his reply agreeing to act for the Crown as requested, and that, as such advocate of the province of Quebec, he is by law of that province entitled to claim and recover from the Crown the amount claimed by him.
"On this issue a portion of the evidence relating to the value of the suppliant's services was taken at Montreal, and the balance was taken before me in open court, as well as the evidence, much more important, relating to the agreement as alleged by the suppliant in reference to his remuneration as counsel.
"Although the parties have argued several questions of importance there is really only one point upon the determination of which the decision of this petition rests: it is to determine whether a contract was in fact made between the parties, as alleged in the 9th paragraph of the petition, and whether, under that contract, the suppliant is entitled to recover by petition of right, the value of the services he rendered as an advocate and a counsel engaged by the Crown to act for it before the Commission at Halifax on the fishery question? I will not now refer to the question raised as to the place where the contract was entered into, as it is of importance only as regards the admissibility of the suppliant's evidence on his own behalf I will express my opinion on this point at a later stage, when I will refer to the evidence relating to the contract, its conditions and other circumstances which affect its character.
"The fact that there was a contract to pay a certain sum of money disposes of the objection made to the jurisdiction of this court by the counsel for the Crown for the first time on the argument. The Exchequer Court in England, having jurisdiction in all cases of demand by a subject against the Crown for money due or land claimed, the Exchequer Court of Canada having jurisdiction in similar cases, I need not add anything on this point, which does not seem to me to offer any difficulty.
"The evidence given in support of the alleged contract is both written and oral. The first consists of letters filed by the suppliant and the written memorandum of Mr. Whitcher, Commissioner of Fisheries, taken at the time of the interview which took place between the Minister of Marine and Fisheries and the suppliant, and at which interview the amount of remuneration to be paid to the counsel engaged before the commission at Halifax was settled upon; and the second consists of the oral testimonies of the Minister of Marine and Fisheries, Sir Albert Smith, that of his deputy, Mr. Whitcher, and that of the suppliant. An unfortunate circumstance has deprived the suppliant of the possibility of producing the original of a letter addressed by him to the Minister, Sir Albert Smith, in which letter he explicitly stated the amount of remuneration that was to be paid to him and his colleagues. Although every effort has been made in the department to find this letter, the receipt of which is acknowledged, it has not been found. A press copy of the letter was sent by the suppliant to his colleagues at Halifax, and handed over from one to the other in order to let them know what was their position as to fees, and this copy also could not be found. Under such circumstances the suppliant is entitled to offer secondary evidence of the contents of the letter containing the agreement arrived at between himself and the Minister of Marine and Fisheries. This evidence was received, and consists of the statements made by the petitioner, and of his letters on this subject to his colleagues—and the evidence of the Commissioner of Fisheries, Mr. Whitcher. Mr. Doutre, referring to the lost letter, says in his evidence:
I had a press copy of it, and in order to show my colleagues the ground on which we stood in Halifax it passed from one to another, and as I thought that I had fulfilled all the objects for which we had to go to Halifax, I never kept it. In that letter I stated to the Minister that the period of time during which I was going to be absent being so long, I did not think I could go there without taking my family with me, that the distance was so great that I could not expect to come home during the six months that the commission was expected to sit, that I could not leave my base of supplies without feeling that I would not be embarrassed for want of money in Halifax. I went further, and suggested that we should each receive a refresher of one thousand dollars, and that we should, while in Halifax, be able to draw on the bank at Halifax for $1,000 per month to meet our expenses. On this I received a telegram from the Minister to come to Ottawa. I came and had a conversation with him and Mr. Whitcher, The three of us were alone, and this was the only interview that I had on the subject. I insist upon this, because afterwards Sir A. J. Smith pretended that Sir A. T. Galt and Mr. Ford, the British Agent, and Mr. Bergne, Secretary of the Commission, at Halifax, knew something of the arrangement made with me. That could not possibly be, because that was the only occasion on which I had a conversation with the Minister on the subject, and the only person present then was Mr. Whitcher. The Minister had my letter in his hand, and he said: "I would like to know what you mean by future arrangement as contained in your letter." I had stated that we would settle finally the amount of remuneration and expenses after the commission would be over. I said: "I mean that I am too ignorant of the adventure into which I am entering to state precisely what the remuneration should be. I do not know how we will come out of that commission. I have no power to bind my colleagues, and I am making such arrangement as will suit them temporarily until the commission is over, and then it can be settled finally." I stated that for those two reasons—that I could not bind my colleagues, and that I was too much in the dark to determine anything precisely—I insisted upon making some temporary arrangement, which would relieve us from money embarrassment while we were away."
Then Sir A. J. Smith said: "Do you mean that if we obtain nothing from the Commission you will be lenient or have mercy upon us, and if we obtain a good award you will expect to be treated liberally?" I said: You may put it on that basis if you like, but it "is only then that we will be able to settle the matter." This ended the conversation. The $1,000 were expected to meet our expenses, and we were going to live in a place where we did not know how the expenses might run.
Q. You proposed then that you should receive $1,000 refresher and $1,000 a month while in Halifax?—A. Yes.
Q. And subsequently to settle for your expenses and fees?—A. Yes.
Q. About what time was the date of that interview?—A. That interview must have taken place about the 23rd or 24th of May, because on the 25th I wrote to my several colleagues, telling them what had been done, and in each of these letters they stated to me—it was particularly mentioned—that the arrangement was purely a temporary one——
Objected to as secondary. Evidence allowed under reserve of objection.
A. (Continued.) The letter which I now produce and fyle as Exhibit No. 4 was written to Mr. Thomson on the very day that I wrote that letter which is missing. There are two letters, dated the 7th May, one to Mr. Thomson and the other to Mr. Weatherbe. The one to Mr. Thomson was written on the 7th May, and on Saturday I wrote to Mr. Weatherbe to the same effect. Here is a letter written on the 30th of May to Mr. Davies living at Charlottetown, who was, at the time, Attorney General in his province.
This was after that interview, so that the letters written immediately after my letter to the Minister agree together, and all show the agreement between the Minister and myself.
"According to Sir Albert Smith's statement of what took place at that interview, the nature of the agreement arrived at would be totally different from what is alleged by the suppliant. Instead of being, as alleged by Mr. Doutre, a provisional understanding that the amount of fees to be paid him would be only definitely settled upon when the final award of the commissioners was given, the arrangement, as remembered by Sir Albert Smith, was a final arrangement, and was such as stated by Mr. Doutre, except as to the latter part, which leaves the question of the amount unsettled.
They are both in direct contradiction on this important point. I will therefore also read the evidence given by Sir A. Smith. He says:
My memory of the conversation is this: they had already received $1,000 which I understood to be a compensation for services up to that time. After that we were to give them $1,000 a month while in Halifax, and Mr. Doutre suggested that in case we succeeded in obtaining a handsome award, it would be a matter for the Government to consider if they were to get a gratuity after the case was over; that was my understanding.
Q. Then $2,000 would be the amount in full up to that time?— A. Yes, that was my understanding; Mr. Doutre said, I recollect distinctly, something about gratuity if we succeeded in getting a handsome award. That then it would be a matter for the Government to consider whether they would make gratuity.
Q. But the contract for payment was limited to $1,000?—A. Yes.
Q. And anything further than that was to be a gratuity?—A. That was my understanding of it, and that is what I communicated to my colleagues and to Mr. Ford. I know that Mr. Ford and I discussed the question. Mr. Doutre knows that too. I told him more than once that I would have to communicate the matter to Mr. Ford.
Q. That a $1,000 a month while in Halifax was to cover the services and expenses?—A. I understood it so. I remember that Mr. Doutre stated on this occasion that he intended to take his family to Halifax, but that was a matter I did not think the Government would be justified in paying his expenses. That was personal to himself.
Q. You certainly did not agree to pay the expenses of his family?— A. As a member of the Government I could not assume any such liability as that.
"I find here two contradictory statements. The suppliant swears the amount of fees was to be settled upon after the final determination of the proceedings of the commission, whilst Sir Albert Smith states that the payment of $1,000 per month so long as the sittings of the commission would last was all that he agreed to pay. The suppliant also adds that his expenses as well as those of his family were to be paid above the amount to be paid him for his fees. Sir Albert Smith does not contradict this statement, but says that as a member of the Government he could not have assumed that responsibility.
"The witnesses who have made such contradictory statements are both men of honor and of equal respectability—neither one nor the other can be suspected of wishing to mislead the court. It can only be a question of memory, so that if no corroborative evidence was given I would have, independently of the fact that the suppliant's evidence is that of an interested witness, come to the conclusion that he had not proved the contract on which he has based his claim. But it appears that there was a third party present at the interview in question, whose testimony must be taken into consideration, and it induces me to adopt one version in preference to that of the other. It was Mr. Whitcher who was then present in his official capacity, and who, as Commissioner of Fisheries, attended under the direction of the Minister to almost all matters connected with the Fisheries Commission at Halifax. There was no matter of importance concluded without his knowledge, and his evidence in his position must therefore have great weight in deciding what agreement was arrived at.
Mr. Whitcher's evidence:
Q. You have heard the letter written by Mr. Doutre, May, 1877, with regard to the remuneration of counsel?—A, Yes.
Q. Had you that letter in your possession?—A. There were several discussions with regard to the remuneration of counsel. On one occasion I remember the Minister asked Mr. Doutre to put the demand of the several counsel in writing. This letter, I suppose, would be the result of that. I saw it in the hands of the Minister and it formed the subject of a discussion with the Minister. The last place that I saw that letter was in the hands of Mr. Ford, with whom the Minister was consulting with regard to the rates to be allowed. I searched the records to make sure that it had not escaped attention. I locked not only in the records but also among the semi-official letters which are not on record in the department, but could not find it.
Q. Subsequent to the receipt of the letter Mr, Doutre had an interview with the Minister in reference to this question, had he not? —A. Yes, Mr. Doutre was there quite a number of times, but I remember one particular instance when he pressed for a decision as well for the other counsel as on his own behalf. That was the occasion, if I recollect rightly, when this letter was discussed, but there had been other discussions at intervals prior to that.
Q. What took place at that interview?—A. It would be difficult to say what occurred, there was so much conversation.
Q. Who was present?— A. I was present, but took no part in the conversation.
Q. Who else was present?—A. The Minister and Mr. Doutre.
Q. This latter, you say, was discussed, was any definite arrangement arrived at?—A. The general character of the conversation was that the Minister seemed a little unwilling to have the thing open, and was pressing for some definite terms, as I understood it. It ended in an understanding that this would be a temporary arrangement so far as it was not specified, that is to say, there was to be $1,000 paid for retainer, $1,000 for refresher, and $1,000 per month while the commission sat. There was some difference as to the junior counsel, but that is not pertinent to this. Further remuneration to these amounts was to form the subject of after consideration. I do not pretend to recite the words, there were so many conversations that it would be impossible to remember them all.
Q. Did you make a note of the conversation?—A. Yes. As I was paymaster throughout the whole commission I kept memoranda of all agreements.
Q. Have you & memorandum of that agreement?—A. I have memoranda of all discussions which took place, but of course these are to a certain extent official records, and I have no authority for laying these before the court. They contain other matter not at all pertinent to the case.
Q. Have you the memorandum here?—A. I have, there is an entry on the 10th May, 1877. I may statethat there were discussions constantly going on as to the counsel, Professor Hind, Mr. Miall and others engaged upon the commission. This entry is amongst others, and is as follows:—"Counsel want $1,000 each as refresher and all expenses paid at Halifax." This, if I recollect it rightly in my memory, was the occasion when the Minister asked Mr. Doutre to reduce the proposition to writing. Further on I find amongst a number of other entries dated 23rd of May, the following:—"Agreed with counsel another $1,000 refresher and $1,000 per month during session of commission, all expenses of travelling and subsistence and a liberal gratuity on the conclusion of business."
I do not say that these are the exact words, but they are the substance of what I was to consider my directions.
Q. You have repeated one expression that you said you thought was used in the interview between Mr. Doutre and the Minister, that is "gratuity"?—A. I took the liberty of saying that those were not the words used, but the substance of them.
Q. What did you understand by the use of that word?—A. In connection with it being a temporary arrangement, it would be the final remuneration, you use the word "gratuity" when the money is not definite. If I go out on special service I would receive so much, and if, according to the issue of it I would get so much more, I would consider it a gratuity because it is not specified.
"This evidence, corroborated by the memorandum taken at the time of what took place during the interview between the Minister of Marine and Fisheries and the suppliant, confirms on every point the statement made by Mr. Doutre, and if we add to this the evidence to be gathered from the letters written by the suppliant to his colleagues, there is no doubt what conclusions ought to be arrived at.
"It must also be remarked that Sir Albert Smith admits that the only person he spoke to about the fees counsel were to receive was Mr. Doutre, and that he made no agreement whatever with the other counsel, Mr. Doutre acting officiously as senior counsel for his colleague. He had no authority to bind them, a fact which he states positively, and which Mr. Thomson one of the counsel corroborates. Then what was his first duty after he had concluded this agreement with the Minister? To communicate these conditions to his colleagues, and I find he did so as may be seen by the following letters:
"Letter to Mr. Thomson:
I have just written to Honorable A. J. Smith a confidential letter, in which I tell him that yourself and Mr. Weatherbe had left in my hands the question of our remuneration as counsel, but that I did not feel like taking the responsibility of committing us to any definite thing deprived as I was of your advice; that, however, I owed it to you and myself to take the necessary measures to provide for the present and the approaching session of the commissioners, that I thought we were entitled, as a mere temporary arrangement, to a refresher of $1,000 each, and that provisions should be made in your bank in Halifax where we could each draw one thousand dollars a month, beginning on the first of June. Adding that our sojourn in Halifax would necessarily be expensive, and that cut as we would be from our base of supply, we should feel at ease in this respect. This leaves the thing intact for further arrangements.
"Letter to Mr. Davies:
I have been in Ottawa at different intervals, and at a time I met there Mr. Thomson and Mr. Weatherbe. We understood you were prevented from coming by your parliamentary duties; we had spoken together of the advisability of coming to some understanding in regard to our fees with the Government, but Mr. Thomson and Mr, Weatherbe left without coming to anything in this respect. After their departure I went again to Ottawa with Messrs. Galt, Ford and Bergne, and I submitted the following proposition, viz: That each of us should receive a refresher equal to the original retainer, and that we should be allowed to draw on some bank in Halifax a similar amount to such retainer every month while being there, leaving a final arrangement to be made after the award, giving me to understand that if we were not very successful we would ask little or nothing.
This last part, however, is verbal only; what is written is that the above proposition would be a temporary arrangement, as I had no time to bind my colleagues. This was agreed upon. You may therefore draw upon W. F. Whitcher, Esq., Commissioner of Fisheries, for an amount equal to your first retainer.
"In addition to these letters the suppliant wrote on the 25th May, 1877 to Sir A. J. Smith informing him that he communicated to Messrs Thomson and Weatherbe the substance of their agreement in respect to the remuneration of counsel, viz: "I wrote to Messrs. Thomson and Weatherbe the substance of our arrangement as regards counsel."
"On the same day, in writing to Mr. Whitcher on various matters concerning this business, he says: "I wrote to Messrs. Thomson and Weatherbe the substance of the arrangement concerning the counsel. I think you should write to Mr. Davies." It appears from the date of two of these letters that they were written immediately after the letter he sent to Sir Albert Smith, as regards counsel fees, and in both of which he repeats the agreement made with the Minister, and states that it was provisional.
"Here also we find that immediately after sending this letter to the Minister he writes on the 30th May, to the Hon. T. H. Davies, informing him that the proposal he made had been accepted, summing up the result of his proceedings, viz: "I submitted the following proposition that, viz: each of us should receive a refresher equal to the original retainer, and that we be allowed to draw on some bank in Halifax a similar amount. Such retainer every month while there, leaving a final arrangement to be made after the award, giving me to understand that if we were not very successful we would ask little or nothing. This last part, however, is verbal only, what is written is that the above proposition would be a temporary arrangement, as I had no right to bind my colleagues. This was agreed upon. You may, therefore, draw immediately upon W. F. Whitcher, Esq., Commissioner of Fisheries, for an amount equal to your first retainer."
"It is clearly established by these letters, the two first being written on the 7th May, 1877, before the interview with the Minister, that Mr. Doutre referred to this arrangement as being a provisional arrangement. Now, relying upon the evidence of the suppliant, the evidence of Mr. Whitcher, and the notes he took down during Mr. Doutre's interview with the Minister, the letters addressed by suppliant to his colleagues, and taking into consideration the important fact that Sir Albert Smith has not in his possession any letters or notes referring to this matter to corroberate his statement, I have arrived at the conclusion that the proposal made to the Minister by Mr. Doutre by the letter which the Crown has been unable to produce, but the terms and conditions of which have been proved by the suppliant and other letters, was accepted by the Minister at the interview which took place between them on the 23rd May, and at which interview Mr. Whitcher was present taking notes, and that the terms of the agreement were as follows: That each of the counsel engaged would receive a refresher equal to the first retainer of $1,000, that they could draw on a bank at Halifax $1,000 per month while the sittings of the commission lasted, that the expenses of the suppliant and of his family would be paid, and that the final amount of fees or remuneration to be paid to counsel would remain unsettled until after the award of the commissioners.
"From the evidence adduced I find that these are the terms and conditions of the contract entered into between the suppliant and the Minister of Marine and Fisheries.
"It was at Ottawa the contract was concluded during the interview which Mr. Whitcher attended, to which Mr. Doutre had been specially called.
"Being of opinion that the contract was concluded at Ottawa and not at Montreal as contended for by the suppliant, the question which was raised as to the admissibility of the suppliants' evidence on his own behalf must, therefore, be decided in accordance with the law in force in Ontario.
"The law in Ontario allows a party to a suit to be heard on his own behalf, I, therefore, find that the evidence of the suppliant which would not be admissible in this case according to the laws of Quebec, forms part of the record and is legal evidence.
"I do not think there is any weight in the observation made by Sir Albert Smith that he had no right to assume the responsibility of paying the expenses of Mr. Doutre's family.
"Sir Albert Smith had, over this question of expenses, which was only one of the several points to be considered, when determining the amount of remuneration to be paid counsel, the same authority he had to agree to pay the amounts specified as refreshers and the other sums payable monthly, it being a matter of agreement. I am of opinion that the evidence shows the payment of these expenses was one of the stipulations of the contract. Moreover, his authority to enter into such an agreement has not been denied by any of the pleas set up by the defence, he alone has referred to it. Now, whether the suppliant could bring an action before a Court of Justice to recover the amount due him under an agreement for his services as advocate, counsel, &c., is a point which cannot admit of a doubt after the decisions which have been given by courts of justice in the province of Ontario and Quebec. See McDougall v. Campbell[1]. Beaudry v. Ouimet[2].
"Moreover, in this case the right of action is based on a contract made by the Government under the authority, first of the treaty of Washington, 8th May, 1871, and then of 85 Vic. c. 2, which incorporated as part of the law of Canada, the fishery articles of the treaty. It is under article 25 of the treaty which imposes upon each of the high contracting parties the obligation to pay the counsel retained by them to prepare and support their case before the commission, that this contract has been made.
"This obligation, independent of the decisions of the courts, gives to the counsel engaged a right of action to recover a remuneration for their services. This right of action, in the present case, as I have just stated, is founded on a statutory enactment, and as I am of opinion that the suppliant's right to recover is based on the law and the agreement entered into between the parties, I have not deemed it necessary to examine the point raised, whether on a simple case of quantum meruit, the suppliant could have recovered the value of his services in the present case, as they were rendered outside of the forum of courts of justice. I am of opinion that the facts of the case do not allow me to consider this question. But as I have shewn above, the contract has not determined a fixed amount of remuneration to be paid; on the contrary, it was agreed upon between the parties that the amount would be settled only after the award of the commissioners. Since that time the parties have been unable to arrive at a settlement, and it is therefore now the duty of the court to determine the amount from the evidence adduced in the case.
"In order to arrive at a proper and equitable conclusion on this point, it is necessary for me to take into consideration, not only the amount of professional work done before the commission which sat for six months, but also the enormous amount of work bestowed in preparing the case, the magnitude of the amount involved, estimated by the Canadian Government at $12,000,000, the importance of the questions in dispute, the responsibility of the counsel and the result of the award. In order to give an exact idea of this I cannot do better than cite a part of the evidence relating to this branch of the case.
"It will be seen that the suppliant did not act only as counsel to argue the case and give his opinion, but acted also as solicitor and advocate by preparing and conducting the procedure before the commission.
Immediately after my letter of acceptance I received most voluminous correspondence from Ottawa, all marked "Confidential," which I could not read or study at my office without running a risk of breaking the seal of confidence which was impressed upon every paper transmitted to me, so I had to work at home and at night giving opinions on all those papers, as I was requested to do. Almost every time that I received papers from the department I. was requested after reading them to give my opinion or impression on the subject. If it were not loading the case with too voluminous papers, I could show what I received gradually from the department, but it is an immense mass of paper and I do not know that it is of any use putting it in.
I had many interviews with the Department of Marine and Fisheries, generally with the Minister himself, or the Commissioner of Fisheries, Mr. Whitcher. At times I spent three weeks in Ottawa in consultation, in order to see what kind of questions we would bring before the Commission, it was a most intricate matter, unknown to any member of any bar, and unknown also to the department in which it had originated, we were in complete darkness * * * I have referred now to the only two meetings, one in St John, N.B., and the other in Ottawa, that we had of the counsel together. In addition to that, I was very often called upon to come up from Montreal to Ottawa to consult with the department; I was also charged by Mr. Ford to prepare rales of procedure for the commission and I spent here some eight or ten days in selecting books in the Parliament Library to support the contention that we were interested in—books on international law, some sixty or seventy volumes, which I requested to be sent to Halifax for the use of the commission—I could not designate those books without knowing whether they would be suitable, and so to make that selection of sixty or seventy volumes I had to handle some two hundred volumes first.
In the interval between my appointment in the fall of 1875 up to the meeting of the commission I received many papers, some of which are fyled. I received them periodically and several times during the week at times, but at other times at greater intervals.
"We can imagine the amount of work performed by counsel by referring to Mr. Whitcher's answer to the following question:
Q. During the two years prior to the meeting of the commission, or from October, 1875, when Mr. Doutre was retained, until the Commission sat, you say that Mr. Doutre made numerous visits to Ottawa in the preparation of the case?
A. Yes, there was an immense mass of material to be dealt with and digested, and there was a very indefinite proceeding before us with regard to what portions of this could be used for legal effect, and what form the case should take and what evidence was necessary, and we communicated to the counsel all the materials accumulated there for use as it might be determined by the British and Canadian Government. All this was referred to them, and they were asked to examine it carefully and pronounce their opinions upon it, and from my own knowledge of the labor involved in getting it up I think they must have had a hard time of it going through it.
"If we remember that the matter in dispute relates back to the American War of Independence of 1775, and that it was discussed at length at the treaty of Paris 3rd Sept., 1783, then again at Ghent at the treaty of December 24th, 1814, but not included in that treaty, because the high contracting parties could not agree, and that it was only after overcoming many difficulties, after the seizure of vessels, and the exchange of lengthy correspondence between the interested parties, that the question was finally referred to International Commissioners, who passed the convention of 1818, by which both countries were guided until 1847, when the parliament of Canada initiated the proceedings which resulted in the treaty of reciprocity of the 5th June, 1854, between the United States of America and Canada, and remember that after and since the expiration of the treaty of the 17th March, 1866, this question remained unsettled up to the time of the Washington treaty, which adopted as the proper mode of settlement of this much vexed question the reference of the whole matter to the commission at Halifax; and if we consider the large field of study and the amount of researches necessary to grapple this case properly, I think it is impossible to over estimate its importance, and it will be easier to value the large amount of work done by counsel in preparing this case, which cannot be said to be of less importance than the Geneva arbitration under the some treaty, and in supporting the claim of Her Majesty before the commission at Halifax, and I do not think it can astonish us, if Mr. Doutre, in his evidence, says that he has been exclusively engaged working for the Government of Canada for 240 days. I will again give an extract of the evidence on this point.
I was engaged in this matter during eight months, I consider constantly, that is to say sis months in Halifax, one month that I devoted to coming here to Ottawa, and putting together all the time that I spent at home on the papers and writting letters, I put at one month, and I think it is a very moderate estimate. This would make out that I was engaged in this matter 240 days. I put this down at $50.00 a day which is the remuneration which I generally charge to other clients, and my expenses at the rate of $20.00 a day, that is exclusive of travelling expenses going to and coming from Halifax, which I put at $275.00. The expenses in Montreal during my six months absence I put at $250.
When I go to England and on my return make out the account of my expenses I find that they average $20.00 a day. I have been coming to Ottawa and returning to Montreal, but that is included in the 240 days. "During a short adjournment of the commission Mr. Doutre was absent from Halifax for six or eight days, during that time he was engaged on other business for two days. I would be disposed to deduct them from the 240 days during which he says he was at work on matters relating to the Fishery Commission, but it appears to me that he credited that short absence when he computed the number of days he was employed at home as when he puts the time he devoted at home to this work he states it is a very moderate estimate. If I entertained any doubt that Mr. Doutre was getting paid twice for these few days I would order him to be interrogated de novo on this point, but believing he has given the exact number of days I will not do so, and I will adopt that number of days during which he says he was employed at the work for which he had been retained.
"Now is the sum of $50 per day which the suppliant claims, a reasonable amount? Mr. Doutre tells us that it is the price he gets ordinarily when he is obliged to absent himself from his office, exclusive of his expenses, which he always demands.
"His evidence on this point is corroborated by that of a number of distinguished members of the bar of Montreal, who being called as witnesses in this case prove that the sum of $50 per day, exclusive of expenses, is the ordinary amount charged by them in important cases which entail the absence of the lawyer from his office. Some extracts of the evidence on this point prove this conclusively
"W. H. Kerr, Q.C., after referring to two cases, in one of which his fees were $3,500 and the other $4,000, says:
I have received on many occasions for trials, here, at the rate of one hundred dollars to one hundred and fifty dollars a day for attendance in court. In a recent case, in the case against Sir Francis Hincks and other directors of the Consolidated Bank, I received twelve hundred dollars. I think it lasted six days and one day in the Court of Queen's Bench on the reserved question.
"In the case of Hon. A. Angers, Attorney-General for the Province of Quebec, and The Queen Insurance Company, which, lasted one day and a-half, his fee as one of the three counsel employed was $500, the other two counsel, J. C. Abbott, Q.C., and Mr. Doutre, the suppliant, received a similar amount.
"In the case of the Hamilton Powder Company for insurance, the trial having lasted four and one-half days, his fee was $600, and that of Mr. Carter, Q.C., for the defence, $1,000. Among other cases, he cited the cases of Worms, Caldwell and Foster, extradition cases, in which the United States were interested, and his fee in each of these cases was $1,000. The time given to each of them was not more than 3 or 4 hours.
"Mr. Laflamme Q.C., received $4,000 fees in the case of the Bank of Toronto and The European Insurance Company. In the case of Simpson v. the Bank or Montreal, his fee was over $5,000. These cases did not oblige him to leave the city, and one of them did not take more than three or four months of his time. In the case of the St. Albans Raiders, his fee was $1,500. In the case of Fraser, which, without including the time he spent in preparing the argument, lasted about two months, his fees were $6,000.
"In the case of the explosion of the ferry boat at Longueuil he got $1,000 for one day he was engaged on the case.
"In the matter of the seignorial indemnity claimed by Mr. DeBeaujeu, in which Mr. Laflamme was occupied for a few months, but with the understanding that he could attend to his business at the office three days in the week, his fee was $5,000.
"Mr F. X. Archambault says that in his practice, which is both civil and criminal, the retainers or extra fees vary from $500 upwards and sometimes $1000, it depends on the importance of the case and its difficulties.
"In a case against one Henault, although there were three cap. ad resp. it was practically only one case, which took about one month of his time, he charged $2,800. In the case of Martin v. Gravel which was appealed to the Privy Council, he received $2,000. He cannot remember all the cases in which he received such large fees, but mentions these as examples. He states that in all important cases, either civil or criminal, a retainer of from $400 to $500 is generally charged. As to the sum of $50 per day, exclusively of expenses, claimed by Mr. Doutre, Mr. Archambault says: "I think a charge would not be looked upon in Montreal (and in Quebec also, I suppose, although I have not practised there) as at all exaggerated fixed at the rate mentioned by Mr. Doutre in his evidence $50 00 a day and expenses. That is what I charge when I have to go to Quebec to look after charters. That is my usual charge. I charged up to $1,500 to obtain a charter during last session, and it did not take more than a fortnight of my time.
"Messrs. Duhamel and Walker with Mr. Archambault, state that $50 per day and expenses is a reasonable charge for the services rendered by the suppliant.
"Messrs. W. Robertson, Q.C., and W. Ritchie, Q.C. spoke of the fees received by the lawyers of the city of Montreal in the like manner as the other barristers who had been examined as witnesses.
"Mr. Thomson, Q.C., the eminent lawyer of the bar of St John, whose untimely death shall long be regretted, and who was one of Mr. Doutre's colleagues, in his evidence said that $100 per day would have been a reasonable enough remuneration. All lawyers agree in saying that under such circumstances it is not only necessary when estimating the value of the service of counsel to take into consideration the amount involved in the case, the difficulties and the novelty of the question to be treated, but also the length of time the counsel may be absent from his office, which absence always very seriously affects his business.
"This was certainly the case for the suppliant, and for Mr. Thomson—by their absence, which lasted six months, they almost ruined their professional business. It is in evidence that the income of the suppliant, owing to his absence, was reduced from $16,000 to $4,000. Although the disastrous consequences of this absence cannot be taken into consideration in estimating the amount of his fees, and the suppliant must console himself for this loss with the thought that he has achieved together with his colleagues a remarkable success, yet the absence anticipated, which was considered would last six months, must be borne in mind as being one of the elements upon which the remuneration is to be determined. All the lawyers who have been examined as witnesses have drawn a considerable distinction between the fees charged for services rendered at the ordinary place of business of counsel, and those for services rendered which necessitate an absence, thereby leaving it impossible for them to direct and watch over the business of their office.
"Although this evidence seems to be irresistible, we can also, in order to ascertain whether the amount demanded is not exaggerated, compare it with the amounts paid by the unsuccessful party to this celebrated case.
"The Government of the United States paid its agent and counsel, Hon. Dwight Foster, for his services in the same case, $9,000, exclusive of all his expenses and those of his family. The other two counsel engaged with him and who commenced to take part in the proceedings before the commission only on the 15th of August, received each $5,000, exclusive of all their expenses and those of their family. It is clear from this that Mr. Doutre's demand is far from being excessive.
"For these various reasons I am of opinion that the sum of $50 per day as a remuneration and the sum of $20 per day for his expenses, including the expenses of his family, would be a reasonable amount as a remuneration for the services rendered, and that the agreement entered into between the parties was to that effect. In adopting these figures, it will be seen that the Crown is not made to pay more to the suppliant than what the suppliant and a great number of other lawyers would have charged to their ordinary clients in important cases, the importance of which would never equal the importance of the case which the suppliant conducted before the commission at Halifax. By taking these figures in computing the amount of the remuneration and adding thereto certain sums for travelling expenses, &c., mentioned in the suppliant's deposition, it will be found that the total amount exceeds $ 16,000. The Government have paid suppliant $8,000, which leaves a balance in favor of the suppliant of over $8,000, but as he has by letter, dated May 16th, 1878, reduced his demand to $8,000, I will adopt that sum as being the amount due.
"The suppliant by his petition claims, outside of the amount due him for his remuneration and expenses, a sum of $2,000 damages for the loss of time and expenses incurred while endeavoring to effect an amicable settlement with the Government which had retained him and with the present Government of the day.
"To obtain this settlement he made several trips to Ottawa, entertained a lengthy correspondence with divers Ministers and Members of Parliament in order to avoid the necessity of having recourse to a petition of right to obtain his due, which he thought would be a scandal, as it related to a matter of international rights of great importance.
"Whilst recognising the honorable motives which induced the suppliant to act in this manner, and admitting that he has, no "doubt, been put to large expenses, I cannot entertain such a claim. It cannot be recognized as a legal claim. It is very true that the suppliant, hoping to obtain an amicable settlement, delayed the filing of his petition of right. This delay took place for the benefit of the Government, and in justice and equity, the Government ought to pay him interest. But, under the peculiar circumstances of this case, the obligation to pay interest is a moral obligation and not a legal obligation which a court of justice could enforce. The suppliant, therefore, must rely on the spirit of equity and justice of the Government.
"On the whole, I am of opinion that the suppliant is entitled to receive from the Crown the sum of $8,000, as a remuneration for his services with interest on that amount since the 29th August, 1879, the date upon which the petition of right was received by the Secretary of State, the whole with costs."
The usual motion to revise the judgment was made, but it was refused.
The case was thereupon appealed to the Supreme Court of Canada.
Mr. Lash, Q. C., and Mr. Hogg with him, for appellant:
The suppliant's services, for which he now sues the Crown, were rendered as one of the counsel in the British interests before the "Halifax Commission," which sat under the Treaty of Washington. The services were to be rendered at Halifax, in Nova Scotia; therefore the law of the place of performance governs as to the right of the parties under the contract (if any) entered into between Her Majesty and the suppliant. Story, on Conflict of Laws[3], lays down the law as follows on this point:
"Where the contract is either expressly or tacitly to be performed in any other place (than where it is made) there the general rale is in conformity to the presumed intention of the parties that the contract as to its validity (except as to form), nature, obligations and interpretation, is to be governed by the law of the place of performance."
This statement of the law is adopted by Dicey, on Domicile[4]; same doctrine in Von-Savigny's Private International Law[5]; see also Beard v. Steele[6]; Lloyd v. Guilbert[7].
Now whether the contract should be governed by the law of Ontario, where it was made, or by the law of Nova Scotia, where the services were performed, the suppliant cannot recover for his fees. The case of Baldwin v. Mongomery[8] has decided that the English rule on this subject is in force in Ontario.
In England, Kennedy v. Broun[9] decides that:
"The relation of counsel and client renders the parties mutually incapable of making any contract of hiring and service concerning advocacy in litigation." The case, therefore, decides that there is an absolute incapacity to contract. A physician's case is different; there, there is no incapacity, and an express contract is binding. According to usage, no action lies for their fees, and unless there be an express contract, they are presumed to be governed by the usage.
Now the services rendered by the suppliant in this case were "advocacy in litigation," within the meaning of that term as used in Kennedy v. Broun. The proceedings in Halifax were proceedings such as are usual in a court. The suppliant himself in his evidence admits it, for he says:—"It was a court like this court; there was only one witness examined at a time, so only one lawyer was employed at a time, &c;" and, again, he says: "The proceedings were the same as in a court of law."
The language used in Kennedy v. Broun[10] covers exactly suppliant's position.
But it is contended that, in addition to services as an advocate, the suppliant performed other services, such as coming to Ottawa, preparing case, &c., for which he can recover. There are two answers to this. First, the sum paid him is sufficient to cover all such expenses; and, secondly, these services were merely auxiliary to the service as an advocate, and if the principal service could not be the subject of a contract, neither could any service which was merely accessory thereto, and of no value without the principal. I do not contend that a counsel should act for nothing, or that he should be satisfied with what his client may seem fit to give, for the moment I am dealing with the naked legal question as to his right to recover by action for his fee, and on this point the law is clear, and the rule laid down in Kennedy v. Broun has been extended in 1870 to non-litigious business by Moystyn v. Moystyn[11], so that even if this court were of opinion that the services rendered were not advocacy in litigation, the suppliant cannot recover. See also Veitch v. Russell[12], and Hope v. Caldwell[13]. As to McDougall v. Campbell[14], relied on by the judge of the court below, it was held that the plaintiff there could enforce a claim for counsel fees upon an express promise to pay an amount fixed by a third person. The claim here is on a quantum meruit, and in that respect McDougall v. Campbell does not apply. Moreover, I submit, that the decision of the majority of that court, which is not binding on this court, is erroneous and contrary to the law of England, in force in Ontario, on this subject.
The learned counsel then referred to the contract as gathered from the evidence, and contended that by the terms of the contract, the suppliant could not recover, as he expressly agreed to accept a gratuity, leaving it entirely in the hands of the Government what it should be; and also contended, upon the evidence, that, even admitting the suppliant's view of the contract, it was proved beyond all doubt that suppliant had been paid at the rate of $30 per day and his expenses for the actual time he had been employed as counsel, and that the amount paid was a sufficient remuneration.
I will now take up suppliant's contention that because he is an advocate of the bar of Quebec, the law of Quebec governs, and that by that law he is entitled to recover upon this petition.
To this we submit, 1st. That by sec. 19 of the Petition of Right Act, the law of England must be looked to, and that if in England no action lies against the Crown for counsel fees, in Canada, no such action can be taken against the Crown by petition of right. 2nd That if the law of Quebec governs, suppliant's evidence is inadmissible.
The principal cases in Quebec on the subject are. Devlin v. Tumblety[15], Grimard v. Burroughs[16]. The head note to this case is: "A barrister or attorney cannot recover, on a quantum meruit and verbal evidence of value of services, the amount of a fee claimed by him over and above the amount of his taxed costs from his client." Amyot v. Gugy[17], Larue v. Loranger, appeal side Q. B. reported in legal news of 4th Sept., 1880.
My last point is: the Crown is not liable to pay interest on the suppliant's claim. The statutes relating to interest do not apply to the Crown. Re Gosman[18]
Mr. Laflamme, Q. C., for respondent:
The rights, privileges, liabilities and remedies of the members of legal profession in England are very different from those of the members of the same profession in Canada.
In Ontario the professions of barrister and attorney may be united in one person, and so in Quebec and in Nova Scotia and New Brunswick, whilst in England they cannot. In Ontario a barrister, who is also an attorney, and even if not an attorney, may deal directly with the client, and recover his counsel fees and other costs by action from his client. This principle is sanctioned by legislation in Ontario, in giving powers to courts to make tariffs, &c., providing for counsel fees, &c., also by decisions of the courts.
See McDougall v. Campbell[19] and other decisions and statutes there referred to.
This right of action of a barrister to recover counsel fees by suit, whether according to a tariff (if there is one) if the proceedings in respect of which the services were rendered were in a suit, or in other cases to recover upon a quantum meruit, has long been recognized in Quebec.
The cases of Larue v. Loranger[20] and Devlin v. Tumblety[21], cited by the counsel for the Crown in this case, do not negative this right of action. The point which they decide, and notably the latest case, Larue v. Loranger (in appeal), being, as will be seen on close examination, that where there is a tariff recognized fixing the fees for certain classes of work, an action upon a quantum meruit will not lie, but the counsel must either be satisfied with what the tariff allows, or be in a position to prove a distinct agreement with the client for a sum certain in excess of the tariff allowance.
Where, however, there is no tariff applicable and no special agreement made, an action on the quantum meruit will still lie in Quebec, and such is this case, and such was also the law of Quebec prior to 23 and 24 Vic. See Amyot v. Gugy[22].
In France I find also that, where there is no tariff, the counsel alone is the judge of the value of his services, and if he charges too high, the client can appeal to the council of law. See Morin, Discipline des cours[23]. Duchesne and Picard, Manuel de la Profession d'Avocat[24]. Journal de Palais[25].
Our civil code also recognizes the right of a barrister to sue for services rendered by Art. 2260, that applies to all kinds of professional services.
It has been contended that because the services were performed at Halifax, the principles of our law should not govern this case. Now by the pleadings, and it is also proved by the evidence in the case, the contract was made in Montreal, the respondent undertook, as a counsel of the bar of the province of Quebec, to represent Her Majesty wherever the Commission sat. If it had sat in New York, it would not have been the law of New York that would have governed. It was an accident that Halifax was chosen as the seat of the Commission. When Mr. Doutre was arguing the case, he was not acting as a Nova Scotia barrister, in fact he would have no locus standi as such. When a counsel is acting before an arbitration, or say the Supreme Court, or even the Privy Council, he is entitled to all the rights and privileges of the profession to which he belongs.
Now with respect to the contract, I submit it is first of all established by the treaty, for in it we find a provision that counsel were to be employed, and surely when one party requests the services of another, and the latter agrees to give them, there is a complete contract. What were the conditions of the contract in this case? On this point I rely upon the finding of the Judge who tried the case, and contend that the evidence clearly establishes that the money received by the suppliant was in accordance with the provisional arrangement made, viz: Counsel was to receive a retainer, a refresher and expenses, and a reasonable sum at the conclusion of the business. It is contended on the other side that the word "gratuity" should be construed in its technical sense. Now there can be no doubt that what was meant here was, the fee, the honorarium, which cannot be valued in money. It was an obligatory gratuity and is synoymous with quantum meruit.
Mr. Doutre stood on his professional dignity and relied on the rule of the French law, and said I exact so much for expenses and I exact a gratuity at the end. Sir Albert Smith admits it was to be proportioned to the result, and the result in this case was an award of over $5,000,000.
The case of Devlin v. The Corporation of Montreal is is not reported, but, as Mr. Justice Taschereau remembers, in that case our Court of Appeal held that Mr. Devlin was entitled to certain fees for professional services rendered to the corporation and for which there was no provision in the tariff. With reference to the value of the services in this case, there is no evidence on the part of the crown.
The only other point raised is as to the jurisdiction of this court.
The pleadings of the crown gave no intimation of the question which it intended to raise as to the right of a Canadian counsel to bring a petition of right for services as counsel rendered to the crown.
The only reference to the right of the petitioner to bring a petition of right is in paragraph 3, which is confined to denying that petitioner was employed for more than two years, and that the expenses incurred by him exceeded eight thousand dollars as alleged, and concludes as follows: "and I submit that the expenses incurred by the suppliant in connection with his family and the loss alleged in connection with his professional affairs and family and domestic arrangements, form no part of any claim which can be enforced against Her Majesty in the premises by petition of right."
The respondent, by the pleadings, having confined this objection to expenses, admitted the right of the petitioner to bring a petition of right for services rendered as counsel.
The Court of Exchequer in England had and still has jurisdiction in all suits by subjects to recover lands or money from the Crown in England, or it is sometimes termed, the "Imperial Crown."
If therefore the suppliant has a remedy at all against the Grown in Canada in respect of his claim in this case, the Court of Exchequer in Canada must have exclusive jurisdiction in that behalf, as the claim of the suppliant is of such a nature as would have come within the jurisdiction of the English Court of Exchequer (Revenue side) in consequence of it being for the recovery of money from the Crown by a subject; section 58 of S. and E. Act. The next question to be considered is whether a subject has, under the circumstances and for the causes in the petition of right alleged, any remedy at all against the Crown.
Section 19, clause 3, of the Petition of Right Act, declares that "nothing in said act contained shall give to the subject any remedy against the crown in any case in which he would not have been entitled to such remedy in England under similar circumstances by the laws in force there prior to the passing of the Imperial Statute 23 and 24 Vic. c. 34," and counsel for the Crown contend that prior to 23 and 24 Vic. a subject would not have been entitled to any remedy against the Crown by the laws in force in England prior to the passing of the said 23 and 24 Vic. under similar circumstances to those under which the suppliant seeks relief in this case, and that therefore the suppliant's petition of right will not lie.
The suppliant contends that this is not really a question of jurisdiction, because section 58 of the Supreme and Exchequer Court Act virtually declares that this court shall have exclusive jurisdiction in all cases in Canada for the recovery of money from the Crown, and the clause of the Petition of Right Act above quoted merely declares that the Petition of Right Act "shall not give any remedy, &.," and does not declare that the court shall not have jurisdiction in such a case if a remedy or right already existed. The real question then to determine is whether the suppliant would have been refused relief as against the Crown prior to 23 and 24 Vic. if he had been proceeding against the Crown in England for similar causes of action incurred under and affected by circumstances similar to those affecting his claim in this suit.
To decide this question the phrase "under similar circumstances" must be properly construed, as upon the construction of this the solution of the question depends.
There have not been cited on behalf of the Crown any authorities, nor can such be found, deciding that if a British subject, being a member of the legal profession in Canada, had been employed by the Crown in England under the circumstances and for purposes similar to those set forth in the suppliant's petition, he would have had by the laws then in force in England no remedy against the Imperial Crown for the value of his services performed pursuant to such retainer or employment.
The only argument on the part of the Crown upon this point is one of inference drawn from the fact that it was decided prior to 23 and 24 Vic., that an English Barrister had no right in England to sue for his counsel fees earned in a suit or matter in litigation in any of the English courts of justice.
The English cases cited by the counsel for the crown only decide the question of the right of English barristers to sue in England upon a quantum meruit for their remuneration as counsel in suits or proceedings in courts, the judgment in the case of Kennedy v. Broun[26] being distinctly and clearly limited to this point.
The suppliant therefore contends that there was no decision against the right of even an English barrister to recover for services such as are claimed for in this suit, the services claimed for having in no sense been rendered in connection with litigation or proceedings in any of the courts of justice.
"Similar circumstances" therefore did not exist in the cases cited by the crown; and the argument deduced from section nineteen of Petition of Right Act and the English cases referred to does not apply to plaintiff's remedy by petition of right in this country. But even if an English barrister could not have recovered for services performed in England, such as have been performed for the crown in Canada by the suppliant, as he is not an English barrister, but a Quebec counsel (including in that term the terms advocate, attorney and proctor) it does not follow that he could not recover.
RITCHIE, C. J.:
The contract relied upon by the respondent in this suit has to be gathered from the evidence of Messrs. Doutre, Whitcher and Sir Albert Smith, and I will therefore cite such portions of their evidence as in my opinion show where the agreement was entered into and what the nature of that agreement was.
Mr. Doutre, in his evidence, after stating that he had written a letter to the Minister of Marine and Fisheries, which contained the basis of the terms upon which he was willing to go to Halifax and act as one of Her Majesty's counsel before the Fishery Commission, says:
I received a telegram from the Minister to come to Ottawa. I came and had a conversation with him and Mr. Whitcher. The three of us were alone, and this was the only interview that I had on the subject. I insist upon this, because afterwards Sir A. J. Smith pretended that Sir A. T. Galt and Mr. Ford, the British agent, and Mr. Bergne, Secretary of the commission at Halifax, knew something of the arrangement made with me. That could not possibly be, because that was the only occasion on which I had a conversation with the Minister on the subject, and the only person present then was Mr. Whitcher. The Minister had my letter in his hand and he said: I would like to know what you mean by future arrangement as contained in your letter?" I bad stated that we would settle finally the amount of our remuneration and expenses after the commission would be over: I said, "I mean that I am too ignorant of the adventure into which I am entering to state precisely what the remuneration should be, I do not know how we will come out of that commission. I have no power to bind my colleagues, and I am making such arrangements as will suit them temporarily until the commission is over, and then it can be settled finally" I stated that for these two reasons—I could not bind my colleagues, and that I was too much in the dark to determine anything precisely—I insisted upon making some temporary arrangements which would relieve us from money embarrassment while we were away. Then Sir A. J. Smith said: "Do you mean that if we obtain nothing from the commission you will be lenient, or have mercy upon us, and if we obtain a good award you will expect to te treated liberally?" I said: "You may put it on that basis if you like, but it is only then that we will be able to settle the matter." This ended the conversation. The $1000 was expected to meet our expenses as we were going to live in a place where we did not know how the expenses might run.
Q. You proposed then that you should receive $1,000 refresher and $1,000 a month while in Halifax? A. Yes.
Q. And subsequently to settle for your expenses and fees? A. Yes.
Q. About what was the date of that interview? A. That interview must have taken place about the 23rd or 24th of May, because on the 25th I wrote to my several colleagues telling them what had been done, and in each of these letters, they stated to me, it was particularly mentioned that the arrangement was purely a temporary one.
The letter which I now produce and fyle as exhibit No. 4 was written to Mr. Thomson on the very day that I wrote that letter which is missing. There are two letters dated the 7th May, one to Mr. Thomson and the other to Mr. Weatherbe. The one to Mr. Thomson is as follows:—"I have just written Hon. A. J. Smith a confidential letter in which I tell him that yourself and Mr. Weatherbe had left in my bands the question of our remuneration as counsel, but that I did not feel like taking the responsibility of committing us to any definite thing, deprived as I was of your advice; that, however, I owed it to you and myself to take the necessary measures to provide for the present and the approaching session of the commissioners, that I thought we were entitled as a mere temporary arrangement to a refresher of $1,000 each, and that provision should be made in your bank in Halifax where we could each draw one thousand dollars a month, beginning on the first of June, adding that our sojourn in Halifax would necessarily be expensive, and that cut as we would be from our base of supply, we should feel at ease in this respect. This leaves the thing intact for future arrangements." This was written on the 7th of May, and on the same day I wrote to Mr. Weatherbe to the same effect. Here is a letter written on the 30th of May to Mr. Davies living at Charlottetown, who was at the time Attorney-General in his province. It is as follows: - "I have been in Ottawa at different intervals, and at a time I met there Messrs. Thomson and Weatherbe. We understood you were prevented from coming by your parliamentary duties. We had spoken together of the advisability of coming to some understanding in regard to pur fees with the Government, but Messrs. Thomson and Weatherbe left without coming to anything in this respect. After their departure I went again to Ottawa with Messrs. Galt, Ford and Bergne, and I submitted the following proposition, viz:—That each of us should receive a refresher equal to the original retainer, and that we be allowed to draw on some bank in Halifax a similar amount to such retainer every month while being there, leaving a final arrangement to be made after the award, giving to understand that if we were not very successful we would ask little or nothing. This last part, however, is verbal only; what is written is that the above proposition would be a temporary arrangement, as I had no right to bind my colleagues. This was agreed upon. You may therefore draw upon W. F. Whitcher, Esq., Commissioner of Fisheries, for an amount equal to your first retainer." This was after that interview so that the letters written immediately after my letter to the Minister and the letter written after the interview with the Minister agree together, and all show the agreement between the Minister and myself.
Then Mr. Doutre produces the following letter which he received from Mr. Whitcher:
The entry in my note-book is perfectly correct. Sir A. J. Smith's agreement with you was also discussed before Mr. Ford. If Mr. Weatherbe has made any note different from mine such as makes it appear to be an arrangement acquiesced in by Sir A. J. Smith or Mr. Ford it is incorrect. Your arrangement was made with the Minister, and Mr. Ford assented as agent of the British Government.. My memorandum book shows two entries, one dated 10th of May, 1877, and reads: "Counsel want $1,000 each as refresher and temporary arrangement for $1000 per month and all expenses paid at Halifax," the other is dated 23rd May, 1877: "agreed with counsel another $1,000 refresher and $1,000 per month during the session of commission, all expenses of travelling and subsistence, and a liberal gratuity on the conclusion of the business." These are records of my interviews with the Minister.
And as to the junior counsel, Mr. Doutre says:
Mr. Davies and Mr. Weatherbe, who were retained as junior counsel, were treated as we were—that is, received $1,000 retainer and $1,000 refresher, and $1,000 a month while in Halifax. Q. Is Exhibit No. 12, now fyled, a letter sent to you from Mr. Weatherbe? A. Yes; on the 10th of April, 1879, Mr. Whitcher sent to Judge Weatherbe the following memorandum:
"My recollection is clear that Mr. Doutre's letter for self and confrere, stipulating for retainer, refresher and personal expenses, was temporary, and that the final settlement was not to take place until the result of the commission. This was acquiesced in by Sir Albert Smith and Mr. Ford. I was present at the discussion. My note book contains the following:"—
Then follow the entries that I have already read.
Mr. Whitcher stating what took place after the receipt of Mr. Doutre's letter, with regard to the remuneration of counsel, gives the following evidence:
I remember one particular instance when he pressed for a decision as well for the other counsel as on his own behalf. That was the occasion, if I recollect rightly, when this letter was discussed, but there had been other discussions at intervals prior to that.
Q. What took place at that interview? A. It would be difficult to say what occurred, there was so much conversation.
Q. Who was present? A. I was present but took no part in the conversation.
Q. Who else was present? A. The Minister and Mr. Doutre.
Q. This letter, you say, was discussed: was any definite arrangement arrived at? A. The general character of the conversation was, that the Minister seemed a little unwilling to leave the thing open, and was pressing for some definite terms, as I understood it. It ended in an understanding that this would be a temporary arrangement so far as it was not specified, that is to say, there was to be $1,000 paid for retainer, $1,000 for refresher and $1,000 per month while the commission sat. There was some difference as to the junior counsel, but that is not pertinent to this. Further remuneration to these amounts was to form the subject of after consideration. I do not pretend to recite the words used; there were so many conversations that it would be impossible to remember them all.
Q. Did you make a note of the conversation?
A. Yes; as I was paymaster throughout the whole of the commission, I kept memoranda of all agreements.
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Q. Have you the memorandum now here?
A. I have. There is an entry on the 10th May, 1877, I may state that there were discussions constantly going on as to the counsel, Professor Hind, Mr. Miall, and others engaged upon the commission. This entry is amongst Others, and is as follows:—"Counsel want $1,000 each as refresher and temporary arrangement for $1,000 per month and all expenses paid at Halifax."
This, if I connect it rightly in my memory, was the occasion when the Minister asked Mr. Doutre to reduce the proposition to writing. Further on I find, amongst a numb